OCA Team Disaster, Lippman and Pfau, Fumble Financial Fiasco

With Budget in Flux, Administrators Put the Brakes on Use of JHOs
The New York Law Journal by Joel Stashenko - March 16, 2011

ALBANY, NY - The assignment of judicial hearing officers to new state court cases has largely halted as administrators wait to see if any of the $7 million-a-year program will survive budget deliberations in Albany. While Chief Administrative Judge Ann Pfau said she has issued no order to stop all new assignments to JHOs, she said she also has made it clear that JHO funding could well be suspended starting April 1, the beginning of the state's fiscal year, due to a new round of austerity measures ordered by Chief Judge Jonathan Lippman. "I think that is a prudent thing to do," Judge Pfau said in an interview as she returned Monday to Manhattan from Queens, where she met with a group of civil Supreme Court justices about JHO cuts. "I tell them [administrative judges] that I wouldn't be starting new things until I had some certainty what is going on in the budget." The suspension of the JHO program would be part of $100 million in proposed budget cuts that Judge Lippman offered (NYLJ, March 3) in the Judiciary's $2.7 billion budget as a way of falling in step with Governor Andrew M. Cuomo's plans to reduce spending in the state's 2011-2012 budget. The state has about 300 JHOs on its rolls. The retired judges are paid $300 a day to handle a myriad of judicial tasks. Those include presiding over jury selection in Supreme Court civil trials, overseeing state-mandated pre-foreclosure conferences and issuing orders of protection in Family Court. According to the Office of Court Administration, judicial hearing officers worked 19,800 days in the 2009-2010 fiscal year. Assuming that the average judge works 250 days a year, the JHO figure is the equivalent to the work done by approximately 79 full-time judges. The state has about 1,240 judges. The Legislature has created few new judges in the last decade. With caseloads continuing to increase, the availability of JHOs has helped to take pressure off the courts. "Essentially, what people are telling me is that they feel strongly they [JHOs] are an important component of court operations," Judge Pfau said. The Queens judges, for example, told her that JHOs are particularly important in keeping matrimonial cases moving. "If we can think of a way to keep some piece of [the JHO program] funded, that would be a good thing," she said. "But I can't guarantee that."

Meanwhile, Ira Gammerman, a high-profile JHO in Manhattan Supreme Court, said he has been told not to expect additional work after April 1. Working five days a week, Mr. Gammerman, 83, acts as a traffic cop in the mornings as he sorts through motions and proposed assignments to civil and commercial courts in Manhattan. In the afternoons, Mr. Gammerman, a 34-year veteran of the bench who retired in 2003, presides over a seventh part of the court's Commercial Divisions. He estimates that represents about 10 percent to 15 percent of the division's caseload. He currently has 250 to 300 cases on his calendar. Recent cases Mr. Gammerman has presided over have included a highly publicized lawsuit by Prince Jefri of Brunei against his former financial advisers (NYLJ, June 23, 2010). "Well, I have to go out and make an honest living," said Mr. Gammerman, contemplating the possibility of a second retirement from the court system. "There are highly remunerative options for me. This is something I like doing and I'd prefer to stay here. But if I can't, I can't." Attorney Mark Zauderer of Flemming Zulack Williamson, Zauderer, a frequent commercial litigator in Manhattan, said that Mr. Gammerman's departure would mean a heavier workload for already busy commercial judges. "In the case of Justice Gammerman, bear in mind that other justices have extremely heavy calenders," Mr. Zauderer said. "One cannot just assume his cases can just be distributed to other commercial justices without delays in the administration of justice." Ninth Judicial District Administrative Judge Alan D. Scheinkman recently directed judges not to send any new cases to JHOs. "Beginning April 1, I am out of business," said Joseph Owen, a former Orange County surrogate and Supreme Court justice who retired last year. Mr. Owen, 77, said he heard several medical and dental malpractice cases as a stand-in for Supreme Court justices in Orange County. "I felt that because of my expertise in handling and trying complex cases over 25 years that I could continue to be of service to the court system in taking care of some of the complex cases for some of the full-time judges," he said. "I want to be of as much help as I can. If the system doesn't want to use my services, that is up to them. If I am not going to be getting any work [as a JHO], then I will take on more mediations and arbitrations."

Strong Case for Family Court

Michael V. Coccoma, the deputy chief administrative judge for courts outside of New York City, said he is acting on the assumption that no JHOs will be available in Supreme Court for the year starting April 1. But he said he thinks a strong case can be made for retaining some JHOs in Family courts. "The volume and impact it would have on Family Court would be too much to absorb," Justice Coccoma said in an interview. "It would create delays that would be unacceptable. We are pretty confident that the judicial hearing officers in the Family Court would continue the work they are doing." If the program is suspended, Justice Coccoma said he hoped that it would resume next year. "Our goal is to have the program back next [fiscal] year," he said. "We are hoping that the JHOs who are on our list reapply next year. They are highly thought of and do a wonderful service to the state." For now, however, Justice Coccoma said he is not authorizing any JHOs to work past April 1, although he would seek an exemption for any JHOs already on trial that is likely to go past that date. Albany County Family Court Judge W. Dennis Duggan said he gets a JHO once every three weeks. "It gives us a break in catching up in chambers," Judge Duggan said. "They are just the kind of relief you need to keep your head above water. It doesn't sound like much, but that one day every three weeks is big. They are also available if you get jammed up where double trials or conferences are scheduled." Without JHOs, Judge Duggan said, "The only option we have is that cases will have to be pushed further and further out down the road because you can't expand the work day and there is no way we can cram more into our work day." New York City Family Court currently employs 16 JHOs working on a host of duties such as custody, visitation, guardianship, family offenses, adoptions and post-dispositional child protective matters, said Judge Edwina Richardson-Mendelson, administrative judge for New York City Family courts. She said the loss of JHOs would "clearly" impact judges and referees, who would have to pick up the caseloads of lost JHOs. "Due to necessary budget cuts we are certain we will not be able to keep all our JHOs," Judge Richardson-Mendelson said. "Our ability to keep any JHOs in the NYC Family Court will depend on the final budget outcome." Until that is settled, Judge Richardson-Mendelson said that JHOs have been directed not to take on any new cases and to conclude any pending cases as soon as possible. In the six-county Fifth Judicial District in central New York, Administrative Judge James C. Tormey III said 12 JHOs typically work two days a week. "We are hopeful of keeping some of the JHOs in Family courts," Judge Tormey said. "Family Court is like an emergency ward. We have to be very careful there and we can't suffer a lot of delays in that court. The old saying about 'justice delayed is justice denied' is very true. It's really critical to try and resolve their issues and move on." The heads of two judicial associations said they had not been consulted about the possibility of suspending the JHO program before it was first raised by Judge Lippman. "This is one of the issues that was dealt with by OCA without official consultation with my association," said Phillip R. Rumsey, president of the Supreme Court Justices Association of the State of New York. Added Justice Rumsey, who sits in Cortland County, "Having said that, I certainly understand that Judge Lippman is in a situation where he has to react aggressively with the budget." Justice Rumsey said he expected his group's executive committee to discuss responses to the JHO cutbacks during a conference call this Friday. He said he was uncertain what the group could do, practically speaking, past objecting to the cuts. Margaret Olszewski Szczur, president of the Family Court Judges Association, said her members have told her of worries of losing JHOs. "The responses have been, 'Where is the time going to come from to pick up the slack?'" said Judge Szczur, an Erie County Family Court judge. She also complained that court administrators in Albany had sprung JHO cuts on judges without warning. "By and large, OCA does not consult with any judicial associations about their initiatives," Judge Szczur said. "I know I was never consulted. The administration takes the position that they are in charge of the administration of the courts and the rest of us have to live with what they decide." Judge Pfau said she speaks "regularly" with the associations and is committed to keeping the lines of communication to them open. "I look forward to hearing from them on the impact as we move forward," she said. Joel Stashenko can be contacted at jstashenko@alm.com.