No Cap Act: Support for Removing the Cap on NYS Supreme Court Justices
The Council on Judicial Administration continued its work on the need for a modern, flexible, evidence-based method of assessing New York’s judicial needs by supporting the No Cap Act. The No Cap Act would amend the State Constitution to remove the 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. Support for the No Cap Act grew out of the Council’s recommendations in their comprehensive report “Repeal the Cap and Do the Math.” Since this bill is an amendment to the State Constitution, it will need to pass both houses of the Legislature in two successive legislative sessions before it can be placed on a ballot for consideration by voters.
For more information, watch our October 2023 event “Increasing the Number of Judges in New York: Repeal the Cap and Do the Math.”
REPORT BY THE COUNCIL ON JUDICIAL ADMINISTRATION
A.5366 (M. of A. Bores)
S.5414 (Sen. Hoylman-Sigal)
CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing amendments to article 6 of the constitution, in relation to the number of supreme court justices in any judicial district
No Cap Act
THIS BILL IS APPROVED
The New York City Bar Association, led by its Council on Judicial Administration, supports the enactment of A.5366 / S.5414, which would amend the State Constitution to repeal the cap on the number of Supreme Court justices that can serve a particular judicial district. This 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.
Throughout its history, New York State has struggled with an insufficient number of judicial seats necessitating stopgap measures that have resulted in a complicated, overworked, and confusing court system that fails to provide justice to all. The dire need for additional judges overall is a function of the chronic failure to provide adequate judicial resources to New York s Unified Court System. And while the reasons underlying such failure are manifold and multilayered, on a fundamental level, the lack of judicial resources stems largely from the constitutionally prescribed method by which the Legislature determines the number of justices that can be elected to the State Supreme Court. Since enacted in 1846, and as amended in 1961, Article 6 of the New York State Constitution, has set 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 i.e., one justice per 50,000 people.
The effect of such a formula is to cap the number of legislatively authorized Supreme Court seats within each judicial district, leaving the Legislature powerless to authorize additional seats to meet the growing and particular needs of the courts in such districts. 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. Specifically, to address the lack of resources at the Supreme Court level, the Office of Court Administration (OCA) has long resorted to adopting makeshift measures that involve designating judges from other courts to sit on the Supreme Court on an acting basis. Not only has this robbing Peter to pay Paul approach depleted these other courts of judicial resources, but it has also created a de facto permanent and large class of temporary Acting Supreme Court Justices, sitting in a court other than the one to which they were either elected by the people or appointed by the relevant appointing authority.
In September 2023, the Council on Judicial Administration issued an extensive report which found that there is a dire need for the state legislature to provide the People of the State of New York with a sufficient number of judges to do justice.  The report discusses the historical origins of the constitutional cap, assesses the burden that places on the Supreme Court and examines the measures that OCA has implemented to address the need for additional justices and the adverse impact those emergency measures have on the other courts. The report also includes a 49-state survey of methods that other states use to assess their own judicial needs.
Based on the findings of this report and the experiences of our members in the court system, the City Bar believes New York should adopt A.5366 / S.5414 and amend the Constitution to repeal the cap on Supreme Court Justices. The need for this amendment has been endorsed by Governor Hochul, who included repealing the cap in her 2024 State of the State address. This is a critical first step to improving the administration of justice in New York and the City Bar urges the Legislature to pass the amendment in the current legislative session so it can be put before voters in a timely manner.
In this era of metrics, the people of New York State are entitled to a modern, flexible, evidence-based method of assessing the state s judicial needs, as is the case in many other states and the federal judiciary.
Council on Judicial Administration
Fran Hoffinger, Chair
Hon. Andrea Masley, Constitutional Cap Sub-Committee Chair
 Repeal the Cap and Do the Math: Why we need a modern, flexible, evidence-based method of assessing New York’s judicial needs, Sept. 8, 2023, https://www.nycbar.org/member-committee-career-services/committees//reports-listing/reports/detail/constitutional-cap-on-judges; see also Appendix: 49 State Survey, at http://documents.nycbar.org/files/ConstitutionalCapReportAppendix.pdf; and Exhibits at https://drive.google.com/drive/folders/1HhxpQEt68NAmRr8-bz7J0OJUL5PRrd22.
 In conjunction with repealing the cap on Supreme Court Justices, the City Bar recommends the following for the proper and adequate administration of justice in New York State s courts: (1) language in the Constitution that requires the Legislature to consider whether to change the number of Supreme Court justices in any judicial district at least once every ten years; (2) enabling-legislation to codify a mandatory regular systematic assessment of the courts specific needs; (3) annual reporting by OCA to analyze the number of judges in each court and request changes when appropriate; (4) establishing assessment methodology for assessing the judicial needs of all courts; (5) adopting transparency measures that ensure publication of the assessment s recommendations for the number of judges needed in each court and judicial district; and (6) consider less time-consuming statutory changes that are immediately available. For example, since the number of judges in courts other than the Supreme Court is not subject to a constitutional cap, the Legislature could immediately assess the judicial needs in those courts with support from appropriate professionals, and change the number accordingly. We would urge OCA to conduct a weighted caseload assessment in Family court immediately.