A. Gail Prudenti, Chief Administrative Judge (NYLJ/Rick Kopstein)
ALBANY – While the Legislature’s just-completed regular session included bills expanding efiling and refining pre- and post-divorce maintenance guidelines, court administrators say a symbolic gesture by the Senate and Assembly will have lasting significance as well.
“It does establish a statewide policy of providing legal assistance for persons in need of the essentials of life,” chief administrative judge A. Gail Prudenti said in an interview Friday. “While it is aspirational, it allows us to work with our access-to-justice partners knowing that they are as committed as we are to providing this assistance.”
Each house adopted a concurrent resolution (C776/B2995) declaring that the “fair administration of justice” obligates the state to ensure that all New York residents have “adequate” and “effective” legal representation for matters pertaining to the essentials of life.
Essential matters are defined as housing, family matters, access to healthcare, education and subsistence income. Legislators also pledged to continue working toward the “ideal of equal access to civil justice for all.”
The resolution was suggested in a 2014 report to Chief Judge Jonathan Lippman by the Task Force to Expand Access to Civil Legal Services, to make the case for increasing available state funding for civil legal services over the past five state budgets.
Since the 2011-12 state budget, annual spending on civil legal services has jumped from $12 million to $70 million for the 2015-16 fiscal year, which began April 1 (NYLJ, Dec. 2, 2014).
The resolution moved near the top of the Office of Court Administration’s list of priorities for the 2015 legislative session when Lippman urged its passage during his 2015 State of the Judiciary address.
Lippman said no other legislative body in the United States has declared the government’s obligation to support a “Civil Gideon” —or the civil counterpart to the guarantee of criminal representation for the indigent decreed by the U.S. Supreme Court in Gideon v. Wainwright, 372 U.S. 335 (1963).
“Our society will and should be judged by how we treat the most vulnerable among us,” Lippman said earlier this year.
Helaine Barnett, the chairwoman of Lippman’s civil legal services task force, said Friday that the resolution leaves open the precise nature of the representation.
“It doesn’t mean you have a right to an attorney,” said Barnett, former president of the Legal Services Corporation. “‘Effective’ representation could be the use of technology. Or it could be representation provided by a non-attorney, or limited-scope representation by attorneys. There are a range of choices and options. But depending on the nature of the problem, the characteristic of the person involved, the complexity of the problem, it does say effective counsel should be available.”
Seymour James, attorney-in-chief of the Legal Aid Society of New York City, applauded the Legislature for adopting the resolution.
“Every day in courts and administrative proceedings throughout the city, we see the significant difference that legal representation makes in the lives of the limited number of low-income New Yorkers we are able to represent,” he said in a statement Friday. “We are pleased that the state has increased funding for civil legal services, but urge the state to ensure equal access to justice for all by providing sufficient funding to enable every poor person in need to receive legal assistance in matters involving the essentials of life.”
The resolution was sponsored by Assemblywoman Helene Weinstein, D-Brooklyn, and Sen. Ruth Hassell-Thompson, D-Mount Vernon.
Another top OCA priority was met with passage of the bill (A8083/S5833) to expand court efiling throughout the state and to give Prudenti the authority to decree its mandatory use in any state court that can accommodate it.
Court administrators said that if OCA is to reach its goal of establishing an electronic filing and document retrieval system for state courts similar to PACER in the federal courts, it must have the power to impose efiling (NYLJ, April 16). Efiling is still not authorized in 46 of New York 57 counties, despite the state courts’ 16 years of experimentation.
The legislation will also expand the efiling requirement to criminal and family courts, where it is not mandated, and in all four Appellate Division departments with the assent of their presiding justices.
The bill stipulates that efiling is not to be imposed if county clerks are opposed or if local bar association raise valid objections.
The Legislature passed A7645/S5678 on maintenance and spousal support upon the recommendation of Prudenti’s Matrimonial Practice Advisory and Rules Committee, chaired by Brooklyn Supreme Court Justice Jeffrey Sunshine.
The bill abandons the current income cap for the formula portion of temporary maintenance of $543,000 in favor of a cap of $175,000 of the payor’s income, the same standard used to determine post-divorce maintenance awards.
The legislation also allows the use of two formulas to determine maintenance, one involving child support and the other where child support is not factored into the maintenance calculation.
Among other changes is the clarification that the Supreme Court has the power to limit the duration of temporary maintenance to when a judgment of divorce is issued or either party dies. For post-divorce maintenance, the bill makes clear that such support terminates on the death of either party or the remarriage of the payor’s former spouse.
Sponsors said the bill continues a years-long refinement of pre- and post-divorce maintenance which began with the adoption of no-fault divorce by New York state in 2010 (NYLJ, July 7, 2014).
In other higher-profile bills before the Legislature:
• Medical malpractice. The Legislature and governor failed to make a deal on a bill (A285/S911) that would have expanded the statute of limitations for filing medical malpractice actions (NYLJ, June 12). Current law allows people to file malpractice claims within 21/2 years of when an act, omission or improper treatment occurred; the bill would have allowed the statute of limitations to begin within 21/2 years of when a person discovers that an actionable injury occurred.
The Senate’s first-year Republican majority leader, John Flanagan, R-East Northport, said Senate Republicans would make a more in-depth study of the bill. Gov. Andrew Cuomo said he would have signed the bill, which was approved by the Assembly, had it reached his desk.
• Public defender office. No agreement was reached on a measure (A2874) to create a statewide public defender office.
• Commercial jurisdiction. The Senate left Albany without approving a bill (A6714/S4846) that passed in the Assembly to clarify that New York courts have jurisdiction to adjudicate cases involving corporate entities that do business in New York. Sponsors said the U.S. Supreme Court’s 2014 ruling in Daimler AG v. Bauman, 134 U.S. 746, caused jurisdictional confusion that the bill, which was proposed by Prudenti’s Advisory Committee on Civil Practice, would have straightened out.