Last week, New York state’s top judge blasted the court system over which she presides as “the most inefficient, outdated, fragmented and needlessly complex trial court structure in the nation.” And those failings, she asserted, have long denied equal justice to children and parents with the fewest resources.
“While in no way intended to, our obsolete trial court structure breeds undeniable disparities,” Chief Judge Janet DiFiore said last week in her annual address. “History and experience have proven the point beyond any reasonable doubt: The worst consequences of our antiquated trial court structure fall on the backs of vulnerable families pursuing related legal issues.”
In her State of Our Judiciary speech Wednesday, Judge DiFiore proposed systemic changes to improve access to justice for struggling families and traumatized children, by making the state court more efficient and simpler to navigate.
Her plan includes consolidating 11 trial courts into two. Under the proposal, Family Court — which handles cases of child maltreatment, custody, juvenile crimes and domestic abuse — would become part of the state Supreme Court. DiFiore also called for lifting a century-old cap on the number of Supreme Court justices, and for doubling the pay of lawyers who represent children and indigent adults.
The change would require a constitutional amendment passed by both the state Legislature and voters.
DiFiore’s proposed changes follow years of critique of the New York Court system. A 2007 special report commissioned by then-Chief Judge Judith Kaye described the state courts as “profoundly inefficient” and “an organizational morass.” Calculating that the court system wasted roughly $500 million in taxpayer funding each year, the authors recommended merging many smaller courts into a few larger ones.
Today, more than 100 organizations have joined a statewide coalition called “Simplify the Courts!” that includes the Council of Family and Child Caring Agencies, the New York chapter of the Children’s Defense Fund, the Legal Aid Society and eight New York City-based foster care agencies.
“The chronic case overload in housing, criminal and family courts causes delays, allows only unacceptably short time to be heard before a judge, results in multiple court appearances, and causes persistent disruption of work and home life which impacts litigants and their children and their families,” the coalition’s website states.
Further, the group says, confusion often reigns among court users about where cases should be heard, particularly parents trying to navigate simultaneous hearings in Family Court, housing court and the state Supreme Court, which hears divorce cases.
The constitutional amendment called for by DiFiore will be sponsored by the chairs of each legislative chamber’s judiciary committees, state Sen. Brad Hoylman (D) and Assemblymember Charles Lavine (D), a former parents’ attorney.
In her speech, DiFiore also endorsed a bill that would double the $75 an hour that Family Court lawyers receive to do the high-stakes work of representing family members in the foster care system, as well as teens accused of crimes.
Last fall, 10 bar associations sued New York City and the state over pay that has been stagnant for nearly two decades. The court filings say the failure to update these rates deprives Family Court clients, who are disproportionately people of color, of their constitutional right to “meaningful and effective representation.”
Low pay has led to a “statewide mass exodus of qualified assigned counsel,” said DiFiore, who has called for increased attorney pay since 2019. Meanwhile, the attorneys who continue to work in the Family Court are “overworked and hard-pressed to devote adequate time and resources to the clients they are representing.”
The Chief Judge said the time is right to embrace major change to the court system, as “the leaders of all three branches of government are laser-focused on reforming justice policies and practices that have negatively and disparately impacted communities of color.”
In 2020, a report on equal justice commissioned by DiFiore found that racial bias in New York’s state courts has become so rampant it has created “a second-class system of justice for people of color.”
“The No. 1 complaint we heard from multiple interviewees from all perspectives was about an under-resourced, overburdened New York state court system, the dehumanizing effect it has on litigants, and the disparate impact of all this on people of color,” the report stated.
A November op-ed in the New York Daily News co-written by three former judges called the state court system “the most archaic, complex and bureaucratic justice system in the nation, a wasteful and balkanized setup that creates radically different experiences for litigants depending on their racial, economic and geographic backgrounds.”
The authors, including former Administration for Children’s Services Commissioner Ronald Richter, added: “The lack of action enshrines a two-tiered system where relatively affluent litigants can move through the system much faster than New Yorkers who are facing a family crisis or domestic abuse.”
A recent report by the state bar association and the nonprofit Fund for Modern Courts highlighted an insufficient number of Family Court judges as a significant reason for the continued delays. In New York City, it said, 56 Family Court judges struggled to handle nearly 200,000 cases per year — even before the rocky shift to virtual hearings exacerbated backlogs.
No new slots for Family Court judges have been created since 2014, when a bill was passed that awarded nine new judgeships to New York City and one new judgeship to 16 counties across the rest of the state.
With too few Family Court judges available, many courts rely on temporary, quasi-judicial staff to preside over cases. Some are heard by judicial hearing officers, former judges in the state court system who serve one-year terms. Other cases are decided by bench officers known as “court attorney-referees” — lawyers who have been appointed to conduct hearings but who are not required to have prior experience with family law.
In New York City, family courts often pull judges from other civil courts to serve temporary assignments of up to two years. That creates a “constant revolving door of judges,” said Bill Silverman, board chair of the Fund for Modern Courts. “When another judge replaces them, it means delay and disruption for a large number of cases. It’s completely dysfunctional.”
The lapses in providing families with timely hearings has had a profound impact on some of the youngest and most vulnerable New Yorkers. More than a third of New York children in foster care have not found a permanent home within two years, and a quarter are still in limbo after three years, according to state data. Last year, a federal judge noted the “major role occupied by the New York State Family Court system with respect to each child’s case, and the fact that this system is often the cause for delays in permanency.”
Achieving a constitutional amendment is no easy feat. It would need to pass the state Legislature two years in a row, and then be approved by a majority of voters in the form of a ballot initiative. If the legislation passes this year, it could appear on the ballot in November 2023 and launch a new court system in 2025 at the earliest, DiFiore said.
So far, the only vocal opposition to the plan has come from the city and statewide groups representing justices in the Supreme Court, which DiFiore hopes will soon include the Family Court division. In a joint statement last week, the respective presidents of the two associations, Justice Mary Ann Brigantti and Justice Barbara Kapnick, said the merger plan “would centralize power over judges and courts in the Office of Court Administration, and undercut the effectiveness and independence of judges across the state.”
Instead, they proposed taking less drastic steps to relieve pressure on the overburdened courts, including hiring more court-attorney referees and support magistrates, and providing better internet access in community centers so litigants can make virtual court appearances more easily.
For those who say deeper changes are needed, DiFiore’s vocal support last week was a welcome sign.
“I was extremely happy because she framed structural reform as not just about the efficiency of the court system but about access to justice, which is what it is,” said Silverman of the Fund for Modern Courts. “If you don’t go to the heart of what’s wrong with the structure, then the long list of other important reforms certainly won’t have the effect that you want.”
His words echoed those of Chief Administrative Judge Lawrence Marks, who told lawmakers in February 2020 that efforts to improve the courts “can never achieve full success” without consolidation of the “bewildering system.”
Richter, a former Family Court judge, said he’s optimistic about the reform bill’s chances this year. He cited the Legislature’s leadership on the issue, the impact of the report on racial inequities in the courts, and the widespread movement to eradicate systemic racial inequalities following the murder of George Floyd in May 2020.
“It’s more acknowledged now that inequality is unacceptable and that we can’t tolerate this anymore,” Richter said. “The number of people who are deeply concerned about the inequality in our court system has increased dramatically, and the powers that be are among those who are most concerned.”
Michael Fitzgerald contributed to this report.