March 20, 2023
After rejecting the Governor’s nomination of a qualified jurist for Chief Judge, the state Senate —rather than addressing the crime, housing, and mental health issues that afflict our state — seeks to increase the level of legislative interference with our state’s previously independent judiciary. While the bill at issue is styled as part of the “budget,” certain provisions are unrelated to finance. Rather, they constitute another legislative attack on the independence of the judiciary and on separation of powers. This intrusion by the legislature into the deliberative process of the courts is unwarranted and unnecessary. The legislature should do its job—make good laws—while respecting the judiciary’s independence, which is necessary for the courts to apply and interpret those laws fairly and impartially. Read the proposed legislation here.
The Senate bill would require the Office of Court Administration (“OCA”) to publish annual “performance reviews” of individual judges. There can be no doubt that this is a first step to facilitate legislative criticism of particular judges or groups of judges – or at the very least that judges and the general public will perceive it that way. It is also likely to be overbearing and ineffective. As the ABA’s Guidelines specify, an effective performance evaluation system should be designed and executed by judges or bar associations and should be confidential.¹ Judicial performance evaluation should be overseen and conducted by the judiciary, not dictated by legislative fiat as the Senate bill requires. That is what separation of powers is all about.
Consistent with the ABA’s guidelines, the state constitution squarely entrusts the administration of the courts to the Chief Judge. Indeed, OCA and the Chief Judge already have a variety of tools to evaluate and improve judicial performance. See, e.g., Rules of the Chief Administrative Judge, Parts 100, 101, 115, 133.²
The Senate bill opens the door to undue and unnecessary legislative interference with the effective measures already in place. By what standards is “performance” to be reviewed? The provisions requiring disclosure of basic operating statistics, by individual judge or justice, are calculated to unfairly embarrass the judiciary, and these provisions take no account of backlogs that developed over the past three years due to Covid (or due to legislative enactments such as criminal discovery reform). Further, the Senate bill would apparently require OCA to apply the same standards and goals to judges statewide notwithstanding the substantial differences among jurisdictions in dockets and types of cases. This is yet another reason why the Chief Administrative Judge, and not the legislature, is entrusted with training judges and evaluating their performance.
Further, if “performance” is supposed to signal more than just a review of caseloads, but some sort of substantive review of the work of the judiciary, the legislature is unsuited to conduct that review. This, too, would be an intrusive and unnecessary mandate.
The Senate also seeks to require OCA to keep detailed records of all judicial training programs, including copies of all materials and a list of all judges or justices who attend. A report including all details and all materials of all programs would have to be submitted annually to the legislature.
While there is no doubt that training is beneficial, even necessary, this is a solution in search of a problem. Judges in New York are well trained.³ We are unaware of significant complaints about OCA’s extensive training programs or protocols. There is no pressing need for this level of legislative scrutiny.
Undoubtedly, the provisions requiring disclosure of training materials are designed to influence the substance of those materials, and to permit them to be evaluated and criticized by the legislature—an inherently political body. Indeed, the Senate has asked repeated questions about the training that judges receive on bail issues in a transparent attempt to influence the judiciary’s handling of bail decisions.⁴ Acting Chief Administrative Judge Tamiko Amaker correctly defended the level of training that has been given on bail issues. And she noted that bail decisions are – and should be — decided on a fact-specific, case-by-case basis and cannot be dictated by materials handed out in training courses.
Similarly disturbing is the Senate bill’s requirement that the judiciary deliver an annual report to the legislature on judicial security, including threats, assaults, police reports and prosecutions. This part would also require a report on security procedures by incident, as well as a detailed report on any “extraordinary security measures” taken over the preceding year.
On its face, this requirement might seem to evince concern for the wellbeing of judges. But viewed in context, it does not. The Senate recently grilled OCA about the security measures used to protect former Chief Judge DiFiore after she left office—insinuating that she was given too much security. This intense focus on security policies and “extraordinary security measures” actually jeopardizes judges’ physical well-being and safety. Indeed, public disclosure of security incidents and arrangements may encourage copycats and give them valuable information in planning their own assaults, jeopardizing rather than facilitating the security of the judges and justices we seek to protect.
The Senate bill threatens the separation of powers fundamental to our constitutional system. “The separation of the three branches is necessary for the preservation of liberty itself.” Maron v. Silver, 14 N.Y.3d 230 (2010) (a case in which NYCLA filed an amicus brief supporting the judiciary). ‘”Separation of powers “is a structural safeguard rather than a remedy to be applied only when specific harm, or risk of specific harm, can be identified. In its major features. . . it is a prophylactic device, establishing high walls and clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict.” Id. (quoting Plaut v Spendthrift Farm, Inc., 514 U.S. 211, 239 (1995)).
These new Senate proposals appear to be nothing more than a legislative attempt to exert increased and unwarranted control over the judicial branch. This dangerous effort to thwart judicial independence and violate the separation of powers must be stopped immediately. The offending provisions of the Senate budget bill must not become law.
¹ Amer. Bar Assoc., Black Letter Guidelines for the Evaluation of Judicial Performance (Feb.2005) https://www.americanbar.org/content/dam/aba/publications/judicial_division/aba_blackletterguidelines_jpe.pdf
³ See, Judiciary Law § 219-a
⁴ Top NY court official dismisses mandated bail training for judges, Spectrum News (Feb. 7, 2023) https://spectrumlocalnews.com/nys/central-ny/politics/2023/02/08/top-ny-court-official-discourages-mandating-bail-training-for-judges