Repeal the Cap?: Proposed Amendment to Remove Constitutional Limits on New York Supreme Court Justices

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By Richard Rifkin, Esq.*

March 29, 2024

In September 2023, the New York City Bar Association’s Council on Judicial Administration issued a comprehensive report on the excessive delays currently encountered in the New York state courts.1 It identified as a significant factor the inadequate number of judges available to consider the cases brought in the state’s various courts. The Council made a series of recommendations to resolve this problem.

Most of the Council’s proposals advocated for legislative and administrative changes that it hoped would result in more judges being authorized. However, one proposal supported an amendment to the New York State Constitution. The Council called for repealing a current provision of the Constitution that limits the number of Justices of the New York Supreme Court (JSCs), who are elected in each of the state’s thirteen judicial districts. This provision precludes the number of JSCs in each district from exceeding “one justice for fifty thousand, or fraction over thirty thousand, of the population thereof as shown by the last federal census or state enumeration.”2 This explainer focuses on that proposal.

Following the issuance of the report, a constitutional amendment to repeal the cap on JSCs was introduced in both houses of the state legislature.3 The adoption of the amendment will require approval by the legislature in two consecutive sessions and then by the voters at a general election.

The City Bar Association’s report discusses in detail how the constitutional provision limiting the number of JSCs affects all of the trial courts in the state. The Supreme Court is the court of general jurisdiction at the trial level.4 It usually handles the more significant and complex civil cases; in New York City, and sometimes in other areas, the Supreme Court also oversees criminal cases. Some local trial courts are authorized to handle limited categories of civil and criminal cases.5 In addition, there are specialized courts, such as the Court of Claims,6 Family Courts,7 and Surrogate’s Courts,8 that handle specific types of cases. The Constitution authorizes judges of these other courts, some of whom are elected and others of whom are appointed, to be “temporarily assigned” by the Chief Administrative Judge as “Acting Supreme Court Judges.” Acting Judges have the same “powers, duties and jurisdiction” as the other judges sitting in the court to which they have been assigned.9

The position of “Acting Supreme Court Judge” was established to fill short term vacancies when there was a retirement, resignation, or death of one or more JSC’s. The Acting Judge was expected to serve until the vacant position or positions were filled.10 However, because of the Supreme Court’s need for judges and, in some cases, the constitutional limitation on the number of judges having been reached, this temporary remedy has become a mechanism for filling long-term shortfalls in that court.

Some judges serve their entire careers as Acting Supreme Court Judges. As of the date of the City Bar Association report, there were 627 judges serving in the Supreme Court, with 310 having been elected to their positions and 317 acting judges who had been appointed or elected to other courts and then assigned to the Supreme Court. For example, the Court of Claims, which hears civil claims against the state, has 86 authorized judges, all of whom are appointed by the Governor and confirmed by the Senate. In 2022, 15 of those judges heard claims against the state full time and 8 part time; 59 were assigned to the Supreme Court, primarily to hear criminal cases or sit in the Commercial Division of that court.11 In other words, there are more judges serving on the state Supreme Court who were elected or appointed to other judgeships than judges who were actually elected to that office.

These judicial assignments shift, rather than solve, the problem. Many of the state’s local and specialized courts find themselves short of judges. With many of their judges being assigned to sit in the Supreme Court, the courts in which they would otherwise serve lack the judges they need. Thus, the constitutional limitation on the number of JSCs affects the entire state court system.

The City Bar Association report recognizes that adoption of the proposed constitutional amendment will not, by itself, correct the problem. As noted above, the report also proposes a number of legislative and administrative steps that the Association believes will bring an end to the overall inadequate number of judges. It sees the elimination of the restriction contained in the Constitution as being one step in this effort.

It is now up to the New York State Legislature to determine whether the proposed amendment will move forward. One potential problem is that the delays caused by the lack of elected judges are far greater downstate, especially in New York City. For example, at least the First Judicial District (New York County) and the Twelfth Judicial District (Bronx County) have reached their constitutional limit on the number of elected judges.12 This geographical disparity may make the issue of less interest to those legislators who represent upstate districts where the volume of judicial activity is smaller.

In addition, with or without the amendment, the legislature must regularly evaluate the needs of the entire court system based on data compiled and submitted by the Chief Administrative Judge. The City Bar Association report recognizes that the legislature’s ongoing appropriation of sufficient funds to the judiciary is essential if the courts are to be provided with adequate resources to meet the public need.

In sum, the proposed constitutional amendment may be one step toward fixing a large and significant problem in the state’s court system.

The Government Law Center provides the nonpartisan legal research and analysis that state and local governments need to better serve their communities. Our role is to explain, not to advocate for a particular position or course of action.


* Richard Rifkin, Esq., is Legal Director at the Government Law Center at Albany Law School.

1. See New York City Bar Association Council on Judicial Administration, Repeal the Cap and Do the Math: Why We Need a Modern, Flexible, Evidence-Based Method of Assessing New York’s Judicial Needs, Sept. 2023. https://www.nycbar.org/wp-content/uploads/2023/09/NYCBarReportRepealTheConstCapOnJudges.pdf.

2. N.Y. Const., Art. VI, § 6(d).

3. S. 5414/A. 5366, 2023–2024 N.Y. Leg. https://www.nysenate.gov/legislation/bills/2023/S5414.

4. N.Y. Const., Art. VI, § 7(a).

5. N.Y. Const., Art. VI, §§ 10, 11, 15, 17.

6.. N.Y. Const., Art. VI, § 9.

7. N.Y. Const., Art. VI, § 13.

8. N.Y. Const., Art. VI, § 12.

9. N.Y. Const., Art. VI, § 26. These provisions are implemented by Rule 33 of the Rules of Chief Administrator, see N.Y. Comp. Codes R. & Regs. tit. 22, § 33.

10. Rule 33, anticipating short term appointments, has special provisions when the assignment is made “in excess of 20 calendar days.” N.Y. Comp. Codes R. & Regs. tit. 22, § 33.

11. Supra, note 1.

12. N.Y. Assemb. Memorandum in Support of Legislation, A. 5366, 2023–2024 N.Y. Leg. https://nyassembly.gov/leg/?default_fld=&leg_video=&bn=A05366&term=2023&Summary=Y&Memo=Y.