The Constitution of 1846 had established a statewide Court of Appeals and divided the intermediate appellate courts into eight districts. The Court of Appeals consisted of four elected judges and four Supreme Court Justices who served rotating one-year terms. Over time the frequent turnover and lack of continuity in the high court’s composition contributed to calendar congestion, confusion and inefficiency. By 1865, the Court of Appeals had a backlog of 1,500 cases and was several years in arrears. Meanwhile the eight intermediate appellate tribunals set up by the 1846 Constitution were prone to issuing conflicting decisions.
These problems were among the most compelling reasons for the Constitutional Convention of 1867-1868, which also addressed a broad range of issues such as the delineation of authority between the state and its cities, establishment of public schools and expansion of Black voting rights. The proposed constitutional amendments put before the voters in 1869 were soundly rejected. Only the amended Judiciary Article, severed from the other proposals, was narrowly approved.
The Judiciary Article that took effect in 1870 established a new structure for the Court of Appeals consisting of a chief judge and six associate judges selected by popular election to 14-year terms. A temporary Commission of Appeals was formed to hear and resolve the old Court of Appeals’ backlog and enable the newly formed Court to begin its work on a clean slate. In addition, the General Term of the Supreme Court, which functioned as the state’s intermediate appellate court, was streamlined from eight districts into four departments. The mandatory retirement age for judges was extended from 60 to 70; the terms of Supreme Court Justices were lengthened from eight years to fourteen; the jurisdiction of the county courts was expanded; the Superior Courts of New York and Buffalo, the Court of Common Pleas of New York, and the City Court of Brooklyn were included in the Constitution for the first time; and the first version of the Court of Claims was created. The 1867-68 Convention was notable for a debate on whether judges of the Court of Appeals and Supreme Court should be selected by gubernatorial appointment or popular election. The question proved so divisive that it was postponed to a public referendum in 1873 when a proposal to adopt the appointive method was overwhelmingly rejected.
With few changes, the structure of the Court of Appeals set forth in the Constitution of 1869 has endured to the present day, but though the new Judiciary Article improved the Court’s organizational structure it did not significantly modify the court’s jurisdiction or otherwise reduce the growing number of appellate filings. As a result, the new Court of Appeals was plagued with case backlogs from the very outset.
Commission of Appeals (Second Division of the Court of Appeals)
In 1872, before the temporary Commission of Appeals had finished clearing the previous Court’s backlog, the Constitution was amended again to extend the Commission’s life to July 1875 so that it could assist the new Court in its work. By 1887, however, it was again taking up to two years for the Court of Appeals to hear an appeal. In response to growing dissatisfaction and pressure from the bar, the legislature proposed a constitutional amendment, approved by the electorate in 1888, authorizing the Governor, upon a certification of need by the Court of Appeals, to designate seven Supreme Court Justices to act temporarily as Associate Judges of the Court of Appeals for the purpose of reducing the Court’s backlog. Pursuant to this procedure, a second division of the Court of Appeals was promptly formed and began its work in March 1889. It was reappointed two years later and completed its work in October 1892, thus ending New York’s constitutional experiment with two high courts.