Gerald J. Whalen

Every day, thousands of judges and court employees, including clerks, court officers, attorneys and attendants, go above and beyond to provide litigants with access to timely and effective justice. These people are the heart of our judicial system and their daily efforts ensure that no one is denied their day in court. The strength of our heart, however, does not absolve us of our responsibility to ensure that the skeleton of our court system, its very bones, also remains strong enough to support the fair and efficient administration of justice.

To that end, a few months ago, the Chief Judge introduced a plan to increase the strength of our court structure through consolidation. Court restructuring is no small task and it is one that has been attempted several times in the past with little perceptible traction. Proposed movement on any one aspect of the system necessarily—and appropriately—inspires debate on all aspects of the administration of justice. Although those debates should continue, I see in the Chief Judge's proposed consolidation plan an opportunity to move forward and take important steps necessary to increase diversity, judicial experience, and the community's voice in their local administration of justice.

The issues being addressed by the current plan are statewide, but I would like to focus on the benefits to our upstate communities, both at the trial and appellate court levels. Initially, the upstate Appellate Division departments have been appropriately criticized for their lack of diversity on the bench. Diversity in judicial representation is essential to the administration of justice and the public's faith in the judicial system. Thus, having a bench that reflects the population that it serves is not merely an aspirational goal, it is essential requirement—one that has not yet been met.

The Chief Judge's proposed plan will provide the opportunity for greater racial diversity on the Appellate Division benches. The current lack of diversity has been attributed to the absence of diverse candidates eligible to be so designated by the governor. Under our current system, only elected Supreme Court justices may be designated to the appellate bench, limiting the eligible candidates to those with the resources to maneuver a district-wide convention and election.  In the eighth judicial district, for example, a candidate for Supreme Court must obtain the support of not only the more urban populations concentrated in a few counties, but also the surrounding suburban and rural populations in this eight-county district. The designation of the county-elected Family, County, and Surrogate's judges, in addition to the appointed court of claims judges, as Supreme Court justices creates an additional, alternative avenue that can lead directly from the county electorate to the appellate bench. As my colleague Justice Shirley Troutman eloquently explained in her personal testimony during the recent legislative hearings, the current proposal, once enacted, will immediately and widely expand the governor's options for Appellate Division designation to include those county-elected court judgeships where judicial candidates of color are gaining ground. This is not to say that the proposed consolidation plan is the only step the court system must take to address diversity issues on all levels. It is, however, a right step forward to continue shattering ceilings and creating more avenues to achieve a diverse, representative judiciary.

The creation of this alternative avenue to the Appellate Division through the transformation of county-elected judges into Supreme Court justices also provides an opportunity for a greater geographic representation in the Appellate Division. Currently, the 12 appellate justices for the Fourth Department represent only three of the 22 counties within this court's jurisdiction, specifically Erie, Monroe, and Onondaga. Under the new plan, the governor has greater flexibility to ensure that the Appellate Division benches include voices from the surrounding rural counties as well. Additionally, inasmuch as the specialized judgeships are currently not eligible for designation to the Appellate Division, those benches are deprived of the benefit of that esoteric institutional knowledge. The proposed plan will therefore bring a greater range of experience to the Appellate Division.

The proposed court consolidation plan will also result in a more efficient and stronger judiciary on the local level. Currently, Family, County, and Surrogate's Court judges are limited in their jurisdiction to the adjudication of certain issues. Further, in many counties upstate, there is no resident Supreme Court justice, requiring one of two administrative fixes. First, a specialized judge can be administratively appointed to serve as an acting Supreme Court justice, thus granting to that position expanded powers for which that judge never campaigned and on which the electorate did not vote. Second, court administration can administratively assign a Supreme Court justice from a different county, and thus one potentially not as familiar with the community, to travel into that county to preside over matters on a more limited schedule.

Enacting the Chief Judge's proposed plan will permit local judges, now Supreme Court justices, to adjudicate additional issues arising in their communities that would otherwise have fallen outside the limited authority granted to the previously specialized courts. Further, the current proposal shifts the emphasis from temporary administrative fixes back to the local electorate. Although the plan eliminates the county designations of specialized judges, a merger-in-place system ensures that the manner in which the now-Supreme Court justices are elected remains undisturbed. In other words, county electorates still have the opportunity to vote for their local judge. As a result, there will be a greater transparency in the court system, inasmuch as now voters will choose their judges with the understanding from the outset that these individuals will have the authority to render decisions on a wider variety of matters than the previous limited designations indicated. Thus, the proposed plan permits local disputes to be adjudicated by locally elected judges and affords the judges taking on these expanded duties the formal recognition that they deserve for doing so.

The heart of our court system is strong. The Chief Judge's proposed consolidation plan ensures that we are taking steps necessary to strengthen our structure and provide more accessible and more efficient justice to the communities that we serve.