Tennessee courtrooms are reopening, but the public is being kept out, Knox News review shows

Tennessee judges are barring the public as courtrooms reopen from the COVID-19 shutdown, setting up a constitutional clash over access affirmed by the U.S. Supreme Court four decades ago.

The restriction on public access – first instituted in a March 13 judicial emergency order in response to the pandemic – is not easing even as the Tennessee Supreme Court is now allowing courts to resume in-person hearings, a Knox News review shows.

Hundreds of criminal cases already have been heard and decided across the state through video teleconferencing with no provision for public access either during or after the proceedings. Hundreds more will be heard and decided in the coming weeks – some by video and others inside courtrooms – with no provision for public access.

Barbara Peck, spokeswoman for the state Supreme Court, said Tuesday the justices have no choice but to limit public access during the pandemic.

“Under the current state of emergency declared by (Supreme Court Chief Justice Jeff Bivins) … courts do have the authority to limit the number of people in the courthouse and courtrooms,” she said.

“While we certainly never want to do this and take great pride in the openness of Tennessee court proceedings, we also cannot close down the judicial branch until a time when it is safe to open proceedings to everyone,” Peck said.

Deborah Fisher, executive director for the Tennessee Coalition for Open Government, contends the high court can and should take steps now to ensure the public’s right to access both video and in-person proceedings.

“Access to the courts is a fundamental right,” she said. “There needs to be some kind of accommodation where it’s easy and clear … We know there might be restrictions, but there should be access. They need to find a way beyond barring the public.”

Secrecy amid a pandemic

The state Supreme Court’s initial pandemic order suspended all in-person hearings in all courts – civil, criminal and juvenile – in a bid to help prevent the spread of the deadly virus. The court authorized judges to hold a variety of hearings by video, a move largely designed to lower jail populations amid the pandemic.

But the court did not provide or require a means of public access to those video hearings. The court has since followed up that March 13 order with a new one that allows courts – with Bivins’ approval – to resume in-person hearings and grand jury proceedings. Jury trials, though, will not be held until at least July under the order.

Bivins ordered each of the state’s 31 judicial districts to submit a plan for the resumption of in-person hearings. Citing pandemic guidelines from the Centers for Disease Control, Bivins ordered that no more than 10 people be allowed in a courtroom at one time.

The order specifically exempted judges and court personnel, including bailiffs and clerks, from that cap, so the actual number of people allowed in court under each judicial district’s plan exceeds the CDC guidelines. It’s not clear why judges and court personnel were not included in the cap.

“The 10-person limit is kind of arbitrary,” Fisher said. “Some places have very big courtrooms and can accommodate more (people), and some have smaller ones.”

The high court has authorized at least one county – Knox County – to exceed the 10-person cap, Knox News’ review shows.

“Because of the COVID-19, we have a large backlog that is growing daily,” Knox County’s sessions court judges wrote in a request to the high court to allow them to move proceedings in civil and criminal cases to “assembly rooms” in the downtown City County Building typically used for governmental meetings.

The judges said in their written plan the assembly rooms are designed to hold as many as 600 people and can accommodate social distancing requirements. It’s not clear why the high court granted Knox County’s sessions court judges an exemption.

There are several courtrooms across the state that are large enough to accommodate more than 100 people at a time, including one of Knox County’s criminal courtrooms. All judicial districts are reporting case backlogs as a result of the pandemic orders.

The high court ordered presiding judges in each district to outline the measures being taken to prevent the spread of the virus. The court did not mandate the use of personal protective gear, including masks, and, instead left that decision up to each judge.

Knox County’s general sessions judges, though, are requiring court attendees to wear masks but refusing to provide a free supply to the poor. No other judges in the state have issued such a mandate, a Knox News review shows.

Peck did not comment directly on the Knox County requirement but instead noted the high court is “encouraging” the use of masks but didn’t require them because of supply shortages.

“Certainly no one, including (poor) defendants, should face court sanctions if he or she does not have access to a mask,” Peck said.

So far, 26 of the state’s 31 judicial districts have filed plans in response to the order. The high court reviewed each of those plans and ordered revisions of any that did not include the 10-person cap. Both the original plans and revised versions were then posted on the Supreme Court’s website for the public to view.

The court has not yet posted on its website plans for five judicial districts, including the five-county 8th district in East Tennessee, Davidson County in Middle Tennessee (home to Nashville) and Shelby County in West Tennessee (home to Memphis).

Knox judge: I want public access

Knox News has reviewed and analyzed each of the 26 plans filed. Most explicitly bar the public from in-person proceedings. A few allow one “support person” to accompany crime victims so long as the 10-person cap isn’t exceeded.

None of the plans reviewed by Knox News provide a means for the public to view those in-person proceedings remotely, and none provide public access to video hearings.

“The concern is that no accommodation has been stated in these plans for the media and the general public,” Fisher said. “The courts have been traditionally open, and they are open pursuant to the (U.S.) Constitution.

“We don’t know how long this (pandemic) will last,” she continued. “If this is going to continue on, we need to address seriously how we assure the courts will be open to the public.”

Peck said the court is still allowing the media to access court hearings via “Tennessee Supreme Court Rule 30.” She said that rule “allows media access to courts” and “has not been suspended.”

However, Fisher noted Rule 30 – which authorizes journalists to film or photograph court proceedings with judicial approval – has nothing to do with media or public access to courtrooms.

 “(Rule 30) is not about access to the courts,” Fisher said. “That’s about bringing in cameras and video equipment.”

Knox County Criminal Court Judge Steve Sword said he wants the public to have access to what’s going on in his court and is willing to accommodate requests from the media for access to both in-person and video hearings.

“The plan we submitted to the Supreme Court for approval was really just designed to talk about how we begin holding in-person hearings and keep the community safe,” Sword said. “It doesn’t make a provision for (public access), but it also doesn’t provide an exclusion.”

He agrees with Fisher that Rule 30 has nothing to do with the right of access to courts.

“I had a lawyer ask me yesterday about notice and I said the only thing (the media) has to file a notice on is if they want to take photographs or video,” Sword said. “Any media that wants to (access a hearing,) I’ll allow it. They have the right to be there.

“I want the media there,” Sword said. “I think it allows the public to be able to see that the courts are still operating and our fundamental rights are still being protected.”

Email Jamie Satterfield at jamie.satterfield@knoxnews.com and follow her on Twitter @jamiescoop. If you enjoy Jamie's coverage, support strong local journalism by subscribing for full access to all our content on every platform.