By Hailey Konnath

Law360 (July 14, 2020, 11:10 PM EDT) -- The Legal Aid Society and a handful of New York public defender organizations on Tuesday sued the New York State Office of Court Administration, slamming the office's plan to reconvene in-person, nonemergency criminal court hearings in New York City this week as "rushed" and "dangerous."

The suit comes on the eve of a scheduled July 15 reopening of criminal courts in the city. OCA announced its plans in an administrative order last week, according to the complaint, which was filed in New York federal court.

Legal Aid and the other groups — which include Brooklyn Defender Services, the Bronx Defenders, New York County Defender Services, Neighborhood Service of Harlem and Queens Defenders — said OCA's hasty decision comes as the city is still in the throes of battling COVID-19. The move violates the Americans with Disabilities Act by depriving thousands of people who have medical conditions or other disabilities the opportunity to seek and help develop necessary accommodations from the court, they said.

"This forces people to choose between their health and liberty because if they do not attend court they can have a warrant issued and potentially be incarcerated," the groups said in a joint statement Tuesday.

For months, OCA indicated that in-person appearances at courthouses remained in the distant future and that the office was working with the public defenders as well as public health officials to address ongoing safety concerns, according to the suit. That assessment and coordination has begun, but isn't yet complete, the groups said.

The July 9 in-person appearance order is an "abrupt refocus" for which OCA has provided no explanation, they alleged. And it has far-reaching consequences in communities with high infection rates, including neighborhoods in which many of their clients reside, the groups said.

"Indeed, the public defenders commonly receive less than 48 hours' notice of which cases out of the many thousands of pending cases will require appearances in courthouses for which there remains no clear plan for ensuring peoples' safety from the transmission of COVID-19," the groups said in the suit.

"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 court," they added.

The plan implicates due process of law, protections against arbitrary action of government and excessive exercise of government power, the groups said.

In Tuesday's statements, the New York City defenders said they'd spent weeks trying to work with OCA on "balancing protection against COVID-19 infections, proceeding with cases, assuring due process and ensuring access to the courts."

"OCA's sudden issuance of an order requiring in-person appearances in criminal courts — without a clear plan to ensure the safety of people attending those proceedings — not only contravenes commitments made by OCA, but also fails to strike an appropriate balance among these compelling and sometimes competing interests," the defenders said.

OCA spokesperson Lucian Chalfen told Law360 on Tuesday that the organizations had already agreed to, and the court has already held, in-person appearances for some of their clients.

"Now they want the court system to regress, offering no solutions, only demands," Chalfen said.

Starting Wednesday, approximately 10 in-person cases will be scheduled every day in each court, an "entirely legal plan for a slow return to normalized operations," he said.

Also on Tuesday, the president of the New York State Court Officers Association lodged a motion for a temporary restraining order in a separate case over courthouse body temperature checks. Dennis Quirk, on behalf of about 1,500 court officers, hit OCA and New York Chief Judge Janet DiFiore with that suit earlier this month.

In Tuesday's motion, Quirk urged a New York federal court to block another administrative order requiring officers to conduct temperature checks on courthouse visitors. The officers are also required to ask "invasive" personal health and travel questions, he said.

Quirk said court offices are "simply not trained to medically assess individuals for COVID-19 or any of the medical symptoms associated therewith." And temperature checks aren't even a reliable indicator of whether a person has been exposed to the virus, as many individuals are asymptomatic, he said.

The June 30 administrative order puts officers at risk, thrusting them into "unsterilized courthouses without proper personal protection equipment" and forcing them to engage with individuals who may be carrying COVID-19, he said.

"Defendant OCA has not opened its administrative offices as a result of COVID-19," he said. "Yet defendants are full-throttle, head-long intent on opening courthouses upon a false sense of security simply by requiring court officers to take a body temperature and demanding the right answers to 'voluntary' questioning concerning private information."

Chalfen said that while the health and safety of everyone entering courthouses is paramount, how OCA goes about achieving that is "at our sole discretion."

"New York state court officers are the most appropriate court system personnel to implement the screenings and have shown the ability to adapt to new conditions in the past, such as using the [automated external defibrillators] and administering Narcan," he said.

Chalfen added, "This is just another example of meritless arguments being used by this individual to promote his personal agenda."

On July 8, New York state administrators gave the all-clear to resume some in-person bench trials in Albany, Westchester County and parts of Long Island.

And on July 7, the New York State Unified Court System announced that grand juries would begin reconvening in state courts on Aug. 10.

Counsel for Quirk declined to comment.

The public defender organizations are represented by Jenn Rolnick Borchetta, Seth Packrone, Niji Jain and Thomas Scott-Railton of the Bronx Defenders, Corey Stoughton of the Legal Aid Society, Brooke Menschel of Brooklyn Defender Service, Arthur J. Robb and Ian-Paul A. Poulos of Clifton Budd & DeMaria LLP, Roxanna Gutierrez of the Neighborhood Defender Service of Harlem and Patrick Joyce.

Quirk is represented by Pat Bonanno of Pat Bonanno & Associates PC.

Counsel information for the Office of Court Administration and Judge DiFiore wasn't immediately available Tuesday.

The cases are the Bronx Defenders et al. v. Office of Court Administration of the State of New York, case number 1:20-cv-05420; and Dennis Quirk et al. v. Janet DiFiore et al., case number 1:20-cv-05027; both in the U.S. District Court for the Southern District of New York.

--Additional reporting by Dave Simpson, Frank G. Runyeon and Cara Salvatore. Editing by Emily Kokoll.

Update: This story has been updated to include additional comment from OCA.

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