If you’re reading this, that means you’ve taken a few minutes away from the non-stop coverage of COVID-19 to ponder procedural fairness. Admittedly, there is not much connection between the two, but I do want to suggest one and offer a challenge to my fellow judges (along with echoing Judge Leben’s comments from last month).
First, from everything that I’ve seen, courts across the country have done an admirable job balancing the need to remain open for critical dispute resolution with a mindfulness of the exigencies of this public health crisis. Yes, that means some disputes might get pushed to the backburner in the name of public safety. But the doors of our courthouses remain open, and judges and court staff are rolling up their sleeves to keep operations running as best as possible under the circumstances.
When we consider the procedural fairness overlay, it is worth thinking about how many people who utilize our judicial system have been impacted by this crisis—lost jobs or layoffs, lost transportation, a lack of childcare, and even direct illness in their families (or with their lawyers). This situation cries out for flexibility, accommodation, and understanding of these challenges. To that end, some courts (including the Ohio Supreme Court) have issued blanket tolling orders to ensure that litigants do not have to comply with certain deadlines in the midst of this crisis. Of course, courts need to do as much as they can to spread the word about their continuity of operations to litigants (and jurors) so that they know what to expect (and, for instance, not to come to court when it’s not necessary). Transparency is always a bedrock for procedural fairness, but this is a slightly different type of transparency, and it is more critical than ever.
Once we reach the other side of this crisis, courts need to be thoughtful in handling individual situations because many of the effects will be lingering with us for some time. Some, of course, will be hit worse than others. The message that we want to send, from a procedural fairness standpoint, is that we remain here to resolve your disputes, and we will work with you to ensure that your case gets decided on the merits as efficiently as possible (while avoiding needless technicalities or red tape).
The challenge I’d like to offer is that we judges need to think critically about all of the experimentation that your courts and others are conducting right now. This situation affords us a chance to step back and say, “How can we improve the daily administration of justice?” Some of our experiments will work well, and others not so much. But we’ll have data borne of experience that we can return to and use as a basis for evaluating the potential for positive change. One example in the headlines recently is bail reform, with many courts declining to set bail for certain non-violent offenders. After the dust settles on this crisis, we need to go back and assess whether those efforts worked from the standpoints of the administration of justice and public safety. If they did, it may be time to reevaluate some historic practices.
I want to personally thank all of the judges and court staff who have sacrificed so much during the initial stages of this crisis to keep our judiciary running. Your selflessness, dedication, and creativity are a testament to the best of public service. –Pierre Bergeron
Procedural Fairness For Courts and Judges 