What's Old Is New Again As NY Judges Battle Court Revamp

By Andrew Strickler | October 20, 2019, 8:02 PM EDT

New York Chief Judge Janet DiFiore is pushing a plan to simplify the structure of the state's courts, but the reforms are facing opposition from judges who say it will threaten their independence without providing real benefits. (AP)

The latest proposal to remake New York's byzantine court system is facing old-school pushback from an influential group of state Supreme Court judges, even as judicial and political leaders say the time has finally come to streamline the system.

Democrats in control of state government's executive and legislative branches have recently advanced a number of access to justice reforms and scores of bar groups, community organizations and business interests are trumpeting the benefits of a simpler court structure, but the success of the reforms proposed in September may yet depend on securing buy-in from the organization representing the bulk of the state's elected judges.

And the Association of Justices of the Supreme Court of the State of New York is already bashing the plan. According to court watchers, that opposition mirror arguments the group raised in previous rounds of the debate going back decades, though awareness about how the state's myriad trial courts create roadblocks for everyday users has grown.

"There has always been a feeling among judges that the more power you give to the [Office of Court Administration], the worse it is for judges," said Helen Freedman, who served for more than three decades on state court benches before becoming a JAMS mediator.

"And I suspect that the thinking remains that this plan will reduce their influence, and end up with judges being treated more as administrative clerks than independent judges," she said.

Late last month, Chief Judge Janet DiFiore outlined a sweeping court consolidation plan in which 11 different trial courts would be either abolished or merged into a far larger Supreme Court, which would itself be part of a new three-level system with a Municipal Court and Justice Courts serving towns and villages.

Under the proposal, most of the courts on the chopping block — the Court of Claims, Surrogate Court and Family Court — would see their jurisdictions morphed into new divisions within the Supreme Court.

The Supreme Court — not to be confused with the state's highest court, known as the New York State Court of Appeals — acts as the state's "premier" general jurisdiction trial-level court and has a branch in every county.

The courts are led by judges serving 14-year terms, the longest among the state's elected justices, who are the only justices eligible for appointment to mid-level appellate benches.

In her pitch, Judge DiFiore said the state's "antiquated" and complex system creates "procedural hurdles" for litigants and lawyers that drive up costs and slow the resolution of cases.

In one proposed hypothetical, a victim in a car crash on a New York state highway might have to bring separate actions in the Court of Claims, which has jurisdiction over suits against the state, and separately in a Supreme Court against another driver.

In another, separating parents might go to a Family Court for custody or visitation matter, and then separately to the Supreme Court, the only court with authority to grant a divorce.

Notably, Judge DiFiore's proposal includes a so-called merger in place element in which judges of the abolished courts would serve out their terms in the merged Supreme Court or on the Municipal Court.

Those judges and their successors would continue to be either elected or appointed in the same manner as they were in the "old" courts, effectively creating multiple paths for people to reach the same Supreme Court benches.

The merger in place idea was also central to an ambitious — and doomed — court consolidation push in the mid-1980s, as well as another major effort in the mid-2000s championed by then-Chief Judge Judith S. Kaye.

In both instances, court leaders and other proponents saw merger in place as necessary to avoid tying the consolidation debate to the even more divisive issue of the best way to fill judicial seats — elections or political appointments.

Conveniently, merger in place also helped mollify judges who felt that the prestige of the court — and their own hard-won seats — would be "diluted" by a deluge of new judges from "lesser" courts, according to people familiar with those debates.

In its most recent opposition to court restructuring, the judges' association called Judge DiFiore's proposal a "threat to an independent judiciary" and sharply questioned whether a court "name change" would really simplify the system for litigants or save taxpayer money.

The plan would also give court administrators "the ability to place any justice anywhere in the state without regard to competencies, constituencies, or local knowledge of the individual justice," the group said, while removing voter say in the selection of judges for specialized courts.

"The proposal removes the power of citizens to meaningfully select the judges in their communities who will decide, for example, family matters, or probate disputes, or criminal cases, or general civil disputes, and vests this fundamental constitutional right in the hands of administrators," the association said.

Supreme Court Justice Deborah H. Karalunas, who co-chairs the association's legislative committee, declined to provide additional comment for this story.

Judge DiFiore's predecessor, former Chief Judge Jonathan Lippman, called the group's arguments a "throwback" to an era of less sensitivity in the profession to the downsides of the court labyrinth.

Lippman, now counsel at Latham & Watkins LLP, said he also heard echoes of long-held resentments among old guard judges about court reforms from the 1970s that moved many powers previously held by trial and appellate courts to the chief justice and the chief administrative judge.

"Maybe these kinds of arguments had some sliver of rationality way back when," he said. "But you should know that Supreme Court justices aren't a monolithic group, and I think there are a lot of judges now, particularly younger judges, that have different views on this. I don't expect we'll see the same kind of vehement opposition as we have before."

Outside of pushback from within the courts, any court reform effort is going to face headwinds. Court reform isn't the kind of politically "sexy" issue that tends to hold the attention of governors and legislators, and court watchers say political apathy has contributed to the previous failed efforts in Albany.

And because redefining courts requires amending the state constitution, all the changes would have to be passed by the State Legislature during the 2020 session and again in 2021.

If the plan can pass those hurdles — which would certainly require sustained support from Gov. Andrew Cuomo and, most likely, continuing Democratic control of the Legislature — it would then have to be approved by voters in the November 2021 general election.

State Sen. Brad Hoylman, D-Manhattan, who chairs the judiciary committee, said he expected a "full-throated debate" on the plan at upcoming hearings. The first is scheduled for Nov. 13 in Manhattan.

"The efficiencies and clarity of this plan ... are the reason you have such a wide range of legislators, legal experts and access-to-court proponents all supporting it," he said. "We're certainly going to listen to everyone at our hearings and weigh the opinions of the professionals who actually work in the system."

Hank Greenberg of Greenberg Traurig LLP, president of the New York State Bar Association, declined to comment on court politics but said a more consolidated court would have myriad benefits, including reduced costs for litigants.

"It would have a positive impact on the lives of New York citizens who come to our courts seeking justice," Greenberg said.

"It's indefendible that people in a single matter might have to go to multiple courts to have it resolved, maybe even hire another lawyer, and it's indefensible that we have a system so complicated that clients and even many lawyers can't explain it," he added.

--Editing by Breda Lund.

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