Face mask fight fails at state high court

The California Supreme Court declined to consider whether jurors should be required to keep face coverings on during voir dire, leaving trial courts to implement their own protocols.

Edward R. Hugo, who represents defendant Fryer-Knowles Inc. in an asbestos-related personal injury case, asked the high court to intervene after the 1st District Court of Appeal refused to lift a mask mandate in Alameda County Superior Court. Hugo said he wanted the Supreme Court to provide clarity and uniform direction for courtroom procedures specifically for voir dire.

Friday's dismissal diminishes any chance of a stay in Fryer-Knowles' proceedings, including hardship considerations, jury selection and voir dire, which continued Monday. Fryer-Knowls Inc. v. Superior Court of the State of California, County of Alameda, A160427 (Cal. App. 1st Dist. July 8, 2020).

Judge Brad Seligman's July 7 order mandating face masks for prospective jurors was the grounds for Hugo's petition. He argued voir dire can't be conducted fairly if counsel cannot assess jurors' truthfulness or ability to be impartial.

Two panels of prospective jurors were summoned to the Alameda County courthouse on Thursday for questioning about hardship claims, which were conducted via videoconference. The first panel had 24 requests for hardships granted out of 48 prospective jurors, according to Hugo. The second panel had 26 requests for hardships granted out of 61 potential jurors.

"That is odd, as we were originally told the jury assembly room could only accommodate 50 prospective jurors. We did not learn of those statistics until Friday, by email from the court," said Hugo, a partner at Hugo Parker LLP. "No mention was made of how 61 prospective jurors apparently were made to fit. And, we don't know how many prospective jurors completely failed to show up for duty, or were turned away due to medical screening if they did show up or how many hardships requests, if any, were denied."

Hugo said 59 time-qualified jurors "is not enough to start jury selection."

"We need more qualified prospective jurors prior to voir dire, so we'll do another virtual hardshipping on Tuesday morning if prospective jurors are available," Hugo said. "All of this is completely novel as neither the judge nor any of the attorneys were present in the jury assembly room, as has always happened in the past. This is unprecedented."

David L. Amell of Maune, Rachle, Hartley, French & Mudd LLC, who represents plaintiffs Judith and Ronald Wilgenbusch, opposed both of Hugo's petitions last week, arguing Hugo was looking for ways to delay trial for his clients, who are preference plaintiffs.

Wilgenbusch filed his lawsuit last year after he said he was diagnosed with mesothelioma. Recognizing the severity of the disease, the trial court granted Wilgenbusch's motion for preference and ordered trial to commence April 6, which was halted during the court shutdown, according to Amell. Wilgenbusch v. American Biltrite Inc. et al RG19029791 (Ala. Super. Ct., filed Aug. 2, 2019).

"An indefinite continuance of the trial mandated by a grant of defendant's requested writ relief would almost certainly mean that Admiral Wilgenbusch would not live to see his day in court," Amell said last week. "In that event, his death also extinguishes Mrs. Wilgenbusch's ability to seek damages for the pain and suffering her husband experiences from the mesothelioma."

Hugo said there are more imminent, notable issues on the horizon that might throw another wrinkle into jury selection, including questions of how counsel will conduct voir dire in numerical order via the random list by videoconference, when some are attending in person and some are appearing remotely.

"Will jurors be allowed to attend via remote conference if good cause is found?'" Hugo asked.

Calls to Chad Finke, superior court executive for Alameda County and also to a representative for the jury services office were not returned Monday by press time.