Amendment #16 to H5305
Safe access to courts
Ms. Uyterhoeven of Somerville moves to amend the bill by inserting after section 17 the following section:
"SECTION 18. (a) As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:
“Remote participation”, appearance in or observation of a court proceeding by means of simultaneous audio-visual communication technology, including videoconference, or, where audio-visual technology is unavailable to the participant, by telephone or other audio-only means.
“Participant”, any party, attorney, witness, victim, interpreter, or other person whose presence is requested or required in a court proceeding.
“Qualifying proceeding”, any proceeding in any department of the trial court, including, but not limited to: (i) arraignments; (ii) bail and pretrial release hearings; (iii) status conferences; (iv) motion hearings; (v) hearings on petitions for protective orders, including abuse prevention orders under chapter 209A and harassment prevention orders under chapter 258E; (vi) civil hearings; (vii) housing court proceedings; (viii) probate and family court proceedings; (ix) juvenile court proceedings; (x) small claims proceedings; and (xi) any other proceeding designated by the chief justice of the trial court; provided, however, that “qualifying proceeding” shall not include: (A) a jury trial or jury-waived trial, unless all parties and the court consent; (B) a proceeding in which a participant has affirmatively invoked a constitutional right to be physically present; or (C) a proceeding in which a statute of the commonwealth specifically and expressly requires in-person appearance.
24 (b)(1) There shall be a presumption that a request by a participant to appear
25 remotely in a qualifying proceeding shall be granted.
26 (2) A participant may submit a request for remote participation to the clerk of
27 the court in which the proceeding is scheduled, orally or in writing, at any time
28 before or during the proceeding. A request may also be submitted through the
29 participant’s attorney.
30 (3) A participant shall not be required to provide a reason for requesting
31 remote participation.
32 (4) The court may deny a request for remote participation only upon a written
33 or on-the-record finding that: (i) in-person appearance is required by the
34 constitution of the United States or the constitution of the commonwealth for the
35 specific proceeding at issue; (ii) remote participation by the requesting participant
36 would cause substantial prejudice to another party that cannot be mitigated by
37 reasonable accommodations; or (iii) the specific proceeding cannot be conducted
38 effectively by remote means due to its nature, and no reasonable accommodation
39 would permit effective remote participation.
40 (5) A denial of a request for remote participation shall include a statement of
41 the specific basis for denial under paragraph (4). A general assertion that in-person
42 appearance is preferred, customary, or more appropriate shall not constitute a
43 sufficient basis for denial.
44 (c)(1) No adverse inference, presumption, or negative consequence of any kind
45 shall be drawn from a participant’s request to appear remotely or from a
46 participant’s remote appearance.
47 (2) A participant’s decision to appear remotely shall not be considered by any
48 court, party, or attorney as evidence of, or basis for inquiry into, the participant’s
49 immigration or citizenship status, criminal history, flight risk, credibility, or
50 seriousness of engagement with the proceeding.
51 (3) No bail, bond, or pretrial release determination shall be affected by a
52 participant’s request for or use of remote participation.
53 (d)(1) Remote participation shall be available by audio-visual means. Where
54 audio-visual technology is unavailable to a participant, the court shall permit
55 participation by telephone or other audio-only means.
56 (2) The chief justice of the trial court shall maintain and publish a current list
57 of locations, including, but not limited to, public libraries, community centers, and
58 legal aid offices, where participants may access audio-visual technology for remote
59 court participation at no cost.
60 (3) Each courthouse shall maintain not fewer than 1 designated room equipped
61 for remote participation by participants who are present at the courthouse but wish
62 to appear remotely in a proceeding conducted in another court or session within the
63 trial court.
64 (4) The trial court shall not charge any fee for remote participation or for the
65 use of technology provided pursuant to this subsection.
66 (e)(1) Not later than 90 days after the effective date of this section, the chief
67 justice of the trial court shall publish procedures for: (i) the submission and
68 adjudication of requests for remote participation; (ii) the provision of technology
69 access under subsection (d); and (iii) training for court personnel on the
70 administration of remote proceedings.
71 (2) The right to request remote participation under this section shall take effect
72 upon the effective date of this section and shall not be contingent upon the
73 publication of procedures under paragraph (1).
74 (f) Annually, not later than January 31, the chief justice of the trial court shall
75 publish a report, and provide the report to the governor, the speaker of the house of
76 representatives, the president of the senate, and the chairs of the joint committee on
77 the judiciary, containing: (i) the total number of requests for remote participation
78 received, broken down by court location and proceeding type; (ii) the number of
79 requests granted; (iii) the number of requests denied, with the basis for denial
80 under paragraph (4) of subsection (b); and (iv) any recommendations for
81 improving access to remote participation. The report shall not include personally
82 identifying information of any participant.
SECTION __. Chapter 221D of the General Laws, as inserted by section 5 of
84 this act, is hereby amended by inserting after section 9 the following section:—
85 Section 10. (a) The right to remote participation established in section 18 of
86 chapter 211B shall apply to all proceedings in any courthouse as defined in section 1
87 of this chapter.
(b) When a participant has reason to believe that appearing in person at a courthouse would expose the participant to a risk of civil arrest, the presumption favoring remote participation established in subsection (b) of said section 18 of said chapter 211B shall apply with particular force, and the court shall give substantial weight to the risk of civil arrest in evaluating any request for remote participation under this section.
(c) A participant invoking this section shall not be required to identify the source, nature, or basis of the perceived risk of civil arrest. The court shall not inquire into the participant’s immigration or citizenship status in connection with a request under this section.
(d) A request for remote participation under this section may be made through the participant’s attorney without disclosure of the participant’s identity to any person other than the court.
SECTION __. Section 18 of chapter 211B of the General Laws, inserted by section __ of this act, shall take effect upon the effective date of this act.
Section 10 of chapter 221D of the General Laws, inserted by section __ of this act, shall take effect 90 days after the effective date of this act; provided, however, that the right to request remote participation under said section 18 of said chapter 211B shall not be contingent upon the effective date of said section 10 of said chapter 221D.”.