SAN FRANCISCO (CN) — At its second emergency meeting since a viral epidemic upended court operations across the state, California’s Judicial Council approved another set of emergency rules to help courts navigate the health crisis.
“All of us are endeavoring to balance justice against this overwhelming contagion in order to minimize illness and death,” California Supreme Court Chief Justice Tani Cantil-Sakauye said Monday. “We are at this point truly with no guidance in either history law or precedent, and to say there is no playbook is a gross understatement of the situation.”
She said the council, suddenly faced with having to make a series of urgent and sobering decisions, sought input from judges, district attorneys, public defenders, law enforcement and legal advocacy groups in crafting the rule changes, most of which would have taken months, if not years, to draft and execute under normal circumstances.
The rules were enacted with the backing of Governor Gavin Newsom, who temporarily empowered Cantil-Sakauye, as chair of the council, to suspend laws and modify court procedures during the Covid-19 epidemic.
To that end, the council moved Monday to lower the statewide bail schedule to zero dollars for most misdemeanors and low-level felonies. Exceptions will include those charged with violent felonies, stalking, child abuse, and domestic violence. The emergency rule was met with little opposition from legal advocates. The California State Sheriff’s Association pleaded for caution in a letter sent to the council Sunday, saying it is concerned about the release of potentially dangerous offenders.
There was robust discussion around additional emergency rules involving criminal defendants, particularly those governing remote appearances and personal appearance waivers, except for some murder cases.
Prosecutors objected to a provision of the rule appearing to require a criminal defendants’ consent before a court could conduct a proceeding remotely.
In a letter to the council, Edward Vieira-Ducey, president of the Alameda County Prosecutors’ Association, said the rule would “give criminal defendants arbitrary control over the health and safety of court staff, bailiffs, judges, attorneys, and other defendants.”
Asking the council to mandate using technology for all pretrial criminal hearings, he added, “Any power of a court to implement technology to ensure social distancing would be rendered meaningless if a defendant withheld consent. Furthermore, these rules would incentivize criminal defendants not to consent.”
But some council members said they were averse to dispensing with fundamental constitutional rights.
“I strongly support the concept of remote appearances during this crisis and have been working continuously in Los Angeles County over the last month to provide the option of remote appearances. But I and many others would hesitate to simply suspend the constitutional right of any person to personally appear in courts,” said LA County Superior Court Judge Eric Taylor. He said a defendant who does not consent to remote appearances could choose to continue their case.
Cantil-Sakauye said she was “really loathe to override the defendants’ consent at this time.”
She said arraignments are usually the first time a defendant has the opportunity to meet his or her attorney, and often both sides exchange some discovery. With the current information available, she said, courts have more capacity to handle criminal appearances.
“In my view there is capacity in the court at this point,” she said, adding she has yet to see evidence that courts, which have trimmed their operations to only the most serious cases, could not handle transporting some inmates to the courthouse.
Some counties, she noted, have no cases of inmate infection within their jails, while others have a handful of reported cases.
“Transport is the responsibility of the elected sheriff and the jail,” she continued. “And I haven’t heard from them frankly, and I don’t know where they are as far as justice partners, where we are talking about our shared interested in ensuring a defendant receives his or her rights.”
The council adopted the rules with the added caveat clarifying that a defendants’ consent is required only for a his or her waiver of appearance, not for holding a remote proceeding.
The vote was nearly unanimous, with only an abstention from state Senator Hannah Beth Jackson, D- Santa Barbara.
Council member Justice Brad Hill said he supported the amended rule. “If the implementation of this rule because an insurmountable logistical problem we can adjust and will adjust quickly,” he said. “We will monitor to see if it’s working and if adjustments need to be made.”
The council also took up evictions and foreclosures, a problem exacerbated by sudden business closures and ensuing job losses throughout the state. The council approved a rule prohibiting courts from issuing default judgments in favor of property owners when a renter fails to respond to an eviction notice.
The rule responds to an executive order by Gov. Newsom that ostensibly gives renters 60 days before landlords can commence eviction proceedings for failing to pay rent — a modification of California Penal Code 396 (f).
The council also unanimously voted to suspend judicial foreclosures, keep temporary restraining orders set to expire in effect for an additional 90 days from their expiration date, and extend the amount of time in which a civil action must be brought to trial.
Monday’s adopted rules are in flux, Cantil-Sakauye said, as the council tries to preserve the rule of law amidst a deadly pandemic.
“If a rule goes too far or doesn’t go far enough, understand that we are sensitive to those views and based on new information we may be making changes,” she said.