Chief Judge Janet DiFiore renewed her call to amend the state constitution during her State of the Judiciary Address on Tuesday to restructure the state’s trial court system in a way she said would streamline litigation and modernize the third branch of state government.
The address, which DiFiore delivered at Bronx Supreme Court, also highlighted a number of requests and new initiatives including a proposed payment rate increase for attorneys representing indigent defendants and a plan to require mediation in civil litigation to reduce backlog.
The latter issue has been a top priority for DiFiore since she was confirmed as the state’s top judge in 2016. She started what’s been called the Excellent Initiative to cut backlog in the state’s courts, particularly in criminal cases where defendants have been known to languish in pretrial detention in some instances for months or years before their day in court.
DiFiore highlighted the tremendous progress the state’s court system has made in reducing that backlog since the initiative started.
“Our efforts are not fleeting—they are continuing. They are expanding. They are being institutionalized, and they are being recalibrated every day,” DiFiore said.
In the Bronx, for example, the number of misdemeanor cases pending for more than a year has been reduced by 84 percent compared to three years ago, DiFiore said. The same is true for other boroughs, with Queens experiencing the least dramatic cut in those cases at 27 percent.
Progress has also been made outside New York City with that backlog. The Eighth Judicial District in Western New York, for example, has seen a decrease of 74 percent in the number of misdemeanors pending. The same trend is true for other areas of the state.
“The bottom line is that the progress we have made is due to the heightened focus of our judges and our staff, and the commitment and the sense of urgency that comes from knowing what is at stake,” DiFiore said.
Restructuring Trial Courts
But that progress could be expedited in the future if the state restructured its court system to consolidate the multiple layers that currently make up the judiciary, DiFiore said.
“I do take this opportunity to acknowledge and support the view that amending our state constitution to create a two-tiered trial court structure—consisting of a Supreme Court and a District Court—offers us the best opportunity to achieve a modern court system that is fully capable, nimble, and properly designed to allow us to deliver efficient, affordable, high-quality justice services throughout New York state,” DiFiore said. “That should be our goal.”
The proposal would consolidate the state’s trial courts into two tiers, rather than the separate 11 entities that currently exist to adjudicate cases at that level. Those include the Supreme Courts that exist in each county, the Court of Claims, and several others. That’s more complicated than the typical court structure in other states.
The proposed restructuring would combine those entities into two tiers: a Supreme Court, which would handle most matters involving criminal, civil, family and other areas; and a District Court, which would handle housing and more minor cases.
The change was first proposed more than two decades ago by then Chief Judge Judith Kaye and then Administrative Judge Jonathan Lippman, who would go on to replace Kaye. It’s also not the first time DiFiore suggested another look at restructuring—she said as much during last year’s State of the Judiciary address.
But, despite being its own branch of government, the judiciary cannot restructure itself without action by the Legislature and Gov. Andrew Cuomo. That’s because it would require an amendment to the state constitution—a lengthy, uncertain process that would not enact the change until 2022 at the earliest.
Such an amendment would have to first be approved by the Legislature either this year or in 2020. The next sitting Legislature, which takes office in 2021, would then also have to approve the amendment. It would then go on the ballot for voters to decide later in 2021.
“I will be encouraging Gov. Cuomo and the state Legislature to work with us to develop and give first and second passage to meaningful constitutional reforms that can be submitted to the voters for their approval on the November 2021 ballot,” DiFiore said. “This is a matter of the utmost concern, directly affecting our ability to meet our 21st century justice responsibilities to the people of the state of New York.”
The proposal has the support of the New York State Bar Association, and has at least been on the mind of state Sen. Brad Hoylman, who chairs the Judiciary Committee in that chamber. He said late last year during an interview on his priorities for the position this year that he wanted to take a closer look at the idea.
“We have to value an independent judiciary,” Hoylman said. “But, specifically to changes, I look to Judge Kaye’s report on restructuring the court and it’s something I want to dig into.”
Compensation Rates for Assigned Counsel
The Legislature would also have to approve a proposal announced by DiFiore on Tuesday that would increase the rate of compensation for attorneys representing low-income defendants. Those rates currently range from $60 to $75 an hour depending on the level of charge the defendant is facing.
Those rates haven’t been increased by the Legislature since 2004. The rate paid to attorneys representing defendants in federal courts, meanwhile, has been adjusted 11 different times and is currently fixed at $140 an hour.
DiFiore said she sent a letter to Cuomo and the Legislature on Tuesday urging them to increase the compensation rates for attorneys representing individuals in state courts. She said she was confident in the proposal’s chances of being enacted this year.
“Based on their demonstrated commitment to issues of fairness and equal justice, I am confident that the policymaking branches of our state government understand what is at stake and recognize the need for an upward adjustment of New York’s assigned counsel rates,” DiFiore said.
On the civil side of litigation, DiFiore said the state’s courts will administratively move toward a system in which most civil cases—including many matrimonial and family cases—will be automatically presumed eligible for early referral to court-sponsored mediation.
That’s after an advisory committee recommended as much last year and a pilot program in Manhattan Supreme Court yielded positive results, DiFiore said.
“We are all in,” DiFiore said. “Here are the simple facts: mediation and arbitration have a proven track record of settling a high percentage of civil cases—and of narrowing the disputed issues, reducing the cost of litigation.”
DiFiore said the state’s administrative judges will work with local bar associations to expand the number of mediation programs in the state’s courts, and the Office of Court Administration will work to develop statewide rules to guide local implementation.
She also mentioned a number of other initiatives the judiciary plans to take on over the next year administratively, including the addition of 10 new opioid courts across the state. The first such court in the country opened in Buffalo last year, and has been successful in changing how those drug offenders are treated in the justice system, DiFiore said.
“That court is now the model for how to stabilize and help save the lives of high-risk drug offenders through its use of immediate intervention and referral to evidence-based treatment; close case management and judicial supervision; and deferral of prosecution—pending successful completion of treatment,” DiFiore said.
She also highlighted the recent recommendation of the New York State Justice Task Force, a state panel created by Lippman, to essentially end pretrial detention in misdemeanor and certain nonviolent felony cases.
The panel said there should be presumptive release for those defendants unless a prosecutor can show they likely will not return for a future court appearance or may be a threat to the safety of a specific person, such as an intimate partner. That position is shared by the District Attorneys Association of the State of New York.
“Far too many defendants—presumed innocent under the law—are being detained prior to trial because of their inability to pay the amount of bail set in their cases,” DiFiore said. “This is inequitable and it is contrary to our long-held belief that pretrial detention should be a carefully limited exception to the norm.”