PITTSBURGH – A public interest law organization has brought suit against a criminal court judge in Allegheny County, claiming that the judge has violated the First Amendment through preventing it and members of the public from remotely observing criminal proceedings in his courtroom.
Abolitionist Law Center filed suit in the U.S. District Court for the Western District of Pennsylvania on March 2 versus Allegheny County Court of Common Pleas Judge Anthony D. Mariani. Both parties are of Pittsburgh.
The plaintiff is a nonprofit law firm which oversees a court-watching program in Pennsylvania’s Fifth Judicial District, which includes Allegheny County. The program’s volunteers observe dozens of criminal hearings each week, in order to monitor the day-to-day operations of the County’s justice system and share those observations with local community members, advocates and journalists.
During the COVID-19 pandemic, Court Watch volunteers have been observing these proceedings virtually. Court Watch volunteers publish their observations online in articles, essays and other forms.
“The President Judge’s latest order – which was issued on Feb. 24, 2021 and remains in effect – states: “This Court continues to recognize that, due to the high number of positive COVID-19 tests in Allegheny County, ongoing efforts must be made to reduce the amount of people present in court facilities while keeping the courts open to the public,” the suit states.
“To that end, the order mandates that as many proceedings as possible be conducted through virtual means. The order provides, with limited exceptions, that ‘all matters shall be conducted remotely via Advanced Communication Technology (ACT) and no in-person hearings or proceedings shall occur in any division of the Court of Common Pleas.’ Consistent with that directive, judges in the Court of Common Pleas now conduct almost all of their proceedings virtually, using a video conferencing platform called Microsoft Teams.”
Despite the Fifth Judicial District’s general virtual-access policy, the suit claims Judge Mariani precludes all members of the public from obtaining virtual access to any of his proceedings, a policy he personally and actively enforces.
“ALC’s volunteers have requested virtual access to over one hundred hearings before Judge Mariani since January 2021. He has refused access each time,” per the suit.
“When ALC’s volunteers submit these requests for access, they typically receive a response from Judge Mariani’s chambers email address acknowledging the request, but stating that observation would only be permitted inside his courtroom [as opposed to remotely].”
Despite the public health risks associated with the act of visiting Judge Mariani’s courtroom during the COVID-19 pandemic – which ALC volunteers cited in messages to the judge’s chambers – in addition to two members of the judge’s staff testing positive for COVID-19 in recent months, Judge Mariani and his staff continue to work out of his chambers and also conduct proceedings from his courtroom, even though the vast majority of the participants in those proceedings appear virtually.
The suit says Judge Mariani’s administrative policy precludes ALC’s Court Watch volunteers – as well as the public at large – from exercising their First Amendment rights of access to the courts.
“By forcing Court Watch volunteers to physically enter the Allegheny County Courthouse and remain inside his courtroom for an extended period, Judge Mariani makes it impossible for ALC’s volunteers to safely observe and report on his proceedings,” per the suit.
“The lack of access to Judge Mariani’s proceedings has a significant impact on ALC’s ability to observe and report on Allegheny County’s justice system. Judge Mariani is one of 14 judges in the Court of Common Pleas’ Criminal Division and presides over a significant portion of the Fifth Judicial District’s probation-violation docket. Without access to his hearings, ALC cannot observe (much less evaluate) the parties’ arguments or Judge Mariani’s demeanor on the bench, among other things.”
According to the lawsuit, Judge Mariani has not provided any justification or rationale – to ALC or anyone else – for refusing to provide virtual access to his proceedings, nor has he provided any justification or rationale for requiring members of the public to visit his courtroom in person, in order to observe any of his proceedings.
“Numerous other courts in Pennsylvania have successfully provided the public with remote audio or visual access to their proceedings during the pandemic. Many states and major cities around the country have also provided remote public access to criminal and civil proceedings without any adverse consequences,” the suit says.
For a count of violating First Amendment rights, the plaintiff is seeking an injunction directing defendant to provide plaintiff with contemporaneous virtual access to all of his criminal proceedings; a judicial declaration that the First Amendment prohibits defendant from requiring plaintiff’s volunteers to physically visit any courthouse (or other public building) in order to observe criminal proceedings that may be accessed virtually; attorneys’ fees and costs, and any further relief as may be just, lawful, and equitable.
The plaintiff is represented by Witold J. Walczak of the ACLU of Pennsylvania, plus Nicolas Riley and Robert D. Friedman of the Institute for Constitutional Advocacy and Protection, in Washington, D.C.
The defendant has not yet secured legal counsel.
U.S. District Court for the Western District of Pennsylvania case 2:21-cv-00285
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com