Can New York's Tangled Court System Be Fixed?

By Marco Poggio | March 11, 2022, 8:06 PM EST ·

Lawmakers in New York introduced legislation Feb. 28 that would merge the state's trial courts into two entities. The proposal is the latest in decadeslong efforts to simplify the court system structure. (Photo by Angela Weiss/AFP via Getty Images)

During a joint public hearing before judiciary committees in November 2019, New York Chief Administrative Judge Lawrence K. Marks held a sheet of paper with a printed-out diagram made of boxes and arrows, and looked at lawmakers.

"This confusing, jumbled mess is our court system," Judge Marks said.

He then went on to describe New York's trial court structure — a puzzle of 11 different courts, each with its own jurisdiction, practices and culture — as "the most complicated, inefficient, [and] outdated" in the country.

Judge Marks asked legislators to approve a plan by his direct superior, New York Chief Judge Janet DiFiore, to simplify and streamline the system by merging the trial courts into two entities. That appeal ended up going nowhere.

Nearly three years later — on the heels of a deadly pandemic and a national reckoning on racism following the murder of George Floyd, which put scrutiny on inequities in the court system — the issue of court simplification has regained momentum.

Last week, Judge DiFiore brought attention back to her proposal, which would fold the state's Court of Claims, County Court, Family Court and Surrogate Court into the Supreme Court, the state's court of general jurisdiction. A single Municipal Court would bring together city and district courts of lower jurisdiction. Town and village courts, known collectively as Justice Courts, would remain untouched.

"While unintentional, the state's obsolete trial court structure has created barriers to justice that disparately impact our most vulnerable New Yorkers," Judge DiFiore said in her speech. "We must modernize our outdated trial court structure in remedying these inequities and transforming our court system into a model of efficiency."

The proposed reforms would tackle chronic underfunding of family and housing courts, where litigants are overwhelmingly people of color with no legal representation, by facilitating a more equitable allocation of the judiciary's budget, Judge Marks told Law360.

"Courts that have historically not received the funding that they should — this proposal would make that much easier," he said.

While the proposal has gained steam, fierce opposition by associations representing state Supreme Court justices and an overall lack of interest by voters, who would have the final say on reform, still stand in the way. And some attorneys who work in overcrowded, underresourced courts even think court simplification might not fix the inequities and racial disparities in the court system.

How Complexity Fuels Inequities in NY Courts

The New York State Bar Association and the New York City Bar Association support Judge DiFiore's proposal, as do most good-government groups in the state.

Hank Greenberg of Greenberg Traurig LLP, a former NYSBA president who has supported court simplification for years, told Law360 that court leaders have long complained about the current system but didn't have the political backing to change it.

"For decades, chief judge after chief judge has looked at New York's byzantine trial court system and recognized it is a ramshackle mess," he said. "The current structure is not only inefficient, it is not only irrational, it is also incredibly unfair to the consumers of our courts: the public."

NYSBA's current president, T. Andrew Brown, said having so many trial courts confuses litigants — and often lawyers, too.

For example, a couple who have children and are seeking a divorce could end up having proceedings in different courts, each one following a different timeline. The divorce itself must be filed in the state Supreme Court, while Family Court deals with child custody. If the situation involves domestic violence, the same case could also go through a county criminal court.

"Imagine how that impacts a person's life and adds to unnecessary costs, not only for the individuals involved but also for the system itself and for the taxpayer," Brown said.

Click to view interactive version

When the COVID-19 pandemic reached New York, family courts were particularly hard hit, especially those in New York City, legal experts say. Some disruption was necessary to confront the threat of the novel virus, but a shutdown of services in Family Court has continued even as other courts began reopening, leaving thousands of litigants stranded.

A report released last month by the NYCBA focusing on Family Court operations during the pandemic said the public health crisis only accentuated "deep inequities" in the state court system.

The report describes a severe shortage of court personnel, including judges, that exacerbated backlogs. It also includes harrowing stories of litigants whose lives were affected by the court's closures: a pregnant immigrant mother in Brooklyn unable to leave her abusive husband, who threatened to have her deported, because the court wasn't accepting child support cases, and she had means to support her children; a father of a 2-year-old who couldn't get a visitation order because the court didn't recognize his matter to be urgent; a mother who had been seeking to enforce child support arrears for seven years falling into debt.

The Family Court woes expose the pitfalls in an institution plagued by a lack of resources. They are also examples of inequities perpetuated by the inefficient structure of the state court system, attorneys say.

With its constellation of trial courts, New York is unique in the nation. California, by comparison, has only one trial court: the Superior Court. Court administrators and lawmakers are looking at the Golden State and others with streamlined court structures, such as New Jersey, Illinois, Florida and Connecticut, as potential paradigms of efficiency that could be replicated in New York.

"We're in a category by ourselves," Judge Marks told lawmakers in 2019.

Structural barriers between each court are codified in the state constitution, preventing court administrators from moving resources — money, judges, court staff — quickly from one court to another. The lack of funding and personnel causes delays and backlogs in high-volume courts — such as family, housing and criminal courts — where overworked judges deal with exorbitant caseloads.

"Because of these separate and distinct trial courts, it's very hard for the court to move resources where they're most needed," said William C. Silverman, a partner at Proskauer Rose LLP who leads the firm's pro bono program and chairs the nonprofit Fund for Modern Courts, which co-authored the City Bar report.

A 2020 study of New York courts' practices led by Jeh Johnson, a partner at Paul Weiss Rifkind Wharton & Garrison LLP who served as secretary of the U.S. Department of Homeland Security in the Obama administration, concluded there is a "second-class system of justice for people of color" and denounced a "demeaning cattle-call culture" in state courts, particularly in New York City's housing, family, civil and criminal courts.

Lawyers with Legal Information for Families of Today, or LIFT, a nonprofit that provides free legal assistance to about 25,000 Family Court litigants every year, shared some on-the-ground experiences that echoed the assessment in Johnson's review.

Jessica Stadmeyer, an attorney for the nonprofit, said one of her clients filed a child support petition in 2018 and waited for years only to see her case dismissed. She was then told to start the process all over again.

Another attorney, Nathalie Gonzalez, said she represented a father who, after regaining custody of his child, had to file a case in Small Claims Court to recoup child support money he had continued to pay while the custody fight in Family Court dragged on.

"There aren't enough jurists. There's not enough court staff. This is no fault of the individuals who are there, but it's the way the structure is," said Cathy Cramer, the CEO of LIFT. "Other courts get priority."

The inequities across the system are highlighted by the number of judges assigned to each court, which is also a product of the courts' structure, attorneys say.

The number of judges in most trial courts is set by statute. But in courts where the number of judges is insufficient to handle the caseloads, like in Family Court in New York City, the court system is forced to temporarily transfer jurists from other courts, creating disruption.

Under the proposed simplification, county judges will automatically become generalist Supreme Court justices and will in theory hear all types of cases, much like federal judges do. Silverman added that the court merger will make it easier for the court system to assign justices to what would become the Supreme Court's family court division.

But Lucian Chalfen, a spokesperson for the state's Office of Court Administration, or OCA, clarified that judges with particular expertise will be kept in their roles.

"Judges with experience or history in a particular court wouldn't be arbitrarily moved around," he said.
Simplification Could Boost Bench Diversity

The lack of diversity in New York's judiciary, particularly outside New York City, has been discussed for years. According to data from OCA updated in February, nearly 90% of Supreme Court justices outside of the city are white.

"Syracuse, Rochester, Buffalo, Albany, have had a paucity of judges of color. Albany in its history — over three hundred years — has only had one Supreme Court Justice who was a person of color," Greenberg of Greenberg Traurig said.

Judge Marks told Law360 that the imbalance is largely due to the way judges are selected. Elections for Supreme Court seats span entire judicial districts, usually encompassing multiple counties. In majority-white areas of New York, it's harder for candidates of color to win elections. On the other hand, it's easier for candidates of color to win elections for county court seats, particularly in counties with higher minority populations, he said.

Judges in the Court of Claims and Family Court are appointed by the governor and the mayor of New York City, respectively.

Judge Marks said the restructuring proposal leaves the way judges are selected untouched.

"That's kind of a hotly contested issue," Judge Marks said. "The proposal consciously avoids that whole debate."

However, Judge Marks noted that the reorganization would immediately make the state's trial-level judiciary more diverse.

"That in itself would result in more judges of color sitting in the Supreme Court," he said.

And because Supreme Court justices are eligible for appointment to the Appellate Division by the governor, more judges of color could ultimately land on the state intermediary courts.

Appellate Division justices are also routinely considered for openings on the New York Court of Appeals, the state's highest bench. The current top court includes Black and Latino judges, but none of Asian descent.

A Judiciary That Still Lacks Diversity

The lack of diversity in New York state courts is greatest outside New York City, where nearly 90% of Supreme Court justices, 87% of Family Court judges, and 95% of County Court judges are white.

Tap on an court division for more detail below the chart

White Asian Black Hispanic Native American Pacific Islander Two or more ethnicities Unknown ethnicity
Source: Office of Court Administration, New York State Unified Court System

New York Justices Are Overwhelmingly Male

Only about one third of Supreme Court justices outside New York City are women. Women are also underrepresented in City Court and County Court benches.

Tap on an court division for more detail below the chart

Source: Office of Court Administration, New York State Unified Court System

A Long Road to Reform

Following Judge DiFiore's State of the Judiciary speech last month, lawmakers in New York introduced her proposal as parallel legislation in both chambers of the state Legislature.

Judge Marks expressed confidence that the bills will pass during the current session.

"We've got more work to do in terms of advocating for this proposal, but yes, we're very optimistic that this could be the year that the proposal passes," he said.

Carey Dunne, a prominent Manhattan lawyer who led the commission that produced a 2007 report on the cost benefits of restructuring, said the idea of court simplification has been rehashed many times over the course of several decades but always failed to gain traction.

That's for several reasons. The first is that reform would require changing the New York Constitution, which is a complex process. Amendments need to pass two separate Legislatures before they can go on the ballot for New Yorkers to approve or reject the following year. The process takes at least three years.

Another reason is overall lack of interest by voters.

"It really is not an issue that captivates the electorate," Dunne said. "It's the kind of intractable, sort of procedural and political problem that our state continually faces on all kinds of issues."

In addition, associations representing Supreme Court justices, which advocate on behalf of the justices on issues like the needs of the court system, have staunchly opposed court merger proposals. 

In a joint statement to Law360, Justice Barbara R. Kapnick, president of the Association of Justices of the Supreme Court of the State of New York, and Justice Mary Ann Brigantti, president of the Supreme Court Justices Association of the City of New York, said Judge DiFiore's proposal "jeopardizes judicial independence and blurs the lines of separation of powers" and gives court leaders too much power.

"This chief judge's plan severely undercuts the voters' right to select diverse judges who are qualified and passionate about the substantive areas of law for which they seek office," the statement says. "It would centralize power in OCA and empower her to assign judges to courts without regard to geographic limitation or relevant experience."

The justices associations' leaders said the merger plan would "do nothing to achieve their professed goal of expanding diversity in the judiciary" and undercut the role of elected justices.

But Judge Marks rebuffed the statement in an email to Law360.

"The suggestion that this common sense proposal is some sort of power grab on the part of the chief judge is absurd," Judge Marks wrote, noting that even if approved as fast as possible, the reforms wouldn't kick in until after Judge DiFiore has stepped down. The chief judge will retire in 2025 when she turns 70, as mandated by the state constitution.

"This has nothing to do with amassing power. It is about fixing our dysfunctional court structure for the future," Judge Marks said. "Those with a vested interest in maintaining the status quo need to stop personalizing this important issue and instead focus on the merits of the proposal."

Not a Panacea for Inequities

But attorneys are concerned for the short term, too. Judge DiFiore's proposal would take at least three years to get enacted, and five more years would elapse until it's fully implemented. Until then, inefficiencies in lower-jurisdiction courts will persist.

"The simplification of the courts will help, but it's not going to happen for a long time. In the meantime, there are lots of people who are suffering," Cramer of LIFT said.

Rene Kathawala, pro bono counsel at Orrick Herrington & Sutcliffe LLP, told Law360 that simplifying the court structure alone won't solve the issues plaguing lower-jurisdiction courts. He cited California, where Orrick has numerous pro bono engagements on family court-type matters, as an example.

"It feels like there is still a two-tiered system in California when it comes to family law issues, even though the courts have been restructured many, many years ago," he said.

The reason, Kathawala said, might not be the lack of resources, but rather that state court systems do not "value" certain courts in the same way they do others. It's in part a funding issue, but also one of perception: There's an assumption that family court is mostly used by disadvantaged people and is destined to be overburdened, and therefore litigants who appear before judges are often not given the time and respect they deserve, he said.

"There's this impression that litigants have that the judges don't care about their cases, even though I'm sure they do — but they're treated in a way that doesn't dignify their case," Kathawala said.

Another factor, which is beyond the courts' control, is the lack of representation in family court, he said.

"If you were to go right now, and walk into the [Supreme Court's] Commercial Division courts that are at 60 Centre Street in Manhattan, you would see a system that runs very effectively. Why is that?" Kathawala posited.

About 80% of the roughly 200,000 litigants appearing in Family Court every year are unrepresented. There is a right to counsel for litigants in cases involving child welfare, juvenile criminal justice and domestic violence, but not for the vast majority of those involving child support, which represent about 40% of the caseload, according to data collected by OCA.

In those cases, most litigants are unrepresented. People living below the federal poverty level are assigned attorneys under Article 18B of the state's County Law, but those attorneys are chronically underpaid and increasingly harder to find, attorneys say.

Even with a complete redesign of the trial courts structure, Kathawala said, the judiciary's budget will likely remain the same, and inequities will persist unless lawmakers in Albany allocate more money for the court system and increase the number of judges.

"My belief is that the same inequity that exists today will continue to exist after consolidation, because the court system as a whole has underprioritized the poor people's courts to begin with," he said.

In order for court simplification to work, Kathawala said, decision makers will have to commit to allocating resources more fairly throughout the system.

"Why should we trust the administrators and the legislators to do that when it's never been done before? Why is it that suddenly overnight, OCA is going to prioritize and try to normalize the resources to family court?" Kathawala said.

"What I don't see accompanying that request is a clear commitment from the court system saying, 'We believe that this is going to give us the resources to address the inequalities that have persisted in our state system,'" he added. "They're the ones who run the court system. They're the ones who can make change."

--Editing by Alanna Weissman and Marygrace Anderson. Graphics by Jason Mallory and Ben Jay.

Update: This story has been updated with additional information regarding the organizations representing state Supreme Court justices.

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