Court Closures Spur Concerns About Backlogs and Access to Justice

By William Roberts

May 4, 2020

H. Carl Moultrie Courthouse

The unprecedented shutdown of D.C. Superior Court and other judicial venues in response to the coronavirus is creating access-to-justice issues and other problems as courts and legal services providers shift to online solutions, according to attorneys practicing in Washington, D.C.

When the pandemic hit, the D.C. Courts transitioned online through telework and video conferencing, but the system’s capacity to handle cases has been sharply reduced, lawyers say.

“There are some broad, sweeping concerns,” says Jamie Sparano, a senior staff attorney in the domestic violence/family law unit at the Legal Aid Society of the District of Columbia. “The court acted early to shut down, and they’ve done as well as they can to put processes in place that still allow for access to justice. But a couple of things that we see are still challenging.”

Beginning in early March, court leaders grappled with protecting public health and keeping essential functions operating. On March 12, the D.C. Courts announced an advisory working group on public safety and teleworking, among other actions. By March 15, suspension of activities had begun, and a series of escalating orders and updates followed. It was a “complicated balancing act,” says one court official.

“There is certainly a huge access-to-justice problem that I know the D.C. government is struggling with and we are struggling with,” says Drake Hagner, another senior staff attorney at Legal Aid.

Lawyers Step Up to Fill Gap
D.C. Superior Court, which normally has 78 judges, has only four functioning courtrooms. Hearings and trials are postponed to the summer. In the Landlord Tenant Branch, evictions are stayed until at least mid-May. In family court, most matters are not being heard unless they are an emergency.

Legal services providers are working with court personnel to serve unrepresented litigants who need the court’s help during the pandemic. The recently formed Family Law Assistance Network (FLAN) — a collaboration between the D.C. Bar Pro Bono Center, Legal Aid, and the DC Affordable Law Firm — is helping the court to respond to calls from family law litigants in emergency matters as well as draft and file pleadings on their behalf. FLAN attorneys are providing same-day services and appearing in hearings remotely when needed.

D.C. Bar Pro Bono Center family law attorney Jenadee Nanini says FLAN has been accepting referrals from the Family Court Self-Help Center for the last four weeks. “Callers are so grateful to speak to a family law attorney and receive the help they need to get the court’s attention in matters that have an immediate and significant impact on their children’s lives,” says Nanini.

On the criminal side, arrests are down and preliminary hearings are being deferred, lawyers say. “A lot of criminal cases are not getting prosecuted,” says Corinne Schultz, a defense attorney who is supporting a group of 10 stand-in lawyers who are handling new criminal cases inside the courthouse. “[For] a lot of these low-level misdemeanors like shoplifting and simple assault and theft and sexual solicitation, people are being released from the precinct and given a court date in June or July.”

The daily lockup lists generally number 25 persons on weekdays and 40 or 50 people on Mondays, lower than normal. Most defendants are not being brought over from the central cell block but are appearing by video. U.S. Marshals who transport prisoners have tested positive for the virus.

The D.C. jail has reported more than 130 confirmed coronavirus infections, and many of its 1,400 prisoners were in quarantine, leading a federal judge on April 19 to order an emergency overhaul of health and social-distancing measures. “The biggest part of the practice is trying to get people out of jails and prisons right now because of the terrible conditions,” says Bernard Crane, a private defense attorney.

Disproportionate Impact on the Vulnerable
Job losses in the District have been catastrophic, causing new and troubling social problems. Unemployment claims surged to more than 86,000 by May 1, triple the annual rate, according to D.C. government data.

“With this pandemic, it is a whole new world of need in terms of economic security,” says Maya Sheppard, managing attorney at Neighborhood Legal Services Program (NLSP) who helps people access public benefits. “D.C. is still trying to get itself together in terms of implementing the CARES Act,” the $2.2 trillion economic rescue bill Congress passed on March 27, she says.

Meanwhile, the Social Security Administration has shut down its field offices. In-person hearings have been pushed off until July, while some hearings are still being held by telephone, a shift that is having a “disproportionate impact” on vulnerable people, Sheppard says.

The economic shutdown, combined with limits at the courthouse, is amplifying family and domestic violence concerns. People who are stuck at home with their abusers “know that they can’t access what they need right now,” says Tracy Davis, managing attorney at Bread for the City.

“There is just this huge increase in joblessness and unemployment, which creates two scenarios: one where someone is more in need of child support and one where someone is in need of modifying child support downward. Neither of those things are doable right now in court,” Davis says.

And, there are barriers to getting protection orders. Police are discouraging people from coming to stations and are less inclined to enforce protection orders, Davis adds.

Jim Bishop, director of the Catholic Charities Legal Network of the Archdiocese of Washington, says the closure of the family services center at the courthouse means many problems are simply not being addressed. “A lot of those people are poor with custody or child support [matters], and those cases are not being heard now,” says Bishop, who has been a family mediator since 1986.

Leaders in the D.C. legal services community are looking ahead to what happens when the courthouse reopens, says Karen A. Newton Cole, executive director of NLSP and cochair of the D.C. Consortium of Legal Services Providers. “The biggest concern among everyone that I talk to is, what are we going to do when the courts reopen? And when the courts formally open, how does that happen?” she says.

D.C. Bar Pro Bono Center Executive Director Rebecca Troth shares that concern, agreeing that “there will be a huge increase in litigation affecting our clients once the courts reopen as landlords sue to evict tenants and all the claimants who were thwarted by the pandemic file for relief.” But while the demand for services will be intense, Troth notes that the entire D.C. legal community, thanks to the COVID-19 Task Force that the D.C. Access to Justice Commission recently formed, is working together to meet the challenges the pandemic poses now and beyond.

The challenges are being felt nationwide, according to a recent national panel of state and federal judges convened by the Bolch Judicial Institute at Duke Law School and the American Law Institute. Judges face a backlog of cases when lockdowns ease, an influx of new cases relating to the pandemic and its economic fallout, the effects on jury trials, challenges for pro se litigants without access to technology, and the pandemic’s emotional toll on court personnel, the panel found.