By Frank G. Runyeon

Law360, New York (July 21, 2020, 10:24 PM EDT ) New York's state court administrators told a Manhattan federal court Tuesday not to interfere with the state's recent return to in-person criminal proceedings in New York City and pushed back on public defenders' claims that the move denies vulnerable defendants access to the justice system.

In a filing and during teleconferenced arguments, counsel for New York's Office of Court Administration told U.S. District Judge Andrew L. Carter Jr. that the pandemic's disruption of the courts has led to a "backlog of 39,000 cases citywide," including "nearly 12,000 unindicted felonies," and that the courts' move to once again require in-person appearances poses no imminent harm. The source of public defenders' challenge is mere inconvenience, speculation or fear, the office argued.

The Bronx Defenders, Brooklyn Defender Services, Legal Aid Society, New York County Defender Services, Neighborhood Service of Harlem, and Queens Defenders say the state courts' decision was "rushed" and has led to "chaotic" implementation of policies that violate federal civil rights protections including the Americans with Disabilities Act and the Rehabilitation Act.

While Judge Carter denied the public defenders' initial bid for a temporary restraining order last week, he immediately directed the state court administrators to explain why he shouldn't issue a preliminary injunction to stall the reopening of New York City's state courts pending the outcome of the case.

Office of Court Administration counsel Elizabeth Forman said Tuesday that the so-called abstention doctrine, which blocks federal courts from interfering in state criminal matters or procedures, is "exceptionally important here."

"It's hard to see how there could be a greater sovereign interest than the ability of the courts to manage their own calendars and allow the criminal process to work," Forman said.

While Judge Carter said he would take further briefing on the abstention argument this week, he asked the sides to focus their oral arguments on "the facts underlying the merits" of the public defenders' bid to halt the court system from requiring in-person appearances in criminal matters until it institutes a new policy.

Forman slammed the public defenders' claims that the move to resume in-person court appearances violates disability protections on the theory that it deprives people vulnerable to COVID-19 of the opportunity to seek reasonable accommodations to participate in the proceedings, such as dialing in via teleconference.

"Administrative inconvenience is not irreparable injury," said Forman, arguing that among the only evidence public defenders present of harm is inadequate notice of the new policy and last-minute court appearances. A federal judge demanded Sheldon Silver's in-person appearance at a Manhattan courthouse for his resentencing Monday, Forman noted.

All other harms alleged by the pro bono legal services organizations are "entirely speculative," she said, and do not meet the standard for granting an injunction against the state courts.

Forman also said attorneys or clients who stay home and get permission not to attend a proceeding, due to COVID-19 concerns, are not being discriminated against.

"Fear, even rational fear, is not the same as irreparable injury," Forman said. "They don't explain how simply going to court is unduly risky or necessarily means that irreparable harm is imminent."

The public defenders recapitulated their arguments that the state courts had abruptly reinstituted in-person proceedings in a way that violates the civil rights of those required to be in court. They argued that the courts have not answered for their failure to address the concerns of vulnerable individuals and people with disabilities, merely firing off a "technical legal argument" on abstention to ward off federal court intervention.

Moreover, said Jennifer Borchetta of The Bronx Defenders, the state system admits it has restricted access to the courts dozens of times already.

"In the first three days of required in-person appearances, apparently over 80 people were denied effective access," Borchetta said, referring to the 78 criminal defendants excused from attending their court date after requesting accommodations so they could attend, plus a number of defense attorneys directed to have a colleague appear on their behalf.

Such excusals are de facto refusals of court access, Borchetta said, and effectively discriminate against people claiming a COVID-19-related disability.

"If those people were entitled to accommodations, then the court, under federal disability rights laws, had to find a way to give them effective access so that they could participate in the proceeding," Borchetta told Law360 after the hearing.

"Instead, when people asked for a ramp, the court just closed the door," she said.

Just 15 defendants appeared for the 93 criminal proceedings scheduled in New York City for July 15-17 after their attorneys requested accommodations, according to data reported in a declaration filed by Administrative Judge Tamiko Amaker, who oversees the city's criminal courts.

Borchetta said that people ordered to make an in-person appearance with a medical vulnerability to the virus are often faced with one of two scenarios. In the first, either they risk their health to appear or they risk court sanctions for not appearing. In the second, they are granted permission not to appear in-person but are denied the ability to participate remotely.

"These are not reasonable modifications; these are acts of discrimination," Borchetta told Judge Carter.

Addressing the abstention argument, Borchetta said the public defenders' case would not interfere with criminal proceedings, but that it would merely force the state courts to forge "an ADA-compliant policy."

Judge Carter set a brisk briefing schedule at the request of the defenders, with filings by both sides due before the end of the week. After receiving those filings, the judge said he can rule on the abstention issue and then decide whether to issue an injunction to halt the return to in-person proceedings in New York's courts.

A representative for the state courts 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, Diane Lee Houk and Jonathan S. Abady of Emery Celli Brinckerhoff Abady Ward & Maazel LLP, and Patrick Joyce.

The Office of Court Administration is represented in-house by Elizabeth A. Forman and Anthony Perri and by Adrienne J. Kerwin of the New York state attorney general's office.

The case is The Bronx Defenders et al. v. Office of Court Administration of the State of New York, case number 1:20-cv-05420, in the U.S. District Court for the Southern District of New York.

--Additional reporting by Dorothy Atkins and Hailey Konnath. Editing by Aaron Pelc.

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