By Emily Lever

Law360 (November 12, 2020, 5:11 PM EST ) New York state judges and court staff lambasted cuts to the judicial budget in a New York State Assembly hearing on Thursday, warning that the state's justice system is already spread too thin to weather more austerity.

Representatives for judges, court support staff and legal aid organizations testifying to the state assembly judiciary committee criticized the Office of Court Administration, which has announced a $300 million cut to the judicial system's $3 billion budget. Many witnesses focused on the worsening backlog in the court system, saying it would only be exacerbated by budget cuts, and warned of a disproportionate impact on communities that already experience curtailed access to justice.

"For decades the courts have been called upon to do more with less and the judiciary has risen to the challenge. However, we cannot do more with none," said Charles C. Merrell, a New York state court justice in Lewis County and the president of the Association of Justices of the Supreme Court of the State of New York, told the committee. "The influx of delayed cases is expected to be staggering; this is the worst time to be cutting the judiciary by 10%." 

The Office of Court Administration declined to appear for questions in the virtual public hearing because of pending litigation over its decision to cut 46 appellate justices.

New York Gov. Andrew Cuomo forecasted in September that an overall 10% cut to the state budget could be necessary to deal with the fiscal fallout of COVID-19. Several witnesses pointed out that COVID-19 had in and of itself increased the caseload in specialized courts, including family and domestic violence matters and surrogates' courts.

Kings County Supreme Court Justice Esther Morgenstern, who presides over the Integrated Domestic Violence Court in Brooklyn and is also the president of the New York City Supreme Court Judges Association, said the pandemic had wreaked havoc on her work.

"I haven't looked at a new case since March. My part handles thousands of cases a year," Justice Morgenstern said, adding that she has 800 cases pending currently. "Domestic violence was raging throughout the country [during lockdown]. They're either languishing in criminal court or getting a return date in March [2021]."

Aside from 46 appellate justices facing forced retirement — justices whose caseload amounts to 21,000 cases, according to Justice Merrell — support staff in the court system, like court reporters, court officers and judges' clerks, are facing as yet unknown numbers of layoffs. Representatives of court staff unions said their numbers had never been replenished after retirement incentives and workforce reductions at the beginning of the 2010s, that they are currently laboring under a hiring freeze and greater cuts will hamstring the system.

Dennis Quirk, the president of the New York State Court Officers Association, said 800 to 1,200 judicial employees' jobs were on the line and their absence would be felt in extreme delays for litigants.

"When the pandemic is over, you will have lines around the block to get into the courthouse," Quirk told the committee. "You already have women with a baby carriage waiting 45 minutes in the rain to get into the courthouse."

"The backlog is going to be tremendous and when we open back up it's going to take three to five years to catch up."

Susan C. Bryant of the New York State Defenders Association was one of several witnesses who spoke about the importance of dealing with the backlog quickly and respecting due process.

"There's no perfect way to deal with these backlogs," Bryant said. "Speedy trial rights are impacted by delays. In family court, there's separation of parents from their children for longer periods of time."

And yet, faster proceedings do not necessarily guarantee more justice, Bryant said. "Implicit bias is more likely to be acted upon when the decider is rushed. If the judge has time to unpack the case, they have more time to second-guess their assumptions and biases."

Legislators floated possible alternatives to staff cuts, including raising revenues by hiking filing fees, specifically the $45 cost of a motion, or coupling a lift of the hiring freeze with a retirement incentive in order to eliminate employees with the highest salaries.

CSEA Local 333 President Scott Garland welcomed the prospect of such an employment scheme with some reservations.

"Only if they're actually hiring," he cautioned, "because we can't afford to lose another body right now."

Almost all witnesses, including Janet Sabel, the attorney-in-chief of the Legal Aid Society, raised the prospect of a disproportionate impact of judiciary budget cuts on poorer and underserved districts.

"OCA is the exclusive funder for constitutionally mandated representation for children and youth in family court," Sabel said. "Children and communities of color are more targeted by the court systems, so any cut to legal aid is a cut to this community."

Sabel stressed that not only would employees of the justice system suffer, but so would public defenders.

The New York state courts system, in a statement explaining its absence from the hearing, said the budget cuts were provisional pending its submission of a budget proposal on Dec. 1.

"What we are doing in response to the State's fiscal plight — the broad focus of the hearing — is still very much a work in progress," Marc Bloustein, first deputy counsel in the Office of Court Administration, said in a statement. "Our response cannot be explained without reference to what the Judiciary will be seeking in its budget for the 2021-22 State fiscal year. This said, the Judiciary's request for that 2021-2022 fiscal year has yet to be finalized and approved by the Court of Appeals. Until it is, anything we might say would be entirely speculative."

--Additional reporting by Frank Runyeon. Editing by Michael Watanabe.

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