The Judiciary, the Profession & the Fair, Effective Administration of Justice | 2024 NYS Legislative Agenda
Repeal the Constitutional Cap on Supreme Court Justices and Adopt a Modern, Flexible, Evidence-Based Method of Assessing New York’s Judicial Needs
Throughout its history, New York State has struggled with an insufficient number of judicial seats necessitating stopgap measures that have resulted in a complicated, overworked, and confusing court system that fails to provide justice to all. The dire need for additional judges overall is a function of the chronic failure to provide adequate judicial resources to New York’s Unified Court System. And while the reasons underlying such failure are manifold and multilayered, on a fundamental level, the lack of judicial resources stems largely from the constitutionally prescribed method by which the Legislature determines the number of justices that can be elected to the State Supreme Court. Since enacted in 1846, and as amended in 1961, Article 6 of the New York State Constitution has set the number of Supreme Court seats—which are elected positions—for geographically-defined areas known as judicial districts by using a solely population-based ratio—i.e., one justice per 50,000 people. The effect of such a formula is to cap the number of legislatively authorized Supreme Court seats within each judicial district, leaving the Legislature powerless to authorize additional seats to meet the growing and particular needs of the courts in such districts. The purely population-based “constitutional cap” has proven over-simplistic, outdated, and unworkable. It has created a ripple effect that has impacted the entire court system. Specifically, to address the lack of resources at the Supreme Court level, the Office of Court Administration (OCA) has long resorted to adopting makeshift measures that involve designating judges from other courts to sit on the Supreme Court on an “acting” basis. Not only has this “robbing Peter to pay Paul” approach depleted these other courts of judicial resources, but it has also created a de facto permanent and large class of “Acting Supreme Court Justices,” sitting in a court other than the one to which they were either elected by the people or appointed by the relevant appointing authority.
To address this issue New York should adopt a constitutional amendment to repeal the cap on Supreme Court Justices (A.5366 AM Bores / S.5414 Sen. Hoylman-Sigal). The need for this amendment has been endorsed by Governor Hochul and Chief Judge Wilson. This is a critical first step and the City Bar urges the Legislature to pass the amendment in the current legislative session so it can be put before voters in a timely manner.
In conjunction with repealing the cap on Supreme Court Justices, the City Bar recommends the following for the proper and adequate administration of justice in New York State’s courts: (1) language in the Constitution that requires the Legislature to consider whether to change the number of Supreme Court justices in any judicial district at least once every ten years; (2) enabling-legislation to codify a mandatory regular systematic assessment of the courts’ specific needs; (3) annual reporting by OCA to analyze the number of judges in each court and request changes when appropriate; (4) establishing assessment methodology for assessing the judicial needs of all courts; (5) adopting transparency measures that ensure publication of the assessment’s recommendations for the number of judges needed in each court and judicial district; and (6) consider less time-consuming statutory changes that are immediately available. For example, since the number of judges in courts other than the Supreme Court is not subject to a constitutional cap, the Legislature could immediately assess the judicial needs in those courts with support from appropriate professionals, and change the number accordingly. We would urge OCA to conduct a weighted caseload assessment in Family court immediately.
In this era of metrics, the people of New York State are entitled to a modern, flexible, evidence-based method of assessing the state’s judicial needs, as is the case in many other states and the federal judiciary.
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Support Enhanced Funding for Civil Legal Services in the Judiciary Budget
The City Bar is deeply committed to increasing access to justice and ensuring adequate resources for our justice system. Robust civil legal services funding remains critically important for rebuilding a post-pandemic New York. We support the civil legal services funding proposed by the Judiciary in its FY 2025 budget. Civil legal services funding remains critically important, if not lifesaving, for New Yorkers of low income who cannot afford counsel. It translates into an individual or family moving from a homeless shelter to their own home or avoiding eviction or foreclosure to stay in their home; accessing public benefits, medical care, or other vital life essentials; or, in the case of the burgeoning community of asylum-seekers arriving in New York, starting a new life away from the threat of persecution. Each victory in matters like these can and should make us proud. At the same time, civil legal services funding brings great value to New York’s economy. By now, the civil legal services and nonprofit community is familiar with the 2019 report of the Permanent Commission on Access to Justice which presented a detailed analysis finding that Judiciary Civil Legal Services funding resulted in a return of $10 to our state’s economy for every $1 of funding. Given this context, and the goal of extending and deepening New York’s post-pandemic recovery, maintaining if not further increasing each dollar of that funding remains imperative. That is especially true as the safety net effects of pandemic assistance funding and the eviction and foreclosure moratoriums fade, and providers like the City Bar Justice Center see a rise in appeals for pro bono assistance. We urge the Legislature and Governor to continue to support enhanced funding for civil legal services in the budget.
Reform and Modernize the Administration of Class Actions in New York’s Courts
The City Bar supports amending Article 9 of the Civil Practice Law and Rules to reform and modernize the administration of class actions in New York’s courts (S.7113 Sen. Hoylman-Sigal). In 1975, New York enacted its current Article 9 for class actions, and the statute has not been materially changed since. Generally, the amendments would: (1) permit class certification for actions demanding a statutory penalty or minimum measure of recovery; (2) amend language which disfavors class actions against governmental entities; (3) adopt language stating that motions for class certification be made “at an early practicable time” rather than within 60-days of a responsive pleading; (4) provide guidance with specified factors to be considered in appointing class counsel; and (5) provide a more flexible notice provision concerning discontinuance, dismissal or compromise of the class action. *City Bar Proposal*
Provide Internet Access to Individuals Living in Temporary Housing Throughout New York State to Ensure Adequate Access to Services
We support legislation that would provide internet access to individuals residing in temporary housing throughout New York State (A.5649-A AM Reyes / S.4561-A Sen. Gonzalez). Since May 2020, with the release of the City Bar Justice Center’s report, “Homeless Need Internet Access To Find a Home: How Access to Internet and Technology Resources can Support Homeless Families Transition out of Homeless Shelters,” the City Bar and the City Bar Justice Center have issued multiple reports and advocated for reliable internet access to be available to shelter residents as part of the #wifi4homeless campaign. New York’s shelters are overwhelmingly lacking internet access, an essential service which could reduce the length of residents’ stays and facilitate their successful exit into permanent housing. Without reliable internet access, shelter residents cannot search and apply for permanent housing or jobs, participate in remote classrooms or complete assigned homework, apply for government benefits, stay connected to friends and family, access basic entertainment, or obtain necessary medical care. Many critical services have become reliant on internet-based platforms as we have moved to a hybrid world post-COVID. Everything from legal services and virtual court appearances to counseling and telehealth are now offered remotely and often preferred by service providers. Poor or no internet connectivity leaves many shelter residents unable to effectively participate in critical services needed for their well-being. This can lead to unnecessary interactions with the criminal justice and court systems, further straining overburdened systems. The legislation would cover State-funded temporary housing, including but not limited to family shelters, shelters for adults, domestic violence shelters, runaway and homeless youth shelters, and safe houses for refugees. This legislation would represent a significant step forward by ensuring that all shelter residents across New York State are guaranteed reliable internet access.
Permit Nonresident Attorneys to Practice in New York Without Maintaining a Physical Office in the State
The City Bar supports the repeal of Judiciary Law § 470 to permit attorneys to be licensed to practice in New York without maintaining New York residency or office space. Under Judiciary Law § 470, an attorney licensed in New York who maintains an office in state may practice in New York even if they are out-of-state residents. This antiquated residency requirement does not reflect the current reality of hybrid work and the virtual practice of law. With the increasing reliance on electronic court appearances and the desire from both lawyers and their clients to be able to meet remotely, the concept of forcing attorneys – who are overwhelmingly small and solo practitioners – to maintain expensive office space is unnecessary and does nothing to improve access to affordable legal services. The current law creates new motion practice gamesmanship, costing litigants needless legal expense, wasted time, and no tactical advantage. At the time of its enactment, the logic behind the rule was that it helped ensure personal service on a nonresident attorney. However, the Court of Appeals has acknowledged there are enough measures already in place outside of Judiciary Law § 470 to ensure proper service on a nonresident attorney, thus rendering Judiciary Law § 470 obsolete. Moreover, compliance with the current law is financially burdensome for nonresident attorneys and thus, again, increases clients’ legal expenses without providing any clear benefit. With modern technology, the presence of a physical office address is not a determining factor of successful or professional representation, nor does it enhance attorney oversight or regulation. Removing the physical office requirement in New York will lower attorney costs, enhance access to justice, expand services offered and promote access to justice as a meaningful career choice.