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Anita Lee

Budget and Policy Post
May 6, 2020


Judicial Branch Actions Responding to COVID-19

The judicial branch is responsible for the interpretation of law, the protection of individuals’ rights, the orderly settlement of all legal disputes, and the adjudication of accusations of legal violations. This results in numerous individuals—including court staff, attorneys, jurors, and members of the public—interacting in court facilities on a daily basis. In this post, we discuss actions the judicial branch has taken to temporarily change operations due to the emergence of the coronavirus disease 2019 (COVID-19).

Overview of Judicial Branch

Organizational Structure. The judicial branch consists of (1) statewide courts (the Supreme Court and Courts of Appeal), (2) local trial courts in each of the state’s 58 counties, and (3) statewide entities of the judicial branch (the Judicial Council, the Judicial Council Facility Program, and the Habeas Corpus Resource Center). The Judicial Council is the policymaking body of the judicial branch and is responsible for setting statewide polices related to court administration, practices, and funding allocations. The Judicial Council is chaired by the Chief Justice of the Supreme Court and consists of 21 voting members as well as advisory members.

Governance. Under the State Constitution and state law, Judicial Council adopts California Rules of Court specifying how the judicial branch will operate. These rules must be consistent with federal and state law and apply to courts statewide. However, these rules can provide courts with some flexibility in implementing them. In addition, individual courts develop Local Rules of Court that govern their operations. These rules must be consistent with federal or state law and the California Rules of Court.

Response to COVID-19

The Governor and the judicial branch have taken various actions to protect the health of court stakeholders and members of the public as well as to address the impact of the COVID-19 pandemic on court operations. We summarize key actions taken by the judicial branch as of the time this post was prepared.

Governor’s Executive Order N-38‑20. On March 27, 2020, the Governor issued an executive order suspending any state laws that restrict the ability of Judicial Council or the Chief Justice to authorize, issue, or amend emergency orders or emergency Rules of Court in order to (1) maintain safe and orderly court operations and (2) modify court processes and procedures in light of the COVID-19 pandemic. The order also suspends any existing statute that is inconsistent with an adopted order or Rule of Court. Finally, the order suspends state laws limiting the use of technology to meet certain civil case requirements related to depositions and document service.

Emergency Orders Authorized by the Chief Justice. The California Constitution and state law authorize the Chief Justice to issue emergency orders in certain circumstances—including a condition that leads to a state of emergency being proclaimed by the Governor. Using this authority, the Chief Justice recently issued three statewide emergency orders. These orders include the following key actions:

  • Suspension of Jury Trials. All jury trials are suspended for 90 days in criminal cases and 60 days in civil cases. Courts may conduct trials earlier upon a finding of good cause or through the use of remote technology.

  • Local Rules of Court Effective Immediately. Local Rules of Court adopted by trial courts to address the impact of the COVID-19 pandemic will become effective immediately. (Existing law generally requires local rules to go into effect on January 1 or July 1 of each year and only after 45 days of public comment have occurred.) The rules must be posted prominently on the court’s website and must be distributed to relevant stakeholders.

  • Remote Technology. Any California Rules of Court that prevent a court from using technology to conduct judicial proceedings or court operations remotely are suspended.

At the time this post was prepared, the Chief Justice also approved numerous emergency orders requested by the Supreme Court, each of the state’s six Courts of Appeal, and 54 of 58 trial courts. These orders made various changes in the way the courts requesting them operate. For example, the orders have authorized the recalculation of filing deadlines, the extension of statutory time frames for certain criminal and civil proceedings to be completed, and the extension of temporary restraining orders. They have also allowed courts to hold sessions elsewhere such as in correctional facilities. These orders generally only apply to the specific court requesting them. This has resulted in courts implementing somewhat different responses to COVID-19 across the state.

Emergency Rules of Court Authorized by Judicial Council. Judicial Council has adopted various emergency Rules of Court that impact various case types statewide. Most of these rules will remain in effect until 90 days after the Governor lifts the state of emergency related to the COVID-19 pandemic, or until amended or repealed by Judicial Council. Key provisions of these rules include the following:

  • Lowering Bail. Trial courts are required to apply a statewide emergency bail schedule that sets bail at $0 for most misdemeanors and low-level felonies to every pretrial arrestee or detainee. Local bail schedules apply otherwise. Judges retain the ability to deviate from the bail schedules.

  • Prohibiting Evictions and Foreclosures. Courts are generally prohibited from taking actions related to eviction or foreclosure proceedings.

  • Prioritizing Certain Hearings in Juvenile Dependency and Delinquency Cases. Trial courts are required to prioritize certain types of hearings—such as protective custody orders and emergency requests—in juvenile dependency and delinquency cases.

  • Authorizing Remote Appearance. Courts are authorized to require remote judicial proceedings or court operations, with the consent of the defendant in criminal proceedings. In most criminal cases, courts are required to allow defendants to appear remotely or via counsel for pretrial proceedings.

Local Emergency Orders and Other Actions. Individual trial courts have the authority to issue emergency orders or notices that change their operations. These actions do not require approval by the Chief Justice or Judicial Council, in contrast to those noted above that do require approval. The duration of these orders, as well as the specific provisions within them, varies from court to court. This has resulted in major differences in the ways individual courts have responded to the COVID-19 pandemic. Examples of key actions taken by individual courts include:

  • Closing Courthouses and Courtrooms. Courts have taken actions to temporarily close courthouses and courtrooms. Some courthouses are closed entirely, while others are closed except for specified essential court functions. For example, the Los Angeles Superior Court has fully closed a couple of its courthouses with most of its other courthouses only providing essential services through May 12.

  • Limiting Operation to Essential Court Functions. Courts have taken actions to specify what essential court functions will be provided. Examples of these essential court functions as specified by the Sacramento Superior Court include: in-custody criminal charging, setting bail, issuing search warrants, issuing emergency restraining and protective orders, and considering emergency petitions for guardianship or conservatorship.

  • Restricting Access to Courthouses. For those courts that are open for essential court functions, courts have taken actions to restrict public access to them. For example, access to Los Angeles court facilities is generally restricted to judges, court staff, individuals involved in cases, witnesses, attorneys, and authorized persons (such as news reporters).

  • Amending Court Processes. Courts are also modifying how essential court functions will be processed. For example, the Alameda Superior Court is allowing members of the public to conduct record searches between 8:30 A.M. and 3:00 P.M. However, access is limited to one or two people in the clerk’s office at a time and computer use is limited to 15 minutes per person.

  • Extending Time Frames. Courts have extended time frames and postponed certain matters. For example, the Orange Superior Court has decided to automatically extend time frames for appearing in court for traffic violations. The court has rescheduled hearings that would have occurred between March 17, 2020 and May 31, 2020 for dates in June and July.

  • Suspending Collection Activities. Courts have suspended certain collection activities. For example, the Fresno Superior Court has suspended collections activity for traffic cases through June 19, 2020.