State courts in Florida, California, Colorado, Indiana and elsewhere have reinstated face mask requirements, even for those who are vaccinated against COVID-19. Other courts, including in Texas and Alaska, temporarily suspended in-person jury trials, while New York state courts announced unvaccinated employees would need to undergo regular testing for the virus.
At the other end of the spectrum, some courts in Illinois and California are actually relaxing social distancing requirements.
"I know it's confusing when we go back and forth," Dallas County Civil Court Administrative Judge Maricela Moore in Texas told Law360 Pulse. "But I hope people realize it's because we really do believe our most important job when it comes to juries is ensuring that their service is a safe service."
Putting the Masks Back On
Requiring face masks seems to be the pandemic-related health measure courts are returning to most frequently.
Jurors, attorneys and litigants from Texas to Indiana to Florida now must put their masks back on if they want to enter certain courthouses, whether they're vaccinated against COVID-19 or not. That's also the case in California, even while some Golden State judges are relaxing social distancing rules — sometimes in the same courthouse, as in Orange County.
"You do the best you can with protecting the public and protecting your people, and that's what I'm trying to do here in the courthouse," said Chief Judge Ronald Ficarrotta of Florida's Thirteenth Judicial Circuit.
Increasing COVID-19 case numbers sparked by the more transmissible delta variant led Judge Ficarrotta to reimpose a mask mandate in his courts starting Monday, despite the fact that the state's Supreme Court lifted masking requirements less than two months ago.
"Like everyone else, we kind of eased back a little bit. I know personally I'd go to the grocery store and I wouldn't wear my mask anymore," Judge Ficarrotta said.
But seeing several people he knows — even some who are vaccinated — test positive for COVID-19 over the last few weeks led him to decide that the masks needed to come back out.
"I heard from several doctors that they had a waitlist 20, 30 people deep waiting to get into the hospital for COVID," he said. "So it's something that was striking close to home with people I knew."
Clear plastic masks will be available for witnesses, as they were when masks were last required, said the judge, who is also staggering the court's docket and "strongly encouraging" both social distancing and the use of technology to hold as many proceedings as possible remotely.
No one is "wild about" having to wear masks, the Tampa judge admitted, but it's important to keep jury trials moving. And he's aware that some people will refuse to return to wearing the face coverings.
"That's fine," Judge Ficarrotta said. "I respect your right not to wear a mask, but you're not going to come into the courthouse."
Testing the Unvaccinated
New York state courts, meanwhile, will begin requiring unvaccinated judges and nonjudicial employees to be regularly tested for COVID-19, the court system announced last week.
"We have to balance keeping a vast statewide system operating with continued precautions for health and safety for all employees and litigants," said Lucian Chalfen, director of public information for the New York State Unified Court System.
The new policy applies to all judges and other court employees, said Chalfen, who added that out of the court system's more than 16,000 employees, more than 7,700 have been vaccinated so far.
Many of those employees returned to work in the state's courthouses only in May.
"This new program strongly encourages judges and court employees who have not yet done so to get vaccinated, especially in light of the risks posed by the new COVID-19 variants," according to the New York state courts' July 28 announcement of the policy.
The courts are still working through how and when the new policy will be implemented, according to Chalfen. Vaccination and testing will not be required for court users and visitors, who must either show proof of vaccination or wear a mask.
"If everyone follows our protocols regarding vaccinations, masking, distancing and other safety checks, we are doing what we can to move forward cautiously and keep the system running," Chalfen said.
Putting the Brakes on Jury Trials, Again
Just a few months after some courts returned to conducting in-person jury trials, a number of them are suspending those trials again.
In Dallas County, Judge Moore paused civil, in-person jury trials in her court for all of last week after health authorities raised the county's coronavirus risk level.
The change in COVID-19 level triggered a different set of health protocols, according to Judge Moore, protocols the court needed time to reimplement.
"We recognize we are public servants in the judiciary, we're not scientists," Judge Moore said. "And it is beyond my paygrade to try to determine what is safe, and so I'm absolutely following what Dallas County has informed us is their risk level."
Jurors who had already been summoned to the George Allen civil courthouse — which houses civil district courts, family courts, probate courts and juvenile courts — were excused, and the court took the week to reevaluate and reintroduce measures including masking and social distancing, according to the judge.
New signage regarding the health rules had to be posted after older signs had fallen down, the judge added.
Dallas' civil courts had only returned to holding in-person jury trials June 7, according to Judge Moore.
And while Judge Moore restarted jury trials Monday, both civil and criminal in-person jury trials are still on hold in Travis County, Texas, and multiple parts of Alaska.
In Alaska, Third District Presiding Judge William Morse suspended jury trials in courthouses in Kenai, Homer and Anchorage as of July 26, according to the court's special projects coordinator, Mara Rabinowitz.
The pause will last until Friday in Kenai and Aug. 13 in Anchorage, according to Rabinowitz, though some bench trials and other hearings are continuing in person.
There's no date yet for when in-person proceedings will resume in Travis County, according to the county's court administration office.
"Because so many have not gotten vaccinated and now there's a variant out there, unfortunately we've made our own problems for ourselves," Dallas' Judge Moore said. "That's why we are having to do this."
Social Distancing … Relaxed?
Not all courts are reinstituting safety precautions, however. Some are going in the opposite direction.
Courts in Illinois' Boone and Winnebago counties are relaxing social distancing requirements for jurors as of Monday, according to Seventeenth Judicial Circuit Chief Judge Eugene G. Doherty.
Orange County Superior Court in California also removed its social distancing requirements, though it has reimplemented mandatory masks for all employees and visitors.
"Social distancing puts a real limit, a real hard cap on the number of jury trials that you can do," said Judge Doherty, who is also vice chair of the Illinois Supreme Court's COVID-19 Task Force. "Back last year, the balance between the individual defendant's right to a speedy trial and the public health concerns were resolved in favor of the public health concerns."
But that has changed.
The Illinois Supreme Court recently announced it would end the suspension of speedy trial deadlines as of Oct. 1, according to Judge Doherty. That means state courts have to start holding more jury trials than is feasible with social distancing requirements in place.
Rather than requiring every juror to be 6 feet from every other juror, the court will now accommodate those jurors who request social distancing, according to the judge.
"We've turned the model a little on its head by putting the onus on the individual to tell us if they wish to be socially distanced," he said.
While Judge Doherty is aware of the increase in coronavirus cases due to the delta variant, more than half of the adults in the community are fully vaccinated, he said. And while case numbers are rising, they're "not dramatically different" from what they were at the beginning of the summer.
"They're headed in the wrong direction. We're watching to see how much they go up," he admitted. "But the absolute numbers are not like they were last winter."
The new policy only applies to criminal trials. Civil trials will continue at reduced capacity through the end of the year, according to Judge Doherty. And if case numbers continue to rise, new restrictions could be imposed.
That could mean a complete shutdown of in-person jury trials, all these judges warned.
The new restrictions were spurred by an increase in COVID-19 in the community and not by any positive tests or outbreaks tied to courts themselves, the judges said. So that means it's also up to the community whether courts will have to impose new restrictions, or even close their doors.
"We have a responsibility to keep our courts open," said Judge Ficarrotta in Tampa, "but there comes a point we've got to do what's right safety-wise for our people."
--Editing by Kelly Duncan.
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