How coronavirus is affecting the courts — April 3 update

The novel coronavirus is affecting societies worldwide, and judicial systems are no exception. Here is a selection of the latest news and profile stories on how courts are dealing with the epidemic:

What is the state of Israel’s courts in the time of coronavirus? (Jerusalem Post)

Uncertainty looms over Supreme Court as lower courts transition to teleconferencing (Washington Free Beacon)

Federal Judge’s Sentencing acknowledges COVID-19 (Forbes) (a story about the sentencing of certain defendants in the “Varsity Blues” college admissions scandal)

COVID-19 and Online Dispute Resolution: It’s a Whole New World Out There (op-ed for the Connecticut Law Tribune)

7th Circuit suspends most paper copies to slow spread of COVID-19 (Chicago Daily Law Bulletin)

Previous roundup coverage here. And check the home page for additional discussion of coronavirus and the courts.

 

Judicial Conference authorizes federal courts to hold certain criminal proceedings electronically

Last week, Congress passed the CARES Act, which most notably was designed to give a push to the American economy in the wake of the COVID-19 crisis. Nestled within that Act was a provision that permitted the Judicial Conference of the United States to determine that “emergency conditions due to the national emergency declared by the President with respect to COVID-19 will materially affect the functioning of the federal courts generally.” Such a finding would then permit chief judges of individual federal district courts to temporarily authorize videoconferences or teleconferences in certain criminal proceedings, solely in response to the coronavirus crisis.

The Judicial Conference made that authorization on Sunday, leaving it now to individual districts to determine whether to implement videoconferencing. It is worth noting that the legislation (which was passed with significant input from the Judicial Conference) is relatively narrow, and applies only to the current COVID-19 emergency. Moreover, the general authorization applies only to certain types of criminal proceedings: in particular, no felony plea or sentencing could be done by video- or teleconference unless the district court makes additional findings that such proceedings (1) cannot be done in person “without seriously jeopardizing public health and safety”, and (2) that “there are specific reasons that the plea or sentencing in that case cannot be further delayed without serious harm to the interests of justice.”

This is an entirely practical step, representing collaboration between Congress and the courts to protect the efficient operation of the criminal justice system. Whether it will open the door for further use of videoconferencing in non-emergency situations, however, is very much unsettled. And the current legislation has drawn criticism in some circles that it reduces much-needed transparency in criminal justice.

Legal industry responds to coronavirus crisis with “calls for kindness”

I really like this story from Law360, which profiles a number of lawyers and judges across the country who are emphasizing patience and kindness in a profession too often built on time pressure and adversarialism. Some snippets:

On Thursday, [Chief Justice Ralph Gants] sent a letter to the Massachusetts and Boston bar associations, urging attorneys to work with the courts and each other “to create their own version of [mobile triage] units” to figure out how to protect the most vulnerable, preserve individual rights, resolve disputes and carry on.

“If we stand strong, resilient, and adaptive, and work together as judiciary and bar to find ‘duct tape’ solutions to immediate problems that otherwise might take years to solve, we will leave this crisis with a better, more resilient system of justice,” he said.

The judge added, “And perhaps, if we do our jobs well, a future generation will say of us, ‘This was their finest hour.’”

***

U.S. District Judge Amy Totenberg of the Northern District of Georgia issued an order to every case on her docket with some words of advice to attorneys battling it out in her jurisdiction: “Be kind.”

“Be kind to one another in this most stressful of times,” Judge Totenberg wrote. “Remember to maintain your perspective about legal disputes, given the larger life challenges now besetting our communities and world.

“Good luck to one and all.”

A subscription to Law360 may be required to read the whole article, but access it if you can. It’s a nice reminder that when the moment calls for it, we can surely become our better selves.

 

Courts embracing video in wake of coronavirus pandemic

With coronavirus spreading worldwide, courts are increasingly closing their physical spaces and relying on video technology to keep the wheels of justice moving. The UK Supreme Court has equipped itself with high-definition cameras for livestreaming. In the US, both state and federal courts are effectively closing their courthouses and moving to videoconferencing for at least certain types of hearings.

Time will tell whether this shift portends a larger move to court-centered online dispute resolution, or whether courts will revert to their traditional courtroom operations once the health crisis is over. My sense is that it will be some of both. Courts are highly unlikely to jettison the social grandeur of the courthouse entirely, and of course no video can replace the physical intimacy of a jury trial or an evidentiary hearing. At the same time, courts would be wise to use this moment as an opportunity to craft a form of public online dispute resolution for appropriate types of cases — a form of resolution that is as (or more) effective, cheaper, and more trustworthy than private ODR.

There will be much more to say in this story as it develops. Stay healthy and sane, everyone.

How coronavirus is affecting the courts

A roundup of stories concerning the impact of the coronavirus pandemic on state and federal courts:

As coronavirus spreads, some courts shutter, others carry on

DOJ reverses course, tells immigration judges to post CDC posters about coronavirus pandemic

Virus’s Spread Has Courts Bracing for Quarantine Fights

With Threat of Coronavirus Looming, Eleventh Circuit Cancels Judicial Conference

Cook County Justice System Responds to Coronavirus Outbtreak

State and federal courts in Michigan respond to COVID-19 threat

Northern Ohio federal courts take steps to prevent coronavirus spread, though most operations continue as normal

Coughing jurors in coronavirus era will worsen delays for US trials

Virus Complicates Jury Trials as Courts Seek to Limit Spread

Vermont state courts may postpone trials

All jury trials postponed in federal courts in Seattle and Tacoma

Meanwhile, on an optimistic note, the federal Committee on Rules of Practice and Procedure (the “Standing Committee”) announced yesterday that it plans to hold its regular June meeting. Hopefully we’re all back to regular operations well before then.

Stay safe and healthy, everyone.

 

When should judges speak out?

Justice Sonia Sotomayor drew attention last week when she filed a dissent in a case staying the issuance of a preliminary injunction against the federal government. The injunction had been issued by a federal district judge in Chicago, and barred the Trump Administration from implementing a “public charge” policy that would require immigrants seeking green cards to demonstrate that they would not need government assistance. Beyond disagreeing with the majority’s decision to overturn the injunction, Justice Sotomayor expressed dismay with her colleagues’ readiness to entertain “extraordinary” appeals from the Trump Administration, rather than letting those appeals first work their way through the intermediate appellate courts. She wrote:

[T]his Court is partly to blame for the breakdown in the appellate process. That is because the Court—in this case, the New York cases, and many others—has been all too quick to grant the Government’s “reflexiv[e]” requests. But make no mistake: Such a shift in the Court’s own behavior comes at a cost. Stay applications force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument. They upend the normal appellate process, putting a thumb on the scale in favor of the party that won a stay. (Here, the Government touts that in granting a stay in the New York cases, this Court “necessarily concluded that if the court of appeals were to uphold the preliminary injunctio[n], the Court likely would grant a petition for a writ of certiorari” and that “there was a fair prospect the Court would rule in favor of the government.”) They demand extensive time and resources when the Court’s intervention may well be unnecessary—particularly when, as here, a court of appeals is poised to decide the issue for itself.

Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This Court often permits executions—where the risk of irreparable harm is the loss of life—to proceed, justifying many of those decisions on purported failures “to raise any potentially meritorious claims in a timely manner.” Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances—where the Government itself chose to wait to seek relief, and where its claimed harm is continuation of a 20-year status quo in one State. I fear that this disparity in treatment erodes the fair and balanced decisionmaking process that this Court must strive to protect.

Perhaps unsurprisingly, the dissent drew vindictive attention from President Trump, who took time away from his visit to India to chastise Sotomayor and suggest that both she and Ruth Bader Ginsburg (who publicly criticized Trump in July 2016) recuse themselves from all future cases involving Trump or the Trump Administration. “I just don’t know how they cannot recuse themselves with anything having to do with Trump or Trump-related,” the President said.

The U.S. Supreme Court was not alone in facing scrutiny for the perceived political statements of judges. In Alaska, Chief Justice Joel Bolger has been drawn into a controversy surrounding an effort to recall the state’s governor, Mike Dunleavy. Proponents of the recall allege (among other things) that the governor showed lack of fitness for the office by refusing to appoint a trial judge within the 45-day period prescribed by statute, and by “improperly using the line-item veto to … attack the judiciary and the rule of law.” The legality of the recall was challenged in court, and the state supreme court will hear the case on March 25. But some are calling for Bolger to recuse himself from the recall decision, given that Bolger commented on the governor’s behavior at the time of the trial judge appointment controversy. (Bolger also criticized the line-term veto in a separate speech.) Bolger has declined to remove himself from the case of his own volition, but the supreme court did take the unusual step of issuing a letter inviting motions to disqualify if others felt it was warranted.

It is certainly true that judges must take care in their public pronouncements, especially as they relate to politics, public policy, or other government officials. Diving recklessly into partisan political debate is a time-honored recipe for eroding the legitimacy of the judicial branch. But it is also true that the judiciary is an independent branch of government, and should have a voice on issues that affect it as an institution. Where do we draw a sensible line?

Continue reading “When should judges speak out?”

Federal courts develop coronavirus plan

As they have in other times of public emergency, the United States Courts have devised a plan to address operations in the event of a more widespread coronavirus outbreak. Many of the precautions are sensible and consistent with approaches taken by other public and private sector organizations:

[Administrator James] Duff suggested that federal courts “at a minimum” coordinate with human resources about “social distancing practices,” such as “teleworking, staying home when sick, and separation of potentially ill staff from others within the workplace.”

The memo also urged courts to emphasize good respiratory etiquette and hand-washing practices and ensure routine, regular cleaning of all frequently touched surfaces in the workplace.

Courts should also be “implementing continuity procedures, issuance of applicable orders, and other measures as necessary to ensure the continuation of necessary court functions,” Duff’s memo states.