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Ben Schaefer,, 212-607-3372

October 1, 2021

Recent Report Reveals Administrative Agency Issuing Legal Instructions to Judges

NEW YORK – Yesterday, the New York Civil Liberties Union wrote to Chief Judge of the New York Court of Appeals Janet DiFiore and Chief Administrative Judge Lawrence Marks about the Office of Court Administration’s practice of issuing secret directives to judges instructing them on how to interpret court decisions affecting important constitutional rights. The NYCLU submitted a FOIL and expressed serious concerns about this practice, requesting that the OCA provide copies of all memos of this type issued over the last ten years.

“Judges decide cases every day that affect the lives and rights of people throughout New York state, and it is critical that this decision-making is independent and transparent to the public,” said Daniel Lambright, senior staff attorney from the NYCLU. “But the OCA, which is an administrative agency and not a court, appears to be directing judges how to rule on cases through internal memos not made known to the public.”

The practice recently came to light with the revelation of an OCA memo, marked “confidential,” instructing judges to adopt a restrictive reading of an important court decision safeguarding the due process rights of New Yorkers. The OCA is the administrative arm of the court system, tasked with overseeing the operations, staffing, and day-to-day support of New York’s courts.

In June 2021, a New York appellate court issued a landmark decision in Crawford v. Ally, holding that New York must provide people charged with crimes a hearing before they can be subjected to an order of protection that may remove them from their home or otherwise separate them from their families. In July, reporting from New York State Focus revealed that the OCA had issued a memo instructing judges that this decision does not require them to hold full and robust hearings.

The Crawford ruling was especially important for protecting the rights of Black and brown defendants, who are disproportionately impacted by the issuance of orders of protection with minimal process. Several public defender groups and legal service providers, including Brooklyn Defender Services, The Bronx Defenders, Neighborhood Defender Services, and The Legal Aid Society, have raised concerns about the impact of this practice.

“If the OCA is playing a significant role in shaping how judges decide cases, and especially cases that impact the rights of people from marginalized communities, then the public deserves to know,” said Terry Ding, staff attorney from the NYCLU. “If courts do not properly hold the hearings Crawford ordered, the risk of harm to New York’s Black and brown communities would be particularly great. We want to know what other guidance the OCA has issued, and the extent to which judges are adopting these interpretations.”

You can read the letter and FOIL request here: