Issue of diversity becomes paramount during hearings on court consolidation

November 13, 2019 Rob Abruzzese

Hon. Janet DiFiore, the chief judge of the State of New York, was a potential target of “men’s rights” lawyer Roy Den Hollander. Screenshot via NYCourts.gov

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The New York State legislature held its first public hearing on Chief Judge Janet DiFiore‘s proposal to consolidate the court system and while nearly everyone in attendance felt that the court could be improved, there was a lot of disagreement over whether the proposal in front of them was the way to do it.

The proposal put forward by Chief Judge DiFiore would eliminate the current 11-court system and replace it with a three-court system that would consist of a Supreme Court, a Municipal Court and the current Justice Court system that serves towns and villages.

To do this, the Court of Claims, county courts, Family Court and Surrogate’s Court would be merged into the current Supreme Court. The Supreme Court would then be made up of six divisions — family, probate, criminal, state claims, commercial and general.

The proposal would also merge the New York City Civil and Criminal Courts, the District Courts in Long Island and the 61 City Courts in upstate New York into a new Municipal Court.

The current means of selection would remain in place, which means that voters would still vote on Surrogate’s Court judges. However, those judges would theoretically be assigned to the probate division of the Supreme Court. Under the proposal, there is nothing that prevents judges, once they are elected (as they are to Surrogate’s Court, for example), from being assigned to different courts.

The proposal would eliminate the constitutional cap of one judge per 50,000 people in a district. This would immediately increase the number of judges in Brooklyn Supreme Court, which often has to rely on judges transferred from lower courts under the title of acting supreme court justice, in order to cover the number of cases that are heard in the borough.

In addition, under the current system, judges are often elected to the Civil Court in Brooklyn and then automatically assigned, usually for two years, to the Criminal Court.

Finally, the proposal would authorize the legislature to change the number of Appellate Division departments once every 10 years. There are currently four different divisions that were initially separated into four equal parts. However, due to population shifts, the four divisions are lopsided and the Second Division, which includes Brooklyn, represents roughly 50 percent of the population of the state.

Wednesday’s hearing was led by Assemblymember Jeffrey Dinowitz and State Sen. Brad Hoylman, who chair the Judiciary Committees in their respective chambers. They were joined by State Sen. Luis Sepulveda, another member of the State Senate’s Judiciary Committee.

More than 20 people spoke at the five-hour hearing including Hon. Lawrence Marks, chief administrative judge for the state; Hon. Jonathan Lippman, the former chief judge for the state; Hon. Alan Beckoff, who sits in the Brooklyn Family Court; and Hon. Wayne Saitta, who sits in Kings County Supreme Court, Civil Term. Other speakers represented various bar associations and judicial associations from across the state.

Impact on diversity in the courts

While there was certainly no consensus on support for the proposed changes to the court system, many who spoke Wednesday raised concerns about how the changes would affect the diversity of the court system, with Sepulveda leading the charge.

After being questioned by Sepulveda on the issue of diversity, Chief Administrative Judge Marks explained that he feels that the proposal would improve diversity in the Appellate Division, the second highest court in the state, and the Court of Appeals, the highest court in the state, because there would be more Supreme Court judges eligible for promotion.

Judge Marks pointed to the third judicial department of the Appellate Division, which didn’t have a single judge of color because, he said, there were no judges of color from the pool of Supreme Court judges within that district to choose from. He said that the court was forced to ask a judge from the Bronx, Hon. Sharon Aarons, to agree to sit on the upstate court.

However, Sepulveda made it clear that he wasn’t buying that argument because judges would still need to be appointed to the Appellate Division and a bigger pool of applicants, he said, wouldn’t necessarily mean more minority appointments. Hon. Sallie Manzanet-Daniels, president of the Latino Judges Association, was similarly dissatisfied.

Justice Manzanet-Daniels said that officially the Latino Judges Association wouldn’t support or reject the proposal until a diversity impact assessment is done.

Justice Manzanet-Daniels explained that there was concern that the proposal did not directly address diversity issues. She went on to say that the Latino Judges Association was concerned that both the ease by which judges could be transferred and lifting the cap of one judge per 50,000 people could have a negative impact on the Hispanic community.

“At this time, and until information is provided that shows how they would improve the diversity of the judiciary, we as the Latino Judges Association cannot take a position,” Justice Manzanet-Daniels said.

While addressing the hearing, New York State Bar Association President Henry Greenberg, who used the word “genius” when referring to Chief Judge DiFiore’s proposal during his statement, admitted that there is a crisis of lack of diversity on the bench, particularly upstate. He said that of all of the proposals to amend the court system over the last 50 years, this was the first to address diversity, and also brought up the Appellate Division, Third Department, as an example.

Greenberg explained that under the proposal, judges elected to the Supreme Court would no longer run districtwide, but instead would run countywide. It is his belief that this would make it easier to elect judges of color.

“If court modernization went into effect on Jan. 1, you would have six more diverse judges on the Supreme Court than you now have in the Third Judicial District,” Greenberg said. “In the seven counties in those districts, it is virtually impossible for a person of color to win districtwide.”

Judicial transfers

The issue of judicial transfers was also frequently brought up. Assemblymember Thomas Abinanti noted that a hypothetical governor could appoint a judge to the Court of Claims and then immediately transfer that judge to the Appellate Division, and could even name him or her chief judge, all without an election.

Similarly, Abinanti pointed out that the current system allows for the election of Surrogate’s Court judges, who cannot be transferred out of that court. However, under the proposed plan, there is nothing to prevent judges elected to one court from being transferred to a different court, the same way judges are currently elected to the Civil Court and then immediately assigned to the Criminal Court.

In their rebuttals of this point, many speakers conflated the issue of judicial transfers and said that they would never send a judge from Buffalo to New York City, without directly addressing the issue of the Surrogate’s Court. When pressed, former Chief Judge Lippman called the issue a “straw man” and denied that there was serious reason for concern.

“It’s a dated view of the court system and this fear of a centralized administration,” Lippman said. “Every court system in the country has gone to this centralized system.”

In response to the issue of judges being appointed to a lower court only to be promoted immediately to the Appellate Division, Hoylman suggested the possibility of State Senate confirmation hearings. When presented with this idea, Hon. Carmen Beauchamp Ciparick said it was an interesting idea that she would be open to.

Multiple courts, multiple judges

One of the biggest claims made by proponents was that with less division in the courts, resources could more easily be allocated. Judge Marks brought this up when he talked about the 2008 housing crisis. He explained that the system had made it hard to give proper attention to the foreclosure cases that rose out of it, and that as a result, nearly 12 years later, the court is still dealing with a backlog of foreclosure cases.

Another common complaint is that, especially in the Family Court, litigants can often be in front of two, or even three or more, judges for related issues.

Hon. Alan Beckoff, president of the Association of Family Court Judges of New York State, said that one family can come to his court for a custody hearing, but have to go to a different court for related domestic violence issues and another for the divorce. He explained that what happens is that one part of the case can be put off or judges in different courts can give conflicting orders.

This sentiment was echoed by the Legal Aid attorneys who spoke at the hearing. However, Abinanti questioned whether this real issue could be solved in a way that didn’t include such a drastic merger.

“Everybody is assuming that you are going to have access to a Family Court with the professional organization of the Supreme Court,” Abinanti said. “What I’m hearing today are all of the complaints and problems, and they’re real, but I’m concerned with how this proposal would solve them. I don’t understand how this solves a problem.”

What’s next

There will be another hearing on the merger proposal in Albany next week. Judge Marks said that by that time, the Office of Court Administration would have a financial report detailing the expenses of the merger, which he estimated to be approximately $13.1 million, primarily to cover raises for judges and their staff.

Merging the courts as proposed would require an extensive process. The proposal would have to go in front of the state legislature for a vote, potentially twice, and finally would have to be put in front of the voters in a referendum. The chief judge expressed a hope that this could be done by 2022 to begin a five-year phase-in that would be completed by 2027.

Similar proposals have been made over the years; in fact, five major proposals have been made to revamp New York’s courts over the last 50 years. This time, however, the proposal could be considered for the first time by a wholly Democrat-led legislature, a significant difference, according to many observers, who suggested that having both the State Senate and Assembly under Democratic control could make passage more likely.