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Advocacy Alert: Pass the No Cap Act

UPDATE: Bill Received First Passage by the Legislature – June 6, 2024 (Click here to read the City Bar’s statement)

BACKGROUND 

The New York City Bar Association, through it’s Council on Judicial Administration supports the No Cap Act, which would remove the population-based constitutional cap on the number of Supreme Court justices that can serve a particular judicial district. New York’s antiquated and inefficient method for allocating judicial resources negatively impacts the administration of justice not just in the Supreme Court but also in the other courts within the Unified Court System, including what are often called the People’s Courts – the Family Court, Civil Court and local criminal courts.  The No Cap Act is supported by a broad range of bar associations, civic and legal organizations and business groups.  For more information, see below reports and talking points.  This bill is on the City Bar’s 2024 New York State Legislative Agenda.

Related resources: 

No Cap Act: Support for Removing the Cap on NYS Supreme Court Justices

Repeal the Cap and Do the Math: Why we need a modern, flexible, evidence-based method of assessing New York’s judicial needs

Bar Association Statement of Support for the No Cap Act

HOW YOU CAN HELP  

Send a message to Speaker Carl Heastie and urge him to bring the No Cap Act to the floor for a vote before the end of session. You can indicate your support by sending an electronic message or making a short phone. Your message doesn’t need to be long, it just needs to convey (1) that you support the No Cap Act; (2) a few reasons why you support (see below for some talking points); and (3) that you urge Speaker Heastie to bring the No Cap Act to the floor for a vote.

BILL INFORMATION  

A.5366 (M. of A. Bores) / S.5414 (Sen. Hoylman-Sigal

BILL STATUS  

Passed Senate – 3/26/24 by a vote of 45-15

Assembly 3rd Reading Calendar

HOW TO CONTACT SPEAKER HEASTIE

  • Send an email to Speaker@nyassembly.gov and write “Pass the No Cap Act before the end of session” as your Subject.
  • Call 518-455-3791 and leave a message for the Speaker urging him to put the No Cap Act up for a vote before the end of session.

TALKING POINTS

Why do we need to repeal the constitutional cap on the number of Supreme Court justices?

  • New York State has historically struggled with an insufficient number of judicial seats necessitating stopgap measures that have only resulted in taking judges from lower courts to serve temporarily in Supreme Court, which fails to provide justice to all.
  • In 2022 there were 2.26 million new cases filed in New York courts.
  • Population is not a sufficient metric to use to determine judicial resources, as the number and types of cases has nothing to do with the number of residents in any particular judicial district (i.e. tourists, commuters, corporations all contribute to the overall caseload of a judicial district and different types of cases require different resources).
  • The purely population-based constitutional cap has proven over-simplistic, outdated, and unworkable.  It has created a ripple effect that has impacted the entire court system.
  • How do we know that we don’t have enough justices to do justice in New York State?  Because 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, designating them “Acting Supreme Court Justices.” Appointing over 300 acting justices each year for over 13 years proves that there is a dire need; it is not a passing or temporary need.
  • This “robbing Peter to pay Paul” approach is problematic for several reasons.
    • It deprives lower courts of judges. In 2022, there were: 364 Supreme Court justices; 317 acting judges reassigned to Supreme Court from lower courts; and 46 certificated judges (judges over 70 years old already assigned to Supreme Court to help address the volume of cases pending; certificated judges are not counted toward the cap). That brings the actual total to 727 justices serving in Supreme Court. Click here to see the breakdown of where Supreme Court justices are coming from.  At times the number of actings has gone as high as 396.
    • This system disenfranchises the voters who have a constitutional right to elect Supreme Court judges.  Acting Supreme Court justices are sitting in a court that they weren’t elected or appointed to.
  • Even though acting Supreme Court justices enjoy the powers and privileges of fully elected Supreme Court justices, they do not have access to all the same staffing resources.  Many acting Supreme Court justices also continue to be responsible for work in the lower courts on top of their Supreme Court duties (i.e. weekend arraignments).  As a result, acting Supreme Court justices are not resourced to handle the full caseload of a Supreme Court justice, creating two disparate levels of judges on the same court and only further impacting the administration of justice.
  • It is rare, if ever, that an acting Supreme Court justice returns to their original judicial office because the need is continuing. Some acting justices have been serving in a “temporary” post for 20-30 years.
  • Repealing the cap requires a constitutional amendment, which means that legislation must be passed by both houses of the Legislature in separate legislative terms (i.e. an election for the State Legislature must happen in between each passing). If the bill passes both houses this session, the earliest this measure could be put before voters is 2025.  If the bill does not pass this session, the earliest voters could consider repealing the cap is 2027.

How are other courts impacted by the fact that Supreme Court justices are capped?

  • All of New York’s courts are impacted by the cap on Supreme Court justices – including what are often called the “People’s Courts”—the Family Court, Civil Court and local criminal courts – because these courts serve as the sources for Acting Supremes.
  • “Upstreaming” lower court judges to Supreme Court perpetuates the shortage of judges rather than remedies it.  The designation of an acting Supreme Court justice unavoidably and necessarily creates vacancies in other courts, while ostensibly obviating the need to create more authorized seats at the Supreme Court level.  To deal with the vacancies created by this practice, OCA often reassigns judges between the lower courts, further exacerbating the lack of judicial resources throughout the court system (e.g. Civil Court judges assigned to lower Criminal Court and to Family Court).
  • Impacts on the courts throughout the system include drops in the number of jury trials conducted because no judge is available for trial; long adjournments; longer trials; crushing caseloads on judges; delays in pre-trial conferences and judges are being shuffled around and assigned to courts where they don’t necessarily have experience or training on specialized cases.

What happens when the cap is repealed?

  • It remains in the purview of the Legislature to create judicial seats.  Repealing the cap on Supreme Court Justices simply allows the Legislature to create new judicial seats on the Supreme Court above the current limit, should they pass legislation to do so.

For more information, please contact:
Elizabeth Kocienda, Director of Advocacy | ekocienda@nycbar.org