April 2 Emergency Directives Require Continuances, Authorize Remote Proceedings, and Extend Time to Pay

Chief Justice Cheri Beasley entered an order last Thursday, April 2, 2020, imposing emergency directives that were immediately effective and that affect criminal cases.

Legal authority. The Chief Justice’s order was entered pursuant to G.S. 7A-39(b)(2), which permits the Chief Justice, after determining or declaring that catastrophic conditions exist in one or more counties of the state, to issue emergency directives necessary to ensure the continuing operation of essential trial or appellate court functions. Such directives are effective notwithstanding any other provision of law.

The Chief Justice entered earlier orders on March 13 and March 19, 2020, imposing emergency directives necessary to address court operations in light of the COVID-19 outbreak. The Chief Justice determined that additional directives were needed to reduce the spread of infection and ensure the continuing operation of essential court functions.

Duration. Emergency orders entered pursuant to G.S. 7A-39(b)(2) may initially last no longer than 30 days, but may be extended for additional 30-day periods if the Chief Justice determines that the directives remain necessary.

The April 2 order was immediately effective and expires on May 1, 2020. The Chief Justice noted that, given the current severity of the COVID-19 outbreak, she “fully expect[s] to extend these directives for an additional 30-day period,” and instructed judicial system stakeholders to plan for the directives to last through the month of May 2020.

The directives. The order imposes seven emergency directives, three of which are particularly significant in criminal cases.

Continued proceedings. Emergency Directive 1 requires that all superior court and district court proceedings be rescheduled for a date no sooner than June 1, 2020, unless:

• The proceeding will be conducted remotely;
• The proceeding is necessary to preserve the right to due process;
• The proceeding is for emergency relief; or
• The senior resident superior court judge, chief business court judge, or chief district court judge determines that the proceeding may be conducted under conditions that protect the health and safety of all persons.

The directive does not apply to a proceeding in which a jury already has been empaneled.

Remote proceedings. Emergency Directive 3 authorizes judicial officials to conduct proceedings by remote audio and video transmission regardless of whether remote proceedings are authorized by statute. The following limitations apply:

• Each party must consent to a remote proceeding.
• If a criminal defendant has the right to confront witnesses or be personally present, then the defendant must waive any right to confrontation or personal presence before the proceeding may be conducted remotely.
• If the proceeding is required by law to be confidential, confidentiality must be maintained in the remote proceeding.
• If the proceeding is required by law to be recorded, then the remote proceeding must be recorded.
• A represented party in a remote proceeding must be able to communicate fully and confidentially with his or her attorney.
• Jury proceedings may not be conducted by remote proceedings.

Extension of time to pay. Emergency Directive 7 extends by 90 days the date by which payment must be made in a criminal or infraction case. Here are the specifics:

• If a judgment entered before April 6, 2020 required payment on or after April 6, 2020 and before or on May, 1, 2020, the date by which payment must be made is extended by 90 days. The order instructs clerks not to enter or report a failure to comply (which triggers imposition of an additional cost, see G.S. 7A-304(a)(6) and, in Chapter 20 cases, a license revocation, see G.S. 20-24.1) as a result of nonpayment during the 90-day extension period.

• The order directs clerks not to enter or report a failure to comply based on a payment due before April 6, 2020, when the 40th day following non-payment (the date the clerk normally would assess the $50 cost for failure to comply and, in Chapter 20 cases, make the report to DMV that triggers a license revocation) falls on or after April 6, 2020 and before or on May 1, 2020.
• For judgments entered on or after April 6, 2020, and before or on May 1, 2020, the payment due date must be at least 90 days after the date the judgment is entered. The installment plan set up fee of $20 under G.S. 7A-304(f) may not be assessed until after the due date has passed.

Monies owed pursuant to a probationary sentence that is scheduled to end on or after April 2, 2020 and before May 2, 2020 are excluded from the emergency directive.

Other directives. The order’s other directives (1) require clerks to post notices at entrances to court facilities directing that any person who has likely been exposed to COVID-19 not enter the courthouse; (2) advise attorneys and other persons who do not have business in a courthouse not to enter the courthouse; (3) permit affirmations on documents that otherwise are required to be verified or sworn, and (4) permit electronic service under Rule 5 of the Rules of Civil Procedure.

Not all heroes wear capes and some work at the Administrative Office of the Courts. My understanding of the legal import of these directives and so much else related to the work of the courts during this pandemic is informed by the insight of legal counsel for the AOC. Hats off to that dedicated group of professionals who work tirelessly to help court officials follow the rule of law and prescribed procedures, an especially difficult task during times like these when the rules are frequently changing.