04/16/2020
Social Distancing Solutions in Civil Courts
Like many institutions in Illinois and around the country, Illinois courts have had to readjust their operating procedures in the face of the COVID-19 pandemic to protect the health and safety of court patrons, staff, judges, and the public. But courts have a duty distinct from those of many businesses currently closing or amending their day-to-day operations: the duty to administer justice and, in the context of criminal proceedings, ensure defendants receive due process of law, including the right to a speedy trial. For discussion of the adaptations for COVID-19 in the context of criminal court proceedings, please see the Criminal Law article A Balancing Act: Social Distancing vs. Criminal Defendants’ Due Process in this issue of FLASHPOINTS.
The Illinois Supreme Court invoked its general administrative and supervisory authority under Article VI, §16, of the Illinois Constitution to order that Illinois appellate and circuit court procedures and orders entered in response to the ongoing COVID-19 threat will be consistent with certain guidelines. M.R. 30370, In re Illinois Courts Response to COVID-19 Emergency (Mar. 17, 2020). The overarching themes of the guidelines are (1) to make each court’s temporary orders and updates publicly available; (2) to continue court matters and proceedings or to hold them remotely via telephone, video, or other electronic means; (3) to allow modification of deadlines and procedures and to consider sworn statements made out of court to be evidence; and (4) to provide for notification of court participants’ COVID-19 diagnoses and to take precautions to avoid exposing court proceedings to the threat of COVID-19, including restricting people who may have been exposed to COVID-19 from entering any courthouse. The court reiterates several times throughout the order that the restrictive measures must be balanced by constitutional limitations. Id.
Circuit courts throughout Illinois have issued orders responding to the COVID-19 crisis and applying the Illinois Supreme Court’s guidelines, but in ways that balance the competing interests of public health and constitutional protections. All orders pertaining to COVID-19 procedural variations can be found on the Illinois Courts’ COVID-19 Information and Updates webpage, located here.
One clear solution to accomplish social distancing while continuing to hold some court proceedings is the use of technology: teleconferences and videoconferences. The Supreme Court advocates for all hearings and proceedings to be conducted via telephone or video or other electronic means, when possible, and permits courts to consider as evidence sworn testimony given out of court by teleconference or videoconference. M.R. 30370, In re Illinois Courts Response to COVID-19 Emergency (Mar. 17, 2020). Many circuit courts have already issued orders allowing for, if not ordering, that all hearings — including criminal matters — be held via telephone or video. See Cook County Circuit Court General Administrative Order 2020-01 (“[A]ll hearings shall be conducted by videoconferencing, so that the only persons physically in the courtroom are those persons essential to activities that require that person to be in the courtroom”).
While the application of technology makes for a straightforward fix for certain criminal proceedings like bond hearings and pretrial hearings, the thought of holding an entire jury trial via videoconference raises practical considerations without obvious solutions. However, if COVID-19 continues to spread and social distancing continues for many more months or even over a year (Joe Pinksker, The Four Possible Timelines for Life Returning to Normal, The Atlantic, Mar. 26, 2020), then our courts will be faced with balancing public health concerns and due-process concerns. Perhaps conducting a jury trial via videoconference in six months will not seem so absurd, but as discussed above, the response to the pandemic is constantly evolving, making it unwise to plan out a week, let alone several months, in advance.
As federal, state, and local government leaders and the courts continue to issue orders to protect the public during this pandemic, we must be prepared to adapt to the even more predominant employment of novel solutions featuring technology in civil litigation matters.
Written by Sarah C, Crocker, published in ISBA Flashpoints and reprinted here with the author's permission.
