It is not surprising that Justice Tanya Sirago, Executive Director of the NYS Magistrate's Association would oppose any attempt to consolidate the justice courts. That is what the SMA has done every time there is any discussion of consolidating or replacing the justice court system. There are more than 1,200 local criminal courts, referred to as 'justice' courts, presided over by more than 1,800 town and village judges. More than two third of those judges are not lawyers.

In 1983, in People v. Charles F. then associate Judge Kaye wrote, in dissent, that "…a lay person regardless of his educational qualifications or experience is not a constitutionally acceptable substitute for a member of the Bar." In North v. Russell Supreme Court Justice Stewart opined that the right to counsel becomes meaningless if the person hearing the case is incapable of understanding the arguments being made—a 'hollow mockery' is how he put it.

The complexities and technical understanding of criminal procedure, evidence and substantive law that Judge Kaye observed in 1983 that prevented a lay judge from providing an accused with due process have, in the last 36 years, only become far more complex and technical. The new bail amendments will now, for the first time, require a judge to justify in writing, or on the record, every bail decision. They will have to explain, in legal detail, why they imposed bail or restrictive conditions. In the past, their decisions could be explained simply as accepting the recommendations of the DA. These town and village judges will now have to monitor and enforce discovery compliance. They have to deal with family offenses and orders of protection, DWIs that have consequences for the next 25 years, landlord-tenant matters, bail and discovery—all with 12 hours of training annually.

In 2008 the Dunne Commission issued its report, "Justice Most Local" which essentially found the current system constitutionally unacceptable. It would have preferred a district court system with lawyer-judges presiding. Unfortunately, the Dunne Commission also found there was no political will or ability to enact meaningful reforms. Faced with that reality, it offered modest changes to improve the existing system, many which the SMA opposed from within (there were several SMA officers added to the commission) and from without, disavowing the report as soon as it was published.

In 2019-2020 there is a new political reality. While the attorney general suggests court consolidation, NYSACDL believes that consolidation does not go far enough. The only constitutionally acceptable system of providing due process in local criminal courts is to create municipal courts, county by county, presided over by lawyer-judges.

Gregory Lubow

Chair, Justice Courts Committee New York State Association of Criminal Defense Lawyers