Amid Growing Closings and Restrictions, Courts Look for 'Goldilocks Response'
A spiraling number of federal, state and local courts are restricting access or pausing cases due to coronavirus concerns, with more expected. Caught between the public's constitutional right of access to court proceedings and health risks, courts are probably going to opt for a "Goldilocks response" of reduced use of in-person proceedings, replaced with technological alternatives and written filings, University of Utah law professor Paul Cassell, a former U.S. District Court judge, told us.
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Federal courts frequently used by the communications bar have changed operations due to health concerns. The Supreme Court building is closed to the public, though open for official business. The 4th U.S. Circuit Court of appeal said Friday it's postponing any oral argument scheduled for this week. The U.S. Courts Administrative Office said the federal judiciary is working with other federal agencies to monitor and share information. It said it put together a task force for sharing information and guidance about the outbreak, and is providing courts and related judicial departments with Centers for Disease Control and Prevention updates. The Federal Circuit said some cases are being removed from the argument calendar and will be submitted on briefs, and for remaining cases argument will be held telephonically if counsel is outside the Washington region.
The D.C. Circuit is closed to everyone but judges, court staff, visitors with official business and the media. Attorneys appearing for oral argument or hearings have to show a bar membership card, while pro se parties will need the case name and case number, it said. Filings, pleadings and briefs are being accepted at an entrance drop box. The 9th Circuit said staffing is limited.
Most federal courts will likely end up modifying their procedures to deal with the virus, City University of New York law Distinguished Lecturer James Francis, a former U.S. magistrate judge, told us.
There are a growing number of restrictions. U.S. District Court in Seattle March 6 said all civil and criminal matters scheduled for an in-court appearance are continuing, as are all grand jury proceedings. The National Center for State Courts told us, as of Friday afternoon, jury trials have been ended or restricted in 19 states or parts of those states, and by Friday night it would undoubtedly be a majority of U.S. states. NCSC said courts of appeals in Indiana and Georgia are operating remotely or almost exclusively remotely. It told us lack of broadband access makes virtual hearings a particular challenge for some rural courthouses.
Limiting access and turning to tech routes is the most sensible path for the judiciary, though it's not clear courts are fully equipped to go down this road, Francis said. Most courts don't have good platforms for working remotely, and there can be asymmetry problems if a firm has Zoom or some other video collaboration platform but another party doesn't, he said.
Delays shouldn't be a problem for most civil and criminal cases, since most never make it to trial and the various hearings and conferences can be handled by phone and videoconferencing, said Stroock lawyer Shira Scheindlin, a former U.S. District judge. "So few cases need the physical presence of the courtroom."
Procedural changes are almost surely temporary because COVID-19 issues are expected to get resolved within a month or two, Cassell said. Longer term, courts might learn from the coronavirus procedures and look at more efficiencies such as using technology to reduce what can be very expensive in-person proceedings, he said. Videoconferences could find particular traction down the road in large judicial districts where parties have to travel a long way to get to the courthouse, Scheindlin said.
After the emergency, courts will likely go back to their standard operating procedures, Francis said. Whether they build in technological capabilities to be ready for the next emergency or event remains to be seen, he said.
Such tech as video streaming isn't always appropriate, Cassell said. In criminal cases, "there's a concern about doing justice via video monitor" and a reluctance to handle those kinds of proceedings in a way where judges wouldn't have personal contact to be certain, for example, a plea is voluntary, he said. In-court hearings also can facilitate settlement discussions, he said. The court restrictions and closures will mean delayed proceedings, Cassell said.
Stanford Law Director-Constitutional Law Center Michael McConnell, a former 10th Circuit judge, told us courts are increasingly amenable to video hearings, and he has both presided over a case and argued a case via video. "It's not great, but it works," he said. But appellate arguments lend themselves more to the technology, unlike courtroom trials where you need to have a jury present, he said. He's scheduled for oral argument before the Supreme Court later this month, and won't be surprised if that's done remotely.