New York County Lawyers’ Association Report and Resolution in Support of Housing Court Ten-Year Reappointment Terms

14 Vesey Street

New York, NY 10007-2992

New York County Lawyers’ Association

Report and Resolution in Support of Housing Court Ten-Year Reappointment Terms

This Report was approved by the Board of Directors of the New York County Lawyers’ Association at its regular meeting on November 8, 2010.

In 1992 and 1993, the Fund for Modem Courts conducted studies of the Housing Court. Based on the Fund’s work, the New York County Lawyers’ Association (NYCLA) Committee on the Judiciary produced a report entitled “Review and Recommendations Pertaining to the Reports of the Fund for Modem Courts Concerning the Housing Court.” The NYCLA Board of Directors adopted the Committee’s Report on March 13, 1995. Paragraph eleven of the Report states, “The Housing Court’s independence would be strengthened by giving Housing Court Judges the same ten year term as is accorded to the Judges of the Civil, Family and Criminal Courts. A ten year term would also help to retain judges of note who now seek election to the Civil Court, which provides a less frenzied workload, higher salary and greater judicial independence with its ten year term. A ten year term would lighten the interviewing workload of the court’s Advisory Council, allowing its members time to review judicial candidates more fully and to carry out their other assigned statutory duties, including issuance of an annual report.” In 2008, the Housing Court Subcommittee of NYCLA’s Task Force on Judicial Selection wrote a “Report and Recommendations on the Housing Court,” which was adopted by the Board on September 8, 2008, in which it stated again that “serious consideration should be given to increasing reappointment to a longer term.”

The conditions that led to these two recommendations continue to exist today, and continue to affect the Court’s independence and effectiveness. NYCLA continues to believe that a ten-year term is appropriate and therefore endorses the attached Housing Court Resolution seeking changes in the Civil Court Act to provide for ten-year terms for Housing Court Judges after an initial five-year term.

There are now 50 Housing Court Judges. The increase in the number of judges has, obviously, increased the workload of the Advisory Council, which now has to review, on average, ten applications for reappointment every year. This is in addition to the Council’s review of applications for new appointments to the Housing Court. On each application for reappointment, the Advisory Council must review a written submission, investigate and conduct both a subcommittee and full Council interview of the applicant. Advisory Council members are volunteers and the Court has been unable to provide the Council with staff. As a result of this workload, the Advisory Council has not been able to perform other parts of its statutory duties, including monitoring the work of the Housing Court and preparing an annual report. Currently, 28 of the 50 Housing Court Judges have been on the bench for ten years or more. The most recent reappointment of these 28 judges would not have been necessary if the term on reappointment were ten years rather than five.

In the last few years, the Advisory Council has had difficulty attracting an appropriate pool of candidates for new appointments. It has repeatedly extended the deadline for applications to be submitted and increased its outreach to potential candidates. This effort has also increased the work of the Council. While this difficulty in attracting applicants is certainly partly the result of stagnant judicial salaries, of which the Housing Court Judges have the lowest in the State, it is possible that longer terms and greater job security would increase the attractiveness of the job to new applicants.

Experience over the last two decades shows that the reappointment process takes about a year. In fact, in its 2008 Report, NYCLA urged the Court to make reappointment decisions within one year. Housing Court Judges thus spend 20 percent of each term – one year out of every five – actively involved in the reappointment process. During the reappointment process, attorneys who regularly appear before the Court and advocacy organizations politically active on landlord and tenant issues are solicited for input on each judge. Advisory Council members, and those claiming connection to or influence with Advisory Council members, who appear in Housing Court, have been known to make a point of their connections when appearing in Housing Court. As a consequence of these difficulties, the court system’s Advisory Committee on Judicial Ethics has been obliged to issue three separate opinions in the last few years on the issue of when a Housing Court Judge must or should recuse when a member of the Advisory Council appears before the Judge in the year leading up to the expiration of the Judge’s term. See Opinion 03/93, issued in January 2004, and Joint Opinion 03/93/04-32, issued in June 2004. While the reappointment process is necessary, the fact that it goes on over 20 percent of the Housing Court Judges’ term has an obvious impact on judicial independence, as was recognized in the 1995 NYCLA Report.

We note that while the experience requirement for appointment to the Housing Court is five years rather than the ten-year requirement for other courts, after a five-year term a Housing Court Judge would, in fact, meet the same experience requirement that other judges have for appointment or election. Further, while Housing Court Judges are not subject to the jurisdiction of the Commission on Judicial Conduct, an articulated and formal disciplinary process exists within the Unified Court System. This disciplinary process has been utilized and is a safeguard against judicial misconduct. We believe that if a longer term on reappointment is adopted, there is a sufficiently developed procedure to impose discipline where warranted. Finally, while the Commission on Judicial Conduct does not have jurisdiction over Housing Court Judges, the Code of Judicial Conduct does apply. Given these factors, NYCLA believes that lengthening the reappointment terms of Housing Court Judges in the manner proposed would strengthen the independence of that court.

Because of NYCLA’s long-standing interest in the administration and functioning of the Housing Court, recognized in its past reports, and because the current proposal is limited in scope, has no budgetary implications, and appears therefore to be politically achievable at this time, NYCLA has adopted the Housing Court Resolution on Ten-Year Terms.

This report was prepared by the NYCLA Task Force on Judicial Selection, Hon. Margaret Finerty and Susan B. Lindenauer, co-chairs, and the Housing Court Subcommittee, co-chaired by Hon. Jean T. Schneider and Hon. Michelle D. Schreiber, of the NYCLA Judicial Section, co-chaired by Hon. Helen E. Freedman and Hon. Joan A. Madden.

14 Vesey Street

New York, NY 10007-2992

(212) 267-6646.www.nycla.org

Resolution in Support of Housing Court Ten-Year Reappointment Terms

This Resolution was approved by the Board of Directors of the New York County Lawyers’ Association at its regular meeting on November 8, 2010.

WHEREAS the New York County Lawyers’ Association has a long history of commitment to an independent judiciary, and firmly believes that only an independent judiciary, free of pressure from interest groups and the media, can discharge its obligation to serve the public effectively, and

WHEREAS the New York County Lawyers’ Association also has a long-standing interest in the administration and functioning of the Housing Court in New York City, and has long recognized the vital role that the Housing Court and its dedicated Judges play in New York City, and

WHEREAS the nearly year-long reappointment process faced by Judges of the Housing Court every five years has a clear potentially negative effect on the independence of these Judges, and

WHEREAS the time, effort and expense necessary to review the qualifications of 50 Housing Court Judges every five years are a drain on the resources of the Housing Court Advisory Council and on the Court itself, and

WHEREAS the Board of Directors of the New York County Lawyers Association on September 8, 2008 approved a Report recommending that serious consideration be given to extending the term of Housing Court Judges from five years to ten years,

NOW THEREFORE, IT IS RESOLVED that the New York County Lawyers’ Association supports amendment of Section 110 (i) of the New York City Civil Court Act to provide that Housing Court Judges be reappointed for a term of ten years after an initial five-year term, and

BE IT FURTHER RESOLVED that the New York County Lawyers’ Association will encourage other bar associations to support this amendment.