LA court told to explain halt to public remote access

The California Supreme Court gave Los Angeles County Superior Court until next week to explain why it won't restore the public's remote access to proceedings.

The order appears to set up a clash between the Supreme Court and the Legislature on one side, pushing for continued use of remote proceedings even as courts return to in-person proceedings, and judges on the other side who have mixed feelings about video proceedings ever since courtroom cameras turned O.J. Simpson's murder trial into an international spectacle.

The Supreme Court's order came in a challenge USA Today filed against the Los Angeles County court's decision to cut remote access to Britney Spears' conservatorship proceedings. The trial court pulled the plug after an audio of Spears' testimony wound up on YouTube in violation of the judge's order.

Christopher C. Melcher of Walzer Melcher LLP in Woodland Hills is representing the newspaper. He said the success of remote proceedings during the pandemic has meant judges have a higher bar to meet before denying remote access.

"Although historically in-person access is what the public and media got, along with the occasional camera in the courtroom," Melcher said Tuesday, "once the court rolled out the remote access programs for the public and media, that then became a public benefit that they can't take away without passing constitutional scrutiny."

The Supreme Court gave Los Angeles County Presiding Judge Eric C. Taylor until Nov. 19 to justify the decision to end the public's remote access. Taylor did not respond to a request for comment Tuesday.

During the pandemic, the Los Angeles County Superior Court created two programs for remote access: LACourtConnect for litigants, attorneys, witnesses, and interpreters, and the Remote Audio Access Program for the public and media to listen to nonconfidential hearings. The idea was to make observing court hearings safer during the pandemic and limit the spread of COVID-19.

The court cited the Spears incident in its decision to cancel the public program in June.

On Aug. 26, USA Today asked the court to reinstate access or provide other remote access to the next Spears hearing the following month.

"In denying the request ... the court simply said that seats in the courtroom is all it must provide," the petition reads. "The Los Angeles Superior Court created a remote access program for the public and media. It cannot close that method of accessing the courts without passing constitutional scrutiny."

In the petition, Melcher pointed out that the court had no way of knowing who recorded Spears' statement or how, since the court simultaneously provided an audio feed of the hearing to three platforms. "The recording could have been made by one of the 11 attorneys on [LACourtConnect] or the phone line, or someone in the courtroom," the petition reads.

Chief Justice Tani G. Cantil-Sakauye and the Judicial Council publicly endorsed expanding remote access to courts in California after submitting a report in August that found remote access to public hearings provided many benefits, including court transparency.

"Providing access to the courts through remote technology increases access to justice," Cantil-Sakauye said. "This issue is about equity and fairness because it can help those who may have to miss work or travel long distances to make brief courtroom appearances. It is about transparency because remote hearings make court hearings more accessible to the public and media. Of course, remote technology should not replace all in-person court hearings, but Californians should have the freedom of choice to conduct their business remotely whenever appropriate."

The Legislature has also made clear that it supports remote access. Assembly Bill 716 would require the court to provide, "a public audio stream or telephonic means by which to listen to the proceedings" when the courthouse is physically closed, except when proceedings are deemed confidential.

The Assembly floor analysis of the bill in September described a "troubling" incident in which the LA superior court "during the height of the pandemic," denied Ojai Valley News' request for remote access to proceedings in its court, since the court was already providing remote access to parties and witnesses.

"Despite the apparent availability of relatively simple online or telephonic streaming, there were troubling instances of courts denying reasonable requests to access remote proceedings," the bill comments read.

In the petition to the Supreme Court, Melcher argues that because the LA court allowed remote access and abruptly withdrew it, the court must identify a compelling government interest that warrants the closure of remote access, and show its action was narrowly tailored. The court has done neither, concluding that no constitutional right was affected by its cancellation of remote access, the petition reads. Equal Protection. USA TODAY v. Superior Court of Los Angeles County, B315096. (C.A. S.C., filed Oct. 1, 2021).

The petition asks the court two questions: 1) "Did the Los Angeles Superior Court create an undue burden on the constitutional right of the public and media to access nonconfidential court proceedings when it canceled public and media participation in its remote audio program ...?" 2) "Did the Los Angeles Superior Court fail to provide equal protection under the law when it canceled remote access privileges to one class (i.e the public and media) while continuing to allow another class to appear remotely (i.e. parties, attorneys and others) without justifying the suspect classification by showing the termination of remote access to the public and media was necessary to serve a compelling interest, and that its action was narrowly tailored to achieve that objective?"

Loyola Law School professor Laurie L. Levenson said remote access to nonconfidential court proceedings would not only allow for better public understanding of the proceedings, it would likely have a positive effect on courtroom culture.

"I do think that judges tend to act a bit differently when the public is watching, but that is not a bad thing," Levenson said. "Our courts should be open to as many people as possible."

"I think this petition is likely to get close attention by the California Supreme Court," she said. "There are some very serious arguments about the need for remote access and why denial of it creates a two-tier justice system where some people have remote access and others do not. Lack of remote access also makes it harder for the media to cover the courts. Although it is a problem that someone recorded the Britney Spears hearing, such a breach may not justify canceling remote access in less high profile cases."

Jeremy Fogel, a retired federal judge and executive director of the Berkeley Judicial Institute at UC Berkeley School of Law, said transparency and open public access to courts "should be the default."

"Given the intense publicity around the Britney Spears conservatorship, I can understand the judge wanting to exercise reasonable control over media coverage, including the restriction that was violated here," Fogel said in an email. "At the same time, the presiding judge's decision to eliminate all remote access to the Los Angeles Superior Court appears to be a stronger than necessary remedy for the violation."

"As the petition points out, the COVID pandemic is continuing, and for many people attending court in person is not a viable option. ... Data from around the country since the beginning of the pandemic show that virtual proceedings allow people with limited resources to participate more frequently and more fully in proceedings that affect them," he continued.

Fogel said he did not agree with Levenson that remote access significantly alters courtroom culture.

"In my experience, in the great majority of cases lawyers and parties have not behaved significantly differently in the context of proceedings with video access," Fogel said. "But because that possibility may be heightened in high profile matters, particularly those involving celebrities, I believe that trial judges should retain and when appropriate use broad discretion to preserve courtroom dignity and mitigate potential prejudice."