'Remote' control?: Quartet of Supreme Court justices are at odds over the expanded use of 'remote participation technology'

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By Tom Kirvan
Legal News

A battle is brewing on the Michigan Supreme Court over “remote participation technology,” a three-word product of judicial life during the pandemic.

At stake is the “future of our court system in Michigan” and how the move to remote proceedings “impacts those who want their day in court,” according to state Supreme Court Justices Richard Bernstein and David Viviano, who were joined by Justice Brian Zahra in urging judicial officials to take a cautious approach in adopting and expanding virtual technology practices.

Their concern stems from an order adopted in late July by the Supreme Court that “continues to require expanded use of remote proceedings,” Bernstein and Viviano wrote in a joint statement expressing their dissent.

Their shared view is in response to a statement by Chief Justice Bridget McCormack that “it’s time to move forward, not back” in outlining her reasons for supporting greater use of remote technology.

“Michigan courts and the people they serve have a lot to be proud of in the lessons they have learned and what has been accomplished over the past 16 months,” Chief Justice McCormack wrote in support of the July order. “Instead of being paralyzed by the global pandemic, judges and court administrators rose to overcome the challenges that delivering justice required. Judges, magistrates, and referees have presided over more than 3.5 million hours of online court proceedings, which were broadcast so the public had access. The State Court Administrative Office’s Virtual Courtroom Directory has been used by the public to access live virtual proceedings more than 325,000 times. Local trial court YouTube channels have nearly 135,000 subscribers and trial court videos have millions of views.”

She stressed that the “benefits of these changes are vast and undeniable,” noting that the measures have improved safety and promoted greater access to justice.

“First and foremost, they have made people safer during the global pandemic,” McCormack said of the changes to how the courts have operated since the COVID-19 outbreak began in Michigan. “But the improvements in transparency and access to justice are also staggering; remote access has greatly increased court visibility, allowed more people to get legal representation, and reduced the number of cases defaulted because litigants couldn’t make it to court. People who would have missed a court date because they didn’t have bus fare or couldn’t afford to miss work have been spared the consequences of failing to appear (time in jail and accumulated debt).”

McCormack, chief justice since 2019, said that “virtual proceedings have had enormous efficiency benefits” as well.

“By reducing travel time and time spent in the courthouse waiting for hearings to begin, attorneys can appear in courts in multiple counties on the same day,” McCormack noted. “And lawyers benefit too when courts around the state have the same processes for appearing. Having to negotiate vastly different rules from court to court around the state is a cost lawyers and their clients would bear.”

Justices Viviano and Bernstein filed a joint statement in response to the interim order, writing that “we strongly believe it is time for this Court to stop administering the state courts by issuing emergency orders and we share a deeply held conviction that our state courts should return to in-person proceedings as much and as quickly as possible.”

The statement was issued more than a month before the current surge in coronavirus cases took place, although the two justices acknowledged the shifting sands of the pandemic.

“We recognize that there are continued public health challenges due to the COVID-19 pandemic, but we have practiced law and managed courts long enough to know that our chief judges in Michigan are up to the task of managing their own court facilities in a safe, responsible, and efficient manner,” Viviano and Bernstein wrote. “We also have great confidence in the ability of our trial judges to manage their dockets and their courtrooms, keeping a keen eye on the safety of their staff, attorneys, litigants, and the public.”

The administrative orders that were implemented at the beginning of the pandemic “represented our best efforts to address a complex problem that affected numerous facets of our court system,” according to Viviano and Bernstein.

“But they . . . have prevented large-scale, in-person judicial proceedings across most of the state for the past 18 months,” they wrote. “This has contributed to a massive backlog of in-person proceedings that simply cannot be alleviated by the use of more remote proceedings. We believe, however, that the time has come to end these emergency measures and restore normal operating procedures.

“Those procedures reflect centuries of tradition that have placed courtrooms and courthouses at the center of the judicial process,” they said. “There is a reason that our taxpayers have provided each judge in Michigan with a separate courtroom. They represent more than just physical structures. Courthouses hold ‘symbolic importance’ in our society, and their presence ‘affirms the presence of a community, of a society, by reflecting its values back to itself.’ Suffice it to say that this symbolism can be lost during remote hearings.”

Justice Brian Zahra, while acknowledging that when faced with the coronavirus crisis “we exercised our best effort to respond appropriately,” sided with Viviano and Bernstein in his opinion, stating that the Supreme Court “should not treat this as an all-or-nothing proposition” when issuing interim orders that take immediate effect.

“Remote hearings provide an opportunity to increase access to justice,” Zahra wrote. “This is no small matter. At the same time, remote hearings deny trial courts their full authority to maintain the dignity and proper decorum of the court. The courtroom—with the judge perched on the bench, the call of the court crier to open court and call cases, and the ceremony and ritual of live court proceedings—affords trial courts with authority that is conspicuously absent from video proceedings. It cannot be denied that there is an increased risk that litigants participating remotely will make a mockery of court proceedings, with the court having little or no remedy available to sanction such disruptive conduct. These concerns merit public attention before considering even interim court rules, which, more often than not, load the dice toward their later adoption as permanent court rules.”

In their joint opinion, Viviano and Bernstein said that all stakeholders in the judicial process need to be heard before “sweeping changes to courtroom procedures” become permanent.

“It is also important for us to allow our chief judges and other trial court judges the discretion that they always had to manage their facilities, courtrooms, and dockets,” Viviano and Bernstein wrote. “They have their work cut out for them in confronting the massive backlog caused by the pandemic. We should get out of their way and let them go to work.”

Chief Justice McCormack, in turn, said such an approach “would needlessly hurt the many litigants who have gained the most from our new pandemic practices, as well as the many lawyers (and their clients) who have seen efficiencies otherwise not possible.”

Added McCormack: “It’s time to move forward, not back. We should look at what we have learned from our collective experiences during the pandemic and continue to use practices that have worked while discarding practices that have not. Every other institution and industry is doing exactly that—changing their practices for the better based on lessons learned this past 16 months. The modern workforce will never return to its February 2020 norms . . .

“Why should courts be the one institution that doesn’t benefit from the lessons learned from the accelerated innovation that COVID-19 brought? More importantly, the public traditionally excluded from those courts should not lose a valuable new tool for access and transparency.”

Public comment on the interim order is invited, and can be submitted in writing or electronically by Nov. 1, according to Supreme Court officials. Mailed comments can be sent to the Clerk of the Michigan Supreme Court, P.O. Box 30052, Lansing, MI 48909. Those preferring e-mail, should send comments to ADMcomment@courts.mi.gov. When filing a comment, refer to ADM File No.  2020-08.



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