Chief Judge Charles Breitel explaining pending court reforms to New York City judges at a statewide judges conference of continuing education with David Ross (seated) and William Kapelman, circa 1976. Judge Bellacosa is standing behind Chief Judge Breitel.
Chief Judge DiFiore and the Lesson of History
A common wisdom holds that those who fail to learn from history are doomed to repeat it. But are there times when the best outcome would be for history to repeat itself? New Yorkers will soon find out now that Chief Judge Janet DiFiore has undertaken the goal of modernizing, simplifying and consolidating the Rube Goldberg-like structure of New York’s trial courts. Building on her inaugural Excellence Initiative, she brings refreshed energy, endurance, and her characteristic determination to get the job done.
It’s a colossal Sisyphean-like undertaking, as history has shown. While Judge DiFiore’s initiative has garnered strong initial support of the Governor, the State Bar Association, various media editorials, and good government groups, this is an uphill battle that one of her predecessors, Chief Judge Charles D. Breitel, several tenures removed, once wryly described as not a task for the “short-winded.” It seems now that the time is right – the purity of public purpose underlying this long-languishing reform is manifestly in the public interest.
- Consolidate New York’s 11 different trial courts into a three-level structure of Supreme Court, a Municipal Court and Justice Courts serving the state’s towns and villages;
- Preserve the current rules for the selection of judges and the terms of office for all judges of the courts that would be abolished and merged into Supreme Court and Municipal Court;
- Eliminate the centuries-old cap of one judge per 50,000 residents in a Judicial District that limits the number of Supreme Court judgeships that can be established by the Legislature;
- Set a five-year phase in to allow for statutory, regulatory, administrative or other changes that might be deemed necessary.
- And perhaps the tallest mountain of them all – getting the proposed overhaul passed in the Legislature during the 2020 session, passed a second time in 2021, and finally approved by the state’s voters as a State Constitutional amendment.
Past as Prologue
Can this latest initiative succeed? This is where history comes in. This won’t be the first time a chief judge has taken on a worthy challenge. In fact, none other than Chief Judge Breitel is proof that major reforms can be accomplished. And not just major, either, but transformative ones, which Judge Breitel achieved during his time as leader of the third branch of State government. His style and technique formed the blueprints and set in place the building blocks that led to the constituency and operation of the Court of Appeals as we know it today. In a relatively brief five-year tenure, from 1974 to 1978, he also championed fundamental and long-lasting changes in the structure and management of the New York State court system.
In 1973 judges on the Court of Appeals were still being elected, which gave political bosses the backroom power to choose who would be nominated and who would be excluded. Judge Breitel was a survivor of this system, and having prevailed in a bitterly contested statewide election for Chief Judge, he vowed that the elective process for selection of Court of Appeals judges should end and be replaced by an independent apolitical appointive system. True to his pledge, he initiated a successful coalition effort, co-led with Governor Hugh L. Carey, that brought about the required double legislative passage and then a successful constitutional referendum. Among other measures, the new system put in place the nomination and gubernatorial selection process for Court of Appeals Judges that has functioned well for over 40 years. That determined reform attitude and approach are what is required, at long last, to make the trial courts of New York understandable in the service of the people of the State who are entitled to a fair and efficient administration of justice.
As chief executive of the judicial branch, Judge Breitel also coordinated a centralized administration structure to replace the localized fiefdom-like system, and included a statewide funding source. He persuaded the Presiding Justices of the four Appellate Divisions to relinquish, de facto, some of their authority, which was transferred to a centralized management authority under a Chief Administrative Judge (the first person to hold the post being the late Honorable Richard J. Bartlett). Judge Breitel then persuaded the Legislature and the people to enact the overhauled system, de jure. As a third prong of the reform package, he even tucked in the creation of the Commission on Judicial Conduct to replace the dysfunctional Court on the Judiciary.
The “Hot Bench”
Not to be overlooked, Judge Breitel was attentive to his home base (the equally important [some say “more” important] Cardozean jurisprudential role in the dual title of Chief Judge of the Court of Appeals) by improving the internal adjudicative operations of the Court of Appeals. He convinced the six colleagues to alter the appeals-processing methodology to improve quality of their work, induce plenary participation, and gain efficiency. His conversion of the Court to a “hot bench” for oral arguments was substantive, and not just some superficial switchover from the so-called “cold bench.” As part of that shift, he replaced the longstanding internal system of pre-assignment of appeals to individual judges by the Chief Judge and Chief Clerk. Instead of primary responsibility for preparing written reports being designated to one internally known assigned judge, under the new system no one (neither judges nor staff) would know in advance who was to bear the new oral reporting duty at the very next morning’s private Court conferences concerning the appeals of the previous day.
Under the new “hot bench” system, the reporting-duty assignment was to fall to the respective judges only after oral argument, as each judge randomly selected from a batch of index cards with names of the appeals typed on the backs. This technique also stretched the oral engagement with counsel, because judges who did not yet know to whom the case would fall for reporting duty the very next morning would be psychologically nudged to greater participation across the bench and to more attentive listening to all the lawyers’ arguments and to the colleagues’ inquiries in all the appeals.
Judge Breitel’s motivation for this conversion was to encourage all judges to come to conference more invested in all the appeals, with more supple openness to the wider range of wisdom of one another, collegially and collectively. Whimsically, he mused that the collective body of work would benefit when an assigned orally reporting Judge is disincentivized from “falling in love” with their set-down pre-argument written words. Judge Brietel mischievously winked that this process would also keep final voting positions looser and softer rather than solidifying cement-like, as in a “hardening of the categories.” Mixed metaphors aside, the innovative nimbleness of the changes in the operating appeal-management process is still the essential system at the Court of Appeals, installed five Chief Judges ago.
Other Management Reforms
Judge Breitel also installed by internal management direction the conversion of the Court of Appeals to a year-round 52-week operation, rather than the venerable long summer hiatus of built-up delays in the handling the civil motions for leave to appeal and criminal leave applications. Though personally dubious, he showed his combined leadership-collegial colors by acceding to the overtures of the Associate Judges for a pilot project of a small core of Central Legal Research law clerks, initially a pool of three young lawyers to assist the judges (along with the Chambers elbow-clerks) to generate draft reports on the civil motions for leave to appeal. That unit is now a permanent part of the Court’s staff, with many more law clerks assigned primarily to that category of the Court’s docket.
In the Breitel era of major court reforms, the Court of Appeals was hearing over 700 argued civil and criminal appeals per annum. So, on a given oral argument day of, not uncommonly, 10 appeals, several of the judges would be charged with picking not one but two appeals that would have to be reported at conference the following morning. That was also in the bygone era of full two-week 10-sitting-days Sessions of the Court every month over the ten-month sessions span of a Court year.
Many of the transformative management techniques were put in place on the Court’s own initiative and authority. For example, a mutually reinforced work discipline – adopted not as a formal Rule but as a practice among the Judges themselves – included exchanging their respective draft opinions during the usually three-sometimes-four-week intervals of busy residential-Chambers sessions (often mischaracterized as “recesses”) in between the formal Albany oral argument sessions. The lawyers and litigants for decades have received the decisions on appeals mostly within five to six weeks after argument and after conferencing by the seven Judges around their conference room table – not via a technological modality as a substitute for face-to-face discussion. These were other value-added dynamics that were deemed key inducements to the collegial quality of the institutional process and product serving the public interest. This unique turnaround time from argument to decision remains a proud speedy justice hallmark of the Court of Appeals’ hard-work culture even today, greatly appreciated by the Bar, clients and public at large.
Reforming the Civil Docket
Notably, chapter 300 of the Laws of 1985 legislatively reformed the Court of Appeals civil docket to mostly permissive. That reform measure dropped the number of appeals to fewer than 200 annually, as now found from the Clerk’s Annual Report (a transparency publication practice also started during Judge Breitel’s tenure). In the modern era, as a result of many of these long-lasting transformations of process, the number of sitting days is down to no more than three per week in the two-week Sessions of the Court, with rarely more than three-to-four appeals argued per day. Chapter 300 was enacted in the first year of the tenure of Chief Judge Sol Wachtler. Shortly after its passage, that Chief also led the effort for another building block of court reform – a state constitutional amendment authorizing the certification of questions of New York State law from the Federal Circuit Courts that allowed for definitive resolution by the Court of Appeals.
So, returning to where I started, Chief Judge DiFiore can be confident, as her predecessor Chief Judge Breitel was several tenures ago, that by assembling a coalition of diverse single-minded supporters, she might at long last also persuade the powers that be that the time for trial courts consolidation and transformation has come. And she has a template and lesson from history on her side.
Joseph W. Bellacosa is a Retired Judge of the New York State Court of Appeals and a Retired Dean and Professor, St John’s University School of Law.
 See Joseph W. Bellacosa, Eight Chiefs, N.Y. St. B.J., (Nov.-Dec. 2015, Vol. 87, No. 9), p. 18.