Kansas Supreme Court adopts virtual proceeding rules to promote efficiency, accessibility

The Kansas Supreme Court approved rules to guide remote proceedings in district courtrooms, modifying the status quo of judges deciding if and how video conferencing can be used. (Kansas Reflector screen capture from Kansas Supreme Court's video)

TOPEKA — The Kansas Supreme Court has approved a framework for virtual proceedings, extending pandemic-era approaches after hearing mixed opinions from judges and attorneys.

The court filed an order Tuesday with the Kansas Court of Appeals that urges district judges to consider accepting remote hearings or remote appearances in certain circumstances to improve efficiency and access to justice.

Remote proceedings were used during the COVID-19 pandemic, but since public and private spaces resumed typical gathering practices, it has been up to judges across Kansas how they want to use the technology in their courtrooms.

Kansas has lagged behind most other states. But the exception has been for criminal defendants in jail, who make early and brief appearances in court via video conference. Other states left the remote rules created during the pandemic in place or expanded them to allow remote appearings for a variety of hearings.

The Kansas Supreme Court outlined in the rule guidelines for judges in deciding whether to allow a remote hearing or appearance. Among them: If all parties agree, a proceeding is preliminary or for scheduling purposes, the time and expense of traveling for an in-person proceeding outweighs the benefits, a remote proceeding would increase access to the court or address an attorney shortage, or a person involved in the case expresses health concerns about attending in-person.

The rule attempts to balance concerns from some judges, who want to retain the discretion to decide whether remote proceedings happen in their courtrooms, and warnings from attorneys that requiring in-person hearings harms defendants and exacerbates the state’s attorney shortage.

Nearly 80% of Kansas attorneys live in five counties that contain about half of the state’s population: Douglas, Johnson, Sedgwick, Shawnee and Wyandotte. The rest of the state is underrepresented, according to data from the American Bar Association.

Judges would retain discretion to deny a party’s request for a remote appearance under the rule, particularly if the request is untimely or if remote proceedings “would undermine the integrity, fairness, or effectiveness of the proceeding, such as when highly sensitive, particularly dense, or exhibit-heavy testimony is expected,” the rule said. A court must not hold a remote proceeding if it could threaten or violate a person’s rights under the Kansas and U.S. constitutions, privileged attorney-client communications are made difficult, public access is restricted, it interferes with a court’s ability to produce an accurate record, or a party or the court cannot access technology needed.

Acting Chief Justice Eric Rosen said in a Tuesday news release that remote hearings will, at times, promote efficiency,” just as there will be times when an in-person proceeding is absolutely essential to be fair and effective.”

He added: “Every case has its own set of facts and circumstances, so it was paramount the rule created a clear framework for someone to make a request while retaining a judge’s discretion whether to grant or deny the request.”

The final version of the rule included changes from the draft distributed for public comment in July, including adjusted wording to emphasize the discretion afforded judges. The following sentence was also added: “This rule does not provide any grounds for appellate review beyond existing statutory or constitutional law.”