We have posted regularly during the COVID-19 pandemic about emergency directives entered by the Chief Justice pursuant to G.S. 7A-39(b)(2) that establish procedures and protocols governing the continuing operation of the courts. Last month’s post reviewed the status of directives then in place, noting their varying expiration dates. Last week, the Chief Justice entered an omnibus renewal order, which included all emergency directives currently in effect and placed all but one of them on the same expiration cycle. This post will briefly review those directives and other aspects of the September 15, 2020 order.
Category Archives: Procedure
In the comments to a blog post I wrote about using unpublished cases, one reader suggested a follow-up topic: “Should do an article on dicta; what is it and is it precedent?”
At the time, I was lukewarm on the idea. Dicta are just the extraneous statements in a court opinion that are not part of the precedential holding. What else was there to say? But the question came back to my mind after I read Chavez v. McFadden, __ N.C. __, 843 S.E.2d 139 (June 5, 2020), where the state Supreme Court made a point of disavowing dicta in a related Court of Appeals decision, discussed here. I began digging a little deeper, and discovered that my casual attitude towards dicta was predicted by an article written nearly seventy years ago:
Dictum is one of the commonest yet least discussed of legal concepts. Every lawyer thinks he knows what it means, yet few lawyers think much more about it. […] The traditional view is that a dictum is a statement in an opinion not necessary to the decision of the case. This means nothing. The only statement in an appellate opinion strictly necessary to the decision of the case is the order of the court. A quibble like this shows how useless the definition is.
“Dictum Revisited,” 4 Stan. L. Rev. 509 (1952). So I decided to take a closer look at how we distinguish and classify dicta, and whether dicta have any value as precedent. It turns out that our theory and practice may not always line up.
Among the Chief Justice’s early emergency directives and orders to address court operations in light of the COVID-19 outbreak were extensions for the time for paying monies owed in criminal cases. Those directives, which extended the time for doing certain acts in criminal cases and directed clerks to delay the entry of reports of failures to comply, were extended and modified in subsequent orders. The upshot was that defendants ordered to pay sums that would have resulted in entry of a “failure to comply” and the assessment of additional costs (and, in Chapter 20 cases, a report to DMV that would trigger a license revocation) had until July 31, 2020 to pay monies owed without incurring those consequences. That date passed last Friday, so clerks now are entering failures to comply, assessing the $50 in costs and reporting the entry to DMV in Chapter 20 cases.
The Chief Justice entered two new emergency directives last week, requiring people in court facilities to wear face coverings and directing senior resident superior court judges to craft a plan for jury trials to resume in the fall.
Face coverings. Face coverings have been required in most public spaces since June 26, 2020 pursuant to Executive Order 147. That gubernatorial order did not, however, apply to court facilities. As a result, requirements for face coverings in courthouses have varied among judicial districts. The Chief Justice created uniformity last Thursday when she entered an emergency directive requiring people in court facilities to wear face coverings while they are in common areas of the facility and when they are interacting with others.
McKinley Wooten, director of the Administrative Office of the Courts (AOC), entered guidance in a July 17, 2020 memorandum clarifying that common areas are areas available for use by more than one person, such as lobbies, hallways, courtrooms, elevators, stairways, breakrooms and bathrooms.
The Chief Justice’s directive requires clerks of superior court to post a notice of the face covering requirement at the entrance to every court facility in their counties.
Exceptions. The face covering requirement for court facilities does not apply to a person who (1) cannot wear a face covering for health or safety reasons, (2) is actively eating or drinking, (3) is communicating with a person who is hearing impaired in a way that requires the mouth to be visible, (4) is temporarily removing a face covering to secure medical services or for identification purposes, or (5) is under eleven years of age.
Wondering about the general prohibition on mask wearing? The wearing of face masks in public areas has long been prohibited by criminal statutes adopted to regulate the activities of unlawful secret societies. Thus, G.S. 14-12.7 and 14-12.8 generally prohibit the wearing of face coverings that conceal the wearer’s identity on public ways and on public property. Exceptions apply for, among other things, traditional holiday costumes and for people engaged in jobs where masks are worn for physical safety or because of the nature of the profession. G.S. 14-12.11. In May, the General Assembly enacted an additional exception for a person wearing a mask to ensure the person’s physical health or safety or the physical health or safety of others. See S.L. 2020-3 (S 704). That exception was set to expire August 1, 2020, but the legislature recently made the change permanent in S.L. 2020-93 (S 232).
Jury trials. The Chief Justice entered Emergency Directive 10 on June 20, 2020, providing that no jury trials may be convened for the next thirty days. She noted then her intention to extend that directive through at least the end of July. The Chief Justice in Thursday’s order expressed her intention to extend Emergency Directive 10 until at least the end of September. She stated that while face coverings “will help decrease the spread of COVID-19 in our courthouses, more precautions and planning are necessary before jury trials may resume.”
Emergency Directive 22 requires each senior resident superior court judge, in consultation with other local officials, to craft a plan for the resumption of jury trials in his or her judicial district. If a chief district court judge determines that a separate plan for jury trials in district court is needed, he or she is directed, in consultation with other local officials, to craft that plan.
The plans. Each jury trial resumption plan must ensure that court operations comply with the Chief Justice’s emergency directives and must be informed by the AOC’s guidance on best safety practices.
Each plan must include the following:
- a confirmation that each court facility and any alternate facility to be used for court operations is in compliance with each of the Chief Justice’s emergency orders;
- a plan for summoning and excusing jurors, which allows for as much of the process to be handled remotely as possible;
- a plan for conducting voir dire with social distancing;
- a plan for conducting trials with social distancing in the courtroom for all court participants, including the jury, and in the deliberation room;
- a plan for daily screening of jurors, court personnel, attorneys, witnesses, and parties for COVID-19 exposure or infection;
- a plan for making face coverings available to jurors, court personnel, attorneys, witnesses, and parties; and
- a plan for responding in the event that a juror, defendant, attorney, witness, judge, or other courtroom personnel becomes symptomatic, tests positive for COVID-19, or has a known exposure to someone who has tested positive for COVID-19 during the trial.
Before jury summonses are issued, the senior resident must submit a copy of the plan to the Chief Justice. The plan, which must be promulgated by local rule or administrative order no later than September 1, 2020, must be approved by each of the following officials in the county in which jury trials are to be conducted:
- the chief district court judge;
- the clerk of superior court;
- the district attorney;
- the public defender, or a criminal defense attorney chosen by the senior resident superior court judge in districts without a public defender;
- the sheriff; and
- the public health director.
Conventional wisdom says that unlike the federal court system, we do not have a good faith exception under North Carolina law. Even though G.S. 15A-974 was amended in 2011 and now expressly provides for a statutory good faith exception, most practitioners agree that its use remains off limits under our state constitution unless and until State v. Carter is overruled.
If you had asked me a month ago, I would have confidently said “yep, that’s the law.” Today, I’m a little less sure. Two recent Court of Appeals decisions have renewed the question of whether Carter actually says what we think it does.
This post summarizes published criminal opinions of the Court of Appeals decided on July 7, 2020. Continue reading →
North Carolina continues to make gradual strides in helping people clear their criminal records and enhance their opportunities going forward. On June 25, 2020, the Governor signed the Second Chance Act, S.L. 2020-35 (S 562), which passed the General Assembly unanimously. The Second Chance Act expands expunction opportunities and streamlines the process for people trying to clear their records. The product of negotiation and compromise, it reflects the interests of prosecutors, law enforcement, and court administrators as well. The act illustrates many of the record clearance issues being considered around the country, including automatic expunction of nonconviction records (to begin in North Carolina at the end of 2021), removal of barriers to expunctions of nonconviction records (most notably, no longer will prior convictions, whether for a felony or misdemeanor, be a bar), somewhat greater opportunities to expunge older convictions if “nonviolent,” and greater access by prosecutors and law enforcement to expunged case information. This summary does not try to explore the many nooks and crannies in the legislation. It is a first pass at describing the changes. Continue reading →
Quick Reference Guide to Orders from the Chief Justice and the North Carolina Supreme Court Related to COVID-19
[This post originally appeared on the School of Government’s civil law blog.]
Since the start of the pandemic, the Chief Justice of the North Carolina Supreme Court and the North Carolina Supreme Court have issued a number of directives impacting the court system. Instead of doing a heavy substantive post today, I thought I would share a quick reference chart I’ve been using to keep track of these directives, their effect based on the most recent order issued, the dates of the order containing each directive, and their expiration date. Continue reading →
Chief Justice Cheri Beasley entered three emergency orders on Saturday affecting court operations during the COVID-19 pandemic. Two of the orders impact criminal cases. One extends the deadline for filing notices of appeal. The other extends the authorization for remote proceedings in Emergency Directive 3 and renews and modifies the provisions of Emergency Directive 7, which provides additional time to pay monies owed in a criminal or infraction case. (The third order stays eviction actions that currently are pending in the trial courts until June 21, 2020 and imposes other requirements related to eviction proceedings.) Continue reading →
This post was updated on May 22, 2020 to include discussion of a May 21, 2020 order extending deadlines in criminal cases and a May 14, 2020 order from the North Carolina Supreme Court.
Chief Justice Cheri Beasley entered an order today imposing eight new emergency directives (Directives 9 -16) to address court operations during the COVID-19 pandemic. The Chief Justice entered a separate order extending time for documents to be filed and acts due to be done in criminal cases in the trial courts.