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Court Reopening Plans Face Pushback as Coronavirus Surges (1)

July 22, 2020, 8:50 AM; Updated: July 22, 2020, 2:01 PM

Some courts are pumping the brakes on reopening efforts as Covid-19 cases and deaths rise throughout much of the U.S., while others face pushback from lawyers over resuming in-person operations.

Federal courts in Arizona, Jackson, Miss., and Charlottesville, Va., are among those that recently delayed efforts to start in-person operations, citing local coronavirus increases.

Court systems in New York, Pennsylvania, Louisiana, and other states face anxious questions, lawsuits and at least one federal health and safety complaint from prosecutors, court officers and other employees.

“Courts are not nail salons or movie theaters,” Nora Sydow, principal court management consultant at the National Center for State Courts, said. “People don’t have a choice to enter the court facilities—they were given a summons, they’re legally required to, or they have a matter that they have to have court involvement to solve.”

Federal and state courts are struggling to figure out how to resume more normal operations while protecting public health after the pandemic forced them this spring to postpone jury trials and hold more proceedings remotely via video and audio.

Courts have begun to reopen to attorneys and litigants without much pushback, Sydow said.

“There is some tension, though, with the communities and government in terms of different outlooks on the speed with which they should reopen,” she said.

New York Lawsuits

New York state, especially the New York City metropolitan area, was the epicenter of the pandemic in the U.S. in March and April. The state and city are in the final stage of a phased reopening, as cases and virus-related deaths remain low.

Public defender groups sued in federal court July 14 alleging the state court system’s new requirement that certain proceedings would be held in-person violates the Americans with Disabilities Act and puts clients, attorneys, and staff at risk.

“These untenable choices will endanger the lives of thousands of New Yorkers by perpetuating the spread of this virus and burden the constitutional rights to access the courts and to due process of law,” the public defenders wrote in the complaint.

Lucian Chalfen, a spokesman for the New York State Unified Court System, issued a statement disputing claims about required in-person proceedings.

“If anyone, attorney or defendant feels uncomfortable making an in person appearance, they can ask for either an administrative adjournment or to have the case handled virtually,” Chalfen said.

The lawsuit followed a July 8 letter in which the public defenders called on courts to reconsider their plan to require some in-person proceedings. New York also recently allowed grand juries—16- to 23-person panels entrusted with issuing indictments—to proceed.

Attorneys aren’t the only ones with concerns about reopening. Dennis Quirk, the president of New York State Court Officers Association, filed a July 1 lawsuit in federal court alleging the courts’ response led to union member infections and deaths.

The court officers allege New York state courts’ failed to provide personal protective equipment to members of the union and properly sterilize work areas, which led to Covid-19 exposure.

Three union members—one court officer and two court assistants—and three New York court judges have died from the virus, the lawsuit said.

Chalfen, the court spokesman, disputed those numbers, saying the court officer “died at home from cancer.” He also said the court has provided “tens of thousands of masks, gloves, face shields and hundreds of gallons of sanitizer and installed Plexiglas barriers at all public facing areas and in courtrooms.”

Other Challenges

In Allegheny Country, Pa., three assistant district attorneys tested positive for the virus, and one of them filed a federal Occupational Safety and Health Administration complaint against the court. Allegheny County, which includes Pittsburgh, has had 6,380 cases and more than 200 deaths, according to state health data.

“The frustration from the defense bar and many others is based on the lack of communication from the court administration, and the county in particular, in notifying us when people reported they had symptoms or tested positive,” Kevin McCarthy, bargaining unit president of the United Steelworkers union local that covers several classes of court workers.

The local represents assistant district attorneys, public defenders, criminal court scientific staff, and IT professionals in the clerk’s office.

Russ Broman, the assistant district attorney who filed the OSHA complaint, was potentially exposed while working in his office at the courthouse with one of the other district attorneys who also tested positive, McCarthy said.

Broman’s attorney Lawrence Bolind said he was aware that an OSHA complaint was filed, though he hadn’t seen it. Bolind also said Broman is still battling the virus and was recently taken off a ventilator.

Deirdre Fuller, chief public defender for the Rapides Parish Public Defender’s Office in Louisiana, wrote to her local court asking it to implement measures that would take the safety of lawyers, staff, and their families into consideration.

Fuller requested in a July 7 letter to state court Judge Greg Beard that the court install Plexiglass dividers, provide hand sanitizer, and enforce social distancing on elevators, among other safety measures, according to a report by local news station KALB.

She said in the letter that her office “will no longer personally appear in court” until better safety measures were implemented. Fuller also had sent a letter in May asking the court to detail its plans for reopening safely, the report said. Rapides Parish has had more than 2,400 cases and 90 deaths, according to state health data.

New Safety Measures

State and federal courts throughout the U.S. continue to adopt new measures aimed at protecting the health and safety of court staff and those who attend proceedings.

North Carolina’s Supreme Court is the most recent to require masks in courthouses throughout a state that’s experienced more than 100,000 cases and 1,600 deaths, according to state health data. It’s a requirement that’s also been popular among federal courts as they reopen. That mask requirement will be enforced as courts start more in-person work.

“If we are to continue conducting a greater number of in-person proceedings, it is vital that we utilize all available tools to limit the transmission of the virus,” Chief Justice Cheri Beasley said in a July 16 order.

Courts are also screening those coming into the courthouses, whether with health checklists or temperature checks.

The Southern District of Mississippi is among federal courts requiring litigants, attorneys and visitors to undergo screening. It also has continued to postpone civil and criminal jury trials. Mississippi has seen more than 45,500 cases and 1,380 deaths, according to state health data.

Other courts are closing their doors again. The Northern District of Georgia closed its Gainesville courthouse July 15 after a court officer tested positive for the virus. That officer’s duties included patrolling through the courthouse each day, the court said.

Judicial Pushback

A challenge for courts is getting independent-minded judges to comply with health guidelines.

Georgia Chief Justice Harold Melton received complaints that judges had violated health and safety guidelines by doing things like holding large multi-case scheduling hearings. Although Melton said that in some of those cases, the complaints “didn’t meet up with what reality was,” he recognized a continuing perception that judges weren’t following guidelines.

In a new order July 10, Melton made safety guidelines for in-person proceedings clear and again encouraged the use of video conferencing. That order also extended previous measures already put in place by the court to address the pandemic.

“We want to make sure that people who come to court can do so with confidence knowing that their safety will be provided for because when people come to court they’re being compelled to come to court,” Melton said.

(Updates with Northern District of Georgia order.)

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