NC courts expand in-person proceedings, but online options may not be going anywhere

As with many other public and private institutions, the North Carolina court system is slowly but surely reopening to more in-person proceedings as COVID-19 infection and death rates continue to trend downward.

With in-person court proceedings reinstated and remote ones continued, the state judicial branch is now exploring how to conduct court functions when adapting to the new normal. If recently introduced legislation and the assessments of some experts end up holding sway, online proceedings could become a permanent part of state judicial proceedings.

Will a hybrid model be the new normal?

Last week, the North Carolina Court of Appeals issued guidelines for the resumption of in-person oral arguments, effective April 1 through mid-June.

According to the guidelines, in-person arguments will be permitted in Court of Appeals cases in which all lawyers involved agree to participate in-person, and all parties planning to attend either show proof of vaccination or negative COVID-19 tests in advance. Court workers and lawyers now qualify for vaccination in Group 3 of the state’s vaccine rollout.

In addition, the court will make use of plexiglass shields and provide hand sanitizers as an additional safety precaution. Some courthouses have been identified as hotspots of COVID-19 outbreaks.

Communications Director of the state Administrative Office of the Courts Sharon Gladwell said the Court of Appeals has yet to determine how many of the cases will end up being argued in-person, as the calendar was only recently published.

The guidelines will pave the way for the return of in-person hearings at the appellate division for the first time since the onset of the pandemic. Many lower courts have already taken such action.

Although remote proceedings served as predominant method for conducting judicial activities during the pandemic, most were executed on a temporary basis at the instruction of judges. The state Court of Appeals, for example, had never held virtual oral arguments before they were permitted under COVID emergency directives.

Now, however, a year after the imposition of pandemic-driven restrictions, court officials are considering whether to further extend the use of remote court and are working with state legislators on possible statutory changes.

Gladwell also noted that trial level remote proceedings have increased dramatically during the pandemic.

The state Court of Appeals has posted recordings of oral arguments on YouTube since the hearings were moved online via the video-conferencing platform WebEx last April. This won’t change, as in-person oral arguments will still be live-streamed and recorded for the public to view under new guidelines.

“Although we have been fortunate to be able to use remote arguments very effectively, our Court is working to resume the real open courts the North Carolina Constitution has guaranteed to the people of our state,” Chief Judge of the state Court of Appeals Donna Stroud said in a press release from the Administrative Office of the Courts.

A state Senate bill (SB255) introduced last Thursday, however, would make online proceedings a permanent option in the state. It would allow judicial officials to “conduct proceedings of all types using audio and video transmission.” The bill is sponsored by Sen. Warren Daniel (R-Avery, Burke, Caldwell) and Sen. Danny Britt (R-Columbus, Robeson), both members of the Senate Judiciary Committee.

Neither Britt nor Daniel returned emails seeking comments from Policy Watch. Gladwell said the remote proceedings section of the bill was drafted with the input from AOC.

Current statutes prohibit certain types of hearings from being conducted via video conference, including hearings involving the termination of ex-parte and no-contact orders, commonly issued in domestic violence cases. Shea Denning, a professor at the UNC School of Government noted in a March 15 blog post that SB 255 would do away with these prohibitions.

“Before the pandemic, court officials generally only held remote hearings as specifically permitted by statute,” Denning wrote in an email to Policy Watch.

In April 2020, former Supreme Court Chief Justice Cheri Beasley issued an order that included Emergency Directive 3, which Denning described as allowing remote hearings to be used far more broadly.

Chief Justice Paul Newby made it a priority to reopen courts when he took office earlier this year, referencing the “Constitutional mandate that courts shall be open.” He lifted certain restrictions that put a pause to most in-person court activities ordered by Beasley last December.

And since Newby’s directives to leave the decision on court activities to local judges, some of the largest jurisdictions in the state have resumed in-person jury trials, including Guilford, Wake, Durham and Mecklenburg.

Mecklenburg was amongst the latest jurisdictions to resume jury trials. On March 12, Chief District Court Judge Elizabeth Trosch issued an order further opening many court activities to in-person gatherings as of March 15. But many activities continue to be conducted on a remote basis and a “remote hearing presumption” remains in effect and is expected to last until June 30, according to a press release.

“Access to justice” and online proceedings

Access to justice should be protected in remote settings, according to SB 255, which stresses the responsibility of judicial officials to “safeguard the constitutional rights of those persons involved in the proceeding and preserve the integrity of the judicial process.”

Corye Dunn, the director of public policy at Disability Rights North Carolina said in an email that the organization welcomes the change. “We look forward to working with sponsors of the measure to ensure that the final bill addresses any necessary accommodations such as ASL [American Sign Language] interpreting or captioning for web conferencing,” Dunn said.

“In some instances, remote court has been very successful in allowing for time savings and convenience for all involved, but it very much depends on the kind of proceeding, as well as the participants,” said Alicia Bannon, the managing director for the Democracy Program at the Brennan Center for Justice.

Bannon told Policy Watch that remote court poses challenges for those representing themselves (or pro se) — something that’s common, for instance, in eviction proceedings — as parties are frequently unfamiliar with court procedures.

Remote appellate court proceedings tend to go more smoothly, Bannon noted, as lawyers and judges only discuss questions about the application of law without examining physical evidence and witnesses. She said a potential upside of virtual court is the common practice of judges taking turns to ask questions, such as has happened at the U.S. Supreme Court, where Justice Clarence Thomas, who used to be quiet, spoke more in online proceedings.

Researchers at the UNC School of Government surveyed 182 criminal court actors, including judges, prosecutors, public defenders, clerks and lawyers about virtual court proceedings. Some raised concerns about the inability to have private conversations between defendants and their attorneys in video communication.

“The defendant is on their own against the judge and DA,” a respondent commented regarding virtual first appearance proceedings. “This is awful for obvious reasons.”

Survey respondents indicated increases in most remote proceedings in their jurisdictions except for grand jury proceedings. Most supported virtual proceedings for first appearances where a judge or magistrate reviews initial charges, guilty pleas, and bond motions, according to the report. However, more people were opposed to a virtual grand jury than those in favor.

At an event that featured a panel of law experts hosted by the Northwestern University Law Review last Friday, Bannon noted that court officials need to be more aware that a large proportion of litigants attend court proceedings on their smartphones and have difficulties in viewing evidence on the small screen.

The UNC SOG survey respondents also reported that having more tech support and advance preparation will benefit the remote proceedings. Some proposed the combination of physical and virtual court, while others suggested some parties argue in the courtroom while others join online.