‘There’s total paralysis.’ With NY’s chief judge vacancy, courts are stagnant

Until the Court of Appeals gets a permanent chief judge, many initiatives remain on ice, and the judicial branch is in a “holding pattern.”

Chief Judge Janet DiFiore stepped down in August, and her successor likely won’t be appointed until this summer.

Chief Judge Janet DiFiore stepped down in August, and her successor likely won’t be appointed until this summer. Mike Groll/Office of Governor Kathy Hochul

On a recent New York City Bar Association conference call, former longtime New York City corporation counsel Michael Cardozo found himself discussing what he described as a “modest proposal” with others on the call. They wanted court leadership to offer support for the proposal, but Cardozo told them they would likely have to wait until at least June. He does not expect the judicial branch to have a new leader until then, and he doubts that anything of import will happen in the meantime. “The courts aren’t going to do anything until they know who their new leadership is,” Cardozo told City & State. “There’s total paralysis.”

The judicial branch has largely remained in a holding pattern since former state Chief Judge Janet DiFiore stepped down last August. While the assessment from Cardozo may paint a slightly more dire picture than reality – the courts have continued to operate and hear cases in that time – the judiciary has been treading water as a whole under the temporary leadership of Acting Chief Judge Anthony Cannataro as judges and staffers alike await the appointment and confirmation of their new boss, whose full term will last 14 years.

The lack of permanent leadership comes at a particularly turbulent time for the courts. The Court of Appeals, the state’s highest court, has gained renewed attention as advocates of all kinds look to it to protect New Yorkers’ rights as the U.S. Supreme Court rolls them back. And the judiciary is still reeling from pandemic-related backlogs and other impacts of COVID-19 – on top of long-standing budgetary and staffing issues.

Gov. Kathy Hochul tried to address the court’s lack of leadership by nominating Hector LaSalle to be chief judge in December, but due to the state Senate’s unprecedented rejection of his nomination, it’s still not clear who will next lead New York’s third branch of government and highest court. Whoever ends up taking the top judge spot has a tall order ahead of them after months of a judicial branch with no head.

Cuomo appointee Judge Janet DiFiore, right, stepped down in August. / ANGELA WEISS/AFP via Getty Images

The Court of Appeals is New York’s version of the U.S. Supreme Court. Made up of six associate judges and one chief judge, it is the final destination for state court cases. Its rulings set precedent that can shape the legal system for decades. The chief judge holds incredible sway over the Court of Appeals and can steer its overall direction by determining how many cases, and which cases, the court will hear.

Those considerations were paramount for state Sen. Brad Hoylman-Sigal, chair of his chamber’s Judiciary Committee. He oversaw LaSalle’s confirmation hearing and ultimately voted against the judge’s ascension. Although a commission vets potential candidates to ensure they are qualified to serve before making recommendations to the governor, he said, the Legislature needs to consider more than a candidate’s résumé. “If I stood up there in front of my colleagues and said, ‘He’s more or less qualified,’ I think I would be removed from my position of chair of the Judiciary (Committee),” he told City & State. “We can’t settle for second or third best when there are so many important issues coming before this court and the specter of the federal judiciary looms over New York.”

Recent decisions from the U.S. Supreme Court that overturned the federal right to an abortion and repealed New York’s century-old concealed carry law have left state leaders scrambling to enshrine protections at the state level. Other pressing issues from rights of organized labor to environmental conservation have already or are expected to soon come before the conservative U.S. Supreme Court as well. With the threat of rolled back federal protections, more and more people are turning to state courts in leftwing states like New York to step up instead. “We recognize the court without a leader isn’t ideal, but what’s even less ideal is the court with the wrong leader,” Hoylman-Sigal said of his chamber’s rejection of LaSalle, which will leave the court without new leadership for what will likely be several more months. “And not only is it not ideal, it’s downright dangerous.”

It’s an opinion shared by longtime Court of Appeals observer Vincent Bonventre, a law professor at Albany Law School and author of the New York Court Watcher blog. “(There) have been complaints about the direction of the court over the last several years now,” Bonventre told City & State, alluding to the more conservative tilt of the Court of Appeals under DiFiore. “Depending on who the next chief judge is, that direction may change again. Whether that’s a course correction, or whether that will make the supposedly disastrous direction even more disastrous, we just don’t know.” Since her appointment by former Gov. Andrew Cuomo in 2015, DiFiore has faced criticism for declining to hear many criminal defendants’ appeals and for issuing relatively conservative decisions. Bonventre cited a number of cases that helped her earn that reputation, including her decision in the 2018 case People v. Tiger. In that case, the court ruled 5-2 to uphold the criminal conviction of a woman even after evidence cleared her. DiFiore wrote the court’s majority opinion. Only the two notable liberal judges on the court who often disagreed with DiFiore dissented from it.

The case concerned a woman who, despite maintaining her innocence, took the advice of her court-appointed attorney to accept a plea deal in order to avoid a potentially longer prison sentence if convicted by a jury. When she later tried to get her conviction thrown out on the grounds that she was actually innocent, DiFiore wouldn’t hear of it. She ruled that the conviction should be upheld since the woman had already confessed, even if the confession wasn’t true. Other courts thought DiFiore may have gone too far. The Appellate Division, an intermediate court, ruled that “in the interest of justice” the conviction should be thrown out. Bonventre paraphrased their opinion: “We're exercising equity – which the Court of Appeals can’t review – we’re throwing out the damn conviction.”

The next chief judge can change course, with a greater eye towards justice, something that Democratic lawmakers would like to see. “It doesn’t have to be the kind (of) conservative court which really is pretty incompatible with the values of New York,” Bonventre said. “This isn’t Alabama.”

For this to go on for such an extended period of time is extremely unfortunate for the court system.

The chief judge doesn’t just oversee the Court of Appeals. They are responsible for the administration of the entire state court system, which many observers feel has long needed improvement and reform. While the recent controversy over LaSalle’s nomination has shone a spotlight on the chief judge’s role, less of that attention has focused on the managerial part of the job. 

William Silverman, chair of the judicial watchdog group The Fund for Modern Courts, hopes that the next chief judge will have the administrative experience necessary to finally solve some of the court system’s issues and increase New Yorkers’ access to justice. But the longer the state goes without a chief judge, the longer the court’s administrative dysfunction will continue. “All of these important things are lost when you don’t have someone in a permanent position as chief judge,” Silverman told City & State. “And for this to go on for such an extended period of time is extremely unfortunate for the court system.” 

Silverman is a member of a working group tasked with analyzing the impacts of the pandemic on the judicial system, which put out a report in January that included “critically important” recommendations on how to solve deep-seated problems facing the courts that have been exacerbated by COVID-19. “I think it’s hard for these recommendations – not impossible but hard for them to be truly implemented without a permanent chief judge,” he said. One key finding of that report relates to delays in the courts’ adoption of new technology. Many judges, attorneys, staffers and petitioners have found themselves dealing with a system that’s still stuck in the 20th century. Although the pandemic has led to an increased usage of virtual proceedings, the rollout of that technology has not been uniform or equitable, and people without easy access to the internet have been left behind. “There’s a lot more that needs to be done, and it really does require a lot of planning and leadership,” he said. 

The court is also plagued by budgetary issues and the ensuing staffing problems that come with them. These issues predate the pandemic, stretching back to the 2008 recession. After Cuomo took office in 2011, the system laid off some 500 employees to close a massive budget gap faced by the state. Even as the economy recovered, the judicial branch never fully bounced back. The pandemic made the court system’s budget problems even worse, and in 2020, the courts cut its spending by $300 million – a move that left attorneys and observers concerned that the cost cuts could lead to longer delays in the system. In New York City, shortages of judges who can hear cases have already resulted in long backlogs in Housing and Family Court. Judges in those courts are supposed to be appointed by the mayor, but often, elected Civil Court judges wind up assigned to one of them to pick up the slack. Courts throughout the state face similar staffing issues.

To get more funding from Albany, the court system needs someone with a strong voice at the table who can advocate for its interests during budget season, something that it currently lacks. “You can’t just press a button and solve all these issues,” Cardozo said. “Who’s articulating to the legislative leaders the whole financial situation of the judiciary?” Right now, the closest thing to a leader that the state court system has is Cannataro, who was named acting chief judge last August. But Cannataro’s temporary position may not give him the power to effectively advocate on behalf of the court system or implement necessary reforms. “3,000 employees in the judiciary, and who’s in charge of them right now?” Cardozo said. “Not taking away from the acting chief judge, but he doesn’t have the political clout, or even necessarily the mandate, to deal with this issue.”

It doesn’t have to be the kind (of) conservative court which really is pretty incompatible with the values of New York. This isn’t Alabama.

Whoever ultimately becomes the next chief judge will have a lot on their plate, but even as political observers carefully watched the the horse race of LaSalle’s nomination between the governor and the state Senate, it still leaves a big question for the average New Yorker: Why should they care that the state has no chief judge now? After all, many people will go years, if not most of their lives, without interacting with the court. Even when they do go to court, they rarely deal directly with the Court of Appeals or the person running it. 

For Cardozo, the answer is simple. “I think we would all agree we need the third branch of government, and the less efficient it is, the worse we get,” he said. “Why is there such a terrible delay in family court? Why is there such inefficiency? ... Why don’t we have leadership so that we can cut down on court appearances?” All those questions fall under the purview of the chief judge, and how they decide to answer them will have ripple effects all the way down to divorce proceedings and custody hearings.

For Silverman, it’s a question of court equity and improved access to justice. The shutdown of the courts over the pandemic delayed many New Yorkers’ access to the courts, and Silverman believes it is only a matter of time until another crisis arises and inevitably impacts the courts. “We need someone who gets behind a plan to make sure that never happens again, and that the quality of justice is better across all of these courts,” he said, adding that simplifying the court system is a “bread and butter issue” for the Fund for Modern Courts. “For some people, court reform is sort of a sleepy, academic issue – but that couldn’t be further from the truth,” he said. “We have these 11 separate trial courts which basically lock in inequities among courts that serve people of limited means, and that to me is the central challenge of a new chief judge.”

Even on the Court of Appeals, the chief judge shapes how the state views justice, from the number of cases the court will hear to the types that it will take. Bonventre said that the caseload of the Court of Appeals dwindled for years during DiFiore’s tenure but dropped off even more after DiFiore stepped down and Canatarro became acting chief judge. “I don’t know how to describe it other than pretty pathetic,” Bonventre said. That diminished number means fewer people have the opportunity to have their cases resolved by the state’s highest court. Those cases can be anything from civil lawsuits to criminal cases that may otherwise languish in the Appellate Division despite the desire of the parties involved to get resolution from the Court of Appeals. “I think it is shameful how few cases they’re hearing,” Bonventre said. 

The state Senate’s rejection of LaSalle’s nomination has ensured that, at least for the next few months, the court system will be without a leader who can begin to find lasting solutions to the entrenched problems plaguing the system. But the drama over LaSalle has also sparked public interest in the courts like never before, according to Hoylman-Sigal. “We have engagement from our constituents on a level of interest that I haven’t seen since I’ve been in the Senate about the chief judge,” said Hoylman-Sigal, who joined the Senate in 2012. “I wish we hadn’t had to have the showdown … but I think it was helpful in the longer term to highlight how important the judicial branch is to everyday New Yorkers.”