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June 29, 2020 National Conference of State Trial Judges

Law in the Time of Coronavirus

By Hon. Mary Vasaly, Minneapolis, MN

The corona-virus pandemic has required all of us who are part of the judicial system to learn new approaches to legal procedures in record time.  Knowing that “justice delayed, is justice denied,” we all have felt pressure to adopt new methods of delivering justice in a timely fashion, despite the absence of the ordinary legal processes that have been a hallmark of our justice system.  For example, we struggle to provide speedy trials to in-custody defendants when we cannot ask jurors to assemble to hear their cases?  We have had to determine how to keep jurors safe (and how we can let them know we are doing so) when they are called to perform this important and essential civic duty.  This pressure weighs on each of us personally as we strive to deliver appropriate legal services.

Of course, our traditional processes themselves may not be the necessary object of all our efforts.  The very notion of due process can be profoundly changed in these unprecedented times.  As long ago as 1913, Felix Frankfurter wrote in The Zeitgeist and the Judiciary:

If facts are changing, law cannot be static.  So-called immutable principles must accommodate themselves to facts of life, for facts are stubborn and will not yield.  In truth, what are now deemed immutable principles once, themselves, grew out of living conditions. 

We do not now know where these current events will lead us, but for now, we all continue to adhere to the “immutable principles” that are familiar to us.

Although it has been challenging to adhere to our historic processes, and overcome barriers to achieving them in haste, we are fortunate that the challenge has come at a time when we have access to remarkable innovations in electronic communications that were not even conceivable at the time I attended law school.  Here in Minnesota, we have adopted many innovative procedures, which are working well. 

We are devoting resources first to criminal proceedings.  For example, we are using only our largest courtrooms to accommodate social distancing measures.  Knowing that treatment programs are limiting the number of new participants they accept, we are issuing warrants only when there exists a serious risk to public safety.  In addition to beginning criminal jury trials on a pilot basis in June, we have been continuing to conduct other criminal proceedings such as setting bail, taking pleas and sentencing defendants.  We have limited spectators to these proceedings to 10, consisting only of the defendant’s immediate family, probation officer, and case worker, and the alleged victim and advocate, for the specific case being heard.  Media are allowed but must notify the Court of plans to attend.

Civil proceedings are proceeding to the extent possible with oral argument on motions waived or held remotely.  We are conducting some evidentiary hearings through zoom, or other remote formats, but some judges are concerned about their ability to evaluate credibility of witnesses appearing through this format.  Kate Murphy, Why Zoom is Terrible, The New York Times, April 29. 2020.  See also Roth, Michael D., Laissez-Faire Videoconferencing: Remote Witness Testimony and Adversarial Truth Comment, 48 UCLA Law Rev. (2000-01)

We have found it helpful to establish statewide remote hearing standards that are published on the Court’s website.  In addition, it has become a statewide priority to address consistency issues across jurisdictions.  Statewide scripts are being composed and judges are encouraged to be inclusive and consistent among parties, participants and attorneys.  We have also set up a remote hearing support center for court customers.  Even though the governor’s stay-at-home order has been modified, we have been slow to increase in-person civil hearings, until public health officials are satisfied that they can be conducted safely.  There is currently a moratorium on civil jury trials until September, but when these proceedings resume, the judges who preside over them will benefit from lessons they learned from the experience of conducting criminal jury trials during the summer.

A number of types of civil proceedings have been conducted in the courtroom on an emergency basis such as housing/evictions (if public health or safety is at risk), civil commitments, emergency changes of custody, guardianships, and applications for orders for protection.  Parties and attorneys may appear remotely in these proceedings.   

It has been a challenge to keep up with the weekly, and sometimes semi-weekly, modifications of the various orders issued by the governor, the state’s chief justice and the chief judge of the district court.  It seems we no sooner assimilate new procedures, than they have been superseded or modified by a subsequent order.  This has required a zen-like willingness to take what comes, with acceptance and calm.  For those of us who like to feel “on top” of all aspects of our work, it has been a challenge.  We should remember that our clerks are facing the same constantly changing requirements, and as a result, they must quickly learn new file processing methods, and new remote hearing technologies and procedures, and then, when they are modified, the amended methods and procedures.

As we all adapt to a new way of life and work, stress and anxiety have certainly increased.  As we start reopening incrementally, those stress and anxiety levels are likely to increase even more.   To address this, our Court has retained a licensed mental health professional, who offers voluntary sessions (remotely of course) for all judicial officers so they can talk about their concerns, connect with co-workers experiencing the same things, and learn coping mechanisms and obtain guidance.  

Nevertheless, we all need to remember that these circumstances are not only temporary, but they present an opportunity.  It is an opportunity for the Court to test new systems and processes, for all members of the judicial branch team to learn new ways of working and cooperating with one another, and for each all of us to offer out best in service to the rule the law. 

No man is more unhappy than he who never faces adversity. For he is not permitted to prove himself.”

- Seneca