Right of Access to Court Hearings During Epidemics
From Gomes v. U.S. Dep’t of Homeland Security, decided last week by Judge Landya McCafferty (D.N.H.), but just posted on Westlaw today:
This hearing is taking place during the public health emergency caused by the COVID-19 outbreak. All parties to this proceeding, including the court, are appearing remotely via video. The court’s protocols for this hearing are laid out in Standing Order 20-7 (March 23, 2020). I find that conducting this hearing via video—under the unique circumstances presented by the COVID-19 pandemic—is the best way to ensure the safety of the litigants, court personnel, and the public at large….
This suit has been provisionally certified as a class action for the purpose of conducting expedited bail hearings for class members. The hearing held today will be an individual bail hearing for class member, Souvanna Phachansiri. Mr. Phachansiri and counsel for all parties in this class action have consented in advance to conducting this proceeding via video.
Before convening this video hearing, I carefully considered the public’s and press’s First Amendment rights to in-person access to court proceedings. See Bucci v. United States, 662 F.3d 18, 22 (1st Cir. 2011) (citing Waller v. Georgia, 467 U.S. 39, 48 (1984)). This Order details my findings….
Partial Rather Than Total Closure
I first find that this video-hearing constitutes a partial, rather than total, closure of these proceedings. I so find because the goals of public access will still be achieved: this proceeding is not being held in secret and the public, including members of the press, maintains the opportunity to observe this proceeding in real time. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 593-97 (1980) (Brennan, J., concurring) (discussing the functions of public access to court proceedings, including ensuring that procedural rights are resp
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