June 3, 2020 – More than two months after the Wisconsin Court System quickly shifted to remote proceedings amidst COVID-19, the gradual move to safely resume in-person proceedings, including jury trials and other in-person hearings, is now in the works.

On May 22, the Wisconsin Supreme Court, by order, determined that “individual circuit courts of this state may begin gradually to resume in-person proceedings, including jury trials, on a county-by-county basis if the circuit court prepares a plan to do so safely.”¹

All circuit court (and municipal court) reopening plans must require face coverings by all individuals present in the courtroom and include frequent disinfecting practices. The chief judge in each administrative district must approve the local operational plan.

The supreme court has extended previous orders that suspended in-person hearings, including jury trials (with some exceptions), until local reopening plans are approved.

That means remote hearings will continue until local reopening plans are approved and allow for in-person proceedings. Other supreme court orders are also extended, such as a “temporary mailbox rule” and the suspension of deadlines for non-criminal jury trials.

COVID-19 Task Force Report Guides Circuit Courts

The court reopening order follows a final report from Chief Justice Patience Roggensack’s Wisconsin Courts COVID-19 Task Force, a 24-member group of circuit court judges, prosecutors, public defenders, court clerks, and county corporate counsel.

Christopher Rogers of Habush, Habush & Rottier S.C., immediate past-president of the State Bar of Wisconsin, was a member of the task force, chaired by Diane Fremgen, deputy director of state courts for court operations. Dr. Robert Golden, dean of the U.W. School of Medicine and Public Health, and Dr. Dennis Maki, professor emeritus, served as consultants as the task force hashed out recommendations.

“From our very first meeting, Chief Justice Roggensack made it clear that it was her hope that science and medicine would be the main factors in our decision making, and that was really the mindset of the task force,” Rogers said.

“There were obviously a large number of variables, and issues that were specific to our individual counties,” he said. “Still, we wanted statewide, to have the science and the safety of the people within the courthouse lead our way. The input of Dr. Golden and Dr. Maki was extremely valuable.”

The task force report, adopted by the supreme court as a whole, provides guidance to counties and circuit courts as they develop reopening plans through “a phased-in approach that monitors conditions within the county,” with periodic review.

The guidance covers staffing, facilities and equipment, resumption of in-person proceedings, and resumption of jury trials. These recommendations are not mandatory, other than face coverings and disinfecting practices, but serve as a resource to counties.

Judge Randy Koschnick, director of Wisconsin state courts and a former circuit court judge in Jefferson County, said the chief justice wanted to ensure the court system had a reliable set of data and other information upon which to make policy decisions.

“The task force assembled all the stakeholders and people with specialized knowledge to come up with a set of recommendations for how we could resume in-person proceedings and do so safely,” Judge Koschnick said.

One of the report’s top recommendations is that each county create its own task force group with numerous stakeholders to develop the local court reopening plan.

Local stakeholders include judges, court clerks, the county sheriff, county corporation counsel, prosecutors and public defenders, the county health department, county administrators, probation/parole officers, and members of the county bar association.

“The task force worked very hard in a short period of time to get the report out so counties could use it as a guide going forward,” Rogers said

It was important to everyone involved that the private bar and local bar associations be involved in developing reopening plans, Rogers noted, because there are great discrepancies in how the pandemic is affecting the different counties.

“It was important to get local task forces on the ground to look at what’s happening in the individual counties so that appropriate decisions for each county can be made,” Rogers said. “Part of that group on the county level will involve the private bar.”

Rogers also noted that the State Bar of Wisconsin, moving forward, will continue to partner with the Wisconsin Supreme Court in providing information regarding ongoing efforts to ensure the safe operation of the courts as the pandemic continues.

“We all hope that we will be relaxing some of our standards and moving forward into phases,” Rogers said. “But there may come a time, if there’s a spike in coronavirus cases, where we actually have to revert back to a more restricted phase.”

The task force report notes that counties may find “they must go back to remote hearings to address safety concerns, whether it relates to staff, jurors, litigants, other courthouse users, or the availability of supplies.”

Jury Trials

One of the biggest issues for reopening is jury trials, noted Judge Koschnick. Criminal and civil jury trials were suspended by a March 22 order. A subsequent order allowed circuit court judges to conduct in-person proceedings under limited circumstances.

Koschnick noted that the court system has been balancing constitutional due process rights with a duty to provide a safe environment, including safety for jurors.

“We are requiring people to come in for jury service, as citizens. It’s not optional, it’s a mandatory appearance,” Judge Koschnick said. “We want to make sure that if we are using the force of law to require citizens to come to court to serve on a jury that we are not going to unreasonably expose them to danger or other risk.”

The COVID-19 Task Force report outlines specific jury practices to “address safety issues and to ensure the rights of all parties and the public who come before the court to participate in a jury trial,” recognizing the ongoing health concerns.

Among the recommendations: screening of potential jurors, personal protective equipment for jurors; and social distancing in the courtroom. Another recommendation calls for presiding judges to prioritize jury trials based on several factors, including the nature of the cases and the “extent to which the cases involve liberty interests.”

Moving Forward

Moving forward, Judge Koschnick hopes members of the bar and those within the court system can continue working together to address court system issues.

“I appreciate members of the bar being patient with us and being able to work with us,” he said. “We have a lot of changes. We can all work together, whether we are on the civil side or the criminal side, prosecution, defense, or court administration.

“We all believe in the same fundamental priorities: following the constitution and keeping people safe. If we can continue to work together, be patient with one another, I think that’s how we best serve the community at large and each other.”

Endnotes

¹ Supreme Court Order re Matter of the Extension of Orders and Interim Rule Concerning Continuation of Jury Trials, Suspension of Statutory Deadlines for Non-Criminal Jury Trials, and Remote Hearings During the COVID-19 Pandemic (May 22, 2020)