NY’s Chief Judge Proposes Sweeping Court Change But Is It Enough?

The Times-Union in Albany reported today that Janet DiFiore, the state’s top judge, is proposing a monumental overhaul of New York’s judiciary structure in an effort to streamline an antiquated system she said is far too cumbersome for judges, lawyers and the people they serve.

From the article: Chief Judge Janet DiFiore contends the existing structure unnecessarily burdens a wide range of litigants — from couples forced to go to separate judges for both their child custody and divorce cases to accident victims who must go to separate courts to sue the state and the driver who injured them. Vincent Bonventre, a professor at Albany Law School, called the changes “superb and long-needed. The current structure of the New York court system is mind-numbingly complicated, confusing, and oftentimes totally inconvenient for parties who have business before the courts,” Bonventre told the Times Union. “Likewise, the varied methods of selection (of judges) invite unnecessary politicking and partisanship, and often result in lesser quality in some of the courts.”

Oscar Michelen, a professor at Touro Law College and New York Law School, not quoted in the Times Union article, responded “Meh.”

First of all this is nearly the exact same proposal put forth by Gov. Eliot Spitzer in 2007 and offered every year from 1998-2008 by DiFiore’s predecessor, Judith Kaye. The main difference is that now the Democrats control both houses of the Legislature and have shown themselves to be hell-bent on reform – any reform. So it might actually pass this time. It will take amending the State Constitution, which means it must pass two consecutive State legislatures and then public referendums approving the change.

What could be confusing about this current system?

NY’s court system is definitely complicated and shattered with multiple levels of courts with varying jurisdictions. Couples in the midst of a divorce could find themselves in Family Court and Supreme Court on different issues. Family estate disputes can end up in Surrogate’s Court or Supreme Court or both. Instead, all of those courts and the County Courts (which act as criminal courts in counties outside the five boroughs) will be merged into one Supreme Court. Smaller courts called district courts in some jurisdictions, civil court and city courts in other jurisdictions will now be called “municipal courts.” This is great for some judges whose pay will be elevated to Supreme Court level and for litigants who have cases that could end up in more than one court, but more change is needed to really make change.

First of all , let’s look at Professor Bonventre’s two reasons why he feels this is “superb”: (1) Totally inconvenient court system as currently structured so this change will streamline and help. and (2) The varied methods of selection of judges invite unnecessary politicking and partisanship, and often result in lesser quality in some of the courts.

(1) True. But the proposed system still has six “divisions” in Supreme Court all of which follow the current break-up of the courts – family, probate, state claims, criminal, commercial and general. Those follow – almost to the letter – the current court system. Are we consolidating all the courts into one courthouse? Unlikely, as there is no courthouse big enough to fit all the necessary courtrooms, chambers etc. So folks will still likely have to find where their “division” is located and go to that court. A few litigants might be better off like those with accident cases against the State and other parties who currently would have to litigate against the State in the Court of Claims and against the other parties in Supreme. Presumably now they can litigate in one court in the “State” division of Supreme Court. But wait a minute – cases against the State are heard by judges not juries under the Court of Claims Act. Will that change? Or will the judge trying the case decide the case against the State while a jury decides the case against the other parties? You will still have to decide which “division” fits your case and it is unclear what happens if your case fits more than one division. And BTW the English major in me wonders if “Division” is the best word to use when you are trying to make a “Unified” court system. Why have divisions? Why not treat it like the Federal court where all case except those dealing with trade and bankruptcy are heard in one court by one judge. The answer to that comes in Professor Bonaventre’s other supposed reason for support – the judges.

(2)True – partisanship and politicking has led to lesser quality on the bench, especially at the lower court levels. But there’s a problem. Judge DiFiore’s plan still has all the judges chosen in the same fashion and for the same terms as they are now. So Court of Claims judges (or State Division Judges as they will likely be called) will still be selected by the Governor while the other former County and Supreme judges will still be chosen by the electorate to 10 or 14 year terms depending on the position they currently hold. Municipal judges (former criminal court or city court judges) in the five boroughs will be chosen by the Mayor while those outside of the City will be elected. So there is no change in judicial selection at all. Again, we should follow the Federal system and go to a 100% appointment system with mandatory screening by Bar Associations of all nominees.

Here are other issues not addressed by Judge Kaye’s, I mean, Judge DiFiore’s plan. As I tell my law students in my NY Practice class each year, the hardest thing about practicing in NY is that there is no unified practice. Each judge has their own set of motion rules, each County clerk has different requirements for motions and Orders to Show Cause and not exactly complying can be detrimental. Just today, I learned that a plaintiff in a case against us who filed a motion for summary judgment lost the motion after it had been sitting with a judge for over a year. Why? Because his lawyer did not send a hard copy to the judge’s chambers as per the court part’s rules. Tomorrow I am appearing in the Bronx where they play a game of controlling the calendar by delaying decisions on summary judgment motions – sometimes for two years- so that the case sits in the pre-trial part until the trial part backlog is cleared up. Once clear, they start deciding the motions and sending cases to the trial part until the backlog fills up again, and the delay is put back in place. Some judges require appearances only on discovery motions, others only on no-discovery motions. So the judge should really work on a unified motion practice by which every court clerk and law secretary must abide. The rules are already in place – she would not have to write them – just enforce them and make them mandatory. That way no lawyer, especially a young practitioner, will have to hear a clerk say “I know what the rules say, but we don’t do it that way here.”

The proposal also keeps in place town, village and justice courts. Why? Bring them into the municipal court system as well otherwise its just additional layers that I thought we were trying to avoid.

Finally, all courts should go to mandatory electronic filing. There is no electronic filing of motions or other documents in criminal cases or housing cases or district court. Why not? The system is already in place and in use in Supreme Court. If all courts had electronic filing, the system would be uniform and streamlined.

So while I credit Judge DiFiore with trying to revive this issue for needed reform seizing on the opportunity presented with the Governor, Senate and Assembly in one party’s hands, more can be done to effectuate true and effective change and bring NY closer to a truly unified court system.

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