New York Chief Judge Janet DiFiore New York Chief Judge Janet DiFiore

The Judicial Task Force on the New York State Constitution was created in July 2016 in anticipation of the following proposal on the November 2017 ballot: “Shall there be a convention to revise the constitution and amend the same.” As Chief Judge, I believed it was absolutely essential to make sure the Judiciary was institutionally prepared to contribute and participate meaningfully in any and all proceedings to revise and amend Article VI, the Judiciary Article of the New York State Constitution.

As we know, the proposal for a Constitutional Convention was rejected by New York’s voters. While there were many strong arguments for and against a Convention, the most compelling reason to vote yes was the need to overhaul the antiquated, overly-complex Judiciary Article of the State Constitution.

New York State Bar members are undoubtedly familiar with the Excellence Initiative, our system-wide campaign to achieve excellence in court operations and judicial decision-making. New York’s judges and court staff are working hard under the banner of the Excellence Initiative to streamline court operations, promote promptness and productivity, reduce litigation cost and delay, and provide modern justice services. But we are fighting an uphill battle. The pursuit of excellence in the New York state courts is severely hampered by the very convoluted structure of our judicial system. As organizational flow charts go, ours is an absolute nightmare—16,000 words setting out the most byzantine and complex court system in the entire country, including 11 separate trial courts.[1] By contrast, California, with about double our population, has a single trial court.

In today’s fast-moving world, successful organizations must be flexible and responsive in order to meet the public’s evolving needs and expectations. The New York courts, however, operate within a rigid, fragmented structure that restricts our ability to manage people and shift resources freely and rationally. In our so-called “Unified Court System,” one court may be struggling with overwhelming filings and case backlogs while another court across the street may be underutilized by comparison. Yet, jurisdictional boundaries make it extremely difficult, if not impossible, to move judges and personnel from one court to another to meet caseload disparities—which is exactly what any other sane and rational organization would do, including our counterparts in the federal judiciary and every other state court system in the country.

While last year’s failure to authorize a Constitutional Convention was surely a missed opportunity for the Judiciary, the stakes are too high to give up now. If a clear consensus emerged from the debates leading up to the last November’s vote, it was that our court system is in desperate need of constitutional modernization. We need to move forward quickly to take advantage of the valuable studies and recommendations issued by so many bar associations, as well as the overwhelming public support for court reform expressed by numerous policy makers, good government groups and opinion leaders around the state.

That is why I have asked the members of the Judicial Task Force on the New York State Constitution to resume their work and focus on recommending discrete constitutional amendments, achievable through the legislative process, that will make our court system more efficient and better equipped to provide fair, timely and quality justice services to the public. In New York, the State Constitution may be amended by legislative action when two separately elected Legislatures vote to place an amendment on the ballot and the voters approve the proposed amendment at a general election.

The Judicial Task Force is co-chaired by Judge Alan D. Scheinkman, now the Presiding Justice of the Appellate Division, Second Department, and formerly the Administrative Judge of the Ninth Judicial District, and Dennis Glazer, a retired partner from the law firm of Davis, Polk & Wardwell. The other 12 members come from broad and varied backgrounds and include current and former judges, legislators, government officials and academics recognized for their scholarship on matters of state constitutional law. The Task Force members, with their deep understanding of New York state government, are uniquely qualified to identify discrete reform measures that combine the best chance of passage with the greatest impact on our Judiciary’s ability to achieve operational and decisional excellence. Obvious possibilities include:

  • Creation of a Fifth Department of the Appellate Division. The creation of New York’s four appellate departments made eminent sense when their population and workloads were roughly equal—but that was back in 1894! The explosive growth of New York City’s suburbs over the last 114 years means that the Second Department today accounts for about half of the state’s population and—incredibly—nearly 65 percent of the state’s appellate caseload.[2] Not surprisingly, this absurd imbalance means that it takes longer to have an appeal heard in the Second Department than elsewhere in the state.
  • Elimination or Relaxation of the Population Cap on the Number of Supreme Court Justices. The Judiciary Article prescribes that the number of Supreme Court Justices in any judicial district shall not exceed one Justice for every 50,000 in population. This cap has gone unchanged since the Coolidge Administration (1925). As a result, the number of Supreme Court Justices has failed to keep pace with exponential caseload growth. The population cap no longer has a basis in reality given that society has grown far more litigious since 1925, and litigation itself has become vastly more complex and resource intensive. Our efforts to adopt “work arounds,” such as the appointment of lower court judges to serve as Acting Supreme Court Justices, does not alleviate the harm to litigants, attorneys and the courts, because it merely deprives other courts of desperately needed judicial resources.[3] The time has come to either remove the population cap or adopt an updated formula that reflects the greatly increased volume and complexity of litigation in our modern society.

Beyond these two “no-brainers,” there are, of course, many other opportunities to update our court structure to enable us to better meet the justice needs of our citizenry in 2018 and beyond, including reorganizing and reducing the number of trial courts, and expanding Family Court jurisdiction to avoid fragmentation of family cases and promote the one-family one-judge concept.

The Task Force will consult and work closely with the New York State Bar Association’s Committee on the New York State Constitution, chaired by Henry Greenberg (also a Task Force member), which issued an excellent report last year containing a thorough examination of the Judiciary Article and the many opportunities available to modernize our state courts. The Judiciary is grateful for the stout support we have received from the State Bar’s leadership, including President Sharon Stern Gerstman, immediate-past President Claire P. Gutekunst, President-elect Michael Miller and the members of the House of Delegates.

Our work to modernize the structure and organization of our court system is a matter of the utmost mutual concern. It is absolutely vital that the Bench and Bar work together to recommend and follow through on practical, achievable constitutional amendments that will make our court system more efficient, affordable and accessible, and support the Empire State’s ability to maintain a healthy business climate that supports economic growth and job creation.

We look forward to receiving the Task Force’s recommendations and to working with the New York State Bar Association in the coming year to move forward with common sense constitutional reforms designed to ensure that the courts and the legal profession remain strong, effective and always capable of meeting the modern-day justice needs of the people we jointly serve.


[1]. Special Commission on the Future of the New York State Courts, A Court System for the Future: The Promise of Court Restructuring in New York State (2007), at 7.

[2]. Report and Recommendations of the New York State Bar Association Committee on the New York State Constitution on The Judiciary Article of the New York State Constitution (December 2016), at 38.

[3]. Daniel L. Feldman & Marc C. Bloustein, New York’s Allegedly Unified Court System, New York’s Broken Constitution: The Governance Crisis and the Path to Renewed Greatness (Ed. Peter Galie, Christopher Bopst & Gerald Benjamin) (2016), at 87-90