Family Court 'neglected stepchild'

   By Oliver Mackson
   Times Herald-Record
   omackson@th-record.com
   
   The state's top judge didn't mince words. Three pages into a 32-page speech on the condition of New York's courts, she dropped the hammer.
   New York needs to simplify its courts, Chief Judge Judith Kaye told the state's lawmakers in her annual State of the Judiciary speech in January.
   "We need to eliminate the costly, incomprehensible barriers and inefficiencies," she said. "We need to make our courts more readily accessible, especially for families and children, who are before us in increasing numbers."
   She's been saying this for years. People with knowledge of New York's courts say that Kaye's getting impatient. She wants more doing and less talking.
   In an interview in February, Kaye's right-hand man, Chief Administrative Judge Jonathan Lippman, was even more blunt.
   "The New York state court structure is used, around the country, as a textbook example of how not to have a court system," Lippman said.
   Lippman ran down a familiar list of complaints: People can bounce through three different courtrooms in search of justice for a single incident of domestic violence. The system is bewildering. It's not user-friendly. It simply takes too long to get something done.
    Kaye has already made some bold moves to shake things up. In 1996, she got rid of exemptions for jury duty for professionals, such as lawyers and doctors.
    In 1997, the Monticello native opened Family Court to the public. Now, anyone with the time and the inclination can see the once-secret workings of Family Court.
   But neither of those moves is as dramatic as the court reform that Kaye wants.
   She wants to shrink New York's nine layers of courts down to what she's previously called "a sensible, straightforward, two-tiered trial court system."
   This isn't anything new. In 1997, Kaye gave a hint of the reform she'd like to see in the state's courts, in remarks she made before a panel of state lawmakers at a hearing on court reform.
   "Nowhere would the benefits of a unified court system be felt more than in family matters," she said. "Family cases, particularly those involving children, need speedy and definite resolution. A family law division in the Supreme Court will mean that one's family legal problems will be resolved by one judge. And importantly, a unified court system will also finally put an end to the "neglected stepchild" status of the Family Court."
   Howard Kave, a Newburgh lawyer with 30 years' experience in Family Court practice, says Kaye is right.
   "There shouldn't be a Family Court," he flatly declared while waiting to see a judge last month. "Everything we need to do in this state, we've known we had to do for years."
   Not everyone buys that idea, though.
   In some states, judges are appointed. In New York, trial judges at the local, county and state levels are elected. That includes Family Court judges.
   Only upper-level state judges are appointed, such as members of the state Court of Claims and the highest court in New York – the Court of Appeals.
   If there weren't any more family or county court judges, but only trial judges assigned to various parts, some say, it would defeat the purpose of having elected judges.
   "You've taken away the prerogative of the electorate to assess judges' qualifications," said Ben Ostrer of Chester, a prominent criminal defense lawyer who also practices in family and civil courts.
   Streamlining the courts can't be done by a judge's order. It would require changes to the state Constitution. That hasn't happened. People familiar with the courts, both in Albany and the Hudson Valley, say that some of Kaye's colleagues on the bench don't like her ideas.
   Judges are like many other groups: They don't like to criticize one another publicly. A young, ambitious lawyer who pays her dues as a local judge in night court is acutely aware that, someday, she might wind up in front of Kaye, arguing a case before the state's highest court.
   And even judges who have moved up the ladder, to county or supreme court jobs, are wary of criticizing their brethren higher up on the judicial food chain.
   So if judges talk about one another, it's nearly always after a demand that their names not be used.
   Under those conditions, a county-level judge in the mid-Hudson region echoed Ostrer's observation.
   The judge said that if the distinctions between judges were eliminated, the state Office of Court Administration would take "complete control of the courts. They'll control the judges, who are elected by the people. You're disenfranchising the electorate. Your choice for a Family Court judge might be completely different from your choice for a County Court judge, based on your experience with that person."
   Court sources who are close to Kaye and her staff say she's become frustrated by the Legislature's inaction.
   She's been pitching court reform since 1995. Last year, she presented the state Legislature with her plan to streamline the courts and threw in a bonus for these budget-crunched times: Court consolidation, Kaye said, would save $131 million.
   Still, the Legislature did nothing.
   Sources say new, specialized courts, like domestic violence (see related story) and drug court, are Kaye's attempts to reform the courts by decree. She doesn't have the power to do everything she wants that way, the sources say.
   But she can send a powerful message to the lawmakers who aren't moving on her proposals: If the state's lawmakers get in the way of reform, the state's chief judge will go around them and make whatever reforms she can without waiting for the Constitution to be changed.
   "With or without a constitutional amendment," said Judge Jonathan Lippman, the state's No. 2 judge, "this is not going to stay the way it is."
   Kaye isn't discarding the Legislature entirely. But two consecutive sessions of the Legislature would have to pass a bill to amend the state Constitution.
   Even the most optimistic people in Albany say that's an uphill battle.
   For more than 25 years, the nonprofit Fund for Modern Courts has sent observers into New York courtrooms to see how the system's working. The observers' notes are used to prepare thick reports worthy of a college classroom.
   Three years ago, one of those reports concluded that a reform of New York's courts would reap the greatest benefits for Family Court and the people who use it.
   "The Family Court deals with some of society's most serious problems, involving children and families in crisis," the report said. "However, because it is an 'inferior' court (a court with limited jurisdiction), it has long been perceived to exist at the bottom rungs of New York's court system, and it has been forced to operate with fewer resources than the other 'superior' courts."