Chief Justice Cheri Beasley entered an order yesterday extending until June 1, 2020 the time and periods of limitations for documents and papers due to be filed and acts due to be done in the trial courts. The Chief Justice previously had extended to April 17, 2020 the deadline for filings, periods of limitation and other acts. She further extended those deadlines based on predictions that late April “may be the apex of the [COVID-19] outbreak in North Carolina.”
Covered filings. The April 13 order applies to pleadings, motions, notices, and other documents and papers to be filed in any NC county on or after March 16, 2020 and before the close of business on June 1, 2020 in the following types of cases: civil actions, criminal actions, estates, and special proceedings. Those documents are deemed to be timely filed if they are filed before the close of business on June 1, 2020.
Covered acts. The order further provides that acts due to be done in any NC county on or after March 16, 2020 and before the close of business on June 1, 2020 in civil actions, criminal actions, estates, and special proceedings are timely if done before the close of business on June 1, 2020.
The order does not apply to documents and papers due to be filed or acts due to be done in the appellate courts.
Bond forfeiture extensions. The order also extends certain deadlines in bond forfeiture proceedings. If entry of final judgment under G.S. 15A-544.6 or the granting of a motion to set aside under G.S. 15A-544.5(d)(4) is due to occur on or after April 14, 2020 and before or on September 29, 2020, any motion to set aside or any objection to a motion to set aside that is due to be filed within that period is timely if filed before the close of business on September 30, 2020.
The order further provides that any entry of final judgment under G.S. 15A-544.6 or any grant of a motion to set aside under G.S. 15A-544.5(d)(4) that is due to occur on or after April 14, 2020 and before or on September 29, 2020 is stayed until after the close of business on September 30, 2020.
Colloquy and form for remote proceedings. Readers may recall that the Chief Justice entered an order on April 2 authorizing judicial officials to conduct proceedings by remote audio and video transmission regardless of whether remote proceedings are authorized by statute. The order imposed certain limitations, including that parties consent to a remote proceeding and that criminal defendants waive any right to confrontation or personal presence.
The School of Government worked with the Office of General Counsel for the Administrative Office of the Courts to develop a waiver of personal appearance colloquy and a form waiver of personal appearance, which are available here under the entry for Remote Proceedings in Criminal Cases. Both documents are written to apply generically to criminal and infraction proceedings conducted pursuant to Emergency Directive 3 in the Chief Justice’s April 2, 2020 order. They do not need to be used for a proceeding in a noncapital case for which the General Statutes expressly authorize audio and video transmission: initial appearances, bail hearings (unless defendant objects), first appearances. and arraignments (for “not guilty” pleas).
While the colloquy addresses all of the necessary items that we identified, variations from this language may be appropriate for certain types of proceedings and circumstances.
If you visit the page on our website where these forms are linked, you will also see a listing for Local Forms. We would like to compile here the sample colloquies and forms that you have developed locally and that might be helpful to others. If you have documents of this nature that you are willing to share, please email them to me.
Are electronic signatures allowed? Is there a standard colloquy for witnesses? Is there a standard plan for what technology will be used? Will recordings be made? Does the emergent nature of this technological adaptation override the requirement for court proceedings to be open?
While the Chief Justice’s April 2 order did not address electronic signatures, it did provide that certain court documents that otherwise are required to be verified or sworn may instead be accompanied by the following language: “I (we) affirm, under the penalties for perjury, that the foregoing representation(s) is (are) true. (Signed) ___________________.”
The order also provided for service by email upon a party who consents in writing to be served in this manner.
The colloquy was written to ensure that audio and video technology is functioning, the parties consent to the remote proceeding, and that a defendant knowingly, voluntarily and intelligently waives the right to be personally present and to confront witnesses. There is no standard colloquy for witnesses, who are not parties and do not have rights to presence and confrontation that must be waived.
If the proceeding is required by law to be recorded, then the remote proceeding must be recorded.
I believe that the AOC is using WebEx as the platform for remote proceedings.
As for open courts, the April 2 order directed, pursuant to G.S. 7A-39(b)(2) that “[a]ttorneys and other persons who do not have business in a courthouse should not enter a courthouse, and those who do have business in a courthouse should not prolong their visit once their business has concluded.”