Senate Bill S7648

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7648

                            I N  S E N A T E

                             April 28, 2010
                               ___________

Introduced  by  Sen.  VOLKER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Judiciary

            CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY

proposing an amendment to section 2 of article 6 of the constitution  in
  relation  to vacancies of the court of appeals; and to repeal subdivi-
  sions c, d, e and f of section 2 of  article  6  of  the  constitution
  relating thereto

  Section  1. Resolved (if the Assembly concur), That subdivisions c, d,
e and f of section 2 of article 6 of the constitution are REPEALED.
  S 2. Resolved (if the Assembly concur), That section 2 of article 6 of
the constitution be amended to read as follows:
  S 2. a. The court of appeals is continued. It  shall  consist  of  the
chief  judge  and  the  six  elected associate judges now in office, who
shall hold their offices until the expiration of their respective terms,
and their successors, WHO SHALL BE CHOSEN BY THE ELECTORS OF  THE  STATE
and  such justices of the supreme court as may be designated for service
in said court as hereinafter provided. The official terms of  the  chief
judge  and the six ELECTED associate judges shall be fourteen years FROM
AND INCLUDING THE FIRST DAY OF JANUARY NEXT AFTER THEIR ELECTION.
  Five members of the court shall constitute a quorum, and  the  concur-
rence  of  four shall be necessary to a decision; but no more than seven
judges shall sit in any case.  In  case  of  the  temporary  absence  or
inability  to  act  of  any judge of the court of appeals, the court may
designate any justice of the supreme court to serve as  associate  judge
of  the  court  during such absence or inability to act. The court shall
have power to appoint and to remove its clerk. The powers and  jurisdic-
tion  of  the  court shall not be suspended for want of appointment when
the number of judges is sufficient to constitute a quorum.
  b. Whenever and as often as the court of appeals shall certify to  the
governor  that  the  court  is  unable, by reason of the accumulation of
causes pending therein, to hear and dispose of the same with  reasonable
speed,  the  governor  shall  designate  such  number of justices of the
supreme court as may be so certified to be necessary, but not more  than
four, to serve as associate judges of the court of appeals. The justices
so  designated shall be relieved, while so serving, from their duties as

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                      [ ] is old law to be omitted.
                                                           LBD89195-01-0

S. 7648                             2

justices of the supreme court, and shall serve as  associate  judges  of
the court of appeals until the court shall certify that the need for the
services  of  any  such  justices no longer exists, whereupon they shall
return  to the supreme court. The governor may fill vacancies among such
designated judges. No such justices shall serve as  associate  judge  of
the  court  of appeals except while holding the office of justice of the
supreme court. The designation of a justice of the supreme court  as  an
associate  judge  of  the court of appeals shall not be deemed to affect
his or her existing office any longer than until the expiration  of  his
or her designation as such associate judge, nor to create a vacancy.
  C.   WHEN A VACANCY SHALL OCCUR BY EXPIRATION OF TERM OR OTHERWISE, IN
THE OFFICE OF CHIEF OR ASSOCIATE JUDGE OF THE COURT OF APPEALS, THE SAME
SHALL BE FILLED, FOR A FULL TERM, AT THE NEXT GENERAL ELECTION HELD  NOT
LESS  THAN THREE MONTHS AFTER SUCH VACANCY OCCURS; AND UNTIL THE VACANCY
SHALL BE SO FILLED, THE GOVERNOR, BY AND WITH THE ADVICE AND CONSENT  OF
THE  SENATE IF THE SENATE SHALL BE IN SESSION, OR IF NOT IN SESSION, THE
GOVERNOR MAY FILL SUCH VACANCY BY APPOINTMENT. IF ANY  SUCH  APPOINTMENT
BE  MADE  FROM AMONG THE JUSTICES OF THE SUPREME COURT, SUCH APPOINTMENT
SHALL NOT BE DEEMED TO AFFECT HIS OR HER EXISTING OFFICE ANY LONGER THAN
UNTIL THE EXPIRATION OF HIS OR HER APPOINTMENT AS SUCH ASSOCIATE  JUDGE,
NOR TO CREATE A VACANCY. IF ANY SUCH APPOINTMENT OF CHIEF JUDGE SHALL BE
MADE FROM AMONG THE ASSOCIATE JUDGES, A TEMPORARY APPOINTMENT OF ASSOCI-
ATE  SHALL  BE  MADE  IN LIKE MANNER; BUT, IN SUCH CASE, THE APPOINTMENT
SHALL NOT BE DEEMED TO AFFECT HIS OR HER OFFICE OF ASSOCIATE  JUDGE  ANY
LONGER  THAN  UNTIL  THE  EXPIRATION  OF HIS OR HER APPOINTMENT AS CHIEF
JUDGE, NOR TO CREATE A VACANCY. THE POWERS AND JURISDICTION OF THE COURT
SHALL NOT BE SUSPENDED FOR WANT OF  APPOINTMENT  OR  ELECTION  WHEN  THE
NUMBER  OF JUDGES IS SUFFICIENT TO CONSTITUTE A QUORUM. ALL APPOINTMENTS
UNDER THIS SECTION SHALL CONTINUE UNTIL AND INCLUDING THE  LAST  DAY  OF
DECEMBER NEXT AFTER THE ELECTION AT WHICH THE VACANCY SHALL BE FILLED.
  g.  The provisions of subdivisions c, d, e and f of this section shall
not  apply  to  temporary  designations  or  assignments  of  judges  or
justices.
  S  3.  RESOLVED (if the Assembly concur), That the foregoing amendment
be referred to the first regular legislative session convening after the
next succeeding general election of members of  the  assembly,  and,  in
conformity  with  section  1  of  article  19  of  the  constitution, be
published for 3 months previous to the time of such election.