Eileen Bransten,, et al., Respondents,v.State of New York, Appellant.

Brief

N.Y.October 11, 2017

No. APL-2015-00125 To be argued by: JUDITH N. VALE 15 minutes requested Supreme Court, New York County, Index No. 156160/2012 State of New York Court of Appeals EILEEN BRANSTEN, Justice of the Supreme Court of the State of New York, et al., Plaintiffs-Respondents, -against- THE STATE OF NEW YORK, Defendant-Appellant. BRIEF FOR APPELLANT AND ADDENDUM BARBARA D. UNDERWOOD Solicitor General STEVEN C. WU Deputy Solicitor General JUDITH N. VALE Assistant Solicitor General of Counsel ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Appellant 120 Broadway New York, New York 10271 (212) 416-6274 (212) 416-8962 (facsimile) Dated: November 23, 2015 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................ iii PRELIMINARY STATEMENT ........................................................ 1 QUESTIONS PRESENTED ............................................................ 4 STATEMENT OF THE CASE ......................................................... 5 A. The New York Judicial Compensation Clause .............. 5 B. Judicial Compensation Set by Law ............................. 10 C. State Employee Health Insurance Benefits ................ 12 D. The 2011 Amendments to the State’s Premium Contributions ............................................................... 20 E. Procedural History ....................................................... 24 ARGUMENT - THE CHANGES TO THE STATE’S PREMIUM CONTRIBUTIONS DO NOT IMPROPERLY DIMINISH PROTECTED JUDICIAL COMPENSATION ............................. 28 A. The Changes in State Premium Contributions Do Not Directly Diminish Judicial Compensation. ...................................... 31 1. The premium contribution reductions only indirectly affect judicial salaries by increasing the price of optional health insurance plans. ............................................ 31 2. The lower courts erred in viewing premium contributions as protected judicial compensation. ................................... 38 ii TABLE OF CONTENTS (cont'd) Page 3. Imposing constitutional constraints on the State’s flexibility to provide and fund optional health insurance undermines the proper functioning of its plans. ............... 45 B. The State’s Reduction in Premium Contributions Is Nondiscriminatory. ................. 53 CONCLUSION ............................................................................... 61 iii TABLE OF AUTHORITIES Cases Page(s) DePascale v. State, 211 N.J. 40 (2012) ...................................................................... 44 Larabee v. Governor of State of New York, 65 A.D.3d 74 (1st Dep't 2009) .................................................... 43 Matter of Lippman v. Board of Education, 66 N.Y.2d 313 (1985) ..................................................... 35, 36, 38 Matter of Maron v. Silver, 14 N.Y.3d 230 (2010) ......................................................... passim Matter of State v. Rashid, 16 N.Y.3d 1 (2010) ..................................................................... 31 McBryde v. United States, 299 F.3d 1357 (Fed. Cir. 2002) .................................................. 34 People ex rel. Bockes v. Wemple, 115 N.Y. 302 (1889) ......................................................... 7, 40, 43 People ex rel. Follett v. Fitch, 145 N.Y. 261 (1895) ......................................................... 8, 40, 41 Robinson v. Sullivan, 905 F.2d 1199 (8th Cir. 1990) .............................................. 29, 42 Roe v. Bd. of Tr. of the Vill. of Bellport, 65 A.D.3d 1211 (2d Dep’t 2009) ................................................. 45 Roe v. Bd. of Tr. of the Vill. of Bellport, Index No. 027535/08, 2008 WL 8753970 (Sup. Ct. Suffolk County, Aug. 18, 2008) .................................................. 45 Suttlehan v. Town of New Windsor, 31 Misc. 3d 290 (Sup. Ct. Orange County 2011) ................. 34, 55 iv TABLE OF AUTHORITIES (cont’d) Page(s) United States v. Hatter, 532 U.S. 557 (2001) ............................................................ passim United States v. Will, 449 U.S. 200 (1980) .................................................................... 28 Laws N.Y. Const. art V, § 1 (1846) ........................................................................... 7 art. V, § 4 (1846) .......................................................................... 7 art. V, § 7 .................................................................................... 35 art. V § 8 (1846) ........................................................................... 7 art. VI, § 7 (1846) ......................................................................... 6 art. VI, § 12 (1909) ................................................................... 8, 9 art. VI, § 14 (1869) ....................................................................... 7 art. VI, § 19 (1926) ....................................................................... 9 art. VI, § 23 ................................................................................ 56 art. VI, § 25 .................................................................................. 5 art. X, § 9 (1909) ........................................................................... 8 C.P.L.R. 3211 ............................................................................................ 24 5501 ............................................................................................ 27 5601 ............................................................................................ 27 Ch. 94, 1926 N.Y. Laws 250 ........................................................... 10 Ch. 155, 1926 N.Y. Laws 311 ......................................................... 10 Ch. 45, 1949 N.Y. Laws 40 ............................................................. 10 Ch. 195, 1949 N.Y. Laws 379 ......................................................... 10 Ch. 461, 1956 N.Y. Laws 1164 ........................................... 15, 17, 18 Ch. 617, 1967 N.Y. Laws 1425 ................................................ 19, 47 v TABLE OF AUTHORITIES (cont’d) Page(s) Ch. 150, 1975 N.Y. Laws 198 ......................................................... 10 Ch. 152, 1975 N.Y. Laws 202 ......................................................... 10 Ch. 996, 1976 N.Y. Laws 2047 ....................................................... 46 Ch. 32, 1977 N.Y. Laws 38 ............................................................. 46 Ch. 55, 1979 N.Y. McKinney’s Laws 270 ....................................... 11 Ch. 881, 1980 N.Y. Laws 2153 ....................................................... 11 Ch. 14, 1983 N.Y. Laws 71 ............................................................. 20 Ch. 986, 1984 N.Y. Laws 3587 ....................................................... 11 Ch. 263, 1987 N.Y. Laws 2027 ....................................................... 11 Ch. 60, 1993 N.Y. Laws 2391 ......................................................... 11 Ch. 630, 1998 N.Y. Laws 3614 ....................................................... 11 Ch. 567, 2010 N.Y. Laws 4988 ................................................. 11, 52 Ch. 491, 2011 McKinney’s N.Y. Laws 1363 ....................... 21, 23, 53 Civil Service Law § 161 ..................................................................................... 16, 17 § 163 ..................................................................................... 13, 31 § 166 ........................................................................................... 32 § 167 ............................................................................... 32, 48, 49 § 201 ........................................................................................... 21 § 202 ........................................................................................... 21 § 214 ..................................................................................... 21, 57 Judiciary Law § 39 ......................................................................... 47 vi TABLE OF AUTHORITIES (cont’d) Page(s) 4. N.Y.C.R.R. § 73.3 .............................................................................. 22, 41, 54 § 73.12 .................................................................................. 22, 54 Miscellaneous Authorities Bill Mem., reprinted in Bill Jacket for ch. 83 (1995) ..................... 48 Budget Report on Bills, reprinted in Bill Jacket for ch. 55 (1979), at 7 ............................................................................ 10 Coal. of N.Y. State Jud. Ass’ns, Presentation to the New York State Judicial Compensation Commission 8 (June 10, 2011), available at http://www.judicialcompensation.ny.gov/assets/D - Coalition of New York State Judicial Associations - Full.pdf ....................................................................................... 12 Courts, A Plan for a Simplified State-Wide Court System (1956) ............................................................................. 10 Ctrs. for Medicare & Medicaid Servs., National Health Expenditure Projections 2014-2024: Forecast Summary, available at http://www.cms.gov/Research-Statistics-Data-and- Systems/Statistics-Trends-and- Reports/NationalHealthExpendData/Downloads/proj 2014.pdf ...................................................................................... 47 David D. Siegel, New York Practice § 530 (5th ed. 2011) ........................................................................................... 27 General Services, Parking Fee Deduction Rate Increase: Downtown Albany ...................................................................... 36 Governor’s Mem., reprinted in Bill Jacket for ch. 461 (1956) ........................................................... 15, 16, 17, 46 vii TABLE OF AUTHORITIES (cont’d) Page(s) Governor’s Program Bill, reprinted in Bill Jacket for ch. 14 (1983), at 7 ................................................................. 19, 20 Introducer’s Mem. In Support, reprinted in Bill Jacket for ch. 491 ................................................................................... 23 John Sheils & Randall Haught, The Cost of Tax- Exempt Health Benefits in 2004, Health Affairs, Feb. 2004, W-106 (2004), available at http://content.healthaffairs.org/content/early/2004/0 2/25/hlthaff.w4.106.full.pdf ....................................................... 15 Laura D. Hermer, Private Health Insurance in the United States: A Proposal for a More Functional System, 6 Hous. J. Health L. & Pol’y 1, 6-10 (2005) ........... 14, 15 Letter from State Department of Civil Service, reprinted in Bill Jacket for ch. 461 (1956) .......................... 16, 17 Mem. from M. Volforte, Acting General Counsel, to M. Denerstein, Counsel to the Governor, reprinted in Bill Jacket for ch. 491 (2011), at 23-24 ..................................... 20 Message of Necessity, reprinted in Bill Jacket for ch. 567 (2010). ............................................................................ 11 N.Y. Const. Convention, Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of New York 484 (1846) ................... 6, 7 N.Y. Law Soc’y, An Historical Analysis of the Judiciary Article of the New York State Constitution, reprinted in 9. N.Y. Const. Convention Comm., Reports: Problems Relating to Judicial Administration and Organization 338 (1938) ............................. 8 viii TABLE OF AUTHORITIES (cont’d) Page(s) N.Y. State Health Ins. Program, Health Insurance Choices for 2016 (Nov. 2015), available at https://www.cs.ny.gov/employee- benefits/nyship/shared/publications/choices/2016/act ive-choices-2016.pdf ............................................................. 12, 15 N.Y. State Health Ins. Program, NYSHIP Rate Changes (Sept. 2011), available at http://www.cs.ny.gov/employee- benefits/nyship/shared/publications/rates/2011/ucs- rates-oct-2011.pdf ...................................................................... 33 N.Y. State Health Ins. Program, NYSHIP Rates & Deadlines for 2016 (Nov. 2015), available at https://www.cs.ny.gov/employee- benefits/nyship/shared/publications/rates/2016/ny- active-rates-2016.pdf ........................................................... 13, 33 N.Y. State Ins. Program, NYSHIP Rates & Deadlines for 2008 (Nov. 2007) ................................................................... 18 N.Y. State Ins. Program, NYSHIP Rates & Deadlines for 2011 (Nov. 2010), available at http://www.brockport.edu/hr/Benefits/Health%20Ins urance/2011/2011rates.pdf .................................................. 18, 32 N.Y. State Unified Ct. Sys., Careers—N.Y. State Courts, available at www.nycourts.gov ..................................... 54 New York State Unified Court System Summary of Employee Benefits (May 2015), available at http://www.nycourts.gov/courts/6jd/forms/NewEmp/ HealthIns/BenefitSumm.pdf ..................................................... 51 ix TABLE OF AUTHORITIES (cont’d) Page(s) Office of General Services, Parking Fee Deduction Rate Increase: Downtown Albany (Mar. 2015), available at https://parking.ogs.ny.gov/sites/default/files/2015%2 0Parking%20Deduction%20Rate%20Increase%20Me mo_0.pdf ..................................................................................... 36 Proceedings of the Judiciary Constitutional Convention of 1921, reprinted in Problems, supra, at 593 (“1921 Proceedings”) .......................................................................... 9, 40 Robert A. Carter, New York State Constitution: Sources of Legislative Intent (2d ed. 2001) ............................................. 10 Temporary Commission on the Courts, A Plan for a Simplified State-Wide Court System (1956) .............................. 10 PRELIMINARY STATEMENT The issue in this appeal is whether New York’s Judicial Compensation Clause prohibits the Legislature from applying to judges and justices1 a modest increase in the prices of the State’s health insurance plans. Because such a price increase does not directly diminish judicial compensation, and because the increase has been applied in a nondiscriminatory manner to nearly all state employees, this Court should hold that the Judicial Compensation Clause does not bar the Legislature from acting, and reverse the decisions below holding to the contrary. The Civil Service Law gives all state employees, including judges, the option of purchasing health insurance through the State’s health benefit plan. For employees who choose to buy a state plan, the State provides a substantial discount by covering a portion of the cost of the participating employee’s health insurance premium. These premium contributions are not given directly to the participating employee, but instead are paid to the relevant 1 This brief refers to all judges and justices covered by the Compensation Clause as “judges” unless otherwise indicated. 2 health insurance program. As a result, the sole effect of the State’s premium contributions is to reduce the price of health insurance plans by lowering the biweekly premiums that participating employees must pay. In 2011, in response to ever-rising health care costs and a historic fiscal crisis, the Legislature enacted statutes (and the Department of Civil Service promulgated regulations) providing that the State would reduce its contribution toward insurance premiums by two or six percentage points for the overwhelming majority of state employees, including judges. Both Supreme Court, New York County (Edmead, J.) and the Appellate Division, First Department held that this reduction in the State’s contribution percentage unconstitutionally diminishes protected judicial compensation. This Court should reverse. The Judicial Compensation Clause does not prohibit the Legislature from enacting laws that have only an indirect and nondiscriminatory effect on judicial salaries. The Legislature acted well within its authority under this standard when it authorized the 2011 reductions in the 3 State’s premium contributions. The changes to the State’s premium contributions did not directly affect any constitutionally protected compensation at all. Instead, these changes merely increased the price of health insurance for those judges who chose to buy a state health insurance plan. This rise in premium prices did not affect judges’ statutorily defined salaries, nor did it eliminate any payment given directly to judges. At most, such a price increase indirectly affected judicial compensation by requiring judges to pay a little more out of their salaries if they chose to purchase health insurance from the State. But it is well- settled that such purely indirect effects on judicial salaries do not implicate the Compensation Clause at all. Moreover, the indirect effect of the 2011 changes on judicial pay comports with the Compensation Clause because the Legislature did not discriminate against judges. The contribution changes apply equally to ninety-eight percent of all state employees, including many state employees who, like judges, cannot collectively bargain. Because judges have thus not been singled out, plaintiffs’ Compensation Clause claim fails. 4 QUESTIONS PRESENTED 1. Whether a 2011 law authorizing reductions in the State’s contribution to the health insurance premiums of all state employees violates the Compensation Clause, when the statute only indirectly affects judicial salaries by increasing the prices charged for purchasing an optional health insurance plan? The First Department and Supreme Court answered in the affirmative. 2. Whether the 2011 law and implementing regulations single out judges for discriminatory treatment, when judges are subject to the same rules as the overwhelming majority of other state employees? The First Department and Supreme Court answered in the affirmative. 5 STATEMENT OF THE CASE A. The New York Judicial Compensation Clause New York’s Judicial Compensation Clause establishes a legislative mechanism for setting judicial salaries and protects that compensation from any direct diminishment during a judge’s term of office. The current version of the Compensation Clause provides that: The compensation of a judge . . . or of a retired judge . . . shall be established by law and shall not be diminished during the term of office for which he or she was elected or appointed. N.Y. Const. art. VI, § 25(a). The history of this clause demonstrates that the framers intended it to protect judicial salaries and other similarly fixed and permanent payments from direct diminishment. The Compensation Clause was first enacted in 1846 to establish a salary-based structure for compensating judges. At that time, judges had been collecting fees for their services directly from litigants appearing before them. The framers feared that this fee-based system made judges dependent on attracting “business” from the bar, which created bad incentives and made 6 judicial income too uncertain. See N.Y. Const. Convention, Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of New York 484, 494, 823-25 (1846) (“1846 Convention”). To resolve these concerns, the framers provided that judges would receive “a compensation[] to be established by law,” N.Y. Const. art. VI, § 7 (1846), thus setting “an inflexible rule that all judicial officers … shall be compensated by fixed salaries, and shall not receive fees or perquisites of office,”1846 Convention, supra at 484. The framers “left to the legislature” the task of fixing “the salaries of the judges under the new arrangement.” Id. The framers understood that this legislative authority to set judicial salaries could create a new problem—namely, the potential for the Legislature to attempt to influence judges by decreasing or increasing their salaries as punishment or reward for particular decisions. Id. at 332; see id. at 778-79. The framers guarded against such undue influence by providing that a judge’s compensation could not be “increased or diminished” during his term of office. N.Y. Const. art. VI, § 7 (1846); see 1846 Convention, 7 supra at 840-41. Similar concerns about undue influence by the Legislature led the framers to provide that other constitutional officers besides judges would also receive a “fixed” compensation for their services that could not be “increased or diminished” during their terms of office. N.Y. Const. art. V §§ 4, 8 (1846); id. art. V, § 1 (1846); see 1846 Convention, supra at 286-88, 309, 332, 517-518. Later, constitutional amendments allowed the Legislature to increase judicial salaries, while continuing to prohibit diminishments. See N.Y. Const. art. VI, § 14 (1869). This Court made clear in two early cases that the Compensation Clause protects salaries and other fixed payments from diminishment, but does not cover reimbursements for expenses voluntarily incurred by judges. In People ex rel. Bockes v. Wemple, the Court held that a fixed, annual payment of $1,200— intended to defray expenses—constituted protected compensation, explaining that the payment was a “permanent addition to [a judge’s] stated salary” regardless of whether (or in what amount) the judge incurred any costs. 115 N.Y. 302, 309-10 (1889). By contrast, in People ex rel. Follett v. Fitch , the Court held that a 8 statute providing for the ad hoc reimbursement of actual expenses incurred by a judge did not “deal with compensation for services” and thus did not implicate the Compensation Clause. 145 N.Y. 261, 265-66 (1895). Subsequent amendments reinforced this distinction between fixed payments and expense reimbursements. In 1909, for example, the People approved an amendment that specified fixed salary and per diem amounts as the compensation of justices of the Supreme Court, and prohibited the Legislature from providing judges with any additional compensation or allowance.2 See N.Y. Const. art. VI, § 12 (1909); see also Matter of Maron v. Silver, 14 N.Y.3d 230, 251 (2010). The amendment thus protected these specified, fixed payments—and only those payments—from any 2 The 1909 amendment did not fix salaries for the judges of the Court of Appeals, and this omission meant that their salaries were governed by the provision protecting the “compensation” of “State officers named in the Constitution” from increase or diminishment during their terms of office. See N.Y. Const. art. X, § 9 (1909); N.Y. Law Soc’y, An Historical Analysis of the Judiciary Article of the New York State Constitution, reprinted in 9. N.Y. Const. Convention Comm., Reports: Problems Relating to Judicial Administration and Organization 338 (1938) (“Problems”). 9 increase or decrease absent constitutional amendment. See N.Y. Const. art. VI, § 12 (1909). In 1925, after two failed attempts to raise judicial salaries, the People ratified an amendment that reauthorized the Legislature to set judicial salaries. The amendment eliminated the fixed salaries listed in the Constitution so that the Compensation Clause again provided only that judges would “receive for their services such compensation as is . . . established by law” and that “such compensation shall not be diminished during” a judge’s term of office. N.Y. Const. art. VI, § 19 (1926). The delegates made clear that the protected compensation encompassed the “permanent pay of the official,” including salaries and “any fixed lump sum allowance,” but did not encompass reimbursements for costs incurred. Proceedings of the Judiciary Constitutional Convention of 1921, reprinted in Problems, supra, at 593 (“1921 Proceedings”). As one delegate explained, “actual expenses are not [a judge’s] compensation, they are reimbursement for money expended.” Id. at 594; see id. at 595 (“Payment for expenses is merely a matter of reimbursement. It is not compensation at all.”). 10 In 1961, a constitutional amendment reorganized the state courts, and carried forward the then-existing Compensation Clause in its present form. See Temporary Commission on the Courts, A Plan for a Simplified State-Wide Court System, 52 (1956); see Robert A. Carter, New York State Constitution: Sources of Legislative Intent, at 84-85 (2d ed. 2001). B. Judicial Compensation Set by Law In keeping with the Compensation Clause’s command to establish by law the compensation that judges receive for their services, the Legislature has for over eighty years enacted session laws that set salary schedules for judges.3 In 1979, the Legislature enacted article 7-B of the Judiciary Law to specify the salaries to be paid to all judges in the Unified Court System and effectuate “compensation increases” for judges by adjusting their salaries upwards both retroactively and prospectively. Budget Report on Bills, reprinted in Bill Jacket for ch. 55 (1979), at 7. See generally 3 See, e.g., Ch. 94, 1926 N.Y. Laws 250; Ch. 155, 1926 N.Y. Laws 311; Ch. 45, 1949 N.Y. Laws 40; Ch. 195, 1949 N.Y. Laws 379; Ch. 150, 1975 N.Y. Laws 198; Ch. 152, 1975 N.Y. Laws 202. 11 Ch. 55, 1979 N.Y. McKinney’s Laws 270 (codified in Judiciary Law §§ 220-223). Since 1979, the Legislature has increased judicial compensation five times, each time by enacting a session law explicitly stating that it amended the salary schedules set forth in Judiciary Law article 7-B.4 In 2010, the Legislature established a special commission on judicial compensation “to evaluate and adjust judicial salaries.” Message of Necessity, reprinted in Bill Jacket for ch. 567 (2010), at 5. Every four years, the commission convenes to determine whether the “annual salaries” for judges warrant adjustment and make recommendations accordingly. See Ch. 567, § 1(a)(ii), 2010 N.Y. Laws 4988, 4988. Although the commission is also permitted to make recommendations regarding judges’ nonsalary benefits, only its annual salary recommendations have the force of law and supersede any inconsistent provisions in the article 7-B salary schedules, unless modified by the Legislature. See id. § 1(a)(i), (h), 4 See Ch. 881, §§ 14-16, 1980 N.Y. Laws 2153, 2156; Ch. 986, 1984 N.Y. Laws 3587; Ch. 263, 1987 N.Y. Laws 2027; Ch. 60, §§ 32-34, 1993 N.Y. Laws 2391, 2400-05; Ch. 630, 1998 N.Y. Laws 3614. 12 2010 N.Y. Laws at 4988-89. In 2011, the commission recommended that justices of the Supreme Court receive $160,000 in fiscal year 2012-2013, $167,000 in 2013-2014, and $174,000 in 2014-2015. (R. 150-151.) These three increases have become effective, and thus active justices, including most plaintiffs here, currently receive $174,000 in annual salary. C. State Employee Health Insurance Benefits While judicial salaries are established by specialized statutes and procedures applicable only to judges, the state health insurance plans that judges may choose to purchase are part of a larger system available to all state employees. Judges generally receive the same health insurance benefits as “the other 220,000 state employees and 1.2 million local government employees.” Coal. of N.Y. State Jud. Ass’ns, Presentation to the New York State Judicial Compensation Commission 8 (June 10, 2011). Currently, the State offers its employees, including judges, the option of buying one of several different health insurance plans. See, N.Y. State Health Ins. Program, Health Insurance Choices for 2016, at 3, 12-13 (Nov. 2015) (“2016 Choices”). The 13 health insurance program is completely voluntary; employees are not required to join or contribute to a state plan, and many do not if they prefer to obtain their health insurance coverage through a spouse or elsewhere. See Civil Service Law § 163(1) (plans available to employees “who elect to participate”). . Different plans have different cost and benefit terms, including the types and extent of coverage provided and the amounts that an employee must pay in annual premiums or other costs, such as annual deductibles that must be met before full coverage applies or copays for particular doctor’s visits. See id. at 18-43; N.Y. State Health Ins. Program, NYSHIP Rates & Deadlines for 2016, 4-5 (Nov. 2015) (“2016 Rates”). Throughout the history of this health insurance program, the State has preserved legislative flexibility to alter the cost and benefit terms of the insurance plans it offers in order to respond to changes in health care costs, insurance markets, or applicable regulations. Prior to 1956, the State—like most private employers—played no substantial role in its employees’ health care expenses. During this time, many people simply paid doctors 14 or hospitals directly for the costs of medical care. But as the expense of health care services rose dramatically in the early twentieth century, companies began to offer a new insurance product: in exchange for a premium, the company would pay for medical care provided to the insured individual by doctors or hospitals participating in the insurance plan. Until the 1940s, most employees who chose to purchase health insurance paid the entire premium price themselves. See Laura D. Hermer, Private Health Insurance in the United States: A Proposal for a More Functional System, 6 Hous. J. Health L. & Pol’y 1, 6-10 (2005). Employer-based group health insurance, under which employers offer their employees the option of purchasing insurance through the employer at a discounted price, developed during World War II. Employers began offering to contribute to their employees’ insurance premium costs because such contributions did not count as salary and were thus not subject to wartime wage controls. See id. at 10-11. After the war, the federal government altered the tax code so that employers’ contributions to employees’ health insurance coverage would remain excluded 15 from the employees’ taxable income. Id. at 10; see John Sheils & Randall Haught, The Cost of Tax-Exempt Health Benefits in 2004, Health Affairs, Feb. 2004, W-106, W-107 (2004). As a result, an employee is not subject to income tax on the amounts that her employer contributes to her insurance premium costs. Hermer, supra, at 10-11; Sheils & Haught, supra, at W-107. The employer is also freed from income tax on its premium contributions because it may deduct these payments as business expenses.5 Sheils & Haught, supra, at W-107. In 1956, the State joined the growing number of private employers offering a group health insurance plan to provide employees with the option of buying insurance at a lower price than was generally available in the individual insurance market. Ch. 461, 1956 N.Y. Laws 1164 (recodified as amended as Civil Service Law §§ 160-170); see Governor’s Mem., reprinted in Bill Jacket for ch. 461 (1956), at 3. The Legislature authorized the 5 Under the tax code, employers can also create plans that allow employees to deduct the amounts that they pay for their health insurance premiums from their income on a pretax basis, thus providing a further tax benefit. See 2016 Choices, supra at 1. 16 president of the Civil Service Commission “to establish a health insurance plan” that employees could choose to join. See Civil Service Law § 161. The 1956 act provided considerable discretion to the administrator of the health insurance program to determine the details of the plans offered to employees. To ensure that “[t]he law [w]ould be flexible enough to make it possible to contract for the best service at the lowest cost,” Governor’s Mem., supra, at 3-4, the plan administrator was given authority to negotiate the terms of contracts with insurance carriers, id. at 3. The administrator was also authorized to discontinue insurance contracts and enter into new agreements at the end of a fiscal year. See Letter from State Department of Civil Service, reprinted in Bill Jacket for ch. 461, supra, at 25. The act further provided the Commission with extensive flexibility to determine the extent to which the State would contribute towards the costs of insurance incurred by employees opting into the program. Governor Averell Harriman specifically urged the Legislature to leave that determination to the 17 administrator of the plan. See Governor’s Mem., supra, at 3-4. The Legislature agreed, providing only that the program must provide a “reasonable relationship” between benefits and costs to employees. See Civil Service Law § 161. As a result, employees remained responsible for paying any portion of their insurance premiums that the State chose not to cover. See Governor’s Mem., supra, at 4. They could also be required to pay additional amounts, such as deductibles or portions of medical expenses in order to reduce the premiums charged to all employees. See id.; Letter from State Department of Civil Service, supra, at 24. To administer and pay for group insurance plans covering many employees, the Legislature created a centralized state health insurance fund. Ch. 461, 1956 N.Y. Laws at 1168-69 (recodified at Civil Service Law § 167(6)-(7)). Amounts charged to employees for their premium costs are deducted from their paychecks and deposited into this state health insurance fund. Id. The State’s contributions towards employees’ premium expenses are also deposited into the fund. Id. The monies in the fund are then used to pay the premiums charged by the insurance 18 companies or the costs of medical services charged by providers. Id. at 1169. In keeping with the needed flexibility in administering its health insurance plan, the State has at times altered the balance of costs and benefits offered to employees through the program. For example, the State has increased the total premium rates, resulting in employees having to pay more for health insurance. Compare N.Y. State Ins. Program, NYSHIP Rates & Deadlines for 2008, at 2-3 (Nov. 2007), with N.Y. State Ins. Program, NYSHIP Rates & Deadlines for 2011, at 2-4 (Nov. 2010). The State has also increased employees’ annual deductibles. (Compare, e.g., R. 170 ($185 deductible for Empire Plan in 2004), with R. 160 ($225 deductible in 2005), and R. 177 ($250 deductible in 2010). And copay amounts for particular benefits have also risen. (Compare, e.g., R. 163, with R. 183 ($10 increase in copay for nonpreferred brand-name medicines under 2005 Empire Plan compared to 2004 plan). Moreover, the State routinely alters the type and scope of benefits offered under its plans, such as: changing the lists of in- network health care providers and the amounts that employees 19 must pay if they use out-of-network services (R. 159, 164, 171); requiring preauthorization for certain services (R. 184); and adopting a flexible formulary that excludes certain medications from coverage (R. 78). In addition, as relevant here, the Legislature has several times altered the amount by which the State subsidizes the costs of health insurance premiums for its employees. In 1967, the Legislature provided that the State would pay one-hundred percent of the cost of premiums incurred by state employees and retired state employees who chose to enroll in the State’s basic insurance plan.6 Ch. 617, § 6, 1967 N.Y. Laws 1425, 1426 (recodified as amended at Civil Service Law § 167(1)(a)). Sixteen years later, in 1983, the Legislature changed course because “burgeoning cost[s] of employee health insurance premiums” were “severely strain[ing] the financial resources of the State.” Governor’s Program Bill, reprinted in Bill Jacket for ch. 14 (1983), 6 For employees who enrolled in an optional plan other than the basic plan, the State would contribute the same dollar amount as it would have contributed for the basic plan premiums. Ch. 617, § 6, 1967 N.Y. Laws at 1426-27. 20 at 7. To provide the State with “immediate financial relief” from these high insurance costs, the State effectuated collective- bargaining agreements with employee unions that reduced the State’s contribution for the basic health insurance plan from one- hundred percent to ninety percent of active employees’ premium expenses. Id.; see Ch. 14, 1983 N.Y. Laws 71. D. The 2011 Amendments to the State’s Premium Contributions In 2011, the State again confronted intense strain on its financial resources. Faced with the possibility that the State would otherwise be forced to lay off employees, many unions representing state employees agreed to salary freezes, unpaid furloughs, and—as relevant here—a reduction in the percentage contribution that the State pays to offset employees’ health insurance premium costs. See Mem. from M. Volforte, Acting General Counsel, to M. Denerstein, Counsel to the Governor, reprinted in Bill Jacket for ch. 491 (2011), at 23-24. To carry out these agreements, the Legislature amended the Civil Service Law to authorize reductions in the State’s 21 contribution to employee health insurance premiums for those employees covered by a union agreement. See Ch. 491, pt. A, § 2, 2011 McKinney’s N.Y. Laws 1363, 1365-66 (codified at Civil Service Law § 167(8)). The Legislature also authorized the president of the Civil Service Commission to extend the same premium-contribution modifications to all nonunionized employees, thus continuing to offer these employees health benefits on par with most other state employees. Id. Such nonunionized employees included approximately 1,200 judges and more than 12,000 other employees classified as “managerial” or “confidential” (“M/C employees”), all of whom were nonunionized because they are prohibited under the Taylor Law from engaging in collective bargaining. (R. 294.) See Civil Service Law §§ 201(7)(a), 202, 214. Effective October 1, 2011, the acting head of the Department of Civil Service promulgated a regulation that reduced the State’s premium contribution from ninety to eighty- eight percent for those active employees receiving the equivalent of “salary grade 9 or below,” and from ninety to eighty-four 22 percent for those active employees receiving the equivalent of “salary grade 10 or above.” 4 N.Y.C.R.R. § 73.3(b). For all state employees who elected to participate in the State’s plan and retired between January 1, 1983, and January 1, 2012, the State reduced its premium contribution from ninety to eighty-eight percent, irrespective of the employees’ salary grade at retirement.7 Seeid.. These provisions are inapplicable to the members of unions that have not yet agreed to renegotiate their collective-bargaining agreements, see id. § 73.12, but to date, only two percent of unionized state employees (fewer than 3,900 employees) fall in that category. (R. 293-294.) In a separate part of the 2011 session law that authorized the change in contributions, the Legislature amended the Civil Service Law to authorize various salary increases for M/C 7 Judges, who are not assigned pay grades, receive the premium contribution rate of unionized employees with equivalent annual salaries. For example, all Supreme Court justices receive a salary that is greater than “salary grade 10,” and therefore, for such judges who are in active state service and have elected to enroll in the state plan, the State pays eighty-four percent of their health insurance premium costs. (R. 293.) 23 employees. The authorized increases included: two-percent increases to basic annual salaries for fiscal years 2013 and 2014; lump sum payments of $775 in 2013 and $225 in 2014; and advances for performance, merit, and longevity for certain employees. See Ch. 491, pt. B, § 3, 2011 McKinney’s N.Y. Laws at 1377-79. These payments were designed to provide these nonunionized employees with salaries comparable to those of unionized employees. Introducer’s Mem. In Support, reprinted in Bill Jacket for ch. 491, supra, at 13. The Legislature viewed such pay parity as “essential” to “assur[ing] productivity, maintain[ing] good morale, and . . . allow[ing] for the recruitment and retention of competent staff.” Id. There is no indication in the legislative history that these salary increases were intended as an exchange for the reduction in the State’s contribution to health care premiums, which applied to nearly all employees. The salary-related amendments for M/C employees also provided that many of the authorized compensation increases could be withheld at the broad discretion of the Director of the Division of the Budget. See Ch. 491, pt. B, § 13, 2011 McKinney’s 24 N.Y. Laws at 1382-83. In November 2011, the Director of the Division of the Budget authorized advances for performance, merit, and longevity to implement a preexisting budget policy from 2008. (R. 313 & n. 1 & 2.) However, he declined to authorize the two lump sum payments. To date, the State has not made either of these lump sum payments to M/C employees. (R. 312- 313.) E. Procedural History More than a year after the acting head of the Department of Civil Service reduced the State’s percentage contribution toward almost all state employees’ health insurance premium costs, plaintiffs brought this lawsuit against the State of New York. Plaintiffs are thirteen current and retired justices of New York Supreme Court. (R. 31-32.) They seek a declaration that Civil Service Law § 167(8), which authorizes the modification to the State’s premium contribution for all state employees, is unconstitutional as applied to judges under the New York’s Judicial Compensation Clause. (R. 37.) 25 The State moved to dismiss the complaint for failure to state a claim pursuant to C.P.L.R. 3211(a)(7). The State argued that the challenged statute and implementing regulations comported with the Compensation Clause because they did not directly reduce judicial salaries and instead only indirectly affected judges’ pay by raising a voluntary cost in a nondiscriminatory manner. Supreme Court (Edmead, J.) denied the motion to dismiss. The court held that health benefits constitute constitutionally protected “compensation,” declining to accept a distinction between laws that directly reduce judicial salaries and laws that only indirectly affect salaries by increasing the prices charged for insurance products that judges choose to purchase. (R. 17-19, 21.) Despite concluding that the reduction in the State’s premium contribution for most employees had “not single[d] out judges,” the court also held that plaintiffs had stated a Compensation Clause claim because they were required to contribute more towards their premium costs. (R. 19-22.) The State timely appealed this interlocutory order to the Appellate Division, First Department. The Appellate Division 26 affirmed, holding that “compensation” within the meaning of New York’s Compensation Clause “includes all things of value” that the State provides to its employees, including health insurance benefits. (R. 250.) The court also held that the change in the State’s premium contribution “discriminates against judges,” who were ineligible for collective bargaining and thus, unlike unionized employees, were not “otherwise compensated” for the reduced premium rate.8 (R. 251.) The Appellate Division subsequently denied the State leave to appeal its interlocutory order to this Court. The case then returned to Supreme Court, where the parties made additional submissions and cross-moved for summary judgment. Supreme Court granted summary judgment to plaintiffs and issued a decision and order declaring that Civil Service Law § 167(8) and its implementing regulations are 8 The Appellate Division also erroneously stated that the State had not challenged on appeal whether the changes to premium contribution rates directly reduced judicial compensation (R. 250), even though the State had explicitly made this argument in its appellate briefs (R. 327-329, 332-333). 27 unconstitutional as applied to judges. (R. 403.) Relying on “the Appellate Division’s pronouncement” in the interlocutory appeal that the Compensation Clause extends to health benefits (R. 396- 397), Supreme Court held that the State’s reduced premium contribution both directly diminished judicial compensation and discriminated against judges in violation of the Constitution (R. 397-402). Supreme Court subsequently entered its decision and order as a final judgment. (R. 408.) The State timely appealed Supreme Court’s final judgment to this Court under C.P.L.R. 5601(b)(2). (R. 427.) This appeal includes review of the Appellate Division’s prior nonfinal order because that order necessarily affects the final judgment and has never been reviewed by this Court. C.P.L.R. 5501(a)(1); see David D. Siegel, New York Practice § 530 (5th ed. 2011).9 9 Members of this Court are eligible for the State’s health insurance plan and therefore could be affected by the outcome of this appeal. However, the Rule of Necessity dictates that the Court should hear the appeal rather than recuse because there is “no other judicial body with jurisdiction … to hear the constitutional issues” that are raised herein. See Matter of Maron, 14 N.Y.3d at 248-49. 28 ARGUMENT THE CHANGES TO THE STATE’S PREMIUM CONTRIBUTIONS DO NOT IMPROPERLY DIMINISH PROTECTED JUDICIAL COMPENSATION The sole effect of the premium-contribution reductions challenged here is to raise the price of state health insurance plans for employees who choose to purchase such plans. As a result of the reductions, the ninety-eight percent of state employees covered by the 2011 amendments and regulations— including judges—will pay slightly more for the State’s health benefit plan, if they choose to buy a state plan. The incidental effect on judicial salaries caused by this nondiscriminatory policy does not violate the Judicial Compensation Clause. New York’s Compensation Clause, like its federal counterpart, “does not erect an absolute ban on all legislation that conceivably could have an adverse effect on” the constitutionally protected salaries of judges. United States v. Will, 449 U.S. 200, 227 (1980) (federal); see Matter of Maron, 14 N.Y.3d at 253-54. Rather, to protect the independence of the judiciary, the Compensation Clause prohibits only laws that “directly reduce 29 judicial salaries” during judges’ terms of office—for example, a law that cuts sitting judges’ annual salaries in half. United States v. Hatter, 532 U.S. 557, 571 (2001); see Matter of Maron, 14 N.Y.3d at 253-54 (adopting reasoning of Hatter). By contrast, the Compensation Clause does not bar legislation that only indirectly affects judges’ take-home pay, so long as such a law does not single out judges for discriminatory treatment. See Hatter, 532 U.S. at 571; see Matter of Maron, 14 N.Y.3d at 252-54. As the U.S. Supreme Court has recognized, such indirect, nondiscriminatory effects on judicial salaries do not trigger the concerns about undue legislative influence on judges that justify the Compensation Clause’s protections because the likelihood that such burdens are “a disguised legislative effort to influence the judicial will is virtually nonexistent.” Hatter, 532 U.S. at 571; see Robinson v. Sullivan, 905 F.2d 1199, 1202 (8th Cir. 1990) (explaining that “[i]ndirect, nondiscriminatory diminishments of judicial compensation … do not amount to an assault upon” judges). Absent a threat to the independence of the judiciary, it is only fair that judges share equally the burdens borne by others 30 subject to the same nondiscriminatory policy. See Hatter, 532 U.S. at 570. Thus, for example, the U.S. Supreme Court has held that a Medicare tax increase that applied to all federal employees, including judges, did not implicate the federal Compensation Clause at all because it did not single out judges and only “affect[ed] [judicial] compensation indirectly” by increasing a financial cost that judges, like all other government employees, paid out of their salaries. Hatter, 532 U.S. at 571. Here, as with the tax increase upheld in Hatter, the reductions in the State’s percentage contribution to health insurance premiums apply broadly to the overwhelming majority of state employees, and only indirectly affect judicial salaries by requiring judges to pay a little bit more if they choose to purchase health insurance through the State. Such a policy does not implicate the Compensation Clause at all because the Legislature “has not enacted legislation that has directly diminished judicial compensation … nor has it enacted discriminatory legislation that 31 has indirectly resulted in the diminution of judicial compensation.”10 Matter of Maron, 14 N.Y.3d at 254. A. The Changes in State Premium Contributions Do Not Directly Diminish Judicial Compensation. 1. The premium contribution reductions only indirectly affect judicial salaries by increasing the price of optional health insurance plans. The State’s premium contributions are in effect a form of discount pricing for optional health insurance. If employees elect to join a state health insurance plan—which they are not required to do, see Civil Service Law § 163(1) (plans available to employees “who elect to participate”)—the State reduces the price of that plan by covering a large portion of the premium costs. The State’s 10 The Appellate Division erroneously concluded that the State had failed to argue in its interlocutory appeal that reducing premium contributions “did not directly diminish judges’ compensation.” (R. 250.) The State explicitly made this argument in its appellate briefs, supported by discussions of relevant judicial precedent. (R. 327-329, 332-333.) In any event, because the State raised this argument before Supreme Court both originally and on remand (R. 55-59, 352), the issue is preserved for this Court’s review. See Matter of State v. Rashid, 16 N.Y.3d 1, 13 (2010). 32 premium contributions have never been paid directly to employees. Instead, the State deposits its premium contributions into the centralized state health insurance fund, which moneys are then used to pay premiums charged by insurance companies or claims submitted by health care providers. See Civil Service Law §§ 166, 167(7). The sole practical effect of these contributions is thus to lower the price of the health insurance plans that state employees may opt to purchase. The 2011 legislative amendment at issue here simply authorized an increase to the prices charged for state plans by reducing the State’s subsidization of those plans. Put another way, the State has changed its discount on premium prices from ninety percent to eighty-eight or eighty-four percent. Because of this lower discount and correspondingly increased price, employees opting to purchase a state plan had to pay a small amount more in premiums each month after the 2011 changes. For example, the biweekly premium price for active judges who chose to buy the State’s individual-coverage Empire Plan rose by approximately $21.00. See NYSHIP Rates & Deadlines for 2011, supra, at 2-4 33 (Nov. 2010) (listing biweekly premium charge as $28.01); N.Y. State Health Ins. Program, NYSHIP Rate Changes, at 2-4 (Sept. 2011) (listing biweekly premium charge as $49.00). For employees, the price increase effectuated by this reduction in premium contributions works no differently than if the State had simply informed employees of new premium prices charged for each plan—e.g., telling employees that the Empire Plan now costs $49.00 per biweekly period instead of $28.01. In fact, state employees routinely face such price increases when they annually decide whether to participate in a state insurance plan. Every year, employees are given a list of the premium prices for each state plan and its corresponding health insurance benefits. See, e.g., 2016 Rates, supra, at 4-5. As the costs and coverage of medical care and health insurance have steadily increased over time, the premium prices listed have often increased from year to year even when the State’s contribution percentage remained the same. See supra at 18. However these price increases are effectuated—whether through increases in the underlying premiums themselves, or, as 34 here, through a reduction in the State’s subsidization of premium costs—they have only an indirect effect on judges’ constitutionally protected salaries, and accordingly do not implicate the Compensation Clause. When the Legislature reduces the premium discount it offers, it does not direct that judges receive a lower salary, but instead increases a collateral financial cost that employees bear—just as it does when raising taxes. See Hatter, 532 U.S. at 571; Matter of Maron, 14 N.Y.3d at 252-54. And just like higher taxes, higher premium prices “simply claim a portion of [a] judge’s compensation” in order to cover the increased costs. See McBryde v. United States, 299 F.3d 1357, 1368 (Fed. Cir. 2002). Such indirect effects on judicial pay do not implicate the Compensation Clause at all. Id. at 1368-69 (declining to cover judge’s voluntarily incurred litigation expenses indirectly affected compensation); Suttlehan v. Town of New Windsor, 31 Misc. 3d 290, 293-94 (Sup. Ct. Orange County 2011) (reduction in municipality’s contribution to town employees’ health insurance premiums did not violate Compensation Clause), aff’d, 100 A.D.3d 623 (2d Dep’t 2012). 35 This Court has reached the same conclusion in a closely related case interpreting New York Constitution article V, § 7, which provides in part that pension or retirement “benefits . . . shall not be diminished.” In Matter of Lippman v. Board of Education, the Court considered whether a school district’s reduction in its health-insurance premium contributions unconstitutionally diminished retirees’ benefits when retirees were required to pay more out of their pension income to cover the increased premium costs. 66 N.Y.2d 313, 317-19 (1985). The Court held that this reduction did not directly affect retirees’ benefits. Id. at 317-18. It acknowledged that “a retiree will receive a smaller retirement check” because a larger share of his or her pension payments would be used to pay the costs of health insurance, but concluded that “this is no more a change in retirement benefits than would be an increase in the price of eggs at the supermarket . . . . The retiree has less to spend, but there has been no change in his retirement benefit.” Id. at 318-19. That reasoning applies equally here: the recent premium contribution reductions increase the price of health insurance to 36 employees who join a plan by diminishing the State’s discount, but that change does not directly affect protected judicial compensation. To be sure, as in Lippman, the increased premium prices for judges who join a state plan are paid out of a judges’ salary. But the only relationship between the premium costs and judicial salaries “is the purely incidental one that the latter provides the means by which the former is paid in those instances where the employer has elected to pay less than the full premium.” Id. at 318. Indeed, any time the State raises the price of an optional benefit provided to employees, the salaries of those employees who choose to purchase that benefit, including judges, will at most be indirectly affected by the price increase. For example, the State currently offers its employees who work in Albany the option of renting a parking spot in State-owned lots in exchange for a biweekly payment deducted directly from employees’ paychecks. See Office of General Services, Parking Fee Deduction Rate Increase: Downtown Albany (listing new biweekly prices of $12.96 for surface parking and $51.84 for covered reserved parking). 37 When the State raises its prices for parking, those employees who purchase a spot must have more money deducted from their paychecks to pay for parking, but such deductions in no way mean that their salaries have been reduced. And the result would essentially be the same if the State sold food at a courthouse cafeteria and decided to raise its prices—judges who eat at the cafeteria would pay more out of their salaries for lunch, but their salaries would not have been directly diminished. The Appellate Division thus wrongly focused on the fact that any increases in the premium prices charged to judges who opt into a state plan are “withheld from judicial salaries.” (R. 247- 248.) Such withholding is a convenient administrative mechanism for collecting payments from state employees: it allows the State to efficiently administer and pay for group health plans that often include thousands of employees, and has the added benefit of allowing employees to pay for premium costs with pretax income. But as this Court and the U.S. Supreme Court have recognized, such withholding nonetheless produces an indirect rather than direct effect on judicial salaries that does not implicate the 38 Compensation Clause. Cf. Matter of Lippman, 66 N.Y.2d at 316, 318 (increasing withholdings from pension checks because of decreased premium contribution produced indirect effect on retirement payments); Hatter, 532 U.S. at 561-62, 571 (increasing salary withholdings for taxes produced indirect effect on judicial compensation). 2. The lower courts erred in viewing premium contributions as protected judicial compensation. Ignoring the purely indirect effect that increasing premium prices has on judicial salaries, the lower courts viewed the State’s premium contributions as themselves constituting judicial compensation protected by the Compensation Clause. But the courts below simply misapprehended the manner in which judges (and other employees) are benefited by the State’s premium contributions. The State has never made premium contributions directly to any state employee, including judges; these contributions never appear on employees’ paychecks; and these contributions have never been included as part of the judicial salaries established by the Legislature for judges. Rather, the 39 contributions are ultimately paid to the insurance companies for premium costs or to providers to cover claims. See supra at 17-18. Indeed, like other employees, judges are not required to pay income tax on the State’s premium contributions precisely because these contributions are never paid directly to them and thus are not deemed to be part of judges’ salaries or other taxable income. The State’s partial subsidization of employees’ health insurance premiums thus bears no similarity to the statutorily established salaries—or fixed, unconditional payments in the nature of a salary—that this Court and the framers have historically deemed “compensation” to judges protected by the Judicial Compensation Clause. See supra at 5-10. Even if the State’s premiums contributions could somehow be considered a direct payment to judges (which they cannot), that “payment” at best operates like an expense reimbursement, which fluctuates based on the amount of expenses an employee chooses to incur, rather than a fixed and permanent salary payment. Under well-settled law, such variable reimbursements do not qualify as constitutionally protected compensation. As described 40 above and explained by this Court, the framers protected from direct diminishment only judicial salaries and other fixed payments that made a “permanent addition” to salaries. People ex rel. Bockes, 115 N.Y. at 310; see 1921 Proceedings, supra, at 593. But both the framers and this Court made equally clear that reimbursements for “actual expenses” are not a part of constitutionally protected compensation because they fluctuate depending on the costs incurred by a judge and thus do not provide any fixed and permanent addition to judicial salaries. 1921 Proceedings, supra, at 594. As this Court explained in People ex rel. Follett, reimbursements for judicial expenses do not “deal with compensation for services” because “it is only when . . . expenses and disbursements have been incurred” that any reimbursement takes place. 145 N.Y. at 264-66. Under Follett and Bockes, even if the State paid premium contributions directly to judges, those contributions would essentially operate as partial reimbursements for fluctuating expenses, and accordingly would not fall within the Compensation Clause’s scope. Judges are not required to purchase health 41 insurance through the State and do not benefit from the State’s premium contributions unless they so elect. And judges who opt into the state program can choose from a variety of insurance plans that have different premium prices and other costs in exchange for different benefits. As a result, the premium prices incurred by judges who choose to purchase a state plan vary depending on the particular plan they select.11 And the State’s premium contributions spare judges from paying the full price of whichever plan they have chosen by essentially reimbursing them for a large portion of that total premium price. As with other reimbursements, there is no fixed and permanent payment to judges; rather, “it is only when. . . expenses” for insurance premiums have been incurred by those judges who opt into a state plan, see id., that the State’s premium contribution is paid into the state health insurance fund. 11 The State’s contribution to the premium costs of those employees who chose to enroll in a health-maintenance organization plan are capped at one-hundred percent of the dollar contribution for such coverage under the Empire Plan. See 4 N.Y.C.R.R. § 73.3. 42 This Court’s long-standing rule that reimbursements for judicial expenses fall outside the Compensation Clause’s reach demonstrates that, contrary to the lower courts’ conclusions, not “all things of value” provided to employees are constitutionally protected compensation. (See R. 250; see also R. 397-398.) Reimbursements for expenses no doubt have monetary value to judges, but this value does not transform them into the type of fixed and permanent payments that have long formed the heartland of protected compensation. Indeed, this same value- based theory was also rejected by the Supreme Court in Hatter: the majority declined to adopt the position of a dissenting justice that the benefit of tax exemption—an item of substantial financial value that Congress had previously given federal employees— constituted a part of judicial compensation. See 532 U.S. at 583 (Scalia, J. concurring in part and dissenting in part); see also Robinson v. Sullivan, 905 F.2d 1199, 1202 (8th Cir. 1990) (rejecting argument that eligibility for social security was part of “a package of benefits” protected as judicial compensation). 43 Ignoring this dispositive precedent, the lower courts reached their erroneous conclusions by relying on inapposite cases. They pointed to a reference by the First Department to “wages and benefits” in Larabee v. Governor of State of New York, but this case did not address health insurance or any other benefit. 65 A.D. 3d 74, 86 (1st Dep’t 2009), aff’d sub nom. Matter of Maron, 14 N.Y.3d 230. Rather, the court in Larabee rejected the plaintiffs’ claim that their statutory salaries had been diminished by inflation—making its reference to “benefits” textbook dicta. See id. at 86-87. In any event, a general statement that some benefits constitute protected compensation does not support plaintiffs’ claim here because some benefits more directly affect judicial pay. For example, while pension payments are usually considered an employee “benefit,” such payments are fixed and permanent. Likewise, if the State decided to give its employees a commuter benefit in the form of a fixed $50 payment every month, such a lump sum would likely constitute a “permanent addition” to judges’ stated salaries that could not be directly diminished. See People ex rel. Bockes, 115 N.Y. at 309-10. Unlike these more 44 permanent benefit payments that bear directly on judicial pay, the costs and benefits of optional health insurance are highly flexible in nature.12 See infra at 45-53. For similar reasons, the lower courts’ reliance on DePascale v. State, 211 N.J. 40 (2012), is also misplaced. Even if DePascale’s 3-2 majority opinion were persuasive authority here,13 that decision would be distinguishable because it concerned a New Jersey law that, unlike New York’s scheme, forced all judges to make mandatory payments to the state pension and health benefit plans. Id. at 45-46 & n.2. The court thus reasoned that the benefits at issue directly reduced judicial salaries by requiring every judge to dedicate a portion of his or her salary to state-run benefit programs. See id. at 45-46, 62. Here, there is no such direct salary reduction because the State’s health benefit plans are 12 The other cases relied on by Supreme Court (R. 398) did not involve the meaning or scope of constitutionally protected judicial compensation, and are thus irrelevant. 13 This Court should decline to follow the reasoning of DePascale, which is a nonbinding out-of-state decision, for the reasons persuasively stated in the dissent. See 211 N.J. at 65-94. 45 entirely optional. It is thus judges, rather than the State, who ultimately decide whether to dedicate a portion of their own salaries towards purchasing state health insurance, a voluntary cost that will fluctuate depending on which plan the judge selects.14 Increasing the premium costs for these optional plans does not violate the Compensation Clause. 3. Imposing constitutional constraints on the State’s flexibility to provide and fund optional health insurance undermines the proper functioning of its plans. The lower courts’ sweeping theory that “all things of value” (R. 250) are constitutionally protected compensation is further belied by the long history and importance of preserving flexibility 14 Roe v. Board of Trustees of the Village of Bellport, 65 A.D.3d 1211 (2d Dep’t 2009), which the lower courts cited, likewise did not involve optional insurance expenses. Rather, the judge simply received as his “remuneration . . . an annual salary of $7,500 and health benefits,” seemingly without a choice in whether to incur any particular insurance cost. Roe v. Bd. of Tr. of the Vill. of Bellport, Index No. 027535/08, 2008 WL 8753970 (Sup. Ct. Suffolk County, Aug. 18, 2008). Under these circumstances, the Second Department held that the total elimination of the health benefit violated separation of powers, Roe, 65 A.D.3d at 1212, but no such circumstances exist here. 46 in the State’s regulation and provision of optional health insurance to its employees. The Legislature has never intended for the terms of the State’s optional health benefit plans to be immune from any changes that might increase their costs to judges. From the beginning, the Legislature emphasized that the health plan administrator needed flexibility to negotiate and alter the terms of the State’s insurance contracts to obtain an appropriate balance of costs and benefits for employees. See Governor’s Mem., supra, at 3-4. This flexibility extended to setting the State’s and employees’ premium contributions as well as other health care costs that employees might have to bear, such as copays and deductibles. See supra at 16-20. The Legislature expressly preserved flexibility to modify judges’ health insurance benefits when it unified the court system and made more judges eligible to participate in the state health insurance plans. See Ch. 996, 1976 N.Y. Laws 2047; Ch. 32, § 8, 1977 N.Y. Laws 38, 44-45. The Legislature provided that a participating judge’s benefits would be subject to the same flexible terms as those applicable to “nonjudicial officers,” stating that 47 “[i]nsurance benefits . . . shall continue in effect until altered by law[ or] administrative action in accordance with law.” Judiciary Law § 39(6)(e)(i). In other words, the costs and benefits of health insurance could be altered to meet the changing needs of the State and its many employees, whether they are judges or not. Although the Legislature had by this time provided that the State would cover a defined percentage of premium expenses, see Ch. 617, § 6, 1967 N.Y. Laws at 1426, the costs and value of state health insurance to employees remained highly variable and subject to change by the State. By their nature, the benefits and concomitant costs of health insurance are under constant flux from year to year. Over time, the costs of health care services often rise, new medical technologies and drugs are developed, and government regulations impose different insurance coverage requirements. See Ctrs. for Medicare & Medicaid Servs., National Health Expenditure Projections 2014-2024: Forecast Summary. For example, the Affordable Care Act recently required that most insurance plans, including the State’s Empire Plan, cover one- hundred percent of many preventive care services. (R. 85, 129.) 48 These and many other factors affect the expense and ultimate value of the State’s health insurance plans as premiums rise or fall and particular benefits are changed. The Legislature has continued to maintain flexibility in regulating employees’ health insurance to address this practical reality of ever increasing health care costs and shifting insurance requirements. As explained, the State has increased the price of premiums, which resulted in employees (including judges) paying more out of their paychecks, even when the State’s percentage contribution rate remained the same. See supra at 18. The Legislature also acted to reduce costs in 1995, when it transitioned judges who had remained on locally funded health plans to the state plans. Finding the local plans to be “much more expensive,” the Legislature withdrew judges from these plans, a change that reduced expenditures on health insurance by an estimated $500,000. See Bill Mem., reprinted in Bill Jacket for ch. 83 (1995), at 18. Indeed, the State’s ninety-percent contribution to premiums in former Civil Service Law § 167(1) which plaintiffs seek to define 49 as the constitutional baseline reflected the need for legislative flexibility to handle rising employee health care costs. The ninety- percent contribution level was enacted as a reduction in the State’s contribution rate (from one-hundred percent) for the employees enrolled in the basic plan. See supra at 19-20. Although this amendment decreased the State’s contribution to the premium costs of all active judges enrolled in the state health benefit plan, there is no indication that any of them claimed that the law was unconstitutional. Under plaintiffs’ theory, however, that reduction was illegal, and the Legislature was barred from requiring judges to contribute anything to the premium costs of state health insurance plans. The recent amendment to Civil Service Law § 167(8), which authorizes the Commission president to reduce the State’s contribution to state employees’ health insurance premiums, simply continues the State’s decades-long history of adjusting premium contributions and other health benefit terms to account for changing conditions, while continuing to offer state employees the option of purchasing highly discounted health insurance. 50 Nothing in this history or the Civil Service Law suggests the creation of a fixed and inflexible health benefit that the Compensation Clause prevents the Legislature from altering for sitting judges. Treating the costs and benefits of optional health insurance as protected judicial compensation, as the lower courts did here, would have far-reaching consequences for the State’s ability to administer its health benefit plans. Because the costs and benefits of the State’s plans often change (see supra at 16-20), the state insurance system would be open to constant attack from judges. Under plaintiffs’ view, any increase in premium prices could be challenged as violating the Compensation Clause because judges who join a plan must have more money deducted from their paychecks to pay the higher prices. Increases to the amounts employees pay in copays, deductibles, and coinsurance could be attacked as unconstitutionally diminishing the “value” of judicial health benefits. And changes to the benefits offered, such as reducing the amount that a plan pays for a particular medical procedure or removing doctors from the insurance network—could 51 be challenged as unconstitutionally diminishing judicial compensation because the new benefit package has less value. Moreover, the theory adopted by the lower courts here would, if accepted, have sweeping effects on the many other optional benefits that the State offers to its employees, including judges. For example, many state employees have the choice to enroll in: vision and dental insurance paid for entirely by the State; long-term care insurance funded by employees; life insurance that is covered by the State with an option to purchase more coverage; and programs that deduct funds from employees’ paychecks pretax to pay for health care or commuting costs. See New York State Unified Court System Summary of Employee Benefits (May 2015). Under the lower courts’ view, all of these optional benefits would be protected judicial compensation and the State would be barred from changing any of the cost or benefit terms in any way that could be said to reduce their “value” to judges. Such a result would hamstring the State in adjusting optional benefits that are often subject to shifting costs and regulatory schemes. 52 The problems that would arise from freezing for judges the terms of group employee benefits highlight the difference between such benefits and the fixed salaries and permanent payments that constitute protected judicial compensation. When the Legislature intended to set fixed salaries or payments, it unmistakably did so through judicial salary schedules. See supra at 10-11. And the 2010 mandate to the State Commission on Judicial Compensation was equally clear, providing authority only to adjust judges’ annual salaries—authority that the Commission exercised by proposing schedules of permanent salaries. See Ch. 567, § 1(h), 2010 N.Y. Laws at 1461. There can be no confusion that these fixed payments are protected compensation. But this clarity would be sorely lacking if the courts must parse whether particular terms of state health plans or other group benefits fall within the Compensation Clause’s scope, particularly when there is no indication that the Legislature intended for such terms to be permanent rather than flexible. The absence of clear and administrable standards to determine when a health benefit 53 plan’s “value” has been unconstitutionally reduced further demonstrates that plaintiffs’ theory should be rejected. B. The State’s Reduction in Premium Contributions Is Nondiscriminatory. As a cost increase that only indirectly affected judicial salaries, the 2011 reductions to the State’s premium contributions comport with the Compensation Clause so long as they do not “single[] out” judges. Hatter, 532 U.S. at 561. See supra at 28-31. The lower courts erred in holding that the changes to the State’s contribution rate unconstitutionally discriminated against judges. To the contrary, the changes in premium contributions apply to the overwhelming majority of state employees and thus treat judges the same as nearly everybody else. The 2011 amendments to the Civil Service Law do not subject judges to discriminatory treatment. The amendments authorize modifications to the State’s contributions to the premium costs of all state employees. Ch. 491, pt. A, § 2, 2011 McKinney’s N.Y. Laws at 1365-66. The provision does not mention judges or establish any criteria that would make it applicable 54 “‘almost exclusively’” to judges. Matter of Maron, 14 N.Y.3d at 255 (quoting Hatter, 532 U.S. at 564). Nor do the implementing regulations. See 4 N.Y.C.R.R. §§ 73.3(b), 73.12. To the contrary, the implementing regulations apply the percentage reduction in premium contributions to all state employees except those who belong to a union that has yet to ratify a new collective-bargaining agreement. See id. § 73.12. The vast majority of state employees (ninety-eight percent as of the date of this brief) are subject to the reduced premium-contribution rate—including not only members of unions that have ratified new collective-bargaining agreements, but also nonunion members of the executive, legislative, and judicial branches. (R. 293-294.) In total, approximately 185,000 active state employees—of whom approximately 1,200 (or one percent) are judges—are subject to the 2011 contribution changes, while fewer than 3,900 employees remain subject to pre-2011 contribution rates. (R. 293.) See N.Y. State Unified Ct. Sys., Careers—N.Y. State Courts, www.nycourts.gov (stating that court system has “almost 1,200 judges”). The fact that the regulation treats judges like almost 55 every other state employee demonstrates its nondiscriminatory nature. See Hatter, 532 U.S. at 561-62, 572 (tax applied to all federal employees did not discriminate against judges); Suttlehan, 31 Misc. 3d at 294 (reduction in town’s health insurance premium contribution that applied to all elected officials did not discriminate against judges). The lower courts concluded otherwise, but none of the factors they identified show that judges were discriminated against when the Legislature authorized a reduction in the State’s premium contributions. First, the Appellate Division found the contribution change discriminatory because it did not apply to a small number of unionized employees who have yet to agree to new collective- bargaining agreements. (R. 254.) But as Hatter makes clear, discrimination sufficient to violate the Compensation Clause occurs only when judges are “singled out”—i.e., treated differently from everybody else rather than from anybody else. Hatter, 532 U.S. at 564. Thus, in Maron, this Court declined to find that judges had been singled out by not receiving raises when a small number of nonjudicial constitutional officers had also not received 56 salary increases—even though “nearly all of the other 195,000 state employees ha[d] received” raises. 14 N.Y.3d at 256. Here, the number of comparators subject to the same policy as judges is far larger than in Maron. Because judges are thus treated the same as the overwhelming majority of state employees, it is immaterial that a tiny fraction of employees (currently only two percent) are treated differently. Second, and relatedly, the lower courts found that judges were treated unequally because unionized employees were able to collectively negotiate for layoff protections in exchange for accepting the 2011 premium-contribution reductions, whereas judges are prohibited by the Taylor Act from collectively bargaining. (See R. 251, 400.) This reasoning is wrong on several levels. For one thing, because the New York Constitution already protects judges from “layoffs,” see N.Y. Const. art. VI, § 23, unionized employees did not obtain any benefit that judges do not already enjoy—thus undermining the claim of unequal treatment. In addition, the relevant inquiry under the Compensation Clause is whether judges have been singled out to bear a “financial 57 burden” that other employees are not required to shoulder, Hatter, 532 U.S. at 573, not whether judges’ employment terms are identical to other state employees’ in every material respect. Here, the relevant financial burden is the same: the State’s premium contribution rate for judges is identical to the contribution rate for all unionized employees who agreed to new collective-bargaining agreements. In any event, even assuming that some state employees were able to collectively bargain for better terms in exchange for accepting the premium-contribution reductions, judges would still not have suffered unconstitutional discrimination because a substantial number of other state employees have not received any collectively bargained benefits either. In addition to judges, more than 12,000 state employees designated “M/C”— approximately six percent of the state workforce—are prohibited under the Taylor Law from collective bargaining, and thus had no ability to negotiate for other employment changes when the Legislature authorized the premium-contribution reduction. (R. 294.) See Civil Service Law § 214. Because judges were treated the 58 same as this substantial body of other state employees (R. 294), they have not been singled out in violation of the Compensation Clause. See Matter of Maron, 14 N.Y.3d at 256. Third, the lower courts reasoned that the premium reductions were discriminatory because they did not apply to “all citizens” and were instead limited to state employees (R. 402; see R. 254.) But the State could not have reduced premiums for all citizens because it does not make contributions toward every citizen’s health insurance. And Hatter disposed of the notion that a law primarily concerned with government employees must apply to all citizens or all private employees to be nondiscriminatory: in that decision, the Supreme Court upheld a tax increase that applied only to government employees (including judges), recognizing that in such circumstances, the category of government employees “is the appropriate class against which we must measure the asserted discrimination.” 532 U.S. at 572. Finally, Supreme Court concluded that judges had been discriminated against because it accepted plaintiffs’ theory that M/C employees, but not judges, had been promised two lump sum 59 payments as a specific quid pro quo for the premium-contribution changes. (See R. 400.) That holding misapprehends the nature and effect of these payments. There is no evidence in the statutory text or legislative history that the lump sum payments were authorized as an exchange for reduced premium contributions. See supra at 22-23. To the contrary, the legislative history makes clear that the lump sum payments were simply part of a broad effort by the Legislature to provide M/C employees with higher salaries (not health benefits).15 Indeed, the awards for performance, merit, and longevity that the Director of the Division of the Budget authorized in 2011, implemented a salary plan for M/C employees from 2008—three years before the premium rate change. (R. 313-314.) In any event, the lump sum payments have never actually been paid to M/C employees because the Director of the Division of the Budget has not exercised his discretion to 15 Unlike M/C employees, judges had no need for the pay parity provisions contained in the 2011 amendments because their salary levels were already being examined and adjusted in 2011 by the State Commission on Judicial Compensation. See supra at 11-12. 60 approve the payments. (R. 314.) Judges could not have suffered discrimination based on payments to other state employees that never materialized. Ultimately, plaintiffs miss the mark when they attempt to identify discrimination against judges based on other employees receiving benefits unrelated to health insurance premiums. The dispositive fact instead is this: both before and after the 2011 premium-contribution changes, nearly all employees who choose to join the state health benefit plan must pay the same range of prices for the same selection of state-subsidized health insurance plans. This evenhanded treatment is precisely the type of nondiscriminatory policy that the Compensation Clause does not disturb. CONCLUSION For the reasons set forth above, this Court should reverse the interlocutory order of the Appellate Division, Fir st Department and the judgment of Supren1e Court , New York County, and dismiss plaintiffs' complaint or grant summary judgment to defendants. Dated: New York, NY November 23, 2015 B ARBARA D . UNDERWOOD Solicitor General STEVEN C. Wu Deputy Solicitor General JUDITH VALE A ssistant Solicitor General of Co unsel By: Respectfully sub1nitted, ERIC T. S CHNEIDERMAN Attorney General of the State of New Yo rk Attorney for Appellant 1 DITHVALE ( Assistant Solicitor General 120 Broadway New York, NY 10271 (212) 416-6274 Reproduced on Recycled Paper 61 Addendum TABLE OF CONTENTS PAGE New York State Constitutional Convention Committee, “Problems Relating to Judicial Administration and Organization” (1938) ................ ADD1 Part I: Historical Treatment of the Judiciary Article ......................... ADD2 An Historical Analysis of the Judiciary Article of the New York State Constitution ................................. ADD3 “Section 19. General Provisions as to Judges; District Attorneys and Certain Judges not to Appear for Defendant in Criminal case” ........... ADD4 Pages excerpted from “Compensation” ................. ADD5 Proceedings of the Judiciary Constitutional Convention of 1921 ................................................................. ADD7 Pages excerpted from “Proceedings of the Judiciary Constitiutional Convention of 1921” ............................................................... ADD8 PROBLEMS RELATING TO JUDICIAL ADMINISTRATION AND ORGANIZATION ~ la- NEW YORK ST ATE CONSTITUTIONAL CONVENTION COMMITrEE 1938 ADD1 I I I I I I I I I I I I I I I I I I I PART I HISTORICAL TREATMENT OF THE JUDICIARY ARTICLE ADD2 I AN HISTORICAL ANALYSIS OF THE JUDICIARY ARTICLE ADD3 HISTORICAL ANA!.YSIS 323 ARTICLE VI, SECTION 19 OF THE PRESENT CONSTITUTION (.As amended and in force .April 1, 1938} General provisions as to judges; district attorneys and certain judges not to appear for defendant in criminal case.-Sec. 19. All judges, justices nnd sur· rogates shnll receive for their services such compensation as is now or mny hereafter he. established hy law, provided only that such compensation shall not he diminished during their respective terms of office. * * * THE CONSTITUTION OF 1846 ARTICLE VI See. 7. 'rhe Judges of the Court of Appeals and Justices of the Supreme Court1 shall severally receive, at stated terms, for their services, a compensation to be established by law; which shall 110t be increased, or diminished during their con- tinuance in office. Sec. 14. * '" * The county judge shall receive au annual imlary, to be fixed by the board of supervisors, which shall be neither increased not diminished during lJ.ig continuance in office. * "' * SEOTlON 7 At the time of the Convention of 1846 the salaries of the chan- cellor and of a justice of the Supreme Court were $3,000 each. (Lincoln, Vol. IV, p. 590. ) In the convention a section was reported by the Judiciary Committee as follows : · ''They [the judges of the court of appeals and justices of the supreme court] shall severally at stated times recei"ve for their services a compensation to be established by law; which shall not be diminished during their continuance in office." (Debates, p. 777. ) Subsequently, there were rejected (Debates, pp. 778-9 ) amend- ments ( 1) to strike out the prohibition against a clecrea.qe; (2) to allow the Legislature to reduce the salary to a point where it stood when a judge took office, and to prevent any increase tak- ing effect within two years thereafter ; (3) to prohibit an increase ADD4 HISTORICAL ANALYSIS 337 tice of the Supreme Court. 'l'his exception was necessary because the Legislature was to continue to fix the compensation of these judges, as had been the case since the amendment of 1909, and the committee recommended that their compensation "should be fixed at a sum at least equal to that paid to any other judicial officer." ( Revised Record, Vol. III, p. 2655.) Mr. Deyo opposed the increase from $10 to $20 per day for expenses to be allowed to a justice elected in the third or fourth department, who was required to hold court in a judicial district other than that in which he was elected. Mr. Wickersham, on behalf of the committee, noted that the Legislature had passed a statute providing for such an increase, and that the committee had included the same provision in the section to remove doubts as to its constitutionality. (Revised Record, Vol. III, p. 2653.) Because objection was made to a justice from the first or second department also receiving such additional compensation when holding court in up-State districts, Mr. Buxbaum moved to amend by striking out ''in a judicial district other than that in which he is elected" and inserting in its stead "in the first or second department.'' The latter case was the only one where the extra compensation was needed. (Revised Record, Vol. III, p. 2655.) Although this amendment was at first defeated (Revised R ecoi·d, Vol. HI, p, 2658 ), it was accepted on the third reading of the section. (Revised Record, Vol. IV, p. 3685.) THE JUDICIARY ARTICLE OF 1925 AR'l'LCLE VI 1 General provisions as to judges; district attorneys and certain judges not to appear for defendant .in criminal case. - Sec. 19. All judges, justices and surrogates shall receive for their services such compensation as is now or may here- after be established by law, provided only that such com- pensation shall not be diminished cluring their respective terms of office. " " " The provisions in this section relating to compensation of judges, ot justices, were previously contained in sections 12 and 15 of Article VI of the Constitution of 1894. It will be recalled that section 12, as amended in 1909, dealt with the compensation of i This provision of sec. 19 of Art. VI, 11s adopted in 1925, is the provision 11ow in force. It is pri11tcd on p. 323 1111d reprintecl here for convenience. I I I i I I ADD5 I I I I ' I I I I I I 338 Supreme Court justices, fixing their salary at $10,000 per year. Jus- tices assigned to the Appellate Divisions in the Third and Fourth Departments receive $2,000 additional, and the presiding justices $2,500. Justices elected in the first and second departments were entitled to receive from their respective localities such additional c;ompensation as would make their aggregate compensation equal to that which they were then receiving. Further, there were provi- sions dealing with the expenses and additional compensation to be paid to justices serving in another judicial department. Sectio11 15, dealing with surrogates' courts, contained a sentence, "The compensation of any county judge or shall not be increased· or diminished during his term of office.'' The compeusatiou of judges of the ·court of Appeals was not mentioned in the amendment of 190D, but under the terms of Article section D, since they were State officers named in the Constitution, their compensation could not be increased or dimin- ished during the term for which they were elected. 'l'his meant that a elected in 1906 had to continue to serve at the same compensation for the fourteen-year term in 1920. The great increase in the cost of living during that period made the salary fixed for Court of Appeals judges Increased compensation could have been voted by the for newly elected judges, but that would have created the anomaly of judges sitting in the same court receiving different salaries. There were attempts made to remedy this situation by means of constitutio11al amendments, but were defeated by the peo- ple. In 1918 Int. No. 1126, Pr. No. 1444), and in 1919 (S. Int. No. 29, Pr. No. 29), a proposed amendment passed both houses of the Legislature, providing that the compensation of judges of the Court of Appeals as established by law should not be less than the highest compensation allowed to any other judicial officer in the State. This amendment was rejected by the people by a majority of 80,000 votes. In 1920 Int. No. 1669, Pr. No. 2137), and in 1921 (S. Int. No. 122', Pr. No. 1787), it was proposed to amend the Constitution providing that judges of the Court of shall receive the sum of $17,500 per year. The amendmeut both houses but was by the people in 1922 more than 300,000 votes. This proposal was again introduced in 1D23 (S. Int. No. 282, Pr. No. 282) It passed the Senate but remained in committee in the Assembly. ADD6 I I I I I I I I I I I 458 CONSTITUTIONAL CONVENTION OF 1938 PROCEEDINGS OF THE JUDICIARY CONSTITUTIONAL CONVENTION OF 1921 [EXPLANATORY NoTE---The convention, meeting as a whole to consider the report of the Executive Committee, took up the pro- posed draft section section, making changes in some sections and adopting others without change. Only one section, that "-"'t~. The question is Oil th<~ adoption of section rn, aud the Secretary will call the roll, ayes and lllH's. (Roll call.) Mr. Marcus: 1 desire lo rcconl lllY vote 111(ui11st · 'l'he Chuirmau: \V c will cutertai11 1111 amc111i11w11t from ~·011 tu strike out. Mr. Marcus: I nwvt~ to strike out that part of the section which extends the jur.israft. pro\'itlenses; w:r dirm allowances or any fixed lump sum allowance are all a part of the compensation, they cannot be anything else. It does not make any difference whether the judge spends any part of it or spends twice or three times as much, that is '' eompemmtion'' and the present seetion provides that all compensation hereafter 11rovided shall be in lieu of and shall exclude all other eompensat.ion and allowance to a justice :for any exp6t1Sea whatever. In other words, it was a pr<>- hibition e>n any appropriation .for necessary expenses. Th.at pro- I I I I - I I I I I I I I I I I I I I ADD10 594 CONSTITUTION AL CONVENTION OF l!J38 hibition being taken off, would it not follow that the Legislature must next provide for necessary expenses not by per but by bills audited, as ours were, provided in the adoption of this change in the present provision and paid by the Comptroller? I cannot speak dogmatically about it, but it does occur to me that the Legislature may provide for any judge at any time for his necessary expenses when called upon to hold court away from his official residence, that that shall be provided for. That is how we understand the rule with regard to the Court of Appeals. As long as our official residence is Albany, there is no object in allowing us our actual expenses, but if the law required us to maintain an official residence elsewhere in the State, there would be nothing to prevent, as there is no prohibition in the Constiution, the Legislature from making an allowance for our actual e}.-penses while traveling from Albany to some other place, where we were obliged to sit, to hear applications for reasonable doubt, and other matters. I express that merely as my judgment in the matter, and perhaps by way of certainty, we might use some word to indicate that ''compensation'' did not include actual expenses. Mr. Clearwater: But your actual expenses are not your com- pensation, they are reimbursement for money expended. Mr. Guthrie: Isn't it safer to leave that to the Legislature T Certainly no one would say there would be-the Legislature might say that the compensation of the Supreme Court Justice should be $12,000 a year together with an allowance for ordinary expenses, which could be a fixed amount or a per diem amount. It is comprehended, it seems to me, in the term ''compensation,'' at the toy of page 28, '' Such compensation as is now or may hereafter be established by law, which shall not be diminished"- If yon start in to add to this provision, which we want to say is taken from the Constitution of 1846, and add an allowance for traveling expense.q, you will limit the nature of the allowance. The Comptroller might very well be advised that traveling expenses would not include expenses while living over a month in a city, holding court. We thought that the term ''compensation'' has been found broad enough in the past to cover the allowance uow made to the Court of Appeals and that it with reasonable certainty would be interpreted in the future to permit the Legislature to make an allowance in addition to a fixed compensation in the way of what we might call a salary, to cover that. Mr. Putnam : The difficulty is that that word ''compensation'' shall not be changed. It is fixed. ADD11 JUDICIARY CONVENTION OF 1921 595 Mr. Guthrie: "Shall not be diminished." Mr . Putnam: It seems to me you are referring to a fixed regu- lar annual established sum. Mr. Guthrie: Do you understand we have stricken out the words ''but may not be increased''? Mr . Putnam: I understand it now. Mr. Clearwater: Payment for expenses fa merely a matter of reimbursement. It is not compensation at all. 1 The Chairman: Certainly, that is right. Mr. Guthrie: ''All judges, justices and surrogates shall receive for their services such compensation as is now or may hereafter be established by law, provided only that such compensation shall not be diminished during their respective terms of office.'' The Chairman: Now, what does that mean,· Judge Putnam 7 The answer is found on page 6, where the compensation shall be $10,000 a year. That goes out, but that is what they are now getting. We say, "They shall receive for their services such com - pensation as is now or may hereafter be est.a.blished by law, pro- vided only that such compensation shall not be diminished during their respective terms of office.'' What is now established by law in the case of justices of the Supreme Court, is answered on page 6 and page-, (sic) with certain provisiom; for expenses while actually so engaged in holding a term outside of the judicial district. Mr. ,Putnam: That is the compensation of justices who come down to New York, but not the compensation of justice.s of New York who go up the State. Mr. Guthrie : The Legislature could provide it under this sec- tion as we word it. The Chairman: The Legislature would have that power. Mr. Newburger: Any provision there for justices who come down to New York? The Chairman : The judges of the Third and Fourth Depart- ments get $10,000 a year, judges of the First and Second Depart- ment, $17,500, whether that is the basis of distinction or not I do not lmow, and if it is, it is not a very satisfactory one in my ADD12 I I I I I 596 CONSTITUTION AI, CONVENTION OF ] 93~ mind, but there it is ; the compensation is in the ha ml;; of I h<: Legislature, a lump sum allowance is compensation. I think thf' Legislature would have ample power if this were in tbe Constitu- tion to provide that justices elected in the First and Second Departments should receive as part of their compensation an additional sum to be paid them by the State when they were holding court outside the district in which they were elected. Now, there is only one matter that has come to my mind ru. have been. looking at this, we have the principle of inequality established anyway, "so it is there at best. Anything further under these sections T It is only the first sentence we are didemization """' Structure 01 Boxmm ttinc Cowasel ILumrsoN TwEED, Chairman LWN \RD F AlUlSTmN Jou.NF. FunEY MURRA y I. GURFEIN Jous H. HUCHES CHARLES MAncEn: JAMES M. NtC£LY LEWIS c. RYAN WmTNEY Nonnt SEYMOUR ROBl:BT w A.LMSLEY Commissioners FREDERICK vP. B.RYA.."'f, Cou:tisel Wu i.tMtt L. liVNClT~ Chlef Assistant Counsel m. Ill~ COMMISSION'S PLAN F'OR A SIMPLIFIED STATE-WIDE COURT SYSTEM 'ommission's plan, summarized in the introductory portion It.; port, will vest the judicial power of the State in a unified ys· ·"m. The proposed system of state-wide courts would the following objectives of the Commission : ministrative coo1·dination of the entire court system, its nd financing and its personnel. JI , ination of restrictive jurisdictional lines between cour ts t 1lishment of courts of broad jurisdiction to allow f ull t be done in any case properly in the cour ts. u I time judges, adequately compensated and prohibited from h r law. trial of all cases to be before a judge who is a member r of the State (ex<:ept for minor civil and criminal mat- hfch may be triable on consent by a magistrate who need csi arily be a lawyer). 'l ible assignment of judges within and between courts to m• ximum use of judicial manpower. J ·ble transfer of cases between courts to expedite the busi- the courts and to assure that every case will be disposed of Jr\' tly as possible. p1 ,n is implemented by a d1·aft revision of the J udiciary 1f the State Constitution (Article VI) which appears in di A of this Report. It consists of some seventeen sections tablish the system proposed by the Commission. A shor t 1 nt of the substance of each section of the draft will make U1 Constitutional provisions by which the system will be l •d. 111 1 establishes the Unified Court Syste1n and names the 1 which the judicial power of the State is vested. ll n 2 establishes the Court of A7Jpeals and states the organi~ • ompositi<>n and jurisdiction of that court in detail. U n 3 establishes the Appellate Division and the four Judicial • 'nts and states the organization, composition and juris- -,f the Appellate Division . • n 4 establishes the Suprerne Court and eleven Judicial and states the organization, composition and jurisdiction upreme Court. \ u 5 establishes the Coun.ty Court for counties outside New ( ~ty and states the organization, composition and jurisdiction ourt. Jn 6 establishes the General Court of the City of New York tntes the organization, composition and jurisdiction of that 33 34 Section 7 provides for the Magistrate's Court and the efft ment of that cou1-t outside of New York Cit~ where needed. as the limits of ju:risdiction which ma.y be giYell it. Section 8 deals with Judges and provides for ::.uth mat their qualifications, restrictions affecting them, the filling oi.' cies, temporary assignments, compensation. remnal and reti Section 9 p1·ovides for Administration of the Court;;; a11 general administrative power over the courts in tbe Judici ference and assignment of judges in the Appellate Divf,~ion. Section 10 deals with Procedure of the Cow ts and pl'o.,.: regulation of practice by the Legislatu1·e and deleg·nlion o power to a court or the Judicial Conference. Section 11 deals with Cost of the Cozu t Sy.-;leln aud pru\ i the initial payment of the cost of the courts l:iy the State ~11 vision for reimbursement of an appropriate part of the counties or cities. Section 12 provides for the Powers of ~4ppellate Co iris affi.rmance, reversal, modification or ordering of new L1'ia!o i appealed. · Section 13 deals with the Indian Cou·rts and pro, jdes thal status will be unchanged. Sectiolil 14 states the Courts Continued and providt'S for tli tinuation of those courts which al.'e to be independently in· in the revised system. Section 15 states the Courts Abolished and proi. irles fu transition to the new system including such matters as th~· over of the work and the records of those courts which \'.; '} out of existence as independent entities by the ab.:;01'lHio11 <. jurisdictjon in the revised system, the di:;position of appeah- ing, and appeals from cases pending, at the time of lr<1.t1:-.,i f the new system, and the fixing of the compensation of juLl~ magistrates by the Legislatu1·e during the transition period lJ any case without reduction from compensation paid at the tin transition. Section 16 states the Preliminary Powers of the Judicia.l l ferenae and vests in the Conference power, during the perfo the approval of the new system but before its effe~tive date1 to necessary administrative steps to effectuate the new syste1l'. Section 17 provides for the Effective Da.te of the Article \'- at least for some matters must occur at a postponed Ume tu necessary acts to be performed to put the new system into oper It will be noted that Sections 1 through 13 have to do with 1 ters of substance while Sections 14 through 17 deal with mechanics of transition from the old system to the new. After transition period has passed those sections may be removed the Constitution since they will have no fm·ther effect. 1. The Unified Coitrt System The Commission's plan is to place the judicial power of the 1 in a unified court system-one step in assuring the independeu 35 ry, which is further assured by the specific establishment rl diction of each of the State's courts. The present Con- docs not, in terms, vest the judicial power in the courts. ission's plan remedies that defect. t wide nature of the courts will permit the service and of a court's processes and mandates in any part of the I will not extend to the :Magistrate's Court, but by legis- t court will be provided with power extending throughout nd any adjoining county. Clearly, in making provision for in the lower trial couxts-the County Court and the urt of the City of New York-safeguards must be pro- 1 gislation to prevent harassment of deCcndants by plain- 11giug petty suits in distant parts of tho State. Venue ) , as well as necesary filing fees, now limit that problem ht arise in the present Supreme Court, and similar pro- m be provided as to the County Court. aud the General f the City of New York. HUon, the unified court system will make possible the insti- f such a uniform civil practice, forms and procedures as sirable throughout the State. Court of Appeals t'ganiza.tion. Since the Court of Appeals is a continuation r ent Court of Appeals, it will be as toda), organized as l of last resort on a state-wide basis. ( mpusition. The court will be composed of a Chief Judge ssociate Judgest who will be elected by the voters of the tc. They will, of course, be subject to the qualifications, Jons and tenure and retirement simila1· to those which will ncrally to all the judges of all the courts; namely full-time l omcers who have been members o.f the New York bar for Len years and who are prohibited from practicing law. '!'hey I cled for 14 year terms, and must retire at the end of the \\ hich they reach the age of seventy. Vacancies in the court filled by appointment by the Governor, and removal for mny be through the Court on the Judiciary, impeachment, or nt resolution of both houses of the Legislature. J 1risdiction. Although there may well be need for a general and restatement of the jurisdiction of the Court of Appeals, mpt has been made to make it at this time. It is a subject ideration by the Commission's Advisory Committee on Prac- nd Procedure. Meanwhile, the court structure can be dealt ilhout revising the jurisdiction and if .found desirable some n might be made in the future. r fore, the jurisdiction of the court will be the same as its l jurisdiction, although some minor changes (such as elimina- f references to courts to be abolished) have been made. It now, i·eview the facts and the law in cases where the j udg- ie of death, and in .auch cases the appeal may be taken directly lhc court of original jurisdiction. In other criminal caset;;, the :.i ~ ~; ~· ~· t~,.,:-. g f! i r,; ! l . ' ~~ I: !r,~ ,., I' ~ l !, ~ f& IV" I ~ I; ~- I I ' ~ ~ ~ < ~ , I· 36 JH'e!:leJlt provunons of the .Judiciary Art.id(' anowing appealR rr1 the Ap1wllate Divi~ion or otherwise as Uw Lt1i.dslatun1 may prm: will remain unchanged. in civil c:asc8 the jurisdiction of Uw Court or Appeals continued unchanged. At. prel5ent the Court of A]Jpeals may re,·iew que8lions of ft; as well us of law where the :\ mwllatc f>iyision 011 rever:- i Il l' mo. '~ ~ a separate panel of judges in each, and with a Presiding JudK1· the chief adminjstrative judge of the Department. j (b) Composition. The Appeliate Division in the First and ~1 '('i~ Departments will consist of seven judges. The Appellate Divis i1111 "f the Third and Fourth Departmeuts will consist of five judg<'~'. It has become customary in the past few years .for Lhc Ap1 11·ll!ll Division benches in some Departments to be expa11ded from t.i11 11• I time by temporary designations of Supreme Court Justices tt.1 ~• t . the Appellate Division. Thus, in the First Department eight j 1ul~ 37 on occasion served in the Appellate Division. while in the I nd Fourth Departments six have so served. \lthough the 1 Departments sometimes do need more judicial manpower Appellate Division the Commission has concluded that the r fixed in the Constitution for each Department is correct t t the occasional emergency need for acldilional judicial man- mny be taken care of, as now, by temporary c aR it iR at present. 1)ru 'nt constitutional provision rclaLing to lhc ju dsdjction Appellate Division states simply thnt it shall have such nnl or appellate jurisdiction as is now or may hereafter be rlb d by law." By this language any gl'ant of jurisdiction by the Legislature becomes fixed as a constitutional fTant of Ii has been held that this language of the Constitution makes Kl ible for lhe Legislature to reduce lhe jurhtcliclion of the I te Division in any way, but that its jurisdiction mu.y only n n~ed. In order to assure the idependcnce of the Appellate on it wa$ decided to continue to protect the jul'isower. TJic Supreme Court Organization. The Supreme Court will be continued as it is single state-wide ti·ial court of broad jurisdiction. The pres- r nization, however, is on the basis of Len J un are fully developed at page 66. P aer to understand the concept of the Commission with rela- l the jurisdiction which will actually be exercised by the Court in the new court system, it is necessary to deal a ~ly with that portion of the State outside New York City, the five counties within the City. ( I) Jurisdiction w be exercised in the 57 counties of the eight Judicial Districts outside New York City. Commission's plan is that the Supreme Court outside New k t 'ity will be primarily a civil court, as it is now. It will deal •ouity cases and all cases in which a11 a.mount more than 00 is involved (except that in certain larger counties the mone- jurtsdiction of the County Court may be increased to $10,000). P. upreme Court will also, as stated, handle aH cases involving m against the State, the great bulk o:f which~ as a. practical , arise in the counties outside New York City. In addition · 1preme Court will, through its power to transfer any case to 1r handle certain cases which might ordinarily be trjed in the ti Y Court but because of the novel or important questions in- may need Supreme Court determination to insure the proper istration of justice. It will also handle the trial of such of the t n: onial matters---divorce, separation, annulment and dissolu- 1 (I f marriage-as are transferred to the Supreme Court from unty Court. Finally, the appellate terms of the Supreme url in counttes outside the City will handle all appeals from the 44 Magistrate's Court, and from t hose types of cases in the ( •IU Court which will not be appealable to the Appellate Division. (2) Jurisdiction to be exercised in the five counties in the I Judicial Districts in New York City. The Sup1·eme Court in New York City will, of course, exerci jurisdiction stated above-that is, all civil cases involving mot t $10,000, such claims against the State as arise in New York 1 I novel and important matters transferred to it, and those . from the General Court of t:1e City of New York which are l dealt with in appellate terms. In addition jurisdiction over four ) of matters which are not to be dealt with in the Supreme t elsewhere will be handled in that court in New York City. The matters affectjng youths covered by the 1956 Youth Co Act as well as aJl criminal cases which are prosecuted by indic1 -the present jurisdiction of the Court of General Sessions o York County and the County Courts of Bronx, Kings, Quee11 ft Richmond-wilJ be handled b y the Supreme Court in the f lu Those courts will pass out of separate existence and their jud personnel and cases will be absorbed into the Supreme Court. All matters affecting the administration of decedents' esU-' probate of wills and so on-the present jurisdiction of the S• gate's Court in each coun ty-will be handled in the future surrogate's division of t he ~upreme Court. 'l'hose courts will , out of separate existen~e and the sitting Surrogates, personn l cases will be absorbed in the Supreme Court. The skilled pe1 ~ '" wil), of cou.rse, cont inue to serve in the surrogate's division i 1 I future. Some considerat ions in connection with the handhrt surrogates' matters are discussed in a later section of this R 1 at page 70. Finally, all matters which affect the family relationship and ·l dren will be handled in a family part of the Supreme Court. l' field includes at least the f olJowing matters: protection, treat• 1 cusLody, commitment and guardianship of minors; divorce, , 11 ment, separation and dissolution of marriage; domestic con H tion between spouses; relinquishment or termination of par n rights, adoption, paternity, assault between spouses and be1 parent and child, support of dependents, and commission of c crimes against children. A discussion of the considerations . t led to this disposition of these matters is found in a separate t 'Ct of this Report at page 85. These matters are now, of c1 u within the jurisdiction of several other courts, including the '"'1 m gate's Court, the City Magistrates' Courts, the Court of 81 Sessions and the Domestic Relations Court. The purpose of b1 1 ing all these matters into the Supreme Court in New York Ci to put an end to the shocking fragmentation of jurisdiction matter s affect1ng children and families which is one of the conspicuous faults of the present court system. A discussio 1 particular matters with reference to the present judges of Domestic Relations Court will be found at page 73. 45 Supreme Court in New York City will not have power to er to the General Court any case involving claims against lnte, or, in addition crimes prosecuted by indi<:tment, proba1e t r , matters affecting youths covered by th<' 195<.i Youth Court r children and family matters, and the Leghdalu1·e may make r provisions limiting transfer of cases from the Supreme Court r courts. h • Commission's plan has obviously ma.de a sharp distinction i. on New York City and the balance of lhe State in connection h the matters which will be dealt with in the Su1n·eme Court. ny reasons for this were p1·essed upon the Commission at public rh1gs throughout the State as well aR in many pl'ivaf e hearings J nfero.nces. All seem to agree that in mnny iust.n11ceH Lhr prob- of New York City are unlike thoRc of the balance of the State, t ugh problems exist in a ll a1·eaR. The l'CttHOnH fo1· ihc diffeTent dling of children and family matters is discussed al length in t>Ortion of this Report devoted to ihose subjects. I h i·eason for the difference as to the handling of probate mat- and the higher criminal matters are largely ba~ecl 011 (1) geog- y, (2) finances, and (3) local habit and custom. It was felt l the criminal and probate matters in areas out~ide New York should be dealt with no further from the people Lhan the county l, that the presence of a judge to deal with thcHe matters in h county 011 a full-time basis was ncccs:;;ur~. that the J udiciaJ trict was too large an area for the election of such judges and t a judge who is resident in the count) is 1 equired to deal mptly with such matters. On the other hand, in New York City ography present.s no problem, the Sup1 emc Court is as much a 11 court ns are the Surrogates' and Couu ly CourtH, ancJ i;o no lt r of area or distance indicates a need lo keep lhose matters l of the Supreme Court. Ag~in, out1:>ide New York City the S upreme Court ,J u~lires' saln- are substantially higher than those of Coun ly .J udgcs and Rur- 1tes (with very rare exceptions) and the expense involved in the n fer of such a caseload to the Supreme Court with the increase Supreme Court judges which would be thu~ ncceRsitntcd would be ·nl. On the other hand, in New York City the judges of these urts nre presently paid the same salary as Supreme C'oui t Justices the City, with the exception of the Surrogate of H1chmo11d County o receives a slightly smaller salary, but, with the addition of a nnH special payment made by the State to Surrogntes for estate x work, he receives a total equal to Umt of the others. There is hu uo great financial difference arising out of salaries for the ndling of these matters transferred to the Supreme Court in the lly. Ji1inally, outside New York City the Supreme Court enjoys a Lnturc and prestige nol approached l>y any of I he ot.her courts in th area. This arises in part from the financial diff crcmc<' and the I rge geographical area served, but is also a m:iLtcr of lhc tradj- lJooaUy high regard th3.t lawyers and laymen have for Supreme 46 Court J ustices. In the City of New York the high prestige of ~ Supreme Court Justices is shared to a. large extent by the S n gates and by the Judges of the Court of General Sessions and l County Courts, partially because of the lack of significant sala1 geographical differences, and partly because of the custom and of the area. The candidates for Surrogate are frequently sel l from among the Supreme Court Justices or at times from Ge Sessions or County Court judges, and there is much more eq1 ii of prestige among them than exists in areas outside New York In addition attorneys outside New York City are accustomed rotation of Supreme Court Justices for trials of civil cases, •b probate and criminal matters are tried before judges who are dent in the respective counties. This djfferent handling of Lhe City and the rest of the St the Supreme Court and the fact that New York City cove counties has, of course, required a. differeni treatment of the 1 n trial court in the fifty-seven counties outside the City. This wa3 lined to some extent in the Commission's 1956 Report and ha been crystallized by the proposal that there be created two se courts immediately below the level of the Supreme Court- County Court to be organized in each of the counties outside York City and a comparable court, the General Court of the • } New York, to be a city-wide court covering the five counties t l The details of those courts will appear jn the sections of this 1 which are devoted to those courts. (d) Transition. The transition from the present system lo new system as it relates to the Supreme Cow·t presents no problems. The court will be a continuation of the present Sui> Court. All t he present J ustices of the Supreme Court will .., judges of the new Supreme Court, and, as vacancies occur du death, resignation, retirement or expiration of term, their sur· e will be elected in due course. In addition, the present judges of Court of General Sessions of New York County, the County of Bronx, Kings, Queens and Richmond, and the Surrogates r five counties in New York City, will become judges of the S l Cour t in the new system and, as vacancies occur, their sue"' will be elect ed by the voters of the Judicial Districts concerned. The judges of t he Court of Claims will become judges o! Supreme Court in the new system, but due to the faet that, u1 the other judges who are elected by the people for fourte 1 l terms, the Court of Claims judges are appointed by the Go '<' for nine-year terms, a different treatment when vacancies < c necessary. Since appointments by the Governor are not in , l) allocable to J udicial Districts the Commission has determin as soon as possible these eight judgeships should be allowed appear, and that if additional Supreme Court judgeships u necessary that need ca.n be taken care of by the creation o( tional positions in Judicial Districts where necessary. In o d r avoid any unfairness to the sitting judges of the Court of "'' the Commission's plan provides that the present incumbe1 Lit 47 iUnue to serve as judges of the Supreme Court until expiration lerm. death, resignation or retirement at age seventy. The Com- sion also has determined that in the event the term of an incum- nt at the date of transition expires before he reaches age seventy, Governor shall have the right to reappoint him for successive rma until his retirement age is reached. But if the incumbent is t reappointed, no vacancy will occur and the position will dis- l>t!1 i· as it will at any death, resignation or retirement. 6. The County Gou.rt {a) Organization. The County Court which the Commission's an contemplates will, like the Supreme Court, be a state-wide court L it will be organized on the basis of counties and there will be least one County Court judge in each county. The County Court Ill, however, be organized only in the 57 counties outside the City • ew York, while the comparable court for the five counties in the l~ will be the General Court of the City of New York. For the r11oses <>f organization of the County Court, F'ulton and Hamilton rnties will be treated as one, as they are in other matters of state ornment. Each eounty of the State will be a district of the state- d County Court and the Legislature will have the power to nte additional districts of the County Court within the counties necessary. The Commission contemplates that perhaps no such lier districts wouJd be created, but the flexibility provided in plan would permit the creation oi districts which might, for mple, separately embrace some of the larger cities within up- t · counties. In any case, the Commission's plan contemplates that County urt. judges will from time to time hold court in communities other u the eounty seat. The court room facilities may in some places unt problemst but most towns now have adequate public buHd· 11 and future developments can be made in recognition of the d of the new court system. b) Cornposition. Each district of the County Court, and hence h county, will have at least one judge of the County Court who U be elected by the voters of the district. If a district smaller n a county were created, the judge elected from such a. district II nevertheless be a regular County Cou1·t judge of the county of .residence and will serve in the County Cou1·t on the same basis Judges elected from the county-wide district. There will, of course, more than one judge in many counties, since the new County urt will consolidate the present County Coui·t, Sunogate's Court nd Children's Court and absorb some of the wo~rk of the Supreme u1 L and that of loeal inferior courta. number of judges of the County Court in each county will ed by the Legislature. However, the Commission has devised L gestcd schedule of the number which might be required in h county. This schedule appears as Appendix B to this Report. h number suggested for each county, while only an estimate sub- L to further consjderation, is based on a careful calculation of 48 the judicial workload that each county may be expected to have :au l the amount of judicial manpower which will be i·equired to disr11 of such a workload. Factors which have bQen considf.lred in ma 1 this estimate are the prest'nt population and e~timates for future, the present judicial wol'kload as reflected in the statis prepared by the Judicial Conference as well as the trend o:f wol'l whether they are at present full-time judges or part-time j..id permitted to practice law. Each judge who accepts a position County Court judge in the new system will be prohibited from., ticing law and will be paid on a full-time basis. In addition judges of all county-wide courts, the judges of the District t of Nassau County and of those courts in cities where judgt :full-time officers n-0t permitted to practice law, will be taken the new system as judges of the County Court. The judges of courts in cities who are not full-time officer who are permitted to practice law at present will not be taken the new system and their terms will expire, as will those of S• County Judges and Special Surrogates who are not aJso Chil~ Court Judges, village Police Justices and Justices of the However, in many of the counties of the State whe1·e there judges of city courts who will not be merged into the news ·s as we11 as in many other counties, there will be vacancies in County Court due to the fact that the estimated number of jud required exceeds the number of judges to be taken into th court. There will, therefore, be a number of vacancies to be 1 by election, and the judges of city courts or other judges not 1 fe1·red to the new system will be natural candidates to compe such vacancies. The effect of the transition on each county • n seen in the table attached to this Report as Appendix: B. There will be .seven counties in the State (Clinton, Co1um Fulton-Hamilton, Montgomery, Otsego, Warren and Washi ... 1 where the number of judges merged into the new system will with provision \\ 1en such a judge is for the first time elected by the voters c in the new system he will receive the salary at the scale 11 hed for counties of that size. Thus the balance of his present would be served at his present or somewhat higher sa.1aryi, and 11 w term would commence at the regular salary. The Magistrate's Court ) Organization. The Magistrate's Court is discussed at this l ince in the Commission>s plan it is to be organized as an 11c to the County Court, particularly designed to complement eou ;. in dealing with minor criminal and civil matte1·s in rural The blunt facts of geography and small numbers of attorneys r .m large areas of the State require the only deviation from ,J the basic objectives of the Commission's plan, i.e., staffing of 1 •• · s by full-time judges who are trained in the law. J1 C ammission is convinced that the system of County Court lready described must be supplemented in many areas of c mnties. It therefore proposes the Magistrate's Court where ed. Further, it suggests that magistrates be not requil·ed to be rn s nor be required to be full-time judicial officers. To that th1 Commission's plan makes possible one magistrate in each 1 o city with a possibility of one additional if the population d be over 25,000. The Commission strongly urges that towns t · •s combine into distri.cts so that the magistrate's position b reasonably busy and thus attractive to attorneys. It also, c to further consideration, urges that no city or town having f u .1tion in excess of 50,000 be permitted to have a Magistrate. h · populated areas as well as in the City of New York the a .f the higher courts can take care of all the judicial business. lly, the Commission suggests that the Legislature have power 52 to regulate and discontinue the Magistrate's Court in any similar to its present power over local inferior courts. Thu Legislature may take action where it becomes apparent thnt part-time, non-lawyer magistr ate is; jnadequate to the judicial t ness and a full-time County Court judge is desirable. A more extended discussion of the considerations relating to establl shment oi Magistrates' Courts appeal's at page 78 ' I Report, wilh particular r eference to their establishment in l and cities of over 50,000 population. (b ) Composition. Magistrates will be chosen by election fr• 1 area served and for four-year terms. The numbers are, of c 1 :fixed ai one for each of the slightly less than 1,000 cities or o except for those few which exceed 25,000 population as to I a second magistrate may be permitted by the Legislature, and except for such towns or cities as may combine into single dis r The magistrates will not be required to be lawyers, but if th1 not they will be required to complete a course of trainill scribed by the Legislature subsequent to their election but l to bei11g permitted to assume ofliee. They will be permitted to l n in other business 01· activity and if lawyers they may practi • with appropriate safeguatds. Vacancies in the office of mM r lt will be filled until the next election by appointment by the T Board or City Mayor except as to districts composed of mo1• l one town or city in which cases vacancies will be filled by al 1 ment by the County Board of Supervisors. (c) Jurisdiction. The Commission was persuaded from its stu and the ·testimony at public and private hearings, that it was 11 saxy to continue a local magistrate in areas outside New City. It was also convinced that the present Justice Courts ineffective in some respects and could be greatly improved. improvement was particularly to be desired in the field of t1 cases, in improvement of the stature and t1·aining of magis and in reducing the numbers. The Commission was impressed •'/ fact that almost all present justices who testified before it w agreement that those improvements should and could be mRd primary goal to be reached was to have all cases which requ a trial to be tried by a judge who is a member of the bar. Ho\\ it wa2 demonstrab.ly impossjble, because of lack of lawyers in areas, as well as impractical from the point of view of volum business, geographical area and so on, to require that all magis' be lawyers. Therefore, as elsewhere stated, it was determined alternative to reduce to a minimum the trial of cases in the trate's Court but to leave the Legislature power to vest the • with jurisdiction to deal with many matters which would not n .;ill a trial. The jurisdiction given the Magistrate's Court is in keeping its purpose-that it is to serve outlying and rural al·eas l sessions of the County Coul't would not be held continuously r very frequent intervals. In these circumstances the adminh.tr{ t of justice can best be furthered by giving to the Magistrate's C-0 53 n over minor matters which can be handled expeditiously t require calling in the full machinery of the County Court. gistrates will perform the traclitional arraignment fu uc- th t office, issue warrants, hold preliminary examinations, nd perform all the other pre-trial functions now per formed lrntes in criminal matters. tlon, the Legislature will be empower ed to confer upon the l 's Court power to hear and determine cases involving fractions, violations of State or local ordinances and i·egu- uch a::; i·egulatfons of the Health DcpartmcuL, and other n of Jaw of a grade of less than misdemeanor, such as dis- conduet. 'frials in such cases will be held by Lhu magistrates n ent of the defendant, and if such consent is uot A'ivcn the 11 be automatically transfened to the County Court for trial. civil jurh;diction, the Legislatur e is empowered to }Jr ovide s in which no more than $1,000 is involved may be in i- 11 the Magistrate's Court. lf the caHe i~ 11ot ciisposed of by ut, default judgment or other disposition before t r ial t he mte may try the case on consent of the partic~, or, if such t i not given, transfer it to the County Court for trial. T he lure c.an reduce the $1,000 limitation to a smaller figu r e a~ it powers in the :Magistrate's Court will permit magistrates tlnue to act, as they do today, as local arbiter:-;, settling lbe r tte1·s which do not require a full trial. to the t>atisfaction J rties, and also providing for p1ornpt action in minor cr imi- ttcrs. 'l'he grant of judicial powe1· to the magistrates has hccn Oe.'Lra.le's is designed to make possible the best !!ort of teamwork be- that court and the County Court. Thi~ will insure that smalJ l nd criminal cases will be handled expeditiously and cffec- ) and that when trials are requited, except where there is nt to trial before a magistrate, that the trial will be before a ly Court judge who is, of course, required to be a member of r. 'fhe reduction in numbers of magistrates and the training Ired will all contribute toward the increase in stature of that so that it can render the maximum service in each county. d) Transition. As has been noted, no present magh;trates- t1ces of the Peace, village Police Ju1tiC'.CS or city judges in ci lics nre not full-time judges-will be taken over as magistl'ates in new system. All the posts created will be filled by election after npproval of the revised Judiciary Artic le by the people. Of 1 t:, pre~ent Magistrates and J ustices wilJ be logical candidates r the posiUon, especially those who have been act.ivc Justices as mpnred with the great number who a rc inactive and seldom per- 54 form judicial functions. The terms of present Justices will noL continued after the effective date and all the judicial functio• those offices will, of course, terminate at that time. While tlu r seem to be an arbitrary treatment of the present incumbents offices of Justice of the Peace and village Police Justice, it mn pointed out that of the 3,048 Justices in office during the yea1 l less than 50 cases were handled in that year by each of 1,990 (I Justices, and, in fact, 749 Justices handled no cases at all. Obvi1 1 those Justices who have been making a genuine contribution , administration of justice will have a real opportunity to ser the improved and strengthened Magistrate's Court provided · >r the Commission's plan. 7. The General Court of the City of New Yorlc (a) Organization. The General Court is conceived of i 1 Commission's plan as a trial court for New York City som comparable to the County Court in counties outside the City. 't be organized on a city-wide basis but with a system of distrir order to provide for an allocation of judges of the court amo1 · five counties in the City. The districts will be not larger t t county and may be smaller, perhaps, for example, present State · torial districts. The court may be organized into two major I sions-a civil division to succeed the present City Cout · Municipal Court of the City of New York, and a criminal di rl to succeed the present Court of Special Sessions and City ,.~ trate's Courts of the City of New York. As in the Supreme r: and the County Court outside New York City, there will be ,,ti divisions of the court created to deal with particular speci; 11 matters as may be necessary. Some of these may be a small • I division, an arraignment part, and so on. (b) Com.position. As with the County Court the number of j 1 in each district of the General Court will be fixed by the Legisl 1\1 As to the method of selection of these judges three alternatives -all could be elected, all could be appointed, or the judges civil division could be elected and the judges of the criminal di could be appointed by the Mayor, thus preserving the metlt CJI selection which are cm·rently in effect in the courts which a c placed by the General Court. A detailed discussion of the UT ence of opinion within the Commission as to the best meth ld providing for the selection of judges for the General Court of City of New York will be found at page 80 with three po tsl methods set forth. All judges of the General Court will be subject to the rr tt t tions, qualifications and other provisions which affect all jud the new system. They wiH be prohibited from practicing law, nt be members of the bar at least ten years, and must retire at th \ of seventy. They will serve for terms of ten years' duration, any judge of the court may be assigned to serve in any division may be necessary. 55 Jurisdiction. As has been indicated before, the General Court usolidation of four existing city-wide courts-the Court of I Sessions and the City Magistrates' Courts, and the City nd Municipal Court. Its jurisdiction will be somewhat the the jurisdiction now encompassed by those four COUl'ts that matters affecting the family relationship or children now find their way into those courts will, in the future, be .ith in the Supreme Court. The General Court will handle lt rs which arise within the City of New York which are not the jurisdiction to be exercised by the Supreme Court. Ii will Jurisdiction over all criminal matters except those prosecuted I ctment. It will have civil jurisdiction oVel' all mattel'S involv- than $10,000 and the recovery of chattels to the same l. It will also have jurisdiction over all landlord and tenant , hicluding actions for the recovery of real prope1ty and the n of tenants, foreclosure of mechanics liens and liens on nul property. As will the County CourL, i t will hnve such ble jurisdiction as may be provided by the Legislature, which mmission's plan contemplates will be broad enough to permit )osition of parties' rights involved in or issues raised in any ithin the j urisdietion of the court. In addition, its power to Judgment on a counterclaim will, as in the present City Court, 1hmited as to amount. Legislature is empowered to provide that the trial of mis- nors or offenses of a grade le~s than misdemeanor may be Judge without a jury or by a panel of three judges and that )' provide that the jury in any case may be composed of six Lwelve persons. This will permit the continuation of procedures In effect in the present courts in the City if desirable. ) 7'rans-ition. There are some problems in connection with the ltion from the old to the new system in connection with the l Court. Most of them a1·e the practical ones of merging Iurictioning, full.time courts with separate organizations and nh;trations into one. The Commission's plan is that all the and magistrates of the p1·e~ent City Court, Municipal Court, rL of Special Sessions and l\Iagistrates' Courts will be transferred ltecome judges of the General Court of the City of New York l transition date. If both the elective and appointive methods 1 tion of judges are carried on the judges of the two present courts \Vou1d become the judges of the civil division, and the of the two present criminal courts would become judges of rjminal division. The creation of vacancies by the death, resig- n, retirement or expiration of term of any judge would be rn the same manner as the original method of selecLio11 of the unbent ceasing to serve. The non-judicial personnel of the courts of course, be utilized in the General Court as may be found t desirable, and, obviously, specially skilled or trained personnel l be continued in an appropriate part of the court. he physical aspects of a merger of courts of this magnitude are y. At the outset the General Court will necessarily carry on 56 ~· its .functions in separate court houses in the five counties of Un Q In addition, a separate housing of the criminal and civil di ~ wlll continue to a great extent. On the other hand, in the 1 u the court may be more and more consolidated physically as • I jurisdictionally. For example, at present plans are under W& the construction of a single court house to house the Manl t pottions of both the City and Municipal Courts. This is prL planned to be e1·ected directly across the street from the p Criminal Court Building. Obviously, this can be carried fo1 in the future with the view of providing, at the very least, cu ' dated physical facilities for the civil division of the General ' in close proximity to the criminal division. As plans for new houses are developed in the future, these factors of court ho can be met in recognition of the creation of the new court S'i l 8. Judges- Qualifications, restrict-ions, vacancies, removal, '' t ment, compensation, and tempo1·a111 assignments As the foregoing sections have indicated, all the judges and istrates of the courts in the Commission's plan will be elect• the voters of t1rn area concerned, with but two exceptions. Ju of the Appellate Division will be designated from among the ju of the Supreme Court, and the Commission's recommendation r be that judges of the criminal division of the General Cm l the City of New York will be appointed by the Mayor. Judr the Court of Appeals and tlJ.e Supreme Court will be elect1 fourteen-year terms, judges of the County Court and General ( will serve for ten-year terms, and magistrates will have four terms. There are a number of other features of the Commi. I plan which apply to judges generally which are discussed belo_..• (a) Qualifications. In order to qualify to serve as a juo any court, membership in the bar of New York State for years is required. At present there is no requirement as to of membership in the bar in order to be a judge of most of l courts. For example, in theory a lawyer may be elected to the t of Appeals iromediate1y upon his admission to the bar. On the• hand, some courts have requirements such as that of the Cat• Special Sessions of the City of New York that to become a i11d of that court one must have been a member of the bar for ten ~ It seems sound as a general principle to make a reasonably I l period at the bar a requirement for ascending the bench. l\f trates are not required to be lawyers, but a training prograi t them is required to be prescribed by the Legislature. (b) Restrictions. The Commission's plan provides that no j11 I may practice law, hold other public office, be a candidate fo office other than judicial office without resigning his judicial r 1 or hold office in any political organization. In addition it is pro. that judges may not engage in any other profession or busi . which interferes with full-time performance of judicial dutit: would require frequent disqualification in cases. This would a judge to bo an officer of a corporation, for example, as long 57 did such work as it required without interfering with his full- judicial functions. The enforcement of this rule would be u h the Judicial Conference or Court on the Judiciary. i trates may not hold other public office, he a candidate for I c office other than judicial, or hold office in any political organi- n. Magistrates may, of course, engage in other business and "~ ers may practice law but they are not permitted to have tive or legislative duties and powers. The put pose of th is pro- ll is to insure that magistrate~ will not. be made mcrnl.>Prs of 11 Boards while serving as magistraLe::t ) Vacancies. Vacancies in the Court of Appeals, Supreme 1rL and CounLy Court will be filJed until elections much as t hey loclay. If the vacancy occurs more than two months before an lion it will be filled until the end of December aft er the election p11ointment by the Governor and, if the Senate is in session , t its advice and consent. As to the General Cou1 l of the Ci ty w York, !-tuch vacancies will instead be fill ed by nppointment h Mayor. Vacancies in the post of magist ral<' will be filled by mtment of Town Boards or the mayors of cities, or, if a magis- district embraces more than one town or city, by the County rd of Supervisors. I Rrmwval. The removal of judge~ can, as uow. he hroug-hi l by action of the Court on the Judiciary which is continued the present Constitution. In addition judges may, as now, be \ d by impeachment. A third method of removing judges of C'ourt of Appeals and the Supreme Court--<:oncurrent resolution o-thirds of each House of the Legislature-has been continued ugh it seems that two methodi:> (ihe Court on the Judiciary, hn r>eachment) might be sufficient. /lcti1·ement. Each judge and magistrntc shal l rctil·c on De- b 1r !Hst of the year in which he reaches the age of seve1Jty. vc r, any judge, if the need for his ~crviccs uncl his physical mental ability to serve are certified to by the J uclicial Confe1·- mny continue to serve for one-year terms, renewable until age ul:y-five, a.t which time all service will cease. J ls provision of the Commission's plau is designed to give the i l system the benefit, in times of need, of continuing service udges who are qualified to continue in service past the age of ly. The present judicial anomaly-the Official Referee-has been nnted. The concept that at the age of seventy a judge, although ltted to work, should be paid a reduced salary and given less the complete powers of a judge, seemed to the Commission to ncongruous. It was concluded that if the need of the services " r tired judge exists, and if the Judicial Conference certifies his ability to perform the duties of office, he should serve with irdinary powers and compensation of a judge of the court from h he i·etircd, and with the title of retired judge. Such a retired may be a:Jsigned to serve by the Appellate Division of the 1 lment of his residencet but his service will coasc in ~ny case lhc age of seventy-five. The purpose of Lhis Hual limit is to 58 prevent the judicial system from relying too heavily on the tinuing service of retired judges as workload increases, an• encourage the more realistic solution of manpower needs by creation of additional judgeships, if they are needed 011 a long· basis. (f) Compensation. The Comrrtission's plan p1·ovides, as now. ti the compensation of a judge, retired judge or magistrate ma be decreased during his term of office. The compensation will all cases fixed by the Legislature, and in this connection it ml pointed out that a proper pension plan for retired judges must be worked out. (g) Ternpora1·y Assignments. As is now the case with re t to the Supreme Court, judges of the Supreme Coutt, the Cou Court and the General Court may be temporarily assigned l y Appellate Division to serve in any county. Judges of the r.o Court and General Court may be assigJ1ed to serve in those o in any county and in the Supreme Court in the Judicial Deparl 1 of theil• iesidence. No provision has been made in the Commission's p1an fo1 separate election of specialist judges to serve in the special sions of the courts which deal with what are ordinarily re as specialized mattel's. This applies particularly to the judges of surrogates' divisions which will succeed to the work of the u gates' Courts, and the judges of the :family part which will sue to the w01·k of1 among others, the present Children's Cou ·ts Domestic Relations Court of the City of New York. 'rhe ( omr sion believes it to be a principle of sound judicial administt that !'lpe:.:iaJization of judges is desirable when the volume f one specialty justifies it. It believes, however, that that speciali is best developed by the use of judges of broad general qu J tions who will acquire expertness when assigned to special Therefore, the decision of the Commission was that those divisions of lhe courts wet e to be staffed by judges assigned b) Appellate Division from among the judges regularly elected t court concerned. This was not a unanimous decision of the mission, nor were the considerations as to different courts t and further discussion of these matters will be found at page 7 The purpose of a11 the provisio11s in the Commission's pln:u provide the courts with a body of gznera1ly quaJifted judges ~ ability and experience can be utilized in the divisions of the for whi~h they are best suited. The Commission believes t 1u pu1·pose can best be achieved through assignments made b Appellate Division in those courts and areas where volume Jf and number of judges make specialization app1·opriate and a h:I 9. Administration of the Courts The Commis~ion's plan makes major changes in the organ{ and structure of the courts. The unified system created, in would bring about a great improvement in the administ.'n f justice, merely by its simplification of many phases of tho 59 h ir procedures. One of the most impo1'tant features in the Jssion's plan, however, is the vesting, by Constitutional pro- • of general administrative power over the courts in the J Conference. Through this the entire judici:u y can be op- t in the most effective mannei-, with the Judicial Conference. d of judges, vested with the power and the re~ponsibility king the whole court system function to the best advantage. r is no need to discuss again the advantages to the court m to be derived from a sound administrative organization lmve been discussed elsewhere in this and othe1· Rcpo1is of mmission, and indeed they are self-evident. The Commission, commending the creation of the Judicinl Coufcre11ce, did so th conviction that such an organizaLion would make a great lmtion to the administration of our present court system, and th further belief that the Conference would orcupy a key on in the modern court system in the future. tb Commission's plan it is provided that the .Judicial Con- will have general administrative authority over aU courts. II have the powers and duties given it by the Legislature, and n be empowered to delegate those powers a.· seems most de- J , subject to the provisions of law. The Conference will be cd of the Chief Judge of the Court of Appeals a~ Chafrman, four Presiding Judges of the Appellate Division and such other ns may be provided by law. The Commigsion contemplates the other judges might be representatives of the Supreme , as are now included in the Conference, and in addition repre· t1vcs of the County and General Courts. In any cuse, the ad· trntion of the courts will be placed in the handd of the judges hould be most able and effective in carrying out the respon- lltlcs vested in the Conference. J1 Commission determined that a completely centralized admin- tion of all the details of the courts in a State as populous and r c as New York is neither practical nor to administer the courts vested by the Constitution in the Ju I Conference brings this essential element Lo completion. The t • of the State will thus be equipped with the power and the or zation to administer themselves. This will insure that the 1 effective use of the judges w.ill be made, the personnel will b tematically chosen, trained, compensated and employed, and all details of administration will be organized with regard to th~ cient operation of the entire judicial system. 10. Procedure of the Courts The Commission's plan relating to cou1·t structure has bei •L veloped with the knowledge that the Commissfon's Advisory • mittee on Practice and Procedure js presently engaged in a tho study, revision and simplification of the present rules and st of practice and procedure. This revision will, of course, a developed, be adaptable to the court organization recommenc the Commission, with such variations between the courts and of the State as well as such general uniformity as may be des It is planned that the Legislature wiU continue to have its pr power to regulate practice and procedure but that it may d 1 such power to a court or to the Judicial Conference. In ad individual court::; are granted the power to make rules cot with the general practice and procedure in order to prese} power to make local rules which is now inherent in each com l The Legislature will have power to delegate the problem f tinuing revision and refinement of practice and procedure to c or the Judicial Conference. The question will be presented, \\ any revised practice code is submitted to the Legislature for I tion, whethe1· it will determine to delegate that wo1'k to the J, 1 Conference in the future. The conc.lusion of the Commissio11 visory Committee as to what is desirable in this field will, of be availab1e for guidance at that time. 11. The Cost of the Courts The Commission's plan is that the cost of all the courts in new sysiem shall, in the first instance, be borne by the Sta that the Legislature may provide for the reimbursement ot appropriate part of this expense by the counties, the City of N York or other political subdivisions. The purpose is to make 1 • for the first time in this State the preparation of a separate 61 h entire judicial system so that a comprehensive plan of financ- 1 a expenditure can be put into effect. hlle the details of financing have not yet been worked out, it \•isaged that the Judicial Conference would be charged with rrng the budget for all the courts and that the Stale would h the funds to execute the budget. The various counties and l ork City ·would then be called upon to repay to the Stale a. 11tial part of the cost of financing the County Courts, the l Cou1·t and the Supreme Court, which cost would be about nmc as the counties and the City pay today. The towns and would bear the cost of the .Magistrate's Court. The State hl bear tho expense of the Court of Appeals a11cl the Appellate I ion and a portion of the expense of the Su1u·eme Court, the nty Cou1·t and the General Court. lthough in the last analysis i t is the taxpayer who pays the of the courts, it is still of i mportancc which political sub- Ion makes the expenditure, since an increase in a county's nse will necessitate either an increase in county revenues or a Lion in other expenditu1·es. The adjustments which will have made in the financing of the new system are man). It is im- nt, however. to keep in mind that the resul L of the new system be a more effective, efficient and economic judicial structu1·e. public will receive better judicial service and each dollar spent be used to the fullest advantage through a t;late-\'\ icle and rated budget system. The legislation which will l>e needed to I mcnt this provision, as well as all the legislation establishing b rs of judges and personnel, their sala.ril·:; and court facilities rully, will l>e drafted before the final passage of the constitu- 111 Article . .Appropriate consideration must, of cou1·se, be given I h • principles of local authority with respect to financeH and other I n1atters. 1L is the Commission's conviction that the improvecl finallcing of coUl·t i;ystem that is made possible hy Lhe unified courL system nc of the major benefits to be attained from a modern court icture. It will eliminate many present inconsrruities such as the tu1·bing spectacle of the county level judiciary waiting upon local ropriating authorities to plead for adcqunle salaries and court ropriations, and the equally disturbing situation of some of the rts in New York City which by mandate dictate their financial JU ts completely unconcerned with all the fiscal problems of the ) government. J2. The 7'tansition to the New Courts The transition to the new system is provided for in the Commis- n's plan. Some of the featu1·cs of that transition have been 1ehed on in the sections relating to the individual courts. The urt to be continued are the Court of Appeals, Appellate Division, upr · me Court and County Court. Those to pass ou L of existence r ihe Court of Claims, Sun-ogates' Courts, Children's Courts, oua t of General Sessions of the County of New York, the County 62 Court of Bronx, Kings, Queens and Richmond, the City Co Jrl. Municipal Court, Domestic Relations Court. Court of Special ' sioos and City Magistrates' Courts of the City of New York, 1 Distxict Court of Nassau County, Justice of the Peace Courts 1 all other local inferior courts. Their records, seals, papers, d u menta and pending cases will be disposed of by deposit in the of! 1 of the appropriate county clexks or, in some cases, the Judi Conf etence. The proposed Judiciary Article provides for the manner in wh appeals will be handled and that the judges and magistrates receive compensation during the transition period to be fixed J the Legislature, in no case less than they receive on the transi ' date. It also gives the Judicial Conference the very necessary pc. to take any action needed between the time the Article is appr \ by the voters in November and its effective date to insure thal I the courts are m·ganjzed and prepared to function at the tra.nsitla date. In addition, the office of Official Referee is aboli$hed and th who are in office on the effective date will continue as such for h balance of the term for which they have been appointed or eerti after which they will be subject to the provisions of the plan rela 1 to i·etired judges. The Commission's plan provides that the effective date of proposed Judiciary Article shall be January 1, 1961-one year 1 two months after the earliest date upon which it could be appr by the voters, November 1959. The present Constitution s: that an amendment to the Constitution becomes effective on ~h first day of January next a:fter its approval by the people. For lh purposes of the discussion here it is assumed that the Article I be passed by the Legislature at its 1957 and 1959 Sessions, ·proved by the people in November 1959 and thus ordinarily w become effective January 1, 1960. Thus, application of the present constitutional provision as effective date would leave a period of about seven or eight we between the time the Judiciary Article is a:pproved and the tim becomes effective. The Commission believes that this brief pe will be too short. Accordingly it is suggested that the effective c of the Article be postponed an additional year. Postponement be a benefit in the following circumstances: In counties where there will be a need for additional judges ot the County Court, an election must be provided for to fill h vacancy. This, of course, is on the assumption that the Legisia will already have passed a bill fixing the number of judges of h County Court which would become effective only if the Article w approved by the people. Such an election can take place in Noven r of 1960 and the courts can start operating .at full strength on h effective date. This need for an election will also exist in the case of mac·i trates, who a.re new officers, and will be accentuated because of h 63 ucntion requirement in the proposed Constitution which must be n1>lied with befo1·e a magistrate can assume office. In addition, while all the legislation for the new court system can d undoubtedly will be dravn1 in advance of approval, the admin- lmtive features of the change-over may well require more than o months for accomplishment. ror these and other mechanical reasons, the Commission decided How an extra year befo1·e the new Article becomes effecti ve. lH was done by providing, as part of the· amendment, that its ctive date is January 1, 1961 and that it amends Section 1 of 1 tide XIX, for the purposes of this amendment only. In this man- t the preparations for the change can be made throughout 1960 d the new court system would start at full sh'ength on the !!Ctive date. Nevertheless the Commission will consider the possibility that the ... system might have an effective date of J anuaty 1, 19GO for all courts other than the County Court and Magistrate's Court lt re elections to vacancies will be needed. This would allow the ucfits of the new system to be realized at ihe earliest possjble t:c, particularly in New York City,