Preview
FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/13/2023
Exhibit 22
FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/13/2023
Report from the
Special Adviser on Equal Justice
in the New York State Courts
YCMTE
NEW
COURTS
Coud
October 1, 2020
RESPONDENT
p EXHIBIT
F
FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/13/2023
of permitting voir dire on the subject of implicit bias is inconsistent, and that certain judges
allow voir dire on such questions, while others do not. We believe the system would
benefit from explicit guidance on this issue, and we recognize that it is beyond the scope
of our expertise to prescribe such guidance as a part of this review. As such, we propose
that a diverse committee of judges, attorneys, professors and/or subject area experts be
consulted in drafting a proposal. It is our understanding the Chief Judge has the authority
changes.218
to then authorize such Ideally, these standards would explicitly permit and
endorse voir dire on questions of implicit bias.
Third, we recommend pattern jury charges on implicit bias. A number of courts around
the country, such as in California and Washington, have adopted jury charges that explain
the concept of implicit bias and remind the members of the jury to be aware of their implicit
biaseS.219
l½Ore recently, the New Jersey Supreme Court adopted a proposal to examine,
among other issues, the propriety of model jury instructions on impartiality and implicit
bias.220
We recommend that OCA request that a new or standing committee, such as the
Committee on Criminal Jury Instructions, develop model jury instructions on implicit bias
for both civil and criminal cases.
E. Adopt a Social Media Policy
As discussed previously, the recent highly offensive social media post by a Brooklyn-
based court officer came up countless times during our interviews. One interviewee noted
that social media posts are a growing source of racial bias complaints among court
employees, and others opined that such posts are strongly correlated with racially biased
behavior and mistreatment of people of color within the courthouse. OCA currently has
employees'
no policy explicitly governing personal use of social media.
218 The New York State Constitution provides the Chief Judge with supervisory to "establish standards
responsibility
application."
and administrative policies for general See N.Y. CONST. art. VI, § 28(c). This authority includes
power over the "adoption, amendment, rescission, and implementation of rules and orders regulating practice and
courts."
procedure in the N.Y. JUD. § 211(b). Once the appointed committee drafts its proposed rule establishing
uniform rules on the subject of bias during voir dire, the Chief Judge, in consultation with the Chief
Administrative Judge and the Administrative Board of OCA could implement such a change. See id.
²¹9
See, e.g., Kris Olson, New jury instructions take aim at implicit bias, MASS. LAWYERS WEEKLY (Jun. 20, 2019),
https://masslawyersweekly.com/2019/06/20/new-jury-instructions-take-aim-at-implicit-bias/; Criminal Jury
Instructions, U.S. DIST. CT. W. D. WASH., ,
https://www.wawd.uscourts.gov/sites/wawd/files/CriminalJuryInstructions-ImplicitBias.pdf; Cahfornia Civil
Jury Instructions, CACI No. 113, JUD. COUNCIL CAL. (2020)
https://www.courts.ca.gov/partners/documents/Judicial Council of California Civil Jury Instructions.pdf;
Illinois Circuit Court Civil Jury Instruction 1.08, ADMIN. OFFICE ILL. CTS. (May 2019)
https://courts.illinois.gov/CircuitCourt/CivilJuryInstructions/1.08.pdf.
2²° N. J.
See Commitment to Eliminating Barriers to Equal Justice: Immediate Action Items and Ongoing Efforts,
JUD. (Jul. 16, 2020). https://www.nicourts.gov/public/assets/supremecoutactionplan.pdf.
84
FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/13/2023
We recommend that OCA develop a policy for judicial and non-judicial personnel that
provides clear guidance and limits on the use of social media - whether in an official or
personal - in a manner that has negative implications for the New York state court
capacity
system. Our reading of the law is that such a policy is legally permissible.
To be sure, public employees have a right under the First Amendment and Article I,
Section 8 of the New York State Constitution to freely express themselves in their own
personal use of social media, particularly when it comes to matters of public concern.
Employees also have a statutory right under the National Labor Relations Act to use social
employment.221
media to organize and address the terms and conditions of their However,
courts have held that a public employer may limit and discipline certain public speech that
is offensive and reflects poorly on the employer.
In general, state employers cannot "condition public employment on a basis that
expression."
infringes the employee's constitutionally protected interest in freedom of
Connick v. Meyers, 461 U.S. 138, 142 (1983). However, employees who speak on subjects
related to their official duties receive less First Amendment protection. See, e.g., Garcetti
v. Ceballos, 547 U.S. 410 (2006) (holding that district attorney who wrote a memo
recommending dismissal of criminal charges based on a deficient warrant and who later
testified on behalf of the defense did not enjoy First Amendment protection because his
speech pertained to his official duties). employees be disciplined for off-
Likewise, may
duty speech that is unrelated to their official duties if there is a government justification
speculation"
"far stronger than mere that the speech will interfere with efficient delivery
of public services. See, e.g., City of San Diego v. Roe, 543 U.S. 77 (2004) (holding that
police department could discipline officer who identified himself as a member of law
enforcement when selling videos of himself stripping online because he "took deliberate
steps to link his videos and other wares to his police work, all in a way injurious to his
employer.")
Federal Courts in the Second Circuit have held that an employee for off-
disciplining
duty, non-work-related speech does not violate the First Amendment if "(1) the employer's
prediction of disruption is reasonable; (2) the potential disruptiveness is enough to
outweigh the value of the speech; and (3) the employer took action against the employee
speech."
based on this disruption and not in retaliation for the Locurto v. Giuliani, 447
F.3d 159, 172-73 (2d Cir. 2006) (citing Jeffries v. Harleston, 52 F.3d 9, 13 (2d Cir.1995)).
In Locurto, a police officer and firefighter were fired after participating in a Labor Day
float"
"funniest parade contest in which their float mocked Black people and the Civil
221
29 U.S.C. §§ 151-69.
85
FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/13/2023
Rights movement in various ways including recreating the dragging death of James Byrd
Jr.222
More recently, a federal district court applied Locurto's reasoning in the context of
social media when ruling on a motion to dismiss in Festa v. Westchester Medical Ctr.
Health Network, 380 F. Supp. 3d 308 (S.D.N.Y. 2019). The plaintiff in that case, a
compliance coordinator for a public hospital, logged onto Facebook one evening on her
bad"
personal computer and commented on a local news channel's page that it was "too a
funnel cloud projected to affect the area of a Hasidic community "didn't suck them all
away."
The court stated that the public hospital could reasonably conclude that the
employee's post would disrupt its ability to serve the local community and "cause harm
ranks" mistrust."
within the of the hospital "by promoting resentment and Id. at 319, 321.
We note that other court systems around the country have implemented social media
employees'
policies to ensure that online activity does not undermine public confidence in
justice.223
the operation of the courts and the application of For example, the Nebraska
State Supreme Court prohibits its employees, in their personal capacities, from posting
"[s]tatements, comments, or images that disparage any race, religion, gender, sexual
origin,"
orientation, disability, or national as well as "any communication that engages in
harassment" environment"
personal or sexual or that "would contribute to a hostile work
grounds.224
on racial, sexual, or religious The Colorado Judicial Department more broadly
prohibits employees from "making statements which negatively reflect on the
professionalism of the courts . . . or which otherwise have an adverse effect on the
confidence of the pubic in the integrity, propriety and impartiality of the judicial
system."225
We recommend that OCA, after consultation with stakeholders, issue a social media
policy for its personnel along the same lines. A social media policy may prohibit
communications that constitute harassment or racially offensive remarks, but should be
222 James Byrd Jr. was a Black
man who, months before the parade, had died after being chained to the back of a
moving pickup by three truck
white men. See, Juan A. Lozano, Texas Town Reflects on Dragging Death Ahead
of Execution, AP NEWS (Apr. 21, 2019), https://apnews.com/b3097455flab499695fa2553ed636258.
223
See, e.g, Directive Concerning Colorado Judicial Department Employee Policies, Chief Justice Directive 08-16,
OFFICE CHIEF JusT. 1, 19 (June 28, 2013),
https://www.courts.state.co.us/userfiles/file/Administration/HR/Policies/CJD%2008-06%20amended%2007-
13.pdf [hereinafter Colorado Judicial Department Social Media Directive] ; Nebraska Non-Codified Supreme
Court Rules and Best Practice Guidelines and Standards, Other Personnel-Related Policies: Social Media, NEB.
JUD. BRANCH, https://supremecourt.nebraska.cov/personnel-and-miscellaneous-rules/other-personnel-related-
policies/2-use-social-media (last visited Sept. 24, 2020) [hereinafter Nebraska Judicial Branch Social Media
Policy]
2²*
Nebraska Judicial Branch Social Media Policy, supra note 224.
225 Colorado Judicial Department Social Media Directive, supra note 224.
86
FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/13/2023
drafted in a way that will not prohibit protected activities under the National Labor
Relations Act.
F. Strengthen the IG Process for Bias Complaints
Numerous interviewees also expressed concerns and uncertainties about OCA's
policies and procedures for handling complaints of racial bias and discrimination. After
consulting a retired Inspector General with extensive experience in the U.S. government
and other sources, we recommend that OCA adopt the following best practices to improve
its complaints and investigations processes.
given the number of interviewees -judicial and non-judicial - who were unaware
First,
that mechanisms for making bias complaints even existed, we recommend that OCA
engage in a robust campaign to educate court system participants about the existence and
purpose of these offices and the procedures to lodge a bias complaint. This should include
training for all personnel on how to submit a complaint of racial bias and discrimination,
and conspicuous signage in courthouses advertising the existence of these offices. As one
expert in inspector general policies and procedures suggested, it should be made clear that
OCA's IG office, including its Bias Matters Unit, exists not only to identify waste, fraud
and abuse, but also to address matters of racial bias.
retaliation"
Second, we recommend that OCA clarify its "no policy in order to better
assuage concerns that interviewees across the spectrum cited about filing complaints.
While the current policies state that retaliation is prohibited, the definition of retaliation
provided in OCA's discrimination booklet is narrow, difficult to understand and only
provides a few examples of very formal, work-related retaliation, such as termination or a
salary.226
demotion with a decrease wage or in The policy does not indicate that more
informal or non-work related forms of retaliation are also prohibited, such as making
disparaging comments about the complainant to others, or scrutinizing work or attendance
more than other employees without justification - which be considered
closely may
"retaliation" law.227
under federal We recommend that, similar to the EEOC's
Enforcement Guidance on Retaliation and Related Issues, the revised policy more broadly
define retaliation, and provide specific examples of both informal and formal, as well as
retaliation.228
work related and non-work related forms of Similarly, the policy should
226 The
policy states that "examples of forms of retaliation may include termination of employment, a demotion with
a decrease transfer,"
in wage or salary, a significant loss of benefits, or a that may raise to a violation of "UCS
laws."
policy [and] state and federal OCA Discrimination Claim Policy & Procedure, supra note 176 at 16.
227
915.004, OFFICE OF LEGAL COUNSEL (Aug. 25, 2016), https://www.eeoc.gov/laws/guidance/enforcement-
guidance-retaliation-and-related-issues#B.
223
Id (citing Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006)).
87
Preview
FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/13/2023 Exhibit 22 FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/13/2023 Report from the Special Adviser on Equal Justice in the New York State Courts YCMTE NEW COURTS Coud October 1, 2020 RESPONDENT p EXHIBIT F FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/13/2023 of permitting voir dire on the subject of implicit bias is inconsistent, and that certain judges allow voir dire on such questions, while others do not. We believe the system would benefit from explicit guidance on this issue, and we recognize that it is beyond the scope of our expertise to prescribe such guidance as a part of this review. As such, we propose that a diverse committee of judges, attorneys, professors and/or subject area experts be consulted in drafting a proposal. It is our understanding the Chief Judge has the authority changes.218 to then authorize such Ideally, these standards would explicitly permit and endorse voir dire on questions of implicit bias. Third, we recommend pattern jury charges on implicit bias. A number of courts around the country, such as in California and Washington, have adopted jury charges that explain the concept of implicit bias and remind the members of the jury to be aware of their implicit biaseS.219 l½Ore recently, the New Jersey Supreme Court adopted a proposal to examine, among other issues, the propriety of model jury instructions on impartiality and implicit bias.220 We recommend that OCA request that a new or standing committee, such as the Committee on Criminal Jury Instructions, develop model jury instructions on implicit bias for both civil and criminal cases. E. Adopt a Social Media Policy As discussed previously, the recent highly offensive social media post by a Brooklyn- based court officer came up countless times during our interviews. One interviewee noted that social media posts are a growing source of racial bias complaints among court employees, and others opined that such posts are strongly correlated with racially biased behavior and mistreatment of people of color within the courthouse. OCA currently has employees' no policy explicitly governing personal use of social media. 218 The New York State Constitution provides the Chief Judge with supervisory to "establish standards responsibility application." and administrative policies for general See N.Y. CONST. art. VI, § 28(c). This authority includes power over the "adoption, amendment, rescission, and implementation of rules and orders regulating practice and courts." procedure in the N.Y. JUD. § 211(b). Once the appointed committee drafts its proposed rule establishing uniform rules on the subject of bias during voir dire, the Chief Judge, in consultation with the Chief Administrative Judge and the Administrative Board of OCA could implement such a change. See id. ²¹9 See, e.g., Kris Olson, New jury instructions take aim at implicit bias, MASS. LAWYERS WEEKLY (Jun. 20, 2019), https://masslawyersweekly.com/2019/06/20/new-jury-instructions-take-aim-at-implicit-bias/; Criminal Jury Instructions, U.S. DIST. CT. W. D. WASH., , https://www.wawd.uscourts.gov/sites/wawd/files/CriminalJuryInstructions-ImplicitBias.pdf; Cahfornia Civil Jury Instructions, CACI No. 113, JUD. COUNCIL CAL. (2020) https://www.courts.ca.gov/partners/documents/Judicial Council of California Civil Jury Instructions.pdf; Illinois Circuit Court Civil Jury Instruction 1.08, ADMIN. OFFICE ILL. CTS. (May 2019) https://courts.illinois.gov/CircuitCourt/CivilJuryInstructions/1.08.pdf. 2²° N. J. See Commitment to Eliminating Barriers to Equal Justice: Immediate Action Items and Ongoing Efforts, JUD. (Jul. 16, 2020). https://www.nicourts.gov/public/assets/supremecoutactionplan.pdf. 84 FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/13/2023 We recommend that OCA develop a policy for judicial and non-judicial personnel that provides clear guidance and limits on the use of social media - whether in an official or personal - in a manner that has negative implications for the New York state court capacity system. Our reading of the law is that such a policy is legally permissible. To be sure, public employees have a right under the First Amendment and Article I, Section 8 of the New York State Constitution to freely express themselves in their own personal use of social media, particularly when it comes to matters of public concern. Employees also have a statutory right under the National Labor Relations Act to use social employment.221 media to organize and address the terms and conditions of their However, courts have held that a public employer may limit and discipline certain public speech that is offensive and reflects poorly on the employer. In general, state employers cannot "condition public employment on a basis that expression." infringes the employee's constitutionally protected interest in freedom of Connick v. Meyers, 461 U.S. 138, 142 (1983). However, employees who speak on subjects related to their official duties receive less First Amendment protection. See, e.g., Garcetti v. Ceballos, 547 U.S. 410 (2006) (holding that district attorney who wrote a memo recommending dismissal of criminal charges based on a deficient warrant and who later testified on behalf of the defense did not enjoy First Amendment protection because his speech pertained to his official duties). employees be disciplined for off- Likewise, may duty speech that is unrelated to their official duties if there is a government justification speculation" "far stronger than mere that the speech will interfere with efficient delivery of public services. See, e.g., City of San Diego v. Roe, 543 U.S. 77 (2004) (holding that police department could discipline officer who identified himself as a member of law enforcement when selling videos of himself stripping online because he "took deliberate steps to link his videos and other wares to his police work, all in a way injurious to his employer.") Federal Courts in the Second Circuit have held that an employee for off- disciplining duty, non-work-related speech does not violate the First Amendment if "(1) the employer's prediction of disruption is reasonable; (2) the potential disruptiveness is enough to outweigh the value of the speech; and (3) the employer took action against the employee speech." based on this disruption and not in retaliation for the Locurto v. Giuliani, 447 F.3d 159, 172-73 (2d Cir. 2006) (citing Jeffries v. Harleston, 52 F.3d 9, 13 (2d Cir.1995)). In Locurto, a police officer and firefighter were fired after participating in a Labor Day float" "funniest parade contest in which their float mocked Black people and the Civil 221 29 U.S.C. §§ 151-69. 85 FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/13/2023 Rights movement in various ways including recreating the dragging death of James Byrd Jr.222 More recently, a federal district court applied Locurto's reasoning in the context of social media when ruling on a motion to dismiss in Festa v. Westchester Medical Ctr. Health Network, 380 F. Supp. 3d 308 (S.D.N.Y. 2019). The plaintiff in that case, a compliance coordinator for a public hospital, logged onto Facebook one evening on her bad" personal computer and commented on a local news channel's page that it was "too a funnel cloud projected to affect the area of a Hasidic community "didn't suck them all away." The court stated that the public hospital could reasonably conclude that the employee's post would disrupt its ability to serve the local community and "cause harm ranks" mistrust." within the of the hospital "by promoting resentment and Id. at 319, 321. We note that other court systems around the country have implemented social media employees' policies to ensure that online activity does not undermine public confidence in justice.223 the operation of the courts and the application of For example, the Nebraska State Supreme Court prohibits its employees, in their personal capacities, from posting "[s]tatements, comments, or images that disparage any race, religion, gender, sexual origin," orientation, disability, or national as well as "any communication that engages in harassment" environment" personal or sexual or that "would contribute to a hostile work grounds.224 on racial, sexual, or religious The Colorado Judicial Department more broadly prohibits employees from "making statements which negatively reflect on the professionalism of the courts . . . or which otherwise have an adverse effect on the confidence of the pubic in the integrity, propriety and impartiality of the judicial system."225 We recommend that OCA, after consultation with stakeholders, issue a social media policy for its personnel along the same lines. A social media policy may prohibit communications that constitute harassment or racially offensive remarks, but should be 222 James Byrd Jr. was a Black man who, months before the parade, had died after being chained to the back of a moving pickup by three truck white men. See, Juan A. Lozano, Texas Town Reflects on Dragging Death Ahead of Execution, AP NEWS (Apr. 21, 2019), https://apnews.com/b3097455flab499695fa2553ed636258. 223 See, e.g, Directive Concerning Colorado Judicial Department Employee Policies, Chief Justice Directive 08-16, OFFICE CHIEF JusT. 1, 19 (June 28, 2013), https://www.courts.state.co.us/userfiles/file/Administration/HR/Policies/CJD%2008-06%20amended%2007- 13.pdf [hereinafter Colorado Judicial Department Social Media Directive] ; Nebraska Non-Codified Supreme Court Rules and Best Practice Guidelines and Standards, Other Personnel-Related Policies: Social Media, NEB. JUD. BRANCH, https://supremecourt.nebraska.cov/personnel-and-miscellaneous-rules/other-personnel-related- policies/2-use-social-media (last visited Sept. 24, 2020) [hereinafter Nebraska Judicial Branch Social Media Policy] 2²* Nebraska Judicial Branch Social Media Policy, supra note 224. 225 Colorado Judicial Department Social Media Directive, supra note 224. 86 FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/13/2023 drafted in a way that will not prohibit protected activities under the National Labor Relations Act. F. Strengthen the IG Process for Bias Complaints Numerous interviewees also expressed concerns and uncertainties about OCA's policies and procedures for handling complaints of racial bias and discrimination. After consulting a retired Inspector General with extensive experience in the U.S. government and other sources, we recommend that OCA adopt the following best practices to improve its complaints and investigations processes. given the number of interviewees -judicial and non-judicial - who were unaware First, that mechanisms for making bias complaints even existed, we recommend that OCA engage in a robust campaign to educate court system participants about the existence and purpose of these offices and the procedures to lodge a bias complaint. This should include training for all personnel on how to submit a complaint of racial bias and discrimination, and conspicuous signage in courthouses advertising the existence of these offices. As one expert in inspector general policies and procedures suggested, it should be made clear that OCA's IG office, including its Bias Matters Unit, exists not only to identify waste, fraud and abuse, but also to address matters of racial bias. retaliation" Second, we recommend that OCA clarify its "no policy in order to better assuage concerns that interviewees across the spectrum cited about filing complaints. While the current policies state that retaliation is prohibited, the definition of retaliation provided in OCA's discrimination booklet is narrow, difficult to understand and only provides a few examples of very formal, work-related retaliation, such as termination or a salary.226 demotion with a decrease wage or in The policy does not indicate that more informal or non-work related forms of retaliation are also prohibited, such as making disparaging comments about the complainant to others, or scrutinizing work or attendance more than other employees without justification - which be considered closely may "retaliation" law.227 under federal We recommend that, similar to the EEOC's Enforcement Guidance on Retaliation and Related Issues, the revised policy more broadly define retaliation, and provide specific examples of both informal and formal, as well as retaliation.228 work related and non-work related forms of Similarly, the policy should 226 The policy states that "examples of forms of retaliation may include termination of employment, a demotion with a decrease transfer," in wage or salary, a significant loss of benefits, or a that may raise to a violation of "UCS laws." policy [and] state and federal OCA Discrimination Claim Policy & Procedure, supra note 176 at 16. 227 915.004, OFFICE OF LEGAL COUNSEL (Aug. 25, 2016), https://www.eeoc.gov/laws/guidance/enforcement- guidance-retaliation-and-related-issues#B. 223 Id (citing Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006)). 87