First Amendment Groups Want California Courts to Keep Access Open

California Chief Justice Tani Cantil-Sakauye addresses lawmakers at her annual State of the Judiciary on March 10. (Penne Soltysik, Judicial Council of California)

(CN) — While some courts have made strides to preserve access to legal proceedings during the coronavirus pandemic, First Amendment advocates say others are still withholding records and shutting the press and public out of hearings.

Three chapters of the ACLU, legal nonprofit Public Justice, and the First Amendment Coalition sent a letter Monday to California Supreme Court Chief Justice Tani Cantil-Sakauye, asking that the Judicial Council she chairs step in to ensure courts are not unconstitutionally barring the public from either the physical or virtual courthouse.

“We understand the challenges that California courts face amid a global pandemic. We do not doubt that restricting access consistent with social distancing best practices and expanding remote hearings is the right thing to do. But failures by some courts to prevent secret proceedings and extended delays in availability of records have resulted in serious, ongoing constitutional violations,” their letter says.

“We fear that without direction and support from the Judicial Council to all Superior Courts, the public’s First Amendment rights will continue to be irreparably harmed, and that these harms will fall disproportionately on low-income people of color who are overrepresented in our criminal justice system.”

“Some don’t appear to be aware or mindful of the general public’s right of access at all, while others acted promptly to provide not just audio but video access.” First Amendment Coalition Executive Director David Snyder said in a phone interview Monday.

He praised Orange County Superior Court and Sacramento County Superior Court for moving to video arraignments on YouTube relatively quickly.

“In other cases it took months for courts to become fully aware of that issue and try address it,” he said.

Since March, these groups and others have been pushing for courts whose doors have closed because of Covid-19 to continue to hold open hearings by phone or video. It’s an issue that has persisted for going on three months now, as the groups’ research into public access around the state reveals.

Alameda County held a closed hearing in April in a high profile criminal case that should have been public. Records in the case were also withheld from the press, and a gag order prevented reporters from even talking to any of the attorneys involved to learn what had transpired.

“This is a good example of what secret proceedings could happen when courts aren’t focused on this issue,” Snyder said. “In many instances, relatively routine criminal proceedings have been happening but there’s no easy way to confirm they happened, much less whether the public or press had any ability to see or hear what was going on.”

In Contra Costa County, a grandmother was allegedly denied permission by the presiding judge to attend her grandson’s preliminary hearing. The First Amendment Coalition says its representatives were also turned away from Santa Clara Superior Court when they tried to observe criminal and civil hearings.

No alternative access was provided in either instance.

When the Judicial Council did not respond to the FAC’s letter in March, the group began reaching out to individual courts. Multi-letter exchanges between the First Amendment Coalition and judges in Alameda, Contra Costa, and Santa Clara courts yielded some positive results. In Santa Clara, for example, the court opened phone lines for criminal and civil proceedings in response to several of the FAC’s letters.

But Snyder said the FAC realized that it needed to take a statewide approach.

“It became clear this problem is much bigger than a handful of courthouses,” he said. “There has been progress, there have been courts that have listened to our concerns and have been tending to them appropriately, but the problem is much broader. The only way this is going to be resolved in a way that’s consistent across the state is for the Judicial Council to take a leadership role and provide guidance to the courts that the rights of the press and public to witness court proceedings are observed and enforced.”

Monday’s letter to the chief justice also says courts have restricted the public from viewing proceedings online.

“For example, San Mateo Superior Court requires members of the public to apply a day in advance to receive listen-in instructions. Similarly, Marin County Superior Court limits the number of people allowed to access remote proceedings and requires an application a day in advance. Both cited court infrastructure as reasons for the limits,” the letter states.

Journalists have also complained about having to pay pricey hourly rates to listen to hearings remotely via teleconferencing services like CourtCall.

“To be clear: We do not assert that there was or is no public access to the above courts. Indeed, we are aware of important improvements that have been made in several of the above referenced courts,” the letter says.

“However, the above specific problems illustrate a larger trend of secrecy and barriers to access throughout the California court system—barriers that have thwarted and continue to thwart even experienced users of the courts and determined relatives of the criminally accused.”

The letter also lists courts in Calaveras, Fresno, Kern, Lake, San Benito, San Bernardino, San Joaquin and Tuolumne counties whose emergency closure orders have restricted public access.

At a minimum, public proceedings should be accessible through a free public phone line that can be used by anyone, the groups say.

Their letter asks that the council “take immediate, concrete steps to ensure California Superior Courts provide meaningful public access to proceedings and records,” by requesting that each court attest that the public has access either physical or remote to all trials or hearings that would normally be public. It also asks that council respond by June 22.

“The Judicial Council is responsible for ensuring that administration of justice across the state is consistent and accessible. And it is clear that the lack of public access to court has become a statewide issue,” Kathleen Guneratne, senior staff attorney at the ACLU’s Northern California chapter, said in an email.

“Access to open courts is a pillar of a free society,” she said. “One of the things that distinguishes us from a police state, after all, is that we retain our commitment to the rule of law during an emergency.

Just this morning, however, we learned of a member of the public turned away from her loved one’s court proceeding in Kern County, with no ability for remote access. That this is still happening after the advocacy we have done is extremely troubling and warrants immediate action.”

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