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Biggest opponents to court-merger plan continues to be Supreme Court justices

Chief Admin Judge: We're very interested in alternative suggestions

November 23, 2019 Rob Abruzzese
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The New York State Senate and Assembly held their second public hearing on Thursday on Chief Judge Janet DiFiore‘s proposal to merge the court system, going from 11 courts to three in Albany, and the biggest opponents of the plan continue to be the state’s Supreme Court justices.

“New York State judges are not OCA (Office of Court Administration) resources,” said Hon. Deborah Karalunas, who sits in the commercial division in Onondaga County. “We are not OCA employees…. We are constitutional officers and our judicial independence from OCA, like the legislative and executive branches, is indispensable to our democracy and the people we serve.

“Granting OCA authority to shift judges from one position or jurisdiction to another endangers the freedom that judges must have to make unpopular decisions when the facts and existing law compel it,” continued Justice Karalunas, president of the Association of Justices of the Supreme Court of New York State.

The proposal that was put forth by the chief judge would replace the current 11-court system with a three-tiered system. This would include a merger of the Court of Claims, Family Court, Surrogate’s Court and the various county courts into one Supreme Court.

For the most part, this would not change the way judges are selected, except upstate where judges running for the Supreme Court would be able to run countywide instead of district wide. This change was often cited in hearings on Thursday and the prior week as one that would improve diversity in upstate courts.

The proposal would also eliminate the constitutional cap of one judge per 50,000 people in a district and it would authorize the legislature to change the Appellate Division departments once every 10 years.

Justice Lawrence Marks, chief administrative judge for the state, opened Thursday’s hearing by addressing a lot of the points that had been discussed in the initial hearing, particularly diversity, and then shifted the conversation to costs, which he said would be approximately $13 million per year after the plan is fully phased in.

“Judicial diversity is a very important issue, obviously,” Justice Marks said. “It’s critical to ensuring public trust so that we have credibility, and it’s been a top priority for us to promote diversity.”

Hon. Shirley Troutman, Appellate Division, Fourth Department, spoke at the public hearing to say that under the current law, true diversity is not possible in the third and fourth Appellate Division departments. She explained that Chief Judge DiFiore’s proposal is just one way the courts should work to change that.
Photo courtesy of the Office of Court Administration

Justice Shirley Troutman, who sits in the Appellate Division, Fourth Department, upstate, testified after Justice Marks and said that there is no question that the proposal would improve diversity upstate where the lack of it is much more pronounced than in New York City.

“Because only an elected Supreme Court justice may be appointed to the Appellate Division, the result is that a truly diverse Appellate Division is not attainable under current New York State law and it shows,” Justice Troutman said. “Out of 12 justices serving on the Fourth Department, I am the only judge of color. It’s worse in the Third Department. In the entire history of that department there has only been one judge of color…and she is from the Bronx.”

Justice Troutman called the problem partly systemic because upstate cities like Syracuse are included with many rural counties into judicial districts. This dilutes the vote in those cities so that rural candidates often easily win elections.

“When I ran for Supreme Court, I had to run in eight counties that were mostly rural,” she explained. “This proposal allows county judges to become part of the Supreme Court. If the proposal goes through, it will immediately increase the number of judges of color available in the Supreme Court and thus the Appellate Division.”

Opposition from Supreme Court justices

Nonetheless, some of the biggest pushback against the proposal came from the New York State Surrogate’s Court Association and the Supreme Court Justices Association.

Hon. David Guy, a Surrogate’s Court justice in Binghamton, and president of the Surrogate’s Association, said that he was disappointed that his association was not consulted at all, considering how large an impact the change would have on the Surrogate’s Court.

In New York State, judges are elected to the Surrogate’s Court. Judges are chosen by voters for 10-year terms upstate and 14-year terms in New York City. Those judges sit on that bench and they cannot be removed by OCA. In smaller districts upstate, some Surrogate’s Court judges help out in other courts, but they are not transferred out of those courts and continue to hear all Surrogate’s Court cases.

Under the proposal, OCA could theoretically assign a newly elected Surrogate’s Court judge to different courts within the Supreme Court. This could potentially happen either right away, or after a judge makes an unpopular ruling.

“This proposal changes the decision of who presides in our court from the citizens who elect us to appointed administrators in the OCA,” said Justice Guy. “We should serve in the court we were elected to. It could be argued that this is effectively disenfranchisement of our constituents with respect to the decisions they make with respect to our courts.”

Justice Marks had explained earlier that OCA would take into account specializations by judges when assigning them. However, he left open the idea that not everyone who gets elected to the Surrogate’s Court is actually qualified to sit in that court.

“Within this consolidated, enlarged Supreme Court, we would not ignore judicial expertise and experience, and we would have established divisions within the Supreme Court which would include, undoubtedly, a probate division,” Marks said. “If we had a judge, or judges, with particular expertise in trust and estates practice, which is not always the case, of course we would take advantage of the individual expertise and experience of judges.”

Justice Guy stressed that even though his association was left out of the drafting process, it hopes to work with the chief judge to amend the proposal.

Justice Karalunas was adamant that the proposal would not do as has been suggested. She explained that the often-cited situations in which people might have to go to two or three courts to handle some issues — such as a person who would have to bring related custody, divorce and domestic violence cases in three separate courts — is actually a problem of OCA’s own making that could be solved without such sweeping reform.

“Unlike the commercial division where I sit, OCA has not developed uniform rules, protocols and procedures to make for faster, smarter, cheaper Family Court litigation,” Justice Karalunas said.

She also was skeptical that the proposal would actually improve diversity at all because it wouldn’t change the appointment process. Eighty percent of appointed administrative judges outside of New York City are white and 70 percent are male.

“We urge the legislature to leave our constitutional court structure principally intact, focusing only on what needs fixing, in a restrained, circumspect manner,” she said.

In response to the criticism from the SCJA, Justice Marks said he feels that the two sides have a good relationship built on mutual respect and while he hears the criticism, he would rather hear ideas.

“We’re very interested in alternative suggestions,” Justice Marks said. “The chief justice said, when this proposal was announced, that this is a draft proposal. We wanted to put something out to focus discussion on a particular proposal, but we said from the start nothing is carved in stone…. Undoubtedly, there will be changes. I’d be shocked if this thing sailed through. We see this as the beginning of the process.

“Our goal is to get all of the judicial associations on board,” Justice Marks said

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