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Throughout the US, many courts face the challenge of providing services while concurrently attempting to comply with health guidance from the national, state and regional authorities. In many cases this has resulted in denial of access by the public to trials, and restricted access to the court clerk and other court offices. Frequently court and county law libraries are also closed, or their access is severely restricted.

Within New York, some county libraries are closed and others remain open. There is not a high correlation between infection rate and library closure. For example, Central and Western New York tend to have their libraries closed, where as many down state libraries remain open, yet the COVID-19 infection rates are higher in the downstate communities.

In New York, Judiciary Law specifies that every county is to have a law library available for open use by the public. Pro se litigants, students, and many attorneys regularly use the public law libraries. During COVID-19 in locations where the libraries are closed, those people have been unable to have full use of the libraries. This happened without notice, and in many areas there are few alternatives for locating the books, papers and special collections that he law libraries have amassed over the years.

If some one is involved in litigation, and suddenly they have no law library access, it can substantially disadvantage them. They may have only access to online resources, which generally will not have legislative history available, bill jackets, older publications on common law and equity issues. The sudden lack of access to information could cause someone to fail to prevail in a matter they might otherwise prevailed in.

Like New York, every state appears to have similar provisions, where there is public access to law libraries. So the access to libraries is universally provided. Even prisoners in the penal system have an assurance of meaningful library access. It might be debatable whether their access is free and unrestricted, but SCOTUS has assured their right of access to libraries and other reference materials.

Is public law library access a right?

Is library access part of full access to the courts?

Is the closure of public access law libraries resulting in denial of due process to those who rely on those resources to help them litigate matters?

If a party believes they are so disadvantaged, is there precedence for the courts to suspend their matters until such time when open access to public law libraries is reestablished? Or should the court system provide meaningful accommodation to the pro se litigant, or even the small practice attorney?

And if the courts make meaningful accommodation, does that deny any party fair and timely justice?

Addendum #1 New York Judiciary Law, Article 21, addresses court libraries. There are some exceptions, but 813 states in part: (emphasis added)

Each county of the state shall have a court law library which shall be governed as provided by section eight hundred fourteen of this article. Such libraries shall be open to the public, however, the chief administrator of the courts may issue guidelines for the use and operation of such libraries. ...

Addendum #2 An informal survey of about 20 cases, with pro se litigants, who have claimed that access to the libraries impairs their ability to access the courts, has shown that in every instance, dates for appeal perfection extensions and adjournments have been granted. Furthermore, due to the highly specialized nature of law it has been determined that the outdated books that regular public libraries and even a Westlaw subscription to basic services may be inadequate. From a unpublished ruling.

I have not found any relevant findings at the federal level, as it seems that access to law libraries for federal litigation is assumed at the state level. However, like many our law libraries remain closed even though many other public venues are open at this time.

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  • I wasn’t familiar with the SCOTUS case requiring law library access for prisoners, so here is it for anyone else who is interested: Bounds v. Smith. – sjy Dec 11 '20 at 23:02
  • I also tracked down the relevant statutes in New York (“Such libraries shall be open to the public, however, the chief administrator of the courts may issue guidelines for the use and operation of such libraries”) and California (“A law library established under this chapter shall be free to … all residents of the county”). – sjy Dec 11 '20 at 23:16
  • New York and California are different, in that libraries are controlled by Judiciary Law in NY, and in CA, by a professional code. I will supplement my question with the NY code. – mongo Dec 12 '20 at 23:06
  • @mongo Important to note, however, that law libraries to not have a monopoly on owning law books. Most U.S. public libraries in cities of any decent size have a full set of the core legal primary sources for their state. – ohwilleke Dec 12 '20 at 23:16
  • Law libraries tend to also have reference librarians who are highly trained, at least the ones I have had contact with (many are actually attorneys). A general public library, at least here, may have hand-me-down McKinney books, and little if anything in terms of books on common law, equity, patent law, etc. – mongo Dec 13 '20 at 2:30
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Is library access part of full access to the courts? Is the closure of public access law libraries resulting in denial of due process to those who rely on those resources to help them litigate matters?

No. Typically the ones who truly might need access to special collections are scholars, researchers working on a legislative initiative, and the like. But in the vast majority of controversies, the resources available online suffice for premising parties' legal position.

In the unlikely event that a litigant needs to consult a decisive resource which is available only at the law library, he might want to ask the court to facilitate access to that resource. Decisiveness and unavailability imply that there are no legal precedents on the matter at issue (also, the resource might not be binding), whence the novelty of the controversy warrants affording to the litigants a true opportunity to argue their position in regard to that resource. But again, that scenario is unlikely, more so among pro se litigants and the average law firm.

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Many U.S. jurisdictions have a civil procedure rule that states: "The Courts are always open" which doesn't literally mean what it says, but means that judges have authority to take action even when the offices of the courts are closed due to time of day, holiday or other matters.

Is public law library access a right?

No.

Is library access part of full access to the courts?

As a practical matter, law libraries are justified that way, and there is a limited right of access to law libraries in prisons that is recognized. Since there are multiple sources of access to legal texts (e.g. municipal libraries and the Internet), any such right has no enforceable component outside of prisons and institutional settings.

Is the closure of public access law libraries resulting in denial of due process to those who rely on those resources to help them litigate matters?

Generally not, outside of some possible prison cases, as a matter of law. In practice, it can make it harder to litigate as a pro se party.

If a party believes they are so disadvantaged, is there precedence for the courts to suspend their matters until such time when open access to public law libraries is reestablished? Or should the court system provide meaningful accommodation to the pro se litigant, or even the small practice attorney?

Perhaps it should. Courts are often sympathetic to sincere, rational sounding, particularized requests for accommodations received from pro se parties even when they are not required to provide them as a matter of law, on a case by case, situation by situation basis.

And if the courts make meaningful accommodation, does that deny any party fair and timely justice?

I think that this says the opposite of what is intended. The Courts aren't required to accommodate, except for incarcerated litigants. Any statement beyond that is a matter of opinion.

Even with full access to law library resources, most pro se litigants are not capable of securing fair and timely justice in the courts, and securing "timely" justice is hard even for people represented by counsel during the COVID pandemic.

The practical reality is that probably fewer than 5-10% of litigants are capable of representing themselves in a court of general jurisdiction at a level of competence that would not give rise to a malpractice action if an attorney admitted to the practice of law performed in the same matter, although some matters are more complex than others.

Maybe a third to half of adults are capable of representing themselves competently in a traffic infraction or small claims court case. Probably fewer than 1% of adults are competent to represent themselves in patent litigation.

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  • Lets assume that a pro se is defending against ejectment. This is a matter where the litigant needed to access the law library. Now the pro se litigant might argue for a delay of proceedings until the library becomes available. On the other hand the other party might argue that delay disadvantages them. In this instance, the litigation has been going on for 12 years, so the impact of a relatively short wait could be further debated. – mongo Dec 12 '20 at 23:02
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    @mongo The litigant might need access to law books, but probably not to a law library and not in hard copy. So, no dice. – ohwilleke Dec 12 '20 at 23:17
  • @ohwillleke, finding law books, which are properly organized, tends to happen in libraries. You seem to be confident in your analysis. Can you explain the source which helped you provide your thoughts on this? – mongo Dec 12 '20 at 23:31

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