The United States Constitution at Article V, VI, and VII of the Bill of Rights provides that citizens are entitled to due process in matters of law. The USSC has interpreted this to mean that litigants are entitled to be heard at a meaningful time and in a meaningful manner. [Mathews v. Eldridge, 424 U.S. 319 (1976)]
While some may contend that viral contagions are a recent phenomena, superseding the drafting of the United States Constitution, the wider intellectual community knows otherwise. Although the framers of the Constitution were aware of human borne pathogens no provision was made for the suspension of the rule of law during any viral outbreak. It is incumbent upon local and state courts to maintain their continuity of operations during a viral pandemic so said the United States Department of Justice [DOJ] long before the eruption of the SARS CoV-2 pandemic panic.
It was the DOJ which over 13 years ago held a symposium on maintaining the rule of law during a period of a SARS pandemic. Subsequently the DOJ published a paper identifying areas of concern during a SARS pandemic. This document, titled Guidelines for Pandemic Emergency Preparedness Planning: A Road Map for Courts, March 2007 from the Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice, [The Road Map] identified the constitutional rights of the citizenry and how paranoid government actors may trample upon those rights by implementing arbitrary and capricious policies such as quarantines or denial of access to courts.
The Director of that office, Domingo S Herraiz, stated in the opening letter of the documents that it was of “critical importance” that state and local justice systems “uphold the rule of law throughout any crisis.” He further stated that the document was prepared “to encourage court planners throughout America to consider possible issues the court may face and how to solve them -- in advance of a pandemic.” [emphasis in original]
In the opening paragraph of the body of the Road Map titled Nature of the Challenge the DOJ identifies a pandemic of Severe Acute Respiratory Syndrome [SARS] as possibly having a “tremendous impact on the administration of justice.” The USDOJ recognized that accommodations may need to be made, such as holding court sessions “in movie theaters”, to ensure that the rule of law was maintained.
The DOJ was well aware in 2006 what the challenges to court administration would be during, specifically, a SARS pandemic and in response developed a guide for local and state justice administrators to use in establishing protocols in advance of a SARS pandemic. The stated goal was to ensure that the rule of law was maintained during the upcoming SARS pandemic. Yet government actors in Marion County Indiana who knew, or through the exercise of due diligence should have known, of this document and their constitutional mandates, failed to provide the citizenry with due process under the rule of law. In The Road Map it was stated that courts would be charged with “[p]reserving constitutional protections—including those relating to due process” as well as hearing challenges to government mandates like “quarantines”, “sequestrations”, or control over “resource distribution and consumption”.
Although beholden to the people from these advanced directives, the Marion County Sheriff’s Department, the Marion County Clerk of the Courts, and Marion County District Court Judge Chavis, among others, have, with deliberation and capriciousness, failed to develop an adequate continuity of operations plan or hold court proceedings thereby denying the citizenry of Marion County or those having a cause of action arising there the rights under the Constitution of the United States of America to due process of law.
On 16 March 2020 one such citizen who expressed a desire and attempted to file a document in a domestic relations case with the Marion County Clerk of the Courts was refused admittance to the courts building by Deputies of the Marion County Sheriff’s Department. However, the deputy stated that marriage license applicants would be admitted. Apparently the way to avoid catching the SARS CoV-2 virus is to make a connubial commitment. This particular litigant’s right to access the courts was arbitrarily denied. Ironically, the courts formerly require marriage license applicants to get a blood test to examine for the presence of virus antibodies.
The right to due process in denial of a parent’s right to parent children is fundamental. In Marion County Indiana Judge Chavis denied to a parent the established parenting time without findings that the children were endangered. Indiana Code 31-17-4-1(a) provides that “Subject to subsections (d) and (e), a parent not granted custody of the child is entitled to reasonable parenting time rights unless the court finds, after a hearing, that parenting time by the non-custodial parent might endanger the child’s physical health or significantly impair the child’s emotional development.“ The Indiana Court of Appeals interpreted this statute to mean that parenting time could not be restricted unless the parenting time “would” endanger the child. [D.B. v M.B.V., 913 N.E. 2d, 1271, 1274 (Ind. Ct. App. 2009)]
In the immediate case on 07 November 2019 the court scheduled a status conference for 06 December 2019 to be conducted by electronic means without the parties being present in the courtroom. Clearly, the court had the means to take testimony from witnesses and make a decision based upon that testimony.
The court noted, in writing through a sua sponte order, on 03 April 2020 that because of a perceived risk of transmission of the SARS COV-2 virus and resulting COVID-19 ailments that the corresponding low risk of viral transmission outweighed the constitutional mandates that the court owed to the litigants and thus the court proceedings scheduled for 15 April 2020 would not be conducted. This was done despite the full knowledge that the judicial staff had a constitutional obligation to the citizenry to uphold the rule of law rather than suspend it and invoke anarchy.
Particularly the court issued findings that Indiana Governor Holcombe and U.S. President Trump [through their vacuous decisions] had declared health emergencies and ordered various shutdowns. However, the Road Map list some priorities for courts which include, “(1) preserving the continuity, integrity, and independence of the judicial process during a pandemic emergency.” Apparently Judge Chavis is not knowledgeable about the constitutional separation of powers and that Holcombe and Trump do not hold sway over the operations of the courts. Hence that word “independence” that the DOJ specifically used in the Road Map.
At the time Judge Chavis vacated the hearing the SARS CoV-2 official death count was only 30% of the level needed to enter the CDC’s five tier Pandemic Severity Index at Category I. Although Judge Chavis was able to enter findings to cancel a parenting time hearing he did not have any problem in not issuing findings, as required by law [Indiana Code 31-17-4-1(a)], when denying parenting time in the immediate case.
It is obvious that the Indiana Supreme Court demonstrated no interest in preserving the rule of law or they would have developed a continuity of operations plan to which Judge Chavis could have referenced or followed. Domingo S Herraiz was ignored when he asked them to “uphold the rule of law throughout any crisis” by “consider[ing] possible issues the court may face and how to solve them -- in advance of a pandemic.”.
The Road Map identified a special consideration for courts in stating that there would be a “[l]ikely need for the court to develop alternative strategies for face-to-face contact by courthouse staff with the public, people under probation supervision, and others involved with the court’s day-to-day operations.” Subsequent to holding a hearing that minimized face-to-face contact and following the first wave of the SARS CoV-2 pandemic the Judge Chavis opted to dispense with such a method and instead failed to conduct a hearing.
The citizens of Marion County Indiana have a right to access the courts. They have a right to have their grievances heard in a court of law. They have the right to have access to their children and to be parents to their children absent some abuse of that right. They have the right to challenge a violation of that right unless they live in Marion County Indiana, because there Judge Chavis refused to allow them to challenge these violations. In short, the rule of law has been unconstitutionally and unconscionably usurped by people who do not observe or honour their oath of office and do not respect the rule of law.
These actors should be compelled, by law and under threat of imprisonment, to uphold the rule of law and conduct court proceedings to effect the rights of parents within, all citizens of, and those people having a cause of action arising in, Marion County Indiana.
In the interest of preserving the rule of law and upholding the constitutional rights of all people the United States District Attorney for the Southern District of Indiana should seek a Writ of Mandamus in addition to all other forces which may be exercised by him to compel the offending actors to perform their constitutional obligations to the people whom they are duty bound to serve.
The United States Department of Justice did not mince words in the Road Map as to the priorities and obligations of the state and local courts during a SARS pandemic;
“1. First Things First—Reality Check
Courts are not like ordinary businesses, as they must continue operating to maintain the rule of law and ensure an orderly society under any circumstances. Criminal laws must continue to be enforced, personal rights and liberties must continue to be protected, cases must be adjudicated, and controversies resulting from pandemic conditions must be addressed.” [emphasis added].
Related articles
SARS CoV-2 / Covid-19 Quarantine Efficacy and Civil Rights
Demanding a Speedy Jury Trial during SARS CoV-2 and Covid-19 outbreak
Coronaviruses, SARS CoV-2, Covid 19, and a Social Responsibility
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