By: Allison Wick
In light of the covid surge following the 2021-2022 holiday season and the new Omicron variant, the court, like many other organizations, closed their doors for in-person business and reverted to Microsoft Teams to continue judicial proceedings remotely.[1] Over the course of January, news has been circulating regarding New York State court compliance issues among their employees, officers, and judges.[2] Amid these reports, The New York Appellate Division Courts are planned to return in-person following the January retreat to virtual hearings.[3]
At a varied schedule, the four Appellate Courts will return in-person to hear arguments. This modification does not come without its limitations; due to Covid procedural changes and regulations, only parties to causes of action and counsel will be welcomed back in-person for Appellate arguments.[4]
Limitations do not end with restricting building capacity to only “necessary” parties to litigation (the parties themselves and their counsel). The courts have moved to implement a vaccine mandate for court employees and officers that does not currently recognize religious or medical exemptions.[5] Rather than adopting regulations that allow for review of religious and medical exemptions in a non-biased and case-by-case basis, unvaccinated employees under the current court rule are prohibited from returning to in-person if they have not been vaccinated.[6]
With technology advanced to the point where hearings can be held virtually and offer an alternative method of access to judicial services and court hearings, one must wonder why the rush to return in-person? While public health is a pressing concern of the general public, the push for in-person hearings seem to be untimely in light of their employment disputes and offerings of limited in-person services. Postponement may be in the best interest of court officers, employees, HR, and litigants. Further, with the compliance issues arising from Covid-19 vaccine requirements, masking, and testing employees, should in-person court proceedings be prioritized over public health?
The online platform allows for parties, their council, court reporters, translators, the judge, court officers, and any interested persons to access a hearing. With the proposed commencement of the hybrid system in the upcoming months, there are public health issues, court employee compliance issues, and complications of access to the courts and justice.
In the past weeks, there have been reported issues regarding a Ninth Circuit judge entering chambers unmasked and unvaccinated; Covid-related workplace protocol still undecided and unclear; and court officers concerned over unequal treatment and job security in light of the court’s preferable treatment given to judges.[7]
There have been instances of outcry from employees who are enraged by the inconsistent application of covid restrictions and requirements.[8] Since a the Ninth Circuit Judge Mora entered chambers unmasked and unvaccinated in early January, employees have noted an ongoing discrepancy in how the courts treat judges as opposed to any other court officers or employees.[9]
The Ninth Circuit has paid Justice Mora for his working hours and initially granted him job security following his misconduct of unsafely entering chambers and risking the spread of Covid throughout the court.[10] From Judge Mora’s misconduct, court officers are noticing another example of the courts favoring judges over other employees by giving them preferable treatment. As a result, many court officers are contesting the non-accommodating covid policies enforced upon employees that are not equally enforced against judges.[11]
While these compliance issues and employment disputes are just beginning, all of New York’s Appellate Division is scheduled to return in-person to hear arguments after being remote for the month of January. In the coming months, there will be amended Covid-related policies scattered throughout the courts to fit the demands for public welfare and employee concerns regarding personal freedoms. In the meantime, court employees and state government must make decisions with both public safety and personal interests in mind without knowing the ultimate procedural outcome. Hopefully safety and health will prevail in one way or another, whether that be virtually or through modern medicine, public policy will guide us through the New Year.
[1] Jane Wester, Appellate Departments Schedule Return to In-Person Arguments After Remote
January, N.Y. Law Journal (January 27, 2022), https://www.law.com/newyorklawjournal/2022/01/27/appellate-departments-schedule-return-to-in-person-arguments-after-remote-january/.
[2] Court Officers Decry Ruling Allowing Judges to Work from Home, Mid-Hudson News (January 25, 2022), https://midhudsonnews.com/2022/01/25/court-officers-decry-ruling-allowing-judges-to-work-from-home-2/; Frank G. Runyeon, Unvaxxed NY Judge Defies Courthouse Ban As Others Ousted, Law360 (January 20, 2022),
https://www.law360.com/articles/1457205/unvaxxed-ny-judge-defies-courthouse-ban-as-others-ousted; Lauren Berg, NY Court Reporters Challenge Courthouse Vax Mandate, Law360 (January 25, 2022), https://www.law360.com/articles/1458715/ny-court-reporters-challenge-courthouse-vax-mandate.
[3] Wester, supra note 1.
[4] Id.
[5] Berg, supra note 2.
[6] Wester, supra note 1.
[7] Berg, supra note 2; Court Officers Decry Ruling Allowing Judges to Work from Home, supra note 2.
[8] Id.
[9] Id.
[10] Runyeon, supra note 2.
[11] Berg, supra note 2; Court Officers Decry Ruling Allowing Judges to Work from Home, supra note 2.