Access advocates pressure court to end closed proceedings

The Judicial Council came under pressure from several groups this week that are demanding access to court proceedings for the press and public and an end to secret proceedings in courts throughout the state during the coronavirus emergency.

While attorneys and litigants can dial in, or in some cases physically attend, there is often no way for people not directly involved to monitor proceedings.

The Washington, D.C.-based Reporters Committee for the Freedom of the Press sent a letter Thursday urging California Chief Justice Tani G. Cantil-Sakauye to issue statewide guidance to "assist California Superior Courts in ensuring that members of the press and the public can easily exercise their right to attend and observe judicial proceedings."

This followed a letter sent Monday by the First Amendment Coalition, ACLU California and Public Justice.

"As California courts have adjusted to doing business during the coronavirus pandemic, the undersigned organizations have identified widespread barriers to public access to Superior Courts throughout the state," it read. "As explained below, it is clear that numerous secret proceedings have occurred since courts first began closing their doors to the public in March to mitigate the spread of COVID-19, and that substantial barriers to access persist to this day."

First Amendment Coalition Executive Director David E. Snyder said he had not received a response to the letter.

"We asked that they get back to us by Monday," Snyder said. "We're optimistic they'll get back to us quickly. We think this is a really crucial issue they haven't paid sufficient attention to."

Judicial Council spokeswoman Merrill Balassone said the agency cannot issue binding statewide standards at this point.

"The Judicial Council hasn't issued any statewide guidance," she said. "The state's 58 trial courts are independent constitutional entities tasked with managing their local court operations."

Cantil-Sakauye has issued more than 100 orders on court operations related to the pandemic. This number has been inflated by the fact she must issue orders county by county, at the request of each presiding judge.

This could soon change. On Monday, the Assembly overwhelming passed AB 3366. Written to go into effect immediately if signed by Gov. Gavin Newsom, this bill would allow the chief justice to issue binding emergency orders affecting every county.

Snyder was quick to add that it is not the case all courts are doing badly in terms of public access. Rather, the coalition letter urges the Judicial Council to help courts make sure they reach certain minimum standards, such as "not conducting any secret proceedings."

It also asks for a survey of the Superior Courts "about the logistical, financial or other challenges that may have prevented them from adopting best practices" and for the Judicial Council to make access a topic at its next meeting.

Paul Nicholas Boylan, a Davis attorney who specializes in public records cases, said he has been in contact with several journalists and members of the public over the issue. He said he generally doesn't see the lack of access as intentional, even though "some are doing it, some are not."

"Every single court has different access to resources, familiarity with electronics," Boylan said. "Some are extremely sophisticated. Especially some of the smaller counties are very sophisticated and they adapted very quickly."

Boylan said one of the best counties in his view has been largely rural Yolo County, next to Sacramento.

Urban areas have generally been far harder hit, he said, while some rural counties have had relatively few cases. This has affected the speed and urgency with which courts had to adjust their operations, as well as how overwhelmed their staffs have been in the aftermath of closures. He added that he has been in direct contact with San Francisco court officials over improving access.

The coalition's letter included about 70 pages of exhibits from different courts. These include multiple orders from individual courts cutting off most physical access but not mentioning access by anyone besides attorneys and litigants.

There is also a statement from ACLU of Southern California policy advocate Rosa Lopez saying she was denied any means to monitor criminal proceedings in Kern County.

Boylan said he is hoping for "guidelines and deadlines" to be issued soon.

"Everybody has a constitutional right to observe the operations of the courts -- especially criminal proceedings," Boylan said. "The longer it happens, the longer the public is in the dark."