Judiciary issues order to continue remote proceedings, raising NJSBA concerns

As the state's shelter-in-place orders continue pursuant to Governor Phil Murphy's Executive Order 103, the courts continue to modify deadlines and clarify prior orders in an effort to maintain court services.

The Judiciary's April 20 order lays out guidance on a number of issues to continue court proceedings, and has led the New Jersey State Bar Association (NJSBA) to urge the New Jersey Supreme Court to focus on a plan to address matters such as discovery deadlines and other time frames following a suspension of the shelter-in-place orders by the governor. At the time this report was prepared, no plan had been issued.

"In less than a week, the Court's Omnibus Order formally suspending other court proceedings, extending deadlines and tolling time periods will expire, as will the time frames contained in several other orders and notices from the Court," said NJSBA President Evelyn Padin in a letter to Chief Justice Stuart Rabner.

The NJSBA signaled concerns with the order's mandates that may prove burdensome for some clients and for attorneys who are "continuing to zealously represent their clients consistent with the high standards of ethical requirements rightfully imposed on them" while "struggling with determining how to make ends meet financially" both personally and professionally.

The Supreme Court issued guidance on remote proceedings last week:

• that mandates court events continue even over the objection of an attorney or party, except in certain matters;
• to prioritize livestreaming for most criminal matters and to permit live streaming for court matters in other divisions on a case-by-case basis;
• to provide real-time access to observe matters that are not livestreamed;
• to provide records of court proceedings;
• to maintain lists of remote options available for court matters, referred to as the Events Guidance List; and
• to stay the commencement of certain custodial terms in criminal, family and municipal matters; and to secure placements in juvenile delinquency matters.

With respect to moving certain proceedings forward even over the objections of an attorney or a party, the only exceptions are: sentencing hearings in criminal, family and municipal matters; juvenile delinquency adjudications; evidentiary hearings and bench trials in criminal matters; evidentiary hearings and trials in municipal matters that involve a reasonable likelihood of jail sentence or loss of suspension of license; termination of parents' rights trials; and, hearings for an adjudication of incapacity and appointment of a permanent guardian.

The Court promised a follow-up to the Events Guidance List, outlining remote technology options for court proceedings, in the form of another directive that implements the provisions of the April 20 order, said Acting Administrative Director of the Courts Glenn A. Grant. However, with the advent of virtual and streaming hearings, concerns remain about the confidentiality of certain proceedings, such as domestic violence cases, which may inadvertently disclose confidential information.

The NJSBA requested that the Court:

• extend the suspensions of jury trials, grand jury sessions, landlord/ tenant calendars, Special Civil Part and small-claims trial calendars, early settlement panel sessions and municipal court sessions, as contained in the March 27 order, until at least 14 days after the shelter-in-place restrictions are rescinded or otherwise lifted;
• extend the suspensions of depositions and all required appearances for doctors, nurses or healthcare professionals involved in responding to the COVID-19 public health emergency until at least 60 days after the shelter-in-place orders are lifted;
• allow COVID-19 issues that personally affect attorneys or litigants to be considered exceptional circumstances warranting the adjournment of any hearing or proceeding, including civil arbitration sessions, or the granting of an extension; and
• define a process to allow the courts, without the need for a formal motion to address through concise letter requests and teleconference, any circumstance presented in an individual case where such continued suspension or tolling will irreparably prejudice a party if specific discovery or a specific proceeding does not move forward as requested or ordered.

The NJSBA continues to monitor and assess these orders and the needs of the legal community as these issues arise.

This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.