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Legal Myths vs Reality

By Judge Joan Shkane | Columnist 

This is a continuing discussion of Legal Myths and Reality, because those informed are always the most successful.

Please note: Senator Sam Ervin, chair of the Senate Select Committee on Watergate in the preface to their report pointed out that the law is not self-executing.  It must be executed by humans.  And therefore, it must not be in the hands of those who are not faithful to it. 

MYTH:  Our New York State system of courts is set in concrete and cannot be changed.

REALITY: Chief Judge Janet DiFiore and the heads of the Senate and Assembly Judiciary Committees believe that the structure of the court system needs to be re-examined, and perhaps overhauled dramatically.  It is now over 200 years old, and antiquated.  

In 2019 the Chief Judge held public hearings to evaluate the legal system in New York State. She next commissioned former U.S. Secretary of Homeland Security Jeh Johnson, an attorney, to review the current system and make recommendations for change.  Johnson reported that the culture in New York’s criminal, civil, family and housing courts are “dehumanizing “and “demeaning.” He joined Judge DiFiore in calling for consolidation of the system of 11 trial level court into a three-tiered system. New York State has the highest of number of different types of trial courts in the country.  

Any changes would require an amendment to the state Constitution and would need to be passed by 2 consecutive elected state Legislature before being put to the voters by referendum, and voted on.

Johnson wrote that our system is over-burdened, under-resourced, archaic and incomprehensibly complex.  It also is sinking under paperwork required to be filed by lawyers and litigants.  He found that in October, 2020 the Third Judicial district made of seven central NY counties had fewer than five percent of the district’s judges who were Black, although the population was 10 percent Black. Latino judges were 1.6 percent when the Latino population was 8.3 percent, and had no Asian judges when the Asian population was 4. 1 percent of the residents in the district.  The same seems to be generally true across New York State. 

We have anomalies in our courts that other states do not have. For instance, the lowest level trial court in New York State is called the “Supreme Court.” Most other states reserve this name for the higher appellate courts.  Litigants in a divorce case with child support and custody disputes often must go from court to court, as many as three courts, for a complete resolution of all issues.  

A 2018 study found that a merger of courts could save $443 million a year for litigants by reducing the number of times they must appear in court and pay their lawyers. This does even take into account the pain, anxiety and sometimes despair for vulnerable people. The current system also can result in very different experiences for those from differing racial, economic, and geographic backgrounds.  

The Chief Judge’s plan would turn all judges in county, family, and surrogate courts and Court of Claims into State Supreme Court justices on Jan 1, 2025.  The plan would result in one Supreme Court. The 61 upstate city courts would become part of a new statewide municipal court system.  Town and village courts would stay the same. The vast majority of trial level judges would all be at the same trial level and presumably paid the same.  

Currently some trial level judges are elected by county, and some by district.  In our district, the Fifth Judicial District, voters in six counties elect the Supreme Court justices, while County, Surrogate, and Family Courts judges are elected county by county.

In the current scheme, in our Fifth judicial District including Oneida County, most judges who are capable of handling the work are giving Supreme Court status and pay, without any change in court structure.  There may occur greater diversity among judges with consolidation.

This restructure plan is opposed by current Supreme Court Justices because they say the plan would increase and centralize power over the judges and courts. Others say that this occurred years ago as the Office of Court Administration was given vast power over the courts and judges.  The president of the New York State Bar Association said that the consolidation plan is sorely needed. The League of Women Voters and the New York State Coalition Against Domestic Violence voice their approval.  

California and New Jersey, among other states, have already undergone rehaul and renewal.  Voters will want to keep an eye on this plan over the next several years.    

MYTH: Insurance companies can pick and choose whether they will offer homeowner insurance to owners of certain breeds of dog.

REALITY: Insurance companies typically set their rates for insurance on the type and number of risks they will be covering, and for which they may be potentially paying out.  If the risk is less, then the fees will be less.  If the risk is more, then the fees will be more. 

The New York State Legislature recently passed a law that would not permit insurance companies to refuse to insure a homeowner who shelters certain dog breeds.  They also may not now raise the insurance premium because of certain breeds living in the household.  The most common such breeds are the German shepherd, Doberman pinscher and the pit bull, which have all gained a reputation for being aggressive.  Some of this reputation may have been spread by outsized media coverage of attacks.  If a chihuahua dog bites, it is rarely, if ever, publicized.

Advocates for the law say that a dog is dangerous because of an irresponsible owner, and the fault is on the humans.  The Mohawk Hudson Humane Society said that there is no proof of the truth of the allegation that no one breed is more dangerous than any other, and that this is the biggest myth going in a culture of many myths.

Humane societies across the State said that such expensive discrimination against certain breeds precludes people from adopting and sheltering these breeds, regardless of the truth.  Wonderful dogs of these breeds languish in shelters, and sometimes never find homes. 

The fear is that one’s homeowner insurance rates may go up out of fear that the dog will bite or maul, even is the dog sheltered is the kindest and best trained animal. They say that if a dog is dangerous, it is because of behavior that is learned and not inherited. Pit bulls, in particular, are actually known to be affectionate and great with children, contrary to the myth about the breed.  In addition, a dog’s actual breed cannot be determined without DNA testing.  

Those who argue for the insurance companies said that the companies are a for-profit business and that if they cannot restrict the type of breed they are being asked to insure against, they should not have to pay out in the event the dog causes injury. 

Attention to legal myths is not wrong.  It can be a starting point for developing an interest in the law.  However, if specific legal issues are important in your life, for instance, regarding custody of children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths.  This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.  

Mark Ziobro
Mark Ziobro
Mark is the current Managing Editor for The Utica Phoenix, and a Central New York Native.

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