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NOTICE: Protocol for Matters that Cannot Proceed in a Remote Format Without Consent

This directive provides a protocol to support consistent management of cases that require the consent or lack of objection of all parties to proceed in a remote format during the temporary modifications necessitated by the ongoing COVID-19 pandemic, and for so long as court operations are not conducted primarily in person. It sets forth a series of steps (1) to memorialize on the record a party’s objection to proceeding remotely, or the inability of counsel to ascertain a party’s position; (2) to provide notice to the parties, attorneys, and other participants when a matter is scheduled for an in-person court event based on an objection to proceeding remotely; and (3) to provide an opportunity for participants to request individual adjustments and accommodations that will enable the scheduled court event to proceed. This protocol is applicable to the trial divisions of the Superior Court and to the Municipal Courts, subject to limited exceptions as noted.

Court Events That Only Can Proceed Remotely if Parties do not Object

The Supreme Court in its April 20, 2020 Order affirmed the Judiciary’s commitment to continuing court operations in a remote format during the COVID-19 crisis. That April 20, 2020 Order carved out limited exceptions for particularly serious matters, which would proceed remotely only with the consent of all parties. The Court in its November 19, 2020 Order amended the provisions of the April 20, 2020 Order to provide that “the consent of the parties shall not be required for Family quasi-criminal (FO) matters to proceed remotely.”

The Court’s February 22, 2021 Order refined the language of the April 20, 2020 Order to avoid unintended delays in cases in which an attorney is unable to communicate with their client and to ascertain their position to proceeding remotely or in person. Accordingly, the Court’s February 22, 2021 Order provides:

  1. The following matters will be conducted remotely using video and/or phone options only with the consent of all parties:
    1. Sentencing hearings in Criminal, Family Juvenile Delinquency (FJ), and Municipal matters;
    2. Juvenile delinquency adjudications;
    3. Evidentiary hearings and bench trials in Criminal matters;
    4. Evidentiary hearings and trials in Municipal matters that involve a reasonable likelihood of a jail sentence or loss or suspension of license;
    5. Termination of parental rights trials; and
    6. Hearings for an adjudication of incapacity and appointment of a permanent guardian.
  2. For matters listed in paragraph 1, the consent of a party will not be required if the party is absent and unreachable. If, despite diligent efforts, an attorney cannot communicate with a client and therefore cannot advise the court of the client’s position as to proceeding remotely or in person, the court will determine whether to proceed remotely or in person. In making that determination, the court will consider all relevant factors, including the positions of other parties.

Court Operations During the COVID-19 Pandemic

The Court entered its April 20, 2020 Order when court locations essentially were physically closed to the public. Limited in-person court events followed in “Phase 2” of the Court’s Post-Pandemic Plan, starting on June 22, 2020. As court buildings reopened, some matters proceeded to in-person hearings. In other cases, parties who previously had withheld consent changed their position and agreed to proceed remotely.

Throughout the ongoing COVID-19 pandemic, the Judiciary has continued to expand remote operations, including by increasing the numbers and types of events that are conducted using remote technologies. More than 145,000 remote events involving more than 1,800,000 participants have been conducted in the state courts. More than 1,200,000 additional cases have been scheduled for virtual hearings in the Municipal Courts.

At the same time, in-person court operations have waxed and waned based on COVID-19 trends and resource availability. Notwithstanding earlier brief interruptions, all state courts at present are supporting some degree of on-site presence and in-person operations, including for those matters that cannot be conducted remotely without consent. Additionally, Municipal Courts are regularly holding virtual hearings, with most municipal courts also able to schedule limited in-person hearings.

Those limited in-person events are being conducted in compliance with critical public health precautions. Consistent with the Court’s June 9, 2020 Order, all people who enter or occupy court facilities must wear masks or other face coverings, subject to narrow exceptions. Those requirements extend to individuals in courtrooms, subject to the discretion afforded judges to permit an individual to lower or remove their mask when other safeguards are in place, as described in the Judiciary’s September 22, 2020 notice.

In addition to the requirements to wear masks and maintain social distancing, state courthouses and all courtrooms are subject to reduced occupancy limits, rearrangement and removal of furniture, installation of sanitizing stations, and integration of plexiglass barriers, which steps are designed to minimize risks of disease transmission. Through these interlocking steps, the Judiciary is continuing to provide a safe forum for the adjudication of disputes, including those conducted in person in state court facilities. The Judiciary also is ensuring compliance with Supreme Court protocols that extend to courtrooms in Municipal Courts and is continuing to support municipalities that are responsible for areas outside of courtrooms.

Commitment to Continuing Court Access and Case Resolution

The Court more than 10 months ago recognized the need to continue the administration of justice to the greatest extent possible even during an unprecedented public health crisis. At the same time, the Court acknowledged that in certain matters with potentially serious or permanent consequences or penalties, parties should have the right to appear in person before a judge, even when it would be technologically feasible to conduct the matter using remote technologies. The Court entered its February 22, 2021 Order to ensure that critical court events could proceed in an appropriate way, consistent with due process protections.

At this time, the courts are operating remotely to the greatest extent practicable. For those specific matters listed in the Court’s February 22, 2021 Order, three options are readily available:

  1. A remote hearing can be held with the consent of all parties; or
  2. If one or more parties object to proceeding remotely, the matter can be scheduled for an in-person hearing; or
  3. Where a party’s position is unknown because, despite diligent efforts, their attorney cannot communicate with them to ascertain their position as to proceeding remotely or in person, the court may proceed either remotely or in person, taking into consideration all relevant factors, including the positions of other parties.

Establishing Party Position as to Remote vs. In-Person Proceedings; Template Order Scheduling In-Person Hearing

Effective immediately, for those court events listed in the Court’s February 22, 2021 Order, attorneys will be required to file a certification that their client does not consent to proceed remotely or that they are unable to communicate with their client and thus cannot advise the court of their preference. A template certification is provided as Attachment A. In matters involving self-represented litigants, the court may require a similar certification or may conduct a colloquy on the record as to the party’s position as to proceeding remotely or in person. A template certification for a party who is self-represented is provided as Attachment B.

The judge at a case management conference or earlier hearing may rely on an attorney’s representation that their client does not consent to a remote proceeding for the purpose of scheduling an in-person hearing date. In that situation, the attorney will be required to file the certification no later than the next business day.

If and as necessary, the court will enter an Order for In-Person Hearing. 1 That order will schedule the in-person hearing and specify how notice will be served on all parties, attorneys, and other participants. To the extent practicable, the order will direct how other participants, including witnesses, will appear. It also will advise the parties, attorneys, and other participants of the availability to request an individual adjustment (e.g., use of a technology room to participate in a hearing from a separate courthouse location). The order will provide direction about how to direct any request for an accommodation pursuant to the Americans with Disabilities Act. Importantly, the order will advise the parties of the consequences of not appearing for the scheduled in-person hearing. A template order is provided as Attachment C2 .

Conclusion and Questions

It is axiomatic that justice delayed can be justice denied. In the context of significant court events that affect public safety, the welfare of children, and the protection of incapacitated persons, the Judiciary must not permit the COVID-19 pandemic to serve as a basis for indefinite delay. Accordingly, this directive provides a protocol to ensure that matters proceed consistent with the framework established by the Court’s April 20, 2020 Order and refined by the Court’s February 22, 2021 Order.

Questions on this Directive may be directed to the Office of the Administrative Director of the Courts.

/s/ Hon. Glenn A. Grant, J.A.D.

Acting Administrative Director of the Courts

Dated: February 23, 2021

NOTICE Protocol for Matters that Cannot Proceed in the Remote Format Without Consent