Richard J.L. Lomuscio

New Yorkers went to the polls on Tuesday, Nov. 7, 2017, and gave a firm “no” to the once-every-20-years ballot question regarding whether to assemble a state constitutional convention. Much of the opposition focused on concerns that a convention could result in a new constitution stripped of the protections guaranteed to New Yorkers since at least 1938. Somewhat lost in this cacophony of objectors was the argument that a convention would provide New Yorkers the opportunity to restructure their “Byzantine” court system—to borrow the late Chief Judge Judith Kaye’s characterization—for the first time in many years.

The rejection of a constitutional convention is not the death-knell for possible reform. In fact, the restructuring of New York’s court system has steadily gained support from the bar since the Special Commission on the Future of the New York State Courts (the Kaye Commission) issued its report in 2007. See A Court System for the Future: The Promise of Court Restructuring in New York State—A Report by the Special Commission on the Future of the New York State Courts (February 2007) (the Kaye Commission Report). Moreover, Chief Judge Janet DiFiore’s recent decision to reconvene the constitutional convention judicial task force to focus on the legislative advancement of court reforms hopefully indicates that New Yorkers will not have to wait until 2037 to be rid of “the most archaic and bizarrely convoluted court structure in the country.” Kaye Commission Report at 7.

The success of pursuing such a legislative agenda, especially given the many attempts to do so over the years, will rise or fall on identifying reform initiatives that increase New Yorkers’ access to the courts while reducing the system’s overall costs. Three such reforms—merger of the trial courts, creation of a new Appellate Division, and revision of the constitutional methodology determining the number of Supreme Court justices—were first identified by the Kaye Commission and later endorsed by the New York State Bar Association (see N.Y. State Bar Assn. Comm. on the N.Y. State Const., Report and Recommendations Concerning the Judiciary Article of the New York State Constitution—Opportunities to Restructure and Modernize the New York Courts (January 2017) (the NYSBA Report)), the New York City Bar Association (see New York City Bar Assn., Report of the Task Force on the New York State Constitutional Convention (June 2017) (the NYC Bar Report)), and the Fund for Modern Courts, (see The Fund for Modern Courts, The Constitutional Convention and the NYS Judiciary (2017) (the Modern Courts Report)).

It is likely that these reforms would garner broad-based support because of the efficiencies they would create. Legislative success on one or more of these reforms would also likely provide a foundation for further reforms and perhaps the wholesale revision of the New York Constitution’s Judiciary Article.

Merge the Trial Courts. New York has 11 separate trial courts—more than any other state. There are the Supreme Courts, the Courts of Claims, the Surrogate’s Courts, the County Courts, the Family Courts, New York City Civil and Criminal Courts, City Courts, District Courts, and Town and Village Justice Courts. As noted by the Kaye Commission and other commentators, these distinct and somewhat overlapping courts create confusion for litigants while also increasing the costs to those individuals, businesses and governmental entities that become enmeshed in this system. See, e.g., Kaye Commission Report at 7-8. The merger of these courts into the two-tiered structure with a statewide Supreme Court of general jurisdiction and a statewide District Court with more limited jurisdiction, as proposed by the Kaye Commission, would result in significant savings. See Modern Courts Report at 3-4. The Office of Court Administration estimated in 2007 that budgetary cost savings would total approximately $59 million annually from the unified treatment of related cases and at least $6 million annually from improvement in the courts’ administrative framework. See id. This is in addition to $56 million in economic savings resulting from simplified case management and procedural code reform. See id. In fact, the Kaye Commission concluded that merger would save the public and private sector some $443 million annually through increased productivity, reduced lost wages, and reduced attorney’s fees and related costs. See Kaye Commission Report at 45-48. Merger is supported by a wide variety of New York state business associations, good government groups, advocates against domestic violence, legal service providers, and bar associations, thereby increasing the likelihood that it would have traction with legislators’ various constituencies. See Modern Court Report at 4; see also Coalition for Court Simplification.

 Create a New Appellate Division—Fifth Department. The Judiciary Article divides New York’s court system into four Departments: the First Department (the First and Twelfth Judicial Districts), the Second Department (the Second, Ninth, Tenth, Eleventh and Thirteenth Judicial Districts), the Third Department (the Third, Fourth and Sixth Judicial Districts), and the Fourth Department (the Fifth, Seventh and Eighth Judicial Districts). See NYSBA Report at 37. These four Appellate Division departments currently suffer from overwhelming and imbalanced caseloads. In 2014, the Second Department heard almost 65 percent of all Appellate Division cases, followed by the First Department (18 percent), the Third Department (9.4 percent) and the Fourth Department (7.6 percent). See Modern Courts Report at 4-5. These imbalances have led to significant delays, with litigants in the Second Department sometimes waiting 18 months or longer for their appeals to be heard. The creation of a Fifth Department would help alleviate these burdens.

Revise the Constitutional Methodology for Determining the Number of Supreme Court Justices. The legislature is allowed under the Judiciary Article to increase the number of Supreme Court justices once every 10 years, subject to the rule that the number of justices in any judicial district “shall not be increased to exceed one justice for fifty thousand, or fraction over thirty thousand, of the population thereof as shown by the last federal census or state enumeration.” N.Y. Const. art. VI, §6(d). The most startling illustration of the inequities of this population-based formula is in New York County which, as documents from the New York City Bar Association’s Committee on State Courts of Superior Jurisdiction show, has over 2 million non-residents who work there daily, over 315,000 business associations, over 50 million visitors annually, thousands of out-of-state and foreign agencies and firms that do business in Manhattan, and multiple foreign, federal, state and local government agencies adding immeasurably to the number and complexity of cases that are filed there, none of which can be considered under the current and antiquated justice allocation formula. See Modern Courts Report at 7.

New York could adopt the methodology advocated by the National Center for State Courts, which analyzes the number, value and complexity of cases to determine an analytically sound allocation of judicial resources. See id. Adopting a methodology based on the actual workload of the courts would lead to a more efficient apportionment of state judicial resources and the opportunity for significant cost savings.

Judge DiFiore’s task force faces a difficult task in developing its recommendations. Fortunately, it will be able to leverage years of analysis by concerned judges, lawyers, academics and others. The three proposed reforms discussed above are a direct result of that hard work and target immediately remediable inefficiencies currently costing New York taxpayers millions of dollars annually. Time will tell if these reforms and perhaps others are sufficient to generate the political will necessary to spark successful legislative action.

Richard J.L. Lomuscio, counsel at Drinker Biddle & Reath, can be reached at richard.lomuscio@dbr.com.