Problem Solving During the Pandemic: How Massachusetts Has Provided Access to the Courts and to Justice During the COVID-19 Pandemic.

• Date: 22 March 2021
• Author: Cypher, Elspeth

It is a great privilege for me to speak with you today as part of the Donahue Lecture Series. Judge Frank Donahue was a leading figure in the history of both the Massachusetts courts and Suffolk University Law School, and I am honored to be invited to speak in a series named for him. I am going to discuss the steps that the Supreme Judicial Court (SJC) and other Massachusetts courts have taken in response to the tremendous challenges presented by the COVID-19 pandemic, and what we have learned from that experience. As with businesses, small and large, the medical community, universities, and public schools, the court system was abruptly and thoroughly challenged by the pandemic. I am going to address four aspects of the effect of the pandemic on the court system: first, the advancement by former Chief Justice Gants of the concept of problem-solving courts; second, reinventing the court system in response to the pandemic; third, access to justice during the pandemic; and fourth, the development of Massachusetts case law related to the pandemic.

1. CHIEF JUSTICE GANTS AND THE CONCEPT OF PROBLEM-SOLVING COURTS

   In addressing the work of the courts in responding to COVID-19, I would like to begin by acknowledging the important leadership provided by the Chief Justices of the SJC: Chief Justice Ralph Gants, who deftly guided us through the first six months of the pandemic until his untimely and unexpected death in September; (1) Associate Justice Barbara Lenk, who served as acting chief until her retirement; and now Chief Justice Kimberly Budd, who has boldly stepped forward to take the helm even in the midst of all of the difficulties and uncertainties we are still facing. (2) As you know, in addition to being the Commonwealth's highest appellate court, the SJC is also responsible for supervising our entire state court system. It is a responsibility that all of us on the court take very seriously. But it falls especially on the Chief Justice as the leader of the SJC.

   The approach of Chief Justice Gants to meeting the needs of court users during the pandemic, and his thinking about the role of courts in our society, provide a useful starting point for our discussion. During the last months of his extraordinary life, Chief Justice Gants was constantly considering the changes we needed to make to keep the courts operating and accessible as much as possible while simultaneously protecting the health of court staff and court users, and mitigating the spread of the virus. But beyond that, he was also thinking about how the courts might confront the broader economic and social disruptions caused by the pandemic that would surely arrive at our courthouse doors.

   Chief Justice Gants's response to the pandemic was shaped by his view that the job of the courts is not just to resolve cases but to solve problems. The term "problem-solving courts" commonly refers to specialized dockets--such as drug courts and mental health courts--that seek to address the underlying problems that may have contributed to a litigant's involvement with the justice system. (3) But Chief Justice Gants believed that "every court is a problem-solving court." (4) In taking that view, he was quick to point out that he

   [did] not mean that we seek to transform judges into social workers, or that we no longer resolve cases in accordance with law and instead seek to resolve them in accordance with our own vision of public policy, or that we care any less about principles of fairness and due process. (5) In explaining his idea, he cited the principle from the Jewish religious tradition that "each of us has an obligation to repair the world," and he proposed that "[i]n our courts, we seek to repair the world, sometimes even save the world, one person at a time." (6)

   Chief Justice Gants took the concept of courts repairing the world a step further. In a letter to the bar last March, he wrote about his view that our courts are "duct tape" courts. (7) And now, in the face of the pandemic, they had to operate as a "MASH unit in times of war," figuring out how to communicate with the public, provide guidance to lawyers and parties, and resolve matters through methods that were an anathema to the judges, court employees, and court users: by telephone, videoconference, and e-mail. (8)

   Chief Justice Gants's reference to "duct tape" courts may have been a bit tongue-in-cheek, alluding to the physical condition of some of our older courthouses. But he meant more than that, of course. He recognized that, like homeowners scrambling to fix a leaky vent or broken window with duct tape, judges, clerks, probation officers, and other court staff must sometimes make do with the tools at hand to "get the job done." (9) He was acknowledging the importance of a practical, "can-do" attitude in carrying on the work of the courts even in the midst of adversity. And in comparing courts during the pandemic to mobile army surgical hospitals, or MASH units, which were created to reduce casualties by moving medical operations closer to the battlefront, he suggested that courts must be ready to reinvent themselves when necessary to meet the needs of court users in a time of crisis.

   As I discuss my second point, reinventing the court system in response to the COVID-19 pandemic, I think you will see how the work of the SJC and the other Massachusetts courts has put these concepts into action.

2. REINVENTING THE COURT SYSTEM IN RESPONSE TO THE PANDEMIC

   On March 10, 2020, Governor Charlie Baker declared a state of emergency in the Commonwealth "to prepare for, respond to, and mitigate the spread of COVID-19 to protect the health and welfare of the people of the Commonwealth." (10) Three days later, the SJC exercised its superintendence and rulemaking authority to issue the first of twenty-five orders regulating various aspects of court operations and legal practice during the pandemic. (11) In general, these orders sought to protect the health of both court personnel and court users by limiting the need for in-person contact at courthouses and moving as much of the work as we could online.

   Making this shift from conducting in-person court business to handling most court business virtually required an enormous and rapid transformation in court operations. To give some sense of the complexity of this undertaking, it may be helpful to recall the structure of our Massachusetts state court system. It comprises the SJC and the Appeals Court, as well as the Trial Court and its seven departments: the Boston Municipal Court, the District Court, the Superior Court, the Juvenile Court, the Probate and Family Court, the Housing Court, and the Land Court. (12) Each of those departments, except the Land Court, has multiple divisions in different locations. The Trial Court also includes the Massachusetts Probation Service and the Office of the Jury Commissioner. (13) Altogether, the trial court system has over 6,000 employees who, at least before the pandemic, were working in ninety-nine courthouses and other offices. (14) In fiscal year 2019, the Trial Court handled more than 800,000 new case filings and the Probation Service supervised more than 60,000 cases. (15)

   The SJC's orders established general parameters for courthouse access, court operations, case management, and court deadlines. Among other provisions, our orders:

   --limited in-person proceedings in courthouses to emergency matters that could not be resolved through a videoconference or telephone hearing, either because such a hearing was not practicable or because it would be inconsistent with the protection of constitutional rights;

   --instructed clerks, registers, and recorders to handle all court business virtually, such as filing documents, scheduling hearings, and answering questions, except in emergencies where such filings were impossible;

   --continued all trials unless there was a showing of exceptional circumstances or if the parties in a civil case agreed to a virtual bench trial;

   --excluded the resulting delays from speedy trial computations under Rule 36 of the Massachusetts Rules of Criminal Procedure after concluding that public health interests temporarily outweighed speedy trial rights; and

   --temporarily tolled statutes of limitations; extended deadlines established by statutes, court rules, standing orders, or guidelines; and extended the expiration dates for injunctive orders issued after an adversarial hearing. (16)

   Gradually, as the initial wave of COVID-19 cases ebbed and we all became more familiar with ways to reduce the risk of exposure, we loosened some of these restrictions. We no longer limit in-person proceedings and in-person business at courthouses solely to emergency matters. (17) And, we laid the foundation for resuming in-person bench trials, and eventually jury trials, in certain cases. (18) In fact, to date, we have held several successful bench and jury trials. Nevertheless, most court business should still be conducted virtually unless it falls within certain exceptions established by individual trial court departments. (19)

   To do this, the courts had to devise new modes of carrying out their work. For example, as I have noted, the essential functions of clerks, such as accepting documents for filing, scheduling hearings, and answering questions, are now primarily handled remotely. In some trial courts and in some kinds of cases, our courts are not yet set up to accept electronic document filing under our online e-filing system, (20) so these courts established dedicated e-mail addresses for litigants to use to file court documents electronically. (21)

   To make it easier for litigants and attorneys to get answers to questions, the Trial Court established a help line staffed by representatives from each of the seven trial court departments and the probation service. (22) That help line currently receives approximately over 300 calls per week. The court system has also established a central webpage...