May 10 Order Renews Some Emergency Directives, Lets Others Expire

More than 50 percent of adults in North Carolina have received at least one dose of the COVID-19 vaccine, and more than 43 percent of NC adults are fully vaccinated. COVID-19 cases have declined precipitously since a January peak of more than 15,000 positive tests on a single day, with daily cases now averaging under 2,000. Governor Roy Cooper has responded to these positive trends by lifting outdoor mask restrictions and increasing mass gathering capacity limits. The Governor has said if these trends continue, he plans to lift mandatory social distancing, capacity, and mass gathering restrictions by June 1.

Courthouse personnel, charged with ensuring that courts remain open and that justice is administered without delay, were designated as frontline essential workers and thus received early access to the COVID-19 vaccine. Many court officials are among the group of fully vaccinated North Carolina adults.

Recognizing these positive trends and the judicial branch’s constitutional obligations, Chief Justice Paul Newby entered an order on Friday, effective today, extending and modifying certain pandemic-related emergency directives, while allowing other directives to expire.

Emergency Directives 2, 3, 5, 11, 14, 15, and 21 remain in place (as modified) for an additional thirty days, expiring on June 6, 2021. Emergency Directive 8 (which allowed a chief district court judge to restrict the hours and times at which magistrate-officiated marriage ceremonies were conducted) and Emergency Directive 12 (which required 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, were followed for each facility in his or her district) were not renewed and expired yesterday.

The renewed directives are described in further detail 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 (renewed without modification) authorizes judicial officials to conduct proceedings that include remote audio and video transmissions. 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.

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

Emergency Directive 11. This directive still requires each senior resident superior court judge to serve as or designate a COVID-19 Coordinator for each facility in his or her district. As modified, it requires each senior resident superior court judge, in consultation with local health officials, to “ensure that proper safety protocols are met depending on the courthouse location, which can include social distancing requirements.”

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 continues to encourage attorneys and litigants to submit filings by mail and to provide that documents delivered by U.S. mail are deemed timely filed if received within five business days of the due date. The directive has been modified to state that the extension of filing deadlines will not be renewed following the expiration of the May 10 order. As before, the extension of filing deadlines does not apply to filings in proceedings for forfeiture of bail bonds.

Emergency Directive 21. This directive continues to require that persons in a court facility wear a face covering while they are in common areas, but eliminates the requirement that they do so when they are or may be within six feet of another person.

As before, 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, or
  • are under five years old.

The modified directive eliminates language defining the term face covering and distinguishing face coverings from face shields.

As before, a judicial official presiding over a trial or proceeding may 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. 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 current order expire June 6, 2021.

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