Governor's Future Hinges on Chief Judge Pick

•Chief Judge Kaye, 70, will depart the bench on Dec. 31 due to the court's mandatory retirement rule.
•The Commission on Judicial Nomination must give Governor David A. Paterson a list of seven names on Dec. 1 from which he must nominate the next chief judge, subject to confirmation by the New York State Senate.

Kaye Looks Forward in Final Address
The New York Law Journal by Joel Stashenko - November 13, 2008

Judith S. Kaye acknowledged yesterday in her final State of the Judiciary address as chief judge that her successor will inherit serious challenges for the judiciary, many of them related to the legal fallout from the "flailing" economy. One problem the court system is beginning to identify is a serious shortage of available legal services and credit counseling that homeowners with subprime mortgages need in order to make meaningful state-mandated conferences with lenders to avoid foreclosure, the chief judge said. "The insight that we've come to realize is that we've got to get help for these people," she said. "Just mandating a conference doesn't do it." Chief Judge Kaye delivered her last State of the Judiciary nine months later than has been her custom. She said she put off her remarks in February to demonstrate the frustration within the judiciary over the failure of lawmakers and governor to grant state judges their first pay raise since 1999. And the chief judge also broke with tradition by speaking to a near-capacity crowd at a performing arts center at New York University instead of Court of Appeals Hall in Albany.

Chief Judge Kaye, 70, will depart the bench on Dec. 31 due to the court's mandatory retirement rule. She has been on the Court for 25 years, 15 in its center seat. "There can be no doubt that I have had the role of a lifetime, a privilege beyond description to labor in the cause of justice alongside the greatest people on Earth," she told a crowd of judges, attorneys, academics and students. The chief judge said she would not dwell on the pay raise situation, over which she has sued the Legislature and governor. But she said it is "heartbreaking, frustrating and demoralizing beyond description" that judges have gone nearly a decade without a raise. She praised the judiciary for continuing to do its job in the face of rising dockets and despite being "deeply pained personally and individually" by the pay situation.

Chief Judge Kaye said it is becoming apparent that a new state law mandating pre-foreclosure conferences for those facing the loss of their homes will not provide the desired relief from foreclosure unless borrowers get informed credit counseling and legal help beforehand. The holders of high-cost, subprime mortgages on one- to four-family dwellings can request a pre-foreclosure conference with lenders under a new state law that went into effect Sept. 1. Also under that statute, no foreclosures can be filed for 90 days starting Sept. 1. The most likely source of the legal help for homeowners facing foreclosure, given the poor economy and the state's difficult finances, will have to come pro bono, Chief Judge Kaye told reporters after her speech. "So we're at that next juncture where we've been meeting with the bar and just exploring ways to get the kind of help that these people need," she said. "The conference is great . . . but they should be meaningful court conferences." The last time the bar was asked to respond pro bono to a major legal crisis was after the terrorist attacks of Sept. 11, 2001, when the chief judge said big law firms "opened their doors and there was an outpouring of free legal services for people in need." "Probably the same thing is going to happen, but it has not yet happened," Chief Judge Kaye said after her speech.

She said one problem court administrators are finding is that firms that might be expected to provide pro bono help to homeowners find themselves conflicted in some cases because many also represent banks writing the mortgages. A call for comment to Bernice Leber, president of the New York State Bar Association, was not immediately returned yesterday. So far, the court system has sent out notices to 25,000 homeowners facing possible foreclosure informing them they are eligible for a pre-foreclosure conference. Chief Administrative Judge Ann Pfau said yesterday that about 100 requests have come back for conferences, with many more expected. Earlier this year, the Court system instituted a pre-foreclosure conference system in Queens for owners of one- to four-family homes regardless of whether their mortgages were subprime or carried more traditional rates. Judge Pfau said about 90 percent of the homeowners in Queens facing foreclosure have defaulted on their mortgages, indicating that more in terms of legal representation and counseling for homeowners is needed to help them avoid losing their homes. Chief Judge Kaye also warned yesterday that the 1.8 million filings in civil courts are sure to soar due to the sour economy. "All caseloads, I just know, are going to mushroom given the state of our economy," she said.

Family Court, Green Courts - Also in yesterday's speech, Chief Judge Kaye:

• Thanked the three administrative judges that served under her during her record-long tenure as chief judge, E. Leo Milonas, Justice Jonathan Lippman and Judge Pfau. She said after the address she considered not naming Judge Lippman for fear she would be seen as endorsing his candidacy to replace her. "You know, I did think about not mentioning him at all because of the situation, but wouldn't that have been absurd after more than 12 years as the chief administrative judge, part of every single one of the initiatives, not to say a special thank you?" she said. "I thought that was human decency." Justice Lippman has applied to the Commission on Judicial Nomination to be the next chief judge, as have three current associate judges on the Court of Appeals: Judges Carmen Beauchamp Ciparick, Eugene F. Pigott Jr. and Theodore T. Jones Jr. The commission must give Governor David A. Paterson a list of seven names on Dec. 1 from which he must nominate the next chief judge, subject to confirmation by the state Senate. Chief Judge Kaye also lauded Fern Fisher, administrative judge for the Civil Court of New York City, for Housing Court improvements. Judge Fisher also has acknowledged applying to the commission to become the next chief judge.
• Said the judiciary should renew efforts to expand the number of Family Court judges due to continuing high caseloads. New case filings exceeded 700,000 in 2007 and are on track to number about 728,000 in 2008, according to the chief judge. "I personally have never before seen such burdens placed on Family Court, emotional burdens and calendar burdens, typically necessitating long court days and long court delays - delays that in child time are an eternity," the chief judge said. "No fair to the litigants, no fair to the courts." There are 149 full-time Family Court judges, 47 in New York City. The chief judge said the need for more judges in the city is particularly dire. A deal appeared to be close in the Legislature to create 39 new Family Court judgeships this spring, 14 in New York City, but momentum disappeared when Mr. Paterson began to warn of the looming economic storm (NYLJ, July 11). The Office of Court Administration generally estimates that it costs $1 million to create a new state court judgeship, with the cost tending to come down after new judges have established their chambers and their staffs. Separately from advocating for more Family Court judges, Chief Judge Kaye announced yesterday that the judiciary is working with New York City agencies and providers of counsel to parents and children in a new initiative to fast-track the handling of child welfare proceedings in the city. "Our joint objective, our fervent hope and belief, is that these measures will accelerate the time to disposition and early permanency for children," the chief judge said.
•Announced the release of what she called the first environmental plan for a judicial system "in the nation, the world, the universe." It contains initiatives such as expanding electronic filing of documents to reduce the use of paper, expanding video conferencing for routine court matters and retrofitting court facilities to save energy and water. Joel.Stashenko@incisivemedia.com