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"A New Judicial Article for New York" |
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Every lawyer in New York State is interested in and affected by the judicial article of the New York State Constitution. The authors of the following material have reviewed the history of the present article and outlined their proposal for a new judicial article. Because of the impending Constitutional Convention, we are printing this exhaustive article here for the benefit of our readers throughout the State. | |
 Delmar Karlen |
 Joseph M. Miller |
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SINCE the Declaration of Independence, eight constitutional conventions have been held in New York — in 1777, 1801, 1821, 1846, 1867, 1894, 1915, and 1938.[1] Another will convene in April, 1967. One of the many difficult problems facing the delegates to the convention will be the drafting of a new judicial article. The present article, which was last revised in 1962, is the product of nearly two centuries of accretion.[2] The state's first constitution, promulgated in 1777, had no judicial article as such, but contained several scattered provisions dealing with the courts and the judiciary.[3] These recognized and continued in existence most of the colonial courts, established a court for the trial of impeachments and the correction of errors, provided for the appointment of judges by a Council of Appointment consisting of legislators, and prohibited judges from holding other office. The constitutional convention held in 1801 did not produce a new constitution, but it adopted amendments which gave the power to select judges to the Council of Appointment and the Governor concurrently.[4] The next constitution, promulgated in 1821, contained the state's first judicial article.[5] This perpetuated the existing courts, and established in addition a new system of circuit courts.[6] The selection of judges was covered in a different article which dealt with selection of state officers generally.[7] The appointing power for all major judicial positions was vested in the Governor, subject to senate confirmation, rather than in the former Council of Appointment.[8] The 1846 constitution was the most radical break with the past in the history of the state so far as the judicial article was concerned. It set a judicial pattern for the state which has continued to the present day and which has been widely copied throughout the nation.[9] The most important innovations were (1) a switch from the appointment to the election of judges [10] and (2) a change from judicial to legislative rule-making.[11] The article set up the Court of Appeals as the court of last resort, and established the Supreme Court as a statewide court of general original jurisdiction, vesting it, in addition, with limited intermediate appellate jurisdiction. The article also contained other detailed provisions that did not appear in the previous constitution, covering such matters as the number and compensation of judges. The judicial article was revised and enlarged in 1869. Certain city courts of Brooklyn, Buffalo, and New York City were given constitutional recognition, the legislature was empowered to provide for the temporary assignment of the judges from certain lower courts in New York City to the Supreme Court, and a Commission on Appeals was established on a temporary basis to cope with the backlog of cases pending in the Court of Appeals. The article also directed the legislature to submit to the people the question whether they preferred the appointment or election of judges. This was done, and the people voted overwhelmingly in favor of election.[12] The constitutional convention of 1894 wrote a new constitution which did little more than incorporate most of the 1846 constitution as it had been subsequently amended.[13] However, for the first time, judges of the higher courts were required to be lawyers.[14] The 1915 constitutional convention, aided by an expert study group, proposed numerous changes in the judicial article, but all of them were rejected by the people by substantial majorities in the November, 1915 election.[15] In 1921, the legislature called a special convention on the judicial article, which subsequently recommended a general revision of it; but again the article was not adopted.[16] However, many of the changes proposed in 1915 and 1921 were incorporated into a revised judicial article which was presented to the people by the legislature and adopted by the voters in 1925. The general contours of the court system remained the same, but the jurisdiction of some of the courts was altered, certain local courts were given constitutional recognition,[17] and, in general, the judicial article became more complex. Still lacking was a comprehensive reorganization and simplification of the judicial system.[17a] Another constitutional convention was held in 1938, but it did not result in any changes in the judicial article.[18] By the 1950's, New York's judicial system was in a sorry state, with a great multitude of courts and no satisfactory system of overall administration. In 1953, the legislature created the Temporary Commission on the Courts to make a comprehensive study of the entire system, including all phases of administration, structure, procedure, and personnel.[19] In 1956, the Temporary Commission proposed a plan which would have greatly simplified New York's court structure, sharply reducing the number of courts and making all which remained part of a single, unified system with central administration.[20] The plan was never approved, however, and the Temporary Commission went out of existence in 1958. The idea of court reform did not die, but was kept alive by such groups as the League of Women Voters and the Citizens' Committee for Modern Courts. Partly as a result of such pressure, the Judicial Conference of New York finally prepared a less far-reaching, substitute plan, which became effective as an amendment to the state constitution in 1962.[21] New York's current judicial article is a very long one, running some 31 printed pages and requiring roughly 15,000 words to cover the same general topics as are covered in 500 words on one page in the constitution of the United States.[22] The New York article goes into great detail in almost all its provisions. It names all of the courts of the state: the Court of Appeals, the Supreme Court with its Appellate Divisions, the Court of Claims, the Surrogate's Court, the Family Court, the Criminal and Civil Courts in New York City, the County Courts outside the city, the Justices of the Peace and the Village Courts.[23] It spells out the jurisdiction of these courts, leaving little control in the legislature. It also goes into detail on the selection and qualifications of judges, and on their removal and retirement, as well as on the number and compensation of judges, and the administration of the court system. An especially complicated section is that on finance,[24] the net result of which is to place control of the purse strings for the courts in local communities. |
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 The Historical Society of the Courts of the State of New York | |