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NY adds 5 elected judges after scrutiny of appointment practice

Suffolk County Judge George Nolan of Bayport, seen

Suffolk County Judge George Nolan of Bayport, seen here on Sept. 17, 2018. Credit: James Escher

ALBANY -- Five new elected state Supreme Court judgeships were added this month in Suffolk County, in the Hudson Valley and New York City after questions were raised over the long-standing practice in which governors appointed many of these criminal and civil judges even though the state constitution says voters must choose them.

These are the first new elected state Supreme Court judgeships created in 20 years and key legislators will push to create more in the upcoming state budget to address a critical shortage of judges, said Assembly Judiciary Committee Chairman Jeffrey Dinowitz.

“I look at that as a good start,” said Dinowitz (D-Bronx). “I don’t think most people realized that things were going on this way." Dinowitz had unsuccessfully pushed a bill   that would have created more elected judgeships years ago to end the “stop-gap system that has been used too often.”

Newsday reported last year that Gov. Andrew M. Cuomo and governors before him used a little-known loophole that allowed them to appoint judges to the state Court of Claims, a civil court that usually handles cases such as slip-and-fall accidents on state property and prisoner lawsuits. But the appointees are then immediately assigned to state Supreme Court sections statewide as acting Supreme Court judges, where they rule on criminal and civil cases, often never entering a Court of Claims courtroom.

Now, there are 333 Supreme Court judges in 62 counties. There are another 260 acting Supreme Court judges who were appointed to the Court of Claims and some New York City local courts, but preside over Supreme Court cases, according to state records. As for the Court of Claims, there are 86 judges assigned to the 10 courtrooms of the Court of Claims statewide.

Supporters said the practice has been cheaper than creating permanent elected positions and necessary because of a worsening shortage of elected judges statewide. They also note some Court of Claims appointees have distinguished themselves, using the job to rise to the state’s highest courts.

The extent of the practice was little known outside of government, according to legal experts. Critics contend the loophole provides governors and legislative leaders with six-figure patronage jobs to dole out to former counsels, other government employees, allies, politicians who were rejected by voters in judgeship races, and former legislators.

“The Court of Claims is often used as an end run,” said Vincent Bonventre, a professor at Albany Law School and expert on the state’s judiciary system. “It is a way of denying the public having a say in the selection of these judges.”

But he said the  move to create the judgeships will help overcrowded criminal and civil courts.

“It sounds very, very good,” Bonventre said. “The workload is pretty daunting. Any time you add a few more, it’s going to help relieve some of the other judges in the system. That’s very helpful.”

The new Senate Judiciary Committee chairman, Sen. Brad Hoylman, said the routine appointment of Court of Claims judges to serve on the Supreme Court was a surprise to him.

“It’s not the intention of the way the law was written,” said Hoylman (D-Manhattan). “It’s a workaround because of the scarcity of Supreme Court judges … I think it’s really up to the legislature to fix the problem.”

Dinowitz said he and Assembly Speaker Carl Heastie made the issue a priority in the state budget last year, resulting in the election of the new judges in November and their swearing in this year.

A state Unified Court System spokesman wouldn’t comment on the process, but welcomed the result.

“We are always pleased to receive additional judges and will be putting them to good use,” said Lucian Chalfen, spokesman for the state Office of Court Administration.

A Cuomo spokesman wouldn’t comment, but repeated a statement that spokesman Rich Azzopardi provided in last year’s Newsday article on the topic: “It is in the interest of this state to help ensure the wheels of justice continue to turn as quickly and efficiently as possible.”

Judges sworn into the newly created positions included Suffolk County Judge George Nolan of Bayport in the 10th Supreme Court district. Other new judgeships are in the Bronx, Queens, Staten Island, and in a court that serves Dutchess, Orange, Putnam, Rockland and Westchester counties.

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