Jury box. Credit: ALM

Two public-rights groups on Friday sued Kern County Superior Court, alleging courthouse leaders have unlawfully blocked access to criminal proceedings during the COVID-19 pandemic.

The ACLU and the First Amendment Coalition, along with relatives of several defendants, claim the Central Valley court is violating the public's right to watch arraignments, preliminary hearings and trials, according to a complaint filed in the U.S. District Court for the Eastern District of California.

"Courts across the country, including other superior courts in California, have balanced public safety while safeguarding the public's constitutional right to access court proceedings by simply providing publicly available call-in numbers so that members of the press and public can listen as courts can conduct business," according to the complaint, signed by Kathleen Guneratne, a senior staff attorney at the ACLU Foundation of Northern California, and David Snyder, executive director of and attorney for the First Amendment Coalition.

The plaintiffs said other courts, including Contra Costa County, "have provided limited physical access to the public and/or remote access to jury trials and other criminal and civil proceedings." The complaint said Kern County "could easily do the same. Because they have not, the Order violates the First Amendment of the Constitution."

Kristin Davis, Kern County Superior Court's public affairs officer, declined to comment on the pending litigation.

California's courts have taken different approaches during the pandemic to balance the public's right to witness proceedings with the need to reduce the risk of spreading the novel coronavirus.

Mariposa County Superior Court, for example, limits physical access to its historic courthouse but provides live streams of all public proceedings. Santa Clara County Superior Court provides listen-only telephone lines to allow the public to monitor certain proceedings. Sacramento County's court offers live streams and a lottery for spectator seating in criminal jury trials and some sentencing hearings.

Still, the First Amendment Coalition has documented instances around the state where public access in any form was denied, including an April hearing in the Ghost Ship fire case where reporters were shut out of the Alameda County courtroom and lawyers, operating under a gag order, could not say what happened.

Snyder wrote to the Judicial Council on June 15 asking for "immediate, concrete" steps at the state level to ensure public access to court operations.

"We understand the challenges that California courts face amid a global pandemic," Snyder said. "We do not doubt that restricting access consistent with social distancing best practices and expanding remote hearings is the right thing to do. But failures by some courts to prevent secret proceedings and extended delays in availability of records have resulted in serious, ongoing constitutional violations."

Kern County's website says the public "will be authorized by the presiding judge or the assigned judicial officer to attend all scheduled hearings in-person, provided they wear face coverings and maintain the required physical distancing of at least six (6) feet." Those who want to attend criminal proceedings are asked to talk to the "attorney of record" in the case or to ask courthouse security screening officers.

But court observers from the ACLU and the First Amendment Coalition, as well as the mothers of two defendants, contend security officers told them on many occasions that only parties to a case and their attorneys could enter the courthouse.

The court announced in April that the public could access some remote proceedings by telephone or video. But the access was available to only a handful of departments, and information on how to connect to the proceedings was removed by the court as of June 24, according to the complaint.