THE OPEN MIND
Host: Richard D. Heffner
Guest: Judge Judith Kaye
Title: Justice and the Courts
I’m Richard Heffner, your host on The Open Mind. And I think that as we record our program today I can legitimately celebrate the fact that I began to host and produce this series in 1956, 46 years ago this month.
Indeed, I can also celebrate the fact today that though last time it took me all of six years after Governor Mario Cuomo appointed Judith S. Kaye Chief Judge of the State of New York to inveigle her into joining me here on The Open Mind, this time it took me only three years to get the honorable lady to return.
And I look forward to shorter and shorter such periods of judicial deprivation in the future. The fact is in a recent profile of her in the Judges’ Journal, Judge Kaye noted that “the thing I hate most is the phrase ‘if it ain’t broke, don’t fix it’.”
Which endeared her to me even more for movie industry lobbyist Jack Valenti often glowingly attributed that quote to his hero Lyndon Johnson, to which I would reply by insisting that my favorite President, Abraham Lincoln, was much more on target on writing that “when new views prove to be true views, I shall adopt them”.
And, to be sure, Judge Kaye had many new and true views about the Courts, about justice in America when she first came to preside over New York’s mammoth judicial system. And I would ask her today which she has actually been able to put into effect, and which remain for other days and other battles, and has it been a battle. Has it been?
KAYE: Yes. And no. That’s a lawyer-like answer, I think. In many respects the change has been remarkable, and I am so pleased by it. On the other hand, I don’t think anything we embarked on is complete, not anything. When I became the Chief Judge back in 1993 our first initiative was in the area of matrimonial reform. Will that ever be accomplished? Will that ever be complete? I doubt it. We moved briskly into jury reform, certainly an unfinished subject. Much to be done in jury reform. Things are a lot better, there’s no question about it, and I love the mail, the calls, the response from people who have served on juries; jury service I call it, not “jury duty”. Much, much better. But still a battle in many respects. And still a lot left to be done. Domestic violence, making the courts more responsive to the scourge of domestic violence. A lot to be done. A lot accomplished. So I would say I’m energized, that’s what the past nine plus years have done for me.
HEFFNER: Well, you’re always energized …
HEFFNER: … I, I know that.
KAYE: Well, I’m more energized.
HEFFNER: Well, let, let … by the way, what’s that, that pin that you are wearing?
KAYE: This is a brand new pin. I had a call just the other day from the Chief Justice of Oklahoma to tell me that some school children in the state of Oklahoma had decided to raise money and fund a fire truck for the City of New York. And the truck was being driven here, that it would be here in days. And I dropped down today and saw the truck. The truck is there. And so are a lot of Oklahomans. One of them pinned this on my lapel.
HEFFNER: And this is …
KAYE: It’s unity. Unity … and in fact we are just now organizing a conference on coping with disaster in the courts. We’re doing it together with Oklahoma, with Pennsylvania, with the District of Columbia, with Virginia. So this is just another sign, this is something that has sprouted after September 11.
HEFFNER: Coping with disaster … now you’re referring to the physical, administrative accommodation to courts closing or buildings being destroyed, and members of your own staff injured, killed.
KAYE: Well, certainly that. And that is … that’s the tangible part. But then there is the tremendous emotional part …
HEFFNER: What do you mean?
KAYE: … well, the loss … we lost three Court officers. We feel that very much to this day. All of our Court officers, just like the police and the firefighters, they all wear black ribbons on their lapels. We just never can forget that they’re in mourning.
HEFFNER: For their lost comrades.
KAYE: They’re in perpetual mourning. Yes. And there’s always something. Something every day reminds us of the emotional toll. As well as the physical toll. For example, we’re grappling with new security measures in the courts … today. As we speak. Eight months later. Eight months after September 11, we have to think about how to have better security in our courts. We’re making everybody come through magnetometers … that did not sit well with the Bar. So we have been hard at work finding ways to enable lawyers who come in and out of the courts many times a day not to have to stand on line for hours, pass through big lines. So, there’s always something that relates to September 11 in addition to the physical, the emotional … there’s always something that brings us back to September 11.
HEFFNER: Well, what about the legal …
KAYE: And the legal. Of course, the legal …
HEFFNER: What do you think is going to be ultimately the impact of 9/11 on our …
KAYE: Well, I, I …
HEFFNER: … system of law.
KAYE: On our system of law. I’ve just come from a talk, in fact, by Floyd Abrams, he spoke about the press and the, the need for us to remember always that that this is a nation that reveres free speech, free press. How important that is. And he gave that talk to an audience of lawyers and judges. I think it was a particularly fine message because, of course, we’re all so concerned with security, with national security, and court security and state security, and we can never lose sight of the values that make this nation great. So I think we have yet to see … had not talked … I had talked about the physical and the emotional, and you’re quite right, the legal weighs heavily. We don’t know yet what we … what new challenges will be. Other than the fact that we’ll definitely have them.
HEFFNER: What do you think is the direction that our legal institutions will take now. You mentioned Floyd’s First Amendment concerns … free speech, free press, free movement concerns. Our ancient values. But we’re also … we also always have been very concerned about defending ourselves, as in the great wars when we have mobilized and done what had to be done. That’s what people are talking about doing now. What do you think? What do you think is going …
KAYE: Real challenge … what do I think? Real challenge for the courts. I believe in us as a nation, as a people. I think these values are so embedded in us that we will adhere to them. And revere them, and that they will ultimately prevail. Although there will … it’s frightening, it’s scary. And we certainly … for me … this was the most direct challenge, physical challenge I have had in my life … the events of September 11. And you certainly don’t want that ever to happen again for yourself, for anyone you know, for your children and grandchildren. And so, you’re concerned about legitimate fears. On the other hand, I, I think … I saw in our own response … in our own court response how people rose to the occasion. How they were so fearful for their families. They wanted to know where everybody was, they were very concerned about the loss of loved ones. And yet, they wanted to get the courts open, they wanted to be sure that we were there rendering a public service; that we were there to serve litigants, we were there to help lawyers. We wanted the business of American justice very, very much to continue without missing a beat.
HEFFNER: And it did, pretty much.
KAYE: People did that. It was … Richard, it was just incredible that people did that. Our courts here in New York City, as you know, in Manhattan, are right in the shadow of Ground Zero. There was smoke, there was smell, there were all kinds of threats. There were fears. And yet, people were there. They were there red-eyed, they were there on the bench, they were on the steps of the courthouse guarding and securing and they … it was symbolic as well as practical.
HEFFNER: I’ve read what you’ve written that beyond that there were people who had been called to jury service …
HEFFNER: … who wanted to stay, who wanted to come, who didn’t want 9/11 to be an excuse.
KAYE: Well …
HEFFNER: To participate.
KAYE: Well, we tried to get that message out … the people just didn’t have to come in large numbers and they should call. And we had special numbers and all. And one day I was down there … I, I don’t usually get to address jurors to discharge them when their service is ended. But I was down there one day the Commissioner of Jurors said, “well, there are, like, a hundred or so people here. We can’t possibly use them, why don’t you tell them they can go home”. And this was just days after September 11 and I said, “I have a very happy message for all of you. You can go home.” And they moaned and groaned. I never heard anything like that. So, I, I think if you ask me about the, the values of, of New Yorkers and Americans and the like. My chips are with them. I think …
HEFFNER: The same thing would be true, I gather, if I asked you about the values of the jury system, itself.
KAYE: [Laughter] Well …
HEFFNER: The last time you were here, you promised that you would answer questions. So you would address yourself to your own feelings about the jury system.
KAYE: I am a great believer in the jury system. So, fire away.
HEFFNER: Well, it’s not a matter of firing away, but certainly there have been those people who have been extremely critical of the results, let’s say, of the jury system. I’m not talking about its discomforts, which you have done so much to minimize, I’m talking about the notion that you can’t really find impartial people, that you can’t find people who both are part of the community in which an accused person lives and who can be impartial in making judgments.
KAYE: Well …
HEFFNER: Better to leave it to the judges.
KAYE: MmmHmmm. Well, you said a few moments ago … you reminded me and others that … how much I hate “if it ain’t broke, don’t fix it”. People are critical. That bothers me, too. That … people are critical of everything. I can’t think of a subject on which there is unanimous praise. Not a single subject. People are critical of everything. I’ve often said I was going to embroider a banner especially about the court system that said, “everything stinks, don’t change a thing” because people are critical of everything until you start to change it, and then they say, “no, no, no, no, don’t touch it. Don’t change it”. So I recognize the criticisms, I do. And many of them are valid criticisms and many of the criticisms we are addressing. But I can’t think of a better system and I, I think … I, I have great belief in the jury system. And I think it works.
I’ve seen it as a litigator. And I’ve seen it as a Chief Judge. And I just can’t think of a better idea. The abuses should be corrected. And you’re quite right about the comfort and all. That’s not to be disparaged. People come to give public service, to do their duty as citizens, what we used to do. You know, locking them in a room for two weeks, never really calling them, using them, hardly thanking them or noticing them. Terrible. We can’t do that. We, we … it’s, it’s for us to make the system more efficient so that people are called, their time is well utilized and they are given comfortable surroundings. Isn’t that the least we can do? Of course. And so we’ve tried to do that. We keep our restrooms clean. I go into the Men’s Rooms and the Ladies Rooms every now and then to check them out. But, but I say these are the amenities and we must fix the amenities. And especially today, where … people are busy. They need work stations and telephones and that sort of thing. And we can accommodate them. But then we need to be sure that their time is utilized well. And that’s the job that’s ahead.
I feel pretty good about the amenities piece. And I think the last time we spoke I didn’t feel so good about that. Feel better about that. We’re using people much more efficiently. Calling on them less frequently, for shorter periods, they’re sent out for examination … the time that they’re there and now we’re going on to a call-in system around the state so that you will now will be able to call in in the morning and know whether you’re needed or not. Which would be terrific.
HEFFNER: Has that been working well, where it is in place?
KAYE: Yes. We’ve had a harder time in Manhattan. Is the truth. But in all other parts of the state, it’s working really well and why Manhattan? Why Manhattan?
HEFFNER: My question.
KAYE: I knew that. And I guess one simple answer is that our demand, our need for juries is so great …
KAYE: … that we just can’t afford any risk. You know … it’s the parties, the court, if everybody’s ready to go forward, we simply have to have people there to serve on juries. So there’s a reluctance to go whole-heartedly with the call-in service. Although we’re, we’re getting there. I’m just not going to stop pushing. We are, we are reaching that point.
HEFFNER: Judge Kaye, how do you account for the fact that there have been some elements in the press that always seem so willing to take on the court system. Why is it such a target?
KAYE: Well, I guess all institutions are targets.
HEFFNER: Okay, true.
KAYE: Number one. Number two, and maybe the thing I feel worst about is how little I have been able to improve public education about the court system. I, I feel I have made no improvement. And I, I … the easy thing is to say, in answer to your question that when the press lambastes us, sometimes we deserve it. Very often we don’t. And very often …
HEFFNER: Is that that banner that you’re going to make?
KAYE: [Laughter] No, this goes into another category. This is another banner. But I, I just feel we have not made good inroads in a communication with the public. And improving public understanding of the courts. We regrettably do not have a well informed citizenry about how the courts really operate, and that’s ironic in a day when the media are drenched with, with law stuff, you know day and night there’s law stuff. But I don’t think people really understand how the courts operate. And I, I’m not willing to put all the blame for that on the press, but I, I’m willing to share the blame with them.
HEFFNER: Were we better educated about our court system in earlier generations? Did the schools do a different job?
KAYE: Probably not.
KAYE: Probably not. I think … I remember like Civics was, boring.
KAYE: Right? So boring. I, I think we can do a lot better educating school children and should do that. And we’ve been trying to do that. And that’s been an initiative of ours. One where perhaps we have made a little bit of headway. The thought is if we can’t do better with the present generation of adults, let’s try for the next generation. So, we have tried some school programs. But I don’t know. I just don’t know why we can’t succeed in getting a better informed public. So, part of my answer to your question is, I think the press often is wrong about us.
HEFFNER: Why would it be? What, what are the motivating factors here?
KAYE: Well, I don’t think it’s a deliberate attempt to target us. I think by and large we have a cynical public and people like to believe, everybody likes to believe the worst and read the worst. What leads the news every day?
HEFFNER: Yeah. Crime …
KAYE: You know …
HEFFNER: … madness …
KAYE: That’s right.
HEFFNER: … etc. …
KAYE: People like that. That, that is news. So and there are bad things that happen in the courts. The courts are huge. The courts of the State of New York … we’re nearly 4 million cases a year. We have, we have twelve, thirteen hundred judges. There’s a lot you can say about us. Unquestionably. And somebody always loses, too, in a litigation. It’s hard to find two sides who come out saying “boy, this is a great place, I can’t wait to get back in here again. Next time I get a divorce, I’m really looking forward to being in the New York State Courts. My business is failing, I’m just so happy to be here in the New York State Courts.” So there’s a lot to be critical of. Unquestionably. But I think better public understanding is possible. I have nearly five years left in my term. This is right at the top of my list.
HEFFNER: And how do you go about bettering, increasing public understanding.
KAYE: Well, one thing I have learned in now nine years, a little over nine years as Chief Judge is you never turn your back on anything, because it goes back to the way it was. However much you feel you’ve done something and that it’s really in place as soon as you look away, it just goes back to exactly the way it was. So you just keep re-visiting the same good ideas again and again and again. I have court re-structuring at the top of my agenda. This year I have a raise in 18B fees at the top of my agenda.
HEFFNER: What are they?
KAYE: Oh, those are the fees paid to assigned counsel, which are abysmally low. But, but my court restructuring that’s been at the top of my agenda all these nine years. To say nothing of the Chief Judge before me who had it at the top of his agenda. To say nothing of the Chief Judge before him who had it at the top of his agenda as well. But I think we’re making real progress. And, so the answer to you question about what I’m going to do in the next five years is for every good idea that I think we have, and I think public education about the courts is a very good idea, I’m just going to keep returning to it again, and again and again. And we have several good programs. We are in the schools more. We are …
HEFFNER: Are you?
KAYE: Yes, we have mentoring programs. We have Intern programs. We are trying as best we can, and we’re just going to keep at it. We have public information officers now, which I think is a very good development. Very good public information officers trying to get news out about our cases, our decisions. And I … so we’re just going to keep at it.
HEFFNER: You see I’ve always felt that if ;you would devise a means of cloning yourself …
HEFFNER: … so that you could get around the State more …
KAYE: Not everybody would agree with that.
HEFFNER: Well, I … come on, now. Because what you’re referring to is the, is the reflection of that attitude of “if we can report something wrong, something bad, something negative, we’ll … we’ll do so.” What about the State Legislature. Have you been able to get from that other branch of government, from the two other branches of government … what you need? Not what you want, but what you need.
KAYE: I have, I have no complaint. And I … these have been very good years for the judiciary. Principally, the Legislature, the Executive have been understanding about our budget. And except for this re-structuring which I tell you I return to time and again, I think we have fared well in Albany. We’ve …
HEFFNER: What is the re-structuring, by the way, basically.
KAYE: [Laughter] Well, in the State of New York we have what we call a Unified Court System which you would say …
HEFFNER: Sounds good.
KAYE: … well it sounds like the courts are unified, doesn’t it? And so ;you would assume that you could just go to like one trial court and that your matter would be taken care of. You wouldn’t know from hearing Unified Court System that we have a Criminal Court, a Family Court, a Civil Court, a Supreme Court, a Surrogate’s Court and on and on and on. Nine, maybe 11 separate courts. And that wouldn’t be so bad for you if you wound up in the right Trial Court, one trial court. But if you were, for example, litigating a matrimonial case, and you had child custody issues and visitation issues, you could be in the Supreme Court, you could be in the Family Court, you could be in the Criminal Court if there was some domestic violence. What we’re trying to do is to, truly, to unify our Trial Courts, to make life a little bit better for people already in distress. And some of the stories are incredible.
HEFFNER: But why hasn’t it happened?
KAYE: Well, that’s a good question. Because change is very difficult, and I, I am firmly of the belief that this will happen. And I just intend to keep going back and back to it until it does. And this year I think we have an especially good, specially good claim to change. This year we have re-organized our proposal so that it is targeted on domestic violence, family, children, so at least we can help those people from being whip-sawed among various courts. And get all of their matters into a single court before a single judge. We hear so many stories of families touched by domestic violence. And you would be amazed to know how many are … maybe you wouldn’t … but families that are in Criminal Court on a domestic violence charge; in Family Court on visitation and custody issues; on Supreme Court on matrimonial issues. And there’s nobody on earth who knows the jurisdictional barriers better than a person who’s intent on making trouble for the litigant.
HEFFNER: But Judge Kaye, it’s all so logical. To unify the Unified Court System. Where does this have to take place? In the Legislature?
KAYE: it does because our State judiciary is organized under the State Constitution. And there’s the judiciary article of the State Constitution which sets the limitations on all of our courts. So we need a Constitution Amendment. A Constitutional Amendment requires the vote of two successive Legislatures, and then the vote of the people. You’ve seen Constitutional Amendments many, many times. I mean this is amending our State Constitution … it’s not like amending our Federal Constitution In fact, we had an Amendment only last year, when our State Constitution, I’m happy to say was gender neutralized. That required two votes of the Legislature. Two successive Legislatures and a vote of the people. And that’s what we need, so right now we’re …
HEFFNER: How close have you come to it?
KAYE: Well, I feel we’re coming closer and closer. I feel we’ve got a good plan, I’m very optimistic. To be the Chief Judge, the two essential qualifications are great optimism and long-windedness.
HEFFNER: Now, I don’t know about the long-windedness …
HEFFNER: … but I do know that you’re an extraordinarily optimistic person. Just between us … really … are you optimistic about this?
KAYE: I am very optimistic about this. More so than ever before. Because we finally have a constituency. Would you think that there would ever be a public rally for court re-structuring? Could you imagine like a ticker-tape parade down …
KAYE: … Fifth Avenue. We had a court rally on the steps of the Capital. I guess a week or two ago. We had an actual court rally, you know with banners and megaphones. A court rally, a public rally for court re-structuring. So how could I not feel optimistic?
HEFFNER: Which is a perfect way to end our program because Chief Judge Judith Kaye we have reached the end. But not of an open mind and not of an open mind about the courts, thank you so much for joining me again.
HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. If you would like a transcript of today’s program, please send four dollars in check or money order to: The Open Mind, P. O. Box 7977, F.D.R. Station, New York, New York 10150
Meanwhile, as an old friend used to say, “Good night and good luck”.
N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.