The Administrative Board of the Courts is seeking public comment on a proposal, proffered by the Chief Judge’s Advisory Committee on Access for People with Disabilities (“Advisory Committee”), to adopt a new Rule of the Chief Judge (Part 52, 22 NYCRR § 52) that would authorize trial court judges to entertain, on an ex parte basis, certain requests for disability accommodations made pursuant to the Americans with Disabilities Act (“ADA”) (Exhibit A Proposed Rule). The Advisory Committee believes that the proposed rule is critical to promoting access to justice for individuals with invisible disabilities and that the rule properly balances confidentiality against the due process and ethical concerns implicated.
Although the provision of auxiliary aids and supportive services—such as assistive listening devices, sign language interpreters, Braille materials, and CART reporting—may be accomplished by clerical, administrative, and other non-judicial staff, some types of reasonable accommodations for court users with disabilities must be obtained through judicial, rather than administrative, action. These judicial accommodations include adjournments, extended time to submit papers, remote appearances, schedule changes, and the way testimony is given. Requests for these types of accommodations require the exercise of a judge’s inherent authority over the courtroom and the parties to a proceeding. Such requests are by their nature beyond the power of court administrators to grant or deny.
To receive an accommodation under the ADA, a person must self-identify as having a covered disability. While certain disabilities, such as a mobility impairment requiring the use of a wheelchair, are readily observable, others are non-apparent or “invisible,” such as diseases and conditions substantially affecting bodily organs or systems; conditions causing chronic illness, pain or fatigue; neurological or cognitive impairments; and psychiatric disorders. Although some individuals with invisible disabilities are willing to freely disclose their status, others strongly prefer that that their disability remain private, either out of a fear of discriminatory treatment by others, a disinclination to share personal details with strangers, or a desire to avoid the public dissemination of confidential medical information.
According to the Advisory Committee, the proposed rule seeks to minimize the public disclosure of disabilities specifically in the context of a judicially granted accommodation. It does so by removing the ethical constraints on a judge’s ability to entertain an accommodation request without notice to all parties. Pursuant to the Rules of Judicial Conduct, a judge may ethically entertain an ex parte communication where authorized by law to do so, see 22 NYCRR 100.3(B)(6)(e), and promulgation of this rule will constitute such authorization. Promulgation of the proposed Rule will both authorize a court to entertain requests for judicial accommodations on an ex parte basis and allow court users with disabilities to seek a needed disability accommodation on a confidential basis, without fear of public exposure of sensitive personal information.
The Advisory Committee submits that the proposed rule will protect the confidentiality interests of persons with disabilities to the greatest extent possible, while still ensuring that the due process concerns of other parties to a proceeding will not be unduly jeopardized. The proposed Rule requires the ex parte request be made in writing, without reference to the subject matter or merits of the proceeding, and in accordance with the requirements of CPLR 2217(b). The ex parte application and any material submitted in support are to be kept confidential and not disclosed by the court to other participants or the public, except in the case of several narrowly drawn exceptions which recognize that in some unique instances it may be appropriate to share some limited aspect of the request with other participants in order to protect those persons’ own due process rights.
Thus, under the first exception, if the court believes information submitted in the request is both germane and necessary to the court’s determination of the merits and is not otherwise in or likely to become part of the record, the court may disclose to other parties the existence of the request and the pertinent information, but such disclosure shall not entitle the other parties to be heard on the accommodation request. This exception addresses a circumstance where fairness requires the opposing parties be made aware of submitted information if the judge intends to rely on it in determining the matter, and is consistent with ethical opinions regarding the court’s acquisition of ex parte information. This first exception is only applicable to an accommodation request made by or for a party to the proceeding, not to one made by an attorney on their own behalf, and the Advisory Committee does not expect that it will apply in most instances.
Second, the Advisory Committee states that the proposed rule provides for an exception that requires disclosure of the request having been made where the court has determined that the person seeking the accommodation has a qualifying disability and the accommodation sought is for more time to submit papers, an adjournment, or any other request that the court reasonably believes could prejudice an adversary’s right to a fair and timely resolution of the matter. In this instance, disclosure is limited to the fact that an ADA accommodation request has been made and the particular accommodation requested. Disclosure of personal information about the disability – including a general description or any details about the type of disability or the limitations it imposes – is not permitted. In the Advisory Committee’s view, no disability-related information needs to be disclosed here because, in addition to privacy concerns, it would be inconsistent with the ADA to allow other parties to contest the existence of a requestor’s disability or the limitations it imposes. However, notice and an opportunity to be heard should be provided where the court is being asked to grant an accommodation that could reasonably be said to impact another party’s procedural rights.
Under this second exception, appropriate deference is made to the due process rights of the other parties, but submissions in opposition to the request are limited to the issue of whether granting the request would intrude upon their right to a fair and timely resolution to such a degree that the nature of the court proceeding would be fundamentally altered. The Advisory Committee does not expect that judges will be likely to come to a reasonable belief that granting a single or several adjournments or extensions will result in sufficient prejudice to trigger this exception, and that it is more likely that such a belief would not arise until a tipping-point has been reached following multiple adjournments or extensions. In addition, the Advisory Committee believes this limited exception is necessary to prevent an inadvertent undermining of the appearance of judicial impartiality. Where repeated requests are granted as disability accommodations for one side, but not acknowledged as such, the perception of disparate treatment might arise.
The Advisory Committee views the proposed rule as optimizing privacy protection for people with disabilities to encourage the requesting of accommodations while also according appropriate deference to the nature of the judicial system, the adversarial process, and the ethical obligations of judges. In addition to allowing an ex parte application (with limited exceptions), the proposed rule also provides additional privacy protections, including the filing of compliant applications under seal, the redaction of any personal information related to the disability from any publicly available version of an order granting or denying the application, and the filing of unredacted orders under seal.
The proposed rule is attached as Exhibit A.
Persons wishing to comment on the proposal should e-mail their submissions to email@example.com or write to: David Nocenti, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 10th Fl., New York, New York, 10004. Comments must be received no later than October 2, 2023.
All public comments will be treated as available for disclosure under the Freedom of Information Law and are subject to publication by the Office of Court Administration. Issuance of a proposal for public comment should not be interpreted as an endorsement of that proposal by the Unified Court System or the Office of Court Administration.