Unvaxxed Judges Face Misconduct Claims

Image: Judge Jenny Rivera


The many lawsuits, petitions, applications for relief, and requests for consideration of accommodations and exemptions are flooding the Courts right now in New York State. Even the Courts have personnel who are in need of accommodations or exemptions and are being denied or fired, as we can see in the post below. What all of this shows, if I can be so bold, is that New York City is mismanaged, unprepared, and full of political egos who will not listen any voice but their own.

The COVID vaccine is a necessary medical solution to the pandemic, for sure. But to force someone to get vaccinated when they have medical contraindications and could die, is absurd. Similarly disturbing is to force someone to get the vaccine who lives with a sincere religious belief that they cannot get the COVID vaccination, and then terminate them. New York City isn’t alone in this volcanic eruption of unfairness (although outside of New York City there are many counties without any vaccine mandate), as we have seen in the case of Sister Dierdre Byrne.

Finding solutions, telework, remote hearings and a thousand other creative ideas could be implemented, most without any extra costs attached.

Let’s do this.


UPDATE: New York Law Journal April 19, 2022:

Rivera, Apparently a Holdout to Vaccine Mandate, Participates Remotely in NY High Court Arguments

Lucian Chalfen, spokesman for New York’s Unified Court System, said Rivera “continues in not meeting our qualification for employment and remains out of compliance with our vaccine mandate. As such she will be barred from entering her chambers or any court facility and must work from home.”

April 19, 2022 at 06:01 PM

New York Court of Appeals Judge Jenny Rivera apparently remains a holdout to the state court system’s mandate for vaccination against COVID-19.

Rivera participated in Tuesday’s oral arguments about a deported Mexican national remotely.

Rivera appeared on a pair of television monitors: one that faced fellow judges; the other pointed toward spectators.

Lucian Chalfen, a spokesman for New York’s Unified Court System, said Rivera “continues in not meeting our qualification for employment and remains out of compliance with our vaccine mandate. As such she will be barred from entering her chambers or any court facility and must work from home.”

Tuesday’s high court session centered on oral arguments by attorney Mark Zeno of Manhattan, who says his client was owed a jury trial before he was ousted from the U.S., and Manhattan Assistant District Attorney David Cohn.

Zeno’s client, Cesar Garcia, was convicted in 2016 of lewd acts on a Manhattan subway.

Garcia was arrested by two plainclothes officers who followed him as he traveled on the Lexington Avenue subway line in Manhattan in June 2015, after they saw him masturbate on a platform at Union Square, rub up against a woman on a northbound subway car, and rub up against another woman on a southbound train.

Garcia was charged with five Class B misdemeanors: two counts each of forcible touching and sexual abuse and one of public lewdness.

The undocumented immigrant moved for a jury trial, despite the fact that Class B misdemeanors are considered “petty offenses” that do not require a jury trial under the 6th Amendment.

Garcia argued he would be subject to deportation under federal immigration law if he were convicted, a serious consequence that should entitle him to a jury.

Criminal court denied Garcia’s motion. A bench trial in August 2016 convicted Garcia of public lewdness and acquitted him of the other four counts. He was sentenced to seven days of community service.

As Garcia’s case was in state appellate court, the New York Court of Appeals held for the first time that a noncitizen defendant is entitled to a jury trial if he demonstrates that a charged crime carries the potential penalty of deportation.

That case, called People v. Saylor Suazo, centered on domestic violence offenses.

In 2019, the Appellate Term, First Department, affirmed Garcia’s conviction, asserting he was not entitled to a jury trial because he failed to meet his burden to establish that a conviction for public lewdness carries the potential for deportation.

Zeno, the assistant attorney in charge at the Center for Appellate Litigation, said the Court of Appeals decision in Suazo guarantees a jury trial for his client under the 6th Amendment.

Zeno said the language in the Suazo case’s motion was “almost identical” to his.

Zeno went on to say the court’s precedent for 30 years has required counsel to anticipate changes in the law and make timely objections.

Cohn responded that the Court of Appeals has never applied either the preservation rule or the Lafontaine rule against a respondent in a criminal case where there’s been an intervening change in the law.

The LaFontaine rule provides that intermediate appellate courts may consider and determine any question of law or issue of fact involving an error or defect in the criminal court proceedings which may have adversely affected the appellant.

Even where a new rule applies retroactively on an appeal, as in the Garcia case, the courts don’t grant relief to the party, Cohn argued.

Court of Appeals Judge Madeline Singas recused herself from the Garcia case, for reasons that weren’t publicly explained. Judge Joanne Winslow from the Appellant Division, Fourth Department, in Rochester, served as visiting judge in Singas’ stead.

Earlier this month the court system announced that Rivera, who has been working remotely for months, faces possible sanctions that could result in her removal from office because of her refusal to get the vaccine.

Rivera’s stance has apparently continued nearly two weeks after the New York Court System sent 103 non-judicial employees termination letters for not getting vaccinated for COVID-19.

NY Court System Fires 103 Unvaccinated Workers

Law360 (April 6, 2022, 1:20 PM EDT) — New York state court administrators said Wednesday that 103 employees have been fired and another 12 resigned or retired after they failed to comply with a COVID-19 vaccine mandate. Four unvaccinated judges also face possible misconduct claims, including Judge Jenny Rivera on the state’s high court.

After saying last month that 156 employees faced termination for failing to comply with the mandate, the Office of Court Administration on Wednesday said 41 employees got vaccinated. Of the remaining employees, 103 were fired, 1 resigned and 11 retired.

Four judges also received written warnings. Court officials do not have the power to fire judges that flout the mandate, but they have made clear they intend to refer them to the independent judicial ethics watchdog, who can remove them.

Officials for court employee unions have fought OCA’s efforts to fire workers over the vaccine mandate, arguing the state violated collective bargaining agreements. Unions were in grievance hearings as recently as Tuesday seeking to block the decision, and some employees continue to fight the mandate in court.

Four unvaccinated court reporters who sued the court system in federal court dropped their lawsuit in March. Lead plaintiff Cheryl Ferrelli, however, has refused to comply.

“It’s a very, very sad situation what the court system has done to these people,” said Sheldon Karasik, attorney for the court reporters. He said three of his clients chose to be vaccinated, and a fourth plans to do so, albeit unhappily, because they were “under financial duress.”

U.S. District Judge Lawrence Kahn denied the state employees’ attempt to block enforcement of the mandate in March after the Second Circuit refused a proposed injunction against New York City’s vaccination requirement.

Ferrelli will fight on in a new case filed Wednesday in state court, which adds a principal appellate attorney, a judicial secretary, a secretary and a court officer as plaintiffs. Karasik acknowledged that his new clients in the state case will likely lose their jobs.

In a separate case, about 100 court employees await a decision from state Supreme Court Justice Kevin M. Nasca on their request for a preliminary injunction and OCA’s motion to dismiss the case. The employees claim the mandate violates their constitutional rights to privacy, due process, equal protection and freedom of expression.

The judge heard oral argument on Monday but reserved his decision, even as the firings loomed.

The OCA has said the mandate is an important way to protect the health and well-being of its employees and the public. So far, the state has successfully defended the policy in court.

Critics of the vaccination policy say there is a “double standard” in which judges have been allowed to ignore the mandate and work from home while unvaccinated nonjudicial court employees aren’t allowed to work and have their vacation days docked as they face the prospect of termination.

Law360 previously reported on two judges who have failed to meet the mandate.

In October, two court employees said Court of Appeals Judge Jenny Rivera has provided no proof of vaccination and filed no exemption request, and has continued handling cases remotely.

And in January, Law360 reported that Poughkeepsie City Court Judge Frank M. Mora, who is unvaccinated, defied the court system’s policies by repeatedly returning to the courthouse maskless and presiding over criminal proceedings remotely. He was stripped of criminal cases but is still working remotely.

While court administrators have no power to discipline judges under the state constitution, the unvaccinated judges “are being held to account,” state courts spokesman Lucian Chalfen said last month. “Any judge not in compliance subjects themselves to a referral to the Commission on Judicial Conduct for their determination.”

The commission can investigate, publicly reprimand or remove judges for ethics violations via secret proceedings that can span 18 months or more while investigators gather evidence, internal counsel draws up charges and the judge’s attorney argues before the commissioners.

Jermaine Dublin, a Poughkeepsie court officer who worked in the same courthouse as Judge Mora, was placed on unpaid leave in January after refusing to be vaccinated. But Dublin told Law360 he decided to comply with the rule on Friday, shortly before the deadline, after facing the prospect of unemployment and seeing little movement in the unions’ efforts to roll back the mandate.

“I received the shot. Another worker up the street, she got the shot,” Dublin said. “I’ve got little kids.”

“I waited until the last minute I could wait,” he added.

Robert Portas, who was a court reporter for 26 years, resigned in order to preserve his health care coverage after his request for a religious exemption was denied. He said he never received any rationale for his denial and had no right to appeal the decision.

“Due process went out the window with this,” Portas told Law360.

Anne Gallagher, a court assistant in Nassau County, told Law360 on Wednesday morning that she expects a termination letter after refusing the vaccine. She said a previous warning letter was delivered by hand by the district executive and three officers with their hands hovering over their guns, calling the episode “very upsetting.”

“I didn’t want anything to do with fetal cell lines from aborted babies,” Gallagher told Law360, citing a common argument among people citing religious objections to the vaccine mandate.

None of the vaccines contain abortion-derived cells. The Pfizer and Moderna vaccines used fetal cell lines during testing, and the Johnson & Johnson vaccine used a fetal cell line in manufacturing and production.

Gallagher also said she never received an explanation for her exemption denial.

“I don’t understand why they’re so angry about my not getting vaccinated,” Gallagher said, citing lower numbers of COVID-19 cases. “They just dug in their heels and said we will not be disobeyed. It feels like that’s what I’m being punished for — not obeying a judge.”

–Additional reporting by Rachel Stone. Editing by Brian Baresch.
For a reprint of this article, please contact reprints@law360.com.

Related Articles

 NY Courts To Fire Unvaccinated Workers In April

Unvaxxed NY Judge Stripped Of Most Criminal Cases

Unvaxxed NY Judge Defies Courthouse Ban As Others Ousted

Citigroup Staff Must Vax, Or Get The Ax, By Mid-January

Another BigLaw Firm Announces Employee Vax Mandate

Be the first to comment

Leave a Reply