Steven Johnston ’18, Law & Public Policy Scholar
As Covid-19 grips the hearts and minds of the American people, all levels and branches of government must rapidly respond to the virus. The speed at which government must respond is complicated by the fact that it must do so blindly. There are asymptomatic carriers of the virus, a delay in the onset of symptoms, and a lack of testing that officials reacting to the national emergency must contend with when rolling out a response. Flattening the curve of the virus so as not to overwhelm our hospital intensive care system is the gold standard; however, the coming days may push the limits of what state courts are willing to do to accomplish that goal. The following is a guide on best practices and current tactics being implemented across the country. Not everything that courts across the country are implementing is publicly accessible, and this article covers what has been made public so far in addition to utilizing benchbooks that have been created prior to and during the Covid-19 outbreak.
Communication is key and must be clear, emphatic, early, and often. In order to preserve public trust, mitigate panic, and prevent fear, state courts must embrace their duty to communicate with the public and employees. We cannot completely close courts for any amount of time. Even in the most hard-hit counties, courts must continue to remain open on an emergency basis. A number of states such as Nebraska, Florida, Michigan, Virginia, and Indiana have adopted the National Center for State Courts pandemic benchbook or created their own. Benchbooks are essential to effective communication and preparedness. Every state should focus on adopting a benchbook to aid judges in addressing public health legal issues as well as technical or procedural matters due to the rarity and urgent nature of the Covid-19 outbreak and events like it. The difference in communication has been clear for courts that had such a plan in place and those that did not. On February 13, 2020, before there was a confirmed positive Covid-19 case in the state, the Michigan Supreme Court released a memorandum regarding available resources and where to address procedural, general, or technical questions. The Michigan Judiciary has created a specific website on the Judiciary’s response to the virus and the state has a Michigan Public Health Law Benchbook that addresses the operation of the courts during public health threats. Most states have implemented social distancing practices; however, others still do not have a specific page on the state court website addressing the issues unique to the judiciary. The balancing of constitutional rights and public health necessitates that state courts use every tool available to have organized, clear, emphatic, early, and often communication with the public and their employees in order to mitigate the effects of Covid-19. Strong direction from leadership is key to mitigating panic and preventing fear.
Courts cannot function without people. As many courts have noted, creative solutions must be implemented as we move forward to preserve the balance of constitutional rights and public health. Keeping courts open will not matter if employees are not there to keep them running. First and foremost, courts should institute sick leave policies that encourage workers who are ill or quarantined to stay home. Employees who cannot afford to stay home will not and will perpetuate the spread of the virus within the judiciary, threatening our ability to keep courts open. Even in the most extreme responses, such as in Massachusetts, which closed all courts for two days on March 16 and 17, 2020, and San Francisco, which is “drastically reducing operations that entail closing 75 percent of courtrooms, all clerk’s offices, and the ACCESS Center for 30 days,” employees are still present for emergency hearings. Healthy employees and judges are needed to operate emergency hearings and maintain order. This requires fair and transparent policies to ensure employees know what to expect and how to respond as the process unfolds. Leadership must be transparent with employees and judges so they can be transparent with the public. Protecting employees from the virus through social distancing, a minimum of guaranteed 14-day quarantine leave, and increased disinfecting of courts should be top priorities.
The time for preparations has passed, and all we can do now is respond. Courts across the country have instituted social distancing tactics such as e-filing, telephonic or video hearings, drop boxes for filings, continuing non-emergency hearings, continuing jury trials, and closing law libraries, among other tactics. Social distancing is easier in the digital age and may force courts that were reluctant to adopt electronic filings to do so now. Many large cities already conducted video hearings from prison or jail facilities, and the adoption of such methods on an emergency basis will help courts continue to hold hearings that would otherwise put vulnerable populations at risk of infection. The sixth amendment right to a speedy trial possibly presents the most challenging decisions courts must make, and many have issued emergency orders finding good cause to delay proceedings through March, for 30 days, or until further court order. The vast majority of states made this determination at the end of the second week of March or early in the third week, clearly in response to the pandemic as opposed to in preparation for it, like Michigan or South Carolina, which started the public aspects of their responses in February. The Supreme Court of Texas bought the state court system a week or more thanks to the existence and quick action of the Task Force to Ensure Judicial Readiness in Times of Emergencies (JRITE), founded in 2008. Courts must respond now to the rapidly changing landscape Covid-19 creates. Courts do not have to recreate the wheel, but leadership must act now. In May 2019, the Nebraska judiciary hosted a National Summit on Pandemic Preparedness, to which—according to the National Center for State Courts—twenty-five states and three territories sent teams. There are resources available, sample procedures and policies, but court leadership must take up the mantle of responsibility as public servants and act immediately.
The United States has gone from 70 confirmed cases of Covid-19 to over 6,000 confirmed cases in just a few weeks – thousands have been diagnosed in recent days. The peak of the virus may not occur until the end of April or later if all branches of government and Americans are not quick and decisive in their response to the outbreak. State courts cannot close; there is too much at stake. There may be a dearth of information when it comes to how many people actually have the virus, but there are resources available for courts on how to navigate the crisis. Every court system in the country should have a Covid-19 response website; the public, employees, and attorneys must have a number to call for information regarding the court’s response and access to that information online; judicial discretion can only go so far, and leadership must communicate clearly, emphatically, and frequently to ensure a universal and effective response. We must use every tool available to ensure we preserve public access to the courts and protect public health at the same time.