Citing the ongoing threat of the coronavirus, the New York State Court Officers Association has asked a Federal judge to delay the reopening of city courts.
The union’s July 14 action came on the same day that six city public-defender agencies filed a Federal civil-rights lawsuit looking to compel state court officials to delay the restart of in-person proceedings in criminal matters.
The union’s ostensible reason for requesting a temporary restraining order is that its members are ill-equipped to determine if those entering the courts are exhibiting COVID symptoms. Officers have been charged with taking the temperatures of all entrants to the courts and also asking them questions about their health. Neither of those steps is adequate to determine if courthouse visitors are carrying the virus, the filing said.
It also alleged that state court officials have not provided sufficient protective measures within the facilities.
“Ensuring the safety of Plaintiffs and all other individuals entering a courthouse, whether a judge, attorney, court personnel or litigant, is in the public interest,” the filing said. It noted that judges and court staff have died as a result of COVID infections.
The virus “still exists,” the filing continued. “Courts must likewise continue to exist and serve the public. This can and must be done safely.”
The president of the New York State Supreme Court Officers Association, Patrick Cullen, earlier this month also took issue with the temperature-taking mandate on similar grounds, but also because it involves pointing an infrared temperature gun at visitors’ heads, which he said had the potential to lead to confrontations.
'Stepping on Our Discretion'
The Court Officers Association, led by Dennis Quirk, represents about 1,500 court officers. Mr. Quirk and court system officials have an uneasy and sometimes combative relationship, and an Office of Court Administration official dismissed the union’s filing as self-interested.
“While the health and safety of everyone entering any of our courthouses is paramount, how we go about achieving that is at our sole discretion,” Lucian Chalfen, an OCA spokesman wrote in an email. “New York State Court Officers are the most appropriate court system personnel to implement the temperature screenings and have shown the ability to adapt to new conditions in the past, such as using the [defibrilators] and administering Narcan.”
He added that the court union's action was akin to a vendetta: “This is nothing more than a certain individual’s personal animus towards his employer,” he wrote.
The defenders’ action, on the other hand, alleged that the OCA’s July 9 order that proceedings would resume within a week was contrary to earlier assurances from court officials that in-person appearances would hinge on medical experts' assessments of the courts’ safety and were some way off.
“Defendants have withheld critical information from Plaintiffs about the Plan and have operated the Plan chaotically across courts and boroughs, making it impossible for the Public Defenders to predict which cases will be calendared for appearances,” the suit, referencing the order, said.
The defenders said their clients, who number in the hundreds, as well as staff members with medical vulnerabilities “put them at great risk of serious illness or death from COVID-19.”
The suit said the “rushed and unnecessary” order to resume in-person operations oblige their clients to make a “tragic and illegal choice between their fundamental right to participate in their own cases and their health and safety.”
“In this way, the Plan discriminates against people with disabilities who need sufficient notice to seek and receive accommodations or modifications prior to an appearance in order to obtain equal access to the court,” according to the lawsuit.
In its filing, The Legal Aid Society, Brooklyn Defender Services, The Bronx Defenders, New York County Defender Services, The Neighborhood Defender Service of Harlem and the Queens Defenders, said the OCA and Chief Administrative Judge Lawrence K. Marks violated the Americans with Disabilities Act and the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability in programs overseen by Federal agencies.
They also contend the order violated the Fourteenth Amendment’s due-process clause.
OCA: Few Cases
Mr. Chalfen said the defenders’ filing was equally without merit given the minimal number of criminal cases scheduled to take place.
“As we begin our entirely legal plan for a slow return to normalized operations, with a focus on personal health and safety, starting today, we are calendaring approximately 10 in-person cases a day in each Court. The defender organizations had already agreed to, and we have already held, in-person appearances for some of their clients,” he wrote. “Now they want the court system to regress offering no solutions, only demands.”
State courts in the city on July 8 began so-called Phase 3, which the state’s Chief Judge, Janet DiFiore, said entailed “a modest increase” in staffing to address in-person matters, including conferencing of some felony cases, some arraignments and plea and sentencing proceedings, and a few preliminary hearing, as well as other matters. Officials began mailing summonses to prospective grand jurors to prepare for grand jury proceedings starting Aug. 10.
In a July 13 video statement, the Chief Judge said dozens of courtrooms had been retrofitted including with the installation of Plexiglass barriers, “and we will continue to work with the District Attorneys’ offices, the defense bar and our own epidemiologist to continuously assess, and minimize, any public health risks that could be presented.”
She said the city’s Criminal Courts had conducted more than 34,000 proceedings, nearly 19,000 additional arraignments and more than 600 preliminary hearings since mid-March.
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