California attorneys and state judges on Tuesday largely endorsed Monday’s sweeping order by Chief Justice Tani Cantil-Sakauye suspending all jury trials across the state for 60 days.
The order allows courts to conduct trials earlier if they use “remote technology” or issue a finding of good cause. Presiding judges were also authorized to adopt new rules of court, or to amend current ones, aimed at coping with the effects of the COVID-19 pandemic.
The California Judges Association “fully supports the decision of Chief Justice Cantil-Sakauye to suspend all jury trials for the next 60 days in light of the COVID-19 pandemic for the health and safety of potential jurors, court staff, litigants, and the public,” the organization’s president, B. Tam Nomoto Schumann, said in a statement.
Cantil-Sakauye’s statewide order marked a shift from her previous statements that she and the Judicial Council have limited authority over trial court operations.
“This all highlights a gap in the law that the Legislature could and should fix immediately by urgency legislation,” Horvitz & Levy of counsel David Ettinger wrote on his blog, At the Lectern. “The chief justice, as head of the judicial branch of government, should have broad emergency authority over that branch’s operations.”
The order cited Cantil-Sakauye’s authority under Article VI, Section 6 of the California Constitution, which empowers the chief justice to “expedite judicial business.” It also references Government Code Section 68115, which authorizes the chief justice to extend deadlines in court matters during times of “calamity, epidemic, natural disaster, or other substantial risk.”
David Carrillo, executive director of the University of California Berkeley School of Law’s California Constitution Center, said Cantil-Sakauye faced a “tough call” in a rare scenario that requires balancing competing interests.
“As head of the state’s judicial branch and the Judicial Council, California’s chief justice has inherent powers to take any necessary action to preserve the courts’ existence. And she has express constitutional and statutory authority to administer the courts during an epidemic,” Carrillo said. “Administering justice will become impossible if the state’s judges all get sidelined from contracting coronavirus, so limiting public contact preserves the state’s ability to keep the courts open.”
Oscar Bobrow, president of the California Public Defenders Association, said that given the potential for exposure to the virus, “I am not sure that there has been a great deal of protest for the suspension of proceedings already in progress.”
But “wholescale shutdown of the system, occurring in some counties, is unacceptable for those who have recently been arrested and incarcerated,” Bobrow said.
Aside from jury trials, California’s 58 trial courts still have broad authority to define their own operations.
Eric Schweitzer, president of California Attorneys for Criminal Justice, which represents the private defense bar, said he was at the Tulare County Superior Court on Tuesday morning and saw preliminary hearings in action. At a courthouse in Fresno County, where the courts are generally closed to the public, Schweitzer said he had to be escorted by a law enforcement officer to a filing station where he hand-stamped his own paperwork.
Like Bobrow, Schweitzer said he fears for those in jails who will be forced to wait longer for a trial. But he calls the trials’ suspension “good and necessary.”
“You’re not going to get a jury right now anyway,” Schweitzer said.
The Consumer Attorneys of California on Tuesday issued a statement saying the chief justice’s order underscores the need for the governor to extend legal deadlines. The plaintiffs association and the California Defense Counsel asked Gov. Gavin Newsom in a March 22 letter for an emergency order to extend the statute of limitations and other legal deadlines, to allow for remote depositions and to allow service by electronic means.