While there are many things we are all giving up because of the COVID-19 pandemic, the “stay home when possible” order has added one thing for the public in general, and reporters in particular.
That’s the ability to “attend” court hearings from a distance.
Even the U.S. Supreme Court, which previously had not allowed even tape recorders in its courtroom, has allowed some of its hearings to be broadcast, including a case this month challenging Washington’s old “faithless elector” statute.
This being the highest court in the land – which announces its presence with “Oyez, oyez, oyez,” a word from medieval England – it couldn’t quite get all the way to the 21st century and allow actual video of the justices asking their pointed questions or the lawyers in remote locations trying to answer. Instead the C-SPAN broadcast flashed portrait photos of whomever was talking.
Still, this is the highest court in the land, and just to hear the justices grill lawyers about something as constitutionally significant as the Electoral College without making a trip across country to the other Washington was pretty exciting for a government and politics nerd.
Last week a lawsuit over the governor’s power to keep Washington under emergency orders came up for a hearing in Chelan County Superior Court and was carried on Zoom, YouTube and Facebook Live. As is common for perhaps 99% of any Zoom conferences ever held, there were problems with the audio as participants forgot to unmute their microphones and appeared to be mouthing words no one could hear.
Superior Court Judge Kristin Ferrera was at home. Members of the attorney general’s staff were in their offices. One of the plaintiffs, Jose Cuevas, and their attorney, Joel Ard, were in the actual courtroom in Wenatchee. They weren’t social distancing, but then they’re the ones contesting the current orders, so that wasn’t really a surprise. It wasn’t possible to see the rest of the courtroom, but the clerk said they had 82 people waiting for a room that holds 100.
Getting the video and audio online took some extra time at the start, and technology hiccuped about two hours in, prompting Ferrera to call a brief recess to straighten things out.
But the overall effect was closer to a real courtroom experience than watching lawyer soap operas on television. Things go wrong when everything’s being done in person, and not all problems could be blamed on technology.
Ard, who has four similar cases filed around the state, seemed at one point to lose track of which case he was arguing when opposing the state’s motion to move things to Olympia, where the government official being sued – Gov. Jay Inslee – is located.
“These plaintiffs are Douglas County plaintiffs and they’re entitled to a trial in Douglas County,” he said.
“I think you meant Chelan County,” Ferrera reminded him.
In Ard’s defense, he had a similar hearing scheduled in adjoining Douglas County the following day.
But possible confusion of who’s suing whom, where aside, the hearing suggested that moving the case to Thurston County might not be as necessary as it once would have been. Most of the witnesses for the state would likely be state officials connected to the Health Department or University of Washington experts in virology or epidemiology. They’re all busy folks right now, so a short trip to a convenient courtroom would be a reason to move future hearings in pre-pandemic days.
But with the courts open on a limited basis and able to operate by teleconference – and presumably getting better at it with each passing week – the physical location of the courtroom doesn’t really matter much anymore. Inslee, Health Secretary John Wiesman or anyone else could testify by Zoom, WebEx, Facebook Live or some other bit of technology. And any politics and government nerd who wanted to could watch from the comfort of their own living room.
From the campaign trail
It is difficult for candidates to campaign in this era of coronavirus, so they have to think up novel ways to grab public attention. Initiative promoter turned gubernatorial hopeful Tim Eyman may have an edge in that department because he’s been coming up with ways to grab the media spotlight for more than two decades, from wearing costumes as he unveils ballot measures to filing lawsuits with little chance of success.
Last week he announced he was giving an “activist of the year award” to Ben Holten, a Wenatchee resident he credited with holding fishing rallies that forced Gov. Jay Inslee into lifting a ban on recreational fishing.
“After Ben’s final rally on Lake Union, the next day Inslee buckled and backed down and opened up fishing in Washington,” Eyman said in a news release about the award.
Which sounds pretty impressive – if you didn’t know that Inslee and other state officials had been working for more than a week on rules to open up fishing. We kind of know that because Inslee mentioned it during a Northwest Passages interview two days before the Lake Union rally, and because a wide range of sportsmen had been pushing for an opening to fishing for several weeks.
Not to diminish Holten’s interest in citizen activism, but Eyman crediting him with making Inslee “buckle” on fishing rules is a bit like Eyman sending out a campaign statement that he was awarding a rooster for daylight because he heard the bird crow at dawn and ignoring other forces were at work.
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