First she suggested; now she has commanded.  Stating that health restrictions imposed in response to the COVID-19 pandemic have “made it nearly impossible for courts to assemble juries,” Chief Justice Tani Cantil-Sakauye last evening ordered all jury trials in California “suspended and continued” for 60 days.  The order also extends statutory deadlines to bring civil and criminal trials.

The Chief Justice stated:

Many court facilities in California are ill-equipped to effectively allow the social distancing and other public health requirements required to protect people involved in court proceedings and prevent the further spread of COVID-19.  Even if court facilities could allow for sufficient social distancing, the closure of schools means that many court employees, litigants, witnesses, and potential jurors cannot leave their homes to attend court proceedings because they must stay home to supervise their children.

The statewide order represents a newly expansive view of a Chief Justice’s powers.  The order says the Chief Justice acted under her constitutional (art. VI, section 6) and statutory (Gov. Code section 68115) authority as chair of the Judicial Council.

However, in a statement 11 days ago, the Chief Justice said, “The authority to adjust or suspend court operations rests with local court leadership.”  (See here.)  Similarly, just last Friday, the Chief Justice said in a letter to the state’s superior court presiding judges, “The relief I am authorized to grant with an emergency order is limited to the items enumerated in Government Code section 68115.  In California, unlike other states, each of the 58 superior courts retains local authority to establish and maintain its own court operations.  This decentralized nature of judicial authority is a statutory structure that reflects the diversity of each county.”

This all highlights a gap in the law that the Legislature could and should fix immediately by urgency legislation.  The Chief Justice, as head of the judicial branch of government, should have broad emergency authority over that branch’s operations.