Budget Slap May Force NY Judiciary To Make Tough Choices

Dora Galacatos in Law360, January 22, 2014

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Gov. Andrew Cuomo's suggestion that funding requests for New York's cash-strapped judiciary were too lavish drew a vow of cooperation from a top state judgeWednesday, but it also triggered concerns that plans to hire judges, fund more civil litigants and return courtroom hours to normal might be in jeopardy.

In comments published alongside the release of a sprawling, $137 billion executive budget plan rife with tax cuts and touting a $2.2 billion surplus for 2015, the Democratic governor took a slap at the judiciary for asking for either a 2.5 percent funding hike of $44 million or a 2.7 percent hike of $53 million, depending on whose numbers one uses.

Electing to use the higher figure, Cuomo staked out a roughly $13 million difference between what the judiciary has asked for and his own comfort zone, and called for the courts system to cap its request at a 2 percent maximum raise.

"For the past three years my administration and the legislature have kept spending increases below 2 percent. By requesting an increase in excess of that amount, the judiciary is out of step with our fiscally responsible goal for all of New York state government," Cuomo said.

Cuomo's push for a tighter courts budget won backing from a key lawmaker Wednesday.

"I would strongly suggest to the judiciary that they give us a plan that stays within the 2 percent cap," Sen. John J. Bonacic told Law360. Bonacic is an upstate Republican who chairs the New York Senate's Judiciary Committee.

In reply, New York Chief Administrative Judge A. Gail Prudenti declined to mention that, unlike many state actors, the courts have not seen any funding increases in three years, and have endured massive budget cuts imposed during the financial crisis. Instead she took a conciliatory tone, saying the judiciary looked forward to working with Cuomo and lawmakers as the process unfolded in coming weeks.

"We have worked diligently to submit a fiscally responsible budget, as close to a 2 percent increase as possible, that finally restores the judiciary's ability to keep the courthouses open, meet our constitutional mandate, and to serve the community," she said. "The courts are the emergency rooms for the people of New York at some of the most difficult times in their lives. We need to keep the courthouses open for them."

But others saw the back-and-forth as a potentially damaging blow to initiatives in the budget that would allow Empire State courts to stay open until 5 p.m. — current fiscal circumstances have them closing at 4:30 p.m. — as well as to spend $5 million to hire 20 more family court judges and to increase funding for civil legal services by some $15 million.

"It really does seem unfair to shortchange the judicial system now — and the New Yorkers who depend upon it — because court administrators were frugal last year and the year before," said New York County Lawyers' Association President Barbara Moses, counsel at Morvillo Abramowitz Grand Iason & Anello PC. "Nor should the judiciary have to choose between equally pressing needs, such as keeping courtrooms open a full day, getting orders out in a timely fashion, and deploying enough court officers to provide security."

The courts system would also likely be loath to abandon a ramp-up in funding for disadvantaged litigants facing housing, credit or other legal nightmares without a lawyer — one of New York Chief Judge Jonathan Lippman'ssignature causes.

More money for civil legal services would provide an added layer of protection against the creditors that drag unrepresented New Yorkers into court, according to Dora Galacatos, executive director of Fordham University's Feerick Center for Social Justice.

"Creditors filed nearly 100,000 collection cases in New York City Civil Court in 2012 alone; over 97 percent of defendants in these cases represent themselves," Galacatos said. "Access to justice has been impeded greatly by the severe underfunding of the court leading to substantive due process concerns. I have no doubt that New York City Civil Court, for one, cannot fulfill its constitutional duties with a spending increase of only 2 percent."

Nor would skimping on money to hire more family court judges or to keep courts open for normal hours be a good plan, according to attorney Stephanie Gendell, a policy and government expert at the Citizens' Committee for Children of New York.

"In the scope of a $137 billion budget, this seems like a relatively small amount of money that could make a big difference," Gendell said. She expressed disappointment in Cuomo's comments, in light of his plan to cut $2 billion in taxes amid a sizable and apparently growing surplus.

Given the murkiness of New York's budget process, however, there was no way to know Wednesday what the courts would prioritize to get under the 2 percent growth goal — or whether they simply would rely, as some suggested, on allies in the Legislature to help the get the full ask.

Even if the judiciary were to win every penny it wants, some noted the system would still be operating from a position of relative weakness. Nowhere is that more evident than in small claims court, according to Alan M. Moss, a retired lawyer and arbitrator who advocates for a part of the system he says is most litigants' "point of first contact" with the courts.

"The system has been gutted," said Moss, who laments the deeply cut hours of operation especially. "It takes almost a year — in some cases beyond a year — to get judgment. We're seeing the end of the small claims court as we knew it."