Position Statement – 2020
The Women’s Bar Association of the State of New York (“WBASNY”) is dedicated to advocating for the protection of women’s and children’s rights and advancing the status of women in the legal profession and society. Our nearly 4,300 members include attorneys, judges, and law students working in all substantive areas of law at the local, state, federal, and international levels. With 20 chapters throughout New York State, WBASNY speaks as one voice to advocate for equal access to justice and gender equality. WBASNY is a non-governmental organization in association with the UN Department of Public Information and holds Special Consultative Status with the UN Economic and Social Council, thus allowing WBASNY to substantially participate in work to support and advocate for the rights of women and children worldwide.
WBASNY has solicited opinions from our 20 Chapters throughout the State, our numerous committees, our Board and our members regarding the 2021 Executive Budget Freestanding Article VII Court Restructuring legislation and Chief Judge Janet DiFiore’s proposal to amend the constitution to restructure and consolidate the courts.
The following is WBASNY’s official position:
A. WBASNY SUPPORTS SIMPLIFICATION
WBASNY agrees, in principle, that the trial court system in the State could be simplified; however, WBASNY does not believe the current proposal is necessary or likely to accomplish that goal. There are other ways to accomplish the desired efficiencies that would more precisely target problem issues and do less violence to the constitutionally dictated system in place at present.
B. WBASNY OPPOSES TAKING AWAY THE POWER OF THE CITIZENS TO SELECT JUDGES FOR SPECIFIC COURTS
1. The proposal takes away the power of citizens to select judges from their own communities who are qualified and have the temperament and interest to handle specific subject matters. The proposal gives greater power to unelected administrators to assign judges to any court “division” anywhere in the State. Without assurance that the Judges assigned will be familiar with the jurisdiction they serve, it is unclear that they would know the particular concerns and barriers that affect the litigants who voted for them for their expertise.
2. The law is becoming more and more specialized every day. Litigants and lawyers alike deserve the assurance that their matters are being heard by judges who have experience in the subject matter at issue. Judges run for judicial positions that reflect their expertise and passion. The proposed plan would not ensure that the local community selects judges from that community to serve in particular roles for which they are qualified and interested. Instead, a former Family Court judge could be assigned to the Commercial Division of Supreme Court and hear complex contract disputes. A former Surrogate’s Court judge could be assigned to try felony criminal cases. The counterargument that the OCA would endeavor to put former Family Court judges in the Family Division and the former Surrogate’s Court judges in the Probate Division is unpersuasive because there is currently no mandate that such assignments would occur.
3. WBASNY does not support the power of OCA to transfer elected judges to different districts and certainly does not support any expansion of that power. Not only will this proposal dilute the fundamental rights of voters to elect judges to serve in those voters’ districts, but this proposal may also severely impact the quality of the judicial applicants. This part of the proposal may negatively impact judges with families and children, who may be uprooted if assigned by OCA to serve a different area of the State. Such concern may even dissuade qualified candidates with families and children from running for office in the first place. Moreover, the current proposal does not even guarantee that judges elected in a particular county or judicial district would be assigned to that county or judicial district; the decision is rather left to the OCA and not the voting public.
C. WBASNY OPPOSES THE ELIMINATION OF THE FIVE DISTINCT CONSTITUTIONALLY ESTABLISHED TRIAL COURTS
1. WBASNY believes that the idea that the elimination of four constitutionally-established trial courts – Family Court, County Court, Surrogates Court, and Court of Claims – and the consolidation of them into a Supreme Court divided into six “divisions” will not actually simplify the court system in the State. Rather the proposal repackages the existing courts from five specialized courts into six specialized divisions of Supreme Court. All of the judges of the eliminated courts would be made Supreme Court judges, elected for various terms and running in differing geographic areas (counties or judicial districts, depending what the judge was initially elected for) in what seems to be a quite complicated procedure.
2. WBASNY believes the claim that this proposal will simplify a complex court structure to enable litigants to avoid multiple appearances in multiple courts is also overstated.
a. For example, due to sovereign immunity, claims against the State that would have been heard by the Court of Claims will need to be heard in the State Claims Division of the newly consolidated Supreme Court while other claims arising out of the same transaction or occurrence will have to be heard in the Commercial or Civil Division – still two procedures before two different judges.
b. Divorce matters, currently heard by Supreme Court and custody matters, now heard in Family Court, would be adjudicated in the new consolidated Supreme Court, but that situation does not address the real and substantial problem in family law cases of a single litigant having to appear in multiple forums before multiple adjudicators. For example, in many counties, the Supreme Court handles divorces, the Family Court handles custody, and a Support Magistrate handles child and spousal support. This can mean that a litigant may go through two to three different court proceedings. These issues could be addressed with much more precision, administratively dictating a different procedure, rather than with sweeping revisions to the State Constitution. Indeed, OCA tackled this issue in part in 2001 when it created the Integrated Domestic Violence (IDV) Court, which enables a single judge to hear matrimonial, support, custody, and domestic violence issues.
c. WBASNY is particularly concerned about the proposed dissolution of Family Court. The family courts of many counties are person-centered, accessible, and designed to be as comfortable as possible for the families and children it serves. There are no filing fees, petitions can be handwritten, and attorneys are assigned where there is a right to counsel. Any consolidation must ensure the continuation of these protections.
3. These specialized courts require particularized knowledge, expertise and training on the part of the judges, court staff, and court clerks.
a. The elimination of Surrogate’s Courts is problematic because Surrogate’s Court judges are elected specifically for the Surrogate’s Courts, which are accorded special status under the Surrogate’s Court Procedure Act (SCPA), and the procedures and remedies applicable under the SCPA are dramatically different from those in other types of civil matters. In addition, the high volume of estates concerning decedents and related matters together with the high volume of matrimonial and guardianship cases, especially in the downstate courts, makes it impractical to consolidate those matters with other civil matters.
b. Rotating judges and court staff in and out of the specialized parts could cause further delays to litigants as training will be required to ensure effective and efficient adjudication of issues in these specialized areas of law.
4. WBASNY is concerned about the potential reduction of court staff and its negative impact on the overall performance of the courts. Courts across the State are already operating with reduced court staff. Any further reductions may cause additional delays and harm to litigants. Any reduction in court personnel, whether by layoffs or failure to fill vacancies, is a concern for the public generally given the volume of cases handled by the court system. WBASNY is specifically concerned about any further reduction in staff as the majority of nonjudicial employees of the unified court system are women. New York State court positions are well-paying jobs that generally provide a better work-life balance than private sector positions.
D. PROPOSAL WILL NOT INCREASE DIVERSITY
WBASNY is concerned that the merger plan would not increase judicial diversity, but would further dilute it.
Moreover, in counties throughout the State, the racial and gender diversity of the judiciary dramatically decreases beginning at the Supreme Court level. This is in part due to the cost to a candidate of running for election proving to be an additional handicap for women and people of color. Creating one level of trial court will only add to the barriers to a higher judiciary position for women or people of color.
E. TOWN AND VILLAGE COURTS ARE IGNORED
The current proposal completely fails to address the long-standing issues in justice courts with lay judges. The existing two-week training is inadequate for non-attorneys who are responsible for rendering decisions relative to money judgments, evictions and property rights, and individual liberties. We hope that future proposals with address these important courts.
As stated above, WBASNY is not opposed to examining trial courts in the State to develop proposals for their simplification or restructuring, and our members will be happy to serve on any Committee or task force that is appointed for such purpose. However, any change to Court structure should be based on sound, empirical data, which adequately demonstrates that the proposed changes will yield the desired results. The proposal to restructure and consolidate the trial courts has no such empirical support. When considering amendments to the State Constitution to restructure the court system, the proposal should be developed in a careful and studied manner, employing the narrowest possible means to accomplish articulated goals. The preservation of the constitutional rights of New York citizens to select those who will serve in their communities and in what capacities they serve should be paramount in the analysis.