No Cap Act – Bar Association Statement of Support

ASIAN AMERICAN BAR ASSOCIATION OF NEW YORK

CARIBBEAN ATTORNEYS NETWORK

FILIPINO AMERICAN LAWYERS ASSOCIATION OF NEW YORK

HAITIAN AMERICAN LAWYERS ASSOCIATION OF NEW YORK, INC.

KOREAN AMERICAN LAWYERS ASSOCIATION OF GREATER NEW YORK

LGBT BAR ASSOCIATION OF GREATER NEW YORK (LeGaL)

MUSLIM BAR ASSOCIATION OF NEW YORK

NEW YORK CITY BAR ASSOCIATION

NEW YORK COUNTY LAWYERS ASSOCIATION

STATEMENT OF SUPPORT FOR THE NO CAP ACT,
REMOVING THE CAP ON NEW YORK STATE SUPREME COURT JUSTICES
A.5366 (AM Bores) / S.5414 (Sen. Hoylman-Sigal)

Updated June 2024

We write on behalf of the listed bar associations to express our support for the No Cap Act (A.5366 / S.5414), which would amend the State Constitution to repeal the cap on the number of Supreme Court justices that can serve in a particular judicial district.  Everyone agrees that New York State has historically struggled with an insufficient number of judicial seats, necessitating stopgap measures that have resulted in taking judges from lower courts to serve temporarily in Supreme Court, an inequitable result that brings more harm to the system than justice.  We urge the Legislature to give first passage to this Constitutional amendment this session so it can be considered again next session, and ultimately put before voters in a timely manner to help improve the administration of justice in New York.

The reasons underlying the failure to provide adequate judicial resources to New York’s Unified Court System are manifold and multilayered.[1]  Key among them is the constitutionally prescribed method by which the Legislature determines the number of justices that can be elected to the State Supreme Court.  Article 6 of the New York State Constitution sets the number of Supreme Court seats—which are elected positions—for geographically-defined areas known as judicial districts by using a solely population-based ratio: one justice per 50,000 people.  This purely population-based approach to determining judicial resources has proven over-simplistic, outdated, and unworkable.  Population is not a sufficient metric to use to determine judicial resources, because the number of residents in any particular judicial district does not correspond to the number and types of cases brought in that district. Cases can be brought by tourists or commuters; businesses are not reflected in population; and certain venue provisions impact where a filing will take place.

The cap does not just impact the Supreme Court, but it has created a ripple effect that impacts the entire court system.  To address judicial shortages in the Supreme Court, the Office of Court Administration (OCA) has deemed it necessary to re-assign hundreds of judges from other courts to work in Supreme Court. Specifically, OCA has adopted makeshift measures that involve designating judges from lower courts to sit on the Supreme Court on a “temporary” basis, giving them the designation of “Acting Supreme Court Justices.” But these judges are not acting.  Indeed, the OCA has appointed over 300 acting justices each year for over 13 years.  There is no passing or temporary need here—it is a permanent, ongoing, and dire need for reform.

This approach of “upstreaming” lower court judges to sit on the Supreme Court is problematic for several reasons.  Chief among them is that this process deprives lower courts of judges who are very much needed in those courts. There are currently 741 judges serving in New York State Supreme Court of which 364 are elected, 323 are actings transferred from other courts, and 54 are certificated judges over 70 years of age.[2]  Many of these acting judges are coming from other courts that are also in desperate need for additional resources.[3]

The use of lower court judges to serve as Acting Supreme Court Justices impacts trial courts throughout the system, most notably by causing avoidable delays in the adjudication of cases.  Lower court judges are already overworked and are juggling crushing caseloads.  When they are made acting Supreme Court justices, that creates a vacancy in the lower court level, which takes a significant amount of time to fulfill.  That further adds to the burdens at the lower court levels.  New Yorkers bear the brunt of the resulting significant delays.  For example, a custody trial in a matrimonial part can last over a year because it cannot be heard day-to day until completion; and a protracted criminal trial involving an incarcerated individual means that person spends more time in jail.  Study after study of New York’s court system has shown that unrepresented litigants, lower-income families, and communities of color are the most impacted by these delays.

In addition to creating barriers to access to justice, this system also disenfranchises voters who have a constitutional right to elect Supreme Court judges.  Acting Supreme Court justices are sitting in a court to which they were not elected or appointed.  An acting Supreme Court justice will rarely, if ever, return to their original judicial office because the need for their service is always continuing.  Some acting justices have been serving in a “temporary” post for 20-30 years.

Should the cap be repealed—after two votes by the Legislature and an ultimate decision from the voters—nothing would change about the method by which Supreme Court seats are created.  It will remain in the purview of the Legislature to create judicial seats, as they do now.  Those Supreme Court judicial seats which are created will be elected positions, selected by the voters.  Repealing the cap on Supreme Court Justices simply allows the Legislature to create new judicial seats on the Supreme Court above the current population-based limit.  It is also worth noting that removing the cap will not immediately solve the problem of inadequate judicial resources in Supreme Court.  As of 2024, only three judicial districts were at their population caps, despite the fact that every judicial district was being supplemented with Acting Supreme Court Justices well above their individual caps.[4]  The Legislature does not create judicial seats lightly and they cannot do so without funding those positions.  Should the cap be repealed, it will be critical that the Legislature analyze the needs of each judicial district and work with OCA to determine where additional judicial resources are needed.

We believe that passing the No Cap Act is an important step toward alleviating the overly burdened judicial system in New York.  The population-based cap robs other courts of judicial resources and runs afoul of both the original intent of the constitutional provision allowing temporary assignments of judges and justices, as well as the constitutional provision granting citizens the right to choose, by election, those jurists who sit on the Supreme Court.  It is time for New York to repeal this antiquated and inadequate constitutional provision.  The No Cap Act will set us on that path.