Supreme Court of the State of New York Appellate Division Second Judicial DepartmentSupreme Court of the State of New York Appellate Division Second Judicial Department
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Finding the Perfect Number

by Hon. Alan D. Scheinkman

The prospect, announced in March 2019, that the Appellate Division, First Department, would sit in panels of four justices, rather than the customary five, sparked, or perhaps re-kindled, a discussion as to the ideal number of judges to sit collectively to hear individual appeals. I say re-kindled because the Second Department has been sitting mainly in panels of four since 1978. While a 1990 task force report encouraged the Second Department to resume sitting in panels of five as soon as possible, nearly 30 years have elapsed since then and the status quo has gained at least grudging acceptance. That the First Department would join the Second in sitting in fours was not welcomed by some prominent bar leaders and leading appellate practitioners. Some cited the prospect of having an appeal re-argued because of a two-two tie; others thought that a panel of four was inherently unfair to litigants since it is harder, if not impossible, in civil cases to gain the right to appeal a civil case to the Court of Appeals on the basis of a two-justice dissent. So when I was asked to address the topic of panel numerosity, I jumped at the chance.

After having researched how we came to the panel numbers we have, I conclude that there is no ideal number. Our current system, both in the federal and New York state courts, is predicated upon compromises wrought in years past to address the problems of those long-ago times. While the numerical composition of the U.S. Supreme Court once fluctuated because of partisan political interests, the New York state experience reflects that, for the most part, our predecessors debated and acted primarily, if not exclusively, for the betterment of the judicial system and the public interest.

There is no “right” number for an appellate bench. There is, instead, a balance to be struck between a court large enough to reflect diversity of experience and background and a court so large as to be unwieldy. The minimum number is, of course, one. There are a surprising number of one-judge reviews, though mostly such reviews are not technically defined as appeals. Outside of the First and Second Departments, an appeal from a city, town or village court is heard by a single county court judge. In the federal system, review of decisions by a bankruptcy judge or magistrate judge is, in most instances, to the federal district court, a panel of one. Recently, the State Legislature, as part of its changes to discovery in criminal cases, created a new procedure for expedited review of determinations granting or denying protective orders, a review to be conducted by an individual justice of the intermediate appellate court. On the other hand, the federal circuit courts of appeal may sit en banc to rehear appeals previously decided by a three-judge panel. Since all of the judges in active service participate, and in some instances, senior judges may do so as well, the number of judges sitting en banc can be substantial, certainly approaching, if not exceeding, a dozen or more.

A History of Panel Size

During the Constitutional Convention, Alexander Hamilton, of Broadway fame, proposed that the U.S. Supreme Court have 12 members. The number was tied into his proposal to have impeachment trials of federal officials conducted by a tribunal consisting of the U.S. Supreme Court Justices and the Chief Judges of the States. So 13 State Chief Judges, 12 Supreme Court Justices to mostly balance them out. The Constitution ended up without specifying a number of Supreme Court Justices. The U.S. Supreme Court actually began, under the Judiciary Act of 1789, with six Justices. This number arose from the fact that the country was divided into three judicial circuits, each to be visited twice a year by two Supreme Court Justices; hence six justices, just enough so that each justice would only have to cover one circuit. However, in 1801, the Federalists, having lost the election of 1800 to Thomas Jefferson, used their lame-duck majority to eliminate circuit-riding and to reduce the Supreme Court to five, upon the next vacancy, thus seeking to deny Jefferson an appointment. While the story of midnight judges is well known, leading eventually to Marbury v. Madison, the attempted shrinking of the Supreme Court is less so. Perhaps this is because the Jeffersonians promptly reversed it, restoring the Supreme Court back to six. (For good measure, the Jeffersonians also canceled the 1802 term of the Court, in order to delay the argument of Marbury v Madison).

The number of Supreme Court Justices was increased to seven in 1807, because of the growth of circuit-riding duties, and then increased to nine in 1837. A tenth Justice was added in 1863 in the midst of the Civil War. However, Congress reduced the number of seats to seven in 1866 in order to prevent President Andrew Johnson from appointing justices who might share his views on the constitutionality of reconstruction legislation. This was to be accomplished by not replacing the next three justices to retire. Within two years, two justices did retire, bringing the number of justices to eight. The Court was returned to nine members in 1869 and it has stayed at that number ever since.

In 1937, President Franklin D. Roosevelt proposed what became known as a “court-packing plan”, out of frustration from the treatment given to New Deal legislation by the Court. He sought legislation permitting him to appoint one new justice for every sitting justice over the age of 70, up to a maximum of 15. In opposition to this legislation, some members of the Court expressed the concern that if “you make the Court a convention instead of a small body of experts”, confusion would result which would cloud the work of the Court. The Roosevelt plan was not adopted. And while the number of Justices has stayed at nine for 150 years, in the past year or so some Democrats, after Merrick Garland’s nomination was not considered and after President Trump’s appointments of Neil Gorsuch and Brett Kavanaugh, have suggested that, should a Democrat be elected President and both House and Senate have Democratic majorities, the number of Justices should be increased in order to neutralize the effect of the Garland, Gorsuch, and Kavanaugh developments. The New York Times has even polled announced 2020 Democratic Presidential candidates as to where they stand on this prospect, with decidedly mixed results.

The New York Court of Appeals came into being under the Constitution of 1846. Prior to the creation of the Court of Appeals, there was a Court for the Correction of Errors, which was modeled on the traditional English House of Lords. This Court consisted of the Lieutenant Governor, the entire State Senate, together with the Chancellor, and the Justices of the Supreme Court. This was a rather large group (since there were 33 just from the Senate), made up mostly of non-lawyers. Unsurprisingly, it also was disposed not to declare statutes unconstitutional. In the 70 years that preceded its abolition, it declared only three statutes unconstitutional. It was said that a court which included the entirety of one house of the Legislature , with only a small minority of members drawn from the judiciary, “was not the best form of a high judicial tribunal under our system of government and that the semipolitical and semi-judicial tribunal so constituted could not be expected to work out the best results in the administration of justice.”

The new Court of Appeals was comprised of eight judges. Four were elected state-wide for eight-year terms, while the other four were to be selected out of the Supreme Court Justices who had the shortest time left to serve on their term. Six judges were required for a quorum and five votes were required for a decision. The Chief Judge was one of the state-wide elected judges, the one who had the shortest time left to serve. So it is seen that the eight judges on the Court was derived from balancing the four state-wide permanent judges with the four short-term supreme court justices. While it was assumed that judges with the most judicial experience would be better qualified than others to sit on the Court of Appeals, it was also provided that one of the short-term judges had to leave every year.

The new Court of Appeals started off with 1,500 cases and was four years behind by 1,865. By the time of the Convention of 1867, it was apparent that the 1846 framework was not working. The Court was backlogged. The constant turnover deprived the Court of the elements of permanence and stability necessary to a court of last resort. The constant changes also made its decisions uncertain and conflicting. It was said that, in practice, it took almost six months for a Supreme Court Justice who just joined the Court of Appeals to work efficiently with the other members and just as this efficiency was achieved, these Supreme Court Justices were obliged to retire in favor of new members recruited from the Supreme Court. Within the first 23 years of the court’s existence, a total of 123 judges had sat on it. A variety of proposals were considered: one suggestion was a court of nine members; another was for a court of seven; and there was a suggestion for a court of ten judges. What emerged is what we have today—a Court of Appeals consisting of a Chief Judge and six associate judges. (Today’s Court of Appeals Judges, while still selected from the state at-large, are appointed, rather than elected—a change made by constitutional amendment in 1977.)

But this was not entirely the end of the matter. So that the reconstituted Court could start off with a clean slate, the four permanent members of the old Court of Appeals, plus a fifth appointed by the Governor, were designated to serve as a Commission on Appeals to complete the work left behind by the old Court. It took them five years to do it, finally going out of business in 1875. Thus, in effect, we had two highest courts in New York for a period of five years, one consisting of seven judges and another consisting of five judges, for a total of 12.

By 1890, there were serious backlogs in the Court of Appeals and measures were considered as to how best to deal with them. In 1888, a second division of the Court of Appeals was created, consisting of Supreme Court Justices designated by the Governor. The Second Division, consisting of seven judges (including one designated by the colleagues as chief judge) was in operation from 1889 to 1892, when it finished its allotted work. During its tenure, the Second Division received and disposed of 1,593 cases.

During this time, there were continuing efforts to address appellate structure in New York. In 1890, the Legislature created a special commission to focus on reforms to the judiciary article and which was specifically limited to that purpose. While the Commission’s recommendations were not wholly adopted, they did have a remarkable impact on, and guided, later developments. The Commission found that there were two functions of an appellate court: (a) to apply common and statutory law to a particular case and correct errors of the lower courts; and (b) decide new questions of law and lay down rules to guide the court in future cases. The Commission held that in theory the great majority of litigation should not proceed past an intermediate appellate court. It opposed the creation of divisions or commissions of the Court of Appeals. Its recommendation was to enlarge the composition of the General Terms, which then served as an intermediate appellate court, from panels of three to panels of five and to limit the jurisdiction of the Court of Appeals.

The Legislature did not favor this approach. In 1890 and 1891, it adopted a resolution that called for a Court of Appeals to consist of a Chief Judge and 14 associate judges, with the existing Chief Judge and associates to remain as well until their terms expired. This did not pass.

Another State Constitutional Convention was held in 1894. The leader in the Judiciary Committee of the Convention and of the Convention as a whole was Elihu Root, a leading lawyer whose law practice evolved into the Winthrop Stimson law firm and who later served as U.S. Attorney for the Southern District of New York, as Secretary of War, Secretary of State, and United States Senator. He became the President of the Carnegie Endowment for International Peace in 1910 and was awarded the Nobel Peace Prize in 1912.

Root managed the reforms to the Court of Appeals, and the birth of the Appellate Division with skill, finesse and tact, overcoming objections to what seemed to some radical changes he was proposing for New York’s appellate courts. Because of the history of backlogs, there was a proposal to have a Court of Appeals of 14 judges, with two divisions of seven sitting simultaneously. Root argued that these proposals would destroy the unity of the Court and prevent it from being the expounder of a consistent and harmonious system of law. The Convention decided against having the Court of Appeals sit in divisions or with a supplemental commission. The 1894 Convention decided to control the docket of the Court of Appeals by limiting its jurisdiction, while simultaneously augmenting the provisions for an intermediate appellate court.

The issue of the numerical composition of the Court of Appeals was, however, revisited a bit in 1899 by the adoption of a constitutional amendment which permits the Governor, upon certification of the Court of Appeals that it is unable to hear and dispose of its cases with reasonable speed, to designate up to four Supreme Court Justices to sit as associate judges of the Court of Appeals until the Court certifies that these additional judges are no longer needed. This provision continues today but has not been used since 1921. When it was used, shortly after it was adopted, no more than three additional judges were ever appointed, though the Court fell slowly behind it in its work. It is surmised that the Court perceived that it could dispose of as much business with 10 judges as it could with 11.

With the limitation on the Court of Appeals’ jurisdiction came the advent of a strong intermediate appellate court. From New York’s first state constitution, Supreme Court Justices acted as both trial judges and as a court of review. By the 1821 Constitution, there was a Chief Justice and two associate justices, and eight circuits with a circuit judge in each. Appeals from the circuit courts went to the Chancellor in equity cases and to the Supreme Court or the Court for the Correction of Errors in other cases. The 1846 Constitution provided for eight General Terms of the Supreme Court, one for each of the eight judicial districts. Each General Term consisted of a presiding justice and two associate justices. Based on the theory that the judges should remain close to the people, the General Term Justices did trial as well as appellate work, including appellate review of their own decisions. There is no positive evidence as to why the General Term sat in panels of three. One answer could be that the early constitutions provided for only three Supreme Court Justices. Another possible answer is that by 1846 there were 32 Justices for the entire state, then comprising a population of 3 million. Since there were eight General Terms of three justices each, 24 out of the 32 justices (75%) of the Justices sat on the General Term. If panels of four had been chosen, every Justice would have sat on the General Term and panels of five would have been a numerical impossibility.

The existence of eight intermediate appellate courts, with judges sitting in review of their own decisions, posed “distinct evils” to the administration of justice. In 1869, the Constitution was amended for the purpose of streamlining the intermediate appellate courts. Four Departments were created, each with a General Term consisting of a presiding justice and not more than four associate justices. Justices could do other judicial work, such as serve on the trial courts, but could no longer sit in review of their own decisions. While the number of General Terms was cut in half, it was still required that sittings of General Term be held in each of the eight judicial districts. Further, Justices of one General Term were permitted to serve on the other three General Terms. Of some interest, a proposal to allow periodic meetings of the four presiding justices to review conflicting procedural decisions did not make its way into the 1869 Constitution. A Fifth Department was created by constitutional amendment in 1881.

In addition to the five Supreme Court General Terms, there were four General Terms with appellate functions in the New York County Court of Common Pleas and three superior city courts, for a total of nine intermediate appellate courts, which had overlapping jurisdiction and often had diverse legal opinions.

The 1894 Constitution attacked this problem by creating a stronger, unified intermediate appellate court, to be called the Appellate Division, as General Term had become a meaningless expression. The Appellate Division was conceived of a single-state wide court, albeit sitting in four geographic departments. The Appellate Division’s decisions were to be final in a greater range of cases; its members were to have fixed terms; to our present purpose, it was to be “large enough to insure full discussion and the correction of individual opinions by the process of reaching a consensus of opinion”; and, lastly, the members of the Appellate Division were to be relieved of all other judicial duties so that “there shall be the fullest opportunity for consultation and deliberation” undisturbed by the demands of circuit and special term assignments, and so no litigant shall be obligated to argue his appeal before a court of which the judge from whom he appeals is a member”. It was predicted that, as a result of these changes, the Appellate Division would be less frequently reversed than the General Term had been and there would be fewer appeals to the Court of Appeals. It was also recognized that the more Justices taken out of the Supreme Court for Appellate Division work, which would now be full-time, the fewer left to handle the trial court work.

Root designed the Appellate Division to be a unit, with not more than five justices to sit on any one case in a given Department. It was the Appellate Division sitting in a given department, not an independent Appellate Division in each Department, just as there is one Supreme Court sitting in many counties.

Root proposed that there be seven justices in the First Department and five in the rest. As for the five, that was an increase over the three in the General Term and Root proposed it on the theory that five would have to consult. He said that “though five judges will not do any more work than three, they will do better work and better-respected work”. As for the seven in the First Department, that was due to the press of business in the First Department. Root explained:

The idea is, that the court sitting in the first department shall be just the same kind of a court, with just the same number as the courts in each other department. But in the first department, the court is obliged to sit continuously from the first of October until the end of June, for nine solid months, and it is not within human power to do effective judicial work sitting all that time. The object of the addition of two justices is that they may serve in relays, relieving each other, and having all the time a court of the same size, an expedient, which we thought unobjectionable in a court, the prime object of which was to pass upon the particular rights of litigants, although very objectionable in a court which was designed to maintain a harmonious and consistent system of law.

As is evident, it was not intended that the seven judges in the First Department sit together as one panel; rather the extra two judges were provided in order to enable the court to handle its docket, sitting in panels of five. While there appears to have been little discussion about it, the quorum requirement of four was designed to allow for a justice to be absent, whether due to illness or travel or other cause. While provision was made for a temporary appointment in case of illness or absence, the quorum of four was protection against the prospect, particularly in the Second, Third and Fourth Departments where there were only five justices to begin with, of a sudden and unanticipated illness or absence on the part of one justice.

There were some who thought the prohibition against Appellate Division justices doing trial court work was unwise because “it was very doubtful whether four general terms of five justices each would find enough work to do if they were limited to appellate work”. That concern has certainly proven to be ill-founded. There also was a perceived danger that a court devoted only to hearing appeals would get out of touch with trial work and become theoretical. These concerns about appellate judges becoming theorists was addressed by pointing to the five-year term, after which judges would return to the trial bench. The five-year term only applies to constitutional justices and, at least over the past several decades, the appointing authority has almost always reappointed eligible justices who wished to continue serving on the Appellate Division. Those justices who serve as “additional justices” do not have a set term; rather, they serve as long as they are needed. However, when an additional justice serves long enough to be appointed a constitutional justice, then that justice is subject to the five-year term.

In the constitutional reform, provision was made for the transfer of cases from one Appellate Division to another. This provision continues today. A majority of the presiding justices, at a meeting called by the presiding justice of the department in arrears, may transfer appeals from one department to another. The Constitution also permits the temporary assignment of a justice from his or her home department to another department, upon the agreement of the presiding justices of the affected departments.

Following the 1984 Convention, a couple of changes of significance occurred. In 1899, a constitutional amendment gave the Governor the ability to designate, upon a certificate of need, additional justices to the Appellate Division. While there had been a provision for such appointments in the case of absence or inability, the 1899 amendment permitted additional justices due to calendar conditions. A 1905 amendment allowed Appellate Division justices to be used as trial justices outside of their home Department when their services were needed. In 1925, the composition of the Second Department was enlarged to seven, to match that of the First Department; the number of permanent positions in the Third and Fourth Departments stayed at five.

These provisions have remained essentially unchanged ever since. The First Department was originally the department with the heaviest caseload. According to a report from the Judiciary Committee to the 1921 Constitutional Convention, in 1920, the First Department had decided more than 1,500 cases, and 840 motions; the other Departments had case loads of less than one-half of that. The 1921 Constitutional Convention recommended a provision that would have allowed, but not required the First Department to sit in two parts. This was not enacted.

So this is how we got here. From this history, some conclusions can be drawn, which will be discussed in the second part of this article.

In the first part of this article, I traced the history of appellate panel size in light of the prospect, announced in March 2019, that the Appellate Division, First Department, would sit in panels of four justices, rather than the customary five. From that history, some conclusions can be drawn.

The Court of Appeals was set at seven, as a reduction from the original eight, and while there have been efforts to expand the Court’s membership, there never was any interest in having more than seven sit at one time. The Appellate Division five was set as an increase above the three that the General Term had, precisely to provide for more collaboration. In 1973, the Temporary Commission on the State Court System suggested that the presiding justices have the authority to use three-judge panels in designated cases. On the other hand, a few years later, in 1981, a study advised against reduction in Appellate Division panels to three out of concerns with regard to structure, stability and public perception.

The 1899 constitutional amendment allowing for designation of “additional” justices where necessary to address calendar conditions has proven to be an essential lifeline for both the First and Second Departments. Between 1962 and 1967, the caseload in the Second Department grew larger than that of the First Department. In 1971, the First Department had four additional justices, the Second Department had five, and the Third and Fourth Departments had three each. Today, we have a structure whereby in the First and Second Departments there are more “additional justices” than constitutional justices. The Second Department, with a constitutional compliment of seven judges, now has 15 authorized additional justice positions, while the First Department has 13.

This is the direct result of the caseload. The caseload that 100 years ago they thought was so crushing—1,500 cases and 840 motions—is greatly exceeded by the First Department of today which in 2018 decided 2,641 appeals (not including 386 cases recorded as non-calendared dispositions, i.e., withdrawn, transferred or abated and not including 118 appeals withdrawn prior to argument) and 5,638 motions. And this is topped by the Second Department, which in 2018 decided 3,755 appeals (not including 4,550 appeals disposed before argument or submission, i.e., dismissed, withdrawn, settled, etc.) and 10,383 motions. The Third Department decided 1,457 appeals (this excludes 240 cases disposed of prior to argument) and 6,231 motions, and the Fourth Department decided 1,378 appeals and 5,138 motions. These figures exclude, of course, the bar admission and attorney disciplinary matters that the Appellate Division handles each year.

In 1973, the Temporary Commission on the New York State Court System criticized the Presiding Justices for requesting additional justices and the Governor for appointing them. “By involving the gubernatorial authority to make temporary appointments in the event of overwork, the appellate divisions have preempted the constitutionally permissible redistribution of appellate workload by redrawing departmental boundaries”. This criticism seems unfair. Reform of the New York State court system, including restructuring of the Appellate Division, has been studied and studied and studied for decades, with little forward movement. It would be irresponsible for court leaders not to have used a readily available constitutional relief valve to deal with crushing calendars while still awaiting permanent reform.

In 1982, it was said that a reduction in panel size in the Appellate Division would make for a “less harried pace of justice”. I would submit that even sitting in panels of four we have a harried pace of justice; if the Second Department were to return to sitting in panels of five, the existing problems of delay would only get worse.

I would now turn to the issue that members of the Bar raised in response to the First Department’s announcement that it may sit in panels of four, in particular that litigants would be deprived of the ability to appeal their cases to the Court of Appeals on the basis of a double-dissent. The two-judge dissent rule applies only in civil cases. In criminal cases, appeal is by permission of either an Appellate Division Justice or Court of Appeals Judge and it is well known that if there is a dissent in the Appellate Division, the party seeking to appeal is likely to seek leave from the Appellate Division dissenter.

The requirement for a double dissent was instituted in 1985—prior to that a single justice dissent would suffice. Moreover, a double dissent triggers an appeal as of right only in cases involving final determinations. Thus, if three Appellate Division justices voted to deny summary judgment, and two dissent to grant summary judgment, the two-justice dissent does not result in an appeal as of right.

Dissents in the Appellate Division are relatively rare. In 2018, with the First Department deciding 2,641 appeals, there were, by our somewhat rough calculations. (the calculations were done by my principal law clerk, Brian Damiano, Esq., and by Jennifer Hopkins, a St. John’s Law School student who interned with my chambers in 2019.) some 16 single dissents and 16 double dissents. Three of the single dissents were in criminal cases and two of the double dissents were in criminal cases. Thus, assuming that the First Department sat in fours, and assuming that one of the dissenters was excluded from the panel, 14 cases would be impacted at most (assuming that all of these cases were final determinations). In the Second Department, in 2018, there were 26 single dissents and only four double dissents. But of the 26 single dissents, 10 were in criminal cases and one of the double dissents was in a criminal case. Since it is obvious that one can’t have a two-judge dissent unless there was at least one dissenter to begin with, and assuming that all of the one-judge dissents would have been two-judge dissents if a fifth judge had been added, only 16 cases could possibly be deprived of the right to appeal to the Court of Appeals out of 2,763 civil appeals. The Third Department had 19 single dissents and 15 double dissents. Five of the single dissents were in criminal cases; three of the double dissents were in criminal cases. Thus, the maximum number of appeals of right triggered in the Third Department was 12, out of 925 civil cases. In the Fourth Department, there were nine single dissents and 25 double dissents. One of the single dissents and 10 of the double dissents were in criminal cases. The maximum number of appeals of right triggered by a double dissent in the Fourth Department was 15 out of 841 civil cases.

No litigant or lawyer knows in advance of an appellate argument that the court will divide and, if so, by one judge or two. The possibility of a fifth judge being brought in to break a 2-2 tie always exists. The Second Department long had a rule, and now we have a uniform Appellate Division rule, pursuant to which counsel are deemed to have consented to a fifth justice being vouched in, absent objection stated at the time of argument or submission. Scheduling a further or second argument in such cases is not strictly necessary since, in this modern age in which oral arguments are live-streamed and video-recorded, the additional justice will have access, not only to the briefs and records, but to the video of the oral argument. Of course, if the fifth justice has questions, an oral argument can be scheduled and obviously counsel would doubtless prefer to have argument before a fifth judge if they knew that there was a bench split. But counsel already having had one full argument, watched by the fifth judge, might be hard-pressed to re-state the previous arguments to better or more persuasive effect.

In sum, the arguments that sitting in panels of four prejudice the opportunity for an appeal as of right to the Court of Appeals in civil cases, in my view, pale in comparison to the efficiencies achieved by using panels of four so that more cases can be heard. It is obvious that sittings in groups of four can cover more cases than sittings in groups of five. At least in the Second Department, to utilize a panel of five would further slow our calendar and the prejudice to the many litigants who would have additional delay seems, at least to me, to be greater than it is to the handful, at best, who might possibly be losing the chance to appeal as of right to the Court of Appeals. Moreover, even in the absence of an appeal as of right, parties and counsel have the right to seek leave to appeal to the Court of Appeals in cases involving final civil judgments. It may be supposed that counsel would prefer to have an absolute right to appeal, as opposed to having to ask for permission. But, given that it only takes two judges of the Court of Appeals to grant leave, the loss of as-of-right appeal may not be significant if the putative appeal could not even gain two votes out of seven to be heard in full.

Of some interest, in the recent discussions, the Bar did not point to the prospect that sitting in fours, rather than fives, deprives the Appellate Division of benefits of a fuller consultation, which, of course, was the reason why Elihu Root designed panels of five, rather than panels of three. The fact is that much of what we do in reviewing the work of the trial courts, while vitally important to the parties and their counsel, does not involve ground-breaking or precedent setting work. In the Appellate Division, we are constrained by the precedent of the United States Supreme Court on federal constitutional issues and by our Court of Appeals on everything. We are generally obliged to apply statutory provisions, either those of Congress, our State Legislature or local enactments. We give deference to administrative determinations. And, while not necessarily required to do so, we in practice give deference to discretionary determinations made by the trial courts and to the facts found by the judges who had the opportunity to see the witnesses first-hand. These considerations may be factors in the high-rate of intracourt agreement. Further, at least in the Second Department, we strive for consensus, recognizing that, unlike a trial court whose decision is signed solely by the one judge, our decisions are signed by the panel and do not necessarily reflect the exact view of each panel member.

On the other hand, given the large number of justices who serve in the First and Second Departments, the prospect does exist that, on occasion, a majority on a particular panel may have a view on a legal question which is a minority view among the bench as a whole. In other words, three, four, or even five judges may agree on a proposition of law, while a majority of the entire Court have a different view. It would seem that the smaller the panel, the greater the risk that this could occur. This circumstance can result in divergent, or seemingly divergent, decisions being rendered by a particular Department. There is merit to a constitutional amendment, such as that proposed by the Association of the Bar of the City of New York, Committee on State Courts of Superior Jurisdiction, to expressly permit formal en banc sittings of the Appellate Division. In the Second Department, we have had informally en banc consultations for the purpose of unifying our precedent and avoiding intra-court decisional conflicts.

Is there a way to avoid the use of panels of four? While the situation in the First Department may be temporary due to the number of vacancies now existing in that Department, the filling of vacancies alone would not avoid the use of four-judge panels in the Second Department, however. Additional “additional” justices are needed in the Second Department just to grapple with the backlog we already have, long before we could even consider panels of five. Transferring appeals to the Third and Fourth Departments from the Second Department in the early 1990s succeeded in reducing the extant backlog. However, the transfer program, used only this once since it was created some 100 years earlier, created issues with respect to the precedent to be applied by the transferee court and the value of the precedent created by the transferee court. This was not a popular solution at the time and doubtless would not be popular today.

Another interim solution may be to utilize the constitutional provision allowing temporary transfers of justices between Appellate Divisions. While this has seldom been used at the appellate level, trial judges are periodically assigned outside their judicial districts in order to address caseload imbalances. With very busy Departments, this may not be feasible and may not provide enough resources to make a real difference.

Because the backlog has reappeared and the caseload has had an upward trajectory, the issues may be structural in nature. The creation, or shall I say the re-creation, of a Fifth Department may be a solution, but, for it to work, a simultaneous and significant increase in the number of Supreme Court Justices would be required. The reconstituted Second and the new Fifth Department would need more Justices than just the 22 now authorized in the present Second; otherwise, to use a well-worn metaphor, we would just be re-arranging the deck chairs on the Titanic. But if more Justices are designated to sit in the Appellate Division, the corresponding loss to the trial courts must be offset through the creation of additional justices in order to do the trial work.

Another structural approach would be to find some acceptable way to curtail the civil jurisdiction of the Appellate Division. Unlike with criminal cases, where the right to appeal attaches only to the final judgment, almost any order made on notice in the Supreme Court can be appealed as of right to the Appellate Division. Interlocutory civil appeals are not inherently less meritorious as a whole than appeals from final judgments. We are in an age in which fewer cases are tried, with the result that judicial determinations on interlocutory questions are more important than ever. The ready availability of appellate recourse is sometimes cited as a benefit to practice in the New York Courts. And, it should also be borne in mind that, our famed 1896 framers limited the jurisdiction of the Court of Appeals because they had confidence in the availability of robust Appellate Division review. But appellate recourse is not really ready when it takes a year or even two for an appeal to be heard and decided.

While this is painful to contemplate, something has to give someplace as there should be near universal agreement that the current circumstances are not acceptable and to allow the situation to continue to deteriorate will not serve the cause of appellate justice to which we are all committed.

This article is an adaption of an oral presentation given at the 2019 New York State Appellate Judges Seminar on July 9, 2019.