State courts in Maine are still grappling with how to provide public access to virtual hearings and, starting this month, in-person proceedings that will be capped to allow for social distancing.

Courts have been closed for all but the most urgent business since March, and those hearings that have taken place are typically by video or telephone conference.

The Maine Judicial Branch released a detailed and phased plan Wednesday for gradually resuming operations. Virtual hearings will still be strongly preferred even beyond September, but the courts may schedule some in-person proceedings as soon as June 15.

But the 15-page document does not include any information about how the public or the press should access virtual hearings. And the plan said no more than 10 people will be allowed in a courtroom but did not indicate what would happen when people want to observe a hearing that is at capacity.

Asked for more information, a spokeswoman for the Administrative Office of the Courts said those concerns are under discussion and input is welcome.

“I don’t think there’s any question that we have to figure out access issues,” Amy Quinlan, the director of court communications, said. “I don’t mean to convey any lack of urgency. It’s absolutely something we’re trying to work on.”

Courts across the country have largely moved online during the pandemic. The Reporters Committee for Freedom of the Press is tracking public access to judicial proceedings and so far has found that the response has been varied.

Federal courts have allowed video and telephone conferencing, and their national governing body has explicitly stated that the press and the public should be able to observe those proceedings. Some state courts have taken a similar approach. The top court in Kentucky, for example, issued an order that said the public and the media should have access to any remote judicial proceedings that would have happened in open court.

But the Marshall Project, a nonprofit news organization that reports on criminal justice, found that volunteer court watch programs had limited or no access to virtual proceedings in some other states, like New York and Louisiana. In California, a coalition of press and civil liberties groups signed a letter that outlined suggestions for broader public access, like sharing dial-in information before court events and waiving fees for online access to documents.

“As we move into the next phase of the way that public institutions are responding to the pandemic, it is going to be important to take account of public access,” said Zachary Heiden, legal director at the American Civil Liberties Union of Maine. “That’s true in the Legislature or any government bodies, and it’s especially true in the courts.”

In Maine, the Judicial Branch wrote its plan with a group of stakeholders and hosted two virtual meetings for public comment in May. One speaker was Judy Meyer, who is the executive editor for the Lewiston Sun Journal, Kennebec Journal and Morning Sentinel, and vice president of the Maine Freedom of Information Coalition. She addressed the group on behalf of the Maine Press Association.

“I would ask that the court keep in mind that there is great public interest in proceedings and documents in our courts, particularly in criminal cases, and that be kept front of mind when the rules are drafted,” Meyer said.

Meyer shared examples from other states in written comments to the stakeholders group. Michigan, for example, has imposed a similar 10-person cap on courtrooms. But the guidelines there say that any member of the public who is asked to leave the facility “must be offered an opportunity to conduct court business virtually, attend court proceedings virtually, file documents in an alternative manner, or confer with court administration to determine alternate arrangements for accessing the court.”

While reporters at the Sun Journal and other newspapers have not been able to watch or listen to state court proceedings, Meyer said in an interview that clerks have been responsive to requests for documents.

“I’m sure this will be a work in progress,” Meyer said. “I just really hope that public access is not a victim of that.”

Maine is still working to build an online system for filing or viewing court documents – that capability will be available for the first time for some cases in Penobscot and Piscataquis counties this fall – and Quinlan said the current paper system has been a challenge.

Quinlan said the Judicial Branch is planning to post weekly schedules online so people know what proceedings are happening. She also noted that the courthouses have only been open limited hours since March, but the plan allows for them to expand their hours again starting June 1, so visiting a courthouse in person will be easier.

The Maine Supreme Judicial Court used Zoom to do an oral argument, which was streamed online. The lower courts are right now using Google Meets for video hearings, Quinlan said, but they are weighing security and cost for various platforms to find the best one for the coming months.

Peter Schleck is the manager of operations and clerk of the Penobscot County courts, which includes four locations in Bangor, Newport, Lincoln and Millinocket. He said staff worked quickly to transition to virtual hearings for most matters, but the courtrooms are still open to observers. The judge and court personnel are present there, but other parties like a defendant join the hearing remotely. When news outlets have requested access to hearings, he has set up a laptop for them to observe in the courtroom.

“We have made it work the way we need it to in order to ensure the public’s … right to know, the participant’s right to a public proceeding,” Schleck said.

“But that is on a case-by-case basis when needed,” Quinlan added. “That’s not something we could do on a large scale.”

Schleck said he has been taking measurements and thinking about staggered schedules for when more people return to the courthouses.

“We need to be mindful that we have to balance the risks of transmission of this disease with the very, very vital values that we have about our open proceedings,” he said.

Maine also has two federal courts, in Portland and Bangor. Clerk Christa Berry said nearly every employee is working remotely right now, and all proceeding are happening on Zoom. Anyone who wants to observe a hearing should contact the clerk’s office for call-in information, and instructions are posted clearly on the court website.

“There doesn’t need to be a justification or reason,” Berry said. “You can say, I’m John Q. Public, and I would like to observe that sentencing tomorrow afternoon, and we say, OK, no problem,” Berry said.

She said many questions still have to be answered about when and how the physical courthouses will reopen to the public.

“The judiciary on the state and the federal levels were a little old-fashioned,” Berry said. “And if you had told us six months ago that we should be thinking about Zoom, we would have said you’re crazy.”

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