Court closure requires balancing act

The Montrose County Justice Center is now under a closure order, with severely limited access for essential proceedings and business.

State courts in Montrose County and the rest of the 7th Judicial District are now closed to public access, with steps in place for proceedings that must take place in person.

The order, issued Wednesday by Chief District Judge J. Steven Patrick, remains in effect until the COVID-19 state of emergency has passed. Balancing public health needs — including local and state orders barring gatherings of 10 or more people — against the public’s right of access to its courts is challenging, Patrick said.

Options being considered for press and non-party access to essential proceedings, such as sentencing hearings, include remote meeting access software or phone conference call lines so that, at minimum, someone can at least listen to a hearing by phone.

“We’re trying to sort out how we accommodate that (public health orders) and yet have the press. We need to have open courts. There is a right to have public proceedings. We’re not the Star Chambers,” Patrick said.

“As with many constitutional rights, there has to be a balance. Public health is a serious issue. Similarly, the fundamental constitutional rights someone has as a criminal defendant, the fundamental rights of the press — it’s a work in progress to sort out how public health and these things all play out.”

The 7th Judicial District courts are complying with and drawing from a March 16 order from Colorado Supreme Court Chief Justice Nathan Coates, which defines essential hearings and suspends jury duty calls, except for trials that are up against speedy trial deadlines.

Essential hearings include those for emergency protection orders, advisements (which can be done by video) and those that fall under the Victim Rights Act, which require providing victims the option of being present for significant hearings in their case. Essential hearings are also those pertaining to a defendant’s right to a speedy trial and other situations that cannot be indefinitely postponed.

“There are fundamental constitutional rights. Technically, the courts are open all of the time for true emergency circumstances,” said Patrick.

“The public closure is certainly a concern for us, because defendants have a constitutional right to a public and speedy trial,” District Attorney Dan Hotsenpiller said. “There’s a lot of law around when you can actually exclude people from courtrooms. It’s actually quite limited. We don’t take lightly that courthouses are being closed to the public.”

A way must be found to balance the public interest while keeping the public safe from pandemic, he said.

“I think technology is one of the ways that is going to help us do that. But I also think it’s possible to have in-person hearings and still maintain a reasonable safety mechanism to try to avoid spreading the virus.”

Patrick said there are regular phone conferences with state court administrators, in the attempt to navigate the new reality.

“But we have 22 judicial districts. We have 400 or so independent constitutional judicial officers,” he said, explaining a chief judge’s authority is limited.

“It’s challenging as to what can be uniform statewide, or even districtwide.”

The district includes Gunnison County, in which at least 40 cases of the virus have been confirmed, and where there has been at least one death. That county has been under restrictions predating the court orders, as well as Wednesday’s statewide stay-at-home order, as has San Miguel County. Some of the smaller courtrooms are housed in multi-use county buildings, which have been closed.

Public access to proceedings is far from the only issue arising from the court closures. Hotsenpiller noted many people have business at the court clerks’ office, including criminal defendants. Not everything can be continued with the expectation that the system will still function well, he said.

“We can’t come to a full stop. It’s not feasible to just continue everything for three months or whatever is required. We have operated on the belief that we need to continue to try to get things done and understand that we need to work in a fundamentally different way immediately,” said Hotsenpiller.

His staff is working almost exclusively from home and by phone.

Court and clerk employees are working in court buildings, but conducting most of their business by phone and email. When matters cannot be handled except in-person, people will likely have to make an appointment; the number of people who can come in will be limited, and people will be asked screening questions, Patrick said. If they appear ill, they will not be admitted.

“We’re not asking them to have a doctor’s note saying they’re healthy, but if there’s evidence of concern, they are still not coming in the building,” he said.

Aside from the COVID-19 risks, several employees have school-age children and no child care for them as schools remain closed.

“We’re trying to also address that, having flexibility if we’re going to be shorthanded,” Patrick said.

Patrick also issued an order for temporary modified bail procedures during the state of emergency. This adheres largely to the existing bond schedule. People accused of offenses that class-4 felonies or lower are to be released on a personal recognizance if they do not have other pending cases, however, the advising judge retains discretion to modify bail.

Although restrictions on public gatherings and businesses have been imposed, people do still engage in essential activity, such as buying food and gas, plus health care workers are on the front lines, Hotsenpiller said. That means there is still some interaction so there must be continued efforts to minimize exposure and spread of COVID-19 — including developing means of continuing court in ways that cut the risk, he said.

“We can’t make it go to zero. We know that.”

Katharhynn Heidelberg is the Montrose Daily Press assistant editor and senior writer. Follow her on Twitter, @kathMDP.

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