The Constitution of 1846, which first created the Court of Appeals, also discontinued the Court of Chancery and gave equity jurisdiction to

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1 Introduction The Appellate Division First Department's Presiding Justice John T. Buckley shared the following remarks to a group of NYCLA's members who celebrated 50 or more years as members of the New York bar. Justice Buckley is an honors graduate of Georgetown University (class of 1958) and the Albany Law School (class of 1961). After serving to the rank of Captain in the U.S. Army, he served as a Member of the New York State Assembly and was in private practice for 18 years in Utica before beginning his judicial career. In 1999, Gov. George E. Pataki appointed Justice Buckley as an Associate Justice of the First Department, and in 2003, he became Presiding Justice. In 2004, Justice Buckley earned his Masters of Laws in the Judicial Process from the School of Law of the University of Virginia. NYCLA appreciates Justice Buckley's permission to reproduce his remarks, and acknowledges his holding of the copyright to the text. Speech Given by Hon. John T. Buckley, Presiding Justice, Appellate Division, First Department, on February 16, 2006 at a Sustaining Member Reception at the National Arts Club The Constitution of 1846, which first created the Court of Appeals, also discontinued the Court of Chancery and gave equity jurisdiction to the Supreme Court Justices. It instituted the election of Supreme Court Justices, to 14-year terms. It was a people s constitution, a highwater mark of the Jacksonian era, manifesting faith in granting the People control through elections. Just about every official was elected: the State engineer, the State surveyor, even canal commissioners and prison inspectors. In a referendum of 1873, the electorate, by a margin of almost 3 t 1, rejected a proposal that judges be appointed rather than elected. The term of 14 years, which strikes so many as an odd choice of years, was selected with a purpose. Previously, Supreme Court Justices had served for life. Looking at the time the justices actually sat on the 1

2 bench, the average was 14 years; thus, the elected term of 14 years, considered in conjunction with the mandatory retirement age of 70, was intended to effectively be a life term. Supreme Court Justices, who tried cases in law and equity, also sat in three-member panels at General Term as an intermediate review court. However, it was possible for a judge to sit on the appellate panel that reviewed his own trial decisions. Under its original incarnation, the Court of Appeals was required to hear all appeals as of right; the New York Central Railroad had the most cases. With New York the fastest growing, wealthiest, and mostpopulous State, a backlog at the Court of Appeals quickly reached critical proportions, causing litigants to wait as long as five years to have their appeal finally determined. Various solutions were tried. A Second Division of the Court of Appeals sat from 1889 to A Constitutional amendment of 1899 permitted the Governor to appoint up to four additional judges to the Court of Appeals, although no more than seven would hear an appeal; that provision was utilized up to 1921 and is still on the books. A Constitutional Convention of 1894, under the leadership of Joseph Choate as President of the Convention, and Elihu Root as Chairman of the Judiciary Committee, created the Appellate Division to 2

3 serve as the intermediate appellate court and converted the Court of Appeals into a certiorari court; only in limited circumstances, such as death penalty cases and situations where two appellate justices dissent, is the Court of Appeals required to hear an appeal. Thus, today, 98 to 99 percent of cases are finally resolved in the Appellate Division. During the Constitutional Convention of 1894, one delegate, who proposed limiting the term to ten years, stated: Mr. Chairman, years ago, when I practiced law, I made up my mind that fourteen years was too long for any man to sit as a [Supreme Court] judge. There is a natural stupidity that grows upon a man who sits upon the bench for so long a time. The term of fourteen years is remarkable...i believe when a man [has] served ten years he is past the day of his usefulness as a [Supreme Court] judge...[h]e should either be transferred to a higher tribunal or else he should give way for some other gentleman...ten years duration of the term of a judge of the Supreme Court is glory enough for anybody. He ought then to retire and without pension, too. That unique view did not prevail, and today Supreme Court Justices are still elected to 14-year terms, with a pension. Article VI, section 6, of our current Constitution provides that [a] 3

4 justice of the supreme court shall be chosen by the electors of the judicial district in which they are to serve. There are twelve judicial districts, and the Constitution limits the number of supreme court justices within each district by population, although the Legislature can decrease the number. In the first judicial district, New York County, there are 38 seats; in the 12 th district, the Bronx, there are 25. However, Article VI, section 26, of the Constitution states that [a] justice of the supreme court may perform the duties of office or hold court in any county and may be temporarily assigned to the supreme court in any judicial district. The Chief Administrative Judge has, and does, assign Supreme Court justices to other districts as work loads and other considerations dictate. Under the Constitution, the Appellate Division is a branch of the Supreme Court, and it is divided into four Departments. Article VI, section 4, sets the number of Appellate Division justice for each Department (for example, seven for the First Department), but allows the Governor to designate additional justices if an Appellate Division certifies that additional justices are needed for the speedy disposition of the business before it. Over the years, different Governors have expanded the number of all the Departments; the First Department now has 16 seats, of which there is one vacancy, created by the retirement of Justice Betty Weinberg Ellerin, who will always be my Presiding Justice. 4

5 The Constitution expressly allows the Governor to designate Appellate Division justices from Supreme Court justices anywhere in the State. Thus, a justice can be elected in one district, and designated to an Appellate Division which does not include that district. The only limitation is that the majority of the justices and the Presiding Justice be residents of the Department. The designation of justices from outside a department has a long and continuous history. In fact, one of the seven members of the original First Department was from upstate, Pardon Williams, appointed by Governor Levi Morton, a Republican. Other Governors to make use of that appointment prerogative are: Democrats Alfred E. Smith, FDR, Herbert Lehman, Averell Harriman, and Hugh Carey; and Republicans Charles Whitman, Nathan Miller, Thomas Dewey, Malcolm Wilson, Nelson A. Rockefeller, and George Pataki. Over the course of the First Department s 110-year existence, twenty percent of the designated justices have come from outside the Department. With respect to the work of the First Department, during the time I have been working here, since 1999, we have heard each year, on average, 3,000 appeals, 6,000 motions, 1,000 applications for interim relief, and 100 disciplinary matters; in addition we admit about 3,000 lawyers to the bar each year, after vetting their character and fitness. 5

6 I am the 18 th Presiding Justice of the First Department. My family and I are fortunate to be living in this great city and I am proud to have the opportunity to work with the lawyers and Bar Associations of New York City. 6