GUEST APPEARANCE: NY court reform — Redoing onerous structure not easy but necessary

By THE HON. CRAIG J. DORAN

With its 11 separate trial courts and byzantine design, New York state’s court structure is an outdated can-of-worms that’s bad for families in crisis, bad for litigants, bad for business and bad for the state. Our Chief Judge, Janet DiFiore, wants to streamline the court system, and as the Administrative Judge for the Seventh Judicial District, I can confirm that reform can’t come soon enough.

New York’s court system is uniquely cumbersome. We have a Supreme Court, a Court of Claims, 57 county courts, 58 family courts, 62 surrogate’s courts, two New York City lower courts, two District Courts on Long Island and 61 city courts outside New York City. All those layers upon layers accomplish nothing, except to further traumatize suffering people.

Imagine you are going through a divorce, with child support, custody, domestic abuse, and guardianship issues on the table. That’s quite a burden for anyone to carry, and the current court structure only increases your burden and — quite probably — your legal expenses.

You’ll likely end up in family court to resolve the support and custody issues. But the family court judge can’t grant your divorce, so you will have to go to Supreme Court for that. You may end up in county court for the abuse issue. And for any guardianship issues you’ll probably need to go to surrogate’s court as well. Multiple appearances before multiple judges in multiple courts can result in conflicting decisions on similar issues in the same case and cause delays that are not only costly and frustrating, but potentially dangerous when they involve domestic violence or placement of children in crisis.

Or imagine you are in an automobile accident on a state highway, where you’re injured by a reckless driver at an unsafe intersection.

To sue the driver for damages, you’ll go to Supreme Court. But if you also want to sue the state for creating that dangerous intersection, you’ll need to go to a second court, the Court of Claims, which only hears cases against the state. The Supreme Court justice cannot hear your claim against the state, and the Court of Claims judge cannot hear your claim against the driver. And while there is a Supreme Court in every county, only one county in our district — Monroe — has a Court of Claims presence. So, if you happen to live in Canandaigua you can argue your Supreme Court case right in town. But you’ll have to travel to Rochester for the Court of Claims action. That one crash will bring you to two courts in two different courthouses with two different judges who will preside over two different trials.

New York has more trial courts than any state in the nation, and Chief Judge DiFiore wants to bring this state in line with the rest of the country. She is proposing a common sense, streamlined court structure.

Under her proposal, several courts (county, the Court of Claims, family, and surrogate’s) would merge into the Supreme Court, where one judge, rather than four, could handle all the cases now dispersed throughout multiple courts. Further, 65 lower courts would be abolished and combined into a single Municipal Court that would hear minor criminal matters, housing cases, small claims and other small civil disputes.

The Chief Judge’s plan is simple and straightforward. Implementing it is not.

Similar proposals in the past have invariably run into the opposition of long-entrenched, politically-powerful forces with a parochial stake in the status quo. And because the proposal requires an amendment to the State Constitution, it must be passed by the state Legislature not once, but twice, before going to a public referendum.

No matter the obstacles, an effort to reform our court structure must be started in the Legislature when it reconvenes in January. And this effort must be successful if New York is to have a court system that is well-designed to meet all the needs of a 21st century public.

Hon. Craig J. Doran is a New York State Supreme Court Justice and the Administrative Judge for the Seventh Judicial District. In that capacity, he is responsible for overseeing court operations in the trial courts in Cayuga, Livingston, Monroe, Ontario, Seneca, Steuben, Wayne and Yates counties.

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GUEST APPEARANCE: NY court reform — Redoing onerous structure not easy but necessary

The state’s probate courts need to be fixed. Here’s how.

Michael Schless, of Boynton Beach, Florida reaches out and tries to block the camera as his picture is taken as he leaves Superior Court in New Britian Friday. Schless pleaded no contest to felony charges that, as a court appointed conservator, he stole from the savings of John Fitz, of Wethersfield. (Melanie Stengel/Special to the Courant)

By Tom Behrendt  and Sally Zanger

A conservator stole money from her elderly and disabled clients and was prosecuted and sentenced in federal court. Connecticut Probate Administrator Paul Knierim stated that the incident was unfortunate but that safeguards are in place. Judge Knierim suggested that such abuses are rare.

These reported abuses are the tip of an iceberg. The safeguards he referred to do not address the problems.

As lawyers who represent low-income individuals with mental health conditions, we and our colleagues who represent elderly clients too often see court-appointed conservators mismanaging the conserved person’s money. Life savings, however modest, are frequently wasted due to conservators’ ignorance of the Medicaid rules. Conservators may pay a nursing home nearly all of an individual’s assets, making their return home difficult or impossible. Often, these same conservators are quick to move the person to a nursing home without exploring community supports that would allow them to remain at home. In most situations, the Connecticut law requires that a conservator explore such less restrictive options before moving an individual to a nursing home.

But, it does not matter what the law says, because they don’t always follow the law. The law, enacted to protect vulnerable conserved individuals, is frequently ignored by those whose job it is to carry it out.
 

For example, the statute requires most conservators to provide a bond, which is a kind of insurance to protect the conserved individual’s assets from loss caused by fraud, negligence, theft or misrepresentation by the conservator. However, the probate courts rarely enforce that requirement, leaving people like the victims of the federally sentenced conservator unprotected.

When these issues have been exposed in the press over the years, probate court administration explains them away as isolated incidents. That is not the experience of our clients. We see theft, fraud, sloppy accounting and gross mismanagement of the conserved individuals’ funds. Sometimes the sums are smaller, because our clients are not wealthy, but the sums represent everything they have. Or had.

Too often, advocates for people who are elderly and disabled see this pattern: conservators (or their family members or colleagues) are enriched at the expense of a conserved individual under the excuse of making the conserved individual eligible for Medicaid. For example, we have seen that when someone’s home was sold to pay for a nursing home, the sale may be a “sweetheart” arrangement where the conservator is paid for doing the closing and the selling price is such that a colleague, relative or friend of the conservator purchases the real estate and flips it for a large profit. None of that profit benefits the conserved person (or the nursing home or by extension, the state and its taxpayers).

A colleague appealed one such case to Superior Court and won. The judge said that “substantial rights of the (conserved person) were gravely prejudiced” by the failure of the court to follow the statute and by the failure of the attorney to provide zealous advocacy. Despite a request to have him removed from the appointment list, he is still handling these cases.

This kind of self-dealing is not isolated or unique. Many people involved in the probate court system profit by exploiting conserved individuals.
 

It is unconscionable that the probate courts fail to take steps to prevent fraud and mismanagement. It is an embarrassment to the probate courts that it is the federal court and the federal prosecutors, not the probate courts, who have been addressing these problems.

It is absurd that random audits are touted as the solution to these problems when actual incidents that are pointed out are not punished or corrected by probate court judges. The offenders continue to be appointed as conservators and court-appointed attorneys.

Connecticut has a modern, even a model conservatorship statute, but it is too often ignored. The safeguards that are in place did not and would not protect the victims of the federally sentenced conservator. A bond would have protected them. A vigilant probate court might have protected them. Vigilant court appointed attorneys might have protected them. But no one protected them.

A system that required training might have protected them. A system where these cases were heard in Superior Court would have protected them.

Connecticut can choose to protect its most vulnerable residents. It just needs the political will to make the necessary changes.

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The state’s probate courts need to be fixed. Here’s how.

Captain Arthur E. Powell Survived All Theaters of War, But Couldn’t Survive the Mass. Court System

To the Editor,

In honor of Memorial Day and the Greatest Generation of World War II – Tom Brokaw’s phrase – the Merchant Marines, the overlooked veterans, were not recognized as true veterans until January 19, 1988. The war ended on August 15, 1945.

A local Merchant Mariner Arthur E. Powell of Wakefield, Mass. entered the service in October of 1940 as an able-bodied seaman after graduation from the Wakefield High School class of 1940.

In harm’s way, in heavy combat carrying ammunition and supplies to every theater of war in Europe and in the Pacific, Arthur Powell rose to the rank of Lt. Commander.

On April 15, 1946 he became the youngest sea captain in the history of this country at age 24, one of the Greatest Generation.

In 1949 he returned home to establish a successful business and engaged in real estate acquisitions. In 1973, the Melrose-Wakefield Trust Co., taken over by the Shawmut Bank, called in a line of credit and filed suit in Malden District Court to collect on it.

In subsequent court actions and judgments that we felt were unfair and ultimately illegal, we lost all of our possessions including our home, cars and even our clothes.

The outline of the case can be reviewed in the December 2015 issue of the Boston Broadside.

Captain Arthur E. Powell survived all the theaters of war, but couldn’t survive the Mass. court system. He died from stress on April 21, 1978. He was buried NAMELESS, HOMELESS, and PENNILESS as a result of his civil rights and due process being stolen without a hearing or trial to defend his property rights.

Today I am still fighting to have this injustice resolved and the records corrected to show the truth of what occurred; to have a wrong righted even after all these years.

I have followed your articles of Marvin Siegel’s case and express my heartfelt condolences to his daughters.

Our case is very similar with missing papers, false statements of attorneys, undocketed motions and defendants having to act pro se with no knowledge of the law.

Hopefully, the court will finally act on the law and restore Arthur E. Powell’s name and constitutional rights to due process and his property returned to his family as the law allows.

By his wife of 30 years,

Norma Powell,  P.O. Box 25, Wakefield, Mass.


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Captain Arthur E. Powell Survived All Theaters of War, But Couldn’t Survive the Mass. Court System