Nov/Dec 2009

State News: August 2009


Fair & Impartial?

The following is an excerpt from a speech delivered by Judith S. Kaye, retired chief judge of the New York Court of Appeals, at the American Bar Association convention in Chicago Aug. 1.
By Judith S. Kaye
One day, after a speech on our state constitution back in New York City some years ago, a lawyer came up to me, aglow, saying “Judge Kaye, I never knew we had a state constitution! I feel like I’m swimming in a whole new sea of culture.” Those were precisely his words, a direct quote, unforgettable for me for the astounding depth of his ignorance. Plainly, we need to better educate and inform all the public about its justice system, especially about its state courts, starting in schools and continuing in every way.
It is, after all, the state courts that have the lion’s share of our nation’s litigation, and therefore by definition also the lion’s share of the court time of our trial lawyers and members of the public as witnesses and jurors. Indeed, well over 95 percent of all our nation’s cases are in the state courts, not the federal courts. In the New York state courts alone, there are more than 4 million new filings every single year—from a slip and fall on an icy sidewalk, or a custody or child support dispute, to mega-billion dollar failed global business deals, to multiple murders, to constitutional issues of great magnitude. Multiply that by the 56 states and other jurisdictions that make up the United States.
I think of the work, and role, of our nation’s state courts in two ways: the adjudicative (or judging) function, and the administrative (or operational) function. Overlaying both is Justice Louis Brandeis’s description of our individual states—each state different, unique in so many ways—as “laboratories” for democracy. That is true as well for the state courts, where decisions by our endlessly varied state tribunals may come to influence, even define, national law and policy. We’ve seen that so often. Two striking examples known to every law student are Gideon v. Wainwright (the right to counsel case) and Batson v. Kentucky (the jury selection case), both instances where rights first recognized by state tribunals under their state constitutions ultimately became bulwarks of national, federal constitutional law. That is true as well of so many administrative innovations that started in our state justice systems.

The Judging Role

I begin a deeper discussion with the courts’ adjudicative role—the tens of millions of common law, statutory and constitutional law issues in state courts throughout the nation.
And what a challenge they present, particularly in this dramatically changing society shaped by breathtaking advances in medicine, science and technology in a shrinking, warming, flattening world. Just think: a suit for equitable distribution of property in divorce when the property is the couple’s frozen embryos; or adoption by the same-sex partner of the biological mother; or application of the words of our centuries-old state and federal constitutions to unimaginable new issues surrounding DNA evidence, telecommunications and 21st century interpersonal relationships.
Yes, quite a challenge all by itself, without the additional pressures of today’s economy. Families, individuals, businesses, under stress and distress, inevitably more often find themselves in court these days—state courts in particular—whether the issues are evictions and foreclosures, or domestic violence and divorce, or criminal charges reflecting the growing despair of daily life. The dockets increase, in number and in complexity. We simply must be sure that our state courts function effectively for the litigants and the public generally.
Add to these difficult law issues the fact that our state courts often find themselves smack in the middle of some of the most contentious inter-branch political issues. In New York today, for example, the governor and legislature just now in state court are litigating the constitutionality of the governor’s appointment of a lieutenant governor; and three cases conserving the constitutionality of judicial salaries have just reached the New York’s high court.
All in all, quite a challenge. Yes, fair and impartial state courts most definitely do belong high on the agenda of the American Bar Association.
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