Testimony Before Joint Legislative

Hearing on Court Restructuring

October 7, 1997

Judith S. Kaye

Thank you for this opportunity to speak about the need for comprehensive court reform in New York State. Let me get right to the point and give you a Chief Judge’s perspective on the central issue of trial court consolidation and simplification.

"The judicial article of the Constitution begins:

'There shall be a unified court system for the state.' The reality is otherwise. New York has no unified court system. It is a constitutional fiction. New York has an inheritance of a colorful but confused and sprawling mass of 11 trial courts Of course, there are historical, political, and even sentimental forces which militate against [restructuring But] unless we overcome the institutional resistance and traditionalism, the ideal of a unified court system will remain, as it is today, a noble-sounding but lifeless sentence tucked away in the Constitution."

Those are the words of one Chief Judge of the State of New York--Charles D. Breitel--in an address to the Legislature on February 27, 1974, almost a quarter-century ago. As the current Chief Judge, I concur fully in Judge Breitel’s view, which by the way has also been the view of every one of my predecessors: unless we overcome the institutional resistance to change, the ideal of a unified court system will remain, as it is today, a

noble-sounding but utterly lifeless, meaningless sentence in our Constitution.

I feel especially fortunate today in not sharing a problem that confronted Chief Judge Breitel back in 1974--the Administrative Board’s lack of full support for consolidation. Today, I am pleased to say, the Administrative Board--consisting of Presiding Justices Francis Murphy, Guy Mangano, Anthony Cardona and Dolores Denman, who are seated with me--agree that court restructuring is an idea whose time has come. They are with me and behind me in every sense. (Indeed, we’ve reserved a seat--it’s vacant today, as you see--for the Presiding Justice of the Fifth Department. He, or she, I am confident, would also be with me and behind me on this.) So is Chief Administrative Judge Jonathan Lippman (my "sidekick," according to Saturday’s Daily News)--who later in the course of these hearings will address the details of the various proposals. I’d like to focus my testimony today on broad concepts, centering especially on what is for us and has consistently been the key element of comprehensive court reform: trial court consolidation.

Not only Chief Judges but also legions of policy experts, good government groups and bar leaders have for years advocated consolidation and simplification. No less than 30 separate commissions have produced mountains of reports on the issue. Each succeeding decade has seen its own blue-ribbon recommendations on restructuring: the Tweed Commission in the 50s, the Temporary Commission on the Constitutional Convention in

the 60s, the Dominick and Vance Commissions in the 70s, the Barclay Commission in the 80s, and more.

Why have so many knowledgeable, well-intentioned people continued to pursue the elusive goal of consolidation? That’s the first of three questions I intend to consider today--and it’s most easily answered with a capsule description of the current structure of the New York trial court system.

We have an organizational flow chart no business executive would be caught dead with--and no State judiciary should either. We have eleven separate trial courts, each with its own jurisdictional hurdles and technicalities. We have City Courts, Civil Courts, County Courts, Courts of Claims, Criminal Courts, District Courts, Family Courts, Supreme Courts, Surrogate’s Courts, Town Courts, Village Courts. We say we want the public

to trust and respect our system of justice, but then we hand them this juridical maze that requires a roadmap and compass to navigate. I challenge any among us to explain all the jurisdictional limitations and permutations in our current system. Surely none of us could explain to the public why we need to perpetuate them.

The problem, of course, is not one that simply afflicts law students studying New York practice. The reason so many knowledgeable, objective observers continue to be concerned about our fragmented trial court structure is that it imposes unnecessary obstacles for those seeking, as well as those providing, justice.

Take, for instance, the example of a husband filing for divorce in Supreme Court, with the wife suing for custody in Family Court. Why should a single family dispute ever be split between two forums? It means more court appearances, more delay, more expense, more aggravation--and possibly the ultimate litigation nightmare: inconsistent results regarding this family’s future. Or take the example of a car accident on a State highway that can spawn lawsuits both in the Court of Claims, where only the State can be sued, and the Supreme Court, where damages and cross-claims involving other parties can be litigated. Try explaining that to an injured plaintiff and you’ll understand why reform has been so persistently advocated.

The New York State courts expect to receive close to four million new filings this year. We work hard to use the resources we have as sensibly as we can to manage this huge and ever-changing docket. The current patchwork system cuts against our efforts. Artificial boundaries limit our ability to deploy judges and staff to where they’re most needed. Arbitrary restrictions force us to improvise second-best solutions such as borrowing judges from one overworked court to meet the exigencies of another.

These, in short, are just a few of the concerns that have motivated the well-informed, well-intentioned citizens throughout the decades to urge the consolidation of the New York State trial courts.

My second question, then, is how should those concerns be

addressed? By a sensible, straightforward two-tier trial court system. The first would be the Supreme Court, the general trial court of unlimited jurisdiction, with divisions for criminal, commercial, family, probate and public claims matters. The second tier would be the District Court, which would hear matters now heard by the New York City Criminal and Civil Courts, the Nassau and Suffolk County District Courts and the 61 upstate City Courts. The Civil Court, as you know, includes the Housing Part, which disposes of hundreds of thousands of matters annually yet isn’t even a constitutional court. Consolidation would bring the status of this court in line with its important role in today’s society.

This simplified scheme would cure many of the shortcomings of the present system and end the intolerable practice of litigating one case in two courts.

Nowhere would the benefits of a unified system be felt more than in family matters. Family cases, particularly those involving children, need speedy and definite resolution. A family law division in the Supreme Court will mean that one family’s legal problems will be resolved by one judge.

And importantly, a unified system will also finally put an end to the "neglected stepchild" status of the Family Court. No one today needs to be reminded that the cases brought to the Family Court--whether child abuse or chid support or juvenile delinquency or domestic violence--have serious implications both for the parties involved and for society. We have been working

hard to improve the functioning of this court as it is presently constructed. But true reform requires a new structure--one that will ensure that all family-related disputes receive the respect and resources they are due.

The proposed simplified structure eliminates the archaic constitutional cap on the number of Supreme court justices. It thus effectively dismantles the current "rob Peter to pay Paul" system of so-called temporary judicial assignments--a system that no doubt mystifies most citizens and impairs the ability of the "donor" courts to mange their own heavy caseloads.

An additional benefit of trial court consolidation would be enlarging the pool of judges eligible for designation to the Appellate Division and Appellate Terms. This will create new opportunities for a number of talented jurists to rise through the ranks of the system--especially women, minorities and judges with backgrounds in family and other areas of the law.

I have focused this morning on the broad outlines of trial court consolidation. There are, of course, many aspects to the proposals that other witnesses will undoubtedly discuss in depth during your four days of hearings.

One important example is the recommended creation of a Fifth Judicial Department. When the current Four Department system was established over one hundred years ago, the State’s population was evenly distributed. Today, one out of every two New Yorkers lives in the Second Department--which has led to an entirely disproportionate distribution of the caseload burden. Creating a

Fifth Department would bring our intermediate appellate court structure more in line both with the constitutional design and with the current realities.

Another important example is the additional issue of funding for civil legal services, which is part of the Assembly proposal. All of us are of course concerned with the issue of equal access to justice for all New Yorkers. The court system has in the past taken steps to promote the provision of pro bono services by members of the bar. I am not today prepared to say that I know what the next step should be--but I certainly pledge our cooperation in trying to develop creative, workable programs that will improve the state of justice for all New Yorkers. Indeed, we will very shortly be announcing a new initiative to explore broader solutions for the growing problem of funding for civil legal services.

In short, I think it’s perfectly clear that the persistent concern about our fractured court system is well founded. And I think it’s perfectly clear that the proposed reforms would go a long way toward assuring the citizens of this State the court system they need and deserve. But a third, and final, question remains: why now? After all the ink that has been spilled over the years on this subject, after all the trees that have been sacrificed for this noble cause, why should we expect that this proposal will make any larger ripple than its hapless predecessors?

First, because we have done our homework, and attempted to

use the many past failures constructively. We have reached out to other branches of government and affected constituencies to craft a proposal that is practical--one that is flexible enough to accommodate the variety of interests affected but far-reaching enough to accomplish the necessary reform.

Our proposal does not, for example, attempt to resolve this State’s longstanding debate on the selection process for judges, and it does not attempt to merge all trial courts into one. Those highly charged issues have doomed previous reform efforts--and many benefits of consolidation can be realized without them. So we have severed those issues--knowing that the debate can continue while essential reform proceeds. In that same vein, the bill fixes no boundaries for the proposed Fifth Department. Rather, it sets up a procedure for drawing the lines--a procedure that allows for further discussion as the specifics are hammered out.

The second answer I give to the question of "why now" is that now more than ever the public has little patience for ineffective government. The public wants courts that are comprehensible, efficient, responsive. "It’s always been that way" is simply not an acceptable excuse. The public wants performance, now.

We hear so much today about public distrust of government--indeed, many of the supporters of a constitutional convention argue that nothing less will suffice in order to remake the entire system. However one might feel about that issue, these

court restructuring proposals offer a real chance to show that government today is responsive, that government today can work for the public’s benefit. A streamlined, sensible court structure is good for New York’s taxpayers, New York’s business community, New York’s families, New York’s litigants. This is an opportunity for a reform that shows government at its best: searching for creative solutions that allow the greater good to prevail.

I thank and applaud you for taking the crucial first step with these hearings. I am optimistic that on these proposals we can build a blueprint for a court system to meet the challenges of the next millennium.

Just a few years ago, we joined together to initiate long-needed reforms in our jury system that no political realist ever dreamed possible. Let’s do it again. Let’s take this opportunity to design a court structure that puts the public’s needs first. Let’s put life into that high-sounding but meaningless sentence tucked away in our Constitution by creating a unified court system for the State of New York.