April 30, 2020

Ayala v. Superior Court (April 29, 2020) D077460, opn. ordered nonpub. June 17, 2020

The Court of Appeal in San Diego has interpreted a local court rule implementing the state’s Emergency Rule 4 governing bail in criminal cases. The case is of significance to both civil and criminal practitioners as it is the first decision addressing the interaction of local and state rules enacted in response to the COVID-19 pandemic.

In addressing the specific rule at issue, the Court of Appeal provided considerable background information concerning enactment of the emergency rules:

“A state of emergency exists in the State of California as a result of the ongoing COVID-19 pandemic. Federal, state, and local officials have undertaken extraordinary measures to mitigate its spread. In Executive Order N-38-20, the Governor of California conferred on the Judicial Council unprecedented authority to promulgate rules governing court administration, practice, and procedure as necessary to address the emergency. The executive order provides that, to the extent any such rule adopted by the Judicial Council would be inconsistent with any statute concerning civil or criminal practice or procedure, the relevant statute or portion thereof is suspended to resolve the inconsistency. The executive order states, 'The purpose of this paragraph is to afford the Judicial Council and its Chairperson maximum flexibility to adopt any rules concerning civil or criminal practice or procedure they may deem necessary to respond to the COVID-19 pandemic, while ensuring that the rules adopted "shall not be inconsistent with statute," as provided in Article VI, section 6 of the California Constitution.'”

Although the court had no need to address the validity of the executive order or the emergency rules (because the parties did not challenge the authority to issue them), the court noted that the state cited Government Code section 8571 as authority for the Governor’s order. Section 8571 provides that "[d]uring a state of war emergency or a state of emergency the Governor may suspend any regulatory statute, or statute prescribing the procedure for conduct of state business, or the orders, rules, or regulations of any state agency . . . where the Governor determines and declares that strict compliance with any statute, order, rule, or regulation would in any way prevent, hinder, or delay the mitigation of the effects of the emergency."

The court also quoted the rationale given by the Judicial Council in enacting eleven emergency rules covering both civil and criminal practice:

“‘The continuous operation of our courts to provide due process and protect the public is essential for our constitutional form of government; however, courts are clearly high-risk places during this pandemic because they require gatherings of judicial officers, court staff, litigants, attorneys, witnesses, defendants, law enforcement, and juries in numbers well in excess of what is allowed for gathering under current executive and health orders. Indeed, many court facilities in California are ill-equipped to implement social distancing and satisfy other public health requirements necessary to protect people involved in court proceedings and prevent the further spread of COVID-19.’"

Finally, the Court of Appeal addressed objections to the local emergency provisions for handling bail disputes by remote or telephonic hearings. The court found the local rule was not facially inconsistent with Emergency Rule 3 which “authorizes courts to require that judicial proceedings and court operations be conducted remotely, ‘in order to protect the health and safety of the public, including court users, both in custody and out of custody defendants, witnesses, court personnel, judicial officers, and others . . . .’”