March 31, 2020
Re: NY State Fiscal Year 2020-21 Executive Budget Proposal
In usual years, the Women’s Bar Association of the State of New York (“WBASNY”) publishes and circulates its positions to members and legislators on the New York State budget legislation. Due to the COVID-19 pandemic, we are not operating as usual. The normal process of getting to a final budget resolution has been hampered since, as to be expected, the focus has been on handling this crisis. While we are currently living through an unprecedented time in state politics due to the COVID-19 global pandemic, rest assured our legislative consultants have worked diligently to ensure WBASNY’s positions have been communicated to the legislature and the Governor’s office. Legislative advocacy on WBASNY’s behalf has continued and our collective voice has been heard.
As we approach the new fiscal year that begins tomorrow, April 1, final agreements are being reached in Albany. As the final budget bills are released, we will be reviewing these bills and sharing the outcome with you. For your information, we wanted to share the positions WBASNY has taken on various proposals in the Governor’s budget proposal to the legislature (in addition to those included in prior press releases).
WBASNY appreciates the Governor’s continued objective to address the numerous challenges women and children face in our society. WBASNY members and leadership have reviewed various sections of the Executive Budget Proposal for State Fiscal Year 2020-2021 that we believe would have a significant impact on women and children. Our positions and discussion on these sections are addressed below.
Education, Labor and Family Assistance Article VII Legislation
Part J – Guarantee Access to Sick Leave
WBASNY supports the addition of Section 196-b to the New York State Labor Law providing for the implementation of job protected sick leave for New Yorkers, thereby providing workers with a healthier work environment and protected time off to recuperate from illness and/or seek medical care. The law protects vulnerable, disempowered workers without leverage to negotiate for these minimal standards of employment, which falls within WBASNY’s mission of being a voice for the powerless and disenfranchised.
The law does not impose undue hardship on employers since it takes into account the size of the employer in determining the number of sick days required to be offered and whether sick leave is to be paid or unpaid. Per the new law, employers must provide a minimum number of sick days each calendar year as follows: four or less employees must provide five days of unpaid sick leave; five to ninety-nine employees must provide five days of paid sick leave; and one hundred or more employees must provide seven days of paid sick leave.
Part L – Legalizing Gestational Surrogacy
In considering support or opposition to compensated surrogacy agreements, WBASNY members weighed the benefits of the legislation against the uncertainties and risks for women and children. Most concerning to WBASNY are the inherent health risks to the gestational carrier and resulting child, and the risks of exploitation and human trafficking of vulnerable populations, including immigrants. Surrogates are disproportionally from a lower socioeconomic class than the intended parents. Such power imbalance could create an environment whereby consent cannot be truly informed, or where a woman could be forced into surrogacy arrangements.
Despite the fact that a marketplace in compensated surrogacy has the potential to exploit and endanger disadvantaged women and conflict with other laws, WBASNY supports permitting enforceable surrogacy contracts, provided the carrier is not the genetic mother of the child, provided there is full compliance with all of the safeguards incorporated in this Part and strongly urge the inclusion of two additional protections.
– WBASNY believes the duration the intended parents have to pay for health insurance for the surrogate should be the same as the duration the intended parents have to pay for the surrogate’s unreimbursed medical insurance, and recommends that it be paid for the duration of the surrogacy contract, plus twelve (12) weeks after the birth. The twelve (12) weeks shall be extended to six (6) months if there is a medical complication related to the pregnancy before the twelve (12) weeks ends.
– WBASNY also recommends the surrogacy agreement shall require the surrogate to be a United States citizen or a lawful permanent resident or “other habitual lawful resident” as opposed to “or other habitual resident.”
Part M – Comply with Federal Family First Prevention Services Act
WBASNY strongly supports this part which would enact changes required to comply with the Federal Family First Prevention Service Act regarding the placement of youth in a residential treatment program. The Federal Family First Prevention Services Act was designed to limit placement of children in group homes and encourage placement in family homes with additional services.
Health and Mental Hygiene Article VII Legislation
Part O – Expand the Sexual Assault Forensic Examiner (SAFE) Program
WBASNY supports the expansion of the SAFE program to all New York State hospitals with an emergency department. The hospital shall ensure that victims of sexual assault are met by a forensic examiner within sixty minutes of their arrival and, upon consent are promptly examined by a forensic examiner in a private room designated for such examinations. The examination includes the medical forensic history, medical examination, coordination of treatment for injuries, documentation of biological and physical findings collection of evidence, documentation of findings, treatment, referral for sexually transmitted infections, pregnancy, suicidal ideation, alcohol and substance abuse and other non-acute medical concerns and assessment for additional treatment and services.
Public Protection and General Government Article VII Legislation
Part C – Close the Rape Intoxication Loophole
WBASNY supports closing the loophole to clarify that a victim’s ability to consent is jeopardized whether they were voluntarily or involuntarily intoxicated. While recognizing the issues are sensitive and not simple, there is a concern that any time someone has a drink they could claim an inability to consent. It is a grey area when one party to a sexual encounter claims the other one should have known his/her/their condition. Thus, WBASNY recommends closing the loophole and incorporate language that a person “knows” the other person is intoxicated and are incapable of consenting rather than the “reasonably should know” standard.
Part G – Authorize the Transfer of Adolescent Offenders from Department of Corrections and Community Supervision to Office of Children and Family Services
WBASNY supports this part which will allow the Department of Corrections and Community Supervision to transfer adolescent offenders to OCFS and in doing so, would allow the current facilities allocated for these offenders to be repurposed into medium security facilities. In addition, it would further align with the Executive’s original Raise The Age proposal. WBASNY supports this part as it is in keeping with the Raise the Age legislation.
Part L – Improving Efficiency in the Investigation of Online Sexual Exploitation of Minors
WBASNY opposes this section which would establish administrative subpoena authority regarding investigations of online offenses against minors. Individual rights under the 4th Amendment would be curtailed under this Part. The current statutes that provide for Search Warrant Applications and Subpoena Process ensure the protection of an individual’s 4th Amendment rights. WBASNY recognizes and agrees that minors should be protected against online predators. However, this Part implicates very intrusive privacy violations. In addition, this Part would relieve the prosecutor of the obligation to provide strong factual allegations rather than “investigative hunches.” Moreover, WBASNY has concerns about providing the Superintendent of State Police the authority to review and authorize such administrative subpoenas rather than by a Supreme Court Justice or Criminal Court Judge.
Part M – Remove Guns from Domestic Abusers
WBASNY supports this Part which would remove guns from domestic abusers by authorizing law enforcement to remove guns from the scene of a domestic violence incident. It would also ensure abusers lose access to firearms immediately upon a domestic violence misdemeanor conviction. Additionally, it would provide for the removal of firearms from the home of an individual who becomes subject to a protective order arising out of a domestic dispute.
Part N – Disqualify Individuals from Gun Ownership if They Commit a Serious Misdemeanor Offense in Another State
WBASNY supports this Part which would prohibit individuals from obtaining a gun license who commit serious offenses out-of-state that would disqualify them from obtaining a gun license if committed in the State of New York.
Part Q – Establish a Domestic Violence Misdemeanor
WBASNY opposes this Part which would establish a conviction for “domestic violence” and the abuser would lose access to firearms. WBASNY opposes this Part because current Criminal Penal Law already provides that the people may serve upon a defendant and file with the court a notice alleging such offense was committed against a member of the same family or household as the defendant. Thus, it appears this Part is duplicative of current penal law.
Part T – Provide a Variable Market-Based Interest Rate on Court Judgments and Accrued Claims Paid by Public and Private Entities
WBASNY strongly opposes the Governor’s budget proposal that provides a market-based interest rate on court judgments and accrued claims, and replaces the provision of the CPLR that provides for nine percent per annum interest on judgments for damages (except where otherwise provided by statute). This provision would have a devastating effect on the less-monied spouse in a matrimonial action, which unfortunately will harm women and children more often than men.
Part PP – Strengthen Protections for Domestic Violence Victims Seeking a Divorce
WBASNY strongly opposes this Part for the following reasons: (1) the Court already possesses sufficient authority under the Domestic Relations Law to avoid an inequitable or unjust result when distributing marital property or awarding spousal maintenance; (2) the anticipated overreaching consequences of this proposed legislation; (3) enactment of the proposed legislation will re-introduce the issue of marital fault in divorce litigation – which WBASNY fought against for many years in the ultimately successful quest for no-fault divorce; (4) the ambiguity of the phrase “meaningful” employment invites litigation; and (5) as written, the language could actually work to the benefit of the alleged abuser who could argue they should receive a greater share of the assets because their earning capacity has been inhibited as a result of a felony conviction for abuse.
With respect to the equitable disposition of marital property, current Domestic Relation Law permits the Court to consider “any other factor which the court shall expressly find to be just and proper.” The general rule in New York has long been that marital fault should not be considered in determining equitable distribution of marital property.
It has been repeatedly emphasized that the marriage relationship is to be viewed as, among other things, an economic partnership and that upon its dissolution the accumulated property should be distributed on the basis of the economic needs and circumstances of the case and the parties. Thus, WBASNY concludes that, as a general rule, the marital fault of a party is not a relevant consideration under the equitable distribution law in distributing marital property upon the dissolution of a marriage.
Part RR – Expansion of Access to Civil Orders of Protection in Family Courts
WBASNY opposes this part because it authorizes a court to issue an order of protection without an allegation of a specific family offense as defined in FCA 812(1) so long as the respondent is the spouse, former spouse, parent, child or other member of the same family or household, and there is an allegation that “circumstances exist that require an order of protection for the purposes established in FCA 812(2)(b)” namely, to stop the violence, prevent family disruption and obtain protection. While WBASNY wants added protect for victims of domestic violence, this bill may encourage groundless allegations of domestic violence as a negotiating tool in litigation by the abuser.
Governor’s Freestanding Article VII Legislation
Equal Rights Amendment
WBASNY has long been an ardent supporter of amending the New York State Constitution to include sex as a protected class. WBASNY is extremely pleased that in addition to sex this amendment would also include other characteristics that have already been recognized under the New York Human Rights Law as protected classes, namely: ethnicity, national origin, age, disability, sexual orientation, and gender identity or expression. WBASNY applauds this amendment that is long overdue and which will solidify equality under New York Law in a more permanent and enduring way.
Court Restructuring – Oppose
WBASNY has solicited opinions from our 20 Chapters throughout the State, our numerous committees, our Board and our members regarding the proposal to restructure and consolidate the trial courts. The following is a summary of the comments received:
A. WBASNY SUPPORTS SIMPLIFICATION
While 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 and gives to unelected administrators the power 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. 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 CONSTITUTIONALLY-ESTABLISHED TRIAL COURTS
1. WBASNY believes that the idea that the elimination of five constitutionally-established trial courts – Family Court, County Court, Surrogates Court, Court of Claims and City Court – 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. 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.
– 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.
– 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.
– 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.
– 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
1. WBASNY is concerned that merger plan would not only not increase judicial diversity, but would further dilute it, particularly outside of New York City. Under the current system, the Governor, Mayor of New York City and OCA have had the power and ability to ensure diversity through appointments. Limiting the appointments by the Governor and Mayor may result in less diversity in Municipal Court, Supreme Court, and the Appellate Courts.
2. WBASNY is concerned that by eliminating Acting Supreme Court judicial positions, the appointment to Municipal Court will permit no upward mobility. Municipal Court judges will not be eligible for Supreme Court without going through the elective process, thereby limiting the ability of trial court judges to advance to higher judicial office.
3. In counties throughout the State, the racial and gender diversity of the judiciary dramatically reduces in negative correlation to the level of the court. Restricting upward mobility will only add to the barriers to a higher judiciary position for Municipal Court judges who are women or people of color.
4. Moreover, currently, judicial candidates who are or were prosecutors or public defenders often seek appointments as judges through the New York City Mayor’s or Governor’s Committees rather than through the more political– and more costly — elective process. The cost of elections has historically also been an additional handicap for women and people of color. As a consequence, WBASNY believes that the quality of judges sitting on criminal cases will be diminished.
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.
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, that 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.
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.
Very truly yours,
Deirdre L. Hay, Esq.