May 1 Emergency Directives Require Continuances, Authorize Remote Proceedings, and Extend Time to Pay

Chief Justice Cheri Beasley entered an order on Friday, May 1, modifying and extending eight emergency directives previously issued on April 2 and April 16, 2020.  The Chief Justice’s April 2 order, in which noted that she fully expected to extend its directives for an additional 30-day period and that judicial system stakeholders should plan for the directives to last through May, presaged the current one. Emergency orders issued by the Chief Justice pursuant to G.S. 7A-39(b)(2) initially may endure for no more than thirty days, but may be extended for additional 30-day periods. Friday’s order was effective immediately and expires on May 30, 2020.

As before, three of the emergency directives are particularly significant in criminal cases.

Continued proceedings. Emergency Directive 1 requires that all superior and district court proceedings be scheduled or rescheduled for on or after 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.

This directive, like its April 2 predecessor, does not apply to a proceeding in which a jury already has been empaneled, though that exception seems unlikely to apply at this point to any actual case.

Remote proceedings. Emergency Directive 3 reauthorizes judicial official to conduct proceedings that include remote audio and video transmissions, regardless of whether remote proceedings are otherwise authorized by law. As before, the directive imposes several requirements for remote proceedings, which generally must “safeguard the constitutional rights of those persons involved. . . and preserve the integrity of the judicial process.” One previous limitation is, however, modified by the existing order:  There is no longer a requirement that each party consent to a proceeding that includes remote audio and video transmission. A party may, however, object for good cause to the use of remote audio and video transmission.

The additional requirements for remote proceedings are largely the same as those imposed by the April 2 order:

  • 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 any remote audio and video transmissions that are used must be recorded
  • A represented party in a remote proceeding must be able to communicate fully and confidentially with his or her attorney; and
  • 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:

  • Judgments entered before April 6, 2020. If a judgment entered before April 6, 2020 required payment on or after April 6, 2020 and before or on May 30, 2020, the date by which payment must be made is extended by 90 days. Clerks are directed not to enter or report a failure to comply based on non-payment during the 90-day extension period.
  • Payments due before April 6, 2020. Clerks are directed not to enter or report, until after the expiration of the May 1, 2020 order, a failure to comply for a criminal or infraction case based on a payment due before April 6, 2020, when the 40th day following non-payment falls on or after April 6, 2020 and before or on May 30, 2020.
  • Judgments entered on or after April 6, 2020. For judgments entered on or after April 6, 2020 and before or on May 30, 2020 in a criminal or infraction case, the payment due date must be at least 90 days after the date or entry or the judgment or order. 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.

This directive does not apply to extend the time to pay monies owed pursuant to a probationary sentence that is scheduled to end on or after May 2, 2020 and before or on May 31, 2020.

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; (4) permit electronic service under Rule 5 of the Rules of Civil Procedure; and (5) direct magistrates to continue to perform marriage ceremonies at locations approved by the chief district court judge that are capable of allowing all persons attending to practice social distancing.

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