PART I OF III: Meaningful Access to the Court – Due process in the face of COVID-19

by Meredith D. Crawford

PENSACOLA, FL (May 28, 2020)

This is the first of three posts discussing access to the courts during the COVID-19 pandemic.  This post focuses on the constitutional, legal, and practical need for court proceedings to continue in a timely manner.  The second post centers on remote hearings before a judge, which have been taking place since the beginning of the public health emergency.  Finally, the third post addresses remote hearings before a jury which have not taken place in Florida, but for which a pilot program has been authorized by the Florida Supreme Court.

Courts across the nation have had to adapt to the health crisis. The judicial responses vary, but most have implemented social distancing measures, restricted access to the courthouse buildings, and in many instances, canceled all but essential or emergency proceedings. While some jurisdictions are leaving their COVID-19 response to the discretion of the local courts, others are implementing strict preventative measures, such as:

• On May 13, 2020, the Alabama Supreme Courtannounced that restrictions on in-person proceedings would end May 15. Jury trials were suspended through September 14. The Alabama order authorized local courts to set local restrictions through August 15.^[1]
• On May 8, 2020, the Arkansas Supreme Courtannounced that courts in the state could resume conducting hearings under certain guidelines to slow the spread of coronavirus beginning May 18. Guidelines include limiting gatherings to no more than 10 people and encouraging the use of alternative venues, such as auditoriums if the courtroom was not sufficient to maintain social distancing. The order also allowed presiding judges to determine if a hearing should be held through video or teleconference or in-person.^[2]
• On May 21, 2020, the Florida Supreme Court extended restrictions on in-person proceedings and suspension of jury trials through July 1, with the exception of the Remote Civil Jury Pilot Program.^[3]
• On May 12, 2020, the Georgia Supreme Court extended restrictions on in-person proceedings and suspension of jury trials through June 12.^[4]
• On May 19, 2020, the Kentucky Supreme Court extended its suspension of jury trials through August 1. Grand juries were permitted to restart immediately.^[5]
• On May 15, 2020 Louisiana Supreme Courtannounced that the restrictions on in-person proceedings were lifted and authorized courts to conduct in-person proceedings on all matters. Jury trials remain suspended through June 30.^[6]
• On March 26, 2020, the Mississippi Supreme Court ordered the suspension of a criminal procedure rule that prohibited the use of interactive equipment for probation violation hearings and felony sentencing. The Mississippi Court previously ordered that individual judges had the discretion to postpone trials on their docket through May 15, 2020.^[7]
• On May 27, 2020, the Tennessee Supreme Court issued an Orderthat extends the judicial state of emergency and eases restrictions imposed by previous court orders. These changes include allowing jury trials to begin after July 3 with strict protocols; allowing eviction cases to be heard beginning June 1; ending deadline extensions; and allowing local judicial districts to continue operating under their approved plans for expanded in-person proceedings. The Order continues to encourage remote proceedings via video or audio conference whenever possible.  ^[8]

In Florida, meaningful access to the courts is a long and important tradition rooted in several sections of the Florida Constitution.  The Florida Constitution declares that all natural persons, female and male alike, are equal before the law.^[9] This means that all persons must be treated alike, under like circumstances and conditions, both in privileges conferred and in liabilities imposed.^[10] The constitutional guaranty of equal protection of the laws was designed to prevent any person or class of persons from being singled out as a special subject for arbitrary and unjust discrimination and hostile legislation.^[11]

Much like the equal protection clause described above, the Florida Constitution also requires that “No person shall be deprived of life, liberty or property without due process of law.”^[12] The essential elements of providing due process are notice and an opportunity to be heard in an orderly proceeding before a tribunal having jurisdiction of a matter.^[13]

A third important protection in the Florida Constitution is the assurance that courts shall be “open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”^[14] As a constitutionally recognized right, any restriction upon the right of entry to the courts should be liberally construed in favor of the right.^[15] Further, the guaranteed access to the Court must not only be available, it must also be meaningful.^[16]

To that end, it has been established that, under certain circumstances, the courts must affirmatively provide accommodations to certain classes of people to ensure meaningful access to judicial proceedings. Necessary affirmative accommodations are recognized for persons with disabilities,^[17] access by poor to counsel,^[18] the right of assistance for inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law, ^[19] and through the provision of approved court forms, which are used by unrepresented litigants throughout the state to gain meaningful entrance to the courts.^[20]

Until now, there has been no general duty upon the Court to provide affirmative assistance to afford access for all citizens of the state.^[21] However, more is demanded in a time where, due to the COVID-19 virus, judges have had little choice but to close the courts under health directives aimed at preventing the spread of the virus. The need for judicial action and the right to access the judiciary doesn’t stop when the doors to the building are shut.

In response to court closures and in order to safeguard these fundamental rights, the Florida judiciary is adapting to the COVID-19 pandemic through the use of remote procedures such as the videoconferencing tool, Zoom. Further, recognizing that many of the most vulnerable among us lack the necessary tools to participate in remote proceedings and that without an open physical courthouse or the proper equipment to participate virtually, certain individuals may be deprived of their most fundamental rights, the judicial system is developing practices and procedures for the efficient and inclusionary conduct of remote hearings.

On May 11, 2020, the Supreme Court of Florida’s Chief Justice Charles Canady distributed “Best Practices” guidelines.^[22] These rules were developed by a statewide COVID-19 Workgroup to help people navigate new remote procedures. The guidelines offer assistance to judges, court personnel, attorneys, pro se litigants and all citizens alike. ^[23]

The guidelines cover the following topics:

• Helping Pro Se Litigants with Remote Appearance Technology, which helps judges and court staff use remote technology when self-represented litigants are involved;
• Representing Yourself and Using Remote Appearance Technology with the Courts, which helps self-represented litigants understand how remote hearings will work;
• Management of Evidence in Remote Hearings in Civil and Family Cases, which helps judges, court staff, and attorneys manage evidence and witnesses in remote civil and family cases; and
• Out-of-County Inmates, which helps judges, prosecutors, public defenders, and law enforcement agencies honor due-process requirements for out-of-county arrestees during the pandemic, including sample forms.

Under this new remote system, judges and attorneys interact with each other using Zoom teleconferencing software or a similar videoconferencing program. Witnesses may appear and be sworn to testify under oath via video by a court reporter located elsewhere. Exhibits are introduced electronically.^[24]

The Florida Constitution guarantees residents of this state a right of due process, meaningful access to counsel, and meaningful access to the courts.^[25]. Public trust in the judicial process is eroded if the public can’t witness the court proceedings. The presence of the public helps ensure the courts operate as they are supposed to. The court is held accountable; the people are given more confidence in the process, and all are given an equal opportunity to be fairly heard.^[26]

And arguably, the Court must now add to its duties the provision of meaningful access to the internet, cellular devices and a link to Zoom.

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[1] https://judicial.alabama.gov/Announcement/COVID_19

[2] https://www.arcourts.gov/arkansas-supreme-court-statement-novel-coronavirus-outbreak-and-courts

[3] https://www.floridasupremecourt.org/Emergency

[4] https://www.gasupreme.us/reinstates-filing-deadlines/

[5] https://kycourts.gov/courts/supreme/pages/supremecourt.aspx

[6] https://www.lasc.org/

[7] https://courts.ms.gov/appellatecourts/docket/sendPDF.php?f=700_496852.pdf&c=91465&a=N&s=2

[8] https://www.tncourts.gov/press/2020/05/27/supreme-court-extends-judicial-emergency-and-eases-court-restrictions

[9] Art. I, § 2, Fla. Const.

[10] 10A Fla. Jur 2d Constitutional Law § 429 See generally Kinney Sys., Inc. v. Continental Ins. Co., 674 So.2d 86, 92 (Fla.1996) (Article I, section 21 “guarantees every person access to our courts for redress of injuries”); Traylor v. State, 596 So.2d 957, 985 (Fla.1992) (Kogan, J., concurring in part and dissenting in part) (Under article I, section 21, “all persons are guaranteed meaningful access to the courts of this state for the administration of justice”); Hoffman v. Ouellette, 798 So.2d 42, 45 (Fla. 4th DCA 2001) (“Florida courts shall be open to every person for redress of any injury. Art. 1, § 21, Fla. Const.”); U.S.B. Acquisition Co. v. U.S. Block Corp., 564 So.2d 221, 222 (Fla. 4th DCA 1990) (“[T]he right of access to our courts is constitutionally protected and should be denied only under extreme circumstances. Art. I, § 21, Fla. Const.”).

[11] Georgia S. & F. Ry. Co. v. Seven-Up Bottling Co. of Southeast Ga., 175 So. 2d 39 (Fla. 1965).

[12] Art. I, § 9, Fla. Const.

[13] https://repository.law.miami.edu/cgi/viewcontent.cgi?article=3115&context=umlr

[14] Article I, §21, Florida Constitution

[15] Lehmann v. Cloniger, 294 So. 2d 344 (Fla. Dist. Ct. App. 1974

[16]  U.S.C.A. Const.Amend. 14. Kokal v. State, 901 So.2d 766 (2005), revised on rehearing, certiorari denied 126 S.Ct. 560, 546 U.S. 983, 163 L.Ed.2d 471.

[17]  Allstate Ins. Co. v. Gulisano, 722 So. 2d 216 (Fla. Dist. Ct. App. 1998)

[18] The Fla. Bar; In re Emergency Delivery of Legal Servs. to Poor, 432 So. 2d 39, 41 (Fla. 1983)

[19] Henry v. State, 124 So. 3d 958 (Fla. Dist. Ct. App. 2013)

[20] Amendments To Fla. Supreme Court Approved Family Law Forms–Sexual Violence Forms, 871 So. 2d 113 (Fla. 2004)

[21] West’s F.S.A.Const. art. 1, § 21; art. 5, § 2(a); Fla. Bar v. Brumbaugh, 355 So. 2d 1186 (Fla. 1978)

[22] https://www.floridasupremecourt.org/News-Media/Court-News

[23] https://esrba.com/UserFiles/files/05-11-2020-Best-Practices-Guidelines.pdf

[24] Id.

[25] Art. I, §§ 9, 16, 21, Fla. Const. Hlad v. State, 585 So. 2d 928, 932 (Fla. 1991)

[26] https://www.themarshallproject.org/2020/04/13/the-judge-will-see-you-on-zoom-but-the-public-is-mostly-left-out

Meredith D. Crawford is a board-certified specialist City, County & Local Government attorney in the Environmental and Land Use practice area of Clark Partington’s Commercial Litigation Department. Meredith’s practice primarily focuses on local, state, & federal land use law, planning & litigation; community association planning; government administration; and associated environmental permitting.

If you or your business has questions about this or other City and Local Government legal questions, please contact the author, Meredith, at 850-434-9200 or mcrawford@clarkpartington.com.

About Clark Partington:

Clark Partington is the largest business focused firm in the Florida panhandle with offices in Pensacola, Destin, Grayton Beach & Tallahassee.  The firm also maintains a presence in South Alabama with an Orange Beach office.  Since 1976 Clark Partington has grown to over forty lawyers and has served the people and businesses of Florida through an innovative and collaborative approach to practicing law.  Our lawyers are consistently recognized for their service to the profession and excellence in the courtroom.  More information about the firm’s practice, its attorneys, and recognitions may be found at www.clarkpartington.com.[/vc_column_text][/vc_column][/vc_row]