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President's Message | July/August 2017 Newsletter

 

Every 20 years the New York State Constitution mandates that voters determine there should be a Convention to amend the State Constitution. Yes, this sounds terribly dull but the vote this November could have far-reaching effects on our court system.

First, a couple of fun facts about the New York State Constitution. It is six times longer than the United States Constitution and affects everything from the structure of the courts, schools and local government, to the development of the Adirondacks. In the 20th century the question of whether to hold such a Constitutional Convention was voted on six times, resulting in Conventions held in 1915, 1938 and 1967. Opponents
and proponents of proposed Conventions often point to the court system as a prime example of what does or does
not need reform. One thing is for certain, the only way the New York State court system will be reformed is if there
is a Constitutional Convention and the politicians have the will to see the reform through.

Most would agree that New York has an archaic and bizarrely convoluted court structure. Other states have long ago streamlined their courts to make them efficient, attractive to business and sensitive to the needs of the litigants. New York has 11 separate trial courts. By contrast, California, a state with twice the population, has only one. New York continues to operate a blizzard of overlapping courts: Supreme Courts, County Courts, Family Courts, Surrogate Courts, a Court of Claims, New York City Criminal and Civil Courts, District Courts, City Courts, and Town and Village Justice Courts.

This complex structure imposes additional costs on both litigants and taxpayers. For example, injured individuals, large and small businesses, and state agencies must litigate cases simultaneously in the Supreme Court and in the Court of Claims whenever the State and a non-state actor are named as potential joint defendants in a personal injury medical malpractice or commercial disputes. This is ridiculous. Families must run from court to court when resolution of a single problem is fragmented among the Supreme Court, Family Court and Criminal Court for separate adjudication of matrimonial, custody and domestic violence matters. Children and others in guardianship cases sometimes must proceed simultaneously in Surrogate Court and Family Court to address related matters in the case of an orphan child.

In 2006, former Chief Judge Judith Kaye appointed a special commission to address the need for structural and operational reforms in the court system. The commission studied the court system and its inefficiencies. The commission conducted four public hearings and visited town and village courts throughout the State to gather information on the local justice system from a wide range of perspectives. Their findings were not a surprise.

In February 2007, after seven months of intensive study, the commission published a 175-page report detailing its findings and recommendations for reform. Specifically, the commission proposed a consolidation of the State’s eleven major trial courts into a streamlined, two-tier structure. It recommended merging into the Supreme Court with the Court of Claims, the County Courts, the Family Courts and the Surrogate Court. It proposed the creation of a fifth judicial department to ease appellate burdens. The commission also recommended sweeping reforms of New York’s vast network of small town courts. They noted hearings were often held in garages, barns and kitchens, by more than 1,450 judges, who were not lawyers.

The commission, which was bipartisan, concluded that these reforms would greatly improve the administration of justice and save litigants, the state and the economy over $500 million per year. The Chief Judge endorsed the commission’s finding in her State of the Judiciary address and Governor Spitzer proposed a constitutional amendment to restructure the court system that included nearly all of the elements proposed by the commission.

Judge Kaye’s proposal died a quick death in the New York Legislature and nothing has been done since. The sponsor of the proposal said its opponents claimed it threatened the stature of justices, who were often influential in local politics. Town and village justices reacted furiously to the criticism contained in the report, arguing that the same was an attack on democracy itself. Their organization, the State Magistrates Association, argued it was a costly proposal perpetuated by downstate critics. They labeled the bill a “clear and present danger.”

In many respects, this debate is not new. In the 1920’s, New York State Governor Franklin D. Roosevelt criticized the justice courts as “an outworn system.” In the 1950’s, the respected Tweed Commission, which studied the state courts for more than five years, initially recommended the abolition of the justice courts, only to reverse that recommendation in a subsequent report after recognizing the depth of the political community’s support for the
justice courts. In the ensuing years, numerous commissions, task forces, and other observers pressed for the reform or outright abolition of the justice courts.

On June 19, the New York State Bar Association voted 111 to 28 to endorse a Constitutional Convention. A day earlier, its Executive Committee voted unanimously to support a convention. The State Bar’s report sharply criticize the Article IV of the Constitution, known as the Judiciary Article, which totals 16,000 words. In contrast, the Judiciary Article of the U.S. Constitution is only 375 words. The report calls for a massive restructuring of the state’s court system. “For too long lawyers and their clients have had to accept and endure a costly and byzantine system that few understand, and no one can justify,” it says. “Despite the best efforts of reformers, the Legislature has shown little interest in consolidating trial courts or taking other steps that would significantly improve the delivery of justice.” 

As the profession that utilizes the court system should our County Bar Association take a position on this issue? Do we owe it to the public to make a recommendation either for or against reform of our court system? As current President of the ACBA, several well-respected attorneys who have suggested the ACBA take a positon similar to the NYSBA have approached me.

So, the question I pose to you this month is whether the ACBA should issue a proclamation that either supports or opposes a New York State Constitutional Convention. Please consider sending me an email with your opinion. I will not use names, but will report opinions and a consensus if there is one.

 

James E. Hacker, Esq.

 ACBA President

 

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