COVID SAFETY MEASURES IN COURT

CC v. AR, 2020 NY Slip Op 20245 - NY: Supreme Court September 30, 2020:

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The Court notes that court staff, including Justices of the Supreme Court, chambers staff, part clerks, court officers, clerical staff, maintenance personnel and other employees of the court system in Kings County Supreme Court, have been working in the courthouse, observing those established protocols, for months. There have been proceedings conducted in the courthouse on a limited basis and jurors have been summoned for petit jury trials to commence in the next few weeks. While keeping foot traffic at a minimum the Court has provided methods for physical access to the Courthouse to the public on a case-by-case basis.

These are unprecedented times: fortunately, global pandemics have not been commonly faced in New York. All aspects of social infrastructure and daily-life face the challenging task of mindfully restarting in-person operations. There are Admistrative Orders available on the Court website which provide guidance and instructions regarding court operations and safety protocols. When there is an individual who tests positive in a courthouse a public notification is made on the website. The Courts are open to serve the people of New York State through a hybrid of virtual and increasingly in-person proceedings, which were regionally adapted to take into account different regions of the State. These protocols and Administrative Orders were disseminated and posted to the New York State Court website.

The authority and autonomy of the Unified Court System to establish and implement the appropriate measures for in-person court proceedings was recently recognized by the Southern District of New York Federal Court in Bronx Defenders v Office of Court Administration (2020 WL 4340967 [S.D.N.Y, July 28, 2020]. In Bronx Defenders, plaintiff challenged the Uniform Court System determination that in-person proceedings could resume and sought an injunction from the Federal Court to halt in-person appearances in New York City Criminal Court. That application was denied and the case was dismissed with a finding by the Southern District of New York Federal Court that the Federal Courts:

cannot, dictate if, when, and how state criminal courts reopen or schedule in-person appearances. To do so would violate fundamental principals of comity and federalism, and would result in federal supervision of state procedures and proceedings in direct contradiction of O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)" (2020 WL 4340967 at *1).

Similarly, it is not within the purview of a litigant or counsel to assess whether the protocols established are adequate; however, neither is plaintiff nor his counsel, under the facts and circumstances presented, required to appear in-person for the conclusion of the trial. The Court notes that plaintiff has every interest in seeking to delay the resolution of this matter inasmuch as he faces possible incarceration.

This Court has previously made arrangements for others to conduct in-person review of documents in the courthouse that observe social distancing and all protocol guideline procedures adopted by the Unified Court System. The Court notes that it is not the purvey of this Court nor of plaintiff to deem the protocols established and adopted by the Uniform Court System as "sufficient" or not: nor is there a need for plaintiff to reach that determination because there is no requirement for plaintiff to appear in-person. Virtual proceedings are available precisely to fit these situations. To hold otherwise: to deem that any individual could be arbitrarily left to determine for him or herself that she did not believe that courthouses were safe would, in effect, grant any litigant carte blanc to postpone — indefinitely — any proceeding in which he or she did not want to appear. Certainly, such an outcome will not stand. This case need not be an exception.

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