By Maria Dinzeo
(CN) — As California courts shut their doors to the public, First Amendment advocates and press groups are asking the state’s chief justice to ensure that the media can still cover court hearings, which are ongoing, and review new court records, which continue to be filed.

The First Amendment Coalition sent Chief Justice Tani Cantil-Sakauye a letter Wednesday urging her and the Judicial Council, the administrative body for the courts, to advise California’s trial courts on methods for keeping the courts open for press coverage, even as courthouses shut their physical doors to the public.

“First, telephonic hearings must be conducted on conference lines that make some allowance for free public usage. And dial-in information must be readily available to the public in advance of the hearing,” the letter says.

“Second, criminal proceedings, such as arraignments and sentencing, that take place in courtrooms or via video must in some way be open to the public and press,” the letter continues.

“Third, court records must remain publicly available,” the letter says. “Access will come to a screeching halt if clerks’ offices are closed to the public.”

California Supreme Court headquarters in San Francisco. (Photo credit: Coolcaesar/Wikipedia)
The letter goes on to argue that courts should move toward making all records available on their websites.

“If records cannot be made available online, courts should make arrangements for access in some other manner. Moreover, courts should waive any fees for online access at least until normal operations resume.”

Courts are excluded from Governor Gavin Newsom’s March 19 order shutting down all nonessential businesses, as are members of the press. But some restrictions have been necessary to slow the rate of infection in California.

In a letter to presiding judges statewide on March 20, Cantil-Sakauye empowered the courts to suspend all civil trials, prioritize criminal arraignments and restraining orders and eliminate bail to ease the burden of necessary court appearances.

The emergency relief order was limited, however, given the independence of each of the state’s 58 trial courts.

In the following weeks, California’s 58 superior courts trimmed operations drastically, with some closing courtrooms except for emergency hearings. Others vacated or indefinitely postponed all civil proceedings, still others switched to telephonic court hearings only. A number of courts, however, continued to hear criminal matters.

The varied approaches prompted local district attorneys throughout California to write to the chief justice, asking for uniformity. The chief, Cantil-Sakauye, quickly issued an order on March 23 suspending all jury trials statewide for 60 days, citing health regulations that recommend staying six feet away from people.

In the days before and after that order, many superior courts in California closed their doors to the public entirely. Some allowed press reporters to enter, in keeping with Gov. Newsom’s statewide order, while others barred the press along with the public.

Orange County Superior, for example, closed its doors to the public on March 17th and barred the press as well. At the same time, the court was live-streaming a few criminal hearings on its website.

On the civil side, lawyers continue to electronically file civil cases at the Orange County courthouse. But those civil filings are not being docketed by the clerk’s staff. Most of the staff was sent home March 13 for two weeks with full pay but without the ability to work online.

In contrast to many courts in California, Orange County has fought tooth and nail to preserve a docket-before-access policy. As a result, most of those filings cannot be reviewed and remain in effect sealed.

In the county next door, Los Angeles Superior Court, the largest court in the nation, barred the public from entering the courthouse but has allowed the media to enter, consistent with the governor’s statewide order. In addition, new civil filings in Los Angeles continue to be reviewed by the media as soon as they are received, before docketing.

In Northern California, San Mateo Superior Court, for example, receives electronic filings but has not docketed any of them since March 18th, essentially sealing them. The court had earlier refused an online option that would have allowed the press to see publicly filed judicial records before docketing, as is done in Los Angeles and a number of state courts in California.

San Francisco Superior Court, by contrast, is allowing lawyers to drop off their new filings in the lobby, and the staff is docketing those new filings and making them available for review online.

The First Amendment Coalition is asking for consistency within the court policies on public and press access.

“We recognize the severe health crises we all face as a society and applaud your leadership in issuing the March 23 Statewide Order,” the First Amendment Coalition’s letter read. “At the same time, we need to recognize that important civil liberties and constitutional rights should not be unduly restricted. While courts are closing buildings, halting proceedings and holding some hearings telephonically, we are concerned members of the press and public will face insurmountable barriers to access judicial records and proceedings.”

Glen Smith, litigation director for the coalition said in an interview, “The chief justice and the judicial council should remind the courts up and down the state that they need to make some kind of accommodation for public and press access. We don’t have secret court proceedings in this country.”

Most telephonic hearings are conducted through CourtCall, an expensive phone conference system primarily used by attorneys. CourtCall CEO Robert Alvarado said he would temporarily waive fees for reporters trying to call into courtrooms, but many courts have not publicized it as an option.

“We’re just asking for reasonable accommodations. We don’t expect people to jeopardize their health, but if they’re using systems like CourtCall or teleconferencing or video conferencing, that they find ways to make allowances,” Smith said.

The coalition’s letter was co-signed by several chapters of the ACLU and Society of Professional Journalists, along with Californians Aware, the California News Publishers Association, Electronic Frontier Foundation, Informed California Foundation, and Reporters Committee for Freedom of the Press.

Jim Ewert, CNPA General Counsel, said the letter is more of a notice to the Judicial Council and chief justice to keep the free press in mind as the California courts shut their doors but continue to operate.

“We haven’t heard too many horror stories yet but we have heard that there have been difficulties in accessing newly filed complaints in some jurisdictions,” Ewert said. “We’re trying to get out in front of it as the courts are grappling with how they’re going to deal with this, and only the most essential hearings are being held right now. It’s important that the public still be considered in how that process is set up.”

He said courts can post clear notices about how the press and the public can access telephonic hearings.

“We just want to ensure that the process continues to be as open and transparent as it can be in these really difficult times. The Judicial Council, as the administrative arm of the courts, is the appropriate body to make those decisions and make them in a manner as uniform as possible,” Ewert said.

Berkeley Law Dean Erwin Chemerinsky said the presumption should lean toward transparency even in the midst of a public health crisis.

“Obviously, this is an unprecedented situation. But court proceedings and court records should be ‘open.’ The press and the public should be able to ‘attend’ electronic proceedings that they could have attended in person. Put another way, the public health emergency necessitates closing the physical courthouses, but it does not warrant greater secrecy.”