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of today which in 2018 decided 2,651 appeals (not including 386 cases recorded as non-calendared dispositions, i.e., withdrawn, transferred or abated and not including 118 appeals withdrawn prior to argument) and 4,947 motions.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in 2018 decided 3,755 appeals (not including 4,550 appeals disposed before argument or submission, i.e., dismissed, withdrawn, settled, etc.)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 2,446 appeals, there were, by our somewhat rough calculations, some 16 single dissents and 16 double dissents. (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.) 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.

Alan D. Scheinkman is Presiding Justice of the Appellate Division, Second Department. This article is an adaption of an oral presentation given at the 2019 New York State Appellate Judges Seminar on July 9, 2019.