Judicial branch lawsuit - June 2020

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JAMES J. RUANE, ESQ MIGUEL CASTRO RICHARD BROWN JUAN VASQUEZ

: 3:20 CV 813 : : : Plaintiffs,

v.

HONORABLE PATRICK CARROLL, III Defendant.

(XXX)

:

: : : : : : JUNE 12, 2020

COMPLAINT 1.

This is an action for declaratory and injunctive relief to redress the deprivation by the defendant of rights secured to the plaintiffs of substantive and procedural due process afforded by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, Art 1, Sections 8, 10, and 12 of the Connecticut Constitution and Connecticut General Statutes, access to the state courts of Connecticut, and reasonable accommodation requests under the ADA.

2.

During all times mentioned in this action, Plaintiff James J. Ruane was and still is, an adult citizen of the United States, residing in Connecticut.

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3.

During all times mentioned in this action, Plaintiff Angel Miguel Castro was and still is, an adult citizen of the United States, residing in Connecticut.

4.

During all times mentioned in this action, Plaintiff Richard Brown was and still is, an adult citizen of the United States, residing in Connecticut.

5.

During all times mentioned in this action, Plaintiff Juan Vazquez was and still is, an adult citizen of the United States, residing in Connecticut.

6.

During all times mentioned in this action, Defendant Honorable Patrick L. Carroll, III, was, and still is, the Chief Court Administrator of the Connecticut Judicial Branch. He is the chief policymaker and decision-maker of the Connecticut Judicial Branch.

7.

The Chief Court Administrative position is created by statute, C.G.S. Section 51-1b, and such person serves at the pleasure of the Chief Justice of the Connecticut Supreme Court.

8.

The Chief Court Administrator is the administrative director of the Connecticut Judicial Department and is responsible for the efficient operation of the department, the prompt disposition of cases, and the prompt and proper administration of the judicial business.

9.

. The Chief Court Administrator is tasked to take any action necessary in the event of a major disaster, emergency, civil preparedness emergency or disaster emergency, or public health emergency, to ensure the continued efficient operation of the Supreme, Appellate and Superior Courts, the prompt

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disposition of cases and the proper administration of judicial business, which necessary action may include: (A) Establishing alternative locations to conduct judicial business in the event that one or more court locations cannot be used, (B) suspending any judicial business that is deemed not essential by the Chief Court Administrator, and (C) taking any other appropriate action necessary to ensure that essential judicial business is effectively handled by the courts.

10.

The defendant, during all times mentioned in this action, acted under color of law of the Constitution and laws of the United States, the laws and Constitution of the State of Connecticut. He is sued only in his official capacity.

11.

The Connecticut Judicial Branch was not adequately prepared to address a pandemic or prolonged closure.

12.

In the past, the Connecticut criminal courts have taken weeks to recover during the rare occasion event the court close for a few consecutive days due to a significant snowstorm.

13.

Upon information and belief, the defendant was aware of the potential for the disruption of judicial operations.

14.

About 15 years ago, Hurricane Katrina devastated the City of New Orleans where several courthouses were severely damaged or destroyed.

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15.

In May of 2019, the National Center for State Courts conducted a Summit on Pandemic Preparedness.

16.

On March 10, 2020, Governor Ned Lamont declared public health and civil preparedness emergencies throughout the state.

17.

In the thirteen weeks since the proclamation of a state of emergency, the Judicial Department has conducted limited business other than arraignments.

18.

Notwithstanding the unpreparedness of the Judicial Branch to deal with the COVID-19 pandemic, the defendant, in the past thirteen weeks, has not fulfilled his statutory charge of ensuring the prompt disposition of cases and the proper administration of judicial business.

19.

During the thirteen weeks, the Judicial Branch, at the direction of Judge Carroll, begun to remotely conduct civil business including pre-trials and status conferences.

20.

In his response to the COVI-19 epidemic and the reopening of court services, Judge Carroll has prioritized the civil section of the judicial branch.

21.

The Connecticut Judicial Branch has a demonstrated history of addressing civil matters over criminal matters as evidenced by its e-filing process. For several years, though e-services, civil litigants have been able to file motions and documents in most matters. The public, without a password or fee, may, in civil matters only. review nonprotected filings and docketed entries, and print materials free of charge.

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22.

The Judicial Branch only permits the viewing of the name, docket number charges, and next court appearance in criminal matters. The Judicial Branch does not permit the e-fling of motions or documents in criminal matters.

23.

In contrast, the federal courts, under PACER or CM/ECF, permit the filing of motions and documents in criminal and habeas matters, and such documents, unless sealed, are searchable by the general public.

24.

On March 31, 2020, the Judicial Conference of the United States approved the use of video and teleconferencing for criminal proceedings in federal matters.

25.

In contrast to Connecticut, during these eleven weeks, the federal courts in the District of Connecticut have handled criminal matters, including arraignments, pleas, and sentencings via video conferencing shortly after the COVID court closures took effect.

26.

Several states have been conducting criminal matters by video; including New Jersey since March 16th, California, Alaska, North Dakota. Texas since March 24th, Michigan, Florida, New York since March 22nd, and Massachusetts since May 14th.

27.

The state courts in Michigan have criminal court calendars captioned on Zoom with live feeds to the public. https://3rdcc.org/divisions/criminal/virtual-courtroommeeting

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28.

Jurisdiction of this Court is invoked under the provisions of Sections 1331, 1343, and 1367(a) of Title 28 and the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and 42 U.S.C. Section 1983.

29.

Plaintiffs’ declaratory and injunctive relief is authorized by 28 U.S.C. 2201, 2202, and Federal Rule of Civil Procedure Rules 23, 57, and 65.

30.

On March 10, 2020, by executive order No. 7G, Governor Ned Lamont, upon consultation with Judge Carroll, suspended noncritical court operations and identified priority 1 matters.

31.

The priority1 matters include, and are limited to the following types of cases.

a.

Criminal arraignments of defendants held in lieu of bond and all arraignments involving domestic violence cases;

b.

Juvenile Detention hearings

c.

Family orders of relief from abuse

d.

Civil orders of relief from abuse

e.

Civil protection orders

f.

Ex parte motions

g.

Orders of temporary custody (Juvenile Matters)

h.

Orders to appear (Juvenile Matters)

i.

Emergency ex parte order of temporary custody

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j.

Juvenile detention operations for detainees held for juvenile court

k.

Termination of parental rights

l.

Domestic violence victim notification

m.

Civil and family capias mittimus execution and bond review.

32.

On March 12, 2020, all Connecticut State jury trials were postponed.

33.

On March 18, 2020, the Judicial Branch expanded priority one business to 13 courthouses.

34.

On March 26, 2020, physical entrance into a Connecticut state courthouses were limited to individuals who are: a.

filing or have a hearing for a Temporary Restraining Order;

b.

filing or have a hearing for a Civil Protection Order;

c.

filing or have a hearing on an emergency Ex Parte motion for custody, or

d.

29.

are involved in a criminal arraignment or other criminal proceedings On April 3, 2020, the Judicial branch instituted a policy permitting

the remote filing of temporary restraining orders. Restraining order applications may be filed by email or fax.

30.

On April 15, 2020, the courts began accepting nonpriority civil and family matters.

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31.

.

On April 17, 2020, the judicial department reinstated non arguable

short calendar sessions.

32.

On April 29, 2020, the Judicial Department court issued an order permitting hearings on applications for temporary restraining orders, or on the extension or alleged contempt thereof; and hearings on applications for emergency orders of custody on which ex-parte relief has been granted.

33.

On May 1, 2020, an order was issued permitting judges to rule on civil arguable short calendar matters that are marked take papers.

34.

On May 7, 2020, the court authorized telephonic family pre-trials and status conferences.

35.

On May 7, 2020, the judicial branch announced that it would resume its daily schedule of civil pre-trials, trial management conferences, and status conferences by video link or telephone.

36.

On May 2020, the judicial branch indicated that it was conducting video conferencing for arraignments, and indicated that protective orders may be subject to review pursuant to State v Fernando A. The criminal video arraignment hearings require the defendant and their counsel to be physically present in court.

37.

On June 1, 2020 Judge Carroll was quoted in the New Haven register Carroll noting that “technical limitations of legacy

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systems limit the opportunities for electronic filing by external users.�

38.

Judge Carrol stated that Zoom was not being used due to security risks. Judge Carroll stated that judicial has successfully deployed and utilized other video conference programs, including WEBEX and Microsoft Teams to conduct a wide range of video conferenced proceedings across all divisions.

39.

On June 4, 2020, Judge Carroll was quoted by Connecticut Post and commented that family court has held over 600 remote status or settlement conferences and disposed of more than 300 divorce cases remotely. Civil court has conducted close to 1,000 remote events and has ruled on more than 7,000 short calendar matters. Juvenile Court is holding remote detention hearings each day of operation and reviewing permanency plans remotely.

40.

As of June 8, 2020, upon information and belief, the judicial branch has just begun conducting remote criminal pre-trials in certain matters, but has not, or cannot, remotely conduct plea, hearings, sentencing or hearings, other criminal hearings.

41.

The current procedure for video arraignments and hearings permits the judge and court reporter to remain in a separate room and screened

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from each other by a plastic partition. Prosecutors and public defenders appear at the courthouse by video from their respective offices. Private attorneys are required to appear at the courthouse before a video camera, inches away from their clients, and within a short distance from marshals violation of the 6-foot social distancing guidelines. Private attorneys are required to appear at the courthouse, wait with the other attorneys and defendants before their matter being addressed by the court.

42.

The May 13, 2020 order further indicated that motions for bail review, sentence modifications, competency to stand trial hearings were being conducted.

43.

On May 28, 2020, the Judicial Branch issued an update regarding its remote capabilities, noting that: a.

all civil pre-trials, trial management conferences, status

conferences and civil short calendars are being conducted remotely. b.

criminal matters are limited to arraignments, competency

hearings and sentence modifications. c.

family pretrial and status conferences are being held

remotely via video or phone.

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COUNT ONE

DEPRIVATION OF PROCEDURAL DUE PROCESS RIGHTS OF

A NON-CUSTODIAL CRIMINAL DEFENDANT 1-43

Plaintiff repeats and realleges each allegation contained in paragraphs 1-39 hereinabove with the same force and effect as if fully set forth herein.

44.

Although the courts are handling civil restraining order and protective order hearings, Fernando A. hearings challenging protective orders are not being scheduled.

45.

Plaintiff Angel Miguel Castro was arrested and accused of committing family violence crimes.

46.

He posted bail and appeared in court with counsel.

47.

At his video court appearance, the logistics of his appearance with his attorney required him to stand inches away from each other so the court video camera could capture each participant.

48.

The plaintiff, through his counsel. objected to the protected order and requested a Fernando A. hearing to challenge the issuance of the protective order.

49.

Under the Judicial Branch orders in place at the time, the trial court was unable to schedule a firm date for such hearing because the Fernando A. Hearings did not fall within Priority one matters as designated

by Judge Carroll.

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50

The acts complained of, especially the policies set in place by Judge Carroll, deprived Plaintiff, Miguel Castro of his 14th Amendment right to due process, and his 6thAmendment Right to confront his accusers.

51.

The differentiation of judicial branch policies toward criminal and civil matters has no rational basis.

COUNT TWO DEPRIVATION OF DUE PROCESS OF A DETAINED CRIMINAL DEFENDANT 1-39.

Paragraphs one through 1-39 of Count One are hereby incorporated as paragraphs 1-39 of Count Two.

40.

Plaintiff Richard Brown is currently held on bond and has several pending criminal matters in the Fairfield Judicial District.

41.

Mr. Brown’s cases have been rescheduled numerous times because they do not fall within priority 1 matters.

42.

Mr. Brown has been deprived of his opportunity to have a judicial pretrial, litigate, or effectively seek outstanding discovery.

43.

As a result of the policies of the defendant Plaintiff Richard Brown’s procedural due process rights, protected by the 14th amendment, have been violated.

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44.

The differentiation of judicial branch policies toward criminal and civil matters has no rational basis.

COUNT THREE DEPRIVATION OF DUE PROCESS RIGHTS OF A HABEAS LITIGANT 1- 39.

Paragraphs one through forty-five of Count One are hereby incorporated as paragraphs one through forty-five of Count Four.

40.

Article I, Section 9, of the United States Constitution secures the privilege of the writ of habeas corpus and does not permit its suspension, absent rebellion, or invasion.

41.

The Connecticut State Constitution, Article I, Section 12 only permits the suspension of habeas corpus by the legislative in situations of rebellion or invasion.

42.

Plaintiff Juan Vazquez is a habeas petitioner whose case is pending in the Rockville Superior Court.

43.

On October 18, 2018, the trial court scheduled Mr. Vazquez’s habeas trial for June 25, 2020.

44.

On February 25, 2020, the court scheduled a trial management conference for April 3, 2020.

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45.

On March 27, 2020, at the direction of the Chief Court Administrator, Defendant Judge Carroll, the habeas trial court canceled the trial because habeas matters are considered nonpriority civil matters.

46.

The cancellation notice indicated that the matter will be rescheduled in due course.

47.

The acts complained of deprived Plaintiff, Vasquez, of his federal constitutional right to present his habeas claims absent rebellion or invasion.

48.

The cancellation of his habeas trial exceeded the state constitutional authority of the trial court or Defendant Chief Court Administrator, as habeas matters may only be suspended by the legislature, and resulted in the deprivation of his substantive due process rights.

49.

The differentiation of judicial branch policies toward criminal and civil matters has no rational basis.

50.

Upon information and belief, the judicial branch is only hearing emergency COVID -19 habeas matters and suspended substantive non COVID -19 habeas hearings.

51.

As a result of the policies of the Judicial Branch, as established by the Defendant Chief Court Administrator, Plaintiff Vasquez was deprived of his procedural due process rights.

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52.

The differentiation of judicial branch policies toward criminal and civil matters has no rational basis.

COUNT FOUR

DEPRIVATION OF FEDERAL RIGHTS PROTECTED BY THE

AMERICANS WITH DISABILITIES ACT 1-39.

Plaintiff repeats and realleges each allegation contained in paragraphs 1-39 hereinabove with the same force and effect as if fully set forth herein.

40.

The Centers for Disease Control (‘CDC’)have identified those people 65 years and older as high risk for severe illness from COVID-19.

41.

Further, the Centers for Disease Control identified other factors that place individuals of all ages at a high risk of severe illness from COVID including coronary artery disease.

42.

The CDC’s COVID-19 recommendations have been endorsed by the Connecticut Department of Public Health, (“CT DPH”), https://portal.ct.gov/-/media/Coronavirus/Fact-Sheets/COVID19-High-RiskFact-Sheet.pdf

43.

Plaintiff James J. Ruane is a criminal law practitioner who has been admitted to the bar of Connecticut since October 4, 1977.

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44.

Attorney Ruane is over the age of 65 and has heart disease and high blood pressure.

45.

Title II of the Americans with Disabilities Act (“ADA�) requires state government services, including courts.

46,

The Connecticut Judicial Branch, on its website, https://www.jud.ct.gov/ADA/faq.htm has stated its long-standing commitment to carrying out the objectives of the Americans with Disabilities Act (ADA). Title II of the ADA requires public entities, such as the Connecticut Judicial Branch, to accommodate individuals with disabilities by providing equal access to their services, programs, and activities.

47.

Under the ADA a disability includes cardiovascular disorders and heart disease.

48.

The ADA provides for the use of video remote interpreting that uses video conference technology.

49.

The ADA requires a state to provide accommodations for those with a disability including which may include video or telephone services.

50.

The current policies and court arraignment procedures of the Judicial Branch violate the social distancing recommendations of the CDC and the CT DPH.

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51.

The failure to conduct criminal court proceedings by remote video or telephone place attorneys who meet the criteria of medical disability vulnerable to severe risk of illness.

52.

The differentiation of judicial branch policies toward criminal and civil matters has no rational basis.

Robert Berke By their Attorney /s/ Robert Berke __________________________ Robert M. Berke Law Office of Robert Berke, LLC 640 Clinton Avenue Bridgeport, CT 06605 203 332-6000 203 332-0661 fax Bar No. 22117 robertberke@optonline.net

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Requested Relief

WHEREFORE, the plaintiffs respectfully request the following relief:

A. As to the First Second and Third Counts, declaratory judgment that enforcement of the Judicial Branch’s current policies, as alleged herein, violate the Plaintiffs’ due process rights under the Constitution of the United States as guaranteed by 42 U.S.C. § 1983, and an order allowing Defendants a reasonable but prompt amount of time to correct the violations;

B. As to the Second through Fourth Claims, appoint a Special Master or panel of Special Masters to find facts and make recommendations regarding the modifications of the Judicial Branch’s policies.

C. As to the Fourth Count, issue a declaratory judgment stating that in light of the current public health emergency caused by COVID-19 and executive orders pertaining to social distancing and further orders requiring Connecticut citizens stay at home and shelter in place, the Judicial Branch’s policy requiring private retained attorneys to appear in-person at court for hearings, is violative of federal law and/or unconstitutional and cannot be constitutionally enforced;

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C. Attorney’s fees pursuant to 42 U.S.C. § 1988, and costs; and

D. Such other and further relief as the Court may deem proper

WHEREFORE, the Plaintiffs pray for judgment against the Defendant for such requested relief.

The Plaintiffs By their Attorney

/s/ Robert Berke __________________________

Law Office of Robert Berke, LLC 640 Clinton Avenue Bridgeport, CT 06605 203 332-6000 203 332-0661 fax Bar No. 22117 robertberke@optonline.net