Testimony of Daniel R. Murdock

Testimony of Daniel R. Murdock
Chair
Fund for Modern Courts Task Force on Town and Village Justice Courts
Public Hearing on the State Justice Courts

December 14, 2006

My name is Dan Murdock and I am the Chair of a recently formed Task Force of the Fund for Modern Courts on New York State Justice Courts. I want to thank the Chairs and the Committees for holding this important hearing and for giving Modern Courts the opportunity to appear.

Modern Courts is a private, nonprofit, and nonpartisan organization dedicated to fostering improvements in the administration of justice in New York State. The Fund was founded in 1955, and it is, I believe, the only organization of its kind focused exclusively on improving New York State’s judicial system. While we are headquartered in New York City, our developing Task Force is geographically diverse; members reside in the counties of Albany, Broome, Erie, Rockland, Schenectady, Suffolk and Westchester.

As a newly formed group, our Task Force is not in a position to take a definitive stand today on the many thorny issues before the Committees. But I can say that Modern Courts supports enthusiastically the comprehensive Action Plan for the Justice Courts released by the Office of Court Administration last month. The Action Plan acknowledges the political realities and existing legal framework of the Justice Court System, and announces literally dozens of steps OCA plans to take to enhance assistance to, and support of, these courts, to improve the status quo , quite substantially we hope. As you know, these initiatives, detailed in the Action Plan , cover operations and administration, auditing and financial controls, education and training, and court security. For example, just providing the Justice Courts with digital recorders to assure real time records of court proceedings, and integrating them into the State Judiciary’s e-mail and database systems, should have tangibly positive results. To help pay for the implementation of these initiatives, the Action Plan proposes, and OCA has included, a $10 million appropriation request in the judiciary’s 2007-2008 budget submission.

We urge the Committees to view favorably this appropriation request when the Legislature takes up the Judiciary’s budget submission, and, also, to give serious consideration to the two other relatively modest legislative initiatives in the Action Plan , one, calling for clarification of the Chief Administrative Judge’s temporary assignment powers, and, the other, reforming oversight of the nonjudicial staff of Justice Courts.

However, as worthwhile as it may be, the pragmatic approach of the Action Plan does not address, in a material way, the need for substantial, systemic reform of the Justice Court System, or consider what form those reforms should take.

The recent series of articles in the New York Times with the header: “Broken Bench” may not have given equal attention to the many town and village judges and court personnel who work tirelessly in less than optimal working conditions, with relatively low compensation, but it did provide an alarming picture of how unsupervised courts can make serious errors in attempting to bring justice to local communities. The June 2006 report by the Spangenberg Group on the Status of Indigent Defense in New York , a study prepared for Chief Judge Kaye’s Commission on the Future of Indigent Defense Services, contains a chapter, “Chapter 8: Town and Village Courts”, which likewise raises serious issues about the structure and operation of the Justice Courts, particularly with respect to the prompt provision of counsel to indigent defendants in criminal cases, as constitutionally mandated.

Also troublesome is the October report of the State Commission on Judicial Conduct which showed that, in the last year, 18 justices of town and village courts were publicly disciplined or resigned while facing charges. In addition, the report showed that complaints about town and village courts continued to dominate the Commission’s work. As the Commission’s Executive Director Robert Tembeckjian put it: “The lion’s share of Commission resources is devoted to investigating and prosecuting complaints against town and village justices.” And the answer cannot just be increasing the Commission’s budget. The very existence of 1,277 independent local courts with more than 2,000 judges in towns and villages across New York State underscores the daunting task you, as legislators, face in asking the questions you have, and in attempting to devise meaningful and realistic changes to what may well be a Broken Bench.

Your hearing notice indicates that among the possible reforms the witnesses are invited to address are:

Should legislation be enacted to require town and village judges to be attorneys admitted to practice in New York State? The Fund has not had an opportunity to adopt a formal view on this issue, but I can offer some preliminary observations:

In 1971 – 35 years ago, the law Enforcement Assistance Administration of the United States Department of Justice appointed the National Advisory Commission on Criminal Justice Standards and Goals. The Commission consisted of government officials, citizens, police, judges and prosecutors, and it reviewed studies and reports on the lower courts across the country. Two years later, in its 1973 Report on Courts , it concluded that:

“(1) a unified court system should be organized within each state, administered by a statewide court administrator or administrative judge; (2) all trial courts should be unified into a single trial court with general, criminal and civil jurisdiction; [and] (3) all judicial functions in the trial courts should be performed by full-time judges who possess law degrees and are members of the bar.”

For New York State, these recommendations have been in place and in practice for some considerable time — except with respect to the Justice Courts – some might say the proverbial fly in the ointment.

In New York, as the Action Plan points out, “only the town and village Justice Courts are funded and administered by the sponsoring localities rather than the State, and thus operate without the comprehensive oversight of the New York State Judiciary and Office of Court Administration.” Rather than being part of a single statewide trial court, the Justice Courts are, as the Action Plan aptly put it, “nearly 1,300 individually operated instrumentalities of government”. And, finally, almost three-quarters of the justices are non-lawyers.

To me at least, in our exceedingly complex legal system, at whatever level of the judicial system you may be considering, it is obviously desirable that judges be lawyers (as the Advisory Commission concluded 33 years ago), and that steps should be taken to strongly encourage, if not require, that result.

One defense of non-lawyer judges is apparently that the Court of Appeals in 1983, by a vote of four to three, concluded that a defendant in a criminal case in a Justice Court did not have a constitutional right to a lawyer judge. But, even if the court ruled that a lawyer judge was not constitutionally required, the majority certainly did not come out in support of non-lawyer judges. No one said that it was a good idea. In fact, I have not seen a well-reasoned, affirmative defense of having non-lawyers serve as judges.

That there are apparently many local courts with such limited business as to be unable to attract or afford a lawyer judge is more of an argument in favor of long overdue consolidation among Justice Courts, than a basis for continuing non-lawyers as judges for inactive courts.

Similarly, that there are supposedly some towns or even counties with not enough attorneys to provide the requisite number of attorney-judges is (a) in today’s world rather suspect, and (b) again, more supportive of consolidation of part time courts than anything else.

In this regard, the Judiciary proposal seeking legislation to authorize a town or village to select a justice from within its county or an adjoining county is worthy of consideration, because it should help communities to attract lawyers as judges. Also worth serious consideration is the legislation sponsored by Assemblyman Parment, A 00690. This legislation was unanimously approved in the Assembly last year, co-sponsored by members of the Judiciary Committee, and sponsored in the Senate. It would expand the current law to permit more than two towns to form a contiguous geographic area to support a single town court. That approach, if enacted and actually implemented by communities, would not only increase the likelihood that the courts resulting from such mergers would have lawyer judges, but it would also save money and resources.

Turning back briefly, if I may, to the activities of the Fund for Modern Courts, one of the special, if not unique, programs of the Fund has been its Citizen Court Monitoring program. The Fund introduced the program over 30 years ago, in 1975, to give New Yorkers a direct voice in how their courts are run. The concept, known as Citizen Court Monitoring, was simple; recruit a diverse group of volunteers from around the state and support them in observing court proceedings in their communities. The monitors assess the courts from the point of view of those outside of the legal system, and recommend improvements to make the courts fairer, more efficient and user friendly. Our dedicated group of citizen court monitors has informed the court system of the needs of the public, and, we like to think, has been a catalyst for a number of significant improvements over the years.

In keeping with its tradition of maintaining a rotating roster of court projects around the State, in 2006 court monitors sponsored by the Fund observed a number of courts, including the Albany County Family Court, the Kings County Criminal Court and the Poughkeepsie City Court. In addition, as part of its ongoing efforts to inform the public about their courts, the Citizen Monitoring Program released a comprehensive report on the Dutchess County Family Court. The Fund has included town and village courts within its program over the years with considerable positive impact locally, and, in some instances, more broadly.

Any effort to assess comprehensively the town and village courts across the State through Citizen Court Monitoring would be extremely complex to set up and administer, very costly, and it would be a long time before we would know whether we had any important, revelatory results. On the other hand, it is troubling that not only the news articles, but also current reports, analyses and studies of the Justice Courts, whether defending or criticizing them, tend to rely very heavily on anecdotal evidence and isolated examples, without any in-depth or meaningful backup to support them. The Fund is presently exploring the feasibility of a local monitoring program to assess the organization and operation of town and village courts more broadly, if not comprehensively, and we will certainly keep the Committees apprised of our progress in the hope that we can provide helpful input for your deliberations.

In addition, the Modern Court’s Task Force on Justice Courts will be looking at the problems you have highlighted here today in much greater detail, and we will report to you and your staff in the future on our findings and any recommendations we may have.