New Month Brings New Emergency Directives

The Chief Justice entered her first emergency order to address catastrophic conditions resulting from the COVID-19 outbreak on March 13, 2020. More than three months (and many orders) later, those catastrophic conditions remain. So, as we prepare to enter a new month in COVID-season, the Chief Justice yesterday issued two new orders extending and modifying earlier directives.

The first June 29, 2020 order, which will not be discussed further here, modifies and extends Emergency Directive 18, which imposes procedural requirements in eviction proceedings. The second June 29, 2020 order modifies and extends Emergency Directives 2 through 8. Two of these extended directives directly impact criminal cases: Emergency Directive 3, which authorizes judicial officials to conduct proceedings that include remote audio and video transmissions, notwithstanding any other provision of law; and Emergency Directive 7, which delays the reporting of a failure to comply based upon nonpayment of monies owed in a criminal or infraction case.

Remote proceedings. Emergency Directive 3 was not modified.  Instead, it was extended in its previous form to July 29, 2020. Thus, as before, the directive imposes several requirements for remote proceedings. Among these is that if the proceeding implicates a criminal defendant’s right to confront witnesses or to be present, the defendant must waive any right to in-person confrontation or presence before remote audio and video transmissions may be used. A form colloquy and waiver for such proceedings is available here.

Reporting of failure to comply.  Emergency Directive 7 was substantially amended by the Chief Justice’s June 29 order. In its earlier form, it had required that a defendant be provided at least 90 days from the entry of judgment to pay monies owed. That provision was eliminated in the June 29 order. In its current form, Emergency Directive 7 directs clerks of superior court not to enter or report, until after July 31, 2020, a defendant’s failure to comply in a criminal or infraction case when the 40th day following non-payment falls on or after April 6, 2020 and before or on July 31, 2020. The directive does not apply to bar the reporting of failure to pay monies owed pursuant to a term of probation that is scheduled to end before or on July 31, 2020.

A ceiling, not the roof. The Chief Justice’s order notes that court officials are authorized to “liberally grant additional relief and accommodations to parties, witnesses, attorneys, and others with business before the courts.”

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