Diversity, Independence Concerns Again Roil NY Court Reform

By Ryan Boysen | November 21, 2019, 10:04 PM EST

The battle lines between supporters and opponents of a sweeping proposal to reform New York's courts continued to harden at a second legislative hearing on Thursday, with concerns over diversity and stripping judges of their independence emerging as the flies in the ointment of an otherwise well received proposal.

Unveiled in September by Chief Judge Janet DiFiore, the proposal would cut the number of New York's trial courts from 11 to just three, merging most of the abolished courts and their judges into newly created divisions within the state Supreme Court, which functions as New York's premier trial court system and not, as its name implies, the state's top appellate court.

The plan has been hailed by dozens of bar associations, legal services organizations and good government groups as a much-needed modernization of a court system that's one of the largest in the world but is regularly described with words like "byzantine," "antiquated," "dysfunctional" and "inefficient."

At an initial hearing last week in New York City before a joint session of the state's Senate and Assembly judiciary committees, however, several groups came out swinging against the proposal, citing concerns over how it would affect diversity on the bench and whether it would give Judge DiFiore's Office of Court Administration too much power over the state's elected judges.

Those themes also dominated the second hearing in Albany on Thursday, although as with the first the majority of the individuals who'd been asked to testify were ultimately in favor of the reform package.

Unsurprisingly, sitting New York Supreme Court Justice Deborah H. Karalunas, speaking on behalf of the Association of Justices of the Supreme Court of the State of New York, was the reform plan's most outspoken critic at Thursday's hearing, calling it a recipe for chaos and warning it would have "severe economic and societal costs."

"We urge you to leave our constitutional court system principally intact," Judge Karalunas said.

Supreme Court justices, who would see their status as members of New York's premier trial court somewhat diluted by a plan that would elevate judges from several other courts to their level, have long been outspoken critics of similar plans that have repeatedly failed to get off the ground.

In particular, Judge Karalunas took aim at comments earlier in the hearing by Chief Administrative Judge Lawrence K. Marks, whose boss is Judge DiFiore. Judge Marks had said that the reform package would allow the OCA to "move judicial resources around more efficiently," but those words seemingly sent a shiver down the spine of Judge Karalunas.

"We are not OCA resources — we're not even OCA employees," she said. "Most of us are elected judges and our judicial independence from the OCA is indispensable to our democracy and the well-being of the people we serve."

That point was echoed throughout Thursday's hearing and its predecessor last week.

About 75% of New York's various judges are elected, and the rest are appointed. But importantly, under the current system, elected judges serve in the communities that voted for them.

Judge DiFiore's proposal keeps that patchwork of elections and appointments in place but would make all of the judges ultimately who come out of that system Supreme Court justices. Like Karalunas, several judges have expressed concern that the OCA proposal would turn them into cogs in a statewide judicial machine, who could easily be sent packing to serve other localities or preside over different areas of law than the ones they were elected to handle.

Judge Matthew J. Titone of New York's Surrogate's Court, a powerful and controversial court that, among other things, settles the estates of those who die without wills, asked the handful of lawmakers in front of him to consider his own experience.

Judge Titone campaigned for his seat on the bench as a Democrat and an openly gay man in one of the "brightest red" counties in the U.S. — Staten Island — and won.

"That means people had to go all the way down the ballot, voting Republican, and then cross the line and vote for me at the bottom," Judge Titone said. "I ran a risky race and people voted for me, now they're going to be told their vote doesn't matter."

"If the positions were at least designated" and tied to local elections, Judge Titone said, "that would go a long way" toward easing his concerns.

State Sen. Brad Hoylman, D-Greenwich Village, who chairs the Senate Judiciary Committee, pushed back on those concerns, noting that the OCA already has broad powers to transfer judges. He asked Judge Karalunas if she thought the OCA was currently abusing those powers.

"No," she replied.

Concerns about how the proposal would affect diversity on the bench also surfaced as they did at the last hearing. Many of those concerns were also tied to ensuring that judges will serve in the communities that elected them.

"Voters have the right to have civil and criminal matters adjudicated by the judges they elected," Jason Clark, president of the Metropolitan Black Bar Association, told the lawmakers, noting that black judges are more likely to get on the bench through election than appointment. "We believe this needs to be addressed before we can support the proposal."

Just like at the last hearing, however, some supporters of the plan said it would actually increase diversity in New York's court system by creating a broader pool of Supreme Court justices, the only type of judge who can be appointed to a seat on the state's appellate courts.

"I wholeheartedly believe that the current proposal will enhance diversity," said Associate Justice Shirley Troutman of the Appellate Division's Fourth Department, the only judge of color in that body.

Meanwhile, several good government groups and legal services organizations largely sidestepped those issues while voicing their support for the proposal, hammering away at what they see as the bottom line: that streamlining New York's court system will make it work better for the litigants it ostensibly exists to serve.

Amelia Starr of the Fund for Modern Courts, a nonprofit that advocates for reforming New York's judicial system, focused her testimony on that theme.

"We've heard a lot of inside baseball here today about how this will affect this or that person," she said. "I'm not a judge, so I can't speak to all of that. But what I can tell you is that organizations that serve the poor, the disempowered, immigrants and people of color, all of those organizations believe that consolidation will help their clients."

Laura Bierman, the executive director of the League of Women Voters of New York State, said her organization will be 100 years old next week and has been advocating for court reform for more than 60 of those years.

After wishing the LWV a "happy birthday," Hoylman asked Bierman why court reform initiatives have failed so many times in New York over the years.

"I think it becomes partisan, it becomes political and personal and focused on who's losing jobs, who's changing jobs; it gets wrapped up in all of that," Bierman said.

--Editing by Adam LoBelia.

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