Tucked inside the New York state Senate’s one-house budget are a variety of new oversight proposals for the state’s judiciary. 

One section adds language that would require the chief administrator to “collect and compile data on legal training programs." Another would require the chief administrator to “prepare an annual report on the performance of judges and justices of the unified court system. Both proposed reports are then to be shared with the executive and/or legislative branches of government.

A possible conflict over the separation of powers prompted the president of the New York State Bar Association, Sherry Levin Wallach, to issue a press statement on Monday which said, in part, “To maintain their independence, it is necessary for the courts to be allowed to manage in accordance with their constitutional obligations.”

The statement went on to say each branch of state government must be respectful of the other branches. “That is the essence of the system of checks and balances that is the underpinning of our democracy.”

When asked why these provisions were included in the Senate’s one-house, Judiciary Committee Chair and Sen. Brad Hoylman-Sigal told Capital Tonight that the Legislature needs to ensure that judges are being adequately trained “around complicated and controversial issues," including bail reform.

“Frankly, we hear reports from constituents and judges, and from prosecutors and defenders, that there are some judges out there that seem not to know the law as well as others,” he said. “I think it’s incumbent on us as policy makers to understand the extent of that training.”

During budget testimony earlier this year, Tamiko Amaker, acting chief administrative judge, told lawmakers that the state’s Office of Court Administration (OCA) provided judges with more than three hours of training on the new bail laws at a summer conference last year.

“We provide pretty clear training," said Amaker at the time.

A secondary issue facing the judiciary also arose out of budget hearings, as reported by Law360:

“Following revelations that (former Chief Judge Janet) DiFiore and acting Chief Judge Anthony Cannataro failed to report their taxable chauffeur perks, state Senate Deputy Majority Leader Michael Gianaris, D-Queens, charged that 'there is a serious corruption problem within the Court of Appeals where judges are receiving public benefits and not reporting them,'" the report said.

When asked whether the ethical issues facing the former chief judge led to the addition of oversight in the Senate’s one-house budget, Sen. Hoylman said yes.

“Clearly, we asked questions during budget hearings and we didn’t get the answers we were seeking about training, about how extensive that training was. And we didn’t get our questions answered sufficiently on security detail and other expenditures,” Hoylman said. “So, no doubt, the budget hearings helped inform our Senate one-house.”

The Office of Court Administration (OCA), which runs the state’s court system, strongly criticized the measures on both legal and financial grounds.

“The measures contained in the Senate proposal far exceed proper oversight and are an affront to the constitutional separation of powers, undermining the healthy functioning of the three, co-equal branches of government,” Lucian Chalfen, spokesman for the Office of Court Administration, told Capital Tonight in an email.  “If enacted, these measures would impose costly burdens upon the courts, threaten the security and independence of individual judges, and establish a dangerous precedent whereby Judiciary operations could be negatively impacted outside the State’s constitutional budgetary process.”

One veteran appellate litigator generally agreed with Chalfen. 

“While I can’t and don’t speak for the New York State judiciary, I could imagine that the judiciary might view the collection and review of ‘performance’ data…as an internal matter to be handled by the appropriate administrative judge or presiding justice, rather than by other coordinate branches of New York State government,” said Brian D. Ginsberg, a partner at Harris Beach. “And it should go without saying that to the extent the bill could be construed to assign the Legislature an institutional role in any potential subjective review of judicial ‘performance,’ it would be completely out of bounds as a violation of the constitutional doctrine known as 'separation of powers.'"

Robert S. Rosborough, a partner with Whiteman Osterman & Hanna, said he expects the courts would be opposed to the Senate’s proposal because of the logistical strain it would place on OCA staff, as well as how the information in question might be misused.

“The information required by the Senate’s proposal not only has the potential to be misused for political gain, but would require the compilation and disclosure of such a volume of information about every single case throughout the entire state that it could overwhelm the OCA administrative staff and hinder efforts to modernize and streamline the court operations,” Rosborough stated.

Hoylman defended the inclusion of the proposals in the Senate’s one-house.

“I’m glad that we’re seeking these answers and I hope we get them in the final enacted budget,” Hoylman said.