Albany Law Review symposium: refinement or reinvention, the state of reform in New York: the courts.

• Author: Kaye, Judith S.
• Position: Symposium: Refinement or Reinvention: The State of Reform in New York

FEBRUARY 10, 2006

I'd like to begin by explaining my presence, as well as my absence, today.

First, my presence. The Law Review's invitation was an irresistible one. To be part of a program on state government reform--what an exciting subject for me in my administrative and judicial roles as Chief Judge, to say nothing of my interest as a citizen. I was intrigued also by the opportunity for me to step back and look at the reform process within the Judicial Branch with as much objectivity as I could muster. With my day-to-day calendar being what it is, I don't have much opportunity to do that. And it is always a pleasure to visit the Law School, a second home here in Albany.

That the Court of Appeals is in Session this week and next partly explains my absence this morning, and my inability to linger with you through the afternoon. Our court conferences every morning throughout the Session, as we did this morning, and I now have a second week of fascinating cases ahead to prepare. "Fascinating cases" are another reason I feel uncomfortable joining in this afternoon's discussion. Some of our decisions may be on the table today, being mercilessly dissected; of even greater concern, you may be addressing issues that are on their way to us, and I don't want to have to disqualify myself. And sadly, the death of former Court of Appeals Judge Matthew Jasen requires that I travel to Buffalo to attend his funeral tomorrow morning. So with your indulgence, I would like to tell you about some ongoing and proposed reforms within the Third Branch, and some of the tools we use to pursue them--and then I plan to head off to the airport, along with a briefcase filled with next week's cases.

I should say right at the outset that, while decisions of the state's high court are obviously part of the process of reforming government--that is what checks and balances are all about--I will most decidedly not be discussing our cases, but rather will leave that to others. I will stick to reform of the Third Branch, which is a sufficiently large and indigestible subject. Just last Monday, in my State of the Judiciary message, I put an entire courtroom to sleep covering only highlights of 2005. (1)

It seems appropriate to begin by introducing myself and my institution. I grew up in Monticello, New York, graduated from Barnard College and New York University Law School, and practiced commercial litigation for twenty-one years in New York City law firms in cases involving mergers, acquisitions, securities fraud, breached contracts, and the like. I dreamed large to be sure, but never fantasized that I might someday head the Third Branch of New York State government. In 1983 came the miracle of my appointment to the Court of Appeals by Governor Mario Cuomo, and ten glorious years later, a second miracle: Governor Cuomo appointed me Chief Judge, a 14-year term that regrettably draws to a close in March 2007. With the position of Chief Judge of the Court of Appeals came a second title, a second box of stationery--Chief Judge of the State of New York--and new duties as head of the Judicial Branch. That role includes oversight of more than 360 courthouses across the state, 16,000 employees, 1,200 state-paid judges, case dockets that number in the millions annually, and a budget hopefully always equal to our awesome responsibilities.

1. AN OVERVIEW OF THE THIRD BRANCH

   Being Chief Judge means leading the Judiciary, which as we all learned long ago is a separate, co-equal branch of government. Obviously intrinsic to the faithful exercise of the judicial function is the separation--the independence--of the Judiciary to assure complete integrity in its judgments, untainted by "control or coercive influence" of the other branches (2) or by the whim of the majority. Judicial independence is essential to our system of checks and balances, essential to protecting our fundamental rights and liberties, and thus an essential premise of reform in the courts.

   Of course, independence does not mean that the Judiciary is sealed off from the other branches. While Article VI of the New York Constitution establishes an independent Unified Court System for the state, it also contemplates our interdependence with the Legislative and Executive Branches. (3) The Judiciary is indeed vitally linked to our partners in government in many ways, not the least of them funding. (4) Would that I had the power of the purse! In exchange for that power, I would willingly give my own personal pledge to spend public funds wisely. But then, on reflection, I realized that this is in a sense the system we have--and except for the issue of judicial salaries (a huge EXCEPT), I have no complaint about our funding. During my thirteen years as Chief Judge, we have been careful to propose budgets that are responsible and austere, and the Executive and Legislature have, in effect, honored our pledge to spend public funds wisely by approving our budgets with minimal alteration.

   However, balancing judicial independence with interdependence, and reform in the Judiciary are about much more than dollars and cents. The state constitution itself sets the fulcrum on which this balanced interdependence rests. And as I discovered in my early days as Chief Judge when I struggled to learn the intricacies of our vast court system--surely among the busiest and most complex on Earth--this balance is a dynamic one. The constitution reserves to the Legislative and Executive Branches shared power, not only to set the Judiciary budget but also to regulate court jurisdiction and procedure (5) and the number of judgeships (6)--powers that shape our operations in every imaginable way. But the constitution still guarantees us a broad measure of autonomy and self-governance. With permission of the Court of Appeals, and approval of the Administrative Board, the constitution allows the Chief Judge to promulgate "standards and administrative policies for general application throughout the state." (7)

   The constitution thus envisions not only three separate branches, but also three separate ways for us to pursue reform within the Judiciary. First, some reform measures are wholly within our authority to effectuate without statutory or constitutional amendment. Second, the Judiciary can undertake operational reforms that depend on constitutional change--indeed, we have a legislative program every year. And third, there are large-scale reforms that require either major statutory change or constitutional amendment (which must be approved by the voters). Each of these tools has a place, and all are essential to an efficient, forward-thinking justice system.

   I offer just a few additional thoughts about the reform process to frame our discussion.

   What happens in and to the courts affects government and litigants in countless ways that compel us to manage our courts strategically. For example, criminal court structure and procedures directly affect probation agencies, corrections and law enforcement personnel who transport incarcerated defendants to and from court, prosecutors, defenders, and the local taxpayers who fund them. Family Court operations likewise impact social service agencies and juvenile justice policies. And most important of all, our cases touch the lives of litigants, families, and communities. What happens "out there" is reflected immediately in our courtrooms, and what happens in our courtrooms ripples far beyond. So, judicial independence implies also a duty to engage the other branches of government, and the Bar, as partners on broader systemic issues.

   Also, back in the late 1970s, our constitution, thankfully, was amended to create the position of Chief Administrator of the Courts, a single person to "supervise the administration and operation" of the courts on the Chief Judge's behalf. (8) Of course, no court reform can succeed without the support of the Administrative Board--made up of the Chief Judge and the four Presiding Justices (9) which retains a key policymaking role, (10) and throughout my term I have been fortunate to work alongside superb Presiding Justices. But my dual roles as Chief Judge, each a 100 percent full-time job, would not be humanly possible without a Chief Administrator who knows every crevice of the system, the strengths of every judge and staff member, where every penny is spent; a person who maintains daily contact with the "troops" and our partners in government; a person who masters the intricacies of how courts and other institutions affect each other, who commands respect both within the Judiciary and outside it.

   The two extraordinary Chief Administrators who have been my partners--first Judge E. Leo Milonas and now Judge Jonathan Lippman, my left-handed right-hand man for the past decade--have enabled me genuinely to preside over Court of Appeals cases and at the same time genuinely to oversee the courts and determine policy, knowing that the initiatives and reforms we undertake will be effectively implemented.

   More realistically, I should say that an outstanding Chief Administrator makes every effort to see that our initiatives and reforms are effectively implemented. Let's face it: change--or put more loftily, reform--is hard. It is not easy to change one's own habits, and surely not easy to ask, or even worse, to order others to change theirs, particularly when the people you are ordering around are lawyers and judges.

   Change is particularly hard in the Judiciary because we place such a high value on following precedents of an earlier day, doing things just as they were done in the past. On the bench, judges dress in medieval garb, a recent precedent could be anything in the twentieth century, and we like what we call "stability" in the law. When we do try to depart from existing structures and procedures, stepping back from precedents built up over time, someone always objects--and law-trained people are really good at making objections. So even within...