During the 2002 legislative session, the Assembly Judiciary Committee advanced legislative proposals which demonstrate the myriad issues under our jurisdiction. These range from bills to allow guardians of mentally retarded individuals to make medical decisions on the withdrawal of life sustaining treatment to measures changing the statute of frauds, ensuring that New York’s children receive needed health care coverage, aiding the administration of justice in localities and improving civil procedure. We also reviewed the judiciary budget which was submitted by the Office of Court Administration and approved by the Legislature. Through Assembly efforts, approximately $4.6 million was added to the state budget to fund civil legal services.

Unfortunately, we were frustrated by the failure to resolve the 18B assigned counsel and law guardian crisis. Once again, no agreement was reached on increased rates for the attorneys who represent children and indigent adults in family court and criminal matters. The crisis threatens New York’s ability to live up to its constitutional and statutory commitments to insure proper legal representation. Increasing 18B rates will be a main priority of the Judiciary Committee in 2003.

After the September 11th terrorist attacks, the Assembly took immediate steps to address needs arising out of the tragedy. Chapter 73 of the Laws of 2002 (A. 11290; Rules/Silver, Weinstein, Glick, et al), enacted the September 11th Victims and Families Relief Act. With regard to estate law the Chapter provided: an indemnity clause for personal representatives for actions taken by them reasonably and in good faith; families may commence probate in any county in the state; commissions for fiduciaries shall not include any portion of the Fund awards; and a statement of legislative intent that domestic partners of victims of the terrorist attacks be eligible for distribution of awards from the Fund. With respect to workers’ compensation, the Chapter provided that insurance carriers cannot assert liens against any Fund awards, nor can carriers terminate workers’ compensation benefits because an individual files a claim for an award from the Fund. Lastly, it provides that awards from the Fund are exempt from all state and local taxes.

Chapter 672 of the Laws of 2002 (A. 9937; Kaufman), ensures that charitable donations to families or victims of the September 11th terrorist attacks cannot be used to reduce any subsequent award, judgement or settlement.

The "September 11th Victims and Families Relief Act" was enacted by the legislature following a public hearing co-sponsored by the Assembly Judiciary Committee on compensation and charitable donations to victims and their families. From left to right: Assemblymembers RoAnn Destito, Helene Weinstein and Margaret Markey.

Chapter 500 of the Laws of 2002 (A.8466; Luster) enacts the "Health Care Decisions Act for Persons with Mental Retardation." Since under current law one must be mentally competent to order the termination of life support, persons with mental retardation have been disqualified from making health care decisions which are essential to humane and dignified treatment. This law allows legally appointed guardians of mentally retarded individuals, often family members, to make medical decisions, including withdrawal or withholding of life sustaining treatment, while safeguarding the rights and best interests of the patient.

Chapter 312 of the Laws of 2002 (A.4739; Towns) replaces the phrase "natural parent" with "biological parent" with regard to adoption proceedings under the Domestic Relations Law, Insurance Law, and Surrogate’s Court Procedure Act. This change was urged by adoptive parents.

Chapter 409 of the Laws of 2002 (A.10662; Weinstein) clarifies the types of proceedings over which the Family Court has jurisdiction and repeals the section of law that allows modification of an out-of-state custody order by a New York court upon a showing of a mere change in circumstances. The recently enacted Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) only allows modification by a New York court if the out-of-state court no longer has jurisdiction or has declined to assume jurisdiction.

Chapter 71 of the Laws of 2002 (A.11200; Weinstein) codifies 1993 court rules which prohibit the foreclosure sale of a matrimonial litigant’s primary residence, when the mortgage being foreclosed was given to a lawyer to secure the payment of legal fees in a matrimonial action. This closes a potential loop-hole for liens and mortgages given prior to the effective date of the court rule.

Chapter 632 of the Laws of 2002 (A.11696; Gunther) validates certain marriages performed by Jerry Heller who improperly held himself out as a rabbi and therefore lacked the authority to solemnize marriages. It deems these marriages valid and legal, thus preserving the sanctity of several hundred marriages in New York State.

Unfortunately, a number of measures of importance to families and children passed the Assembly but failed to pass the Senate. One such measure requires the 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 (A. 7343, Weinstein, John et al).

Current child support law requires the court to consider whether health insurance benefits are available to parents and direct them to obtain health care coverage. However, the law provides few details as to how health benefits are to be obtained. Chapter 624 of the Laws of 2002 (A. 11197-A; Weinstein) fills this gap by setting forth the steps courts must follow in determining parental responsibility for health care coverage. It also provides that where private health insurance coverage is unavailable to parents, the court must order parents to seek coverage through New York’s Child Health Plus program or Medicaid.

In addition, the Assembly passed a bill which the Senate failed to act upon to provide equality of support for children born out of wedlock. It would end the practice of allowing often inadequate agreements between the mother and putative father that then bar other remedies for the support and education of the child (A. 4567; Weinstein).

Legislation was enacted this session (Chapter 219 of the Laws of 2002 (A 11414-A; John) to create a pilot program in the Fourth Judicial Department authorizing judicial hearing officers (JHOs) in family court to issue ex parte orders of protection in response to petitions filed by domestic violence victims. The 3-year pilot program will relieve the delays that are common in Monroe and Erie County due to increased family court caseloads. Such delays can be dangerous, even deadly, for domestic violence victims and their children. An ex parte order issued by a JHO will be temporary and last only until the return date of the case. The new law requires training for JHOs and an evaluation report to the Legislature.

Through the efforts of the Assembly, $4.6 million was added to the state budget to fund civil legal services, including $359,000 to help victims of domestic violence get their day in court. During 2001-2002, delayed state funding forced civil legal services programs to reduce staff and curtail programs, despite the growing demands for services due to the poor economy and the aftermath of September 11th. New York City providers were especially hard hit, particularly those located near Ground Zero.

On June 28, 2002, the Assembly overwhelmingly passed a bill, A. 11862 (Rules Weinstein, McEneny), to increase rates for law guardians and assigned counsel to $75 per hour for both in court and out of court work, except for counsel in misdemeanor cases, for whom the rate was fixed at $60 per hour. The new rates would have gone into effect in April 2003. To help the localities which are responsible for paying assigned counsel to cover the fee increases, the Assembly bill created a dedicated funding stream — the Indigent Defense Services Fund. The fund would have received proceeds from a $35 fee on traffic scofflaws, an increase in the fees collected by OCA for criminal history searches and use of a previously enacted $15 increase on index numbers. Unfortunately, the Senate failed to act before adjourning.

The assigned counsel crisis has been worsening because the current rates set in the mid-80’s are woefully inadequate and threaten New York’s ability to live up to constitutional and statutory commitments to provide proper legal representation. The number of attorneys actively taking court assignments, particularly in New York City, is diminishing dramatically. This has resulted in repeated delays in court appearances and hearings, increasing difficulty in securing counsel to staff arraignment parts in family and criminal courts, or to assist domestic violence victims in need of immediate relief, and overall reductions in the level of experience of counsel being provided for indigent litigants and children.

The Assembly Judiciary Committee considered and reported many proposals designed to improve civil procedure within the courts. The following proposals are now law, having passed both houses of the Legislature and been signed by the Governor.

In 1999 the Office of Court Administration worked with the Legislature to enact a three-year pilot program to allow filing by facsimile and electronic means in certain civil actions in certain locations. The OCA submitted a report to the Legislature in April analyzing the effectiveness of the pilot and making recommendations for possible expansion. The Legislature agreed to expand this program to commercial actions in Albany and Nassau counties, and extended the pilot for one year, until July 1, 2003. (Chapter 110 of the Laws of 2002, Rules/Weinstein).

Also enacted to enhance civil procedure were: Chapter 74 of the Laws of 2002 (A. 7297, Gianaris, Weinstein), which requires the original petition in a summary proceeding to recover possession of real property to be filed with the clerk of the court, rather than a ribbon copy; Chapter 595 of the Laws of 2002 (A. 11678; A. Cohen, Weinstein), which provides for the form of appellate briefs and appendices; and Chapter 334 of the Laws of 2002 (A. 10554; Weprin), which is a housekeeping amendment relating to Chapter 473 of the Laws of 2001, making changes to the method of commencing a special proceeding.

Chapter 430 of the Laws of 2002 (A.5658 Lentol) creates an attorney-client privilege between an attorney and the personal representative of an estate. This privilege will encourage representatives to seek legal advice by ensuring such communications will be protected from disclosure.

Chapter 475 of the Laws of 2002 (A.10756; Weinstein) streamlines the compulsory accounting procedures and remedies used by the surrogate when faced with a fiduciary representative who fails to respond to a court order to account for the estate’s administration. This will protect beneficiaries by allowing for a faster transfer of the estate assets.

This year to provide equity, the Legislature ensured that jurors serving in local village and town courts are paid the same rate as jurors in any other court in New York — $40 per day . Under current law, jurors are paid what the local government deems appropriate, if at all. The state will assume responsibility for these costs instead of the local municipal ity. Chapter 302 of the Laws of 2002 (A.10754; Cahill). Another proposal effecting all jurors passed the Assembly but failed to pass the Senate. It created additional remedies to protect jurors from employer discrimination or retaliation on account of the juror’s absence from work for jury duty. (A. 218; Kaufman). Another measure to protect tenants’ rights passed the Assembly but failed to pass the Senate. It would have enhanced the ability of the district and city courts to provide timely relief in landlord/tenant disputes and aid in the enforcement of local housing codes. It provides these courts with the same equity jurisdiction possessed by the New York City housing court. (A.11514; Destito).

Chapter 286 of the Laws of 2002 (A.11106A; Weinstein) updates the statute of frauds by including trades of indebtedness and related causes of action within the existing exception for qualified financial contracts. It will permit qualified parties to enforce oral agreements regarding a swap of these items over the phone with a recording or other proof substituting for the written contract. This is currently the rule for other commodities such as gold and currency. Chapter 609 of the Laws of 2002 (A.11497A; Sidikman) creates a uniform certificate of proof in real property transactions for use by notaries both within and outside New York. Currently there are two forms.