The Family Court Judicial Appointment and Assignment Process

SUMMARY

The New York City Bar Association, through a working group representing the combined effort of several of the Association’s standing committees, has issued a report giving voice to “significant concerns” about the process by which Family Court judges are appointed and assigned. According to the report of the Family Court Judicial Appointment & Assignment Process Work Group, “the current system leaves the Family Court in a state of constant flux, referred to by some in court leadership as a ‘transient bench,’ that compromises the administration of justice, often at critical points for the safety and security of families and children.”

The report details the interconnecting causes of lapses in effective coverage of Family Court cases by jurists. First among these is an appointment process that does not adequately anticipate judicial vacancies through retirement or transfer, resulting in Family Court parts “remaining without judicial officers for lengthy periods of time.” A common stopgap solution, according to the report, is the temporary assignment of Civil Court judges to the Family Court, which the report determines is “highly disruptive and inefficient” because those judges are largely unable “to perform on the same level of efficiency as other Family Court Judges given a lack of experience and expertise in family law.” In addition, those judges’ tenure in Family Court often end just as they are becoming familiar with the applicable law and the cases on their dockets

REPORT

THE FAMILY COURT JUDICIAL APPOINTMENT AND ASSIGNMENT PROCESS

The Family Court Judicial Appointment & Assignment Process Work Group

DECEMBER 2020

I. INTRODUCTION

The objective of the New York City Bar Association Family Court Judicial Appointment & Assignment Process Work Group (“Work Group”) is to constructively contribute to efforts to improve the transparency and efficacy of the process by which judges are appointed, reappointed and assigned to the New York City Family Court (the “Family Court”) bench to benefit all litigants.  The Work Group is comprised primarily of current and former members of the New York City Bar Association’s Council on Children, and its Family Court & Family Law Committee, Children and the Law Committee, and Juvenile Justice Committee.  Members of the Work Group are former Family Court jurists, a pro bono counsel and pro bono partner from the law firms of Orrick Herrington & Sutcliffe LLP and Proskauer Rose LLP, respectively, and members of the leadership teams from several of the New York City institutional providers of advocacy for parents and children involved in Family Court litigation, including Brooklyn Defender Services, Lawyers For Children, the Legal Aid Society Juvenile Rights Practice and the Children’s Law Center, as well as the New York City Administration for Children’s Services.[1]

As reflected in the Work Group’s mission statement (Appendix A), we began with a consensus that despite the welcome increase in the number of statutorily authorized Family Court judgeships in 2016 and the appointment and reappointment of a number of judges since late 2018, significant concerns remain that can be broadly categorized as follows:

• Family Court parts remaining without judicial officers for lengthy periods of time because of lags in the appointment process or delays in the replacement of judges from other courts whose temporary assignments to Family Court have ended;
• Use of judges from other courts who have not been trained in Family Court practice and have short-term appointments, resulting in significant caseloads being left uncovered, having a single case handled by several different judges over a short period of time and/or requiring exceptionally lengthy adjournments or creating other inefficiencies; and
• Requiring Family Court judges seeking reappointment to repeat the same process as required of new judicial applicants, and not informing them until a few days or less before their terms’ expiration whether they will in fact be reappointed.

II. EXECUTIVE SUMMARY

One of the byproducts of New York’s antiquated system of 11 separate and distinct trial courts is the great challenge to allocate judges where they are most needed.  Nowhere is this challenge more pronounced than in the Family Court, which relies on the assignment of “acting” judges on temporary leave from other courts, including primarily the New York City Civil Court (the “Civil Court”).[2]  Even assuming the perfect process, temporarily assigning judges from one court to another on a regular basis is highly disruptive and inefficient.  It creates a vacancy in an assigned judge’s home court, necessitating the reassignment of cases and thereby causing delay.[3]

For the judges reassigned to the Family Court, it is often difficult to perform on the same level of efficiency as other Family Court Judges given a lack of experience and expertise in family law.  Further complicating the process is that most reassigned judges only preside in the Family Court for limited periods of time, usually about two years.  Every time an acting judge departs from the Family Court, that judge’s cases must be reassigned.[4]  While some departures from the Family Court are planned, others happen unexpectedly.  Because vacancies are not filled immediately, cases in front of a departing judge will be adjourned until a new judge is reassigned from another court or is appointed to the Family Court.  Sometimes a judge cannot take the bench until having completed the training process.  Thus, the current system leaves the Family Court in a state of constant flux, referred to by some in court leadership as a “transient bench,” that compromises the administration of justice, often at critical points for the safety and security of families and children.

This report endeavors in Section III to describe the general concerns outlined above in greater detail, utilizing examples provided by most major institutional providers of advocacy for children and families in New York City.  These include:

• The impact on litigants and practitioners when a Family Court jurist is re-assigned;
• Delayed resolution of cases due to unfamiliarity with relevant laws and facts;
• The impact of extended vacancies and rapid turnover;
• Delays while jurists await transfer;
• Confusion when litigants and practitioners do not know where/when to appear; and
• The impact of interim Civil Court appointments.

In Sections IV and V, respectively, the Report then provides detailed explanations of the roles and processes of the two entities responsible for the appointment, assignment and reassignment of jurists to the Family Court:  the New York City Mayor’s Office and its Mayor’s Advisory Committee on the Judiciary (“MACJ”) and the New York State Office of Court Administration (“OCA”).

These latter sections will also offer the Work Group’s insights, conclusions and recommendations that its members believe will mitigate the delay and disruption that result from judicial vacancies and transfers.[5]  The Work Group’s recommendations can be summarized as follows:

• Increase the number of MACJ members;
• Enhance communication and planning between MACJ and OCA;
• Reevaluate the current rule that fully vetted judicial applicants who are identified as excellent candidates for appointment but are not appointed within six months must begin the application process anew if they wish to continue to be considered for appointment;
• Select appointees before vacancies arise and take the additional steps necessary to fill vacancies expeditiously;
• Enhance both MACJ’s and OCA’s technological resources and improve data collection and analysis;
• Use a distinct application and review process for judicial reappointments in order to complete the reappointment process more expeditiously;
• Improve training programs offered to judges presiding in the Family Court;
• Allocate short-term cases to judges who are transitioning out of the Family Court; and
• Increase transparency in the reassignment process managed by OCA.

Finally, we urge the Bar Association to maintain the Work Group so that it may, in nine months’ time, receive, evaluate and report upon updates we urge be provided by MACJ and/or OCA regarding their efforts to address the important issues identified in this Report.

III. DEFINING THE PROBLEM:  VIEWS FROM THE FRONT LINES

The information gathering phase of this effort included soliciting feedback from Family Court practitioners to enable the Work Group to be in the strongest position possible to identify and evaluate the issues and concerns that should be the focus of this initiative.[6]  Consequently, the Work Group requested information from a broad array of Family Court practitioners, and it received responses from the Administration for Children’s Services – Family Court Legal Services, the Assigned Counsel Panels for the First and Second Departments, The Bronx Defenders, Center for Family Representation, Children’s Law Center, Lawyers For Children and the Legal Aid Society – Juvenile Rights Practice.

The Work Group is very grateful for the 11 sets of robust responses provided by these practitioners and organizations.[7]  The information they so generously shared provides a depth of detail about and compelling examples of their concerns, from the invaluable perspective of the practitioners most directly impacted and the parties and children they represent on a daily basis.

The Work Group received nine responses to the following preliminary question:

On a scale of 1 – 10, to what extent do your office and clients experience negative impacts due to delays in judicial appointments and/or assignments?

Two respondents (22%) rated the negative impact at 4 or less, the remaining seven responses (88%) rated the negative impact at 5 or greater and, of those, four (44%) rated the negative impact from 8 to 10.

Provided with a list of negative impacts to identify, the Work Group received 10 responses.  Listed below are the negative impacts identified and the percentage of all responding organizations that identified that negative impact as a significant concern:

90% – Delayed resolution of cases
90% – Unproductive court dates
90% – Travel to another county to follow a judge who is reassigned during the pendency of a proceeding and related difficulties such as cost, time and impact on employment
60% – Appearing unnecessarily as a result of lack of notice that cases will be adjourned
20% – Inability to obtain necessary interim relief
10% – Inability to obtain judicial subpoenas

A sampling of the practitioners’ detail-rich narrative responses appears below.

A. Impact on Litigants and Practitioners When a Family Court Jurist Is Re-Assigned

The hardship and delays imposed on children, families and practitioners when a jurist is transferred to another borough without ample time or an adequate process in place to complete ongoing proceedings was a consistent theme.  In these cases, the court system’s administrative imperatives seem to drive the process, to the detriment of litigants and counsel.  For example:

An elected Civil Court judge was appointed to Kings County Family Court [KFC] and presided over [that part] for approximately two years….  After her departure, she sat in Kings County Civil Court for a little over a year, and then moved to Staten Island Civil Court.  Throughout these moves, this jurist continued to hear those trials that she had commenced prior to her departure from KFC.  Thus … litigants and counsel engaged in front of this jurist were forced to travel to different courthouses throughout the NYC court system.  In at least one … case, the litigants and counsel appeared before this jurist in all three courthouses in which she sat.  The frequent appearances in different courthouses imposed additional stressors for the litigants in what was already a stressful family law case, and unnecessarily prolonged the matter, which should have been concluded as efficiently as possible for the sake of the children and parents involved.  The moves also proved taxing for the attorneys, who … carried full caseloads primarily in KFC, and therefore had difficulty finding sufficient blocks of time in which to schedule continued trial dates in other courthouses.  Moreover, given the differences in courthouse practices and the fact that this trial originated in KFC, counsel were unable to procure transcripts necessary to prepare for subsequent trial dates, and to prepare their summations at the close of the case.

Another advocate summarized the negative impact on litigants and practitioners this way:

The impact … is that I am unable to fulfill my obligation to my client.  The client is frustrated, and sometimes settles simply to avoid coming back to court.  They take time off of work and/or have to make child care arrangements for an unproductive Court appearance.  It is also time that could be better spent on other clients. 

As mentioned in the first example above and the one to follow, lawyers also emphasized the impact such delays can have on the availability of critical evidence:

In some cases, the judicial vacancies and transfers cause unnecessary delay, and result in evidence growing stale and witnesses no longer being available. 

B. Delayed Resolution of Cases Due to Unfamiliarity with Relevant Law and Facts   

Another negative impact on children, families and practitioners that lawyers consistently raised is when a newly appointed or assigned jurist lacks sufficient expertise and experience in family law and/or practice and/or the law and facts most relevant to the cases they must take over.  One institutional provider described the resulting delays in the ability to obtain timely interim relief and the ultimate resolution of proceedings:

A judge’s lack of knowledge of relevant case law, statutes, and family court practice results in unnecessary delays, as attorneys ask for adjournments to brief issues, or run to the Appellate Division to seek a stay that will impact the course of a case.  Such delays are unfair to litigants and subject children, who want their emotionally-challenging cases to end.  In the child protective cases, this can also result in a delay in the achievement of permanency for children.

Even when a case is transferred from one experienced jurist to another, the severity of the impact on all involved is frequently significant:

We … identify the rotation of judges as the issue … that has the greatest, and most detrimental, impact on our practice.  When new Judges are assigned to on-going cases, there is significant delay and a family’s case is detrimentally impacted.  These issues include, mistrials, … having a new Judge who is unfamiliar with the case or family, and having Judges unwilling to issue orders that move the family toward reunification because they do not know the family. 

Another advocate’s office provided this example:

Just as one jurist grew familiar with a case, they transferred courthouses, leaving a new jurist to relearn the cases on that part’s caseload.  This was frustrating and upsetting to litigants, who missed work or scrambled for coverage of family care responsibilities, only to appear in court for unproductive appearances during which they rehashed sensitive information already provided to the previous jurist….  Although the jurist who transferred out … had been on the bench there for several years, his successor remained … for no more than a year.  As a result, [some] litigants in [that part] … have had three different jurists presiding over their cases.

C. Impact of Extended Vacancies and Rapid Turnover

Many of the lawyers and advocates who provided information to the Work Group described compounding negative impacts, such as instances where there are extended vacancies and a rapid turnover of jurists:

[A part] … sat empty for several months between late March until late October 2018, when an elected civil court judge was placed there.  However, that judge remained … for approximately two months, after which he transferred to criminal court and a new jurist replaced him in January 2019.  The rapid turnover of jurists in that part resulted in delays and frustration for litigants and counsel.

It is important to note that in these instances, the negative impact includes an undermining of the credibility of the judiciary itself:

[W]hen a judge changes abruptly, [it] contributes to a lack of trust in the judicial system, a feeling that no one knows their family or cares about them and their children, or a concern that the system is disorganized.  As for our lawyers and social workers, it creates work and confusion when there is not a smooth transition.  As well, our staff really cares about their clients and are in a position to receive the disappointment, sometimes quite profound, when a court appearance cannot be used for the purpose we all were expecting, such as an application for an improvement in visiting or for the reunion of the family.

Another institutional provider also voiced serious concern about the detrimental effect that the lack of accurate information has on the credibility and legitimacy of the Family Court itself:

The bottom line is that there is a lot of uncertainty and misinformation about the comings and goings of Judges.  The speculation regarding the status of the bench generally starts in October and picks up steam in November after the elections.  We have received guarantees about Judges remaining in our borough, but they nonetheless leave.

We are concerned that the current operations of the Family Court are undermining its own credibility, which has a negative impact on the public’s trust in Family Court, specifically, and in judicial institutions, generally.

D. Delays While Jurists Await Transfer

Another area of concern that was well documented in the responses is the negative impact of having jurists delay the commencement of hearings as they await transfer.  The following example illustrates the reality that, even when pending reassignments are known in advance, there is an inadequate system in place to mitigate the negative impact on families, children and practitioners.  It also reflects, once again, the intersecting nature of the concerns being discussed—in this case delays pending transfer and multiple jurists cycling through a Court part:

Several jurists … prior to transfers purposely delayed the commencement of trials, so that the case would remain in [that borough] after the judge had moved to his or her new courthouse.  [One] case that commenced in 2015 was scheduled to commence fact-finding in late 2018, but did not because of an impending jurist[’s] move.  As a result, this case, which involved a child with special needs, was further delayed.  Delay was particularly harmful in this case, because … the non-custodial father frequently called in false reports to the [State Central Registry] against the custodian grandmother, in an effort to bolster his claim and make her appear as if she was an unfit caretaker.  Further, prior to his transfer to a new courthouse, the third judge who presided over this case declared a mistrial because the father’s counsel missed a court appearance.  This family in this highly contentious, emotionally-fraught litigation is about to appear in front of a fourth judge in five years.

E. Confusion When Litigants and Practitioners Do Not Know Where/When to Appear

It might come as a surprise to the wider legal community that the current appointment and assignment processes often result in families and practitioners not knowing when and where to appear on a matter.  In this regard, it is important to distinguish between notice that a vacancy will occur and notification of where and when cases that are transferred to another part will be heard as a result of that vacancy.  This was a common thread in the responses:

The lack of timely information about judicial vacancies results in confusion among counsel, litigants and often the Courthouse as to which jurist will eventually hear a pending matter and whether and when a hearing will actually go forward.  It causes anxiety and confusion to children and families who desperately want their matters resolved.  It delays the preparation of hearings and the calling of lay witnesses and expert witnesses.  A recent example of this in New York County Family Court is the confusion around [p]arts 4, 4X and 5, which has litigants and attorneys physically running up and down the stairs to try to locate their cases….

Furthermore, the failure to be timely noticed of jurist re-assignments has resulted in last-minute adjournments of hearings, significantly inconveniencing witnesses, litigants and children who had come prepared to testify or otherwise participate, with all of the emotional preparation that comes with that (not to mention missing school and work).  Adjournments are frequently months in the future, and necessitate the continued anxiety related to the upcoming court appearance.

Another organization emphasized the extent to which the Court’s failure to provide sufficient information in advance undermines the planning that is necessary for practitioners to be adequately prepared to provide meaningful representation:

We make intake calendars, plan coverage, and schedule hearings months in advance.  When there is uncertainty or abrupt change that we are not notified of, it is hard to ensure that an attorney with knowledge can appear.

F. Impact of Interim Civil Court Appointments

The impact of temporary interim Civil Court appointments to the Family Court is a chronic, recurring source of concern among Family Court practitioners:

It generally takes these Civil Court Judges, who are appointed as temporary Family Court Judges, one or two years to become fully familiar with the applicable laws, at which time they are often transferred out of Family Court and back to Civil Court, and are often replaced with a new Civil Court Judge who must now also become familiar with the families before them and the relevant laws.  This cycle furthermore harms families and children by suddenly removing jurists who have become fully familiar with the facts of a child’s case in the middle of litigation, to be replaced by another temporary Acting Family Court Judge.  Many of the Family Court cases are factually and emotionally complex and the families before Family Court deserve Judges fully familiar with their cases and the applicable law.  These families deserve stability and continuity, which is inherently absent from the current practice of rotating Civil Court Judges.

This practice, which is discussed in greater detail later in this Report, involves the temporary assignment of elected Civil Court judges to the Family Court for a period that is usually between 12-24 months, but may be less.  Here are two examples from two different organizations of the extent to which this practice contributes to significant delay in the resolution of cases and negatively impacts the children and families who come before the Family Court:

In Manhattan, we had 4 different jurists … occupying [p]art 4 over the course of the last 6 years.  Judge James and Frias-Colon are Civil Court Judges who left the part rather abruptly.  This created challenges for continued hearings.  We have a [termination of parental rights proceeding] that was adjourned so many times, that it remained in a pre-fact finding state and delayed permanency for our client.  While the cause of action remains, the disposition is going to be very contested.  This delay will extend the amount of time that my client will not have stability.

A Custody Proceeding … before a Civil Court Judge who was temporarily placed in Family Court and then suddenly transferred to another civil courthouse, had to be referred to a new Judge who was neither familiar with the family nor the legal issues involved.  This matter had been before the acting Family Court Judge for over a year and involved complex emotional and legal issues.  The transfer caused the family unnecessary concern, confusion and delay of their case.

IV. THE NEW YORK CITY MAYOR’S OFFICE AND MAYOR’S ADVISORY COMMITTEE ON THE JUDICIARY

Created by Executive Order (“E.O.”) No. 4 of 2014, MACJ is a body within the Office of the Mayor charged with the responsibility to “recruit, to evaluate, to consider and to nominate judicial candidates highly qualified for appointment and to evaluate the incumbent judges for reappointment to the following courts within The City of New York:  Criminal Court, Family Court and, for interim appointments, Civil Court.”[8]  Specifically, it is obligated to present three highly qualified nominees to the Mayor for each judicial vacancy and to recommend to the Mayor whether an incumbent should be reappointed.[9]  The Mayor may not appoint or reappoint anyone who has not received this imprimatur of MACJ.[10]

In order to obtain a full understanding of the manner in which this mission is effected, and in particular the Committee’s role in the filling of vacancies of judges who preside in Family Court, members of the Work Group met personally or spoke by phone, in some cases several times, with the following:  the Committee’s Chair, Hon. Carmen Beauchamp Ciparick (Ret.); its Vice-Chair, Hon. Barry A. Cozier (Ret.); its Executive Director, Desirée Kim; former New York City Corporation Counsel, Zachary W. Carter; and Kapil Longani, Counsel to the Mayor.

In summary, the Work Group believes MACJ evaluates the qualifications of judicial candidates and incumbents with genuine diligence, professionalism and competence.  However, we also believe that steps can be taken to improve the process by which MACJ performs its mission so as to both (i) reduce the period of time that judicial positions remain vacant; and (ii) simplify and expedite the reappointment process.

A. MACJ Structure and Process Overview

MACJ is composed of 19 members, all of whom are experienced and highly qualified members of the New York Bar.  They serve on a voluntary basis and are appointed by the Mayor to renewable two-year terms.  MACJ administration is supervised by the Office of the Executive Director (“OED”), currently Ms. Kim, who has a staff of two persons, neither of whom are attorneys.

In broadest outlines, the MACJ process works as follows.  Candidates for appointment and reappointment submit a Uniform Judicial Questionnaire (“UJQ”) to MACJ, which is available for download on the MACJ website.  Candidates may ask to be considered for appointment to any or all of the three courts within MACJ’s purview.  Subject to certain constraints described below, applications for initial appointment are accepted and considered on a continuous basis.  Applications for reappointment are solicited by MACJ approximately six months before the expiration of an incumbent’s term.

Upon receipt of the UJQ, the OED reviews it for facial adequacy to assure, for example, that all questions have been answered or that a candidate has met the requirement of having been a member of the Bar for 10 years.  If facially sufficient, OED then conducts an investigation to confirm the accuracy of the information provided, communicating as necessary by telephone or mail with the applicant or third parties, including, but not limited to, educational institutions, tax authorities and employers.

Once deemed complete, Ms. Kim and the committee Chair and Vice-Chair review all applications in comparison to the entire pool of applicants to ensure that they are among the strongest pending candidates.  The completed applications of those candidates are then sent to an MACJ subcommittee.[11]

Each subcommittee is composed of four MACJ members, at least one of whom has significant experience with the court for which the candidate is being considered.  The subcommittee interviews the candidate and obtains input regarding the candidate’s qualifications from all relevant perspectives, including but, not limited to, references, supervisors and adversaries.  In addition, if the candidate is seeking reappointment, the subcommittee contacts attorneys who have appeared before the jurist as well as colleagues.

The subcommittee makes a recommendation, which is then considered by the MACJ Executive Director, Chair and Vice-Chair.  Depending on the press of its business, MACJ meets in person up to eight times per year.  A quorum of 10 members is necessary to act.  A vote is taken as to whether an incumbent is to be recommended for reappointment or whether an initial applicant is deemed highly qualified to be nominated to be considered by the Mayor, generally as one of three candidates, for appointment to the bench.[12]

MACJ was unable to readily provide the precise number of applications it receives or how many proceeded to each of the described steps.  However, it was estimated that in recent years approximately 60 individuals reached this point in the process.  In 2018, an exceptionally busy year, the full Committee considered 36 reappointments, 12 or 13 interim Civil Court appointments, 9 Criminal Court appointments and 4 Family Court appointments.

All incumbents, as well as applicants who are being nominated to see the Mayor, are then interviewed by a committee (known informally as the “Executive Committee”) composed of several of the Mayor’s senior advisors.[13]  At this time, it is made up of Corporation Counsel James Johnson, Counsel to the Mayor Mr. Longani and Counsel to MACJ Henry Berger.

Candidates nominated by the committee are interviewed by the Mayor, who decides whether an incumbent should be reappointed and which, if any, of the nominees for a new position is to be appointed.

Those individuals’ candidacies are then reviewed by the New York City Bar Association’s Judiciary Committee,[14] and, if approved, are subject to a public hearing.  If no objection is encountered, formal appointment by the Mayor follows.[15]

Pursuant to E.O. 4, once one of the nominees is presented to the Mayor, the other two nominations expire, unless there are other vacancies in the same court, in which case the nomination remains valid for six months.  As a general matter, however, a nominee must affirmatively inform the OED if they wish to remain under consideration.

B. MACJ Process in Practical Application

In order to understand the problem of Family Court parts remaining “vacant,” i.e., without a presiding judicial officer, for undue periods of time, it is important to remember that judges presiding in Family Court parts include both judges appointed to 10-year terms as Family Court Judges in addition to those appointed or elected to other courts and assigned by the OCA to sit in Family Court for shorter periods of time.  Included in that latter category are the so-called “Interim” Civil Court Judges,[16] whose appointments are also subject to the MACJ procedures outlined above.  This practice provides the context for much of the discussions the Work Group had with MACJ regarding the manner in which those procedures actually impact the timing of the appointment of jurists who will preside in the Family Court.  In essence, the Work Group sought to learn why MACJ could not have nominees for initial appointment sent to the Mayor in advance at a time that would permit the appointment to occur immediately, or almost immediately, after a vacancy arises.  We set forth the highlights of those discussions:

a. As a preliminary matter, MACJ emphasized that pursuant to E.O. 4, the Mayor has 90 days to fill a judicial vacancy, “unless a longer period is required in the public interest.”[17]  Although precise data was unavailable, MACJ estimated that vacancies are on average filled within two months.

b. Although applications for appointment are accepted on an ongoing basis, and although most applications for reappointment might be timely anticipated and processed, the workload of MACJ is subject to significant peaks and valleys for a variety of reasons, the most significant being that it is frequently difficult for it to find out in advance whether a vacancy will arise.  This circumstance might arise in a variety of ways.

For example, MACJ reported that it often has not received advance notice from OCA supervisory personnel of a judge’s intended retirement.  Or, on at least one occasion, a vacancy arose suddenly because of a Family Court Judge’s appointment to the Court of Claims and there was no one available to sit in that part and no clear procedure for how to handle her caseload.  Most significantly, uncertainty surrounds the number of Interim Civil Court appointments that will be required.  This is because, as a general matter, the Civil Court vacancies will not be known for certain until Election Day, when the incumbent Civil Court judges might be elected to Supreme Court, thus creating the vacancies in Civil Court and impacting the availability of judges in Family Court.

These uncertainties make it very difficult for MACJ to perform its work without bottlenecks that might suddenly impose burdens on both the OED, as well as the Committee members.  For example, after Election Day, the need to fill newly created Interim Civil vacancies, as well as other anticipated vacancies, creates a press of work that might not exist during the summer.  Moreover, as was repeatedly emphasized during our discussions, the Committee members all serve in a pro bono capacity and must dedicate significant time and effort to their subcommittee-vetting work in addition to the host of other significant responsibilities they carry in their legal practice.  Accordingly, as a practical matter, there is a limit to how much can be asked of them and, in turn, a limit to how many applications might be fully considered in a compressed time period.  As a result, it is not reasonable to expect that candidates will be ready for appointment on January 1, when many of the vacancies arise.

c. The Work Group suggested that some of these concerns could be addressed by having a “pool” of candidates who had already gone through the MACJ process and were thus ready for nomination to the Mayor immediately upon a vacancy’s creation.  MACJ presented a number of reasons why it did not think this would be practical.

First, it noted that the nomination to a court of someone who is not selected by the Mayor indeed remains valid for six months if another vacancy to that court exists.  It emphasized too that such applications, as well as the applications of other candidates who have not been nominated to the Mayor, would become stale after that period of time, with material changes having occurred affecting the candidate’s qualifications.  Indeed, the candidate might no longer even be interested in pursuing a judicial post.  Most importantly, MACJ stated that since it was receiving new applications on an ongoing basis, candidates might present themselves who are better qualified than those whose nominations were still viable or in the pool.

Moreover, as noted above, the number of vacancies that will have to be filled in each court year is very difficult to predict.  In addition, if someone serving as an Interim Civil Court Judge has done well, MACJ seeks to find a permanent judicial position to which they can be appointed, reducing the need for additional new candidates.  It would be impractical and burdensome to have the Committee members process applications for possible entry into a “pool” of qualified candidates when it is unknown whether there will in fact be vacancies for those candidates to fill.

d. Certain issues unique to the reappointment process were raised with MACJ.  First, in response to an inquiry why an incumbent must complete the entire UJQ, which seeks a good deal of basic personal information that would not be different from that provided during the incumbent’s initial application process, the Work Group was told that the issue had not been previously brought to MACJ’s attention, but would be reviewed.

Second, we recounted the repeated reports from incumbent judges that they were not told whether they were going to be reappointed until almost immediately before—sometimes the day before—the expiration of their term.  This practice seemed to unnecessarily create uncertainty in the administration of the court in which the incumbent sat, and to subject the judge (and the judge’s family) to significant and unwarranted stress.  MACJ stated that it generally began the reappointment process six months before a term’s expiration, and tried very hard to complete the reappointment process in a way that avoided such a result.  MACJ noted that all candidates for reappointment also have to be approved by the Judiciary Committee of the City Bar Association before they see the Mayor, which MACJ points to as adding an additional time period to the review process.[18]

C. Recommendations

It merits reiteration that the Work Group believes MACJ excellently performs its labor intensive and critically important substantive task of identifying highly qualified individuals for judicial appointment or reappointment.  We thus set forth below only those recommendations that we believe would aid in the efficient administration of MACJ’s work and, by extension, advance the administration of justice in the Family Court by addressing the experience of litigants who find, far too often, that Family Court parts are closed and thus not accessible.

1. Increase the Number of MACJ Members

E.O. 4 fixes the number of MACJ members at 19.  As discussed above, particularly because the workflow over the course of the year is uneven, the processing of applications—and thus the ensuing judicial appointments or reappointments—may sometimes be delayed because subcommittee members who are doing the hands-on vetting find themselves overburdened.  Put simply, there just are not enough MACJ members to do that vetting work with optimal efficiency.  Both MACJ’s Co-Chairs and Ms. Kim stated that appointment of additional MACJ members would help address this issue and would be a change they would welcome.

2. Enhance Communication and Planning with OCA

MACJ’s ability to plan is inhibited by the uncertainty of how many vacancies will arise over any period of time.  Some of this uncertainty is difficult to address, since it is structurally related to the uncertainties attendant to the judicial election process that cannot be finally resolved until after Election Day in November.  However, given the local political realities, often that resolution can be safely predicted during the preceding summer, when the electoral candidates—who often run unopposed—are nominated.  In addition, vacancies resulting from retirements might generally be anticipated and planned for, particularly since some retiring judges are statutorily prohibited from remaining in office because of their age, and others generally notify their supervisors of their intention well before they actually leave the bench.

There appears to be a disconnect between OCA and MACJ with regard to judicial retirements.  Specifically, OCA mentioned that it sometimes did not receive a timely judicial appointment to fill a vacancy even though it provided advance notice of a judge’s retirement.  On the other hand, MACJ reported that it often has not received notice from OCA of a judge’s intended retirement.  Significantly, the Work Group notes that there is no effective procedure in place by which senior personnel at OCA and MACJ regularly meet and discuss anticipated judicial staffing needs.  We believe it is imperative that such a procedure for ongoing meetings be implemented.  At a minimum, there should be actual meetings no less than three times per year—in January, when the scope of the year’s anticipated needs can be addressed; in the summer, after the nominating conventions, so that the anticipated impact of the election can be assessed; and immediately after the election, so that its actual impact can be determined and addressed.  In addition, a “hot line” procedure should be implemented so that MACJ is notified immediately by OCA of any unexpected judicial staffing issues, and OCA can be kept abreast of MACJ’s efforts with respect to any extant vacancies or impending reappointments.

3. Reevaluation of the “Six-Month” Rule

Under the Executive Order and MACJ practice, if a nominee is seen by the Mayor, but not selected for appointment, the nominee’s candidacy remains viable for six months, but only if other vacancies in the relevant court exist.  In any event, the candidacy expires after six months.  This practice precludes the maintenance of a “pool” of individuals ready to be appointed when a new vacancy arises.

MACJ explained that the reasons behind this practice are (i) that applications grow “stale,” and become inaccurate; and (ii) that it is constantly receiving applications from new candidates whose credentials might prove superior to those of prior nominees.  While these are valid concerns, the Work Group believes the six-month rule is applied in a manner that unnecessarily impedes the speedy appointment of qualified candidates.  We thus urge MACJ to reevaluate the rule’s application.

In the easiest example, as we understand it, an exceptionally well-qualified individual might apply for a Family Court position in January, be fully vetted and be nominated by MACJ to see the Mayor in April for possible appointment to a single extant vacancy.  The Mayor decides to appoint another nominee.  Assuming that no other Family Court vacancies arise until November, the rejected candidate would no longer automatically be subject to consideration.  Rather, as we understand it, the candidate would be required to regularly stay in touch with MACJ to make it known of the candidate’s continuing interest in a position, and then go through the entire application process afresh after six months.

We believe this to be burdensome to both the candidate and MACJ and creates the risk that excellent viable candidacies will expire unnecessarily.  MACJ should consider, instead, creating a system whereby the applications of candidates who have been vetted and approved by MACJ remain viable, unless withdrawn, and in which, by online process or otherwise, the candidate may easily amend or supplement an application with any material updated information.  Of course, MACJ would still retain the discretion of determining which applicant might be nominated to the Mayor.  But it would then have a large, readily available pool of candidates from which to choose.

4.  Vacancies Should be Filled Expeditiously; Where Possible, the Mayor Should Select Appointees Before Vacancies Arise

Under the E.O., the Mayor is required only to fill a judicial vacancy “within ninety days unless a longer period is required in the public interest.”[19] The Work Group believes this to be an unduly lengthy period, particularly in view of the harm to the administration of justice in Family Court, as detailed elsewhere in this Report.  Indeed, where possible, a new appointee should be able to assume his or her position on the day the vacancy arises.  Accordingly, we recommend that the E.O. be amended to provide that a vacancy be filled “as promptly as practicable but in no event later than 30 days after the vacancy arises.”

Certainly, where a vacancy can long be anticipated by, for example, an impending retirement, the vetting process should be completed well-enough in advance so that the Mayor can interview three nominees at least 30 days prior to the vacancy’s occurrence.  The Mayor can choose one of those nominees, who can then be formally sworn into office on the day the vacancy actually arises.[20]

5. Enhance Technological Resources and Improve Data Collection and Analysis

During its discussions with MACJ, the Work Group came to believe that MACJ does not take advantage of technologies that would permit both the more efficient processing of judicial applications and a data-driven analysis of the work it performs.  Thus, we understand that most of the administrative work is accomplished with “hard copies” of documents.  As a single example, the entire UJQ, together with numerous addenda, writing samples, etc., must be printed and physically returned to MACJ by the applicant.  Better use of digital technology could, consistent with security and privacy concerns, significantly lessen the administrative burdens associated with such paper records.

In addition, it appears as if MACJ does not maintain easily accessible records reflecting the number of applications it receives, how many reach each stage in the vetting process or even how many initial appointments or reappointments it has reviewed in any given period.  Obviously, it is difficult to assess appropriately how its processes could be improved without tracking such information.

We strongly recommend that MACJ review its technological capabilities and adopt methods that would address these issues.

6. Use a Distinct Application for Reappointments

As are those seeking initial appointment, sitting judges seeking reappointment are required to complete and submit the highly demanding 23-page UJQ.  The Questionnaire, which seeks detailed information concerning an applicant’s background, is appropriate for new candidates for office, but largely inapposite to incumbents since it seeks, in greatest part, the identical information previously provided by the incumbent.

We recommend that a new questionnaire be designed and utilized for incumbents that will call for the disclosure of material personal information that has changed since his or her initial appointment, as well as information relevant to his or her performance of judicial duties, as currently demanded by Item 38 of the UJQ.  This will make the process easier for MACJ members to focus on vetting new judges.  The focus of vetting judges who are eligible for reappointment should be on gathering feedback from the attorneys who regularly appear before the judge to determine if the judge is eligible for reappointment.

7. Complete the Reappointment Process Earlier

Although MACJ reaches out to incumbents to begin the reappointment process six months prior to the expiration of the incumbent’s term, the Mayor often does not decide whether to reappoint until the literal eve of the expiration date.  As discussed earlier, MACJ has suggested that the City Bar Judiciary Committee vetting process—no matter how expeditiously conducted—adds an additional review period before the candidate can be seen by the Mayor.  We make two recommendations in response.

First, we recommend that MACJ pay special care to process the applications of incumbents speedily because, in addition to the difficulties the uncertainty of continued tenure creates for the incumbent’s supervisors, that uncertainty imposes tremendous and wholly unnecessary emotional burdens upon the incumbents and their families.  Second, we recommend that representatives of MACJ and the Judiciary Committee meet to identify ways in which applications for reappointment may be processed more efficiently.  For example, it may be salutary to have both committees review the application simultaneously, rather than sequentially.

V. THE NEW YORK STATE OFFICE OF COURT ADMINISTRATION

OCA is the administrative arm of the court system under the direction of the Chief Administrative Judge of the Courts of New York State, currently Lawrence K. Marks.  The Deputy Chief Administrative Judge of the New York City Courts, currently George J. Silver, oversees the day-to-day operations of the trial-level courts in New York City, including the Family Court.  The Administrative Judge of the New York City Family Court manages the operations of the Family Court and is currently Jeanette Ruiz.  The Honorable Anthony Cannataro serves as the Administrative Judge of the Civil Court of the City of New York.

This portion of the Report provides background, addresses the factors contributing to delay and interruption caused by judicial vacancies and constant reassignments and makes recommendations to help OCA better address such delay and interruptions.

However, before discussing the issues in respect of judicial assignments and reassignments in detail, the Work Group must note that New York’s antiquated court system and the limited number of Family Court judges significantly contribute to the delays in the Family Court.  Because those issues would require legislative or constitutional changes, they are beyond the scope of this Report.  However, the Work Group thinks it is necessary to provide a brief overview of those two key issues.

First, the current court structure—made up of 11 separate trial courts with varying jurisdictions—is complex and costly, and adversely affects all litigants.  It especially impacts the poor and unrepresented, who are expected to navigate the limited jurisdiction of these different courts with their different procedures and rules, in order to pursue claims (or defend against them) simultaneously in more than one forum.  Court simplification would put an end to the current practice of appointing—from other courts—temporary acting judges.[21]

Second, the Family Court simply does not have enough judges to meet the demand of the caseloads, many of which are statutory mandates.  It is imperative to increase the number of Family Court Judges, so that the heavy caseload carried by Family Court Judges could be alleviated and so that if a judge leaves, and their position is not promptly filled, their caseload could more easily be absorbed by the remaining members of that bench.

A. The Major Responsibilities of OCA in the Judicial Assignment Process

1. Management of Vacancies

There are two types of vacancies in the Family Court.  The first is created by a Family Court Judge’s departure, through retirement or otherwise.[22]  These vacancies are filled by new Mayoral appointments upon the recommendation of MACJ.[23]  Once known, the Administrative Judge of the New York City Family Court informs MACJ of such a vacancy.  After a judge is appointed to fill the vacancy, the Chief Administrative Judge of the Courts of New York State and the Deputy Chief Administrative Judge of the New York City Courts, with input from the Administrative Judge of the New York City Family Court, assign the new judge to a specific county in New York City.  OCA does not have a mandatory notice requirement for retiring judges but indicated that such a requirement is not needed because Family Court Judges generally give adequate notice of their impending retirement.[24]

The second type of vacancy is a function of the general lack of a sufficient number of Family Court judgeships.  This need is met by the temporary assignment of primarily Civil Court Judges to the Family Court, resulting in vacancies caused by the departure of judges on temporary assignment to the Family Court.  To make up for the shortfall of Family Court Judges, OCA by necessity assigns at any given time approximately 12 Civil Court judges to the Family Court.  The specific number of Civil Court judges assigned in a particular year varies.

The temporary assignments usually last for two years (sometimes longer), though it is not uncommon for these judges to sometimes be reassigned from Family Court even earlier.  Since 2019, a more formal policy has been in place where a temporarily assigned judge is expected to notify the Deputy Chief Administrative Judge of the New York City Courts at least six months in advance of when that judge wishes to be transferred out of the Family Court.

2. Factors Used to Determine Temporary Judicial Assignments

In determining how to administer temporary judicial assignments, OCA considers a number of factors including, among other things, an individual judge’s background and the potential effect on the different courts, taking into account the average caseload per judge and the turnover rate in each court.

OCA makes every effort to assign judges with prior family law experience and those who express an interest in the Family Court.  However, this applies only to a fraction of the judges being assigned.

3. Training

OCA provides both in-person and online training to new and experienced Family Court Judges through the New York State Judicial Institute as well as an in-house training program developed by the Family Court.  The Judicial Institute schedules a week-long training program for new judges in January because many judges take office following the November judicial elections.  Immediately after the week-long training program, judges who will preside in the Family Court attend a two-week training program offered by the Family Court.  Once a judge completes the Family Court training, they shadow experienced judges before taking the bench.  In the end, a new judge who is being temporarily assigned to Family Court is trained for approximately two months before they start hearing cases.  Chief Judge DiFiore has also reinstated the annual Judicial Institute Summer Seminars, which provide three days of instruction on general topics appropriate for all courts combined with some court-specific topics.[25]  The Judicial Institute Summer Seminars are recorded and available online.

The New York City Family Court Judges Association hosts two master classes per year, at which noted guest speakers present on various substantive family court matters.  The Family Court has also created a library of “CourtCasts,” which consists of brief podcasts on law and procedure.  It also provides seminars, including training on case management skills, for judges, court attorney referees, support magistrates and court attorneys.[26]  In addition, a judge assigned to the Family Court at any time during the year can shadow other Family Court Judges to the extent his or her own courtroom schedule permits.

OCA has expressed, and the Work Group acknowledges, that OCA does not have an unlimited amount of resources to address the many pressing needs in judicial training.  OCA considers the training programs by the Judicial Institute robust.

4. Limitations Faced Both by OCA and the Administrative Judge of the New York Family Court

It is important to note that OCA does not have complete control over the filling of vacancies or the assignment of judges.  Specifically, although OCA can request that the Mayor, through MACJ, appoint judges to a court, it does not control how many judges will be appointed or when.  In addition, although the Administrative Judge of the New York Family Court proposes a budget for the Family Court each fiscal year, neither she nor OCA control the amount allocated in the State budget to the court system—an amount which is widely considered to be inadequate given all the pressing needs.

B. The Work Group’s Request for Relevant OCA Data

On May 14, 2019, the Work Group asked OCA for detailed data relevant to determining the number and length of judicial vacancies, and the effect of vacancies and reassignments on caseloads and dispositions.[27]  Thus, the Work Group, among other things, sought records of how many Family Court parts had been vacant, and for how long.  In addition, the Work Group asked for information that would permit it to compare the length of time it took to complete cases in those parts to the time it took in parts where vacancies had not occurred.

In response, OCA met with the Work Group in August and December 2019 for two one-hour meetings.  OCA provided the Work Group with data relevant to the number of Family Court Judges, the number of judges temporarily assigned to the Family Court, the average caseload per judge in each county and the average length of time from fact finding to disposition for certain cases.  Specifically, as of October 2019, the Family Court had 55 judges with an additional 17 Civil Court judges temporarily assigned.  The data clearly demonstrated that Family Court Judges across each county have heavy caseloads—although they appear to vary significantly from county to county.  The data also provided some insight into the amount of time cases take from filing to disposition.  See Appendices B through F.

Unfortunately, however, OCA informed the Work Group that much of the information requested—including that directly related to reassignments, to the number and length of vacancies and to the impact of those reassignments and vacancies on the progress and disposition of cases—was not collected.  We were thus unable to gain insight from the data provided on how the constant reassignments and resulting vacancies impact the court system.

C. Factors Identified by OCA as Contributing to Delay in Proceedings and OCA’s Initiatives to Address Those Factors

Although pointing to several other compelling factors that contribute to the delay in the disposition of Family Court matters, OCA acknowledged that delays in filling vacancies and the process of rotating judges from other courts has a significant prejudicial impact upon the court process.  It made the Work Group aware of several initiatives it has already undertaken to address the issue.

As a prefatory matter, it should be reemphasized that the limited number of judges available to preside in Family Court is the most significant factor in causing both the delay in processing cases as well as the problems attendant to identifying solutions for that delay, such as the temporary assignment of judges from other courts.[28]  In short, the Family Court does not have a sufficient number of judges to handle its high volume of cases, and borrowing judges from another court does not efficiently enhance Family Court’s judicial resources.  Moreover, the practice of borrowing judges also impacts negatively on the “lending” court’s operations.

As mentioned above, to minimize the unpredictability of judges leaving the Family Court and to reduce the resulting delay in cases, OCA in 2019 implemented a six-month notice requirement on any temporarily assigned judges who wish to leave the Family Court.  Despite this policy, however, judges at times leave for reasons out of their control.  For example, one judge was appointed by the Governor to the New York Court of Claims with an immediate effective date, creating a Family Court vacancy overnight.

In connection with the notice requirement, OCA also asks judges who request transfers out of the Family Court to finish pending cases and not to start any new cases within the six-month period.  The Work Group acknowledges that not allowing judges to take new cases helps with managing the transition process.  However, we also note that the requirement means that the judge’s Family Court part is thus not operating at full capacity, and the shortfall adds to the burdens of other judges in the county.[29]

In addition, to better plan for the needs of the Family Court, in the summer of 2019, the Deputy Chief Administrative Judge of the New York City Courts, the Administrative Judge of the New York City Family Court and the Administrative Judge of the Civil Court of the City of New York met to review the Court’s staffing needs to estimate how many judges will be leaving the Family Court through retirement, reassignment or otherwise, and how many judges could be available for assignments from the Civil Court.  It is anticipated that such a planning meeting will be held on an annual basis and should permit the more effective allocation of resources and better anticipation of judicial staffing problems.

D. Contributing Factors Identified by the Work Group

On top of the factors identified by OCA, the Work Group has identified the following factors that contribute to delay caused by judicial vacancies, transfers and reassignments.

1. Training

As noted above, the annual training for judges is held in January based on the fact that many judges assume office at the beginning of the year following the November elections.  Together with the other training previously described, that means that a judge whose term begins in January generally cannot begin to hear cases until approximately the end of February.  However, Family Court Judges’ terms do not all begin at the start of the year, and some Civil Court judges are assigned temporarily to Family Court at other times as well.  To the extent these jurists assume office at some other time, they must wait until the next annual training to receive the foundational training necessary to fulfill their role.  During the interim, as discussed in Section V.A.3, a judge can only rely on resources available online and shadow Family Court Judges.  While these inexperienced judges do begin to preside in Family Court while awaiting this training, that lack of experience often becomes a significant cause of delay in the resolution of proceedings.

2. Caseloads Across Five Counties 

Although OCA has expressed that the caseloads per judge are generally consistent across each county, data shows that judicial caseloads vary greatly between the counties with, as a general matter, caseloads being heavier in Bronx, Kings and Richmond Counties than in New York and Queens Counties.[30]  See Appendix E.  The difference in caseloads impacts the extent of the delay when there are judicial vacancies.

3. Coordination Between OCA and MACJ

It appears, through our dialogues with both OCA and MACJ, that OCA from time to time would not know when the Mayor planned to fill a vacancy, while MACJ expressed that it often did not receive advance notices from OCA that a vacancy was expected.  See also Section IV.C.2 of the Report.  This lack of communication and the consequent lack of coordination contributes to the delay in the filling of vacancies, further decreasing the number of judges available to preside in the Family Court and exacerbating case delays.

E. The Work Group’s Recommendations

The Work Group recommends that OCA take the following steps to mitigate the delay and disruption caused by judicial vacancies and reassignments.  The Work Group acknowledges that OCA has already implemented advance planning by having annual management meetings in the summer and requiring six-month notices from departing judges.  However, the Work Group believes that OCA can further improve the planning by (1) improving the training programs, (2) allocating short-term cases to judges during the six‑month transition period, (3) collecting robust data on judicial vacancies and their impact, and (4) coordinating with MACJ with respect to judge appointments.

1. Improve Training Programs

There is a significant need for new judges to be better trained in the substantive areas they are hearing, in trial procedure and evidence, and in case management.  With respect to the training programs, with sufficient resources, OCA could schedule a second training during the year that is substantially similar to the one held in January, with the option to cancel if OCA determines such training is not needed.  Alternatively, in addition to the two-week training for new judges, the Family Court could offer training sessions in segments throughout the year for judges assigned throughout the year.  OCA should also consider allowing new judges with significant family law and Family Court experience to start hearing cases while they shadow experienced judges.

The Work Group recognizes that OCA has limited resources and may not be able to offer the formal training program more than once a year.  We further recognize that the current COVID‑19 pandemic imposes a significant challenge to providing training.  Nonetheless, with the assistance of technology, those challenges can be alleviated by offering (at least part of) the training virtually if needed, so that the scheduling and locations of training programs could be more flexible and allow a judge to access materials remotely.  We also recognize that OCA has already established certain online resources (such as the CourtCasts), and taped certain seminars, such as the Judicial Institute Summer Seminars.  However, we believe that the online platform can be improved and enhanced with more robust materials.  For example, instead of cancelling the trainings scheduled for summer 2020 due to COVID‑19, certain portions of the lectures could be hosted online via video conferences.  In addition, to the extent it is not already done so, the Work Group recommends OCA record all trainings and make them available online throughout the year.

2. Allocate Short-Term Cases to Judges During Transition

In addition, judges during the six‑month transition period could hear more cases that usually last for less than six months, for example, certain emergency hearings.  This could address the concern that not having these judges take on new cases at first glance appears to reduce the overall capacity of the Family Court.  It could also reduce the caseload of other judges presiding in the Family Court.

3. Improve Data Collection

The Work Group recommends that OCA collect, compile and analyze all of the data outlined in Section V.B above.  This data should include, for example, (i) the length of time a Family Court part has no judge presiding, (ii) the number of matters and the length and frequency of the delays of Articles 3, 6, 7, 8 and 10 cases affected by such vacancies, (iii) the average length of time of cases from fact finding to disposition in each county, including as impacted by vacancies, and (iv) real-time tracking of vacancies in each court part.  Such data not only would help OCA track the caseload and staffing needs in the Family Court but also would help identify the causes of delay.  The Work Group believes that OCA should comprehensively analyze the data so that it can develop effective solutions to these issues.  Tracking such data does not appear unreasonably burdensome to OCA and would serve the public by making the court system more transparent and responsive to legitimate, documented concerns relating to the issues identified in this Report and raised by diverse Family Court constitutes.

4. Coordinate with MACJ

To address the lag in the coordination between OCA and MACJ about judicial appointment, the Work Group believes that MACJ and OCA would both benefit if they undertook a full review of the protocols of their interactive working process, the manner in which they communicate and liaison with each other and the challenges each face in fulfilling their responsibilities.  See Section IV.C.2 and Section V.D.3 of the Report.

5. Increase Transparency in the Assignment and Appointment Process

The current process of assigning and appointing Family Court judges remains mired in confusion and secrecy.  Rumors about appointments and changes in judicial assignments are often revealed to stakeholders through word of mouth informally before OCA makes official announcements.  Decisions are usually announced at the very last minute and changes are made to plans without any explanation.  This causes added confusion in an already chaotic system.  It is important for OCA to find ways to be more open and transparent about the appointment and assignment process and the decisions that it makes.  OCA should consider sharing information with the stakeholder community as early as possible in the process.

VI. CONCLUSION

Before offering our thanks to those who shared their time and provided the information that formed the foundation for this Report, we offer a final, critical recommendation that the Bar Association maintain this Work Group to receive and evaluate any updates provided by MACJ and/or OCA regarding their efforts to address the issues identified in this Report, to update our evaluation in nine months and to provide a comprehensive addendum to this Report on the status of efforts to address the concerns addressed herein.

VII. ACKNOWLEDGMENTS

The Work Group is indebted to Chief Administrative Judge of the Courts of New York State, the Hon. Lawrence K. Marks, for his early commitment to OCA’s cooperation with this effort, and to Deputy Chief Administrative Judge of the New York City Courts, the Hon. George J. Silver, and Administrative Judge of the New York City Family Court, the Hon. Jeanette Ruiz, for taking the time to meet and share information and their insights with the Work Group, along with Deputy Administrative Judge Hon. Anne-Marie Jolly.  The Report would also not have been possible without the generous time, expertise and thoughtful feedback provided by MACJ’s Chair, the Hon. Carmen Beauchamp Ciparick (Ret.), its Vice-Chair, Hon. Barry A. Cozier (Ret.), its Executive Director, Desirée Kim, and Counsel to MACJ, Henry Berger, as well as former New York City Corporation Counsel, Zachary W. Carter and Kapil Longani, Counsel to the Mayor.  We are also grateful to both the OCA and MACJ leadership for their review of a prior draft of their sections of this report, and have incorporated much of their much-appreciated factual clarifications.  The Work Group also offers its profound thanks to the advocates and practitioners who generously shared their front-line and institutional experience and insights.  We also wish to acknowledge the exceptionally valuable contribution of Judge Jody Adams (Ret.), who served on the Work Group until she was appointed to MACJ in February 2020.  The Work Group also benefited enormously from the invaluable substantive input and keen editing of Xiaoyang Ma, Associate at Proskauer Rose LLP.  Finally, we want to acknowledge and thank former Queens County Family Court Supervising Judge, the Hon. Carol Stokinger (Ret.), and the former Chair of the Bar Association’s Judiciary Committee, Kevin Schwartz, for their much-appreciated input.

 

December 2020

 

Family Court Judicial Appointment & Assignment Process Work Group
Glenn Metsch-Ampel, Co-Chair
gmampel@lawyersforchidlren.org

Hon. Daniel Turbow (ret.), Co-Chair
turbow@courtsandlaws.com

 

Members of the Work Group

Hon. Jody Adams (ret.)*
Hon. Sidney Gribetz (ret.)
Sara Hiltzik
Rene Kathawala
Dawne A. Mitchell
Fredda Monn
Lauren Shapiro
William Silverman

*Member of the Work Group until December 2019

 

Endorsing Committees
Children and the Law, Melissa J. Friedman, Chair
Council on Children, Dawne A. Mitchell, Chair
Council on Judicial Administration, Michael P. Regan, Chair
Family Court and Family Law, Michelle Burrell, Chair
Juvenile Justice, Maura A. Keating and Jennifer Marie Gilroy Ruiz, Co-Chairs
Pro Bono and Legal Services, Jennifer K. Brown and Nicole L. Fidler, Co-Chairs

 

 

 

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