Court Access Restrictions Related to COVID-19

March 17, 2020

With the World Health Organization's decision to characterize the spread of COVID-19 as a pandemic, courts in regions affected have considered what they can do with respect to their proceedings to help prevent further spread. The United States District Court for the Eastern District of Michigan may have been the first when on March 11, 2020, it announced restrictions denying access to the court by persons who have been in, or associated with persons who have been in any of the most affected countries or communities in the United States; persons who have been diagnosed with the virus or in contact with such persons; and persons experiencing symptoms. Such persons having mandatory court appearances are required to contact their attorney or appropriate court personnel to obtain permission to access the court or to obtain relief from any required appearance. Other courts have followed suit, including the United States District Court for the Eastern District of Missouri.

In areas where COVID-19 has become locally prevalent, or where there are concerns that prevalence may be imminent, some restrictions make common sense, and in most cases the affected persons would likely do this without such a directive. Except in the most rare and compelling circumstances, courts and their proceedings should be open to the public, but protecting against spread of the virus, while not justification for denying public access altogether, justifies some precautions. Things that a court may consider where there is a substantial risk of exposure are:

  1. Postponing non-essential court appearances, especially jury trials or trials where significant attendance is likely. 
  2. Allowing greater consideration of counsel and litigant requests for postponement where good faith concerns of exposure exist or where persons are more susceptible to exposure or more severe reaction to exposure is possible (e.g. age, infirmity or other health issues). Public notice of such expanded consideration would be appropriate.
  3. Substituting routine status conferences, case management conferences, and the like with requests for written and filed status reports from the litigants.
  4. Avoiding proceedings in small courtrooms or in-chambers (where contact is close), and instead conducting such proceedings in larger courtrooms while maintaining a safer distance by conducting those proceedings from the bench and counsel table and podium.
  5. Distributing and posting a public notice discouraging, but not prohibiting, non-essential court appearances by the public and encouraging those who choose to come to the courthouse, to minimize close contact in accordance with guidelines set forth by the Centers for Disease Control and Prevention (CDC).
  6. Similar to the restrictions adopted by the federal court in Michigan, restricting access to those experiencing symptoms or exposed to the virus, while providing some method whereby such persons can notify the court of the circumstances and avoid any negative consequences of non-appearance.
  7. Utilizing electronic or telephonic mechanisms for appropriate proceedings, while avoiding such use where the proceedings are likely to involve matters of public interest and where no adequate mechanism exists (e.g. live-streaming) that would allow the public to view the proceedings. Some courts are set up to allow video arraignments from the jailhouse, which diminishes the need to bring prisoners to court.
  8. If the situation is extreme, and compelling circumstances are deemed to exist, it could be appropriate to limit attendance to court proceedings and requiring separation of spectators and participants, with preference provided to media members and persons directly interested in the proceedings. An adequate record should be made of the proceedings that occur and the compelling circumstances that justify limiting public attendance, and that record should be in writing, readily and promptly available. 

In response to the coronavirus (COVID-19) pandemic, Lewis Rice has formed a COVID-19 Task Force which brings together subject matter authorities from various practice areas within the Firm who stand ready to assist our clients as they navigate these challenging and evolving issues. We will continue to monitor the myriad legal and other developments that may impact our clients. If you have legal questions related to COVID-19, please contact the author above or reach out to another member of the Task Force.

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