Letter from the Chair

The Judiciary Committee has jurisdiction over virtually all legislation affecting the state judicial system and much of the legislation affecting civil practice in the courts. Among the legislative proposals reviewed by the Committee are measures on domestic relations and child support, protection of domestic violence victims, trusts and estates, guardians for incapacitated persons, real property and tenant law, lien law, general obligations law, sections of CPLR, and the uniform commercial code.

All proposed amendments to the New York State Constitution are reviewed by the Judiciary Committee, even if they originate in another committee. The Committee works with the Office of Court Administration on matters involving court facilities, the Judiciary budget, and employee relations. A top priority of the Committee each year is ensuring that funding is added to the state budget for civil legal services for low-income New Yorkers.

The highlights that follow demonstrate the diversity of the Judiciary Committee’s work in 2004.

Assembly Passes Judicial
Selection Reform Legislation

The Assembly passed two important measures to strengthen public confidence in New York State’s system of justice by helping ensure that New York’s judiciary meets the highest standards of ability, ethics and integrity. One bill establishes a mandated impartial screening panel process for elected Supreme Court justices and a range of appointed judges. The other legislation creates a New York State judicial election campaign fund for the public financing of judicial campaigns. Unfortunately, to date, the Senate has failed to act on either measure.

A.11456 (Weinstein, Silver), known as “The Judicial Qualification Act”, would ensure that justices serving on the state Supreme Court and in other judicial offices are chosen from a pool of candidates who are well qualified, ethical and committed to the fair administration of justice. A companion bill (A.11457 Weinstein... Silver) would allow candidates to have access to public campaign funds and set a $500 limit as the maximum individual contribution to a judicial race.

These bills incorporate and build upon a number of significant proposals made by the “Commission to Promote Public Confidence in Judicial Elections,” a blue-ribbon panel of 29 distinguished members of the bench and bar appointed by Chief Judge Judith Kaye. The Commission was chaired by former Fordham Law School Dean John Feerick, who strongly endorsed the Assembly’s plan.

The Judicial Qualification Act establishes independent judicial screening panels, a cornerstone of the Feerick Commission’s recommendations. The screening panels would evaluate potential judicial candidates from a pool of applicants and recommend those that are well qualified to serve on the bench. Other reforms include the establishment of a Judicial Campaign Ethics and Conduct Center and a Commission on Judicial Diversity.

Protecting Victims of Domestic Violence

Protecting victims of domestic violence. Assemblywoman Helene Weinstein explains to the press the dangerous situation for unmarried victims of domestic violence who are currently barred by New York law from obtaining a civil order of protection. She is joined at the press conference by Patti Jo Newell of the New York State Coalition Against Domestic Violence and John Eadie from the New York Statewide Senior Action Council.

The Assembly passed by 140 to 1, the “Access to Civil Orders of Protection” bill (A.2235-A Weinstein, Smith, Paulin), which gives the full protection of New York’s domestic violence laws to unrelated persons. Unfortunately, this important measure was not adopted by the Senate. Currently, New York is the only state in the country where unrelated domestic violence victims who live or have lived together in the past cannot obtain a civil order of protection because of our narrow definition of who has access to family court. The only option for such victims is to deal with the criminal justice system — for some, a daunting prospect, and for others, no option at all. Moreover, New York law also does not permit couples in dating and intimate relationships to obtain a civil order of protection against an abuser — protection which is granted by 35 other states and the federal government in the Violence Against Women Act. According to the Division of Criminal Justice Services and the Office for the Prevention of Domestic Violence, at least one half of the domestic violence incidents in New York State involve non-family relationships, most often boyfriend-girlfriend cases.

To bring New York into step with the rest of the nation , the Assembly passed A. 2235-A , giving full protection to unrelated persons, including dating and intimate partners. Among these protections are the right to obtain civil protective orders in family court, mandatory arrest of abusers, tracking of orders of protection on the state registry, extended orders of protection in aggravating circumstances, and increased penalties for violation of orders of protection. The passage of the bill in the Assembly was applauded by the Coalition Against Domestic Violence as well as advocates for senior citizens and young people who are victims of dating violence.

Another measure which passed both houses, A.5513, seeks to clarify that temporary homeless facilities such as motels would be considered a “residence” for purposes of venue in family offense proceedings. This would insure that victims of domestic violence who had been forced to flee their homes because of the violence could obtain orders of protection in a court close to their emergency shelters. The bill is awaiting the governor’s signature.

Press Conference Highlights Need
to End Secrecy Pacts That Harm Public

Assemblymembers Deborah Glick and Ryan Karben and consumer advocates look on as Assemblywoman Helene Weinstein points to a defective Firestone tire at the May 18, 2004 press conference on the “Sunshine in Litigation Act”— A.7017B (Weinstein, Sweeney), which seeks to prohibit settlement agreements that conceal a public hazard and put the public at grave risk The deaths and injuries caused by Firestone tires like the one pictured above are a tragic example of the damage done by secret settlement agreements. Defective Firestone tires killed at least 150 people and injured an additional 500 people before the National Highway Traffic Safety Administration finally ordered a recall of 6.5 million tires in 2000. Tragically, secrecy pacts that were part of settlements of lawsuits against Firestone delayed exposure of this hazard. Hundreds of deaths or injuries could have been avoided if the tire hazard was made known in 1992. The “Sunshine in Litigation Act” would enable journalists, lawyers and government agencies to learn promptly about public hazards such as these. They could then expose the risk and force the wrongdoer to remedy the situation. A.7017B was reported by the Assembly Judiciary Committee in 2004.

Court Operations

The Legislature adopted the budget proposed by the Office of Court Administration.

A.7518 (Weinstein) extends to six years from the current four years the period of time in which jurors who have completed jury service will not be called upon to serve on a jury again. This bill was signed into law (Ch. 240 of the Laws of 2004).

The following bills have all passed both the Assembly and the Senate and await the Governor’s signature.

A.9612A permits the filing of successive notices of pendency without return to court in certain limited circumstances.

A.10403 makes clear that in Supreme and County Court the County Clerk is the clerk of the court and that an action is commenced by filing papers with the County Clerk or his or her designee. This will help ensure that cases are decided on the merits, and not upon technicalities which might otherwise cause a dismissal.

A.10552A (Weinstein) allows for a simplified means for admission of medical tests, such as X-rays or MRIs, into evidence without a physician being called to testify.

A.11128A (Weinstein, Tokasz) extends the electronic filing pilot project for legal papers into Erie, Kings, Bronx, Queens and Richmond counties and also adds tort claims to the type of claims which may be litigated electronically. This will save time and money for litigants, and help the court system better manage its cases.

A.11167 (Brodsky, O’Donnell) requires written notice to homeowners prior to public hearings in eminent domain proceedings.

Protecting Children and Families

The following bills have passed the Assembly and Senate and require action by the Governor.

A.7511B (Weinstein, John) clarifies that hearing examiners as well as Family Court judges would be authorized to determine motions to quash child support subpoenas issued by local Support Collection units, issue subpoenas for information and summonses, adjudicate contested paternity proceedings, and conduct judicial reviews of administrative fair hearings regarding driver’s license suspensions. This will enhance the ability of hearing examiners to address child support proceedings in an integrated manner and provide prompt relief.

A.10559A (Weinstein...Lentol) increases from 12 to 14, the age at which certain vulnerable child witnesses in sex abuse cases may be permitted to testify by live-two-way closed circuit television. The change in the law gives the judge the discretion to allow a 13 or 14 year old child, who is declared by the judge to be vulnerable, to testify via closed circuit television, thus protecting children who face a serious risk of psychological harm from testifying in the ordinary manner.

A.11079 (DiNapoli, Engelbright) authorizes caregivers to consent to school enrollment, school-related activities, medical and dental diagnosis and treatment of school aged children who are in their care. Currently, a caregiver who has no legal relationship with a child has no authority to consent to routine childcare decisions. In the past, the Governor has vetoed this important legislation.

A.11449 expedites processing of appeals in child welfare cases in Family Court and simplifies the process for assignment of counsel to low income parents. Studies have shown that the time lag in reuniting children in foster care with their families or placing them for adoption is in part due to lengthy delays in appeals from Family Court.

The following measures have passed the Assembly, but have not been acted on by the Senate.

A.145 (John) provides for the legal representation of indigent parents whose children are placed in foster care. It would allow Family Court judges to assign counsel to indigent parents for post-hearing case conferences in child protective and voluntary foster care proceedings. It would also provide for assigned counsel for parents that are contesting placement of their child in juvenile delinquency and PINS cases. This will assure access for parents to legal assistance in these critical proceedings where termination of parental rights is a possibility.

A.7880 (Weinstein, John, Glick) requires a court in a matrimonial case involving parties with greatly unequal financial resources to order the monied party to pay counsel fees for the non-monied party during the course of the case so as to enable him or her to carry on or defend it, unless the party paying such fees shows why the interest of justice does not require the award. This bill will insure that no party to a matrimonial case is strategically at a disadvantage for want of resources to pursue or defend the case.

Assembly Judiciary Committee. The Assembly Judiciary Committee meets regularly during the Legislative Session. The meetings are open to the public.

A.8089 (Weinstein) requires that if a child is or was the subject of a family court child protective proceeding, foster care, surrender or termination of parental rights proceeding that any subsequent agency adoption proceeding would have to be filed in the same court and required to be heard where practicable before the same judge. This legislation would significantly advance the efforts of the Court System and family services providers to ensure that the large number of children freed for adoption in New York State can be adopted without delay.

Protecting Consumers

The following bills have passed the Assembly but have not yet been acted on by the Senate.

A.76B (John) establishes licensing of home inspectors by New York State. This legislation will ensure that home buyers who pay for an inspection will receive competent and professional services. Currently, there are no requirements or qualifications for home inspectors in the State of New York and anyone can hold themselves out to be a home inspector. The consumer has no way of knowing who is experienced and will provide a quality inspection. This legislation protects consumers by setting a standard for home inspectors and a method for holding them accountable for failure to perform up to that standard.

A.5733 (Gottfried, Grannis, Stringer) holds health care organizations (HMO’s) accountable for the consequences of their health care-related decisions. Currently, HMOs and managed care plans integrate the functions of providing and financing the delivery of health care services. Unfortunately, HMO bureaucrats have made what are essentially medical decisions based on economics alone, thereby limiting the care a physician can provide to the patient. This legislation will protect consumers by holding HMOs fully responsible for the consequences of their decisions to provide or deny medical coverage.

A.7883 (Destito, Weinstein, DelMonte) would grant the City Courts and District Courts with additional equity jurisdiction to resolve disputes involving real property. This will enable these courts to better enforce compliance with local housing codes, and thereby better protect tenants and preserve community housing stock.

A.10560 (Weinstein) would permit New Yorkers to void anti-consumer contract provisions which would apply the Uniform Computer Information Transactions Act (UCITA) to on-line purchase agreements. If a dispute arises with regard to an item purchased on-line, the consumer can choose to apply the more consumer friendly laws of New York instead of UCITA.

Improving Guardianship Law

For the past two years, the Judiciary Committee has worked closely with the New York State Law Revision Commission to make important changes to Article 81 of the Mental Hygiene Law, which governs whether a person is competent to make decisions regarding his or her finances, health, and well-being. The Commission believes that certain parts of the statue would benefit from clarification to address confusion and inconsistent practice across the state. The changes embodied in A.8838-A (Weinstein) will better safeguard the rights of persons who are determined to be incompetent to handle their own affairs.

Among the changes, the bill better protects the alleged incapacitated person by allowing the person to retain counsel of their choice. Additionally, it provides important protection of privacy rights for alleged incapacitated persons, consistent with recently enacted federal law—the Health Insurance Portability and Privacy Act (HIPPA). New notice provisions protect the privacy of the person’s financial and medical records by limiting the number of parties who receive copies of such records along with the petition. This bill has passed both houses and is awaiting action from the Governor.

Trusts and Estates

A.10962 makes a technical change regarding restrictions on the power to distribute principal and income. This bill passed both the Assembly and the Senate, and was signed into law by the Governor (Ch. 82 of the Laws of 2004).

A.10967 permits the early termination of a trust when the expense of its administration has become uneconomical. This bill has passed both the Assembly and the Senate.

A.11127 clarifies the required notice when an attorney who drafts a will is also chosen to serve as executor. This bill has also passed both the Assembly and the Senate.

Other Measures of Interest

A.11468 (Aubertine, Weinstein) requires developers to delineate the waterfront boundary lines when filing subdivision plans with the state. This bill has passed both the Assembly and the Senate and awaits the Governor’s signature.

A.5550 (Stringer, McLaughlin, Ramos) would provide the family of homicide victims with a court transcript of the trial free of charge. This bill has passed the Assembly only.

Funding for Civil Legal Services Remains
Top Assembly Priority

Recognizing the critical importance of civil legal services to the fair administration of justice, every year the Assembly fights to restore funding in the state budget to support legal assistance for low income New Yorkers, the elderly, and victims of domestic violence. This year, Judiciary Chair Weinstein was the recipient of a special award at the New York State Bar Association Partnership Conference recognizing her “extraordinary commitment to civil legal services”. The conference is a biennial legal training event for civil legal service providers around the state. Pictured (r to l) Kenneth G. Standard, President of the New York State Bar Association, Anne Erickson, Executive Director of the Greater Upstate Law Project, Assemblywoman Weinstein, Barbara Finkelstein, Executive Director of Legal Services of the Hudson Valley, Helaine Barnett, President of the federal Legal Services Corporation, and Pat Bucklin, Executive Director of the New York State Bar Association.