Fordham Law

NY's Top Judge Backs $100M Budget For Civil Legal Access

Until Civil Gideon: Expanding Access to Justice in Law360, October 29, 2013

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A $100 million fund for New Yorkers to access counsel for foreclosure and workers' compensation matters would be optimal, the state's chief judge said Tuesday, as he pushes to ramp-up civil legal services spending with the hope that a “Civil Gideon” decision can provide universal access for disadvantaged litigants.

In an interview where he rejected concerns expressed by Gov. Andrew Cuomo about raising the retirement age for many state judges, Chief Judge Jonathan Lippman told Law360 that the current funding level of $55 million for civil legal services could easily be scaled up since it's estimated that only 20 percent of demand is being met.

Lippman said the idea is to keep ramping up spending without spooking policymakers in an age of budgetary and political uncertainty, and expressed hope for incremental bumps in coming years.

“We've stated a goal, for the long run, of $100 million,” Lippman said. “But that's a pretty hard number to come by and it might scare people.”

He said that because the dollars bear outsized returns in terms of value for low-income and poor New Yorkers, any increase packs a punch combined with an ongoing focus onincreasing pro bono hours.

Lippman also said that spending on such efforts could help raise awareness of the life-altering jeopardy people face in civil court, expressing hope that the law of the land would one day include a noncriminal counterpart to the 50-year-old U.S. Supreme Court ruling in Gideon v. Wainwright that gives criminal defendants a right to counsel.

While the U.S. Supreme Court has touched on the issue in cases including its 2011 decision in Turner v. Rogers, which answered questions about access to counsel in civil contempt cases like child support litigation, he said there didn't appear to be any imminent case that could turn the tide. But he said by continuing to focus on the issue, he hopes to help "change the dialogue."

Attitudes are changing as more and more people — especially in recent years — have lost homes or experienced other life-altering blows in civil court that a lawyer could have fixed. The statistics overwhelmingly show that civil representation leads to better outcomes in court, Lippman said.

“Today, from the working person to most educated people, everyone accepts that if your liberty is at stake, you get an attorney. Everybody knows that,” Lippman said. “But now you're getting to the point where, if you ask, 'Do you think, if someone's house is being foreclosed on — do you think they should get a lawyer?' I think most people would answer yes.”

On another pressing issue — the fate of a Nov. 5 vote on a proposed amendment to the state Constitution that would raise the mandatory retirement age for trial court and Court of Appeals judges like Lippman to 80 — he disputed the notion that, somehow, such a move could lead to more jurists “double-dipping” into state coffers by taking a judicial salary while also receiving a pension.

That concern recently was raised by Cuomo, who subsequently hedged his bets to an extent, saying he had no official position on the proposed retirement hike that heads to voters after an epic journey through the state legislature.

“The issue of double-dipping has absolutely nothing to do with this constitutional amendment,” Lippman said, adding that, while a tiny fraction of the state's 1,200 judges have done it, none who do will be certified to keep working past the age of 70 in the future.

Lippman noted that because judges who keep working beyond the age of 70 are technically retired, passage of the amendment could yield benefits in the context of access to civil justice because new judges could be targeted toward courts — like family court — where they are sorely needed.

“You're talking about an age limitation that was put into the state's Constitution in 1869, more than 100 years ago,” he said. “It's the only remaining age limitation in the Constitution. And it's against the public policy of the state to have mandatory retirement in the public or private sector.”

Lippman is speaking on Friday at Fordham Law School as part of an all-day conference entitled Until Civil Gideon: Expanding Access to Justice.