Impact Thursday 3: Social Justice and the Continuing Legal Education Materials

Impact Thursday 3: Social Justice and the
Powers and Limitations of the Bench
Continuing Legal Education Materials
DATE: Thursday, January 14, 2016
TIME: Program 5:30p.m – 7:30p.m.
LOCATION: New York Law School
185 West Broadway, New York, NY 10013
PANELISTS: Honorable Shira Scheindlin, United States District Court Judge
Honorable Fern Fisher, Deputy Chief Administrative Judge for the
NYC Courts and Director of the NYS Courts Access to Justice
Program
Ron Kuby, Criminal Defense and Civil Rights Attorney
Honorable Helen Freedman, Justice, NYS Sup. Ct., App. Div., 1st
Dept. (ret.), currently at JAMS
MODERATOR: Honorable Emily Jane Goodman, Justice, NYS Supreme Court
(ret.), now in private practice
CLE:
1.5 Continuing Legal Education credits, Areas of Professional
Practice, Transitional and Non-Transitional
Upcoming Programs:

Thursday, March 3, 2016
Tackling Economic Inequality, Revisited
Impact Thursday:
Social Justice and the Powers and Limitations of the Bench
January 14, 2016
Table of Contents
Timed Agenda……………………...………………………………………………………………2
Federal Code of Conduct for United States Judges……………….…………..…….…….....3-21
Administrative Rules of the New York State Unified Court System & Uniform Rules of the Trial
Courts: Part 100. Judicial Conduct…………………………………………...............……….22-36
Insuring Civil Justice for All: Meeting the Challenges of Poverty………………...……..….37-45
Fees for Criminal Offenders Create a Vicious Cycle…………………………...………..….46-59
Judge Seeks Work………………………………………………………………...…..………..50-51
Rockefeller Drug Laws and Judicial/Prosecutorial Struggle………………………...………52-53
The Courts of New York Explained…………………………………………….………….…..54-56
New York State Unified Court System Press Release: Chief Judge Jonathan Lippman Announces
Series of Reforms to Address Injustices of NY’s Current Bail System……………………..57-59
Bibliography……………………………………………………………………………….………60-63
Panelist Biographies……………………………………………………………………………….64
1
Impact Thursday:
Social Justice and the Powers and Limitations of the Bench
January 14, 2016
Timed Agenda
Date: January 14, 2016
Time: 5:30 pm – 7: 30 pm
Location: New York Law School, 185 West Broadway, New York, NY 10013
CLE: 1.5 Continuing Legal Education Credits
5:30 – 5:40:





Introductions
Honorable Shira Scheindlin, United States District Court Judge
Honorable Fern Fisher, Deputy Chief Administrative Judge for the NYC
Courts and Director of the NYS Courts Access to Justice Program
Ron Kuby, Criminal Defense and Civil Rights Attorney
Honorable Helen Freedman, Justice, NYS Sup. Ct., App. Div., 1st Dept.
(ret.), now at JAMS
Honorable Emily Jane Goodman, Justice, NYS Supreme Court (ret.), now
in private practice
5:40 – 6:45:
Moderated Panel discussion and Question and Answer
This moderated panel will provide a range of perspectives about the realities of the justice
system. Topics to be addressed in this timely and important discussion include mandatory
minimums, the backlog in the United States Court system, and judicial/media relations, amongst
others.
6:45 – 7:30:
Reception
82
2
Guide to Judiciary Policy
Vol 2: Ethics and Judicial Conduct
Pt A: Codes of Conduct
Ch 2: Code of Conduct for United States Judges
Introduction
Canon 1:
A Judge Should Uphold the Integrity and Independence of the Judiciary
Canon 2:
A Judge Should Avoid Impropriety and the Appearance of Impropriety in
All Activities
Canon 3:
A Judge Should Perform the Duties of the Office Fairly, Impartially and
Diligently
Canon 4:
A Judge May Engage in Extrajudicial Activities That Are Consistent with
the Obligations of Judicial Office
Canon 5:
A Judge Should Refrain from Political Activity
Compliance with the Code of Conduct
Applicable Date of Compliance
Introduction
The Code of Conduct for United States Judges was initially adopted by the Judicial
Conference on April 5, 1973, and was known as the "Code of Judicial Conduct for
United States Judges." See: JCUS-APR 73, pp. 9-11. Since then, the Judicial
Conference has made the following changes to the Code:
•
•
•
•
•
•
•
March 1987: deleted the word "Judicial" from the name of the Code;
September 1992: adopted substantial revisions to the Code;
March 1996: revised part C of the Compliance section, immediately
following the Code;
September 1996: revised Canons 3C(3)(a) and 5C(4);
September 1999: revised Canon 3C(1)(c);
September 2000: clarified the Compliance section;
March 2009: adopted substantial revisions to the Code;
Last revised (Transmittal 02-016) March 20, 2014
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Guide to Judiciary Policy, Vol. 2A, Ch. 2
•
Page 2
March 2014: revised part C of the Compliance section, which appears
below, immediately following the Code.
This Code applies to United States circuit judges, district judges, Court of International
Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate
judges. Certain provisions of this Code apply to special masters and commissioners as
indicated in the “Compliance” section. The Tax Court, Court of Appeals for Veterans
Claims, and Court of Appeals for the Armed Forces have adopted this Code.
The Judicial Conference has authorized its Committee on Codes of Conduct to render
advisory opinions about this Code only when requested by a judge to whom this Code
applies. Requests for opinions and other questions concerning this Code and its
applicability should be addressed to the Chair of the Committee on Codes of Conduct
by email or as follows:
Chair, Committee on Codes of Conduct
c/o General Counsel
Administrative Office of the United States Courts
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E.
Washington, D.C. 20544
202-502-1100
Procedural questions may be addressed to:
Office of the General Counsel
Administrative Office of the United States Courts
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E.
Washington, D.C. 20544
202-502-1100
CANON 1:
A JUDGE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE
OF THE JUDICIARY
An independent and honorable judiciary is indispensable to justice in our society.
A judge should maintain and enforce high standards of conduct and should personally
observe those standards, so that the integrity and independence of the judiciary may be
preserved. The provisions of this Code should be construed and applied to further that
objective.
COMMENTARY
Deference to the judgments and rulings of courts depends on public confidence
in the integrity and independence of judges. The integrity and independence of judges
depend in turn on their acting without fear or favor. Although judges should be
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Guide to Judiciary Policy, Vol. 2A, Ch. 2
Page 3
independent, they must comply with the law and should comply with this Code.
Adherence to this responsibility helps to maintain public confidence in the impartiality of
the judiciary. Conversely, violation of this Code diminishes public confidence in the
judiciary and injures our system of government under law.
The Canons are rules of reason. They should be applied consistently with
constitutional requirements, statutes, other court rules and decisional law, and in the
context of all relevant circumstances. The Code is to be construed so it does not
impinge on the essential independence of judges in making judicial decisions.
The Code is designed to provide guidance to judges and nominees for judicial
office. It may also provide standards of conduct for application in proceedings under the
Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 (28 U.S.C.
§§ 332(d)(1), 351-364). Not every violation of the Code should lead to disciplinary
action. Whether disciplinary action is appropriate, and the degree of discipline, should
be determined through a reasonable application of the text and should depend on such
factors as the seriousness of the improper activity, the intent of the judge, whether there
is a pattern of improper activity, and the effect of the improper activity on others or on
the judicial system. Many of the restrictions in the Code are necessarily cast in general
terms, and judges may reasonably differ in their interpretation. Furthermore, the Code
is not designed or intended as a basis for civil liability or criminal prosecution. Finally,
the Code is not intended to be used for tactical advantage.
CANON 2:
A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE
OF IMPROPRIETY IN ALL ACTIVITIES
A.
Respect for Law. A judge should respect and comply with the law and
should act at all times in a manner that promotes public confidence in the
integrity and impartiality of the judiciary.
B.
Outside Influence. A judge should not allow family, social, political,
financial, or other relationships to influence judicial conduct or judgment.
A judge should neither lend the prestige of the judicial office to advance
the private interests of the judge or others nor convey or permit others to
convey the impression that they are in a special position to influence the
judge. A judge should not testify voluntarily as a character witness.
C.
Nondiscriminatory Membership. A judge should not hold membership in
any organization that practices invidious discrimination on the basis of
race, sex, religion, or national origin.
COMMENTARY
Canon 2A. An appearance of impropriety occurs when reasonable minds, with
knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would
conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to
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Guide to Judiciary Policy, Vol. 2A, Ch. 2
Page 4
serve as a judge is impaired. Public confidence in the judiciary is eroded by
irresponsible or improper conduct by judges. A judge must avoid all impropriety and
appearance of impropriety. This prohibition applies to both professional and personal
conduct. A judge must expect to be the subject of constant public scrutiny and accept
freely and willingly restrictions that might be viewed as burdensome by the ordinary
citizen. Because it is not practicable to list all prohibited acts, the prohibition is
necessarily cast in general terms that extend to conduct by judges that is harmful
although not specifically mentioned in the Code. Actual improprieties under this
standard include violations of law, court rules, or other specific provisions of this Code.
Canon 2B. Testimony as a character witness injects the prestige of the judicial
office into the proceeding in which the judge testifies and may be perceived as an
official testimonial. A judge should discourage a party from requiring the judge to testify
as a character witness except in unusual circumstances when the demands of justice
require. This Canon does not create a privilege against testifying in response to an
official summons.
A judge should avoid lending the prestige of judicial office to advance the private
interests of the judge or others. For example, a judge should not use the judge’s judicial
position or title to gain advantage in litigation involving a friend or a member of the
judge’s family. In contracts for publication of a judge’s writings, a judge should retain
control over the advertising to avoid exploitation of the judge’s office.
A judge should be sensitive to possible abuse of the prestige of office. A judge
should not initiate communications to a sentencing judge or a probation or corrections
officer but may provide information to such persons in response to a formal request.
Judges may participate in the process of judicial selection by cooperating with
appointing authorities and screening committees seeking names for consideration and
by responding to official inquiries concerning a person being considered for a judgeship.
Canon 2C. Membership of a judge in an organization that practices invidious
discrimination gives rise to perceptions that the judge’s impartiality is impaired. Canon
2C refers to the current practices of the organization. Whether an organization
practices invidious discrimination is often a complex question to which judges should be
sensitive. The answer cannot be determined from a mere examination of an
organization’s current membership rolls but rather depends on how the organization
selects members and other relevant factors, such as that the organization is dedicated
to the preservation of religious, ethnic or cultural values of legitimate common interest to
its members, or that it is in fact and effect an intimate, purely private organization whose
membership limitations could not be constitutionally prohibited. See New York State
Club Ass’n. Inc. v. City of New York, 487 U.S. 1, 108 S. Ct. 2225, 101 L. Ed. 2d 1
(1988); Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S.
537, 107 S. Ct. 1940, 95 L. Ed. 2d 474 (1987); Roberts v. United States Jaycees, 468
U.S. 609, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984). Other relevant factors include the
size and nature of the organization and the diversity of persons in the locale who might
reasonably be considered potential members. Thus the mere absence of diverse
membership does not by itself demonstrate a violation unless reasonable persons with
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Guide to Judiciary Policy, Vol. 2A, Ch. 2
Page 5
knowledge of all the relevant circumstances would expect that the membership would
be diverse in the absence of invidious discrimination. Absent such factors, an
organization is generally said to discriminate invidiously if it arbitrarily excludes from
membership on the basis of race, religion, sex, or national origin persons who would
otherwise be admitted to membership.
Although Canon 2C relates only to membership in organizations that invidiously
discriminate on the basis of race, sex, religion or national origin, a judge’s membership
in an organization that engages in any invidiously discriminatory membership practices
prohibited by applicable law violates Canons 2 and 2A and gives the appearance of
impropriety. In addition, it would be a violation of Canons 2 and 2A for a judge to
arrange a meeting at a club that the judge knows practices invidious discrimination on
the basis of race, sex, religion, or national origin in its membership or other policies, or
for the judge to use such a club regularly. Moreover, public manifestation by a judge of
the judge’s knowing approval of invidious discrimination on any basis gives the
appearance of impropriety under Canon 2 and diminishes public confidence in the
integrity and impartiality of the judiciary, in violation of Canon 2A.
When a judge determines that an organization to which the judge belongs
engages in invidious discrimination that would preclude membership under Canon 2C or
under Canons 2 and 2A, the judge is permitted, in lieu of resigning, to make immediate
and continuous efforts to have the organization discontinue its invidiously discriminatory
practices. If the organization fails to discontinue its invidiously discriminatory practices
as promptly as possible (and in all events within two years of the judge’s first learning of
the practices), the judge should resign immediately from the organization.
CANON 3:
A JUDGE SHOULD PERFORM THE DUTIES OF THE OFFICE FAIRLY,
IMPARTIALLY AND DILIGENTLY
The duties of judicial office take precedence over all other activities. In
performing the duties prescribed by law, the judge should adhere to the following
standards:
A.
Adjudicative Responsibilities.
(1)
A judge should be faithful to, and maintain professional
competence in, the law and should not be swayed by partisan
interests, public clamor, or fear of criticism.
(2)
A judge should hear and decide matters assigned, unless
disqualified, and should maintain order and decorum in all judicial
proceedings.
(3)
A judge should be patient, dignified, respectful, and courteous to
litigants, jurors, witnesses, lawyers, and others with whom the
judge deals in an official capacity. A judge should require similar
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Guide to Judiciary Policy, Vol. 2A, Ch. 2
Page 6
conduct of those subject to the judge’s control, including lawyers to
the extent consistent with their role in the adversary process.
(4)
A judge should accord to every person who has a legal interest in a
proceeding, and that person’s lawyer, the full right to be heard
according to law. Except as set out below, a judge should not
initiate, permit, or consider ex parte communications or consider
other communications concerning a pending or impending matter
that are made outside the presence of the parties or their lawyers.
If a judge receives an unauthorized ex parte communication
bearing on the substance of a matter, the judge should promptly
notify the parties of the subject matter of the communication and
allow the parties an opportunity to respond, if requested. A judge
may:
(a)
initiate, permit, or consider ex parte communications as
authorized by law;
(b)
when circumstances require it, permit ex parte
communication for scheduling, administrative, or emergency
purposes, but only if the ex parte communication does not
address substantive matters and the judge reasonably
believes that no party will gain a procedural, substantive, or
tactical advantage as a result of the ex parte communication;
(c)
obtain the written advice of a disinterested expert on the law,
but only after giving advance notice to the parties of the
person to be consulted and the subject matter of the advice
and affording the parties reasonable opportunity to object
and respond to the notice and to the advice received; or
(d)
with the consent of the parties, confer separately with the
parties and their counsel in an effort to mediate or settle
pending matters.
(5)
A judge should dispose promptly of the business of the court.
(6)
A judge should not make public comment on the merits of a matter
pending or impending in any court. A judge should require similar
restraint by court personnel subject to the judge’s direction and
control. The prohibition on public comment on the merits does not
extend to public statements made in the course of the judge’s
official duties, to explanations of court procedures, or to scholarly
presentations made for purposes of legal education.
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Guide to Judiciary Policy, Vol. 2A, Ch. 2
B.
C.
Page 7
Administrative Responsibilities.
(1)
A judge should diligently discharge administrative responsibilities,
maintain professional competence in judicial administration, and
facilitate the performance of the administrative responsibilities of
other judges and court personnel.
(2)
A judge should not direct court personnel to engage in conduct on
the judge’s behalf or as the judge’s representative when that
conduct would contravene the Code if undertaken by the judge.
(3)
A judge should exercise the power of appointment fairly and only
on the basis of merit, avoiding unnecessary appointments,
nepotism, and favoritism. A judge should not approve
compensation of appointees beyond the fair value of services
rendered.
(4)
A judge with supervisory authority over other judges should take
reasonable measures to ensure that they perform their duties timely
and effectively.
(5)
A judge should take appropriate action upon learning of reliable
evidence indicating the likelihood that a judge’s conduct
contravened this Code or a lawyer violated applicable rules of
professional conduct.
Disqualification.
(1)
A judge shall disqualify himself or herself in a proceeding in which
the judge’s impartiality might reasonably be questioned, including
but not limited to instances in which:
(a)
the judge has a personal bias or prejudice concerning a
party, or personal knowledge of disputed evidentiary facts
concerning the proceeding;
(b)
the judge served as a lawyer in the matter in controversy, or
a lawyer with whom the judge previously practiced law
served during such association as a lawyer concerning the
matter, or the judge or lawyer has been a material witness;
(c)
the judge knows that the judge, individually or as a fiduciary,
or the judge’s spouse or minor child residing in the judge’s
household, has a financial interest in the subject matter in
controversy or in a party to the proceeding, or any other
interest that could be affected substantially by the outcome
of the proceeding;
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Guide to Judiciary Policy, Vol. 2A, Ch. 2
(d)
(e)
Page 8
the judge or the judge’s spouse, or a person related to either
within the third degree of relationship, or the spouse of such
a person is:
(i)
a party to the proceeding, or an officer, director, or
trustee of a party;
(ii)
acting as a lawyer in the proceeding;
(iii)
known by the judge to have an interest that could be
substantially affected by the outcome of the
proceeding; or
(iv)
to the judge’s knowledge likely to be a material
witness in the proceeding;
the judge has served in governmental employment and in
that capacity participated as a judge (in a previous judicial
position), counsel, advisor, or material witness concerning
the proceeding or has expressed an opinion concerning the
merits of the particular case in controversy.
(2)
A judge should keep informed about the judge’s personal and
fiduciary financial interests and make a reasonable effort to keep
informed about the personal financial interests of the judge’s
spouse and minor children residing in the judge’s household.
(3)
For the purposes of this section:
(a)
the degree of relationship is calculated according to the civil
law system; the following relatives are within the third degree
of relationship: parent, child, grandparent, grandchild, great
grandparent, great grandchild, sister, brother, aunt, uncle,
niece, and nephew; the listed relatives include whole and
half blood relatives and most step relatives;
(b)
“fiduciary” includes such relationships as executor,
administrator, trustee, and guardian;
(c)
“financial interest” means ownership of a legal or equitable
interest, however small, or a relationship as director, advisor,
or other active participant in the affairs of a party, except
that:
(i)
ownership in a mutual or common investment fund
that holds securities is not a “financial interest” in such
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Guide to Judiciary Policy, Vol. 2A, Ch. 2
Page 9
securities unless the judge participates in the
management of the fund;
(d)
(4)
D.
(ii)
an office in an educational, religious, charitable,
fraternal, or civic organization is not a “financial
interest” in securities held by the organization;
(iii)
the proprietary interest of a policyholder in a mutual
insurance company, or a depositor in a mutual
savings association, or a similar proprietary interest,
is a “financial interest” in the organization only if the
outcome of the proceeding could substantially affect
the value of the interest;
(iv)
ownership of government securities is a “financial
interest” in the issuer only if the outcome of the
proceeding could substantially affect the value of the
securities;
“proceeding” includes pretrial, trial, appellate review, or other
stages of litigation.
Notwithstanding the preceding provisions of this Canon, if a judge
would be disqualified because of a financial interest in a party
(other than an interest that could be substantially affected by the
outcome), disqualification is not required if the judge (or the judge’s
spouse or minor child) divests the interest that provides the
grounds for disqualification.
Remittal of Disqualification. Instead of withdrawing from the proceeding, a
judge disqualified by Canon 3C(1) may, except in the circumstances
specifically set out in subsections (a) through (e), disclose on the record
the basis of disqualification. The judge may participate in the proceeding
if, after that disclosure, the parties and their lawyers have an opportunity
to confer outside the presence of the judge, all agree in writing or on the
record that the judge should not be disqualified, and the judge is then
willing to participate. The agreement should be incorporated in the record
of the proceeding.
COMMENTARY
Canon 3A(3). The duty to hear all proceedings fairly and with patience is not
inconsistent with the duty to dispose promptly of the business of the court. Courts can
be efficient and businesslike while being patient and deliberate.
The duty under Canon 2 to act in a manner that promotes public confidence in
the integrity and impartiality of the judiciary applies to all the judge’s activities, including
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Page 10
the discharge of the judge’s adjudicative and administrative responsibilities. The duty to
be respectful includes the responsibility to avoid comment or behavior that could
reasonably be interpreted as harassment, prejudice or bias.
Canon 3A(4). The restriction on ex parte communications concerning a
proceeding includes communications from lawyers, law teachers, and others who are
not participants in the proceeding. A judge may consult with other judges or with court
personnel whose function is to aid the judge in carrying out adjudicative responsibilities.
A judge should make reasonable efforts to ensure that law clerks and other court
personnel comply with this provision.
A judge may encourage and seek to facilitate settlement but should not act in a
manner that coerces any party into surrendering the right to have the controversy
resolved by the courts.
Canon 3A(5). In disposing of matters promptly, efficiently, and fairly, a judge
must demonstrate due regard for the rights of the parties to be heard and to have issues
resolved without unnecessary cost or delay. A judge should monitor and supervise
cases to reduce or eliminate dilatory practices, avoidable delays, and unnecessary
costs.
Prompt disposition of the court’s business requires a judge to devote adequate
time to judicial duties, to be punctual in attending court and expeditious in determining
matters under submission, and to take reasonable measures to ensure that court
personnel, litigants, and their lawyers cooperate with the judge to that end.
Canon 3A(6). The admonition against public comment about the merits of a
pending or impending matter continues until the appellate process is complete. If the
public comment involves a case from the judge’s own court, the judge should take
particular care so that the comment does not denigrate public confidence in the
judiciary’s integrity and impartiality, which would violate Canon 2A. A judge may
comment publicly on proceedings in which the judge is a litigant in a personal capacity,
but not on mandamus proceedings when the judge is a litigant in an official capacity (but
the judge may respond in accordance with Fed. R. App. P. 21(b)).
Canon 3B(3). A judge’s appointees include assigned counsel, officials such as
referees, commissioners, special masters, receivers, guardians, and personnel such as
law clerks, secretaries, and judicial assistants. Consent by the parties to an
appointment or an award of compensation does not relieve the judge of the obligation
prescribed by this subsection.
Canon 3B(5). Appropriate action may include direct communication with the
judge or lawyer, other direct action if available, reporting the conduct to the appropriate
authorities, or, when the judge believes that a judge’s or lawyer’s conduct is caused by
drugs, alcohol, or a medical condition, making a confidential referral to an assistance
program. Appropriate action may also include responding to a subpoena to testify or
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Guide to Judiciary Policy, Vol. 2A, Ch. 2
Page 11
otherwise participating in judicial or lawyer disciplinary proceedings; a judge should be
candid and honest with disciplinary authorities.
Canon 3C. Recusal considerations applicable to a judge’s spouse should also
be considered with respect to a person other than a spouse with whom the judge
maintains both a household and an intimate relationship.
Canon 3C(1)(c). In a criminal proceeding, a victim entitled to restitution is not,
within the meaning of this Canon, a party to the proceeding or the subject matter in
controversy. A judge who has a financial interest in the victim of a crime is not required
by Canon 3C(1)(c) to disqualify from the criminal proceeding, but the judge must do so if
the judge’s impartiality might reasonably be questioned under Canon 3C(1) or if the
judge has an interest that could be substantially affected by the outcome of the
proceeding under Canon 3C(1)(d)(iii).
Canon 3C(1)(d)(ii). The fact that a lawyer in a proceeding is affiliated with a law
firm with which a relative of the judge is affiliated does not of itself disqualify the judge.
However, if “the judge’s impartiality might reasonably be questioned” under
Canon 3C(1), or the relative is known by the judge to have an interest in the law firm
that could be “substantially affected by the outcome of the proceeding” under
Canon 3C(1)(d)(iii), the judge’s disqualification is required.
CANON 4:
A JUDGE MAY ENGAGE IN EXTRAJUDICIAL ACTIVITIES THAT ARE
CONSISTENT WITH THE OBLIGATIONS OF JUDICIAL OFFICE
A judge may engage in extrajudicial activities, including law-related pursuits and
civic, charitable, educational, religious, social, financial, fiduciary, and governmental
activities, and may speak, write, lecture, and teach on both law-related and nonlegal
subjects. However, a judge should not participate in extrajudicial activities that detract
from the dignity of the judge’s office, interfere with the performance of the judge’s official
duties, reflect adversely on the judge’s impartiality, lead to frequent disqualification, or
violate the limitations set forth below.
A.
Law-related Activities.
(1)
Speaking, Writing, and Teaching. A judge may speak, write,
lecture, teach, and participate in other activities concerning the law,
the legal system, and the administration of justice.
(2)
Consultation. A judge may consult with or appear at a public
hearing before an executive or legislative body or official:
(a)
on matters concerning the law, the legal system, or the
administration of justice;
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Guide to Judiciary Policy, Vol. 2A, Ch. 2
B.
C.
Page 12
(b)
to the extent that it would generally be perceived that a
judge’s judicial experience provides special expertise in the
area; or
(c)
when the judge is acting pro se in a matter involving the
judge or the judge’s interest.
(3)
Organizations. A judge may participate in and serve as a member,
officer, director, trustee, or nonlegal advisor of a nonprofit
organization devoted to the law, the legal system, or the
administration of justice and may assist such an organization in the
management and investment of funds. A judge may make
recommendations to public and private fund-granting agencies
about projects and programs concerning the law, the legal system,
and the administration of justice.
(4)
Arbitration and Mediation. A judge should not act as an arbitrator
or mediator or otherwise perform judicial functions apart from the
judge’s official duties unless expressly authorized by law.
(5)
Practice of Law. A judge should not practice law and should not
serve as a family member’s lawyer in any forum. A judge may,
however, act pro se and may, without compensation, give legal
advice to and draft or review documents for a member of the
judge’s family.
Civic and Charitable Activities. A judge may participate in and serve as an
officer, director, trustee, or nonlegal advisor of a nonprofit civic, charitable,
educational, religious, or social organization, subject to the following
limitations:
(1)
A judge should not serve if it is likely that the organization will either
be engaged in proceedings that would ordinarily come before the
judge or be regularly engaged in adversary proceedings in any
court.
(2)
A judge should not give investment advice to such an organization
but may serve on its board of directors or trustees even though it
has the responsibility for approving investment decisions.
Fund Raising. A judge may assist nonprofit law-related, civic, charitable,
educational, religious, or social organizations in planning fund-raising
activities and may be listed as an officer, director, or trustee. A judge may
solicit funds for such an organization from judges over whom the judge
does not exercise supervisory or appellate authority and from members of
the judge’s family. Otherwise, a judge should not personally participate in
fund-raising activities, solicit funds for any organization, or use or permit
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Page 13
the use of the prestige of judicial office for that purpose. A judge should
not personally participate in membership solicitation if the solicitation might
reasonably be perceived as coercive or is essentially a fund-raising
mechanism.
D.
E.
Financial Activities.
(1)
A judge may hold and manage investments, including real estate,
and engage in other remunerative activity, but should refrain from
financial and business dealings that exploit the judicial position or
involve the judge in frequent transactions or continuing business
relationships with lawyers or other persons likely to come before
the court on which the judge serves.
(2)
A judge may serve as an officer, director, active partner, manager,
advisor, or employee of a business only if the business is closely
held and controlled by members of the judge’s family. For this
purpose, “members of the judge’s family” means persons related to
the judge or the judge’s spouse within the third degree of
relationship as defined in Canon 3C(3)(a), any other relative with
whom the judge or the judge’s spouse maintains a close familial
relationship, and the spouse of any of the foregoing.
(3)
As soon as the judge can do so without serious financial detriment,
the judge should divest investments and other financial interests
that might require frequent disqualification.
(4)
A judge should comply with the restrictions on acceptance of gifts
and the prohibition on solicitation of gifts set forth in the Judicial
Conference Gift Regulations. A judge should endeavor to prevent
any member of the judge’s family residing in the household from
soliciting or accepting a gift except to the extent that a judge would
be permitted to do so by the Judicial Conference Gift Regulations.
A “member of the judge’s family” means any relative of a judge by
blood, adoption, or marriage, or any person treated by a judge as a
member of the judge’s family.
(5)
A judge should not disclose or use nonpublic information acquired
in a judicial capacity for any purpose unrelated to the judge’s official
duties.
Fiduciary Activities. A judge may serve as the executor, administrator,
trustee, guardian, or other fiduciary only for the estate, trust, or person of a
member of the judge’s family as defined in Canon 4D(4). As a family
fiduciary a judge is subject to the following restrictions:
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(1)
The judge should not serve if it is likely that as a fiduciary the judge
would be engaged in proceedings that would ordinarily come before
the judge or if the estate, trust, or ward becomes involved in
adversary proceedings in the court on which the judge serves or
one under its appellate jurisdiction.
(2)
While acting as a fiduciary, a judge is subject to the same
restrictions on financial activities that apply to the judge in a
personal capacity.
F.
Governmental Appointments. A judge may accept appointment to a
governmental committee, commission, or other position only if it is one
that concerns the law, the legal system, or the administration of justice, or
if appointment of a judge is required by federal statute. A judge should
not, in any event, accept such an appointment if the judge’s governmental
duties would tend to undermine the public confidence in the integrity,
impartiality, or independence of the judiciary. A judge may represent the
judge’s country, state, or locality on ceremonial occasions or in connection
with historical, educational, and cultural activities.
G.
Chambers, Resources, and Staff. A judge should not to any substantial
degree use judicial chambers, resources, or staff to engage in extrajudicial
activities permitted by this Canon.
H.
Compensation, Reimbursement, and Financial Reporting. A judge may
accept compensation and reimbursement of expenses for the law-related
and extrajudicial activities permitted by this Code if the source of the
payments does not give the appearance of influencing the judge in the
judge’s judicial duties or otherwise give the appearance of impropriety,
subject to the following restrictions:
(1)
Compensation should not exceed a reasonable amount nor should
it exceed what a person who is not a judge would receive for the
same activity.
(2)
Expense reimbursement should be limited to the actual costs of
travel, food, and lodging reasonably incurred by the judge and,
where appropriate to the occasion, by the judge’s spouse or
relative. Any additional payment is compensation.
(3)
A judge should make required financial disclosures, including
disclosures of gifts and other things of value, in compliance with
applicable statutes and Judicial Conference regulations and
directives.
COMMENTARY
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Canon 4. Complete separation of a judge from extrajudicial activities is neither
possible nor wise; a judge should not become isolated from the society in which the
judge lives. As a judicial officer and a person specially learned in the law, a judge is in a
unique position to contribute to the law, the legal system, and the administration of
justice, including revising substantive and procedural law and improving criminal and
juvenile justice. To the extent that the judge’s time permits and impartiality is not
compromised, the judge is encouraged to do so, either independently or through a bar
association, judicial conference, or other organization dedicated to the law. Subject to
the same limitations, judges may also engage in a wide range of non-law-related
activities.
Within the boundaries of applicable law (see, e.g., 18 U.S.C. § 953) a judge may
express opposition to the persecution of lawyers and judges anywhere in the world if the
judge has ascertained, after reasonable inquiry, that the persecution is occasioned by
conflict between the professional responsibilities of the persecuted judge or lawyer and
the policies or practices of the relevant government.
A person other than a spouse with whom the judge maintains both a household
and an intimate relationship should be considered a member of the judge’s family for
purposes of legal assistance under Canon 4A(5), fund raising under Canon 4C, and
family business activities under Canon 4D(2).
Canon 4A. Teaching and serving on the board of a law school are permissible,
but in the case of a for-profit law school, board service is limited to a nongoverning
advisory board.
Consistent with this Canon, a judge may encourage lawyers to provide pro bono
legal services.
Canon 4A(4). This Canon generally prohibits a judge from mediating a state
court matter, except in unusual circumstances (e.g., when a judge is mediating a federal
matter that cannot be resolved effectively without addressing the related state court
matter).
Canon 4A(5). A judge may act pro se in all legal matters, including matters
involving litigation and matters involving appearances before or other dealings with
governmental bodies. In so doing, a judge must not abuse the prestige of office to
advance the interests of the judge or the judge’s family.
Canon 4B. The changing nature of some organizations and their exposure to
litigation make it necessary for a judge regularly to reexamine the activities of each
organization with which the judge is affiliated to determine if the judge’s continued
association is appropriate. For example, in many jurisdictions, charitable hospitals are
in court more often now than in the past.
Canon 4C. A judge may attend fund-raising events of law-related and other
organizations although the judge may not be a speaker, a guest of honor, or featured on
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the program of such an event. Use of a judge’s name, position in the organization, and
judicial designation on an organization’s letterhead, including when used for fund raising
or soliciting members, does not violate Canon 4C if comparable information and
designations are listed for others.
Canon 4D(1), (2), and (3). Canon 3 requires disqualification of a judge in any
proceeding in which the judge has a financial interest, however small. Canon 4D
requires a judge to refrain from engaging in business and from financial activities that
might interfere with the impartial performance of the judge’s judicial duties. Canon 4H
requires a judge to report compensation received for activities outside the judicial office.
A judge has the rights of an ordinary citizen with respect to financial affairs, except for
limitations required to safeguard the proper performance of the judge’s duties. A
judge’s participation in a closely held family business, while generally permissible, may
be prohibited if it takes too much time or involves misuse of judicial prestige or if the
business is likely to come before the court on which the judge serves. Owning and
receiving income from investments do not as such affect the performance of a judge’s
duties.
Canon 4D(5). The restriction on using nonpublic information is not intended to
affect a judge’s ability to act on information as necessary to protect the health or safety
of the judge or a member of a judge’s family, court personnel, or other judicial officers if
consistent with other provisions of this Code.
Canon 4E. Mere residence in the judge’s household does not by itself make a
person a member of the judge’s family for purposes of this Canon. The person must be
treated by the judge as a member of the judge’s family.
The Applicable Date of Compliance provision of this Code addresses continued
service as a fiduciary.
A judge’s obligation under this Code and the judge’s obligation as a fiduciary may
come into conflict. For example, a judge should resign as a trustee if it would result in
detriment to the trust to divest holdings whose retention would require frequent
disqualification of the judge in violation of Canon 4D(3).
Canon 4F. The appropriateness of accepting extrajudicial assignments must be
assessed in light of the demands on judicial resources and the need to protect the
courts from involvement in matters that may prove to be controversial. Judges should
not accept governmental appointments that could interfere with the effectiveness and
independence of the judiciary, interfere with the performance of the judge’s judicial
responsibilities, or tend to undermine public confidence in the judiciary.
Canon 4H. A judge is not required by this Code to disclose income, debts, or
investments, except as provided in this Canon. The Ethics Reform Act of 1989 and
implementing regulations promulgated by the Judicial Conference impose additional
restrictions on judges’ receipt of compensation. That Act and those regulations should
be consulted before a judge enters into any arrangement involving the receipt of
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compensation. The restrictions so imposed include but are not limited to: (1) a
prohibition against receiving “honoraria” (defined as anything of value received for a
speech, appearance, or article), (2) a prohibition against receiving compensation for
service as a director, trustee, or officer of a profit or nonprofit organization, (3) a
requirement that compensated teaching activities receive prior approval, and (4) a
limitation on the receipt of “outside earned income.”
CANON 5:
A.
A JUDGE SHOULD REFRAIN FROM POLITICAL ACTIVITY
General Prohibitions. A judge should not:
(1)
act as a leader or hold any office in a political organization;
(2)
make speeches for a political organization or candidate, or publicly
endorse or oppose a candidate for public office; or
(3)
solicit funds for, pay an assessment to, or make a contribution to a
political organization or candidate, or attend or purchase a ticket for
a dinner or other event sponsored by a political organization or
candidate.
B.
Resignation upon Candidacy. A judge should resign the judicial office if
the judge becomes a candidate in a primary or general election for any
office.
C.
Other Political Activity. A judge should not engage in any other political
activity. This provision does not prevent a judge from engaging in
activities described in Canon 4.
COMMENTARY
The term “political organization” refers to a political party, a group affiliated with a
political party or candidate for public office, or an entity whose principal purpose is to
advocate for or against political candidates or parties in connection with elections for
public office.
Compliance with the Code of Conduct
Anyone who is an officer of the federal judicial system authorized to perform judicial
functions is a judge for the purpose of this Code. All judges should comply with this
Code except as provided below.
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Part-time Judge
A part-time judge is a judge who serves part-time, whether continuously or
periodically, but is permitted by law to devote time to some other
profession or occupation and whose compensation for that reason is less
than that of a full-time judge. A part-time judge:
B.
(1)
is not required to comply with Canons 4A(4), 4A(5), 4D(2), 4E, 4F,
or 4H(3);
(2)
except as provided in the Conflict-of-Interest Rules for Part-time
Magistrate Judges, should not practice law in the court on which
the judge serves or in any court subject to that court's appellate
jurisdiction, or act as a lawyer in a proceeding in which the judge
has served as a judge or in any related proceeding.
Judge Pro Tempore
A judge pro tempore is a person who is appointed to act temporarily as a
judge or as a special master.
C.
(1)
While acting in this capacity, a judge pro tempore is not required to
comply with Canons 4A(4), 4A(5), 4D(2), 4D(3), 4E, 4F, or 4H(3);
further, one who acts solely as a special master is not required to
comply with Canons 4A(3), 4B, 4C, 4D(4), or 5.
(2)
A person who has been a judge pro tempore should not act as a
lawyer in a proceeding in which the judge has served as a judge or
in any related proceeding.
Retired Judge
A judge who is retired under 28 U.S.C. § 371(b) or § 372(a) (applicable to
Article III judges), or who is subject to recall under § 178(d) (applicable to
judges on the Court of Federal Claims), or who is recalled to judicial
service, should comply with all the provisions of this Code except Canon
4F, but the judge should refrain from judicial service during the period of
extrajudicial appointment not sanctioned by Canon 4F. All other retired
judges who are eligible for recall to judicial service (except those in U.S.
territories and possessions) should comply with the provisions of this
Code governing part-time judges. However, bankruptcy judges and
magistrate judges who are eligible for recall but who have notified the
Administrative Office of the United States Courts that they will not consent
to recall are not obligated to comply with the provisions of this Code
governing part-time judges. Such notification may be made at any time
after retirement, and is irrevocable. A senior judge in the territories and
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possessions must comply with this Code as prescribed by 28 U.S.C.
§ 373(c)(5) and (d).
COMMENTARY
The 2014 amendment to the Compliance section, regarding retired bankruptcy
judges and magistrate judges and exempting those judges from compliance with the
Code as part-time judges if they notify the Administrative Office of the United States
Courts that they will not consent to recall, was not intended to alter those judges’
statutory entitlements to annuities, cost-of-living adjustments, or any other retirement
benefits.
Applicable Date of Compliance
Persons to whom this Code applies should arrange their financial and fiduciary affairs
as soon as reasonably possible to comply with it and should do so in any event within
one year after appointment. If, however, the demands on the person's time and the
possibility of conflicts of interest are not substantial, such a person may continue to act,
without compensation, as an executor, administrator, trustee, or other fiduciary for the
estate or person of one who is not a member of the person's family if terminating the
relationship would unnecessarily jeopardize any substantial interest of the estate or
person and if the judicial council of the circuit approves.
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Administrative Rules of the New York State Unified Court
System & Uniform Rules of the T rial Courts
PART 100. Judicial Conduct
Preamble
The rules governing judicial conduct are rules of reason. They should be applied consistently with
constitutional requirements, statutes, other court rules and decisional law and in the context of all
relevant circumstances. The rules are to be construed so as not to impinge on the essential
independence of judges in making judicial decisions.
The rules are designed to provide guidance to judges and candidates for elective judicial office and
to provide a structure for regulating conduct through disciplinary agencies. They are not designed or
intended as a basis for civil liability or criminal prosecution.
The text of the rules is intended to govern conduct of judges and candidates for elective judicial
office and to be binding upon them. It is not intended, however, that every transgression will result in
disciplinary action. Whether disciplinary action is appropriate, and the degree of discipline to be
imposed, should be determined through a reasonable and reasoned application of the text and
should depend on such factors as the seriousness of the transgression, whether there is a pattern of
improper activity and the effect of the improper activity on others or on the judicial system.
The rules are not intended as an exhaustive guide for conduct. Judges and judicial candidates also
should be governed in their judicial and personal conduct by general ethical standards. The rules are
intended, however, to state basic standards which should govern their conduct and to provide
guidance to assist them in establishing and maintaining high standards of judicial and personal
conduct.
Section 100.0 Terminology.
The following terms used in this Part are defined as follows:
(A) A "candidate" is a person seeking selection for or retention in public office by election. A person
becomes a candidate for public office as soon as he or she makes a public announcement of
candidacy, or authorizes solicitation or acceptance of contributions.
(B) "Court personnel" does not include the lawyers in a proceeding before a judge.
(C) The "degree of relationship" is calculated according to the civil law system. That is, where the
judge and the party are in the same line of descent, degree is ascertained by ascending or
descending from the judge to the party, counting a degree for each person, including the party but
excluding the judge. Where the judge and the party are in different lines of descent, degree is
ascertained by ascending from the judge to the common ancestor, and descending to the party,
counting a degree for each person in both lines, including the common ancestor and the party but
excluding the judge. The following persons are relatives within the fourth degree of relationship:
22
great-grandparent, grandparent, parent, uncle, aunt, brother, sister, first cousin, child, gran dchild,
great-grandchild, nephew or niece. The sixth degree of relationship includes second cousins.
(D) "Economic interest" denotes ownership of a more than de minimis legal or equitable interest, or a
relationship as officer, director, advisor or other active participant in the affairs of a party, except that
(1) ownership of an interest in a mutual or common investment fund that holds securities is not an
economic interest in such securities unless the judge participates in the management of the fund or
a proceeding pending or impending before the judge could substantially affect the value of the
interest;
(2) service by a judge as an officer, director, advisor or other active participant in an educational,
religious, charitable, cultural, fraternal or civic organization, or service by a judge's spouse or child as
an officer, director, advisor or other active participant in any organization does not create an
economic interest in securities held by that organization;
(3) a deposit in a financial institution, the proprietary interest of a policy holder in a mutual insurance
company, of a depositor in a mutual savings association or of a member in a credit union, or a
similar proprietary interest, is not an economic interest in the organization, unless a proc eeding
pending or impending before the judge could substantially affect the value of the interest;
(4) ownership of government securities is not an economic interest in the issuer unless a proceeding
pending or impending before the judge could substantially affect the value of the securities.
(5) "De minimis" denotes an insignificant interest that could not raise reasonable questions as to a
judge's impartiality.
(E) "Fiduciary" includes such relationships as executor, administrator, trustee, and guardian.
(F) "Knowingly", "knowledge", "known" or "knows" denotes actual knowledge of the fact in question.
A person's knowledge may be inferred from circumstances.
(G) "Law" denotes court rules as well as statutes, constitutional provisions and decisional law.
(H) "Member of the candidate's family" denotes a spouse, child, grandchild, parent, grandparent or
other relative or person with whom the candidate maintains a close familial relationship.
(I) "Member of the judge's family" denotes a spouse, child, grandch ild, parent, grandparent or other
relative or person with whom the judge maintains a close familial relationship.
(J) "Member of the judge's family residing in the judge's household" denotes any relative of a judge
by blood or marriage, or a person treated by a judge as a member of the judge's family, who resides
in the judge's household.
(K) "Nonpublic information" denotes information that, by law, is not available to the public. Nonpublic
information may include but is not limited to: information that is sealed by statute or court order,
impounded or communicated in camera; and information offered in grand jury proceedings,
presentencing reports, dependency cases or psychiatric reports.
(L) A "part-time judge", including an acting part-time judge, is a judge who serves repeatedly on a
part-time basis by election or under a continuing appointment.
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(M) "Political organization" denotes a political party, political club or other group, the principal
purpose of which is to further the election or appointment of candidates to political office.
(N) "Public election" includes primary and general elections; it includes partisan elections,
nonpartisan elections and retention elections.
(O) "Require". The rules prescribing that a judge "require" certain conduct of othe rs, like all of the
rules in this Part, are rules of reason. The use of the term "require" in that context means a judge is
to exercise reasonable direction and control over the conduct of those persons subject to the judge's
direction and control.
(P) "Rules"; citation. Unless otherwise made clear by the citation in the text, references to individual
components of the rules are cited as follows:
"Part"-refers to Part 100.
"Section"-refers to a provision consisting of 100 followed by a decimal (100.1).
"Subdivision"-refers to a provision designated by a capital letter (A).
"Paragraph"-refers to a provision designated by an arabic numeral (1).
"Subparagraph"-refers to a provision designated by a lower-case letter (a).
(Q) "Window Period" denotes a period beginning nine months before a primary election, judicial
nominating convention, party caucus or other party meeting for nominating candidates for the
elective judicial office for which a judge or non-judge is an announced candidate, or for which a
committee or other organization has publicly solicited or supported the judge's or non -judge's
candidacy, and ending, if the judge or non-judge is a candidate in the general election for that office,
six months after the general election, or if he or she is not a can didate in the general election, six
months after the date of the primary election, convention, caucus or meeting.
(R) "Impartiality" denotes absence of bias or prejudice in favor of, or against, particular parties or
classes of parties, as well as maintaining an open mind in considering issues that may come before
the judge.
(S) An "independent" judiciary is one free of outside influences or control.
(T) "Integrity" denotes probity, fairness, honesty, uprightness and soundness of character. "Integrity"
also includes a firm adherence to this Part or its standard of values.
(U) A "pending proceeding" is one that has begun but not yet reached its final disposition.
(V) An "impending proceeding" is one that is reasonably foreseeable but has not yet been
commenced.
Section 100.1 A judge shall uphold the integrity and independence of the judiciary
An independent and honorable judiciary is indispensable to justice in our society. A judge should
participate in establishing, maintaining and enforcing high standards of condu ct, and shall personally
observe those standards so that the integrity and independence of the judiciary will be preserved.
The provisions of this Part 100 are to be construed and applied to further that objective.
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Section 100.2 A judge shall avoid impropriety and the appearance of impropriety in all of the
judge's activities.
(A) 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.
(B) A judge shall not allow family, social, political or other relationships to influence the judge's
judicial conduct or judgment.
(C) A judge shall not lend 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. A judge shall not testify voluntarily as a character witness.
(D) A judge shall not hold membership in any organization that practices invidious discrimination on
the basis of age, race, creed, color, sex, sexual orientation, religion, national origin, disability or
marital status. This provision does not prohibit a judge from holding membership in an organization
that is dedicated to the preservation of religious, ethnic, cultural or other values of legitimate
common interest to its members.
Section 100.3 A judge shall perform the duties of judicial office impartially and diligently.
(A) Judicial Duties in General. The judicial duties of a judge take precedence over all the judge's
other activities. The judge's judicial duties include all the duties of the judge's office prescribed by
law. In the performance of these duties, the following standards apply.
(B) Adjudicative Responsibilities.
(1) A judge shall be faithful to the law and maintain professional competence in it. A judge shall not
be swayed by partisan interests, public clamor or fear of criticism.
(2) A judge shall require order and decorum in proceedings before the judge.
(3) A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others
with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, and of
staff, court officials and others subject to the judge's direction and control.
(4) A judge shall perform judicial duties without bias or prejudice against or in favor of any person. A
judge in the performance of judicial duties shall not, by words or conduct, manifest bias or prejudice,
including but not limited to bias or prejudice based upon age, race, creed, color, sex, sexual
orientation, religion, national origin, disability, marital status or socioeconomic status, and shall
require staff, court officials and others subject to the judge's direction and control to refrain from such
words or conduct.
(5) A judge shall require lawyers in proceedings before the judge to refrain from manifesting, by
words or conduct, bias or prejudice based upon age, race, creed, color, sex, sexual orientation,
religion, national origin, disability, marital status or socioeconomic status, against parties, witnesses,
counsel or others. This paragraph does not preclude legitimate advocacy when age, race, creed,
25
color, sex, sexual orientation, religion, national origin, disability, marital status or socioeconomic
status, or other similar factors are issues in the proceeding.
(6) A judge shall accord to every person who has a legal interest in a proceeding, or that person's
lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte
communications, or consider other communications made to the judge outside the presence of the
parties or their lawyers concerning a pending or impending proceeding, except:
(a) Ex parte communications that are made for scheduling or administrative purposes and that do
not affect a substantial right of any party are authorized, provided the judge reasonably believes that
no party will gain a procedural or tactical advantage as a result of the ex parte communica tion, and
the judge, insofar as practical and appropriate, makes provision for prompt notification of other
parties or their lawyers of the substance of the ex parte communication and allows an opportunity to
respond.
(b) A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding
before the judge if the judge gives notice to the parties of the person consulted and a copy of such
advice if the advice is given in writing and the substance of the advice if it is given orally, and affords
the parties reasonable opportunity to respond.
(c) A judge may consult with court personnel whose function is to aid the judge in carrying out the
judge's adjudicative responsibilities or with other judges.
(d) A judge, with the consent of the parties, may confer separately with the parties and their lawyers
on agreed-upon matters.
(e) A judge may initiate or consider any ex parte communications when authorized by law to do so.
(7) A judge shall dispose of all judicial matters promptly, efficiently and fairly.
(8) A judge shall not make any public comment about a pending or impending proceeding in any
court within the United States or its territories. The judge shall require similar abstention on the part
of court personnel subject to the judge's direction and control. This paragraph does not prohibit
judges from making public statements in the course of their official duties or from explaining for
public information the procedures of the court. This paragraph does not apply to proceedings in
which the judge is a litigant in a personal capacity.
(9) A judge shall not:
(a) make pledges or promises of conduct in office that are inconsistent with the impartial
performance of the adjudicative duties of the office;
(b) with respect to cases, controversies or issues that are likely to come before the court, make
commitments that are inconsistent with the impartial performance of the adjudicative duties of the
office.
(10) A judge shall not commend or criticize jurors for their verdict other than in a c ourt order or
opinion in a proceeding, but may express appreciation to jurors for their service to the judicial system
and the community.
(11) A judge shall not disclose or use, for any purpose unrelated to judicial duties, nonpublic
information acquired in a judicial capacity.
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(12) It is not a violation of this Rule for a judge to make reasonable efforts to facilitate the ability of
unrepresented litigants to have their matters fairly heard.
(C) Administrative Responsibilities.
(1) A judge shall diligently discharge the judge's administrative responsibilities without bias or
prejudice and maintain professional competence in judicial administration, and should cooperate
with other judges and court officials in the administration of court business.
(2) A judge shall require staff, court officials and others subject to the judge's direction and control to
observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting
bias or prejudice in the performance of their official duties.
(3) A judge shall not make unnecessary appointments. A judge shall exercise the power of
appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism. A
judge shall not approve compensation of appointees beyond th e fair value of services rendered. A
judge shall not appoint or vote for the appointment of any person as a member of the judge's staff or
that of the court of which the judge is a member, or as an appointee in a judicial proceeding, who is
a relative within the fourth degree of relationship of either the judge or the judge's spouse or the
spouse of such a person. A judge shall refrain from recommending a relative within the fourth degree
of relationship of either the judge or the judge's spouse or the spou se of such person for
appointment or employment to another judge serving in the same court. A judge also shall comply
with the requirements of Part 8 of the Rules of the Chief Judge (22 NYCRR Part 8) relating to the
Appointment of relatives of judges. Nothing in this paragraph shall prohibit appointment of the
spouse of the town or village justice, or other member of such justice's household, as clerk of the
town or village court in which such justice sits, provided that the justice obtains the prior approv al of
the Chief Administrator of the Courts, which may be given upon a showing of good cause.
(D) Disciplinary Responsibilities.
(1) A judge who receives information indicating a substantial likelihood that another judge has
committed a substantial violation of this Part shall take appropriate action.
(2) A judge who receives information indicating a substantial likelihood that a lawyer has committed
a substantial violation of the Code of Professional Responsibility shall take appropriate action.
(3) Acts of a judge in the discharge of disciplinary responsibilities are part of a judge's judicial duties.
(E) Disqualification.
(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might
reasonably be questioned, including but not limited to instances where:
(a) (i) the judge has a personal bias or prejudice concerning a party or (ii) th e judge has personal
knowledge of disputed evidentiary facts concerning the proceeding;
(b) the judge knows that (i) the judge served as a lawyer in the matter in controversy, or (ii) a lawyer
with whom the judge previously practiced law served during such association as a lawyer concerning
the matter, or (iii) the judge has been a material witness concerning it;
(c) the judge knows that he or she, individually or as a fiduciary, or the judge's spouse or minor child
residing in the judge's household has an economic interest in the subject matter in controversy or in
27
a party to the proceeding or has any other interest that could be substantially affected by the
proceeding;
(d) the judge knows that the judge or the judge's spouse, or a person known by the judg e to be
within the sixth degree of relationship to either of them, or the spouse of such a person:
(i) is a party to the proceeding;
(ii) is an officer, director or trustee of a party;
(iii) has an interest that could be substantially affected by the pro ceeding;
(e) The judge knows that the judge or the judge's spouse, or a person known by the judge to be
within the fourth degree of relationship to either of them, or the spouse of such a person, is acting as
a lawyer in the proceeding or is likely to be a material witness in the proceeding.
(f) the judge, while a judge or while a candidate for judicial office, has made a pledge or promise of
conduct in office that is inconsistent with the impartial performance of the adjudicative duties of the
office or has made a public statement not in the judge's adjudicative capacity that commits the judge
with respect to
(i) an issue in the proceeding; or
(ii) the parties or controversy in the proceeding.
(g) notwithstanding the provisions of subparagraphs (c) and (d ) above, if a judge would be
disqualified because of the appearance or discovery, after the matter was assigned to the judge, that
the judge individually or as fiduciary, the judge's spouse, or a minor child residing in his or her
household has an economic interest in a party to the proceeding, disqualification is not required if
the judge, spouse or minor child, as the case may be, divests himself or herself of the interest that
provides the grounds for the disqualification.
(2) A judge shall keep informed about the judge's personal and fiduciary economic interests, and
make a reasonable effort to keep informed about the personal economic interests of the judge's
spouse and minor children residing in the judge's household.
(F) Remittal of Disqualification. A judge disqualified by the terms of subdivision (E), except
subparagraph (1)(a)(i), subparagraph (1)(b)(i) or (iii) or subparagraph (1)(d)(i) of this section, may
disclose on the record the basis of the judge's disqualification. If, following such disclos ure of any
basis for disqualification, the parties who have appeared and not defaulted and their lawyers, without
participation by the judge, all agree that the judge should not be disqualified, and the judge believes
that he or she will be impartial and is willing to participate, the judge may participate in the
proceeding. The agreement shall be incorporated in the record of the proceeding.
Section 100.4 A judge shall so conduct the judge's extra-judicial activities as to minimize the
risk of conflict with judicial obligations
(A) Extra-Judicial Activities in General. A judge shall conduct all of the judge's extra-judicial
activities so that they do not:
28
(1) cast reasonable doubt on the judge's capacity to act impartially as a judge;
(2) detract from the dignity of judicial office; or
(3) interfere with the proper performance of judicial duties and are not incompatible with judicial
office.
(B) Avocational Activities. A judge may speak, write, lecture, teach and participate in extra -judicial
activities subject to the requirements of this Part.
(C) Governmental, Civic, or Charitable Activities.
(1) A full-time judge shall not appear at a public hearing before an executive or legislative body or
official except on matters concerning the law, the legal system or the administration of justice or
except when acting pro se in a matter involving the judge or the judge's interests.
(2)(a) A full-time judge shall not accept appointment to a governmental committee or commission or
other governmental position that is concerned with issues of fact or policy in matters other than the
improvement of the law, the legal system or the administration of justice. A judge may, however,
represent a country, state or locality on ceremonial occasions or in conn ection with historical,
educational or cultural activities.
(b) A judge shall not accept appointment or employment as a peace officer or police officer as those
terms are defined in section 1.20 of the Criminal Procedure Law.
(3) A judge may be a member or serve as an officer, director, trustee or non-legal advisor of an
organization or governmental agency devoted to the improvement of the law, the legal system or the
administration of justice or of an educational, religious, charitable, cultural, fraternal or civic
organization not conducted for profit, subject to the following limitations and the other requirements
of this Part.
(a) A judge shall not serve as an officer, director, trustee or non -legal advisor if it is likely that the
organization
(i) will be engaged in proceedings that ordinarily would come before the judge, or
(ii) if the judge is a full-time judge, will be engaged regularly in adversary proceedings in any court.
(b) A judge as an officer, director, trustee or non-legal advisor, or a member or otherwise:
(i) may assist such an organization in planning fund-raising and may participate in the management
and investment of the organization's funds, but shall not personally participate in the solicitation of
funds or other fund-raising activities;
(ii) may not be a speaker or the guest of honor at an organization's fund -raising events, but the judge
may attend such events. Nothing in this subparagraph shall prohibit a judge from being a speaker or
guest of honor at a court employee organization, bar association or law school function or from
accepting at another organization's fund-raising event an unadvertised award ancillary to such event;
(iii) may make recommendations to public and private fund-granting organizations on projects and
programs concerning the law, the legal system or the administration of justice; and
(iv) shall not use or permit the use of the prestige of judicial office for fund -raising or membership
29
solicitation, but may be listed as an officer, director or trustee of such an organization. Use of an
organization's regular letterhead for fund-raising or membership solicitation does not violate this
provision, provided the letterhead lists only the judge's name and office or other position in the
organization, and, if comparable designations are listed for other persons, the judge's judicial
designation.
(D) Financial Activities.
(1) A judge shall not engage in financial and business dealings that:
(a) may reasonably be perceived to exploit the judge's judicial position;
(b) involve the judge with any business, organization or activity that ordinarily will come before the
judge; or
(c) involve the judge in frequent transactions or continuing business relationships with those lawyers
or other persons likely to come before the court on which the judge serves.
(2) A judge, subject to the requirements of this Part, may hold and manage investments of the judge
and members of the judge's family, including real estate.
(3) A full-time judge shall not serve as an officer, director, manager, general partner, advisor,
employee or other active participant of any business entity, except that:
(a) the foregoing restriction shall not be applicable to a judge who assumed judicial office prior to
July 1, 1965, and maintained such position or activity continuously since that date; and
(b) a judge, subject to the requirements of this Part, may manage and participate in a business entity
engaged solely in investment of the financial resources of the judge or members of the judge's
family; and
(c) any person who may be appointed to fill a full-time judicial vacancy on an interim or temporary
basis pending an election to fill such vacancy may apply to the Chief Administrator of the Courts for
exemption from this paragraph during the period of such interim or temporary appointment.
(4) A judge shall manage the judge's investments and other financial interests to minimize the
number of cases in which the judge is disqualified. As soon as the judge can do so without serious
financial detriment, the judge shall divest himself or herself of investments and other financial
interests that might require frequent disqualification.
(5) A judge shall not accept, and shall urge members of the judge's family residing in the judge's
household not to accept, a gift, bequest, favor or loan from anyone except:
(a) a gift incident to a public testimonial, books, tapes and other resource materials supplied by
publishers on a complimentary basis for official use, or an invitation to the judge and the judge's
spouse or guest to attend a bar-related function or an activity devoted to the improvement of the law,
the legal system or the administration of justice;
(b) a gift, award or benefit incident to the business, profession or other separate activity of a spouse
or other family member of a judge residing in the judge's household, including gifts, awards and
benefits for the use of both the spouse or other family member and the judge (as spouse or family
member), provided the gift, award or benefit could not reasonably be perceived as intended to
influence the judge in the performance of judicial duties;
30
(c) ordinary social hospitality;
(d) a gift from a relative or friend, for a special occasion such as a wedding, anniversary or birthday,
if the gift is fairly commensurate with the occasion and the relationship;
(e) a gift, bequest, favor or loan from a relative or close personal friend whose appearance or
interest in a case would in any event require disqualification under section 100.3(E);
(f) a loan from a lending institution in its regular course of business on the same terms generally
available to persons who are not judges;
(g) a scholarship or fellowship awarded on the same terms and based on the same criteria applied to
other applicants; or
(h) any other gift, bequest, favor or loan, only if: the donor is not a party or other person who has
come or is likely to come or whose interests have come or are likely to come before the judge; and if
its value exceeds $150.00, the judge reports it in the same manner as the judge reports
compensation in Section 100.4(H).
(E) Fiduciary Activities.
(1) A full-time judge shall not serve as executor, administrator or other personal representative,
trustee, guardian, attorney in fact or other fiduciary, designated by an instrument executed after
January 1, 1974, except for the estate, trust or person of a member of the judge's family, or, with the
approval of the Chief Administrator of the Courts, a person not a member of the judge's family with
whom the judge has maintained a longstanding personal relationship of trust and confidence, and
then only if such services will not interfere with the proper performance of judicial d uties.
(2) The same restrictions on financial activities that apply to a judge personally also apply to the
judge while acting in a fiduciary capacity.
(3) Any person who may be appointed to fill a full-time judicial vacancy on an interim or temporary
basis pending an election to fill such vacancy may apply to the Chief Administrator of the Courts for
exemption from paragraphs (1) and (2) during the period of such interim or temporary appointment.
(F) Service as Arbitrator or Mediator. A full-time judge shall not act as an arbitrator or mediator or
otherwise perform judicial functions in a private capacity unless expressly authorized by law.
(G) Practice of Law. A full-time judge shall not practice law. Notwithstanding this prohibition, a
judge may act pro se and may, without compensation, give legal advice to a member of the judge's
family.
(H) Compensation, Reimbursement and Reporting.
(1) Compensation and Reimbursement. A full-time judge may receive compensation and
reimbursement of expenses for the extra-judicial activities permitted by this Part, if the source of
such payments does not give the appearance of influencing the judge's performance of judicial
duties or otherwise give the appearance of impropriety, subject to the following restrictions:
(a) Compensation shall not exceed a reasonable amount nor shall it exceed what a person who is
not a judge would receive for the same activity.
(b) Expense reimbursement shall be limited to the actual cost of travel, food and lodging reasonably
incurred by the judge and, where appropriate to the occasion, by the judge's spouse or guest. Any
payment in excess of such an amount is compensation.
31
(c) No full-time judge shall solicit or receive compensation for extra-judicial activities performed for or
on behalf of: (1) New York State, its political subdivisions or any office or agency thereof; (2) a
school, college or university that is financially supported primarily by New York State or any of its
political subdivisions, or any officially recognized body of students thereof, except that a judge may
receive the ordinary compensation for a lecture or for teaching a regular course of study at any
college or university if the teaching does not conflict with the proper performance of judicial duties; or
(3) any private legal aid bureau or society designated to represent indigents in accordance with
article 18-B of the County Law.
(2) Public Reports. A full-time judge shall report the date, place and nature of any activity for which
the judge received compensation in excess of $150, and the name of the payor and the amount of
compensation so received. Compensation or income of a spouse attributed to the judge by operation
of a community property law is not extra-judicial compensation to the judge. The judge's report shall
be made at least annually and shall be filed as a public document in the office of the clerk of the
court on which the judge serves or other office designated by law.
(I) Financial Disclosure. Disclosure of a judge's income, debts, investments or other assets is
required only to the extent provided in this section and in section 100.3(F), or as required by Part 40
of the Rules of the Chief Judge (22 NYCRR Part 40), or as otherwise required by law.
Section 100.5 A judge or candidate for elective judicial office shall refrain from inappropriate
political activity.
(A) Incumbent Judges and Others Running for Public Election to Judicial Office.
(1) Neither a sitting judge nor a candidate for public election to judicial office shall directly or
indirectly engage in any political activity except (i) as otherwise authorized by this section or by law,
(ii) to vote and to identify himself or herself as a member of a political party, and (iii) on behalf of
measures to improve the law, the legal system or the administration of justice. Prohibited political
activity shall include:
(a) acting as a leader or holding an office in a political organization;
(b) except as provided in Section 100.5(A)(3), being a member of a political organization other than
enrollment and membership in a political party;
(c) engaging in any partisan political activity, provided that nothing in this section shall prohibit a
judge or candidate from participating in his or her own campaign for elective judicial office or shall
restrict a non-judge holder of public office in the exercise of the functions of that office;
(d) participating in any political campaign for any office or permitting his or her name to be used in
connection with any activity of a political organization;
(e) publicly endorsing or publicly opposing (other than by running agains t) another candidate for
public office;
(f) making speeches on behalf of a political organization or another candidate;
(g) attending political gatherings;
32
(h) soliciting funds for, paying an assessment to, or making a contribution to a political organizat ion
or candidate; or
(i) purchasing tickets for politically sponsored dinners or other functions, including any such function
for a non-political purpose.
(2) A judge or non-judge who is a candidate for public election to judicial office may participate in his
or her own campaign for judicial office as provided in this section and may contribute to his or her
own campaign as permitted under the Election Law. During the Window Period as defined in
subdivision (Q) of section 100.0 of this Part, a judge or non-judge who is a candidate for public
election to judicial office, except as prohibited by law, may:
(i) attend and speak to gatherings on his or her own behalf, provided that the candidate does not
personally solicit contributions;
(ii) appear in newspaper, television and other media advertisements supporting his or her candidacy,
and distribute pamphlets and other promotional campaign literature supporting his or her candidacy;
(iii) appear at gatherings, and in newspaper, television and other media advert isements with the
candidates who make up the slate of which the judge or candidate is a part;
(iv) permit the candidate's name to be listed on election materials along with the names of other
candidates for elective public office;
(v) purchase two tickets to, and attend, politically sponsored dinners and other functions, provided
that the cost of the ticket to such dinner or other function shall not exceed the proportionate cost of
the dinner or function. The cost of the ticket shall be deemed to constitute the proportionate cost of
the dinner or function if the cost of the ticket is $250 or less. A candidate may not pay more than
$250 for a ticket unless he or she obtains a statement from the sponsor of the dinner or function that
the amount paid represents the proportionate cost of the dinner or function.
(3) A non-judge who is a candidate for public election to judicial office may also be a member of a
political organization and continue to pay ordinary assessments and ordinary contributions to such
organization.
(4) A judge or a non-judge who is a candidate for public election to judicial office:
(a) shall maintain the dignity appropriate to judicial office and act in a manner consistent with the
impartiality, integrity and independence of the judiciary, and shall encourage members of the
candidate's family to adhere to the same standards of political conduct in support of the candidate as
apply to the candidate;
(b) shall prohibit employees and officials who serve at the pleasure of the candidate, and shall
discourage other employees and officials subject to the candidate's direction and control, f rom doing
on the candidate's behalf what the candidate is prohibited from doing under this Part;
(c) except to the extent permitted by Section 100.5(A)(5), shall not authorize or knowingly permit any
person to do for the candidate what the candidate is prohibited from doing under this Part;
(d) shall not:
(i) make pledges or promises of conduct in office that are inconsistent with the impartial performance
of the adjudicative duties of the office;
33
(ii) with respect to cases, controversies or issues that are likely to come before the court, make
commitments that are inconsistent with the impartial performance of the adjudicative duties of the
office;
(iii) knowingly make any false statement or misrepresent the identity, qualifications, current position
or other fact concerning the candidate or an opponent; but
(e) may respond to personal attacks or attacks on the candidate's record as long as the response
does not violate subparagraphs 100.5(A)(4)(a) and (d).
(f) shall complete an education program, either in person or by videotape or by internet
correspondence course, developed or approved by the Chief Administrator or his or her designee
any time after the candidate makes a public announcement of candidacy or authorizes solicitation or
acceptance of contributions for a known judicial vacancy, but no later than 30 days after receiving
the nomination for judicial office. The date of nomination for candidates running in a primary election
shall be the date upon which the candidate files a designating petition wit h the Board of Elections.
This provision shall apply to all candidates for elective judicial office in the Unified Court System
except for town and village justices.
(g) shall file with the Ethics Commission for the Unified Court System a financial disclos ure
statement containing the information and in the form set forth in the Annual Statement of Financial
Disclosure adopted by the Chief Judge of the State of New York. Such statement shall be filed within
20 days following the date on which the judge or non-judge becomes such a candidate; provided,
however, that the Ethics Commission for the Unified Court System may grant an additional period of
time within which to file such statement in accordance with rules promulgated pursuant to section
40.1(i)(3) of the Rules of the Chief Judge of the State of New York (22 NYCRR). Notwithstanding the
foregoing, compliance with this subparagraph shall not be necessary where a judge or non -judge
already is or was required to file a financial disclosure statement for the preceding calendar year
pursuant to Part 40 of the Rules of the Chief Judge. This requirement shall not apply to candidates
for election to town and village courts.
(5) A judge or candidate for public election to judicial office shall not personally solici t or accept
campaign contributions, but may establish committees of responsible persons to conduct campaigns
for the candidate through media advertisements, brochures, mailings, candidate forums and other
means not prohibited by law. Such committees may solicit and accept reasonable campaign
contributions and support from the public, including lawyers, manage the expenditure of funds for the
candidate's campaign and obtain public statements of support for his or her candidacy. Such
committees may solicit and accept such contributions and support only during the Window Period. A
candidate shall not use or permit the use of campaign contributions for the private benefit of the
candidate or others.
(6) A judge or a non-judge who is a candidate for public election to judicial office may not permit the
use of campaign contributions or personal funds to pay for campaign -related goods or services for
which fair value was not received.
(7) Independent Judicial Election Qualifications Commissions, created pursuant to Part 150 of the
Rules of the Chief Administrator of the Courts, shall evaluate candidates for elected judicial office,
other than justice of a town or village court.
(B) Judge as Candidate for Nonjudicial Office. A judge shall resign from judicial office upon
becoming a candidate for elective nonjudicial office either in a primary or in a general election,
34
except that the judge may continue to hold judicial office while being a candidate for election to or
serving as a delegate in a state constitutional convention if the judge is otherwise permitted by law to
do so.
(C) Judge's Staff. A judge shall prohibit members of the judge's staff who are the judge's personal
appointees from engaging in the following political activity:
(1) holding an elective office in a political organization, except as a delegate to a judicial nominating
convention or a member of a county committee other than the executive committee of a county
committee;
(2) contributing, directly or indirectly, money or other valuable consideration in amounts exceeding
$500 in the aggregate during any calendar year to all political campaigns for political office, and
other partisan political activity including, but not limited to, the purchasing of tickets to political
functions, except that this $500 limitation shall not apply to an appointee's contributions to his or her
own campaign. Where an appointee is a candidate for judicial office, reference also shall be made to
appropriate sections of the Election Law;
(3) personally soliciting funds in connection with a partisan political purpose, or personally selling
tickets to or promoting a fund-raising activity of a political candidate, political party, or partisan
political club; or
(4) political conduct prohibited by section 50.5 of the Rules of the Chief Judge (22 NYCRR 50.5).
Section 100.6 Application of the rules of judicial conduct.
(A) General Application. All judges in the unified court system and all other persons to whom by
their terms these rules apply, e.g., candidates for elective judicial office, shall comply with these
rules of judicial conduct, except as provided below. All other persons, including judicial hearing
officers, who perform judicial functions within the judicial system shall comply with such rules in the
performance of their judicial functions and otherwise shall so far as practical and appropriate use
such rules as guides to their conduct.
(B) Part-Time Judge. A part-time judge:
(1) is not required to comply with sections 100.4(C)(1), 100.4(C)(2)(a), 100.4(C)(3)(a)(ii), 100.4(E)(1),
100.4(F), 100.4(G), and 100.4(H);
(2) shall not practice law in the court on which the judge serves, or in any other court in the county in
which his or her court is located, before a judge who is permitted to practice law, and shall not act as
a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related
thereto;
(3) shall not permit his or her partners or associates to practice law in the court in which he or she is
a judge, and shall not permit the practice of law in his or her court by the law partners or associates
of another judge of the same court who is permitted to practice law, but may permit the practice of
law in his or her court by the partners or associates of a judge of a court in another town, village or
city who is permitted to practice law;
(4) may accept private employment or public employment in a federa l, state or municipal department
or agency, provided that such employment is not incompatible with judicial office and does not
conflict or interfere with the proper performance of the judge's duties.
35
(5) Nothing in this rule shall further limit the practice of law by the partners or associates of a parttime judge in any court to which such part-time judge is temporarily assigned to serve pursuant to
section 106(2) of the Uniform Justice Court Act or Section 107 of the Uniform City Court Act in front
of another judge serving in that court before whom the partners or associates are permitted to
appear absent such temporary assignment.
(C) Administrative Law Judges. The provisions of this Part are not applicable to administrative law
judges unless adopted by the rules of the employing agency.
(D) Time for Compliance. A person to whom these rules become applicable shall comply
immediately with all provisions of this Part, except that, with respect to sections 100.4(D)(3) and
100.4(E), such person may make application to the Chief Administrator for additional time to comply,
in no event to exceed one year, which the Chief Administrator may grant for good cause shown.
(E) Relationship to Code of Judicial Conduct. To the extent that any provision of the Code of
Judicial Conduct as adopted by the New York State Bar Association is inconsistent with any of these
rules, these rules shall prevail.
36
Insuring Civil Justice for All:
Meeting the Challenges of Poverty
Honorable Fern Fisher1
There are 45.3 million persons living in poverty in the United States.2 Poverty creates numerous
challenges for individuals. Lack of affordable and livable housing, adequate healthcare, and
sufficient food, and the inability to access and complete a quality education are common
difficulties faced by persons living below the poverty line.3 But do persons who live in poverty
fare the same as middle class and wealthy individuals when contact with the civil justice system
becomes necessary? This essay discusses the particular challenges persons who live in poverty face
when they encounter the civil justice system and the need for the justice system to address those
challenges. Finally, some possible solutions are suggested to insure that, regardless of income level,
all individuals have equal access to justice as well as actual justice.
The Scope of the Challenge
The initial problem for the courts in addressing poverty-related challenges is the lack of data
regarding the demographics and backgrounds of litigants in court.4 Courts do not track income,
race, ethnicity, or origin of birth. Most courts only have estimates on the numbers of unrepresented
litigants. However, estimates by state courts of the numbers of litigants who appear without
lawyers are indicative of the numbers of low-income individuals interfacing with the justice
system;5 unrepresented litigants most often appear pro se because they cannot afford attorneys.6
Records on the use of interpreters by some courts indicate that a substantial number of court users
come from many different countries and have limited English proficiency.7 While hard data is not
available, it is widely known that low-income people have unique problems that the justice system
must address. Collecting data in the future is essential to defining the problem fully.
Director, New York State Access to Justice Program and Deputy Chief Administrative Judge, NYC Courts.
1
See Carmen Denavas-Walt & Bernadette D. Proctor, Income And Poverty In The United States: 2013 12 (2014), available
at http://www.census.gov/content/dam/Census/library/publications/2014/demo/p60-249.pdf.
2
Marlene Kim, Problems Facing the Working Poor, U.S. Dep’t of Labor (June 15, 1999), http://www.dol.gov/dol/
aboutdol/history/herman/reports/futurework/conference/workingpoor/workingpoor_toc.htm.
3
“No reliable method exists for tracking the composition of the civil litigant population. Neither the gender nor
the race and ethnicity of parties are recorded. For information on this subject, therefore, the Committees were
required to rely largely on the impressions of the judges, attorneys, and members of the clerks’ offices. Solid
statistical evidence by race and gender of litigants is available only with regard to criminal matters.” Report of the
Second Circuit Task Force on Gender, Racial, and Ethnic Fairness in the Courts, 1997 Ann. Surv. Am. L. 124, 167
(1997).
4
5
The Task Force to Expand Access to Civil Liberties Services in New York, Report to The Chief Judge of The State of New York
1-2 (2010), available at http://www.courts.state.ny.us/ip/access-civil-legal-services/PDF/CLS-TaskForceREPORT.pdf.
6
Id.; See also Jessica K. Steinberg, Demand Side Reform in the Poor People’s Court, 47 Conn. L. Rev. 741, 752 (2015)
(stating that “most studies that have examined the characteristics of unrepresented litigants conclude that poverty
is the primary force driving individuals to represent themselves in court”).
7
National Center for State Courts & State Justice Institute, A National Call to Action: Access to Justice for Limited
English Proficient Litigants 2-3 (2013), available at http://www.ncsc.org/~/media/Files/PDF/Services%20and%20
Experts/Areas%20of%20expertise/Language%20Access/Call-to-Action.ashx.
37
The Challenge of Economic Inequality
9
The Challenges
Poverty prevents individuals from avoiding legal issues that eventually bring them to the justice
system. Individuals often fail to recognize they have legal issues, and those living in poverty are
the least likely to perceive they have legal issues.8 Low-income individuals can ill afford everyday
necessities and have little or no access to preventative measures that can avoid legal problems. For
example, poor people don’t have wills or do estate planning. They often do not get divorced or
legally separated, causing a myriad of legal issues involving adults and children.9
Poor persons are often unable to resolve their legal problems because they rely on external
resources to pay for the necessities of life. They simply don’t have money. They also often have
social services needs due to mental and physical disabilities, addiction, age, and domestic violence
that are not addressed.10 Families get evicted and become homeless because of denials of public
grants, loss of rent subsidies, or child support or maintenance that is not paid.11 Parents fail to
pay child support due to being indigent, creating legal problems for the non-payor and further
impoverishing the payee.12 Individuals lose their governmental benefits such as public assistance,
rent subsidies, or Social Security income and then require administrative hearings.13 Hospital or
medical bills go unpaid due to Medicaid or Medicare problems. Mentally ill individuals and drugaddicted individuals are evicted due to unmanaged behaviors because of inadequate or ineffective
social services.14 The elderly also lose their housing.15 Parents lose custody of their children due
Rebecca L. Sandafur, Civil Needs and Public Legal Understanding, available at http://www.americanbarfoundation.org/
uploads/cms/documents/sandefur_-_civil_legal_needs_and_public_legal_understanding_handout.pdf.
8
Frances Leos Martinez & Lucy Wood, A Home But No Will: Problems Faced by Low-Income Homeowners Lacking Access
to Probate Systems in Texas (2004), available at http://www.utexas.edu/law/centers/publicinterest/docs/no_will_
homeowners.pdf. See generally Ruby K. Payne, Bridges Out of Poverty: Strategies for Professionals and Communities
56 (rev. ed. 2009) (providing that for those living through generational poverty “many marital arrangements are
common-law. Marriage and divorce in a legal court are only important if there is property to distribute or custody of
children”); Catherine New, Divorce Too Expensive for Poorest Americans, New Study Shows, The Huffington Post
(Aug. 20, 2014), http://www.huffingtonpost.com/2012/08/20/divorce-expensive-americans_n_1811821.html.
9
Payne, supra note 9, at 191 (rev. ed. 2009); ACLU Women’s Rights Project, Domestic Violence and Homelessness,
available at https://www.aclu.org/sites/default/files/pdfs/dvhomelessness032106.pdf; Florida Council For
Community Mental Health, Mental Health and Poverty Fact Sheet (2007), available at http://www.fccmh.org/
resources/dos/MentalIllnessandPovery.pdf; Zachery Levinson et al., A State-by-State Snapshot of Poverty Among
Seniors: Findings From Analysis of the Supplemental Poverty Measure, The Henry J. Kaiser Family Foundation, http://
kff.org/medicare/issue-brief/a-state-by-state-snapshot-of-poverty-among-seniors/.
10
11
See generally Jonathan L. Hafetz, Homeless Legal Advocacy: New Challenges and Directions for the Future, 30
Fordham Urb. L. J. 1215 (2002) (identifying some of the causes of homelessness as a decline in affordable housing,
a decrease in federally subsidized housing, and “[r]estrictions on eligibility for public assistance and the relative
decline in grant levels in the past two decades”).
See Ann Cammett, Deadbeat Dads and Welfare Queens: How Metaphor Shapes Poverty Law, 34 B.C.J.L. & Soc.
Just. 233 (2014) (noting that child support enforcement tools include “withholding, suspension, or restriction of
drivers’, professional, and occupational licenses for individuals who owe child support,’ garnishing up to sixty-five
percent of salaries, and requiring that overdue child support be reported to the national credit bureaus” and stating
that these measures actually result in parents being less able to provide and children not receiving the support
sought).
12
See generally Hafetz, supra note 11.
13
Id. at 1230 (stating that mental illness is an important factor in causing homelessness, but that it must be viewed “in
the context of changes in mental health policy. Proportionally no more Americans suffer from mental illness now
than a generation ago; yet mentally ill people make up an increasing proportion of the homeless population. Many
mentally ill people become homeless after their discharge from health care institutions to the street or shelters.
The McKinney-Vento Homeless Assistance Act (“McKinney Act”) places considerable emphasis on mental
illness through funding for supportive housing and homeless outreach programs”).
14
Id. at 1259 (stating that the “increase in homelessness among elderly persons is primarily due to the declining
availability of affordable housing and growing poverty among certain segments of this age group”).
15
10
38
Impact: Collected Essays on the Threat of Economic Inequality
to many factors, including the inability to find a suitable home.16 Poverty creates legal problems
that middle class and wealthy individuals will not have. Failure to take preventative measures
puts poor people, who have no or too little access to assistance or resources, on a collision course
that leads them right to administrative hearings and courts. The justice system traditionally tries
to resolve their legal issues without attention to the underlying social services needs. Some state
court systems have moved toward handling the civil legal issues and the social service needs of
impoverished persons using inter-disciplinary approaches.17 However, these efforts are not
widespread.18
In New York in 2013, there were an estimated 1.8 million litigants without lawyers primarily in
housing, family, divorce, consumer, small estates, and foreclosure cases.19 Legal Services providers
increasingly turn away persons seeking civil legal services.20 It is estimated that, in the United States,
we meet only 20 percent of the need for civil legal services.21 This dismal statistic has earned the
United States a low ranking as compared to other wealthy nations by The World Justice Project
Rule of Law Index, which measures how the rule of law is experienced in everyday life around the
globe.22 The United States ranked lower than other wealthy nations in access to justice in the civil
area based on lack of legal assistance.23 In 2012, the survey found, “Legal assistance is frequently
expensive or unavailable, and the gap between rich and poor individuals in terms of both actual
use of and satisfaction with the civil court system is significant. In addition, there is a perception
that ethnic minorities and foreigners receive unequal treatment.” 24
See, e.g., In the of Matter of Yates, 63 N.Y.2d 388 (1984) (addressing a petition to terminate the parental rights of
parents of “limited resources and abilities,” who experienced “extended periods of unemployment, inability to pay
rent, lack of transportation, telephone, heat and other amenities,” and failed to meet the requirements for return of
their child from foster care, including obtaining a “suitable home”). See also Matter of Shina R., N.Y.L.J., April 27,
2015, p. 17, col. 3 (Fam. Ct., Bronx Co., April 10, 2010).
16
Seedco, Housing Help Program: Homeless Prevention Pilot Final Report (2010), available at http://www.nyc.gov/
html/dhs/downloads/pdf/final_HHP_Seedco_rpt.pdf.; New York State Access to Justice Program, Litigants with
Diverse Needs: The Assigned Counsel Project, NYCOURTS.GOV, http://www.nycourts.gov/ip/nya2j/diverseneeds/
assignedcounsel.shtml.
17
In the criminal area problem-solving courts are more prevalent. See, e.g., Bureau of Justice Assistance, ProblemSolving Justice in the United States: Common Principles, available at http://www.courtinnovation.org/sites/default/
files/Problem_Solving_Justice_in_the_US%5B1%5D.pdf.; Problem-Solving Courts: A Resource Guide, National
Center for State Courts http://www.ncsc.org/Topics/Problem-Solving-Courts/Problem-Solving-Courts/ResourceGuide.aspx.
18
The Task Force to Expand Access to Civil Legal Services in New York, Report to the Chief Judge of the State of New
York 1 (2014), available at http://www.nycourts.gov/ip/access-civil-legal-services/PDF/CLS%20TaskForce%20
Report%202014.pdf.
19
See Legal Services Corporation, Legal Services Corporation Report of the Pro Bono Task Force 1-2 (2012) (providing
that “at least 50% of people seeking help from LSC-funded organizations—and eligible to receive it—are
turned away because of insufficient resources”), available at http://www.lsc.gov/sites/default/files/LSC/lscgov4/
PBTF_%20Report_FINAL.pdf.
20
Id. at 2 (stating that “studies have found that 80% of the civil legal needs of low-income people go unmet”).
21
World Justice Project, World Justice Project Rule of Law Index 2015 30, available at http://worldjusticeproject.
org/sites/default/files/roli_2015_0.pdf; Roderic B. Mathews & Juan Carlos Botero, Access to Justice in the United
States: Findings from the Newly Released Rule of Law Index of the World Justice Project, 59 Va. Law. 24 (2010),
available
at
http://worldjusticeproject.org/sites/default/files/486481access_to_justice_in_the_united_states_
virginia_lawyer_12-10.pdf.
22
Lisa Mahapatra, United States Justice System Falls Behind That of Other High-Income Nations, The International
Business Times (Mar. 7, 2014), http://www.ibtimes.com/united-states-justice-system-falls-behind-other-high-incomenations-charts-1560167.
23
Don Froomkin, Rule of Law Index: U.S. Ranks Low in Access to Justice Compared to Other Wealthy Nations,
The Huffington Post (Nov. 28, 2012, 8:56 AM), http://www.huffingtonpost.com/2012/11/28/rule-of-law-index2012_n_2200765.html.
24
39
The Challenge of Economic Inequality
11
Individuals who represent themselves are at a disadvantage when their adversaries are represented
by counsel.25 The right to counsel in criminal cases is well established.26 However, in civil cases,
we have yet to reckon with moving toward the right to counsel. 27 In fact, instead of progressing
toward more civil legal services nationally, the Legal Services Corporation, the largest funder of
civil legal services providers in the nation, received fewer funds over the last few years from the
United States Congress.28 Low income people fare particularly poorly in a skewed civil justice
system.
The majority of persons living in poverty will have to navigate the Justice system without legal
assistance. The legal system was designed to be navigated by lawyers. Substantive and procedural
rule of law is an unfamiliar and difficult arena for any untrained individual, but particularly
difficult for many persons who are impoverished. Our system is grounded in legal terms and
sophisticated concepts. Written documents memorialize agreements and judicial decisions and
orders. These documents are written at high levels of literacy. While efforts are being made in
many jurisdictions to put court forms in plain language, court systems have a long way to go to
make forms and procedures understandable for a critical mass of unrepresented litigants. Only
13 percent of the adult population in the United States reads at the level of literacy needed to
read and understand complex concepts.29 Some college students would have difficulty with most
legal documents. Fifty percent of adults read at an eighth grade reading level and read so poorly
they cannot perform simple tasks. Forty-five million people in the United States are functionally
illiterate and read below fifth grade levels.30 Of individuals reading at the lowest proficiency level,
43 percent live in poverty.31 Twenty-five million individuals have limited English proficiency,
which would prevent them from using the courts without an interpreter. Many individuals who
have limited English proficiency are compelled to use the courts.32 Courts across the nation are
failing in their legal obligation to provide free interpreter services.33 Many of these individuals had
little exposure to literacy in the countries they come from.34 Impoverished persons are the most
challenged litigants because of their inability to read and comprehend information.
Andrew Scherer, The Importance Of Collaborating To Secure A Civil Right To Counsel (2005), available at https://www.
nycourts.gov/ip/partnersinjustice/Right-to-Counsel-Collaboration.pdf.
25
Gideon v. Wainwright, 372 U.S. 335 (1963).
26
Turner v. Rogers, 131 S. Ct. 2507 (2011).
27
Legal Services Corporation, Annual LSC Appropriations 1976-2013 In Constant 2013 Dollars, http://www.lsc.gov/
congress/funding/funding-history; National Center for State Courts, Legal Services Corporation, http://www.ncsc.
org/Services-and-Experts/Government-Relations/Access-to-Justice/Legal-Services-Corporation.aspx.
28
12
29
See National Center for Educational Statistics, National Assessment of Adult Literacy, https://nces.ed.gov/naal/kf_
demographics.asp#2 (providing that 13 percent of the American adult population “possess the skills necessary to
perform complex and challenging literacy activities”).
30
Staggering Illiteracy Statistics, Literacy Project Foundation, http://literacyprojectfoundation.org/community/
statistics/ (last visited June 9, 2015).
Literacy Statistics, Begin To Read, http://www.begintoread.com/research/literacystatistics.html (last visited June 9,
2015).
31
32
Laura Abel, Brennan Ctr. for Justice, Language Access in State Courts (2009), available at http://www.brennancenter.
org/sites/default/files/legacy/Justice/LanguageAccessinStateCourts.pdf.
33
Of 35 state court systems surveyed, “1. 46% fail[ed] to require that interpreters be provided in all civil cases, 2.
80% fail[ed] to guarantee that the courts will pay for the interpreters they provide, with the result that many
people who need interpreters do not in fact receive them; and 3. 37% fail[ed] to require the use of credentialed
interpreters, even when such interpreters are available.” Id. at 1.
34
Vicky Zygouris-Coe, Literacy For Limited English Proficiency (Lep) Students (2001), available at https://education.ucf.
edu/mirc/Research/Limited%20English%20Proficiency.pdf.
40
Impact: Collected Essays on the Threat of Economic Inequality
Addressing the problems of poverty and justice requires that we not view persons who live in
poverty as all the same. At least one defining important difference between people who live in
poverty is whether a person is impoverished due to a fairly recent event such as divorce, illness
or loss of employment (situational) or a person’s situation is a product of generational poverty.
Generational poverty generally is defined as having lived in at least two generations of poverty.35
Individuals in situational poverty will generally have a better ability to communicate and slightly
better access to resources.36 Persons in generational poverty will have different issues and problems
that the justice system must embrace and address.
Each class has its own non-transparent rules. Generational poverty rules value the present and
are based on feelings or survival; the view of the future is fatalistic, money is meant to be spent,
language is about survival, and communication is based on a casual register.37 A casual register is
“language between friends and is characterized by a 400- to 800-word vocabulary. Word choice
[is] general and not specific. Conversation [is] dependent upon non-verbal assists. Sentence
syntax often [is] incomplete.”38 The discourse pattern in casual register involves the speaker going
around the issue until finally getting to the point.39 The story structure starts with the end or the
most emotional part of the story first.40 Middle class rules value the future and planning for the
future, belief is in the ability to change the future, money is to be managed, language is about
negotiation, and communication is based on a formal register.41 Persons who are experiencing
situational poverty will most often also use the formal register.42 Formal register communication
is “[t]he standard sentence syntax and word choice of work and school[,] [and] [h]as complete
sentences and specific word choice”.43 In formal register the speaker gets straight to the point, and
the story telling starts at the beginning and proceeds chronologically to the end.44
Experts point out other distinctions with communicating or culture with individuals who live
with generational poverty. Generational poverty involves oral culture while other classes rely on
print culture. Oral culture characteristics involve spontaneity, which is exhibited by jumping from
subject to subject, being emotional, needing to repeat things over and over in storytelling and as
a way to maintain knowledge, being attuned to the present and unable to plan for the future, and
being focused on the big picture and unable to focus on a single idea. In oral culture, individuals
are highly connected to their senses, their environment, and the people immediately around
them.45 The majority population relies on print culture. Characteristics of print culture that are
distinct from oral culture are: ability to process and analyze by breaking things down according
to parts; reasoning developed by reading; ability to filter out big picture ideas to focus on a single
idea; and ability to think in a linear, first this, then that fashion. Print culture involves the ability
to delay gratification, prioritize time in daily activities, and plan for the future by setting goals.46
Payne, supra note 9, at 49 (rev. ed. 2009).
35
Id.
36
Id. at 44-45.
37
Id. at 31.
38
Id. at 32.
39
Id.
40
Id.
41
Id.
42
Id. at 31.
43
Id. at 32, 34-35.
44
Communication Across Barriers, Communication Styles (2007), http://www.combarriers.com/CommunicationStyles.
45
Id.
46
41
The Challenge of Economic Inequality
13
Generational poverty behavior often involves the inability to follow directions and extreme
disorganization.47 In addition, arguing loudly and the use of inappropriate language are frequent.
Distrust of authority, feeling that the system is unfair, and reliance on a casual register of
communicating all contribute to behavioral issues.48 The type of voice an authority figure uses
in speaking to an individual may be received as offensive and lead to a shut down.49 One judge,
who handled eviction cases regularly, quizzed poor tenants whether they had cable television in
their households. The quizzing was selective, judgmental, and demanding. Litigants regularly
were offended. Judicial and non-judicial figures should address all litigants in a non-judgmental
and non-negative “adult voice” and not a “parental voice,” which is authoritative, directive,
judgmental, evaluative, demanding, and sometimes punitive and threatening. Communication
style is particularly significant when dealing with a poor person.
The challenge to the justice system in dealing with the implications of generational poverty is
how to make a system that is based on print culture and formal register language responsive to
individuals who are faced with dealing with life-altering legal issues in an environment that is
confusing. These litigants will have trouble preparing for their cases due to disorganization and
may have trouble producing paperwork necessary to prove their cases. Litigants whose poverty
is generational will have difficulty conveying their stories in the linear fashion that judges and
lawyers are accustomed to hearing. They more than likely will be repetitive in making their points,
without a final point, exhausting judges and the time available to resolve busy calendars. Just as
important, they may not comprehend or be able to read written orders, decisions or agreements.
Oral orders, decisions, and agreements, unless plainly stated and repeated, may also not be
comprehended. Directions or follow-up steps may not be followed. Judges in particular and nonjudicial personnel speak often in a “parent voice,” leading litigants to shut down or becoming
resistant to authority.
Other practical life barriers can prevent impoverished persons from obtaining justice. Some
individuals will not be able to get to the courthouse due to lack of transportation. Either money
for public transportation or long distances inaccessible by public transportation can be a barrier,
particularly for the rural poor. Lack of daycare or inability to take off from work can result in
missed court dates. Poor litigants may not have appropriate clothing for court. Some individuals
may not have the money to buy appropriate clothes. Other individuals who live in poverty simply
may not know what is appropriate. Middle class individuals dress to be accepted into the norm
of middle class society. In poverty, individuals see clothing as an expression of personality and
individual style, not as a way to comply with the norm.50 Sexually explicit clothing is often
observed in courtrooms where low-income individuals have cases. T-shirts with inappropriate
language and hats may also be seen. Intolerant judges have been known to post rules based
on middle class norms prohibiting entry into courtrooms of individuals deemed to be dressed
inappropriately. Individuals who are sent home can be defaulted or can fail to return for their
next court dates.
The challenges to ensuring that individuals who live in poverty receive equal justice are numerous
and complex. Solutions depend on adequate financial resources and require working with non-
14
47
Payne, supra note 9, at 110 (rev. ed. 2009).
48
Id.
49
Id.
50
Id. at 44-45.
42
Impact: Collected Essays on the Threat of Economic Inequality
legal professionals to treat the legal and social services issues of impoverished communities
holistically. The most significant challenge is to change a justice system that is rooted in tradition,
but requires change to meet the needs of the public. The final section of this essay makes
suggestions on how to meet some of the challenges.
Meeting the Challenges
As long as millions of individuals appear in court with low literacy skills and limited English
proficiency, and without attorneys, an adversarial system is unjust. An adversarial system by
definition presupposes that both parties have advocates who are able to present their cases to
a person who will primarily remain neutral and passive.51 The system is built more on winning
than the search for the truth.52 An unrepresented individual who doesn’t understand procedure or
substantive law has little chance of winning or airing the truth, particularly if the judge is passive.
There is little chance that our system will evolve completely to another type of justice system, but
some changes can assure more justice in the present system. Liberal interpretation of pleadings
would allow individuals to have their issues heard. Open and mandatory discovery would provide
more information for fact finders to discern the truth. Relaxed procedures and rules of evidence
would ease the process for unrepresented litigants.53 A neutral but engaged judge in place of a passive
one could insure more justice.54 The judge should explain how the settlement conference, hearing
or trial would proceed, tell both sides what is needed to establish their claims, and ask questions.55
Simplification of the system will benefit low-income individuals by making the system more
understandable. It would also make litigation less expensive.56 Procedures must be simplified and
streamlined. Forms must be offered for use by the public both in print and online. These forms
and applications must be written in plain language and on a fifth grade reading level to reach
most litigants. Forms should be translated into languages prevalent in the community. Online
interactive programs can provide guidance in filling out forms and can have an oral component
which can be translated into different languages.57 Courts should offer more audio opportunities
for low literacy litigants to hear information and receive directions. Court decisions and orders
should be written in plain language and, if feasible, be delivered orally as well. Lawyers must be
trained in law school to write in plain language and be prepared to deal ethically and effectively
with culturally diverse, low literate, unrepresented adversaries. Legislatures should strive to pass
plain language laws.58
51
Stephan Landsman, A Brief Survey of the Development of the Adversary System, 44 Ohio St. L.J. 713, 714-740
(1983).
52
Id.
53
Cynthia Gray, Reaching Out Or Overreaching: Judicial Ethics And Self-Represented Litigants (2005), available at http://
www.courts.ca.gov/partners/documents/ReachingOutOverreaching.pdf.
National Center For State Courts, Module A: Judges, Ethics, And The Self-Represented Litigants-The Law Today (2013),
available at http://www.ncsc.org/~/media/Microsites/Files/access/Module%20A%20Guide%20Draft%208-8-13.ashx.
54
55
Id.
56
Richard Zorsa, Some Thoughts on Court Simplification: The Key to Civil Access and Justice Transformation, 61
Drake L. Rev. 845 (2013); National Center for State Courts, Rules and Process Simplification, http://www.ncsc.org/
microsites/access-to-justice/home/Topics/Rule-and-Process-Simplification.aspx.
57
See New York State Courts, DIY forms, https://www.nycourts.gov/courthelp//diy/index.shtml.
58
Plain Writing Act of 2010, 5 U.S.C. § 8301 (2010).
43
The Challenge of Economic Inequality
15
Community courts in locations where residents of poor communities have difficulties traveling
to traditional courts would provide better access to justice. Mobile courts,59 video appearances,
60
more online interactive programs,61 and electronic filing would also make it easier for poor
people to commence their cases, file answers, and make their court dates. While impoverished
individuals may not have Internet or home computers, 43 percent had smartphones in 2013.62
Access to computers could be obtained in public libraries, places of worship, and other accessible
facilities. The use of technology, particularly with smartphones, can bring more justice to the
poor.
Integrating social service professional services into systems for resolving legal problems is essential
for impoverished communities. Preventative measures would help to keep legal issues from
ripening. Social service professionals could be armed with diagnostic tools and legal information
to assist in issue spotting and obtaining resources to head off encounters with the legal system.
Courthouses should open their doors and house relevant social service agencies. In New York
City, courts host social workers and other workers who provide services in the courthouses to
those receiving or needing public assistance, the mentally ill, domestic violence victims, and the
elderly. The problem-solving court concept must be expanded from the criminal side to the civil
side.
Community outreach and engagement is required to address the distrust that impoverished
individuals have for the legal system. Speaker bureaus, community law days, tours of courts by
schools, and library programs could go a long way to building trust.63
None of the solutions to the challenges faced by impoverished individuals in the justice system can
succeed, however, without the opening of minds and hearts of the prime movers of the system:
judges, lawyers, non-judicial employees, and the bodies that fund civil legal services and courts.
Unless we destroy our current adversarial system completely, we must have funding for civil legal
services for every poor person who needs full representation. Other forms of legal assistance
must be provided when full representation is not required. Anything less will doom the United
States to continued low rankings on access-to-justice surveys and continue to grow distrust of
the legal system in poor communities. Courts require adequate funding to meet the needs of
the public, especially impoverished communities. Most importantly, there must be an awakening
by judges and non-judicial personnel to the new reality of the legal system. The new reality is
that millions of unrepresented, culturally diverse, and low-literacy individuals will continue to
flood the courts. A great many of these litigants will be poor. They often do not receive justice.
Funding is not required to start the change. Leadership is, however, necessary to insure that courts
understand that the needs of poor people they serve are vast and different. To accomplish this
16
59
Nicholas Spangler, Courthouse on Wheels Makes Rounds in Miami-Dade County, The Ledger (April 21, 2003, 7:21
AM), http://www.theledger.com/article/20030421/NEWS/304210365.
60
Video Technologies Resource Guide, National Center
Video-Technologies/Resource-Guide.aspx.
61
A2J Author® is an example of an online software program geared toward improving access to justice for selfrepresented litigants. See A2J Author®, IIT Chicago-Kent College of Law, IL Inst. of Tech., https://www.kentlaw.
iit.edu/institutes-centers/center-for-access-to-justice-and-technology/a2j-author. The New York State Unified Court
System uses A2J Author® to produce DIY forms.
62
Aaron Smith, Smartphone Ownership 2013, Pew Research Center (2003), http://www.pewinternet.org/2013/06/05/
smartphone-ownership-2013/.
63
Courts and Community Center, NEWYORKCOURTS.GOV, http://www.nycourts.gov/ip/nya2j/Courts_Community_
Center/index.shtml.
for
State Courts, http://www.ncsc.org/Topics/Technology/
44
Impact: Collected Essays on the Threat of Economic Inequality
goal, communication experts, poverty experts, and poverty simulations should be used to educate
those who manage the legal system and start the awakening.64
Mahatma Gandhi reportedly said, “Be the change that you wish to see in the world.” Change is
needed now for impoverished people. We must each search our hearts and minds to determine
what we have within our power to do. •
64
New York State has made all three efforts. See also Community Action Poverty Simulation, Missouri Ass’n For
Community Action, http://www.communityaction.org/poverty%20simulation.aspx (the poverty simulation program
New York used to educate judges and non-judicial personnel).
45
The Challenge of Economic Inequality
17
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JǺİĿȘ ǺŇĐ PŘİȘǾŇȘ
Ŀǿģ İ
FĚǺŤŲŘĚ
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46
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ťħǻť jųșťįčě řěqųįřěș ǻ đįffěřěňť řěșųŀť."
"İť įș fįșčǻŀ ģįmmįčķřỳ ųșěđ ťǿ čŀǿșě bųđģěť ģǻpș," șǻỳș Břǿǿķŀỳň
Ǻșșěmbŀỳ měmběř Ħǻķěěm Jěffřįěș. "Ňǿ ǿňě ťħįňķș įť'ș ǻňỳťħįňģ
bųť ǻ bǻřřįěř ťǿ șųččěșșfųŀ řě-ěňťřỳ įňťǿ șǿčįěťỳ, běčǻųșě pěǿpŀě
ẅįťħ ŀǿẅ ǿř ňǿ įňčǿmě ẅįŀŀ ǿẅě șįģňįfįčǻňť ǻmǿųňťș ǿf mǿňěỳ."
Ǻŀǻň Řǿșěňťħǻŀ, đįřěčťǿř ǿf jųșťįčě șťřǻťěģįěș fǿř ťħě Čěňťěř fǿř
Čǿmmųňįťỳ Ǻŀťěřňǻťįvěș, ǻđđș, "İť įș ňǿť ǻ pųbŀįč șǻfěťỳ įșșųě, ǻňđ
ťħěřě ǻřě ǻŀmǿșť ňǿ přǿpǿňěňťș ǿf ťħěșě fįňǻňčįǻŀ čǿňșěqųěňčěș
fǿř ǻňỳ řěǻșǿň ǿťħěř ťħǻň ťħě řěvěňųě șťřěǻmș."
Bǿbbỳ, 26, ẅħǿ ǻđmįťș ťǿ ħǻvįňģ "ǻ bǻđ řěčǿřđ," řěčěňťŀỳ șěřvěđ
ěįģħťěěň ǻňđ ǻ ħǻŀf mǿňťħș įň Vįřģįňįǻ. Ħě'ș ǿųť ňǿẅ ǻňđ ẅǿřķįňģ
pǻřť ťįmě bųť șǻỳș ħě ǿẅěș mǿřě ťħǻň $9,000 įň čǿųřť fěěș ǻňđ
47
ǻňǿťħěř $10,000 įň ǻččřųěđ įňťěřěșť ǻňđ pěňǻŀťįěș. Ħįș přįșǿň
bǻŀǻňčě șħěěť ħǻđ ħǿųřŀỳ ẅǻģěș ǿf 42 čěňťș, fřǿm ẅħįčħ ħě pǻįđ ǻ
đǿŀŀǻř ǻ đǻỳ fǿř ħįș ŀǿđģįňģ ǻňđ měđįčǻŀ ǻťťěňťįǿň. Bǿbbỳ, ẅħǿ įș
ǿň "įňťěňșįfįěđ pǻřǿŀě," șǻỳș, "İ čǻň ňěvěř ģěť ǿųť ǿf įť, ǻňđ ǿňčě
ỳǿų ģěť įňťǿ ťħǻť Čǻťčħ-22, ỳǿų mįģħť ǻș ẅěŀŀ ŀįvě įť ųp ųňťįŀ ỳǿų
ģěť ŀǿčķěđ ųp ǻģǻįň."
Bųť "řěčįđįvįșm įș ẅħǻť ňǿbǿđỳ ťǻŀķș ǻbǿųť," ǻččǿřđįňģ ťǿ Đǻvįđ
Ųđěŀŀ, đįřěčťǿř ǿf ťħě Jųșťįčě Přǿģřǻm ǻť ťħě Břěňňǻň Čěňťěř fǿř
Jųșťįčě ǻť Ňěẅ Ỳǿřķ Ųňįvěřșįťỳ Șčħǿǿŀ ǿf Ŀǻẅ. Ťħě bįģģěșť
přǿbŀěm, ħě ěxpŀǻįňș, įș ťħǻť ťħěřě įș ňǿ měǻňįňģfųŀ ťħǿųģħť ǿř
đįǻŀǿģųě ǿň ťħě įmpŀįčǻťįǿňș ǿf ťħě ěňťįřě șųřčħǻřģě/fěě
pħěňǿměňǿň. "Ỳǿų ǻřě ŀǿǻđįňģ đěbť ǿňťǿ pěǿpŀě ẅħǿ ǻřě įň ťħě
șỳșťěm įň ťħě fįřșť pŀǻčě đųě ťǿ ŀǻčķ ǿf fįňǻňčįǻŀ řěșǿųřčěș," Ųđěŀŀ
șǻỳș. İň fǻčť, 80 pěřčěňť ǿf pěǿpŀě fǻčįňģ fěŀǿňỳ přǿșěčųťįǿňș ǻřě
įňđįģěňť, ǻňđ 60 pěřčěňť ǿf měň ǻňđ ẅǿměň řěŀěǻșěđ fřǿm přįșǿň
ǻřě șťįŀŀ ųňěmpŀǿỳěđ ǻ ỳěǻř ŀǻťěř.
Ẅħěťħěř ťħěřě'ș ǻň ǻřřěșť ǿň ňěẅ čħǻřģěș, ǻňđ ǻ ẅħǿŀě ňěẅ čǻșě
ẅįťħ ňěẅ șųřčħǻřģěș ǻňđ fěěș, ǿř vįǿŀǻťįǿňș ǿf pǻřǿŀě ǻňđ
přǿbǻťįǿň fǿř ňǿňpǻỳměňť, "ťħě ǻbįŀįťỳ ťǿ șťǻỳ ǿųť ǿf přįșǿň
đěpěňđș ǿň mǻķįňģ pǻỳměňťș," Ųđěŀŀ ěxpŀǻįňș. Ǻť ťħě șǻmě ťįmě,
čįvįŀ jųđģměňťș ǻřě řǿųťįňěŀỳ ěňťěřěđ ǻģǻįňșť ťħě đěbťǿřș. Ǿň ťǿp
ǿf ǻ čřįmįňǻŀ řěčǿřđ, ťħįș řěșųŀťș įň bǻđ čřěđįť, ģǻřňįșħměňť ǿf
șǻŀǻřįěș ǻňđ įňǻbįŀįťỳ ťǿ ģǻįň ěmpŀǿỳměňť, ħǿųșįňģ ǿř ěđųčǻťįǿň.
İň Ẅǻșħįňģťǿň, ǻș ẅěŀŀ ǻș ǿťħěř șťǻťěș, ųňpǻįđ čǿųřť đěbť čǻň ěňđ
vǿťįňģ řįģħťș. Přįvǻťě čǿŀŀěčťįǿň ǻģěňčįěș ǻřě ẅįđěŀỳ ųșěđ, bųť ťħě
șųřěșť čǿŀŀěčťįǿňș ǻřě fřǿm įňmǻťěș běčǻųșě ťħěįř přįșǿň ěǻřňįňģș
ǻș ẅěŀŀ ǻș čǿmmįșșǻřỳ mǿňěỳ șěňť bỳ fǻmįŀįěș, ẅħįŀě ųșųǻŀŀỳ
įňșųffįčįěňť ťǿ čǿvěř ťħě đěbť, ǻřě șěįżěđ bỳ ťħě șťǻťě.
48
İň ťħě měǻňťįmě, ťħěřě ǻřě ǻřřěșť fěěș (Ťěxǻș), bǿǿķįňģ fěěș
(Čǿŀǿřǻđǿ) ǻňđ ĐŇǺ bǻňķ fěěș (Ňěẅ Ỳǿřķ). Mįčħįģǻň bįŀŀș fǿř ťħě
șěřvįčěș ǿf čǿųřť-ǻppǿįňťěđ ŀǻẅỳěřș, čřěǻťįňģ ǻň įňčěňťįvě ťǿ
ẅǻįvě čǿųňșěŀ ǿř ťǿ pŀěǻđ ģųįŀťỳ ǻť ǻň ěǻřŀỳ șťǻģě běfǿřě ŀěģǻŀ čǿșťș
ěșčǻŀǻťě. Ěįģħťěěň pěřčěňť ǿf Řħǿđě İșŀǻňđ įňmǻťěș ǻřě įň čųșťǿđỳ
įň čǿňňěčťįǿň ẅįťħ čǿųřť-įmpǿșěđ fįňǻňčįǻŀ ǿbŀįģǻťįǿňș. Ǻň ǿpěň
čǿųřť đěbť įň Fŀǿřįđǻ ŀěǻđș ťǿ ǻ șųșpěňđěđ đřįvěř'ș ŀįčěňșě, ẅħįčħ
įň ťųřň čǻň ŀěǻđ ťǿ ŀǿșș ǿf jǿb ǿř řě-ǻřřěșť fǿř đřįvįňģ ẅįťħ ǻ
șųșpěňđěđ ŀįčěňșě. Ǻŀǻbǻmǻ jųđģěș čǻň įňčřěǻșě fěěș fřǿm $600 ťǿ
$10,000. Ťħěřě ǻřě șpěčįǻŀ fěěș fǿř pǻřťįčųŀǻř ǿffěňșěș șųčħ ǻș șěx
čřįměș, ǻbųșě ǿf čħįŀđřěň ǿř ťħě ěŀđěřŀỳ ǻňđ, ěșpěčįǻŀŀỳ, đřįvįňģ
ẅħįŀě įňťǿxįčǻťěđ.
Șťǻťěň İșŀǻňđ Đįșťřįčť Ǻťťǿřňěỳ Đǻň Đǿňǿvǻň, ẅħǿ đǿěș ňǿť
běŀįěvě ťħǻť șųřčħǻřģěș ǻňđ fěěș đěťěř čřįmě, șǻỳș, "Ťħě ťřųě
běňěfįť ǿf čǿųřť-mǻňđǻťěđ fěěș įș ťħǻť ťħěỳ řěqųįřě čřįmįňǻŀș ťǿ
fįňǻňčįǻŀŀỳ șųppǿřť ťħě ǿpěřǻťįǿň ǿf ťħě čřįmįňǻŀ jųșťįčě șỳșťěm
ťħěỳ ħǻvě vįǿŀǻťěđ ǻș ẅěŀŀ ǻș ťǿ běňěfįť přǿģřǻmș ťǻřģěťįňģ
vįǿŀěňčě ǻňđ șųbșťǻňčě ǻbųșě." Ỳěť ťħě șųřčħǻřģěș ǻňđ fěěș ǻřě ňǿť
ěǻřmǻřķěđ fǿř čřįmįňǻŀ jųșťįčě, ťħě čǿųřťș ǿř vįčťįmș bųť ģǿ
įňșťěǻđ ťǿ ťħě șťǻťě ťřěǻșųřỳ. Đǻvįđ Bǿǿķșťǻvěř, čǿmmųňįčǻťįǿňș
đįřěčťǿř fǿř ťħě Ňěẅ Ỳǿřķ Șťǻťě Ųňįfįěđ Čǿųřť Șỳșťěm, șǻỳș ħě
đǿěș ňǿť ķňǿẅ ħǿẅ mųčħ řěvěňųě ťħě čǿųřťș ģěňěřǻťě ǿř ẅħěřě
ťħě mǿňěỳ ģǿěș. Ħǿẅěvěř, ħě đǿěș ķňǿẅ, "Ẅě đǿ ňǿť ķěěp ťħě
mǿňěỳ ħěřě."
Ťħě șpǿķěșpěřșǿň fǿř ǻňǿťħěř přǿșěčųťǿř șųmș įť ųp: "İ ǻŀẅǻỳș
fǿųňđ įť ķįňđ ǿf șťřǻňģě ťǿ șěňťěňčě ǻ ģųỳ ťǿ ťěň ỳěǻřș, ǻňđ ťħěň
șǻỳ, Ǿħ, bỳ ťħě ẅǻỳ, ỳǿų ǻŀșǿ ǿẅě $1,000."
49
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New York State Supreme Court Justice
Judge Seeks Work
Posted: 11/04/2010 10:03 am EDT Updated: 05/25/2011 6:10 pm EDT
A moonlighting Superior Court Judge in New Jersey has just been told to clean up his act; that is, he can't be both a stand­up comic and a
sitting judge. One old­time judge protested stagnant judicial compensation by selling hot dogs at Yankee Stadium. He too was given a
choice: quit the stadium or quit the Court. And even Judge Judy had to leave the bench to become "Judge Judy."
There has long been zero tolerance for members of the judiciary earning money in the private sector. But now, we New York judges who,
despite lawsuits, letters, lobbying, emails, phone calls, and begging the much­criticized legislature and various governors, haven't had a pay
raise or cost­of­living increase for a dozen years, have been granted some relief. The Chief Judge has lifted the ban on moonlighting.
True, we've had some limited rights ­­ an honorarium for a lecture at a public institution, let's say, or performing a wedding ceremony for a
maximum of $100. But with this announcement there is a sea change. Of course, we still cannot practice law ­­ which is pretty much all we
know how to do; we can't speak out or comment on cases or issues that might come before the court ­­ any court ­­ and we must not do
anything that would denigrate the judiciary or interfere with our judicial duties. At $136,700 a New York State Supreme Court judge, like
myself, is paid more than most Americans, but far less than scores of first year lawyers who appear before us. And, it smarts to be ranked
50th in the nation for judicial compensation, especially if you're in New York City.
With the Chief's announcement of the rule change, I am remembering opportunities lost. There was the time a friend was interested in
buying another friend's apartment. They didn't know each other, so I would have been the logical broker. But, alas, judicial ethics forced me
to stay far away from the transaction, and a pretty good fee. Another time, a well­known entertainment­world couple, asked me to mediate
their out­of­court child custody battle. "Sorry. No can do."
Now I'm all fired up and ready to go. But how can I explain to interviewers or on computer forms what I've been doing since law school? I
can't say I've been home raising children for 20 plus years. Or that I've been in jail. Or even rehab. Potential employers glancing at my
résumé might notice the J.D., and a Master's from Columbia Graduate School or Journalism. They might say I'm over qualified. Or lack
relevant experience. Or am too old.
Since I haven't looked for a job outside the judiciary recently, I've hardly noticed that jobs are no longer advertised in newspapers, but on­
line. Of course, the job I do have wasn't exactly advertised in the papers either. Still, I'm barely computer literate, and am already befuddled
by the sites I've sound such as Chronicle of Philanthropy, JobFox, Imaginista, Media Bistro. And there's another problem. Job applicants
must be fluent, not in French or Latin, but in HTML, Unicode, Photoshop.
So how about bartending? While, admittedly, I have no experience, if I could memorize the Uniform Commercial Code, I'm pretty sure I
could conquer the recipe for a dirty martini. I did inquire at one East Village spot, but was told I'm too short. Too short? I wondered if that
violates the Americans with Disabilities Act. Probably not, because it seems that "top shelf" liquor, really means top shelf ­­ which I couldn't
reach.
Anyway, the place was filled with gorgeous twenty­somethings who might be reminded of their mothers, thereby reducing their consumption
of alcohol ­­ a definite disincentive to hiring me. Of the few remaining small stores in my neighborhood, two have signs in English and
Spanish seeking help. But they also say, "retail experience required." Well, I do have a great deal of retail experience ­­ shoes, bags,
cosmetics, you name it, but it's all been on the purchasing end. Further down Broadway, the marquee at the multiplex theater announces in
digital letters, "we are always looking . . . dedicated . . . career track . . . ."
50
That, too, requires an on­line application. But when I had to check the little boxes asking date of birth, I didn't see any years earlier than
1985. That meant if I was actually hired to sell or collect tickets or dish out tubs of popcorn, I'd likely be taking a job from an unemployed
teenager or a young student. So I did not press "send." Next, I thought of Filene's Basement, since I could walk to work on Saturdays and
Sundays, saving my minimum hourly wage for, well, shopping. But one of my colleagues who both married and inherited money chastised
me, saying that would be very demeaning to the judiciary; to her.
Well, then, how about the perfume counter at Bergdorf's? More upscale, to be sure, but they're not hiring until the holiday season. Then,
too, I realized that their schedules and mine wouldn't be a match, since, luckily, I still do have a full­time day job and it can extend into
evenings and weekends. Looking for other alternatives, I called one of my best friends who, has kept active his taxi driver's license, the one
he used to support himself while in law school 40 years ago. Last year he requested administrative approval to use it, but was informed that
driving a cab is not allowed. All that's changed now, but still, unfortunately for me, that license is one piece of paper I never got.
A job at Barnes & Nobles would satisfy my craving for books, but it might have put me into the middle of a proxy fight. Teaching would
seem to be a natural option and I did apply to teach a college course. Yet, I was turned down since the other piece of paper I do not have, in
addition to a hack license, is a Ph.D.
Well, I won't be selling hot dogs. But I can now sell my fascinating life story to a television or cable network; I can safely deposit any advance
for my book on marriage and divorce, maybe even appear in commercials as a judge of whatever product is being advertised. Or if JLo backs
out, maybe I can be a judge on American Idol. After all, it's only one night a week and it pays well. The rest of the time I'll be working for the
public, dispensing justice at the County Courthouse.
MORE: Judges East Village
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New York State Supreme Court Justice
Rockefeller Drug Laws and Judicial/Prosecutorial Power
Struggle
Posted: 04/26/2009 5:12 am EDT Updated: 05/25/2011 1:10 pm EDT
I was a young, mini­skirted lawyer back in 1973 when the Rockefeller
drug laws took over New York's criminal justice system. Now I've spent
25 years as a judge of this state and it is still haunted by draconian
mandatory sentences and over­incarcerating non­violent drug users
arrested for possession, instead of utilizing treatment alternatives.
The Rockefeller laws are still running the courts, ruining lives that
could be saved, handing out life sentences at $45,000 a year. And while
the political tough guy posturing for power has not even come close to
winning the "war on drugs," it has destroyed judicial independence by
taking away judges' sentencing discretion and handing it over to
prosecutors. While our democracy stands on the separation of powers,
and the scales of justice are meant to balance adversaries ­­ prosecutor
on one side, defense on the other, with a neutral judge in the middle ­­
that is not the reality and has not been for the last 35 years.
Under existing law, despite the public perception of powerful judges, it
is the state, through its prosecutors, and not its judges, that calls
the shots on judgment day. Without permission of district attorneys,
judges are denied the discretion to impose the sentence they determine
is the most appropriate and just. In those counties which now have Drug
Treatment Courts, the local prosecutor determines which category of
crime can be considered for alternatives and the judge never gets to see
the defendants who might have been great candidates for treatment and
re­entry into the community.
I have seen judges cry because they have been forced to impose mandatory
sentences, no matter how excessive and inappropriate they may be under
the harshest sentencing scheme in the western world ­­ three years to
life, let's say, for a mother with no prior criminal record. Or an AIDS
patient too weak for a life of crime, and too sick for a life in prison.
A battered woman may be trapped in a drug house, but the D.A. can
insist that prison is the only option for her, no matter what a judge
might think. Appellate courts have regularly sent cases back to trial
judges for going below mandatory minimums. But legislators have been
afraid to appear weak by taking control away from prosecutors and giving
it back to judges where it belongs. And, of course, district attorneys
lobby heavily to keep their awesome power over the courts and judiciary.
52
Meantime, if crime is big business, so is criminal justice in terms of
prison construction and prison jobs, particularly upstate, reducing
incentives for alternatives to prison.
New York's prisons now hold about 12,000 non­violent drug offenders who
might have had a better chance to become contributing members of society
if they had been sentenced to alternatives to incarceration or treatment
programs which are closely monitored, which are cost effect, and which
may break the pattern of drugs and crime, which prisons have never
accomplished and which cost about ten times more than treatment
programs. And it is well established that recidivism is greatly
decreased by treatment rather than prison. But reform has been elusive.
Until, perhaps, now.
Right now there is a chance for real reform, through a bill passed by
the Assembly and awaiting Senate adoption. The stakes are very high for
another generation, for judicial independence and for the adversary
system itself. The Assembly bill (which also increases penalties for
certain drug­related crimes) restores discretion to judges in most drug
cases, allows low­level, non­violent offenders access to a fairer
sentencing structure and to drug treatment programs in prison and out.
It also gives judges the power to seal prior records after an individual
is "redeemed" by leading a law abiding life, thereby increasing
employment possibilities. And it gives the judges a chance to do what they're supposed to do:
Justice.
Reform has been elusive, but Albany must do the right thing now, so
that judges of New York can do just that.
MORE: Poverty District Attorneys Drugs D.A. Drug Prosecutions Drug Laws New York Drug Laws Albany Ny Rockefeller Laws Drug Offenders New York Prison System
Prisons Appellate Court Rockefeller Laws Drug Offender Prisoners Ny Drug Laws Prosecutors
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53
gothamgazette.com
http://www.gothamgazette.com/index.php/public-safety/1918-the-courts-of-new-york-explained
The Courts of New York Explained
It's been called a mosaic, a jigsaw puzzle,
a bureaucracy and a mess. There are
many plans afoot to reorganize the courts
of New York, all facing political battles that
may be all but insurmountable. Meantime,
exactly what the court structure is eludes
most New Yorkers and even many
reporters who cover the courts.
All New York courts are part of the New
York State Unified Court System, but
because of its large population and
volume of cases, New York City also has
local courts. Each of the five boroughs, in
other words, has both city and state
courts. The city courts are Civil Court and
Criminal Court. The state courts are
Supreme Court, Family Court and
Surrogate's Court. All five boroughs (which
are also counties) have all of these courts.
But this is too simple, because there is also something called the New York State Court of Claims, and of course the
entire Federal judiciary, which is separate.
CIVIL COURT
The Civil Court hears private, non-criminal lawsuits which have a monetary value of no more than $25,000. Under
the Civil Court umbrella are also Housing Court and Small Claims Court. Housing Court was created three decades
ago to hear nothing but landlord-tenant proceedings involving non-payment of rent, breach of tenancy, housing
conditions. Small Claims court hears monetary disputes involving up to $3,000.
CRIMINAL COURT
The Criminal Court is the first judicial stop for all arrested persons. This is where the charges are read to the accused
(though this is theoretical, because they are almost never actually read), and bail is set or the defendant is Released
on (his or her) Own Recognizance, or, in court parlance, ROR'd. What happens then depends on whether the charge
is a violation, a misdemeanor or a felony.
A violation, the least severe charge, can be something like disorderly conduct. A misdemeanor might be shoplifting,
possession of stolen property (nothing too valuable), very small amounts of drugs, or simple assault. If the charge is a
violation or a misdemeanor, a plea is entered: Guilty or not Guilty. If the defendant pleads guilty, the judge can impose
the sentence right then and there. If the defendant pleads not guilty, Criminal Court hearings and a trial will be
scheduled.
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If, however, the charge is a felony, such as murder, arson, robbery, burglary, most weapons possession charges, and
most drug charges, no plea is entered. If it's a narcotics case it might be steered to a hybrid narcotics "part" (jargon
for courtroom) for disposition without presentation to a grand jury. Almost all other felonies, however, will be
presented to a grand jury, a jury empanelled specifically to hear a brief presentation of evidence and vote on whether
or not to indict. (A grand jury differs from a regular jury, because a grand jury must weigh whether there is sufficient
evidence to determine that a crime has been committed at all, and sufficient evidence to charge this particular
person, while a trial jury must determine whether evidence has been established beyond a reasonable doubt to
convict this person of this crime.) In most cases there is an indictment, and People versus John Doe becomes a
Supreme Court case.
SUPREME COURT
In Supreme Court the accused will be re-arraigned, new bail will be set and a plea entered. There are then further
proceedings, including hearings, "plea bargaining" (a reduced charge in exchange for a guilty plea) or a trial. If there's
a conviction or guilty plea, the judge will impose a sentence.
All of this is done in the Criminal Division of Supreme Court. Supreme Court also has a Civil Division. The civil
actions and proceedings cover any monetary dispute over $25,000, be it commercial, personal injury, libel,
employment, civil rights, or a real estate matter, and often involves a great deal of money. It's also the place to go if
you're looking for an injunction, restraining order, documents under the Freedom of Information Law. Supreme Court
is the only court that can grant divorces.
The Supreme Court of New York is not what it is in most other states or in the federal judiciary, i.e., the highest court.
It's simply the statewide trial court of general jurisdiction.
FAMILY COURT
Though Family Court cannot hear divorce cases, its jurisdiction sometimes overlaps with other courts, both criminal
and civil. Family Court judges can hear matters involving child support, foster care, delinquency, family violence,
adoption.
SURROGATE'S COURT
Surrogate's Court has exclusive jurisdiction over wills and estates. Like Family Court, it also considers adoptions.
COURT OF CLAIMS
The Court of Claims has traditionally heard monetary claims against the State of New York. In recent years, however,
a large number of additional Court of Claims judgeships have been created to handle the huge increase in drugrelated felonies. Appointed by the governor for a term of nine years, these judges are assigned to Supreme Court,
usually designated Acting Supreme Court justices, and then have nothing to do with the Court of Claims itself.
APPELLATE COURTS
Verdicts, decisions, judgments and orders of all of these trial courts can be appealed to higher courts. Appellate Term
judges hear appeals from the lower, city courts -- Civil (including Housing and Small Claims) and Criminal Court.
Appellate Division judges hear appeals from Supreme Court (Civil or Criminal), Surrogate's Court, and Family Court.
There are two Appellate Divisions of the Supreme Court in New York City. One is on Madison Avenue in Manhattan
and covers New York County and the Bronx. The other is in Brooklyn Heights and covers the three other boroughs
(and Westchester and Rockland counties) Both are architectural gems.
Beyond that there's the New York Court of Appeals in Albany, which is the real supreme court of New York, hearing
appeals from decisions of the Appellate Division.
55
THE JUDGES
New York City judges can be elected or appointed, depending on the court. Civil Court judges, who must live in New
York City, are elected either countywide or from a particular judicial district within a county, a throwback to a now
non-existent municipal court system. (Now, regardless of which district elected them, all Civil Court judges hear
cases from within the entire county in which they are sitting). They are elected for a ten year term. . But Civil Court
judges do not necessarily preside over Civil Court alone. They can also be assigned to Criminal Court, occasionally
Family Court, or as acting Justices of the Supreme Court, (Criminal or Civil). Though Housing Court is part of Civil
Court, Housing Court judges, unlike Civil Court judges, are not elected. The state's Chief Administrative Judge,
Jonathan Lippman, appoints them for five-year terms.
Criminal Court judges, as city judges, must also live in the city; the Mayor appoints them for ten-year terms. They can
also be designated as Acting Supreme Court Justices (usually in the Criminal Division).
A Supreme Court justice -- the only judge who is actually called Justice -- is elected by the voters in the county but
must first be nominated by a political party. The procedures and politics for getting to that point differ from county to
county. A Supreme Court Justice must live in New York State, and is elected for a term of 14 years.
Every judge wants to be one of the Supremes, sit on the bench of the Supreme Court of the State of New York.
The Supreme Court justices are the pool from which appointments to the higher Appellate Term and the Appellate
Division are made. But the members of the New York State Court Of Appeals, the highest court, do not have to have
served as judges in any court. When former Governor Mario Cuomo appointed the current Chief Judge of the Court
of Appeals, Judith S. Kaye, she had been an attorney in private practice.
There can be no simple guide to New York's courts. As complicated as this basic structure seems, there are so many
exceptions to the rules and procedures that it is actually even more complicated.
Emily Jane Goodman is a New York State Supreme Court Justice
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56
PRESS RELEASE
New York State
Unified Court System
Contact:
David Bookstaver
Communications Director
Arlene Hackel, Deputy Director
(212) 428-2500
Hon. Lawrence K. Marks
Chief Administrative Judge
www.nycourts.gov/press
Date: October 1, 2015
Chief Judge Jonathan Lippman Announces Series of
Reforms to Address Injustices of NY’s Current Bail System
New York – With tens of thousands of pretrial defendants detained in jails in New York City
and statewide solely because they cannot afford to post bail, Chief Judge Lippman today in a
speech at the Citizens Crime Commission announced a series of initiatives to help address the
inequities in New York’s bail system and spur an overhaul of the current system.
While bail in New York is intended to ensure a defendant’s return to court, it has instead
resulted in a two-tier system of justice: one for those with money and one for those of limited
means. Nearly 50,000 defendants are jailed each year in New York City because they cannot
make bail. Almost 90 percent of those for whom bail is imposed do not make bail at arraignment,
and over half of those defendants remain in jail for the entire duration of their case ─ from
arraignment to disposition ─ without ever being released.
Excessive pretrial detention can inflict tremendous economic hardship and psychological
harm on defendants and also limit their ability to assist in their defense. Being incarcerated can
mean loss of income, employment or housing. For defendants who care for children or aging
relatives, pretrial detention also impacts their dependents.
A strong and steady voice for a top-to-bottom revamping of the rules governing bail in
New York, Judge Lippman proposed legislation in early 2013 that, if enacted, would permit
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judges to consider whether a defendant poses a risk to the “safety of any person or community”
when making a bail determination. Unlike 46 other states and the District of Columbia, New
York does not allow judges to take public safety into account when setting bail. The proposed
legislation would also create a statutory presumption of release without bail where the judge
concludes that the defendant poses no risk to public safety or legitimate risk of failure to return
to court. Additionally, it would give judges clear authority to impose a range of pretrial release
conditions, such as participation in drug treatment or a supervised release program.
Despite the urgent need for bail reform, the proposed legislation has languished, with the
initiatives announced today by Judge Lippman serving to ensure that the court system is doing
everything within the constraints of existing law to limit the tremendous damage and human
costs that can result from excessive pretrial detention. Among these measures are:
· Automatic judicial review of bail for misdemeanor cases
In the New York City Criminal Court, the court system will institute automatic “de novo”
review of bail determinations, as authorized by New York’s Criminal Procedure Law, by
a single judge in each borough. The review will be triggered whenever a defendant
charged with a misdemeanor has been unable to make bail. This means the judge will
take a fresh look at the case and make an independent determination whether the bail
amount should be adjusted or whether bail should be permitted in a less onerous form. In
contrast to arraignment parts ─ where enormous case volume and legally imposed time
constraints often preclude a more thorough consideration of relevant factors and where
information about a defendant’s circumstances may be limited ─ this process will give
the reviewing judge a fuller opportunity to make a more considered bail determination
and provide defense counsel the time to present a more accurate picture of the defendant
that will be relevant to that determination. Having more information available and one
judge per borough handling the reviews will lead to greater consistency in bail decisions
in misdemeanor cases.
· Periodic judicial review of case viability and bail for felony cases
The court system will issue new court rules requiring regular, periodic judicial review of
case viability and bail. Where a defendant is in custody pending disposition of the
charges against him, the rules will require a status conference at designated milestones in
the case. At the status conferences, the judge will evaluate the viability of the
prosecutor’s case and readiness for trial and, where appropriate, make modifications to
the defendant’s bail status. By institutionalizing this review structure, the courts will be
able to better ensure that felony defendants do not languish in pretrial detention.
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· Pilot electronic supervision program in Manhattan Criminal Court
Electronic supervision, which can track defendants on pretrial release and immediately
locate them if they fail to appear in court when required, is a valuable option in
appropriate cases, giving judges the additional security that defendants will return to
court without having to post bail. Manhattan judges will be able to release defendants
charged with misdemeanors ─ excluding domestic violence, assault and sex offenses ─
on electronic supervision while they await adjudication. Defendants will be considered
for electronic supervision after arraignment if they remain incarcerated, ensuring that it
will be used only for defendants who are unable to post bail. Apart from the benefits to
those who would otherwise be detained, electronic monitoring has the potential to save
huge amounts of money for taxpayers. The average yearly cost of detention in New York
City exceeds $100,000, drastically more than the modest costs of electronic supervision.
· Promoting the use of alternative forms of bail
New York’s bail statute provides for seven types of bail bonds, as well as cash bail and
credit card bail. In practice, though, judges exclusively use two types ─ cash bail or
insurance company bail bonds ─ which is understandable given the crushing volume of
cases in arraignment parts and the overwhelming time pressures faced by judges.
However, we need to make much better use of every available option that will allow
those who are presumed innocent to more readily post bail. To facilitate wider use of
alternate forms of bail that defendants may be able to post more readily, the court system
will enhance training for judges and clerks on the availability of alternate types of bail
and the procedures required.
“With the reforms announced today, we will make major strides in overhauling our
broken system of bail. Reforming the institution of bail in New York will go a long way toward
ensuring that our justice system not only protects the public safety, but also is fair and just for
each and every New Yorker ─ rich and poor alike,” said Judge Lippman.
# # #
59
Impact Thursday:
Social Justice and the Powers and Limitations of the Bench
January 14, 2016
Bibliography 1
A Living Death: Life Without Parole for Nonviolent Offenses
Summary: An ACLU report that includes stories of defendants who are serving life without
parole sentences because judges are forced to sentence them that way. The report brings
a human element to the mandatory sentencing laws, showing the impact on defendants
who may not deserve to be imprisoned for life.
American Civil Liberties Union, A Living Death: Life Without Parole for Nonviolent Offenses
(November 18, 2013), https://www.aclu.org/files/assets/111813-lwop-complete-report.pdf
Against His Better Judgment
Summary: A discussion of the federal sentencing guidelines and the burdens they place on
judges, as told by a federal judge. How the phrase “my hands are tied” has become the
sentiment most judges live with everyday.
Eli Saslow, Against His Better Judgment, Washington Post, June 6, 2015, available at
http://www.washingtonpost.com/sf/national/2015/06/06/against-his-better-judgment/
Anger Over Lippman’s Bail Reform Plan Sweeps Through NYC Criminal Judges
Summary: A summary of the major criticisms current and retired judges are expounding
after the announcement of Judge Lippman’s bail reforms. Such criticisms include the lack
of authorization in the criminal procedure law, the discontent it would create amongst
judges and a general cry of disrespect.
Dan Wise, Anger Over Lippman’s Bail Reform Plan Sweeps Through NYC Criminal
Judges, WiseLawNY (November 17, 2015, 9:47am),
https://wiselawny.wordpress.com/2015/11/17/anger-over-lippmans-bail-reform-plansweeps-through-nyc-judges/
Chief Judge Jonathan Lippman Announces Series of Reforms to Address Injustices to NY’s
Current Bail System
Summary: The official press release containing Judge Lippman’s Bail Reforms which
include automatic judicial review of bail for misdemeanor cases, periodic judicial review of
1 Compiled by Justice Emily Jane Goodman and Professor Andrew Scherer with research assistance by Kelsey
Dickman
60
case viability and bail for felony cases, a pilot electronic supervision program in Manhattan
Criminal Court and promoting the use of alternative forms of bail.
New York State Unified Court System, Chief Judge Jonathan Lippman Announces Series
of Reforms to Address Injustices of NY’s Current Bail System (2015).
https://www.nycourts.gov/press/PDFs/PR15_13.pdf
Fees for Criminal Offenders Create a Vicious Cycle
Summary: When a defendant is arrested, fees start accruing. They accrue before the
conviction, after it, and during incarceration. When a defendant is released, they are forced
to find ways to pay back those exorbitant fees, all while adjusting back to life on the
outside. What is the effect of this vicious cycle on parolees and recidivism?
Emily Jane Goodman, Fees for Criminal Offenders Create a Vicious Cycle, The Nation,
Sept. 3, 2008, available at http://www.thenation.com/article/fees-criminal-offenders-createvicious-cycle/
Historic Criminal Justice Bill Passes Senate Judiciary Committee
Summary: An overview of the Sentencing Reform and Corrections Act, a new piece of
legislation that would reduce mandatory minimum sentences fo r drug offenses, expand
judicial discretion, expand reentry programs and other sentence reductions.
Drug Policy Alliance, Historic Criminal Justice Passes Senate Judiciary Committee
(October 22, 2015), http://www.drugpolicy.org/news/2015/10/historic-criminal-justice-billpasses-senate-judiciary-committee
How to Prosecute Abusive Prosecutors
Summary: A discussion about how prosecutors and judges are supposed to protect rights
and promote justice, but sometimes lose sight of that goal. What mechanisms are in place
for that situation and what is the reality of these situations?
Brandon Buskey, How to Prosecute Abusive Prosecutors, The New York Times, Nov. 27,
2015, available at http://www.nytimes.com/2015/11/27/opinion/how-to-prosecute-abusiveprosecutors.html?_r=0
In Misdemeanor Cases, Long Waits for Elusive Trials
Summary: A discussion of the backlog in the court system, with specific reference to the
Bronx County backlog and misdemeanor cases, the artificialness of the ready system and
the impact of long court adjournments on defendants.
61
William Glaberson, Long Waits for Elusive Trials, The New York Times, May 1, 2013,
available at http://www.nytimes.com/2013/05/01/nyregion/justice-denied-for-misdemeanorcases-trials-are-elusive.html?pagewanted=all&_r=1
Judge Seeks Work
Summary: With the change in law allowing judges to seek work off the bench, a judge
started looking to the world off the bench. During her search, she found that her vast
experience as a judge made her marketable only to the legal profession, where she might
find work, but still has to tread lightly.
Emily Jane Goodman, Judge Seeks Work, Huffington Post, Nov. 4, 2010, available at
http://www.huffingtonpost.com/emily-jane-goodman/judge-seeks-work_b_778823.html
Presiding Over a Capital Case, Chapter 4: Media and the Courts
Summary: A discussion of the current rules governing media/judicial relations and
suggestions from a retired judge about how to effectively develop a working relationship
with the media while staying within the required guidelines.
Cynthia Stevens Kent & Sharen Wilson, Presiding Over a Capital Case, 69- 85 (National
Judiciary, 2009).
http://www.judges.org/capitalcasesresources/bookpdf/Chapter%204%20Media% 20and%2
0the%20Courts.pdf
Prosecutorial Misconduct and the Public Perception of Criminal Defense
Summary: Prosecutors wear white hats, defense attorneys wear black hats –a theme that
is present in our pop culture and our legal system. When prosecutors break the rules, they
receive a public sanction; when a defense attorney breaks the rules, he goes to prison.
This unfair balance stains our criminal justice system.
Adam Banner, Prosecutorial Misconduct and the Public Perception of Criminal Defense,
Huffington Post, Nov. 18, 2015, available at http://www.huffingtonpost.com/adambanner/prosecutorial-misconduct-_2_b_8473898.html
Rockefeller Drug Laws and Judicial/Prosecutorial Power Struggle
Summary: The impact of the Rockefeller drug laws –how incarceration rates have
skyrocketed, how prosecutors make decisions about who gets diverted into alternative to
incarceration programs, and how judges have lost the ability to exercise discretion in
sentencing.
Emily Jane Goodman, Rockefeller Drug Laws and Judicial/Prosecutorial Power Struggle,
Huffington Post, April 26, 2009, available at http://www.huffingtonpost.com/emily-janegoodman/ockefeller-drug-laws-and_b_179540.html
62
Suspected Killer of NYPD Officer was on Street Because Judge Opted to Send him to Drug
Rehab, Not Prison
Summary: Tyrone Howard, the alleged murderer of Officer Randolph Holder, Jr., was
involved in a drug-diversion program after a drug peddling charge. His diversion into this
program, in light of his potential involvement with the shooting, has raised some questions
about alternatives to incarceration programs.
Shayna Jacobs and Corky Siemaszko, Suspected Killer of NYPD Officer was on Street
Because Judge Opted to Send Him to Drug Rehab, Not Prison, NY Daily News, Oct. 22,
2015, available at http://www.nydailynews.com/new-york/nyc-crime/judge-sentencedsuspected-killer-rehab-not-prison-article-1.2406276
The Courts of New York Explained
Summary: An overview of the various courts in New York State and how the judges that sit
on those benches got their jobs as told by a retired NYS Supreme Court justice.
Emily Jane Goodman, The Courts of New York Explained, Gotham Gazette, Sept, 11.
2000, available at http://www.gothamgazette.com/index.php/public-safety/1918-the-courtsof-new-york-explained
The Working Relationship Between Judges and the News Media
Summary: A discussion of the tradition of silence from the bench when it comes to media
cases and an explanation as to how a more open and working relationship between the
bench and the media could prove to be beneficial.
James McLaughlin, The Working Relationship Between Judges and the News Media
(2004), The Reporters Committee for the Freedom of the Press.
https://www.rcfp.org/secret-justice-judicial-speech/working-relationship-between-judgesand-news-media
63
Impact Thursday:
Social Justice and the Powers and Limitations of the Bench
January 14, 2016
Panelist Biographies
The Honorable Shira A. Scheindlin is a United States District Judge for the Southern District of
New York. Before being nominated to the bench by President Bill Clinton on July 28, 1994, she had
an impressive and diverse career, practicing criminal law as an Assistant United States Attorney for
the Eastern District, practicing commercial law as General Counsel for the New York City
Department of Investigation and as a partner at Herzfeld & Rubin, and as a Magistrate Judge in the
Eastern District of New York and a Special Master in the Agent Orange mass tort litigation. Judge
Scheindlin is also a published author, having co-authored the first casebook on electronic
discovery and digital evidence, her own book on electronic discovery called “Electronic Discovery
and Digital Evidence in a Nutshell” and numerous other articles. She has also served as an adjunct
professor at both Brooklyn Law School and the Cardozo School of Law. She has lectured at many
law schools throughout the country on various topics including class actions, sentencing, and
discovery issues. She is the author of the seminal opinion in Floyd v. City of New York, which
addressed the constitutionality of the stop and frisk practices of the New York City Police
Department.
The Honorable Fern Fisher serves as the Deputy Chief Administrative Judge for the New York
City Courts and also serves as the Director of the New York State Courts Access to Justice
Program. Justice Fisher began her career as a Legal Services Attorney in Manhattan Housing
Court. She also served as the Deputy Director of Harlem Leg al Services, Inc., as an Assistant
Attorney General of the New York State Department of Law, and provided pro bono services as a
project director of the National Conference of Black Lawyers. Before being elected to the Supreme
Court in 1993, Judge Fisher was appointed Judge of the Housing Part of Civil Court, and then
elected to the Civil Court, where she served as Deputy Supervising Judge. Justice Fisher served
as the host of a series of television shows about housing issues on cable and contributes to the
Thomson-West practice guide “Residential Landlord-Tenant Law in New York.” She has also
taught at CUNY Law School and lectures often at the New York State Judicial Institute. Justice
Fisher is a member of the Advisory Council to the Impact Center for Pub lic Interest Law at NYLS.
Ron Kuby is a Manhattan-based criminal defense and civil rights attorney. Kuby began his
practice with the legendary William M. Kunstler in 1983. The duo represented the spectrum of
those society hated and feared, from homeless squeegee men, to Yusef Salaam of the Central
Park Five, to the first World Trade Center bombers. After Kunstler's death in 1995, Kuby continued
the practice of representing the despicable and the despised, the completely innocent and the
absolutely guilty, often pro bono. Kuby's career as the left-wing voice on right-wing talk radio,
which began in 1996, has enabled him to put food on his family’s table and finally achieve his long
64
desired goal of practicing law full time and without making any money --something at which he
excels. For fun, he enjoys being New York's leading legal expert on the law of public nudity.
The Honorable Helen Freedman was elected to the Civil Court in 1978 and began serving in New
York State Supreme Court in 1984 in the Commercial Division. She served on the Appellate Term
of the Supreme Court from 1995 to 1999. She was the Presiding Judge of the Litigation
Coordinating Panel for multi-district litigation in New York State and also worked on the downstate
asbestos litigation and homeless family litigation. In 2008, she was appointed to the Appellate
Division of the New York State Supreme Court, from which she retired. Currently, Justice
Freedman is with JAMS, providing mediation and arbitration services. Justice Freedman autho red
“New York Objections,” a book on trial practice and making objections, as well as other chapters,
book reviews and articles. She was an adjunct professor at New York Law School and has lectured
extensively on a wide variety of topics.
The Honorable Emily Jane Goodman began her career as a staff attorney for the Legal Aid
Society. Shortly after, she moved into private practice, focusing on matrimonial law, intellectual
property law, landlord-tenant issues, and criminal defense. In 1972, Justice Goodman founded the
Women’s Law Center, where she worked on divorce cases, tenants’ rights and feminist issues.
Throughout her career, Justice Goodman has worked with women as victims. In 1983, she was
elected to the New York City Civil Court bench. In 1990, she was elected a Justice of the New York
State Supreme Court and she retired from the bench in 2012. She is now in private practice.
Throughout her career, Justice Goodman, who is also a journalist, has written articles on a diverse
array of legal issues. Justice Goodman is a member of the Advisory Council to the Impact Center
for Public Interest Law at NYLS.
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