Oral Arguments Postponed Left and Right Due to Coronavirus…At Least in Maryland, How Long Should this Last?

By: Michael Wein

It began with court and jury trials being postponed throughout the State of Maryland.  But the past 10 business days have seen a remarkably swift progression in the postponement of appellate oral arguments in all Maryland and related Federal Courts due to the novel coronavirus.

A brief recap:

1. With regularly scheduled oral arguments from March 23 to April 1, 2020, the United States Supreme Court postponed these arguments, on March 12, 2020 and until further notice. The next batch of oral arguments are scheduled to begin April 20-29, 2020, which are the last presently-scheduled for this Term.  Typically, the United States Supreme Court will finish up their Term by June 30^th.  It will be interesting to see if this changes, and if the typically 2 month long “summer recess” is reduced, to finish up the Term.   As of now, the Supreme Court has also granted an automatic extension for seeking certiorari, from 90 days to 150 days (Something that can be done regularly, with request and good cause motion basis in the Supreme Court). This order appears to also permit additional extensions, if “reasonable” and the requested reason was due to the novel coronavirus.  This may, in particular, be geared towards delays associated with the majority of Supreme Court certiorari petitions that are pro se, and often involving incarcerated defendants/petitioners.
2. With regularly scheduled Oral arguments from March 17-20, 2020, and additional arguments scheduled for April 7, 2020 at a special session at Marshall University in West Virginia, the Court of Appeals for the Fourth Circuit postponed these on March 13, 2020. The next batch of oral arguments are scheduled for May 5-8, 2020 in Richmond.  It is unclear whether the May oral arguments will be postponed, or when the March arguments might be rescheduled.  However, yesterday, the Fourth Circuit announced a  temporary suspension of their Local Rule, allow opinions to be published without there having been oral arguments for the case.  This suggests that at least some of these decisions, may not go forward with oral arguments. Whether this is done because the parties mutually agree to have them decided “on brief” or because more Draconian measures are being contemplated by the Court, is unclear.
3. With regularly scheduled oral arguments on April 2 and 3, 2020, the Maryland Court of Appeals postponed these on March 17, 2020. The Order does not presently specify how the April oral arguments will be rescheduled, though it does note that the Court would be receptive to the parties request for cases to be decided “on brief.”  In her video message yesterday, Chief Judge Mary Ellen Barbera noted that the Judiciary will be keeping attorneys informed online, as the situation develops.
4. With regularly scheduled arguments from April 1-10, 2020 the Maryland Court of Special Appeals postponed arguments for April 1, 2 and 3, on or about March 17, 2020. The exact wording of the description from the Court of Special Appeals’ webpage, notes that a few possibilities are being discussed at the Court, on how further oral arguments will be “explored.”

Oral arguments for April 1, 2, and 3, [2020] have been postponed – all other previously scheduled arguments remain as scheduled. Pursuant to Paragraph (j) of Chief Judge Barbera’s Administrative Order, oral arguments scheduled for April 1, 2, and 3, 2020 are postponed; the Clerk will contact counsel about rescheduling the oral arguments for those days.  The Court is exploring the possibility of holding oral arguments remotely via video conference.  If that is possible, the Clerk will coordinate with counsel.  If it is necessary to cancel oral arguments, the Court will inform counsel directly.

Of the four appellate courts listed above, the one that is presently most capable of having oral arguments, despite the present coronavirus concerns, is the Maryland Court of Appeals. Maryland’s High Court is the only one that has live and recorded webcasts.  Webcasting oral arguments originated under Chief Judge Robert M. Bell in May 2007, and in 2014, the Court updated to HD, under Chief Judge Barbera. The ready availability of webcasts provides needed flexibility of the appellate courts, to have proper oral arguments while maintaining the right to constitutional guarantee of a public trials and hearings.

Other courts, that have not agreed to recording of oral arguments, particularly due to a fear of cameras in the courtroom, are instead discussing alternatives related to the current health crisis.  Last week, SCOTUSBLOG’s Tom Goldstein did a lengthy Post, discussing the options to be contemplated by the Supreme Court and some federal intermediate appellate courts, for oral arguments (which almost certainly does not include the Supreme Court, for the first time, having video oral arguments), but tracing some of the history going back to the Spanish Flu of 1917, as well as having minimal staffing during the Supreme Court, with same day audio provided.

A previous Post discussed, how the existing webcast set up at the Court of Appeals should be expanded to permit the Court of Special Appeals (with the High Court’s permission), to restart granting “en banc” arguments, after an about 10-year break and permit high public interest cases to be remotely viewed, due to lack of seating or security concerns, such as the unusual Syed case being argued then.  The same rationale would apply to this present health crises and concern.

Instead, those interested in the Syed oral arguments can watch them comfortably from their home or business. The court can have an interesting but more controlled day because the media and interested parties can watch arguments streamed live, and they will not be required to go to Annapolis while exercising their desired rights to attend a public trial. And so further examination at restarting the in banc appeal argument, including live webcasts of the Court of Appeals, may end up reducing the overall lack of public understanding of this court. To the extent that judges of the Court of Special Appeals may not be desirous of webcasted oral arguments, it would at least be a positive step forward that would resolve the dilemma on any future high media interest cases, like that of Syed. It’s the best of both worlds.

During the evolving nature of the health emergency, it is understandable that the April arguments were postponed, particularly as there may need to be more Orders adopted by the Maryland Court of Appeals in the next two (2) weeks. Still, there should be, with the eight (8) oral arguments postponed, flexibility in having oral arguments, when both the Court and the parties are available, even if that’s done with little notice, in late April or another time in May.   All of the Court of Appeals cases, as they have for the past 12 years, could still comfortably be webcasted, though obviously protections and precautions should be taken, such as scrubbing down all surfaces and limiting in-person attendance to a minimal 1 or 2 attorneys at each table, 1 or 2 court clerks assisting the judges, and the seven judges of the Maryland Court of Appeals. All webcasted for the public.

For the Court of Special Appeals, certain cases may be of a particular time sensitivity and/or public interest, to similarly justify making the cases online, perhaps borrowing the 4^th Floor’s webcasting set-up.  These could include certain important criminal matters, which delay, may mean individuals are unnecessarily detained, or other time-sensitive matters, such as some emergency custody cases.  Further, it is possible that cases related to the crisis at hand, such as quarantine or isolation orders, may themselves be important to make available to the public, with available live webcasting in the Court of Special Appeals.

When oral arguments resume, it will hopefully be at a time it’s been confirmed: (1) there’s a clear availability of testing in the United States for anyone displaying main Covid-19 symptoms, has interacted with someone diagnosed with the virus, or has duties that require regular interactions with the public, (2) there’s available hospital beds to properly treat those infected with the virus, who are in the moderate to severe category of symptoms, and (3) the United States (or at least Maryland), has passed the upward trajectory curve we are currently experiencing, so that the curve now looks more like a pyramid with new infections, and confirming that the austerity measures are working.   It’s important that Maryland’s highest court is not only virtually available for business, but that the important business of the Judiciary, can still be displayed for the public’s consumption, even if the temporary emergency precludes direct attendance to the interested public.

I should perhaps stop the Post here, but I do want to say something about the current state of affairs.  It’s easy to get confused about “fear.”  The present climate about “social distancing” on some level is to get through to everyone, the need to avoid spreading the virus, and the austerity measures involved, help do that.  It may make one “trepidatious,” particularly when someone doesn’t practice this new “social more” of “social distancing” and so may more easily spread the coronavirus.   Trepidation is very close to fear, so it’s understandable to compare the two.  But it’s important to remember, that these measures to protect the general public, were necessitated due to the very unfortunate delayed and anemic federal response, that created the need for more Draconian measures by State and Local governments.

I say that, because there appears to be few people who are under 65 or without medical conditions that will suffer more than mild symptoms, from this stealthy disease.  (One of the few people who does not fit this profile, is 44-year old legal appeal blogger, David Lat, who is in critical condition with Covid-19 in NYC)  So the vast majority of persons who even contract the virus (estimates are about 85%), will be either asymptomatic or have mild symptoms that a few days of rest and liquids will resolve, similar to a cold or flu.  So it’s not about “fearing” the virus for most people, but “caring” and empathetic enough to properly understand how scientifically, this virus replicates, and what can be done, to help ensure that it’s not spread to the about 15% of the populace who are vulnerable and at risk, of catching this disease.  These vulnerable citizens who may have to get hospital treatment, and need a ventilator or other significant treatments, to avoid becoming a fatal victim of Covid-19.  This is even more necessitated, because if everyone gets sick at the same time, which can happen, would be disastrous.   The  phrase “This Too Shall Pass” seems like it’s out of the Bible (it’s apparently based on an Abraham Lincoln speech, but may have origins in ancient Persia or King Solomon), but certainly when this has passed, we’ll be thankful that people came together, and were caring enough.