7.11 Appearance by Means Other Than in Person
Although isolation and quarantine orders may, under certain circumstances, be issued following ex parte hearings, an individual affected by such an order is subsequently entitled to a hearing on the subject. WAC 246-100-040; see also U.S. Const. amend. V; Wash. Const. art. 1, § 3 (No person shall be deprived of life, liberty, or property without due process of law.); see also Wash. Const. art. I, § 10 (“Justice in all cases shall be administered openly, and without unnecessary delay.”). However, an individual who is the subject of an isolation or quarantine order may be physically unable to appear in court due to illness or quarantine. Alternatively, the court may be unwilling to permit an infected or potentially infected individual to appear in person because of the health threat such an individual poses to court personnel, counsel, and the attending public. Indeed, WAC 246-100-055, regarding relief from isolation and quarantine, provides that “[a]ny hearings for relief under this section involving a petitioner or petitioners judged to be contagious for a communicable disease will be conducted in a manner that utilizes appropriate infection control precautions and minimizes the risk of disease transmission.” WAC 246-100-055(7).
In the event an individual is not able or permitted to attend proceedings in person, the court may wish to consider the following alternative procedures.
A. Telephonic Proceedings. It is within the discretion of any King County Superior Court judge to issue reasonable orders regarding the manner in which hearings are conducted, and hearings by telephone conference call, or similar means of communication, are permissible. CR 43(a) ("In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise directed by the court or provided by rule or statute." (Emphasis added.))
B. Video Conference Proceedings. In criminal matters, King County trial courts are permitted to conduct preliminary appearances, arraignments, bail hearings, and trial settings by video conference. See LCrR 4.11(a). King County trial courts are permitted to conduct other criminal trial court proceedings by video conference upon agreement of the parties in writing or on the record. See LCrR 4.11(b). Although this rule does not authorize the use of video telecommunications in civil matters, a judge may be able to order the use of video technology to be used in isolation and quarantine hearings pursuant to the judge’s general authority to provide for the orderly conduct of proceedings before it. RCW 2.28.010 ("Every court of justice has power . . . [t]o provide for the orderly conduct of proceedings before it or its officers.").
- Requirements for a video conference proceeding. By analogy to LCrR 4.11(b), the court should ensure certain requirements are met during a video conference proceeding.
- Observation required. The judge, counsel, all parties, and the public attending the hearing must be able to see, hear, and speak as authorized by the court during the video conference proceeding.
- Presence of counsel required. Video conference proceedings must provide for confidential communications between attorney and client.
NOTE: Due to the health threat posed by the out-of-court party, the ability of counsel to be “personally present” with the party may be limited. In such cases, the court will need to ensure that the technology enables meaningful consultation between counsel and the out-of-court party while protecting counsel’s health.
- Security. Security must be sufficient at video conference proceedings to protect the safety of all participants and observers.
- Interpreters. LCrR 4.11(b) provides that in video conference proceedings conducted in King County Superior Court where an interpreter is used, “the interpreter should be located next to the defendant, and the proceeding must be conducted to assure that the interpreter can hear all participants.” If placing the interpreter next to the party needing interpretation will jeopardize the interpreter’s health, the judge may direct that the interpreter be at a different location as long as the interpreter can hear all participants.
- Contemporaneous document transmission required. All video telecommunications technology used to conduct hearings should enable the contemporaneous transmission of documents and exhibits.