Tennessee courts are taking the first step toward resuming in-person court appearances and eventually jury trials.
A new order from the State Supreme Court modifies the previous order virtually shutting down the courts due to the coronavirus crisis.
The order says numerous precautions should remain in place to protect from the spread of the virus, but some in-person appearances can begin.
The order extends the judicial state of emergency until May 31, and also allows local judicial districts to develop a strategy to begin holding more in-person court proceedings in their districts.
Jury trials will remain suspended until July 3, unless there are extraordinary circumstances.
On March 13 and March 25, the Supreme Court issued orders keeping courts open, but limiting in-court proceedings until April 30, with a substantial list of exceptions and provisions encouraging courts to conduct proceedings via video or audio conference. Today’s Order extends the March 25th order until May 31, but anticipates that judicial districts will be permitted to begin lifting some restrictions once the Supreme Court has approved the district’s plan for social distancing, limiting access to the courtroom, and other strategies designed to limit the spread of COVID-19 as much as possible.
“All courts in the state will continue to operate under the March 25th order until the judicial district submits, and the court approves, a comprehensive plan for limiting the spread of the virus while conducting in-court proceedings,” Chief Justice Jeff Bivins said.
As with the previous orders related to COVID-19, today’s Order applies to all state and local courts across Tennessee, including state circuit and chancery courts, general sessions courts, juvenile courts, and municipal courts.
“The facilities, resources, and circumstances of each county and judicial district greatly vary across the state, and the Court intends to give local courts the ability to expand in-person hearings if they safely can do so. What works for a juvenile court in Henry County may not work for a criminal circuit court in Shelby County or chancery court in Mountain City,” Chief Justice Bivins said. Additionally, “the Court strongly encourages all courts to continue to operate through remote proceedings such as video or audio conferencing whenever possible, even if the matter can be handled in-person in compliance with the judicial district’s approved plan. We have a long way to go in defeating this virus, and the more social distancing that can be done, the better it will be for everyone.”
The Administrative Office of the Courts has secured dozens of Zoom and WebEx accounts for judges overseeing state, general sessions, and juvenile proceedings. Judges at the state and county level and in rural and urban areas have been holding criminal, circuit, and chancery proceedings via video conference. In some instances, judges have been able to bring court reporters and court interpreters, as well as multiple attorneys for complex litigation cases with multiple litigants, into these video conferences. The Order entered today encourages courts to continue their use of these methods for keeping the courts open and running.
“I am very impressed with how judges, lawyers, and everyone in the system have quickly innovated and adapted to keep the courts open and dockets moving forward,” Chief Justice Bivins said. “The justice system cannot grind to a halt, and everyone quickly appreciated that rescheduling everything a few weeks out was not going to be a viable option. Everyday I hear stories of judges who are anything but tech savvy holding Zoom hearings and developing a new approach to getting the work done. This has been a tremendous learning opportunity, and there are going to be a lot of lessons learned about the use of technology in the courts that we can use even after this state of emergency is over.”
The Court’s order includes several other provisions to help alleviate hardships or unintended consequences caused by the suspension of non-essential, in-person proceedings. For example, deadlines set forth in court rules, statutes, and administrative rules, including statutes of limitations, that are set to expire between March 13 and May 31, 2020, are extended through June 5, 2020 and orders of protection that would expire between March 13 and April 30, 2020, are extended until June 5, 2020.
Here is the order:
ORDER MODIFYING SUSPENSION OF IN-PERSON COURT PROCEEDINGS AND FURTHER EXTENSION OF DEADLINES
On March 13, 2020, in response to the COVID-19 pandemic, the Chief Justice of the Tennessee Supreme Court declared a state of emergency for the Judicial Branch of Tennessee government and activated a Continuity of Operations Plan for the courts of Tennessee. See Tenn. Const. Art. VI, § 1; Tenn. Code Ann. §§ 16-3-501 to 16-3-504 (2009); Moore-Pennoyer v. State, 515 S.W.3d 271, 276-77 (Tenn. 2017); Tenn. Sup. Ct. R. 49. This state of emergency constitutes a “disaster” for purposes of Tenn. Sup. Ct. R. 49 and Tenn. Code Ann. § 28-1-116.
On March 25, 2020, the Tennessee Supreme Court continued the suspension of in-person court proceedings and the extension of deadlines. Since that time, the State of Tennessee and its citizens have made progress in mitigating the risks associated with COVID-19 and preparing for a re-opening of various aspects of daily life. This includes a modification of the suspension of in-person court proceedings, with appropriate safeguards. Under the constitutional, statutory, and inherent authority of the Tennessee Supreme Court, the prior suspension of in-person proceedings, except for jury trials, in all state and local courts in Tennessee, including but not limited to municipal, juvenile, general sessions, trial, and appellate courts, shall be modified as set forth in this order.
Unless otherwise noted herein, the provisions of this order shall remain in place through Sunday, May 31, 2020.
1) The suspension of jury trials shall remain in effect through Friday, July 3, 2020. Any exceptions must be based on extraordinary circumstances and approved by the Chief Justice.
2) Courts should continue to conduct as much business as possible by means other than in-person court proceedings. Courts are encouraged to continue and even increase the use of telephone, teleconferencing, email, video conferencing or other means that do not involve in-person contact. All of these methods should be the preferred option over in-person court proceedings.
3) All courts within a judicial district shall continue to operate under the guidelines and restrictions set forth in this Court’s March 25, 2020 order until the Chief Justice has approved a written plan for the judicial district within which the court is located. The presiding judge or the designee of the presiding judge of each judicial district, in coordination with the designated judge or other designee of the general sessions, juvenile, and municipal courts within each judicial district, shall develop a comprehensive written plan to gradually begin conducting in-person court proceedings (other than jury trials) in some non-emergency matters. Each plan should contain guidelines and restrictions designed to minimize to the greatest extent possible the risk of the spread of COVID-19 from in-person court proceedings. The written plans may include different guidelines and restrictions for different courts or counties within a judicial district. The written plans should include guidelines and restrictions addressing matters including but not limited to admission into the courthouse, limitation of the number of persons in the courtroom, staggering of hearing times, management of social distancing in the courthouse and in the courtroom, and handling of witnesses (e.g., having witnesses remain in their vehicles or placing them in separate rooms). The use of personal protection such as face masks, as well as appropriate use of disinfectants, is encouraged in courthouses to protect court personnel and the public. Screening measures such as touchless thermometers and health questions relevant to COVID-19 may be used for entry into courthouses. However, factors such as availability and cost of such measures should be taken into consideration before inclusion as mandatory requirements in a written plan. Alternatively, a written plan may consist of an election to continue to operate under the guidelines and restrictions set forth in this Court’s March 25, 2020 order. The presiding judge or the designee of the presiding judge of each judicial district shall submit its written plan to the Administrative Office of the Courts for approval by the Chief Justice.
4) Judges are charged with the responsibility of ensuring that core constitutional functions and rights are protected. Additionally, court clerks are charged with ensuring that court functions continue. See Tenn. Code Ann. §§ 18-1-101 (2009); 18-1-105 (Supp. 2019). Court clerks are to work cooperatively and at the direction of the presiding judge of each judicial district to fulfill the clerks’ obligation to facilitate continuing court function. Nevertheless, all judges and court clerks should continue to minimize in-person contact by utilizing available technologies, including alternative means of filing, teleconferencing, email, and video conferencing.
5) Any Tennessee state or local rule, criminal or civil, that impedes a judge’s or court clerk’s ability to utilize available technologies to limit in-person contact is suspended through Sunday, May 31, 2020. See, e.g., Tenn. R. Civ. P. 43.01. With respect to plea agreements for non-incarcerated individuals, this suspension expressly applies to those provisions of Tenn. R. Crim. P. 11 which otherwise would require the proceeding to be in person in open court. See, e.g., Tenn. R. Crim. P. 11(b)(1) and (2), 11(c)(2)(A). For purposes of implementing procedural matters during this time, the provisions of Rule 18(c) of the Rules of the Tennessee Supreme Court are suspended to allow judges to issue general orders.
6) Judges’ offices and court clerks’ offices may limit in-person contact with the public during the period of suspension, but must remain open for business. If it becomes necessary to restrict physical access to judges’ or court clerks’ offices during the period of suspension, these offices shall remain accessible by telephone, email and fax to the extent possible during regular business hours. If available, drop boxes should be used for conventionally filed documents.
7) Deadlines set forth in court rules, statutes, ordinances, administrative rules, or otherwise that are set to expire during the period from Friday, March 13, 2020, through Sunday May 31, 2020, are hereby extended through Friday, June 5, 2020. This extension does not apply to deadlines set forth in the Tennessee Rules of Appellate Procedure or the Rules of the Tennessee Supreme Court, except as otherwise provided by the orders of this Court entered March 27, 2020 (Order Suspending Board of Professional Responsibility’s Proceedings and Extending Deadlines) (Order Regarding Continuing Legal Education), March 31, 2020 (Order Clarifying the Extension of Deadlines), and April 2, 2020 (Order Temporarily Modifying Certain Provisions of Tennessee Supreme Court Rule 7). This extension does not apply to deadlines set forth in pre-trial scheduling orders, but such deadlines remain subject to extension by the trial courts in their discretion. Statutes of limitations and statutes of repose that would otherwise expire during the period from Friday, March 13, 2020, through Sunday May 31, 2020, are hereby extended through Friday, June 5, 2020. See Tenn. Code Ann. § 28-1-116 (2017). Deadlines, statutes of limitations, and statutes of repose that are not set to expire during the period from Friday, March 13, 2020, through Sunday, May 31, 2020, are not extended or tolled by this order. 8) Attorneys and judges are encouraged to utilize the “Online Notary Public Act,” Tenn. Code Ann. § 8-16-301, et seq., and the regulations promulgated by the Secretary of State at Sec. of State, Tenn. R. and Reg. 1360-07-03-.01. Additionally, Executive Order No. 26 issued by Governor Lee on April 9, 2020, addresses notary issues. With regard to court filings, declarations under penalty of perjury may be used as an alternative to a notary. The use of electronic signatures as provided under Rule 5B of the Tennessee Rules of Civil Procedure and Rules 46 and 46A of the Rules of the Tennessee Supreme Court is extended to any pleadings or documents to be filed or served by conventional means during the time that the state of emergency for the Judicial Branch remains in place. 9) Given the increasing economic issues caused by this pandemic, no judge, clerk, or other court official shall take any action to effectuate an eviction, ejectment, or other displacement from a residence during the effective dates of this order based upon the failure to make a rent, loan, or other similar payment absent extraordinary circumstances as determined by a judge in a court of competent jurisdiction. Nothing in this order affects the obligations, terms, or conditions for payment under existing contracts. Judges also are encouraged to work with court clerks and local law enforcement to develop policies severely limiting or eliminating any new garnishments during this time.
10) Orders of protection and temporary injunctions that would otherwise expire during the period from Friday, March 13, 2020, through Sunday, May 31, 2020, are hereby extended through Friday, June 5, 2020. This order applies statewide to all courts and court clerks’ offices except administrative courts within the Executive Branch and federal courts and federal court clerks’ offices located in Tennessee.
Under the terms of this order, the courts of Tennessee remain open, consistent with the Judicial Branch’s obligation to mitigate the risks associated with COVID-19. Judges should work with local law enforcement and other county officials to ensure that, to the extent possible, courthouses remain accessible to carry out essential constitutional functions and time-sensitive proceedings.
This order is intended to be interpreted broadly for protection of the public from risks associated with COVID-19.
It is so ORDERED. FOR THE COURT: _________________________ Jeffrey S. Bivins, Chief Justice ________________________ Cornelia A. Clark, Justice