Oct. 21, 2020 – In March, COVID-19 hit Wisconsin and the state court system moved to remote proceedings. In May, courts got a green light to resume in-person proceedings under safety plans. With new spikes in COVID-19 cases, where are we now?
The Wisconsin Supreme Court on Oct. 1 issued a new order that gives circuit courts more flexibility to halt in-person proceedings if necessary.
All circuit courts have issued operational safety plans, required by Wisconsin Supreme Court order, to guide the resumption of in-person court proceedings and jury trials.
The Supreme Court issued the order in May, with guidance for circuit courts, after a COVID-19 Task Force issued a report with recommendations for circuit courts. The order mandates face coverings in courthouses with other safety measures.
Reopening timelines vary by county. For instance, in Waukesha and Jefferson counties, in-person proceedings and jury trials resumed in July. Other counties, such as Dane and Milwaukee, are moving toward in-person proceedings in phases.
Many safety plans require continued use of remote hearings for routine matters with resumption of in-person hearings subject to then-existing public health conditions.
“We’re doing a balancing act,” said Judge Randy Koschnick, director of Wisconsin State Courts and former circuit court judge in Jefferson County.
“We want to keep the courts operational and do the people’s business, accessible to the public and the media but not expose people to an unreasonable risk.”
He noted the recent spike in COVID-19 cases in the Fox Valley, culminating in the supreme court giving chief administrative district judges authority to take a step back on in-person proceedings as circumstances require by amending operational plans.
Director Koschnick noted that attorneys and the public can go to the Wisconsin Court System’s website, which has a COVID-19 page with all circuit court orders. All the operational plans are posted, and revised plans are posted as issued.
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Courts Watching for Spikes
In late September, with an explosive increase in COVID-19 cases in the Fox Valley areas, Marinette County Circuit Court Judge James Morrison faced a dilemma: stay the course with in-person proceedings or shut it down.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
Judge Morrison is the chief judge for the Eighth Judicial Administrative District, oversees Brown, Door, Marinette, Kewaunee, Oconto, Outagamie and Waupaca counties.
Court system stakeholders – such as district attorneys, public defenders, and clerks of court – were reporting that employees were not able to come to work, the result of a spike in positive cases affecting employees directly, or their family members.
Judge Morrison consulted with the head of a local health system, who said area hospitals were close to capacity and the situation was worsening. It would be helpful, he told Judge Morrison, if the courts temporarily halted in-person proceedings.
“We were not seeing the court system itself as contributing to the problem,” Judge Morrison said. “But it was critical that the larger community stop gathering in groups.”
After consulting with other judges in the district, Judge Morrison issued an order to temporarily halt in-person proceedings for two weeks in Brown and Outagamie counties, aside from certain hearings implicating constitutional rights.
The Supreme Court, around that time, issued an order to clarify circuit court authority to amend operational safety plans and temporarily halt in-person proceedings.
The chief judge in each administrative district can make the call. And Chief Judge Morrison did so, temporarily stopping in-person proceedings for Outagamie and Brown counties in consultation with the presiding judges there.
“Again, court operations were not necessarily contributing to the spike in cases,” Judge Morrison said. “But there were legitimate staffing concerns because so many court employees, participants, witnesses, are affected outside of the court system.”
Judge Morrison said backlogs vary by county, but adoption of Zoom technology early on has allowed dockets to keep moving.
“The biggest problem is jury trials, but we have been very successful by sending a separate COVID questionnaire to the jurors to screen them ahead of time,” he said.
Community collaboration helped deliver a renovated courtroom at the Marinette County Circuit Court with new technology and space to accommodate social distancing.
Collaboration in Motion
Judge Morrison said Marinette County Circuit Court is holding jury trials in a new courtroom constructed specifically to address COVID-19.
At the end of July, Judge Morrison said it became clear that the courthouse could not facilitate jury trials in line with social distancing measures. The rooms were too small.
He went to the county board and said the court needed the circuit court room in the old part of the courthouse, which had become the county board room. The county board room was moving, anyway, at a later date. But the court needed it immediately.
The county board agreed. “We basically tore down the room to its paneling and took everything out and created a jury room where we could comfortably and safely put 14 jurors and a jury deliberation room,” Judge Morrison said.
“We got involved with CCAP and our vendors and created, at the same time, a system with microphones and screens, three large screens so everybody in the courtroom could see everything, and a new set of microphones,” he said. “At the same time, we put in all the equipment necessary for digital audio recording.”
According to Judge Morrison, the county used funds from the Coronavirus Aid, Relief, and Economic Security (CARES) Act to help pay for the renovations.
They are also running Zoom and YouTube out of that courtroom, so spectators can watch via YouTube in lieu of attending in-person. As for jury selection, Judge Morrison said the circuit court got creative.
“We talked to the movie theater owner across the street and he agreed to let us use his theater for jury selection purposes,” Judge Morrison said. “We can safely put about 110 people in that room.”
It was community collaboration in action, he said. “Everybody jumped up and down to help us. It was an opportunity for people to demonstrate that they could cooperate in the very best possible way."