Governor Gives California Chief Justice 'Unprecedented' Authority to Address Pandemic

Gov. Gavin Newsom late Friday issued an “unprecedented” executive order freeing Chief Justice Tani Cantil-Sakauye of statutory restrictions on her authority to issue statewide court orders addressing COVID-19.

The three-page order, which cites the governor’s wide-ranging powers under a state of emergency, also suspends laws that limit by-telephone depositions and the service of process by electronic means, two changes sought by the plaintiffs bar and defense counsel.

“The purpose of this Order is to enhance the authority of the Judicial Council and its Chairperson to issue emergency orders; to amend or adopt rules for court administration, practice, and procedure; and to take other action to respond to the emergency caused by COVID-19,” Newsom wrote.

The governor’s office issued the order just hours before the Judicial Council is scheduled to meet in an emergency session Saturday to consider significant changes to legal procedures and courthouse operations as courts struggle to stay open without endangering litigants, attorneys, courtroom staff and inmates.

The governor “has clear authority to suspend statutes and regulations in an emergency,” said David A. Carrillo, executive director of the California Constitution Center. “This might be a novel use of that power, but we’re in a unique situation and this flexibility is exactly what the courts need right now.”

Cantil-Sakauye praised the order.

“This unprecedented order reflects a very deep concern to not only protect the myriad health and safety needs of California but also to ensure that justice still be available to those most in need,” she said in a statement released by her office Friday evening.

“We are in unprecedented times and I assured the Governor that we will assume this responsibility with utmost care and judiciousness,” she added.

Lawyers and legal groups have criticized the judicial branch’s patchwork of local court responses to the pandemic, which range from complete courthouse closures to ongoing, but limited, operations. 

“This lack of equity and continuity in the treatment of criminal defendants and those who dedicate their lives to the administration of criminal justice raises concerns regarding equal protection under the law and now, more urgently, violates every health professional’s warning about the spread of the virus,” Alameda County District Attorney Nancy O’Malley wrote in a March 21 letter to court leaders.

Cantil-Sakauye had said shortly after Newsom declared the state of emergency that her authority over California’s 58 trial courts is limited. That changed March 24 when she ordered all jury trials in the state to shut down for 60 days.

The council on Saturday is slated to consider a measure directing courts to use technology that would allow proceedings to take place remotely. Members are also likely to ask the governor to extend the deadline for certain court proceedings until 90 days after the state of emergency ends, a request aimed at avoiding a crush of cases and appearances when shuttered courts reopen.

The council will also ask for an order extending deadlines for preliminary hearings and arraignments.

Nancy Drabble, chief executive officer of the Consumer Attorneys of California, said the governor’s changes allowing lawyers to use technology in civil matters will allow cases to move forward that would otherwise bog down due to social distancing and closed courthouses.

“We need to preserve people’s basic legal rights in a crisis,” she said.