Update: Maryland Court of Special Appeals, For Now, Appears to Adopt Televised “Zoom” Oral Arguments for Public, and Other Appellate Court Developments

By: Michael Wein

As a previous piece last week noted,  the four (4) appellate courts potentially affecting Maryland practitioners postponed their March and/or April oral arguments, because of the coronavirus health crisis.  We now have more information on what three (3) of the courts have adopted, as at least interim solutions, while retaining some flexibility of a “wait and see” approach depending on the status of the crisis in early May. (There does not appear to be a definite answer from the United States Supreme Court, on the late April oral arguments scheduled, but as SCOTUSBLOG reports, the Supreme Court, because it does not have any sort of video webcasts like the Maryland Court of Appeals, has a dilemma in not providing virtual visual coverage of the oral arguments, if the public does not have access to even an interim solution, of live-streamed video.)

The main development, one could argue, is akin to televised oral arguments at the Maryland Court of Special Appeals.  This would be the first time that Maryland’s intermediate appellate court has been viewable by video from Annapolis, with oral arguments “conducted remotely…[using] Zoom.”  This should begin next Monday, on April 6, 2020.  The Court has also indicated that “public access” will be provided by “live stream or by posting a recording of the argument later on the same day…”  While this doesn’t specify that the Court will be archiving it in a recorded format, as the Maryland Court of Appeals have been doing since 2007, presumably the “or” is not literal and the public will be able to review the oral arguments beyond a one-time live stream.   This recognition of the public right to trial, based in both common law and the First Amendment  (see e.g. Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)), appears to be the basis of the Court of Special Appeal’s determination, similar to that argued in a previous post, noting the benefits of webcasting at least some oral arguments by the Court.  In particular, highly publicized cases that might have  “public access” concerns, such as the Syed case, or a return to en banc  appeals, are well suited to being webcasted, just as the present Emergency Declaration, infers as well.

The exact wording of the Court of Special Appeals’ Order is as follows.  By now, everyone arguing cases in April, should have received their “Zoom” access instructions.

Oral arguments for April 1, 2, and 3, 2020 have been postponed to April 13 and 14, 2020.  All oral arguments scheduled to be held April 6 through 10 remain as scheduled, but will be conducted remotely.  The Court currently anticipates holding such arguments using the remote meeting platform known as Zoom.  The Clerk will send counsel detailed instructions on how arguments will be conducted using Zoom. For arguments to be held during April, counsel should expect the instructions via email from the Clerk no later than the close of business on Monday, March 30, 2020.  If you are counsel in a case scheduled for oral argument in April and do not receive instructions by that time, please contact the Clerk directly.  Please note that Zoom is a web-based program and you do not need to purchase or download anything to use it for arguments.  However, you must have a computer or smartphone with a working camera and microphone to use Zoom.  If you do not, please contact the Clerk.

Public access to arguments held remotely will be provided either via live stream or by posting a recording of the argument later on the same day the argument is held (check back here for instructions on access).

Because the Court will be closed to the public through May 1, 2020, arguments for May 1, 2020 will take place remotely.  Whether arguments for the remainder of the month of May and future months can be held in-person will be depend on later circumstances – we will notify you regarding the status of future arguments as soon as possible.”

Similarly, the Maryland Court of Appeals, in an Administrative Order by Chief Judge Mary Ellen Barbera, will begin to hear the postponed April oral arguments on May 12, 2020. (Those oral arguments originally set for the first two weeks of May 2020 have also been postponed). The Court appears to be weighing their options, as to whether to use their regular webcast with a minimal number of participants physically present or may use “videoconferencing.”  Though not stated, it is reasonable to assume that the Court is interested to see how the Court of Special Appeals’ use of “Zoom” technology works in practice, as well as relying on professionals, as to the level of risk by the time of early May, for those participating in oral arguments themselves.  Postponing future oral arguments this term may make the August 31, 2020 deadline, for completion of the cases in the 2020 Term,  difficult to achieve. At present, there is no indication that the oral arguments will not be available online for public view.  The specifics of Chief Judge Barbera’s Order includes as follows:

ORDERED, by the Court of Appeals of Maryland, that oral arguments scheduled for Thursday, April 30, 2020, Friday, May 1, 2020, and Monday, May 4, 2020 be, and they hereby are, postponed until further Notice of this Court;

and it is further ORDERED, by the Court of Appeals of Maryland, that the cases that were previously scheduled for oral arguments for Thursday, April 2, 2020 and Friday, April 3, 2020, that were previously postponed by Administrative Order filed on March 17, 2020, be, and the same are hereby rescheduled for Tuesday, May 12, 2020 and Wednesday, May 13, 2020, respectively, the dates on which the Court is currently considering holding oral argument by videoconferencing or other electronic means, and if it decides to proceed with videoconferencing, the Court will advise the parties at least 10 days in advance concerning the format and other participation procedures.

Meanwhile, the Fourth Circuit, which makes audio available for their oral arguments in Richmond but has never used video streaming, has apparently concluded that there will be no “in person oral argument” for the May 5-8, 2020 time frame. These oral arguments are being postponed, and will be scheduled “by video conference or teleconference, or submitted on the briefs” at apparently the direction of the panel assigned the case.  That’s a departure from the typical requirement of oral arguments for any published opinions, as permitted by an Emergency Rule Amendment from March 24, 2020, in the March Term oral arguments, as well as that individual panels have some discretion in the manner of scheduling it for oral arguments.  Thus far, the “Remote oral arguments” have been designated by a separate page, that allows some live streaming of just the audio, but not any video.  The Fourth Circuit’s Order is below:

Due to continuing concern for the safety of our communities and our employees, the court will not hold in-person oral argument during its May 5-8, 2020, argument session.  Cases tentatively calendared for May 5-8, 2020, will be continued for argument at a later session, scheduled for argument by video-conference or teleconference, or submitted on the briefs, at the direction of the panels in each case.  Counsel will receive further notice from the court regarding proceedings in their case.

Hopefully, at a future point when the crisis has been measurably improved and predictable safety measures are in place, to minimize risk for all involved, these social distancing requirements can be relaxed. This will require confirmation that Maryland and the United States, has (1) moved past the exponential curve of infections we are currently experiencing, (2) testing is available for those displaying coronavirus symptoms, have risk factors, or regularly interact with the public, and (3) for those who do have moderate or severe symptoms of coronavirus,  sufficient hospital space, PPE, and respirators, for both medical personnel and those acutely afflicted, including the elderly and those with other medical conditions, that make them more particularly vulnerable to the virus. In the meantime, while the issues of oral arguments and public access remain quite fluid, and not written in stone, there appears to be very little delays in the pace of written appellate decisions, with eleven reported opinions having  been issued by the Maryland appellate courts, in the past three (3) days.

Michael Wein, Esquire’s practice focuses on appellate and trial litigation.  He can be reached at weinlaw@hotmail.com.