REPORT OF THE NYCLA APPELLATE COURTS COMMITTEE

 

The Appellate Courts Committee of the New York County Lawyers

Association Opposes the Decision to Eliminate Appellate Justices

 

The Appellate Courts Committee of the New York County Lawyers Association op- poses the state court system’s recent decision to deny recertification to 46 Supreme Court justices who have passed the age of 70 in the face of pandemic-driven budget cuts, thereby weakening the only branch of government tasked with enforcing the state and federal constitutions.

 

We write to express particular alarm at the harmful effects that this decision will have on our State’s already-overburdened appellate courts. The court system should reconsider this short-sighted approach for numerous reasons.

 

1. Fewer Justices Means Less Law at a Slower Pace

 

Our State’s high-volume appellate courts already produce summary decisions on a regular basis. But reducing the number of appellate justices may result in even shorter decisions with even more cursory reasoning. Relatedly, reducing the number of appellate justices will likely create an institutional incentive to avoid the some- times-intricate merits of cases and instead dispose of appeals on technical procedural grounds like waiver and preservation, thereby significantly impairing the law’s development.

 

Moreover, our appellate courts already were struggling with enormous backlogs when COVID-19 struck this past spring. The elimination of two experienced justices from the First Department and four from the Second Department—approximately 16% of those Departments’ total staff—without any plan to replace them will only compound the problem. That is true even if the governor eventually replaces these seasoned justices with trial-level justices not as well-versed in appeals.

 

2. More Money Can Be Found Elsewhere

 

During this budget crisis, the court system can save money while enhancing rather than hampering justice at the appellate level. “Going green” is one such way. The elimination of paper filing and service would save our system millions of dollars over the next ten years as publicly-funded organizations reduce paper, printing and ship- ping costs. COVID-19 already has spurred our appellate courts to make this much- needed change. Paper filings there finally have ceased as records and briefs are filed via NYSCEF, thereby confirming, not that “the future is now,” but that it was yester- day. The Court of Appeals should follow suit and eliminate paper filings as soon as possible.1 

 

The court system also can save money by eliminating needless trial-level court appearances, which waste resources. For example, courts can eliminate the need for in- person appearances for certain ministerial matters like adjournments.

 

The total savings from the elimination of experienced appellate judges pales in comparison to the jurisprudential capital it will destroy. Larger savings that benefit the system can and should be found elsewhere instead.

 

3. No Transparency

 

Lawyers instinctively search for the reasoning underlying important decisions. The court system provided neither here. Hidden completely from public view is how this sweeping decision was made. Answers to critical, yet basic questions like “Who was involved?” “what alternatives were considered?” and “did anybody disagree or dissent?” are nowhere to be found. The sudden loss of a sizeable contingent of our appellate bench in one fell swoop demands openness and a meaningful opportunity for public input.

 

*****

 

Our court system’s proud mission is “to promote the rule of law and serve the public by achieving just and timely resolution of all matters before the courts.”2 This measure undermines that mission and does a disservice to members of the bench, the bar, and judicial staff who hold dear the Unified Court System’s strive for continued excellence. More importantly, driving veteran appellate justices from the bench delays the very justice New Yorkers count on the court system to deliver. We urge the court system to reconsider its decision.3 

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Footnotes

1. This Committee has previously made such recommendations. See Letter from NYCLA Committee on Appellate Courts to the Clerk of the Court of Appeals (July 13, 2018) (recommending abolition of paper filings for motions for leave to appeal) (citing Chief Judge Janet DiFiore, Going Paperless: The New York City Family Court, 90(3), The New York State Bar Association Journal 10-12 (March/April 2018)) (https://www.nycla.org/pdf/Updated%20FINAL.PDF); Statement of the New York County Lawyers Association, Electronic Filing and Service During the Current Pandemic (March 23, 2020) (recommending the adoption of electronic filing and service) (https://www.nycla.org/pdf/NYCLA%20State- ment%20re%20E-Service%20and%20Filing%20during%20Pandemic%203.25.20.pdf)
2. https://www.nycourts.gov/excellence-initiative/.
3. The New York County Lawyers Association was founded in 1908 as one of the first major bar associations in the country that admitted members without regard to race, ethnicity, religion or gen- der. Since its inception, it has pioneered some of the most far-reaching and tangible reforms in Amer- ican jurisprudence, including through the work of its many committees that provide in-depth analysis and insight into legal practice areas.The views expressed here are those of the Appellate Courts Committee only, have not been ap- proved by the New York County Lawyers Association Board of Directors, and do not necessarily rep- resent the views of the Board.