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  • Writer's pictureDaniel Dubé

Court "Closure" Due to Coronavirus

Summary. On Friday, March 13th, the Supreme Court of the State of Maine announced that the courts would postpone almost all hearings until May 1st. Hearings postponed even include criminal jury trials. Exceptions include hearings for which there either is a constitutional obligation or there is a safety concern mandating a hearing occur with little delay: in-custody arraignments; bail; protection from abuse/harassment; involuntary commitment; and child protection.

In addition, there is a carve-out for judicial discretion, whereby a case or hearing not on the list of exceptions may be heard if: 1) an attorney files a motion stating the need for the hearing to occur immediately; 2) all parties to the case have an opportunity to object; and, 3) a judge grants the motion. This carve-out will operate as an important safety-valve, but such motions will not readily be granted: there will need to be exceptional circumstances.

The courts will remain open, but (almost) no hearings will be held. Therefore, motions and other filings may be filed in the normal course.

Interpretation and Addenda:

  • At this time, the federal courts are postponing only jury trials, but that may change.

  • There is a constitutional right to a speedy trial. That right is not absolute. Speedy trial motions filed that merely reiterate this right without asserting facts that make a case exceptional likely will not be granted.

  • Coronavirus could easily impact inmates of prisons and jails, which hold numerous individuals in close confinement. The onset of coronavirus in a jail, or its mere prospect, may constitute a change in circumstance that affords the opportunity for a modification of bail. I predict numerous such motions will be filed, but the courts will be reluctant to grant such motions based on the mere risk of coronavirus, unless the motion asserts: other facts that would have justified an amendment of bail under normal conditions; or, facts about the presence or increasing presence of the virus at a particular jail. At the jails, there may be informal comparisons made as to whose attorney is "good" or "the best" based on whether such a motion is filed; the filing of any such motion is a professional judgment at the discretion of the attorney based on law and experience, including experience with a particular court.

  • The Maine Department of Corrections (DOC) has announced all visits, excepting professional visits, are suspended for a two-week period, and that period may be extended. County jails have not yet followed suit, but various measures are being considered.

  • A footnote indicates some family law mediations will be held via video, but only if the clerk of the court notifies counsel and the parties.

My firm policies. I will be conducting audio-visual meetings only, until such time as the courts resume hearings. Likewise for any child protective meetings (family team meetings).

Consistent therewith, I will not be conducting in-person meetings with clients who are incarcerated. Reliance on written correspondence and other forms of communication will be increased. If a client insists on having an attorney meet in person at the jail while the courts are not holding hearings, I will move to withdraw and assist the client to find new counsel. I will maintain as much continuity of communication as possible. Of course, urgency of communication is generally reduced if there are no hearings.

Court schedules. Court docketing is an art practiced and learned by clerks over decades. Whenever court resumes, clerks will need all their skill and savvy to devise ways to reschedule not only the hearings that have been delayed, but to integrate those hearings with those already scheduled and not previously postponed. Rescheduling promises to become a cluster of epic proportions, regardless of the degree of skill, forethought, hard work, and cooperation of all actors in the court system. Scheduling mistakes and oddities will occur; clients will need to be understanding just as counsel will need to be patient.

Future court procedures and practices. Courts in Maine have long given primacy to in-person presence by counsel and parties even when audio-visual technologies proliferate, are ubiquitous, and costs of their utilization continue to fall. Those technologies could hugely increase efficiencies and reduce costs. However, the Maine courts have been reluctant to implement them and instead carry on creakily as a 19th c., Victorian machine.

What I have called the 'primacy of presence' carries over, tyrannically, even to paper. Even documents are not allowed to appear electronically, but instead, any filing must be an original, signed copy. This leads to such absurd practices as attorneys working against a deadline driving to a distant court and hand-delivering an original copy before the clock strikes the hour of a court's close.

The Supreme Court notice of closure includes some notes and references to suspension of requirements for in-person appearance, and deployment of technologies such as video, in some instances. Had the courts not given so much primacy to physical presence in the first place, now they would be better able to continue to function. The upshot is one may expect that once having found these technologies to work during emergency times, use of them and expansion of their deployment may continue long after the emergency that forced their introduction has passed.

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