By Matthew Santoni

Law360 (March 2, 2021, 10:08 AM EST) -- A civil rights watchdog group filed a federal lawsuit Tuesday against an Allegheny County, Pennsylvania, judge, claiming he has violated the Constitution by not allowing it virtual access to observe proceedings in his Pittsburgh courtroom despite directives from court administration to do as much as possible via phone and videoconference.

The Abolitionist Law Center, a nonprofit law firm that operates a court-watching project, claimed that Court of Common Pleas Judge Anthony Mariani had repeatedly denied their requests to remotely observe proceedings in his courtroom, despite other parties such as attorneys and witnesses participating virtually.

"Providing remote public access to virtual criminal proceedings would not impose any substantial administrative or financial burden on Judge Mariani or his staff. The Fifth Judicial District has already provided every judge on the Court of Common Pleas with the necessary tools and infrastructure for providing virtual access to the public," the complaint said. "Numerous judges have made use of those tools during the pandemic. Judge Mariani is the only judge on the Allegheny County Court of Common Pleas who has blocked the public from virtually accessing all of his proceedings."

The Abolitionist Law Center has asked the federal court to order Judge Mariani to provide virtual access to his courtroom.

The Fifth Judicial District, which covers Allegheny County, has suspended jury trials and most in-person proceedings since COVID-19 cases spiked last fall, most recently extending the closure until April. But according to the suit, Judge Mariani's staff is still meeting and working in-person at the Allegheny County Courthouse, and requiring that members of the public who wish to observe proceedings do so from within his courtroom, even when other parties are participating remotely.

Ongoing proceedings in Judge Mariani's court include probation-violation hearings, sentencing hearings, plea hearings, non-jury trials and pretrial conferences, said Nicholas Riley at Georgetown University Law Center's Institute for Constitutional Advocacy and Protection, representing the Abolitionist Law Center.

"ALC's volunteers have requested virtual access to over one hundred hearings before Judge Mariani since January 2021. He has refused access each time," the complaint said. "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."

Though orders from the county's President Judge allow in-person access and caution that people who have been exposed or are showing symptoms of COVID-19 should avoid coming to the courthouse, the center's volunteer court observers said they were nervous about attending in person because of the risk of catching the virus. The historic courthouse's ventilation system is old; court staff don't always enforce the prohibition on people with symptoms entering the building; and not everyone observes social distancing guidelines, the suit said.

"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," the complaint said. "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. Perhaps most importantly, without access to the hearings, ALC cannot meaningfully assess whatever reasoning or oral explanation Judge Mariani might provide for his rulings — information that is rarely memorialized in any written opinion or docket sheet."

Riley said court observers had reached out to court administrators about the "blockade on virtual access" but the administration "declined to intervene."

In a similar action, a group of residents of the City of McKeesport sued the city and its counsel in state court for virtual access to council meetings. The residents claimed the city had violated Pennsylvania's open-meetings law by shuttering council chambers during meetings and only allowing public participation in writing before the meeting.

In a virtual preliminary injunction hearing Tuesday, Judge John McVay pressed for some public broadcast of the upcoming March 3 council meeting via Zoom or Microsoft Teams, with the option for citizens to provide up to three minutes of public comment as they previously could at in-person meetings. City Solicitor J. Jason Elash said he would speak to city officials, who already used Teams to conduct internal meetings remotely, and Judge McVay continued the hearing until Wednesday afternoon.

Representatives for court administration declined to comment. Judge Mariani did not immediately respond to requests for comment Tuesday.

The Abolitionist Law Center is represented by Witold J. Walczak and Sara J. Rose of the ACLU of Pennsylvania and Nicolas Y. Riley, Robert D. Friedman and Jennifer Safstrom of the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center.

The McKeesport residents are represented by Charles Kelly, Michael Joyce, Allison Burdette and John A. Marty of Saul Ewing Arnstein & Lehr LLP, and Witold J. Walczak of the ACLU.

McKeesport and its City Council are represented by City Solicitor John Jason Elash.

Counsel information for Judge Mariani was not immediately available.

The cases are Abolitionist Law Center v. Judge Anthony Mariani, case number 2:21-cv-00285, in the U.S. District Court for the Western District of Pennsylvania, and Montgomery et al. v. City of McKeesport et al., case number GD-21-001723, in the Court of Common Pleas of Allegheny County, Pennsylvania.

--Editing by Alyssa Miller.

Update: This story has been updated with more details and a related case.

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