Mali, My New Job and Judicial Discretion

“Bureaucracy expands to meet the needs of the expanding bureaucracy.” Oscar Wilde
“I credit both the Commission [on Judicial Conduct] for pursuing violations of the rules governing judicial conduct and the Court of Appeals for essentially supporting the commission’s efforts.” Hon. Carmen Beauchamp Ciparick, former Court of Appeals judge, November 13, 2013
“This is a court of law, young man, not a court of justice.” Oliver Wendell Holmes, Jr., “The Great Dissenter”
Have you ever been to Mali? Me neither. Although it has had its share of political and economic troubles lately, Mali governs over 14½ million people in West Africa. It has universal education, a rail system, an army and an air force. The military is at war with rebels in the North. Mali does all this on an annual budget of $2.3 Billion, which happens to be the current annual budget of our very own Office of Court Administration. I am pretty sure the Office of Court Administration does not have an Air Force, but this month we will learn if they need more money and chances are they will. Last month the Chief Administrator gave us a glimpse of what we get for all those spondoolies with her annual report. In it, she extols the uncompromising insurance of the Judiciary’s “core mission” while “adapting to the new economic reality.” Just what is the new economic reality? In 1997 the economic reality was a budget of $952.2 million, so I guess it is hard to make ends meet on a mere $2.3 Billion. Let’s see what we get for that. In 1997 the Appellate Divisions handled 11,676 appeals. In 2012, they handled 9,693 appeals. Our own Third Department declined from 2,205 to 1,821. OK, but how about the trial courts? In Supreme Court, the new filings in 1997 were 184,829. In 2012, 174,424. Much to my dismay, uncontested matrimonials declined from 50,254 in 1997 to 46,201 in 2012. Now, was 1997 just an anomaly? Thankfully the bean counters at the Office of Confused Adults give us the answer. In 2008 there were 4,671,265 filings in our civil courts. In 2012, 4,058,891, a decline of over 13%. Every year has declined since 2008.
All of this begs the question, why does it cost us nearly one and a half billion dollars more to resolve fewer cases than in 1997? Beats me. Maybe the psychologists who teach about judicial stress at the Judicial College are breaking the bank. Or maybe it was the $23 million for rooms for the out of town Court of Appeals judges that never came to fruition after the money was spent. Or maybe the $25 million largesse for the favored charities of the Unified Court System. You know, running a Human Trafficking Court, a Community Dispute Resolution Center, a Matrimonial Neutral Evaluation Program, Problem Solving Courts, a Mental Health Court, a Mediator Ethics Advisory Committee, a Collaborative Family Law Center, a Diversity Gender Fairness Committee, Lay Guardian Training (you think I’m making this up, don’t you?), a Child Welfare Court, Children’s Centers and a myriad of Commissions, Boards and Committees for whatever cost a lot of dough. Besides, inflation. Yeah, inflation.
One of these OCA dreams is the Oversight Board to Distribute Judiciary Legal Service Funds in New York. Who names these things anyway? The Oversight Board is charged with reviewing the numerous supplicants for the discretionary $25 million in this year’s budget and to hand out the cash. It seems that the Oversight Board consists of just three people: the chair of something called the Task Force to Expand Civil Legal Services in New York, the Chair of the IOLA Board of Trustees and the Chief Administrator herself. Well, in 2013 they gave $308,637 to something called Sanctuary for Families, which is a nonprofit with administrative expenses of just over $1.5 million.
All of this brings up the real news of the month, My New Job. You see, in the website of the administration of the Unified Court System, Numero Cinqo on the hit parade just after the Chief Judge and the Chief Administrator is the “Chief of Policy and Planning for the New York State Courts.” I know I’d be great at it. One has to “work with judges throughout the state to develop strategies and programs to improve the delivery of justice in the trial courts, as well as provide training and support for the Integrated Domestic Violence, Drug Treatment and other Problem-Solving Courts.” The position oversees 300 problem solving courts, my specialty. I could do that in my sleep, and it pays $168,600 per year plus benefits. I might even get one of the spiffy Unified Court System cars or maybe a driver. The current holder of the office is the Hon. Judy Harris Kluger, but she’s leaving the job on December 31 so she can be the Executive Director of Sanctuary for Families. Yes, that Sanctuary for Families who received over $300k this year from Numero Duo in the Court System. Nice, very nice. So, where do I apply?
Finally, in a Thanksgiving present to the voters of Albany County, the Commission on Judicial Conduct determined that our Surrogate Judge should be removed from office. Good for them. And just why did they take this extraordinary step? Because she exercised her discretion. That’s all. You see, the decision to recuse or disqualify oneself is discretionary with each judge. Here, she apparently presided over cases involving someone who worked really hard on her campaign, albeit without her knowledge of the scope of his work. We know that because she said so under oath, and she was found to be a “credible and candid witness” who “told the truth” by the Referee appointed to hear the matter. Of course this was not good enough for the sanctimonious members of the Commission or at least eight out of ten of them. That and having friends appear in various uncontested matters before her merited her removal. As far as I can tell, not one citizen who came before her complained or was otherwise disadvantaged by any of her actions. Not one person ever received less than fair treatment during her twelve years of service to the citizens of Albany County. Apparently that counts for nothing to the Commission as they held that she violated the rule that states, “A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Of course no member of the public expressed a loss of confidence in the Surrogate, but that did not matter to the Commission. She also ran afoul of “lending the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.” Again, she apparently conveyed that impression to no one, and certainly her private interests or others were not enhanced by her actions. It’s not like she awarded $300,000 of public funds to a charity where a fellow Executive Officer of the Unified Court System applied for the Executive Directorship. Finally she supposedly ran afoul of the rule that, “A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned.” This is in 22 NYCRR 100.3E(1) and that Rule has seven lettered subparagraphs defining where a judge can run afoul. This includes presiding over matters where the judge has personal bias or prejudice, is related to the litigant, was the lawyer for the matter in controversy, et. alia. As far as I can tell, none of the subparagraphs apply here, but we’ll never know as the Commission can’t be bothered to give us a citation to any specific lettered subparagraph. It is as though they think it is just fine to say, “You cannot be a judge because you violated Rule 100.3E(1) and you go figure out which of the subdivisions you violated in your new spare time.” Thanks a lot guys, and thank you from the voters of Albany County for undoing what we did two years ago.
And you sitting justices out there, does this give you a little pause? You could lose it all and be publicly excoriated by the Commission for exercising your discretion to recuse. I have been trying to figure out just how much work an attorney can do to elect what he or she considers an excellent candidate for judicial office. The Commission certainly doesn’t answer that question. But we now know that even if you did not know about it, if I put up a lot of signs for you and mail out invitations to a fundraiser, you may have to disqualify yourself from having me in your court. So, don’t take it personally, but from now on I am exclusively working on the campaigns of judges who I believe should never wear the black robes. Hopefully, they will pay attention and throw me out of their courts when I show up lest the Commission come calling. So, Happy Holidays, members of the Judiciary. You have my sympathy and my admiration. Better you than me.
Technically the Report of the Chief Administrator of the Courts for Calendar Year January 1 through December 31, 2012. It makes you wonder why they do it this way since the Budget of the Court System is April 1 through March 31. Go figure.