Pandemic advice

Judicial ethics committees have responded to judges’ inquiries about the challenge of managing courts and hearing cases while coping with the threat of transmitting the virus.

Judges in a Nebraska district were asked to meet with a coalition of agencies “formed to provide low-income tenants in eviction cases with representation in light of the current COVID-19 pandemic.”  The coalition wanted to discuss with the judges the public health risks in eviction proceedings, scheduling, modifications of the court’s calendaring procedure, and substantive procedural changes. 

The Nebraska judicial ethics committee advised the judges that they or their designee could meet with the coalition, noting that the proposed topics were “appropriate matters for discussion given that no advantage can be reasonably assumed to adhere to the coalition or its potential clients from the conversations.”  Nebraska Advisory Opinion 2020-1.  The committee added that, although the judges were not required to notify others who might be interested in the discussion, “it would be appropriate, efficient, and in keeping with the spirit of the Nebraska Revised Code of Judicial Conduct to encourage other attorneys or interested parties to participate in the meeting.”  The committee noted that the coalition’s request was not a prohibited ex parte communication about pending or impending cases that had to be disclosed to other counsel or parties or to disciplinary authorities. 

The coalition had also asked the judges to notify self-represented litigants about the coalition “from the bench.”  The committee advised that the judges could not “refer persons to a specific organization for legal assistance” but could inform “an unrepresented litigant that he or she has a general right to seek the assistance of counsel and that there are organizations which may be able to assist on a reduced or a no-fee basis.”  The committee also disapproved of the suggestion that information about legal services be included with the summons in eviction cases, concluding that “extraneous materials promoting one specific group of service providers” should not be included with the documents that statutes specify must be provided.  The opinion did add that the court could post information about the coalition’s services in “highly visible” locations near courtrooms and throughout the courthouse.

The coalition had also asked the judges to consider “liberally granting continuances,” but the judicial ethics committee warned that “any such promise or consideration by the court would be improper.  All continuances are subject to objection and controlled by rules of law.  It is inappropriate to have a blanket rule that all continuances should be either granted or denied in any type of case.”

The New York advisory committee addressed several inquiries from town and village justices who wanted to work with prosecutors to facilitate plea agreements in traffic cases to limit in-person court appearances due to public health concerns, particularly given significant staff reductions for prosecutorial agencies and courts.  Emphasizing the importance of maintaining judicial independence, the committee disapproved all four proposals, although it noted that it was “not unsympathetic to the challenges facing prosecutors and courts ….”

For example, in New York Advisory Opinion 2020-99, the committee stated that a town or village justice court must not “collaborate” with prosecutors to develop procedures to process pleas on paper and establish a mail-in plea bargain process for vehicle and traffic law infractions.  The opinion emphasized that a court must not promote or favor mail-in pleas and/or plea bargaining over other options even to mitigate the effects of the COVID-19 outbreak.  However, the committee did suggest that the court could meet with defense bar representatives and the prosecutor’s office together to discuss procedures for handling mail-in pleas on traffic infractions and authorized the court to distribute, as a convenience to defendants, a court-prepared form that impartially listed all options and included a link to the district attorney’s website and/or email address. 

The committee also disapproved of a proposed plea reduction form “designed to limit foot traffic in the courtroom” because it did not present all of a motorist’s options neutrally, it had the court’s name at the top, and it significantly downplayed the motorist’s rights.  New York Advisory Opinion 2020-206.  The opinion did suggest that “it may be helpful for court administrators, working with the Office of Justice Court Support, to develop and circulate a new form, consistent with applicable ethical and legal considerations, for use in these circumstances.  Such a form could help protect well-intentioned judges across the state from inadvertent missteps.  We note that other potential solutions might be technological in nature (e.g. if defendant motorists could interact directly with the prosecuting agency online to request plea reductions) or even legislative (e.g. if statutory changes could be made to facilitate plea bargaining in matters where defendants mail in “not guilty” pleas pursuant . . .).”

See also New York Advisory Opinion 2020-97 (courts must not distribute the district attorney’s “informational document” to defendant motorists or otherwise implement the DA’s procedure for facilitating defendants’ pleas to lesser charges in vehicle and traffic law matters); New York Advisory Opinion 2020-94 (judge may not permit the clerk to use the court’s database access or other digital platform to enter data in the village attorney’s plea bargain letters sent to defendant motorists).

Not all pandemic operation issues are ethical ones, of course.  The California Supreme Court advisory committee, for example, explained that it did not have the authority to decide whether judges may require a witness or a party who is afraid to remove a mask, as that is a question of law.  California Oral Advisory Summary 2020-32.  It also advised that whether judges must be allowed to continue to work remotely if they are concerned that their age or preexisting medical conditions would place them at great risk if they were required to be physically present in a courtroom was not an ethics issue, but a court management issue.  California Supreme Court Committee Advisory Opinion 2020-34.

Outside the parameters

With the judge’s acceptance, the Tennessee Board of Judicial Conduct publicly reprimanded Judge Michael Hinson for “conducting judicial business outside the parameters of the COVID-19” plan for his judicial district as approved by the Tennessee Supreme Court and making a discourteous remark about the Chief Justice.  Hinson (Tennessee Board of Judicial Conduct December 15, 2020).

The judge failed to limit the number of persons in his courtroom and has not been enforcing social distancing requirements; at times, his courtroom “has been filled to capacity, even to the point of members of the public having to stand shoulder to shoulder along the walls because all the seats are taken.”  In addition, referring to the Court’s pandemic-related guidelines, the judge commented to a court audience that he “wished Chief Justice Jeff Bivens would win an award so that the COVID-19 mandates” would end.

The judge acknowledged that “failing to abide by the directives of a higher court is unacceptable and reflects poorly” on him as a judge and admitted that his comment was wrong, although he stated that he “intended no disrespect.”

The Board acknowledged that the judge’s courtroom was small and that he has been trying to avoid a backlog of cases, but it emphasized that the COVID-19 guidelines adopted by the Court “are not mere suggestions.  Conducting judicial business within those guidelines, which have been expressed in court orders, is not optional. . . .  By requiring all judicial districts to adopt measures designed to protect users and employees of the court system from the risks associated with COVID-19, the Supreme Court has recognized that the health and safety of litigants, witnesses, attorneys, court staff, and others is of utmost importance.  Thus, regardless of how logistically or administratively inconvenient, and no matter a judge’s personal views concerning the pandemic generally, all judges are obligated to comply with and enforce the pertinent guidelines.” 

The Board also stated that the judge’s comment regarding the Chief Justice was “neither dignified nor courteous” and did not inspire public confidence in the judiciary “even if off-the-cuff and with no intent to be offensive.”  It acknowledged that there was no evidence to doubt the judge’s assertion that he had not 5“to cast aspersions on any member of the Supreme Court,” but emphasized that those who heard the comment had no way of determining his “intent apart from the words used.  Once such comments are made, the damage is done.” 

See also In re Disqualification of Fleegle (Chief Justice Ohio Supreme Court December 10, 2020) (disqualification of judge from 2 criminal cases because he could not prove that he had taken steps to protect the safety of individuals in the courtroom and could not articulated “the necessity of proceeding with jury trials during a dangerous stage of a pandemic”).