Op-Ed: Why the state court system is experiencing a pandemic meltdown

We’ve endured overwhelming death, job dislocation and societal shutdown during the coronavirus pandemic, so now let us lament another casualty — functioning state courts.

The courts, a cornerstone of our democracy since the republic’s founding, are experiencing a pandemic meltdown in California. Our concrete and brick bulwarks of justice have become a fundamentally broken mess.

The blame cannot be laid solely on COVID-19. Leadership has been lacking at many levels that would help us adapt to our new viral reality.

In Los Angeles County, all civil jury trials have been postponed until 2021. Given a growing backlog of thousands of criminal trials, which take precedence under state law, a mountain of civil cases is piling up that promises to take years to excavate.

It’s no better elsewhere around the state. Superior Courts in the Bay Area are shortening hours and putting off civil jury trials until at least late this year. In San Diego, criminal trials won’t happen until at least the fall, and judges are telling lawyers that civil trials won’t occur until next year.

The number of COVID-era civil trials in California can be counted on a few fingers — and that’s in a state that saw more than 665,000 civil cases filed during fiscal 2017-18 in state Superior Courts. In many jurisdictions even the most perfunctory legal hearings are being scuttled by a mix of intransigent court administrators and technological myopia.

That legal logjam is giving new meaning to an old adage: Justice delayed is justice denied.

The impact is being felt among the powerful and the powerless, from mighty corporations to everyday people simply trying to right a wrong. Civil rights cases have been left hanging. Tenants forced onto the streets by extrajudicial evictions have little hope of getting a court date. Without the looming threat of a trial, an injured motorist facing mounting medical bills after a horrific car crash won’t have much chance of a fair insurance settlement.

It’s a race against the clock in the case of Barbara Franklin, 90, of Los Angeles. Terminally ill with mesothelioma from years of corporate asbestos exposure, Franklin saw her March trial date for her personal injury case canceled by the COVID shutdown. She’s now in hospice care. If she dies before trial, her case will die with her.

Throughout my career, I have represented victims of sexual abuse and assault — many of them children, many of them with special needs. They often have limited resources, both financial and emotional. Unable to finance therapy, some turn to drugs and alcohol to cope. Others can’t afford the psychotropic mediations that make life manageable.

The current lack of access to justice is devastating for most everyone. Their cases are left to fallow as our courts grapple with such issues as not receiving filings from the county clerk’s office and an inability to hear emergency matters in a timely manner.

Most of the rest of the world is able to work remotely and take precautions against indoor viral risk. Why can’t the courts?

The problem dates to 1849, when California’s first Constitution gave the state’s far-flung counties autonomy that included operation of the local courthouse. Day-to-day governance still largely remains with each local legal fiefdom. What made political sense then has caused a catastrophic civil justice crisis now as COVID-19 exposes the weakness of our state’s incohesive system.

Instead of pulling together in a uniform response, each county adopted a haphazard and disparate set of rules while largely resisting a shift to online proceedings to move justice along.

Meanwhile, the top state court administrators, Chief Justice Tani Cantil-Sakauye and the Judicial Council, have proven reluctant to step in with bold and creative solutions. There’s no statewide uniformity in the time of COVID for conducting safe jury trials, remote hearings, and triage and rescheduling of cases.

For our democracy to survive, we must do better.

It’s not a moonshot. In Wisconsin, court leaders saw the coming impact of the pandemic and responded by boosting webcast access for courts to hold proceedings online and training staffers in using the technology. The state had a remote court system up and running three weeks after its governor issued a stay-home order. Texas, meanwhile, just held what is believed to be the nation’s first criminal trial conducted entirely via Zoom.

There are a few examples of excellent coronavirus-era coping in California courts. For instance, Yolo County Presiding Judge Samuel McAdam recently finished a multi-week civil trial where jurors were socially distanced, everyone wore face coverings and the courtroom was sanitized regularly. It was a success, attorneys reported, both in terms of the administration of justice and virological deterrence.

But that and a handful of other trials are too few and far between.

The California courts need to display more of that can-do gumption. An investment in uniform web video equipment for hearings and trials would be a good start. So would an order from on high to stop putting civil cases at the back of the line. More than anything, court leaders need to come together and coordinate a thoughtful response to operating during the pandemic so all 58 counties in the state can act in unison. Then our courts can get back to business — and not a moment too soon.

Micha Star Liberty is an Oakland-based attorney and president of the Consumer Attorneys of California.