NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A10706 REVISED 06/19/12
SPONSOR: Rules (Weinstein) TITLE OF BILL:
An act to amend chapter 367 of the laws of 1999, amending the civil
practice law and rules and the judiciary law relating to authorization
of pilot programs permitting use of facsimile transmission or electronic
means to commence an action or special proceeding, in relation to
authorization of pilot programs permitting use of electronic means in
certain courts; and to amend chapter 416 of the laws of 2009, amending
the civil practice law and rules relating to service of papers by elec-
tronic means, in relation to development of a program relating to the
use of electronic means for the commencement of certain actions; and
providing for the repeal of certain provisions of chapter 367 of the
laws of 1999 upon expiration thereof
This measure is being introduced at the request of the Chief Judge of
the State and the Chief Administrative Judge.
In its 2011 session, the Legislature directed that the Chief Administra-
tive Judge establish two committees to consider whether the State's
program for the electronic filing of papers with the courts and between
litigating parties ("e-filing") should be extended into criminal courts
and the Family Court, respectively. See L. 2011, c. 543. The Chief
Administrative Judge thereafter established these committees, which, in
accordance with the statutory direction, were comprised of represen-
tatives of bench, bar and others who would be affected by such exten-
sions, including prosecutors, criminal defense practitioners, local
government agencies, County Clerks and specialty bar associations across
the State. Id.,§5. In the reports recently filed by these committees(1),
it is recommended that the Legislature slowly begin to phase-in e-filing
in select criminal and Family Court cases in a small number of venues.
This measure would give effect to these recommendations, which include:
> Establishment by the Chief Administrative Judge, with the approval of
the Administrative Board of the Courts, of a consensual e-filing program
in criminal parts in Supreme Court and County Court for (i) the filing
of accusatory instruments in those courts, and (ii) the filing and
service of papers in criminal actions and proceedings therein. Also,
authorization to convert participation in this e-filing program from
consensual to mandatory in up to six counties (with implementation in
any of these counties to be conditioned upon prior approval of the local
District Attorney, each criminal defense office providing representation
to 25% or more of the persons represented by public defense providers in
an affected county (through the head of a legal aid society, public
defender's office or local bar association, as appropriate) and the
local County Clerk).
> Establishment by the Chief Administrative Judge, with the approval of
the Administrative Board of the Courts, of a consensual e-filing program
in Family Court for (i) the origination of proceedings in such Court,
and (ii) the filing and service of papers in pending proceedings there-
in. Also, authorization to convert participation in this e-filing
program from consensual to mandatory in up to six counties for purposes
of the filing of article 3 (juvenile delinquency) petitions with Family
Court by a presentment agency, the filing of article 10 (abuse/neglect)
petitions with such Court by a child protective agency, and the exchange
of papers in these proceedings (with implementation in any of these
counties to be conditioned upon prior approval of the local authorized
presentment agency, the local child protective agency and the local
Family Court Bar (represented by the head of each legal services organ-
ization representing parents and/or children, the head of each public
defender organization and the president of the local bar, as appropri-
ate).
This measure also would make two minor adjustments to the existing
e-filing program in Supreme Court civil parts: (1) adding Erie and
Suffolk County to the current list of eight counties outside New York
City in which the Chief Administrative Judge may authorize a program of
mandatory e-filing in Supreme Court civil parts; and (2) eliminating
certain restrictions on use of e-filing in Supreme Court civil
proceedings in New York City (so that mandatory e-filing may be extended
there on the same terms as it now may be extended in the authorized
counties outside the City).
I. Overview
New York's experiment with e-filing began in civil parts of Supreme
Court in 1999 in a very limited pilot(2). Over the ensuing years, as
judges, attorneys, litigants and others having roles in the civil
justice system have developed experience and comfort with e-filing, as
the technology needed to e-file has improved markedly (and grown expo-
nentially in its availability), and as e-filing has become routine prac-
tice in the Federal Court system, the State has gradually expanded its
e-filing pilot. This expansion has always been very slow and deliberate:
from a modest beginning where e-filing was sanctioned in only a few
classes of cases in Supreme Court in a small number of venues, and only
where the affected parties consented to its use, new classes of actions
and venues in which e-filing may be used have gradually been added, and
the e-filing program has expanded into Surrogate's Court, the Court of
Claims and the New York City Civil Court. Also, the Chief Administrative
Judge has been permitted to make use of e-filing mandatory in some
actions in some venues. As of this time, in the spring of 2012, consen-
sual e-filing may be authorized by court rule in all categories of cases
in Supreme Court (it has, in fact, been authorized in 15 counties,
primarily for commercial, tort and tax certiorari cases); in 11 counties
in Surrogate's Court; in the 12 county Albany District of the Court of
Claims; and in one case type in the New York City Civil Court. At the
same time, mandatory e-filing may be established in Supreme Court in
eight counties and in New York City, in a broad array of cases.
This expansion has clearly demonstrated that use of e-filing in the
courts can have substantial benefits -- including lower litigation costs
and reduced access-to-justice barriers especially for solo practition-
ers, small firms and rural practice. These benefits have been well docu-
mented in periodic reports filed by the Judiciary with the Legislature
over the past decade. As now acknowledged by the advisory committees
established this year by the Chief Administrative Judge, these and other
benefits promised by e-filing can likewise be found where e-filing is
extended to practice in criminal courts and the Family Court, and,
accordingly, these committees have urged that the Legislature act
promptly to institute pilot e-filing programs in those courts.
In making their recommendations, our advisory committees have recognized
that, just as it was wise to proceed cautiously in rolling out e-filing
in the State's civil courts, it makes the greatest sense to do the same
with an e-filing rollout in criminal courts and the Family Court.
However attractive the benefits e-filing may promise, there are simply
too many important rights at stake in proceedings in these courts to
start an aggressive e-filing program in them right away. For this
reason, our advisory committees have proposed that, with very limited
exception, the Legislature begin with strictly voluntary e-filing for
Family Court and criminal courts, with consent of the parties required
in each case. Moreover, in the instance of criminal court, the criminal
advisory committee proposes that e-filing be authorized only for
commencement of proceedings in superior courts(3), and the exchange of
papers between parties and between parties and the court in such courts.
In this regard, the advisory committee believes that superior courts
generally are ready, technically and administratively, for this step,
but that local criminal courts are not yet prepared and cannot become
prepared in a cost-effective manner at this time.
Also in keeping with the historical emphasis upon caution in rolling out
e-filing, the advisory committees recommend that an e-filing rollout in
Family Court and in the criminal courts limit the breadth of its reach.
Thus, while the Family Court advisory committee recommends that e-filing
in Family Court be authorized generally, it urges that its use be
consensual in most venues. In no more than six pilot counties should the
Chief Administrative Judge enjoy authority to eliminate the consent
requirement(4). Where he or she would act on this authority, it must be
with the advance approval of appropriate justice stakeholders in the
affected counties (i.e., local presentment and child protective agen-
cies, and the local Family Court Bar) and following consultation with a
broad spectrum of other interested parties, including the Family Court
advisory committee. Further, he or she may only so authorize mandatory
e-filing in connection with origination of Family Court Act article
three and article ten proceedings and subsequent exchange of papers in
those proceedings. Likewise on the criminal side, the criminal advisory
committee has recommended that e-filing now be limited to the superior
courts; and while, as with the Family Court advisory committee, the
criminal court advisory committee believes that a broad consensual
program in those courts may be in order, it similarly recommends that
the consent requirement in criminal court be eliminated in no more than
six pilot counties and then only where the local District Attorney, the
local criminal defense bar and the County Clerk give advance permission,
and only after consultation with a broad spectrum of other interested
parties, including the Criminal advisory committee. Moreover, both advi-
sory committees recommend that, where mandatory e-filing is sanctioned
in Family Court and superior criminal courts, all the protections now
afforded to pro se litigants and counsel who, for want of computer
equipment or skill with that equipment, are unable to proceed by e-fil-
ing civil cases in Supreme Court should obtain (except that pro se liti-
gants should not proceed by e-filing without court permission, whereas,
at present, in Supreme Court civil matters subject to mandatory e-fil-
ing, such litigants must e-file unless they affirmatively opt out).
Finally, the committees recommend that the e-filing programs promoted by
this measure be subject to a three-year sunset, i.e., by September 1,
2015.
Paramount, in the view of the advisory committees, is recognition that
Family Court and criminal court proceedings require special layers of
protection against inappropriate disclosure. Unlike most civil cases,
papers and records in Family Court cases are categorically protected
against routine disclosure (see Family Court Act § 166), and papers
filed in both pending and completed criminal cases can carry particular
sensitivity - whether or not formally sealed by the court. Accordingly,
the advisory committees recommend that, where e-filing is expanded into
Family Court and criminal court, there be no right of public access
on-line to Family Court or criminal court papers that are e-filed.
Finally, the advisory committees recommend that they continue to func-
tion and that, as it did with the gradual phase-in of civil e-filing,
the Legislature require a three-year report to the Legislature on
progress achieved in Family Court and criminal court e-filing and the
sunset of its authorization after three years. The advisory committees
recognize that introduction of e-filing in different courts and case
types requires particular care and a period of study so that parties,
counsel, stakeholders and the political branches can ensure the
protection of rights and the efficient implementation of this next step
in the modernization of the New York State Judiciary.
II. Section-by-Section Summary
SECTION 1 would amend chapter 367 of the Laws of 1999, the original
e-filing statute, by adding new sections 6-a (to govern superior crimi-
nal court e-filing), 6-b (to govern Family Court e-filing) and 6-c
(containing general provisions). Section 6-a would: (a) authorize the
e-filing of superior court accusatory instruments that commence criminal
actions, and of the papers and documents exchanged in those actions; (b)
direct that such program be strictly voluntary upon consent of all
parties, except where the Chief Administrative Judge eliminates the
requirement of consent (which he or she may do in up to six counties so
long as he or she secures prior consent of the local District Attorney,
criminal defense bar and County Clerk and consults extensively with
other interested members of the community along with the Criminal advi-
sory committee); (c) provide that where e-filing is thereby made manda-
tory, parties will enjoy the same right to opt out of participation in
e-filing for want of technical resources or acumen as they would enjoy
in a mandatorily e-filed civil case in Supreme Court and pro se liti-
gants will automatically be excluded from such participation unless the
court permits otherwise; (d) define e-filing by the same terms as CPLR
2103(f) provides for civil cases; (e) protect the confidentiality of
e-filed documents, expressly applying all laws governing the sealing and
confidentiality of court records in criminal proceedings, and expressly
providing that no e-filed paper or document in a criminal proceeding can
be available for online public inspection. Section 6-b would: (a)
authorize the e-filing of Family Court proceedings; (b) direct that such
program be strictly voluntary upon consent of all parties, except where
the Chief Administrative Judge eliminates the requirement of consent
(which he or she may do in up to six counties and only for Family Court
Act article 3 (juvenile delinquency) and article 10 (abuse and neglect)
proceedings so long as he or she secures prior consent of the local
presentment and child protective agencies and the local Family Court Bar
and consults extensively with other interested members of the conmmnity
along with the Family Court advisory committee); (c) provide that where
e-filing is thereby made mandatory, parties will enjoy the same right to
opt out of participation in e-filing for want of technical resources or
knowledge of computer operation as they would enjoy in a mandatorily
e-filed civil case in Supreme Court and pro se litigants will automat-
ically be excluded from such participation unless the court permits
otherwise; (d) define e-filing by the same terms as CPLR 2103(f)
provides for civil cases; (e) protect the confidentiality of e-filed
documents, expressly applying all laws governing the sealing and confi-
dentiality of court records in Family Court proceedings, and expressly
providing that no e-filed paper or document in a Family Court proceeding
can be available for online public inspection. Section 6-c would define
the "criminal defense bar" for purposes of establishing the proper body
to give consent to e-filing in criminal cases in the superior court of a
county. Also it would ban the imposition of a fee for access to e-filed
documents and papers; and require the courts to install sufficient
computer kiosks in courthouses to permit parties and their counsel to
have access to filed documents and papers.
SECTION 2 would make a technical amendment to chapter 416 of the Laws
of 2009, as amended, to bring New York City's existing participation in
the civil e-filing system under the same list of included and excluded
categories of cases applicable to other counties subject to mandatory
e-filing under current law (i.e. Livingston, Monroe, Rockland, Tompkins,
Allegany, Essex, Onondaga and Westchester). This section also would add
Erie and Suffolk Counties to that list of enumerated jurisdictions.
SECTION 3 would make a technical amendment to chapter 416 of the Laws
of 2009, as amended, to continue the two e-filing advisory committees
established for criminal courts and Family Court, respectively, and to
require that the Chief Administrative Judge submit a report on e-filing
in criminal courts and Family Court to the Legislature, Governor and
Chief Judge not later than January 1, 2015.(5)
SECTION 4 would make this act effective immediately, except that
sections 6-a, 6-b and 6-c as added by section 2 of this act, would
expire on September 1, 2015.(6)
This measure, which would have no fiscal impact on the State, would
continue the State's progress toward more streamlined and cost-effective
court operations, which is especially vital to the effective operation
of the justice system given continued resource restraints at all levels
of government. It would do this while continuing the strict protection
of litigant rights, confidentiality and community support that have been
hallmarks of the Judiciary's gradual phase-in of civil e-filing. Perhaps
most importantly, by speeding judicial intervention in time-critical
Family Court proceedings, this measure could help protect the most
vulnerable and literally save lives.
2012 LEGISLATIVE HISTORY:
Senate 7592-A (Saland) (Rules)
Assembly 10706 (Rules-Weinstein) (Codes)
FOOTNOTES:
(1) Copies of these reports may be viewed on-line at the Unified Court
System's website: http://www.nycourts.gov (Under "Publications").
(2) See L. 1999, c. 367
authorizing consensual e-filing programs in
commercial and tax certiorari cases in Supreme Court in Monroe,
Westchester, New York and Suffolk Counties, and in the Court of
Claims.
(3) The superior courts are the Supreme Court and the County Court.
Under this measure, e-filing would not be permitted in criminal
proceedings in the local criminal courts of the State (i.e., the
NYC Criminal Court, the District Courts, the City Courts and the Town
and Village Justice Courts).
(4) Early experience with e-filing in New York, when bench and bar
were generally unfamiliar with it, demonstrated that, where it is
voluntary, relatively few practitioners choose to make use of it.
Only where e-filing has been made mandatory have enough people made
use of it -- thereby exposing them to its benefits and encouraging
their future reliance upon it, as well as giving the State a fair sense
of its pros and cons.
(5) Concerning on-line public inspection of papers and documents in
criminal cases, the measure carves a small exception. It permits the
Chief Administrative Judge to post such papers and documents on the
court system's general website (which is different from the NYSCEF
website used by e-filers) where doing so would serve a public
interest. This is to enable the Chief Administrative Judge to
continue an existing practice wherein, in recognition of a high level
of public interest, certain unsealed papers and documents in a few
celebrated cases are posted on-line for the convenience of the public
and the media.
(6) This is the same date as is now fixed for the expiration of
authorization for the ongoing program of mandatory e-filing in civil
parts of Supreme Court.
