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"A New Judicial Article for New York" |
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There are other matters pertaining to judges which may he appropriate for inclusion in the constitution, depending upon the degree of detail that the convention finally decides on. Such a matter is salary. It would be a mistake to fix salaries in the constitution because of the difficulty of changing them quickly enough to respond to changes in the cost of living, but it might be possible to state a flexible formula based upon cost of living indices. This, however, would neglect other relevant factors, such as changes necessary to make judicial salaries comparable to those paid for similar work. The American Bar Association Model Judicial Article ties judicial salaries to those at the higher levels of the executive branch.[92] On first glance, this seems attractive, but executive salaries may not he a fully relevant yardstick for judicial salaries. On balance, it seems wiser to leave salaries to the legislature. It would be entirely appropriate, however, to provide that no judicial salary shall be diminished during the judge's term of office, as is done in New York's current judicial article and in other state constitutions.[93] Another area for the delegates to consider for inclusion or exclusion is that of judicial ethics or conduct. In New York, under the present provisions, judges are prohibited from (1) holding other public office or trust, (2) running for office, other than judicial office or as a delegate to the constitutional convention, (3) holding office in any political organization, and (4) practicing law or acting as an arbitrator, referee, or compensated mediator in any action or proceeding or matter or engaging in the conduct of any other profession or business which interferes with the performance of their judicial duties.[94] These are useful provisions and consistent with the American Bar Association Model Judicial Article. The problem is whether they are comprehensive and detailed enough and whether they have sufficient flexibility to cope with changing situations. That a sitting judge should be prohibited from practicing law or engaging in activity which interferes with the performance of his judicial duties is self evident. So also is the proposition that he should be prohibited from running for or holding other political office or otherwise engaging in politics, for political activity tends inevitably to raise conflict of interest problems. But barring a judge from political activity does not completely solve the problem, as was demonstrated in a recent New York election, when the wife of a candidate for judicial office was an active and influential political leader.[95] Should the husband's candidacy have been proscribed? Problems like this are so numerous and so difficult to foresee that it would probably be impossible to deal with them in the constitution even if it were to contain a detailed code of ethics. The best solution may be to provide in the constitution that the legislature or some body like the present Judicial Conference should promulgate a detailed and binding code of judicial behavior, or to incorporate in the constitution by reference the American Bar Association Canons of Judicial Ethics. Either formula provides flexibility and comprehensive coverage, but the latter has the disadvantage of making the regulation of judicial behavior dependent on factors beyond the control of the state. To a limited extent, the Judicial Conference is now implementing by detailed regulation the general ethical provisions of the constitution.[95a] Should the constitution deal with the number of judges in the state? The present judicial article allows the legislature to increase the number of Supreme Court justices, "except that the number in any 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."[96] This sets a maximum limit on the judgeships that can be created, rather than fixing the minimum number required, as is done in the constitution of Florida. In that state, the number of judges is tied to population, with an additional judgeship being automatically created every time the population increases by a certain figure.[97] Better than either of these provisions might be one which would attempt to equalize judicial manpower throughout the state. It is now widely disparate, some communities having badly clogged calendars and others being substantially up to date. Possibly this could he done by applying the basic idea of Baker v. Carr[98] to the judiciary, as has been suggested in recent litigation.[99] If a citizen has a right to equal representation in the legislature, does he not have a corresponding equal right to be heard in the courts? |
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 The Historical Society of the Courts of the State of New York |