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Courts Begin to Consider Guidelines for Reopening

The Administrative Office of the U.S. Courts has distributed to the courts guidelines for restoring operations that rely heavily on conditions in local communities and on objective data from local and state public health officials and the Centers for Disease Control and Prevention.

The Federal Judiciary COVID-19 Recovery Guidelines emphasize local decision-making by the courts as each considers exhaustive factors while moving through four phases. The final phase is a return to normal operations, similar to those that existed before the COVID-19 pandemic struck the United States.

Courts would progress through the phases at their own pace because the guidelines rely on such unpredictable factors as the downward trend of a community’s cumulative daily COVID-19 case counts over a 14-day period, the status of local restrictive movement and shelter-in-place orders, and confirmed or suspected cases in a court facility.

“The health and welfare of each Judiciary employee, contractor, and member of the public that enters our facilities should be paramount in the decisions that are made as these guidelines are implemented,” the document says. “Because each state and municipality is in a different posture in the fight against COVID-19, each circuit and district will have to make local decisions on operational status based on the jurisdiction’s current COVID-19 case count and local stay-at-home and quarantine orders. This national guidance is designed to help facilitate decision-making at the local level.”

AO Director James C. Duff said, “Some courts are beginning to consider preparations for on-site operations. Many courts, however, are not close to this process yet as the pandemic continues to have severe impact in their communities. But the guidelines reflect the fact that, for all courts, the safety of our employees and the public who utilize our services and facilities remains paramount.”

Duff also announced the creation of a group of chief judges and court executives to develop protocols for how to safely resume grand jury and trial jury proceedings. Many courts have suspended juries during the COVID-19 outbreak because of the difficulty empaneling a representative sampling of the community. Older people and those with compromised health conditions especially have been reluctant to leave their homes to serve on juries.

“Issues such as testing potential jurors, social distancing considerations during jury assembly, voir dire, jury deliberations, and many others are being considered,” Duff said, noting that guidance on those issues would be forthcoming.

The guidelines propose an exhaustive set of “gating” criteria for courts to consider as they gradually progress through four phases, or, reverse course to move into earlier phases if local conditions deteriorate.

To begin the process, courts are encouraged to consider the local public health agency’s recommendations, which rely on conditions such as total population, population density, number of people over age 60, the availability of intensive care unit beds, and confirmed cases of COVID-19. For example, the guidelines say that if a courthouse is physically closed to the public, it should remain so unless local public health and public safety officials have reopened other public facilities.

Many courts are currently in the first phase -- courthouses are closed to the public, all but necessary proceedings are postponed, and most employees are teleworking. The second phase loosens those restrictions somewhat, for example, by allowing for an increase in court filings and proceedings while continuing a heavy reliance on remote filing and telework. Non-vulnerable individuals are allowed to return to the workplace.

In Phase Three, many employees return to their workplaces while practicing social distancing and taking other precautionary measures such as wearing facemasks. Courtrooms, jury rooms, and cafeterias reopen but with six-foot distancing restrictions in place. Deep cleaning of courthouses continues, as in the earlier phases. Phase Four is a return to normal court operations as communities return to everyday life.

Chief judges, court executives, and federal public defender offices “will need to tailor the application of these criteria to local circumstances,” the guidelines say, and “should work with local public health and public safety agencies to ensure when these criteria are satisfied and minimize employee risk as they progress through the phases.”