An Update on Emergency Directives and Court Operations

Last week, Chief Justice Paul Newby entered an order extending and modifying some of the emergency directives previously imposed by former Chief Justice Cheri Beasley. Chief Justice Newby’s order (issued January 13, 2021 and effective January 14, 2021) allowed other emergency directives to expire. This post reviews the latest emergency directives as well as recent leadership changes affecting the courts.

The preamble. At the outset of the order, Chief Justice Newby noted his commitment to the constitutional requirement for open courts while acknowledging that the mandate must be fulfilled in ways that protect the health and safety of judicial officials, employees, and the public. He stated that though he was allowing Emergency Directive 1 to expire (the directive halting non-emergency, nonessential court proceedings), he asked that local judicial officials conduct trials and other proceedings “with caution and with due regard for the COVID-19 situation in their respective judicial districts.” The Chief Justice expressed his view that local judicial officials are best positioned to determine when and how to conduct jury trials and other in-person proceedings. He designated the senior resident superior court judge as the arbiter of disagreements by local judicial officials over safety precautions, including courthouse closures.

The directives. Last week’s order extends Emergency Directives 2, 3, 5, 8, 11, 12, 14, 15, and 21 for thirty days.  Emergency Directives 1, 4, 9, 10, 13, 18, and 20 expired on Wednesday, January 13. This post summarizes the contents of those expired directives. The extended directives are summarized below.

Emergency Directive 2. This directive (renewed without modification) requires the posting of notices at court facilities directing that any person who has likely been exposed to COVID-19 should not enter the courthouse.

Emergency Directive 3. This directive (modified by the current order) authorizes judicial officials to conduct proceedings that include remote audio and video transmissions. As before, remote proceedings must safeguard a defendant’s constitutional rights to confrontation and to presence, maintain required confidentiality, be recorded when required, and allow parties to communicate fully and confidentially with their attorneys. The modified directive clarifies that while a party may lodge a good cause objection to a remote proceeding, the court may conduct that proceeding remotely if good cause is not shown. In addition, the express authorization to conduct remote proceedings “notwithstanding any other provision of law,” has been removed from the current version of the directive. It is unclear what practical impact, if any, will result from that change.

Emergency Directive 5. This directive (renewed without modification) permits verification of pleadings and other documents by affirmation of the subscriber.

Emergency Directive 8. This directive (renewed without substantive modification) provides that magistrates must continue to perform marriage ceremonies in suitable locations approved by the chief district court judge. The chief district court judge may restrict the hours and times at which marriage ceremonies are conducted.

Emergency Directive 11. This directive (modified by the current order) requires each senior resident superior court judge to serve as or designate a COVID-19 Coordinator for each facility in his or her district. The directive as amended directs the COVID-19 Coordinator to ensure that relevant safety protocols and mandates are followed in court facilities.

Emergency Directive 12. This directive (renewed without modification) requires each senior resident superior court judge to ensure that certain public health protocols (including the marking of six foot intervals, the establishing of maximum occupancy, and the cleaning of public areas) are followed for each facility in his or her district.

Emergency Directive 14. This directive (renewed without modification) permits clerks to require that filings be submitted using a secure drop box and that access to public records be provided by appointment.

Emergency Directive 15. This directive (modified by the current order) encourages attorneys and litigants to submit filings by mail and provides that documents delivered by U.S. mail are deemed timely filed if received within five business days of the due date. The current directive provides that the extension of filing deadlines does not apply to filings in proceedings for forfeiture of bail bonds.

Emergency Directive 21. This directive (modified by the current order) requires all persons in a court facility to wear a face covering while they are in common areas and when they are or may be within six feet of another person. A face shield may be used in addition to, but not as a substitute for, a face covering.

The face-covering requirement does not apply to persons who:

  • cannot wear a face covering for health or safety reasons,
  • are actively eating or drinking,
  • are communicating with someone who is hearing-impaired in a way that requires the mouth to be visible,
  • are temporarily removing their face covering to secure medical services or for identification purposes,
  • who are complying with a directive from law enforcement or courthouse personnel (the reference to courthouse personnel is new), or
  • are under five years old.

The modified order permits a judicial official presiding over a trial or proceeding to order a juror answering questions during voir dire, an affiant, or a testifying witness to remove his or her face covering so that the person’s facial expressions may be observed. (The previous directive applied only to jury trials and did not include affiants). A juror’s, affiant’s, or witness’s face covering may only be removed for this purpose while the person is speaking and only if he or she is at least six feet away from any other person.

A presiding judge also may, upon a showing of good cause and after considering all appropriate health concerns, exempt a defendant in a criminal case from the face covering requirement during the defendant’s jury trial.

Expiration. The Emergency Directives in the January 13, 2021 order expire on February 12, 2021. Chief Justice Newby stated that given the evolving nature of the pandemic, he would be evaluating how best to exercise his emergency powers, which might result in the expiration of emergency directives, the issuance of new directives, or both.

A comprehensive chart. My colleague, Meredith Smith, has been maintaining a reference chart (available here) that is helpful in keeping track of the directives.

Other updates. I wrote here about recent leadership changes in the courts. There are been several other significant changes over the last couple of weeks.

New Director of the Administrative Office of the Courts (AOC). Chief Justice Newby appointed Superior Court Judge Andrew Heath to serve as director of the AOC, a role in which he is responsible for managing the administrative services provided to the state’s judicial branch officials and employees. Heath was appointed as a special superior court judge in 2016. He previously served as budget director for Governor Pat McCrory and as chairman of the North Carolina Industrial Commission.

New General Counsel for the AOC. Our colleague, Professor Trey Allen, has taken a temporary leave of absence from the School of Government to serve as General Counsel for the AOC.

New Director of Court Programs and Services for the AOC. Ryan Boyce, senior counsel for policy at the AOC from 2017 to 2019, has been named director of Court Programs and Services and Legislative and Intergovernmental Affairs at the AOC.

New Chief District Court Judges. Chief Justice Newby has appointed two new chief district court judges: Judge Paul Holcombe (Judicial District 11, Johnston, Harnett, and Lee Counties); and Judge Angelica Chavis McIntyre (Judicial District 16B, Robeson County).