This year’s Law Day theme, the “Separation of Powers: Framework for Freedom,” invites us to reflect on the vital role of the courts in our democratic system of government. The founders of our nation established three separate branches of government in a unique power-sharing arrangement that requires each branch to serve as a check on the power of the others. Their careful calibration of balanced powers, intended to avoid tyranny and ensure liberty and freedom, has served our nation well from its inception. However, this proven formula for democracy will surely fail if any one of the branches of government is weakened at the expense of the others. And so there is cause for concern when we read about executive officials and legislators who engage in vitriolic personal attacks on judges in order to publicly malign and punish them for unpopular decisions. Michael Wines, “Judges Say Throw Out the Map. Lawmakers Say Throw Out the Judges,” New York Times, Feb. 14, 2018. Of equal concern are legislative proposals pending in 16 states to diminish judicial independence by giving governors and legislators more power over judicial selection, authorizing legislatures to override court decisions on the constitutionality of statutes, and enacting retaliatory budget cuts. Brennan Center for Justice, Legislative Assaults on State Courts—2018.
As judges, lawyers and citizens who care about the vitality of our democracy, we must be vigilant in defending against unjust and irresponsible attacks that erode public confidence in the judiciary and impair its ability to serve as an independent check on overreach by the other branches. Judges, of course, are ethically prohibited from responding to criticism of their decisions under the Rules of Judicial Conduct. New York Code of Judicial Conduct, Rule 100.3(B)(8). They depend on their partners in the Bar to stand up for them so that they can continue to uphold the rule of law free of outside pressures and fear of retaliation. Fortunately, New York’s judges have enjoyed the vigorous support of many statewide, local, ethnic and specialty bar associations (as well as many public officials) who understand the importance of keeping our judiciary strong and independent. Mark H. Alcott, “Defending Judges, Standing Up for the Rule of Law,” NYSBA Journal, January 2018, pp. 20-24.
While judges may not be able to engage in the rough and tumble of political and civic debate, there is much that we can do to keep our branch of government strong and resilient. Even with all the issues dividing Americans today, we should all be able to agree on the need for fair, accessible and well-functioning courts. Indeed, that is the vision and objective of our Excellence Initiative in the New York State courts, which I announced as our top institutional priority upon assuming the position of Chief Judge in February 2016. The Excellence Initiative is focused, as a threshold matter, on improving the efficiency, timeliness and quality of justice services delivered by our courts. It seeks, ultimately, to promote excellence in all aspects of judicial decision-making. By delivering high-quality justice services that meet the modern-day needs and expectations of our litigants, the courts earn respect and credibility in the eyes our citizenry and our partner branches of government. When the public values the work of the judicial branch, we are far better able to withstand the inevitable criticism that comes with our role as the arbiter of society’s most contentious disputes. By contrast, when we fail to meet core obligations, such as the delivery of timely, affordable justice, we become easy prey for demagogues who seek to subvert judicial independence for their own political ends.
As Chief Judge, the issue of public confidence is never far from my mind. On February 6th, I delivered the State of Our Judiciary Address and summarized the encouraging progress we are making to improve the fairness, efficiency and effectiveness of our entire court system. Among the many reforms I highlighted was a new rule, recommended by the New York State Justice Task Force, that is strengthening due process and preventing wrongful convictions by requiring judges presiding over criminal trials to issue standing orders advising prosecutors and defense counsel of their professional responsibilities to disclose exculpatory evidence and provide constitutionally effective assistance of counsel. In upstate counties where the presence of counsel at first appearance has not always been easy to achieve, we are implementing new off-hour and weekend arraignment parts to ensure the provision of constitutionally guaranteed legal representation. And in our high-volume New York City criminal courts, a pilot program involving the increased use of Superior Court Informations is expediting the resolution of felony cases and reducing backlogs.
In response to the tragic opioid crisis ravaging our communities, we have opened the Opioid Intervention Court—the first of its kind in the nation—in the City of Buffalo. In collaboration with the District Attorney, the defense bar and the treatment community, prosecution is suspended in order to provide charged offenders at high risk of overdose with immediate, intensive treatment. The early results—only two overdose deaths among 250 participants in less than a year—have attracted the close attention of policymakers and state court systems all around the country. Timothy Williams, “This Judge Has a Mission: Keep Defendants Alive,” New York Times, Jan. 3, 2018. This new approach, which we are quickly expanding to New York City, recognizes that the devastatingly addictive qualities of opioids demands early court intervention, aggressive treatment and close interagency collaboration. Andrew Denney, “New Bronx Opioid Treatment Court Looks to Help Addicts Kick their Addictions,” New York Law Journal, Jan. 29, 2018.
With regard to families and children, we are in the midst of implementing historic “Raise the Age” legislation that will enable the vast majority of 16- and 17-year old offenders to have their cases adjudicated in Family Court, where they will have access to rehabilitative options shown to reduce recidivism and help young people get on track for productive, law-abiding lives. And our New York City Family Court (with over 200,000 new case filings each year) recently became the largest paperless court in the state. The smart use of technology is improving public access to the court’s services, helping us manage our massive docket more efficiently and supporting the complex, substantive work performed by our Family Court Judges. Janet DiFiore, “Going Paperless: The New York City Family Court,” New York State Bar Journal, March/April 2018.
We are also following through on the recommendations of the Special Commission on the Future of the New York City Housing Court to transform the litigation experience in one of the busiest, most overburdened courts in the nation. At a time when homelessness has reached historic highs in New York City, we are overhauling Housing Court operations to improve efficiency and litigant services, and adopting new procedures to promote the legislative intent of the Universal Access to Legal Services Law, which is designed to provide legal assistance to low-income tenants facing eviction.
In our civil courts, we are piloting new programs to streamline litigation and promote early case settlements, and exploring whether to adopt innovative reforms that have improved the litigation experience in the Commercial Division. In our Surrogate’s Courts, which provide important services to the public, we have adopted a new case management system to improve efficiency and will soon introduce standards and goals to better measure court performance.
Finally, because the structure of the courts as set forth in the New York State Constitution is so outdated and fragmented that it prevents us from properly and efficiently managing our people and resources, we have re-convened our Judicial Task Force on the New York State Constitution and asked it to consider possible amendments to the Judiciary Article of the State Constitution that will enable us to serve the public in more efficient and cost-effective ways.
These few brief highlights of our extensive commitment to reform and innovation in the New York state courts show how hard we are working to deliver fair, smart and cost-effective justice outcomes that make a positive difference in the lives of the litigants who appear before us. I believe that our constant pursuit of excellence in the delivery of justice will earn for us the credibility we need to carry out our constitutional duties as a strong, equal, independent and non-political branch of government. As Americans, we are fortunate to live in a nation where the enormous power of our government has been dispersed and balanced in such a way as to foster the freedom, equity and opportunity we need to pursue our dreams, do good works and distinguish ourselves as individuals. However, this ingenious “framework for freedom” is not self-executing or self-sustaining. It requires every one of us who has committed our professional lives to the law to be vigilant in defending judicial independence and to work earnestly to promote fair and effective justice institutions that are valued by the public.
Janet DiFiore is the Chief Judge of the State of New York.