THE COURTHOUSE DOORS START TO CREAK OPEN …
(Posted June 11, 2021) The word normalcy sounds quaint now, inured as we are to the many adjustments of pandemic life. But I’ve seen the first sign that the appellate world might be returning to the old ways. The Fourth Circuit today announces that it will reopen the Powell Courthouse in Richmond beginning Tuesday, July 6.
The court’s bulletin isn’t a complete return to life as we knew it a year and a half ago. Anyone who enters the building must still wear a mask, pass a temperature check, and answer a series of Covid-related questions. But starting next month, if you want to hand-file a document at the clerk’s desk instead of at the first-floor drop box, you can do that. For those who aren’t yet ready to reenter an enclosed space like this, the court will retain the drop box, though it will move one block east, to the annex entrance at 1100 East Main Street.
What about oral arguments? The notice offers this tantalizing hint: “Face coverings during Court proceedings are required as directed by the Court.” There’s one argument date over the summer months, a single criminal appeal on July 16, and the court’s website doesn’t yet indicate whether the court will hear that argument remotely. The ensuing session is in late September, and if I were forced to wager on it, I’d place two American dollars on the court’s allowing lawyers the option of in-person or remote argument then. I believe that the court will be ready to open its courtrooms, but might not force a lawyer to appear in-person if he or she doesn’t feel safe in doing so.
Fine, you’re thinking; but what about the state courts? There’s no formal word out of Ninth and Franklin yet, but let me see what the ol’ crystal ball shows …
Not much. We do know that the most recent order extended the judicial emergency another 21 days, to June 20. That order came down a bit later than I was used to seeing; previous orders had something of a rhythm, and this one missed its usual cue.
But I’ll add two things. First, the current order – the 22nd in the series – allowed trial courts far more discretion in allowing proceedings, so long as the judge deems them safe. Second, the Governor has indicated that he will allow the state of emergency to expire at the end of June. The terms of Code §17.1-330 give the Supreme Court, not the Governor, the final say over whether there’s a judicial emergency, but the justices will likely weigh the public end of the formal emergency when deciding whether to extend the judicial one.
We might accordingly see a 23rd order that extends the judicial emergency only to June 30. But candidly, I doubt that the justices will do that and allow trial judges carte blanche to summon venires, select juries, and conduct trials any way they wish. I believe that the Supreme Court will want to retain at least some control over local proceedings, and the only way to do that is to continue the judicial emergency.