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"A New Judicial Article for New York" |
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A pervasive problem in drawing up a new judicial article is that of form. This is not simply a question of esthetics, for the length of the article may have important practical implications. If the article is long, it means that little discretion is left to those who are to implement the provisions. A short article allows much more discretion in implementation, which can be left to the legislature, to the courts, or even to an administrative body, such as the present Administrative Board of the Judicial Conference, or to a combination of these. Essentially, the constitutional convention has two decisions to make here: (1) how much authority to delegate, and (2) to whom to delegate. These decisions require a value judgment as to what implementing body, if any, can be trusted. In framing a constitution, change may well he the key factor to keep ill mind. Framers of a constitution, no matter how wise and capable, cannot envision all the changes in conditions and needs that will occur. The strength of the federal constitution has been its flexibility. The fact that New Yorkers are constantly being asked to vote on proposed constitutional amendments and the fact that the state is now planning its ninth constitutional convention in less than 200 years demonstrate the transitory nature of detailed provisions. Under a properly drawn constitution, necessary changes can be made without the cumbersome process of constitutional revision. Consequently, the judicial article should deal with fundamentals — basic principles — not detailed regulations and prescriptions more appropriate for legislation. What should the judicial article include? This varies from state to state, but most judicial articles cover the following areas: court structure and jurisdiction; judicial selection; tenure, retirement, and removal of judges; compensation; judicial conduct; administration; finances; and rule-making.[25] For both form and coverage of the judicial article, the delegates have a wealth of models to consult — the federal judicial article; the relatively new judicial articles in such states as New Jersey, Illinois, New Mexico, North Carolina, Alaska, and Hawaii; and model judicial articles prepared by various organizations. The best known of the models is that prepared by the Section of Judicial Administration of the American Bar Association.[26] Another, designed specifically for New York, was prepared by the Institute of Judicial Administration in 1958 for the League of Women Voters in preparation for the last effort at constitutional revision.[27] The National Municipal League, in its Model State Constitution, also includes a judicial article.[28] |
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 The Historical Society of the Courts of the State of New York |