In New York, the county Supreme Courts handle the prickliest of cases: divorces, annulments and separations, and civil lawsuits involving higher dollar amounts.
And some local lawyers say that New York’s convention system, in which party leaders within a judicial district choose candidates to fill those Supreme Court seats, has left Orange County without its fair share of justices while Westchester has a bounty.
“Our judges, on average, handle two times the caseload annually of any other county in the district. And yet they continue to pull resources out of the county,” said lawyer Leonard Kessler, a past president of the Orange County Bar Association. “Westchester is, essentially, using our resources.”
A lopsided distribution
There are 40 Supreme Court judges in the judicial district that encompasses Orange, Dutchess, Westchester, Rockland and Putnam counties, but 28 of them (70 percent) sit in Westchester, which has 980,244 people, 47 percent of the district’s population. Of those 28, though, five are appellate justices, three sit in the Bronx and one sits in Rockland.
County and Family Court judges also serve part-time as acting Supreme Court justices.
According to state court system figures for 2018, Orange County had 18.4 percent of the district population, 19.9 percent of the new Supreme case filings and 12.5 percent of the justices. The numbers work out to 456 cases per justice in Westchester (for 19 justices), to 752.4 per justice in Orange, and more than 1,000 each in Rockland and Dutchess.
Orange County has five Supreme Court justices. The number includes Justice Robert Onofry, formerly the county’s Surrogate Judge, who was appointed to a Supreme slot and certificated - granted an extension to serve after age 70. The number also includes Justice Elaine Slobod, who must retire in December; and Justice Sandra Sciortino, who turned 70 this year. She has applied for certification, but court administration has not yet made decisions on the current applications.
The New York State Constitution sets out the proper ratio of Supreme Court justices to population, said lawyer Benjamin Ostrer, who is first vice-chair of the Orange County Republican Committee: One judge per 50,000 people.
“It’s supposed to be equivalent to an Assembly district,” Ostrer said.
Based on the 19-justice count, Westchester has one justice per 51,600 people. Orange has one per 76,000. The numbers are worse in the other three counties.
Office of Court Administration spokesman Lucian Chalfen said that the distribution is based on population, at roughly 1 justice per 50,000 people. When necessary, judges can be moved or temporarily reassigned within a judicial district.
“An elected State Supreme Justice actually can be assigned anywhere in the state, although it’s kept within reason when that occurs,” he said.
In fairness to judges and the people they serve, the counties should have judges who live where they work, Kessler said.
Ostrer said state Senator James Skoufis and Assemblyman Karl Brabenec have been working on the issue.
Skoufis said he worked during the session with the Senate’s Judiciary chairman, trying to get another Supreme Court justice for Orange into the state budget.
“As there is currently a severely disproportionate shortage relative to some other counties, I plan to continue fighting to make sure that we have our fair share of representation in the Judicial District," Skoufis said in a statement.
The system as it exists gives short shrift to the people whose cases are heard in court, said Kessler and Ostrer.
“Despite a dedicated and hard-working bench, it is abundantly clear to litigants that they are in a system that is outnumbered, overwhelmed,” Kessler said.
Judges and their staffs work overtime, and on their own time, to get through cases as expeditiously as possible to meet state timeline requirements, he said.
“The best way to strike a balance is to provide adequate resources to handle these cases in a humane way,” Kessler said.
New York elects its judges. Under the state Constitution, unlike any other elected office in New York, Supreme Court justice candidates are chosen not through primaries, but by electors during partisan “conventions” held in early fall. Voters elect the partisan convention delegates, apportioned by state Assembly district. Because of the complexities of the rules and logistics, party leaders generally choose who runs for delegate slots, and who runs for justice.
In the 9th Judicial District, Westchester leaders make the ultimate decision on who gets to run because of their population and weighting advantages, Ostrer and Kessler said.
“We’re getting screwed, big time,” Ostrer said. “Just by dint of how the elections go, we lose seats.”
“The political power for the district is all based in Westchester,” Kessler said.
Jamie Ferrara, a solo-practice lawyer with an office in Goshen, said the system is emblematic of the party politics and partisan schisms that exist nationwide, and we should be looking at would-be candidates’ qualifications, not having party leaders choosing who to run based on tenure or it being someone’s “turn.”
“Ideally, we want our best people to hold these positions,” he said. “The very process by which we bring people in as candidates is at fault. There needs to be a better procedure to bring people in for these positions, especially because they have so much power.”
Concerns over Orange getting its fair share of justices has led some Republicans, Ostrer among them, to push a “Vote Orange First” campaign, encouraging the county’s voters to cast their ballots come Nov. 5 for Republican Robert Freehill, currently in his second term as County Court judge; and Democrat Steven Milligram, a respected trial lawyer, who has been a Monroe Town Justice since 2012.
“As current judges age out, we could be left with one resident judge,” Kessler said.
In the past, when a seat opened in a county, the parties would pick a candidate from that county. But Westchester’s numbers and heavily Democratic electorate can doom candidates from the rest of the district.
For example, in 2018, 10 candidates ran for seven vacancies in the 9th Judicial District. In Westchester County, every Democrat outpolled every Republican by more than 100,000 votes.
Ostrer said the imbalance has also led people to float the idea of Orange seceding from the 9th Judicial District to form a new judicial district.
The idea has precedent. Bronx County separated from New York County to form the 12th Judicial District in 1981, and Richmond County - Staten Island - seceded from Kings County effective in 2009 to form the 13th.
The convention system isn’t going anywhere. A 2004 federal lawsuit over the system made its way to the U.S. Supreme Court, which offered up some insults, but upheld the system as constitutional.
Justice Antonin Scalia wrote in his decision that no case law establishes an individual’s right to a “fair shot” at winning a party’s nomination.
In a concurring opinion, Justice John Paul Stevens quoted legendary Justice Thurgood Marshall: “The Constitution does not prohibit legislatures from enacting stupid laws.”