New York Judiciary's Budget Insult Submitted to Governor Cuomo

Judiciary Submits Negative-Growth Budget
The New York Law Journal by John Caher  -  December 1, 2011

The judiciary this morning submitted a cost-cutting, negative-growth $2.3 billion budget that absorbs $70 million in new expenses—mainly for salary increases and expansion of civil legal services—yet still comes in $3.5 million, or .15 percent, below this year's spending plan.  Under the proposal delivered to Governor Andrew M. Cuomo and legislative leaders:

• Judges would receive their first raise in 13 years, at a total cost of $27.7 million. The 17 percent hike is the first of a three-year, phased-in increases totalling 27 percent.
• The budget does not include the $10,000 supplemental stipend judges received this year in recognition of their years without a raise and to cover such expenses as bar dues and the purchase of legal materials and dues.
• Non-judicial employees would receive contractually required raises totaling $21.3 million.
• Funding for a civil legal service initiative that provides aid to non-profit providers would double, from $12.5 million to $25 million, the same amount requested last year and recommended by a task force.
• There would be no layoffs, but a workforce that is already down 8 percent (about 1,300 positions) through early retirements and layoffs would continue to decline through attrition as only a handful of essential positions are filled. It is projected that approximately 200 employees will leave the court system's employ and will not be replaced.
• The overtime restrictions that this year resulted in courts closing down at 4:30 p.m. and diminished hours for small claims court and weekend arraignments would be "relax[ed]" somewhat to ensure that courts and court operations function during normal business hours.
• Funding for judicial hearing officers would not be restored, meaning that only a few JHOs remain on the paid workforce. Several dozen, however, have volunteered to carry their caseload without compensation, although it is unclear how many will continue working for free for another year. (NYLJ, Dec. 1)
• Most courts and court operations would be funded at essentially the same level as this year, typically with a variance of less than 1 percent up or down. However, community courts would be cut 3.4 percent and drug courts would receive 1.9 percent less.
• The budget includes $6.4 million for a legislatively-mandated program that imposes a cap on the number of cases attorneys providing services to indigent criminal defendants are allowed to carry. When fully implemented on April 1, 2014, caseloads will be limited to 400 misdemeanors or 150 felonies in a 12-month period.
• Aid to localities to construct and maintain court facilities would increase 6.2 percent, to $99.2 million.
• There would be no new appropriations for capital projects, although the budget would re-appropriate $8 million in bonded funds to develop a court officer training academy in Brooklyn.

The budget delivered today is the last for Ann Pfau, who today leaves her post as chief adminmistrative judge to take on a new assignment administering a program that promotes early settlement of medical negligence cases through judge-directed negotiations. The task of defending the budget before the Legislature now falls to A. Gail Prudenti, the former presiding justice of the Appellate Division, Second Department, who today takes over as chief administrative judge.

'Negative Budget'

Chief Judge Jonathan Lippman in an interview described the budget as "a slightly negative budget in the context of a $70 million increase in costs" that seeks to "round the edges and ease the impact on the public of the budget cuts" of this year.  The increased expenses are offset by savings in personnel costs and employee fringe benefits.  The budget projects a $15.4 million savings in retirement costs and a $4.7 million decrease in Social Security contributions as the total size of the non-judicial workforce decreases by about 200 through attrition and only a "few critical operational positions" would be filled, according to a message submitted with the budget.  Judge Lippman said there will be some easing of the overtime restrictions that now require courts to close down at 4:30 p.m. and other measures, such as limits on weekend arraignments, that most inconvenienced the public.  "By keeping the workforce downsized, we hope to be able to ease, somewhat, the 4:30 p.m. closing time, the arrest to arraignment situation in the city, the reduced nights of small claims, the reduced call of jurors—all of these things that have had the most impact on the public," Judge Lippman said. "Make no mistake, we will be vigilant in holding overtime down, but we do need to serve the public until the normal closing time of 5 p.m."

Civil Legal Services

The increased aid for indigent defense is one of the few new discretionary expenses. Last year, Judge Lippman was forced to settle for half of the $25 million recommended by the Task Force to Expand Access to Civil Legal Services in New York. He is hoping to secure the full amount this year.  "In these dismal economic conditions the poor and near poor are hurt the most and the need for civil legal services is greater than ever," Judge Lippman said.  He said 130,000 clients were served this year with the $12.5 million initial appropriation.  "It is our belief that for every dollar invested in civil legal services five dollars are returned to the state in increased federal benefits, decreased social services and costs associated with homelessness," Judge Lippman said. "We think this is money well-invested and we think the additional funding is very modest."  Judge Lippman said he will be pursuing additional funding from private resources.  "The state has finite resources and there are limited funds available for this purpose and we think we have to ratchet up what can come from foundations from working outside the confines of the state budget to try to find additional funding," Judge Lippman said. "We recognize we have to go outside."  Judge Lippman said the savings in community courts and drug treatment parts would come largely from greater efficiencies rather than fewer services.  "We have learned how to be very efficient," Judge Lippman said. "The idea of problem-solving courts is to adapt them to scale. We think we are very adept at what we do and doing it more cheaply than we used to."  Judicial organizations have been urging the Office of Court Administration to maintain the $10,000 stipend for judges.  The proposed budget does not include funds for stipends, but neither did this year's budget. If stipends are allowed in addition to the pay raises, the money would have to be shifted from another budget line.  "There is no specific money for a supplemental fund," Judge Lippman acknowledged. "There never was. We are just going to have to see how the budget year goes. But there is no money in the budget specifically for that purpose."  The court officer training academy at a former school in Brooklyn was funded through bonds issued in the 2007-08 fiscal year.  This year, the court system proposes spending $8 million of that to further develop a residential training facility that is now in the design phase. It was first proposed in the wake of the 2001 terrorist attacks, when officials recognized a need to expand training and provide residential facilities, similar to those used by the Department of Corrections and the State Police.  The judiciary budget faces an uncertain future at a time when the state's fiscal crisis remains severe and Mr. Cuomo is asking executive agencies to cut 2.5 percent, far more than the judiciary plans to cut. However, this year the judiciary was among the hardest hit by the budget predicament, especially with the loss of 8 percent of its workforce.  "I think and believe, and I hope, that it is received by the other branches with a recognition that we are doing the absolutely best we can to meet our true responsibility, which first and foremost is our constitutional mission to deliver fair and impartial justice, balanced by our responsibility to be a good partner in government," Judge Lippman said.  Still, the state is looking at a shortfall of $350 million this year as tax receipts are low than anticipated and the deficit for the next fiscal year, which begins April 1, 2012, is expected to exceed $3 billion.

Impact of Budget

"We have received and are reviewing the Judiciary's budget which, per the Constitution, will be included in the Executive Budget without revision," said Morris Peters, spokesman for the Administration's budget division. " The Governor may comment at that time."  New York State Bar Association President Vincent E. Doyle III described the spending proposal as a "bare-bones request, recognizing that, in hard economic times, the Judiciary, like the other two branches of government, is called upon to strike a balance between its needs and fiscal reality."  Mr. Doyle said that he is gratified that the budget seeks $25 million for civil legal service and $15 million "to rescue the Interest on Lawyer Account Fund." The "rescue" fund makes up part of the loss in IOLA revenues attributable to the drop in interest rates.  However, the state bar remains concerned about the impact of this year's deep budget cuts.  "The State Bar is analyzing how existing reductions affect day-to-day court operations and New Yorkers' access to justice," Mr. Doyle said in a statement. "We are surveying attorneys, court personnel and others to identify problems and ways the court system might enhance its operations despite depleted resources. The findings will be issued in a report, and discussed at length at our Presidential Summit during our Annual Meeting in January."  Steven Banks, attorney-in-chief of the Legal Aid Society in New York City, said the IOLA rescue is critical to his organization. He said that funding has dropped from $4.5 million to $1 million, and the additional support from the court system boosts it up to $3.3 million.  "In these very difficult economic times, when we are only able to help one out of every nine families and individuals coming to us for civil legal help, the additional civil legal service funding can make a critical difference in helping struggling New Yorkers in the midst of the continuing downturn and at the same time…these critical dollars can relieve the burden on court operations," Mr. Banks said.  Mr. Banks said the increased funding to carry out the legislative mandate on criminal case loads is "essential to ensuring that New Yorkers accused of crimes, often wrongfully, are represented by lawyers with proper caseloads."  John Caher can be reached at jcaher@alm.com