A statute says a juvenile has a right "to be present" at his deliquency hearing. Does that statute prevent a court (absent a countervailing statute) from ordering -- as many county courthouses have done -- that all delinquency hearings are to be held remotely during the COVID-19 pandemic?
The Court of Appeal says: Yes.
It's definitely an exercise in plain language. The statute at issue was passed in 1961. Justice Robie is surely right that, at that time, the Legislature didn't contemplate remote hearings. Of course, they also probably didn't anticipate a global pandemic sixty years hence, but there you have it. The Court of Appeal says that if you want to get rid of that statute, you've got to pass another one that supersedes it -- not just pass superior court rules or executive orders like the one here.
Okay. I can see that argument. One might take a different view about what "present" means, or think that the factual realities of the modern era augur in favor of a more expansive interpretation of that word, but I don't find at all implausible the result reached by the Court of Appeal.
But I did want to ask a follow-up question.
Okay, so the statute says that the minor has the right to be "(physically) present" at the hearing. Does that mean that everyone else has to be there too?
So say the juvenile does indeed have a right to show up in court, and that's where the hearing is. But the judge, the lawyers, the prosecutor, the court reporter, and everyone else is on video. Is that okay? After all, the statutory language definitely only applies to the juvenile being there. Surely there's no bar to the prosecutor, court reporter, and the like being on video. And while I can see an argument that if the judge isn't physically there then the "hearing" isn't there, I think the counterargument probably has more strength: we do plenty of hearings (Ninth Circuit, etc.) with one or more judges on video -- even in pre-COVID times -- and we still think the "hearing" transpires in the courtroom even when the judge isn't there.
So I wonder if one way around this opinion is for the relevant courts to say: "Sure, go ahead, show up. You'll be the only one there. Everyone else will be on video, so enjoy your empty courtroom. And then go ahead and worry that we'll (potentially sub rosa) take it out on you by viewing you and your counsel harshly for trying to make us personally appear during a panedemic. Enjoy."
