Consider a holiday recipe for the pandemic season: Take 12 strangers -- you can call them jurors if you like. Sprinkle them across a courtroom. Season liberally with the usual ingredients -- a judge, a bailiff, a court reporter, court clerk, attorneys and alternate jurors. Add a landlord and a tenant. Throw in a half-dozen testifying witnesses. That will ensure someone is talking at all times. Mix well. Let this crowd of 28 or so folks bake for a few days in a small, windowless courtroom. Before you know it, you will have COVID -- just in time for the holiday season.
Los Angeles' eviction courts make this recipe daily.
Staying socially distant is almost impossible in a cramped courtroom. As Los Angeles County Superior Court Presiding Judge Kevin Brazile recently acknowledged, safety protocols are ignored -- "attorneys, litigants and others routinely remove their masks and fail to observe social distancing while in our courthouses."
Across the country, most judicial proceedings have ground to a halt. Since March, only nine criminal jury trials have occurred in New York City -- down from about 800 last year. In November, about two dozen U.S. district courts ordered a halt to all jury trials. These courts joined the dozen or so federal courts that had already suspended jury trials. Here in Los Angeles, most court proceedings have been postponed or moved online.
But not eviction cases. Despite state, county, and city emergency stay home orders, in October the Los Angeles Superior Court resumed jury trials to determine whether tenants should be evicted from their homes.
With estimates that one of every 145 Los Angeles County residents is currently infectious, 20% of these trials likely involve someone with COVID. Unsurprisingly, we now have nine confirmed staff COVID infections downtown at the Stanley Mosk Courthouse alone. With COVID raging, why are we continuing to try eviction cases?
Conversations about whether it is safe to conduct eviction trials eventually come around to the insanity of evicting anyone at all in the midst of a pandemic when doing so can be a death sentence. Earlier this week, a client who was evicted from her home last week contacted our law firm. She called from her hospital bed -- with COVID.
According to November's Census Pulse Survey, over 1 million California households are behind on their rent. Conducting 1 million eviction trials in California would cause a public health disaster. A University of Pennsylvania model predicts that a 1% eviction rate leads to a 5% to 10% higher incidence of COVID and one death for every sixty evictions. A study from the Public Health Schools at UCLA and Johns Hopkins found that 27 states lifting their eviction moratoriums earlier this year accounted for 433,700 extra COVID-cases and 10,700 extra deaths.
Is this not madness to gather in our courtrooms to evict folks in the midst of a pandemic?
So, why are we trying these cases?
The legal answer is that the state, county and city stay home orders exempt essential workers and define court operations as essential "if remote working is not practical." These orders allow courts to continue operating "consistent with guidance released by the California Chief Justice."
The more fundamental answer is that we lack leadership. Any one of a number of officials entrusted with the safety of Californians could order these trials to stop.
Governor Gavin Newsom could make clear that jury trials to evict tenants from their homes are not essential operations and, therefore, not exempt from his stay home orders.
Chief Justice Tani Cantil-Sakauye could follow the lead of the New York State chief judge who, on Nov. 16 halted the scheduling of new jury trials and ordered bench trials and hearings to proceed virtually. California's chief justice has the authority to issue such an order. She did exactly that on March 23, when she issued a statewide order suspending all jury trials for 60 days. The reasoning behind that order applies just as fully today: "Court proceedings require gatherings of courts staff, litigants, attorneys, witnesses, and juries, well in excess of the numbers allowed for gathering under current executive and health orders. 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."
The Los Angeles County Board of Supervisors and Los Angeles Mayor Eric Garcetti could expand their safer at home orders to clarify that court proceedings should not occur unless a judge decides that a proceeding is necessary for health and safety.
Perhaps most effectively, Presiding Judge Kevin Brazile could follow the lead of superior courts elsewhere in California, including, most recently, the Santa Clara County Superior Court which, on Dec. 7, stopped calling new jury panels through at least the end of the year "[i]n response to the recent surge in coronavirus cases."
The governor, chief justice, Board of Supervisors, mayor, presiding judge -- someone -- needs to step up and end this absurdity. Otherwise, eviction trials will remain recipes for death.