by Janet DiFiore, Chief Judge, State of New York
New Yorkers need a simple-to-navigate, equitably-structured court system that delivers first-class justice services to every litigant in every court—regardless of who they are or where they come from in life.
Over the last 22 months, the Bench and Bar have traveled a long and arduous road together. We have transformed and reinvented the ways in which we deliver our services in order to safely manage our workloads and ensure access to justice for all New Yorkers. In the New York State Courts, we have established a productive “new normal” that relies on our hybrid model of in-person and virtual court operations to deliver justice services to lawyers and litigants during the ongoing public health crisis. Furthermore, our court system has led the state in implementing important COVID preventative policies, such as the mandatory vaccination program for all judges and court staff that took effect last September. As a result, our court system is well-positioned to meet the evolving challenges of the pandemic and resume the forward progress of the “Excellence Initiative.”
Notwithstanding the relentless day-to-day operational pressures of the pandemic, our judges, staff and court leaders have never stopped working to improve the administration of justice, including working to eliminate systemic racism and bias from the courts. In June 2020, following the killing of George Floyd, a watershed moment on issues of race in our nation, I asked Jeh Johnson, a prominent New York attorney and former U.S. Secretary of Homeland Security, to conduct an independent, no-holds barred review of our court system’s policies and practices as they relate to issues of racism, bias and disparate treatment.
After conducting a rigorous four-month study, Secretary Johnson promptly issued a comprehensive report in October that commended our judges and staff for their commitment to equal justice but identified significant problems in need of attention and reform, including the “second-class” treatment of people of color in our high-volume courts, instances of racial intolerance within our court family and the need for greater diversity and inclusion.
We wasted no time in embracing and implementing Secretary Johnson’s report and recommendations. This past November, we issued a “Year in Review Report” documenting the extensive progress we have made to operationalize dozens of equal justice reforms—starting with the public commitment I have made, on behalf of our entire court system, to achieve a policy of “zero tolerance” for racial bias and discrimination, as well as mandated comprehensive racial bias training for all judges and nonjudicial staff, and many more. Equal Justice in the New York State Courts Year in Review: 2020-2021, November 2021.
Stated simply, we are working tirelessly to address every single one of the equal justice challenges that we have the power to remedy. However, as Secretary Johnson aptly recognized, some of these challenges are so extensive and systemic in nature that the judicial branch alone does not have the power to make the necessary changes. Rather, it will take the coordinated efforts and support of all three branches of government to fix the “dehumanizing” conditions in our “under-resourced” and “over-burdened” family, civil and criminal courts—conditions that create the perception of a “second-class system of justice” for the low-income, unrepresented litigants of color who predominantly appear in those courts.
Many factors undoubtedly contribute to the appearance (if not the reality) that there are two justice systems at work in our state, but there is one factor that stands out above all the others. New York has the most outdated, convoluted and inefficient trial court structure in the nation—a confusing conglomeration of 11 separate trial courts, each with its own jurisdiction and procedure, that has not been meaningfully updated since 1962. The rigid, antiquated barriers separating the trial courts in our so-called “Unified Court System” severely restrict our ability to flexibly and rationally manage and assign people and resources among the different trial courts in order to meet the demonstrated needs of our litigants. The result is that one or more courts in our system may be struggling with backlogs and delays while other courts down the street may be underutilized by comparison. This system creates obvious disparities in the provision and quality of justice services, and these disparities continue to be most apparent in the over-burdened high-volume courts that serve low-income litigants, including unrepresented litigants of color.
Some of the most egregious consequences of our fragmented court structure fall on the most vulnerable families who are forced to pursue related legal issues (divorce, child custody and support, domestic violence) before different judges in multiple courts (Supreme Court, Family Court, Criminal Court), leading to more court appearances, more lost work-days, more childcare and transportation expenses, more stress and frustration—and less trust and confidence in the courts and the justice system.
A recent op-ed by three respected, experienced justice system leaders described how the disparities inherent in this “wasteful and balkanized” system were greatly exacerbated during the pandemic, resulting in “radically different experiences for litigants depending on their racial, economic and geographic backgrounds.” Edwina Mendelson, Ronald Richter and Juanita Bing Newton, “Finally Bring Order to N.Y. Courts,” Daily News, Nov. 16, 2021.
These systemic disparities are deeply troubling and unacceptable. It is up to us in the Bench and Bar to lead the way in making certain that our partners in state government, and the public we serve, understand the urgent need for court reform and simplification.
During the 2022 Legislative Session the Judiciary will submit to the Legislature a proposal to amend Article VI of the New York State Constitution which, in the broadest strokes, will create a simple, modern, equitably-structured court system consisting of: (1) a single statewide Supreme Court into which the Court of Claims, County Court, Family Court and Surrogate’s Court will be merged; (2) a single statewide Municipal Court replacing the New York City Civil and Criminal Courts, Nassau and Suffolk District Courts and 61 upstate City Courts; and (3) the Town and Village Justice Courts, which will not be affected by our proposal. The proposal will also lift the long-outdated constitutional cap on the number of Supreme Court Justices and authorize the Legislature to increase the number of judges available to hear and resolve the three million-plus cases filed in our state courts each year.
We believe that we have developed a sound proposal for meaningful reform, but we welcome the input and constructive suggestions of our judicial, bar and stakeholder partners on how to remake our state courts into a model of efficiency and equity. We are grateful to Senate Majority Leader Andrea Stewart-Cousins and Assembly Speaker Carl Heastie for their consideration of our court simplification proposal. We are optimistic about gaining their support, and that of Governor Kathy Hochul, for a measure that creates a simple, easy to navigate, equitably-structured and resourced court system that is equipped to provide every litigant, in every court, with first-class justice services.
Court simplification is not a new idea. Over the last 50 years, virtually every Governor and Chief Judge has championed the need to modernize our state’s super-complicated court system. However, the pandemic has brought a heightened sense of urgency to this issue, casting a harsh and revealing spotlight on how the shortcomings of our current system are felt most deeply by low-income litigants of color seeking justice services in our over-burdened and under-resourced family, housing, criminal and civil courts.
The public health crisis temporarily interrupted our progress toward achieving court simplification in the Legislature over the last two years, but it has also created a growing sense of urgency, one shared by the unprecedented coalition of more than 100 judicial, bar, legal service, business and good government groups that have voiced enthusiastic support for court reform.
We look forward to working with President T. Andrew Brown, President-Elect Sherry Levin Wallach, the Board of Delegates, and every member of the State Bar on this issue that is so vital to our collective ability to meet the modern-day justice needs of all New Yorkers. For decades the State Bar Association has steadfastly supported constitutional simplification of the courts as a “matter of supreme importance to the legal profession.” Report and Recommendations Concerning Whether New Yorkers Should Approve the 2017 Ballot Question Calling for a Constitutional Convention, Committee on the New York State Constitution, April 20, 2017, at 22.
The time for action is now. In New York, the State Constitution may be amended by legislative action when two separately elected Legislatures vote to place an amendment on the ballot and the voters approve the proposed amendment at a general election. First passage in 2022, followed by second passage in 2023, coupled with a voter referendum in November 2023, would assure our ability to begin transforming and simplifying our court system as early as Jan. 1, 2025.
The people of this state cannot afford to wait any longer. For decades, the same communities have shouldered the systemic inefficiencies and disparities of a trial court structure that is frozen in the 1950s. New Yorkers need and deserve better from their leaders. New Yorkers need a simple-to-navigate, equitably-structured court system that delivers first-class justice services to every litigant in every court—regardless of who they are or where they come from in life. Let’s work together to get this done. Nothing could be more important.