Posted by: Andy Taylor | March 23, 2020

Covid and the Courts

Introduction

Courts in Arkansas (both state and federal) have taken a number of steps to deal with the COVID-19 crisis.  This post seeks to be a repository of information relating to court closings, cancellations, and other changes relating to courthouse operations.  There are a few additional resources at the very bottom of this post that might be of particular interest to attorneys (such as links to the executive orders and ADH rules relating to restaurant closures in Arkansas, for example).  If you see anything that needs to be updated, please let us know!

Notarizing Documents Via Video Conference

On March 30, 2020, Governor Hutchinson issued Executive Order 20-12, which applies to notaries public who: (1) are licensed attorneys or title agents (or who are supervised by attorneys or title agents); or (2) work for a financial institution registered with the Arkansas State Bank Department.  Eligible notaries public may notarize documents via video conference, and doing so meets the “in person” or “in the presence of” requirement.  There are more details in the executive order, so please read it before beginning to notarize documents via video conference.

Arkansas State Courts

The Arkansas Supreme Court has released several per curiam decisions relating to court operations in Arkansas.

May 8, 2020 Per Curiam

The May 8, 2020 per curiam announces that all courts may resume hearings (subject to certain restrictions) on May 18, 2020.  The preferred method is by video conference, but the hearings may also be conducted in-person or by audio conference (or a combination of methods). The manner in which the hearing is to be conducted is at the discretion of the presiding judge. Any party may object to the type of hearing, with the objection to be ruled on by the presiding judge. Courthouses and courtrooms must comply with Arkansas Department of Health guidelines. 

The Arkansas Supreme Court also updated the suspension of deadlines that had been announced in the April 28, 2020 per curiam.  The suspension of the deadline for service of process is still in effect.  However, the suspension of deadlines for discovery responses (interrogatories, requests for production, and requests for admission) has been rescinded. All discovery that was suspended during that time is due the later of: (1) ten business days of today; or (2) the original due date of the discovery.

April 28, 2020 Per Curiam (Evictions)

The April 28, 2020 per curiam relating to evictions requires that all eviction/failure-to-vacate complaints/charges plead affirmatively that the property in question is not covered by the CARES Act.  This per curiam drew a dissent from Justice Womack (joined by Justice Wood).  Justice Womack’s dissent argues that: (1) the per curiam violates separation of powers; (2) the per curiam is “a solution in search of a problem” (because the number of evictions cases is down); and (3) the per curiam “tip[s] the scales of justice” in favor of tenants.

April 28, 2020 Per Curiam (Deadlines)

The April 28, 2020 per curiam relating to court rules suspends certain time requirements contained in the Arkansas Rules of Civil Procedure.  The following deadlines are suspended:

  • Service of Process (Ark. R. Civ. P. 4(i) (circuit court)) (Ark. Dist. Ct. R. 3) (district court)
  • Responses to Interrogatories (Ark. R. Civ. P. 33(b))
  • Responses to Requests for Production/Inspection (Ark. R. Civ. P. 34(b))
  • Responses to Requests for Admission (Ark. R. Civ. P. 36(a))

These deadlines are suspended until further notice from the court.  Justice Wood (joined by Justice Womack) dissented from this per curiam.  Her arguments were that: (1) this is a “late in the game” change; (2) the rules already permit extensions on a case-by-case basis; (3) rule changes should go through a deliberative process; and (4) the extension leads to uncertainty for courts trying to clear their dockets and for defendants who have not been served.

April 23, 2020 Per Curiam Opinion

The April 23, 2020 per curiam contains two important updates:

  • Extends the suspension of in-person proceedings through May 15, 2020.
  • Continues to allow the excepted provisions from the May 17, 2020 per curiam, but requires that they be held remotely unless doing so is “not possible or feasible.”  If the proceedings are held in person, then: (1) no more than 10 persons may gather in the courtroom or in areas around the courtroom; (2) participants must wear face coverings when possible; and (3) participants in the courtroom must follow social distancing guidelines.

April 3, 2020 Per Curiam Opinion

This per curiam is similar to the prior per curiam opinions, but extends some of the dates:

  • Suspension of in-person proceedings (with the exceptions previously announced) now extended through May 1, 2020.
  • Suspension of juror summons is extended through June 30, 2020.

March 20, 2020 Per Curiam Opinion (2020 Ark. 125)

This per curiam institutes three big changes from the prior per curiam (which was issued on March 17 and which is explained in detail further down in this post).

  1. Extends the suspension of in-person proceedings (announced in the March 17, 2020 per curiam decision [see below]) through Friday, April 17, 2020.
  2. Closes the Justice Building in Little Rock (except the clerk’s office) until further notice.  NOTE: Even though the clerk’s office is open, it is our understanding that the clerk’s office is not requiring paper briefs to be filed until 5 days after the Justice Building reopens.
  3. Delegates to the Clerk authority to grant COVID-19 extensions.  The exact language is as follows:

In addition to the existing authority of the Clerk of the Supreme Court and Court of Appeals to grant filing extensions, the Clerk may also grant extensions in response to this pandemic. A request for a filing extension will be granted by the Clerk if the grounds for the extension relate to COVID-19 and the length of the extension is reasonable under the circumstances. Such requests should indicate whether any opposing party has an objection.

We’re going to dig a little deeper into point three because it directly affects appellate practice.  Recall that the Clerk already has authority to grant a 7-day extension (basically, an automatic extension) under Arkansas Supreme Court Rule 4-4(f)(1).  This extends that expansion authority to any case that is affected by COVID-19.  The appellate courts are likely to be faced with a significant number of these requests, and this appears to be an effort by the Arkansas Supreme Court to streamline that process.  This, in our opinion, is a positive move by the court.  The court is always extremely timely in dealing with extension requests, but this will expedite the process even more and give those attorneys dealing with COVID-19 one less thing to worry about.

The per curiam does not give examples of what would “relate to COVID-19,” but this would obviously include an attorney becoming ill with the disease itself.  It would also likely include a family member becoming ill, a quarantine, and similar other matters.

From a practical standpoint, because this extension request is an extension of the clerk’s already-existing authority, it appears that attorneys would file these the same way they file for the 7-day clerk’s extension.  The rule does not set out what would be “reasonable,” but presumably if the extension request is deemed unreasonable by the clerk (as it relates to COVID-19), the clerk could grant an extension for what the clerk deems reasonable.  Then, the attorney could file an additional motion under Ark. Sup. Ct. R. 4-4(f)(2), which governs standard (i.e., non COVID-19) motions for extension of time.

Two other relevant notes.  First, in filing the request, the attorney must inform the court whether opposing counsel objects to the extension.  Second, this extension would not be available if the briefing deadline had already passed, so you’d need to request this extension prior to your current briefing deadline.

March 17, 2020 Per Curiam

This per curiam (which had been previewed somewhat in a March 6, 2020 letter from Chief Justice Kemp) immediately suspended all in-person hearings (with some exceptions, as set forth below).  Attorneys will be interested in the exceptions, of course, but should pay special attention to the notice requirements as well.

Suspension of In-Person Hearings

All in-person hearings in all state courts were suspended effective immediately.  The suspension was initially effective through April 3, 2020, but, as noted above, that time period was extended through April 17, 2020.  There are some exceptions, set forth below:

  • Proceedings necessary to protect the constitutional rights of criminal defendants and juveniles, including, but not limited to, criminal initial appearances; probable-cause hearings; speedy trial; cases in which victims are under fourteen years of age; juvenile probable cause hearings; juvenile detention hearings; and hearings on writs of habeas corpus;
  • Proceedings in which civil or criminal jury trials are already in progress as of March 17,2020;
  • Proceedings pertaining to relief from abuse, including but not limited to, orders of protection;
  • Proceedings related to emergency child custody orders;
  • Proceedings related to probable cause, emergency child placement, and ICWA in dependency-neglect proceedings;
  • Proceedings related to petitions for temporary restraining orders or other forms of temporary injunctive relief;
  • Proceedings related to adult protective services and emergency mental health orders;
  • Proceedings for emergency guardianship or conservatorship;
  • Proceedings directly related to the COVID-19 public health emergency;
  • Oral arguments regarding time-sensitive matters; and
  • Other exceptions approved by the Chief Justice.

Limits on Persons in the Courtroom

For civil cases in which in-person hearings will still be held, only the following persons may be present: “attorneys, parties, witnesses, security officers, a press-pool representative, and other individuals necessary to the proceedings as determined by the judge presiding over the proceedings.”  For criminal matters, “the judge shall continue to protect the defendant’s right to public trial.”

Jurors

For cases in which a jury would be present, the presiding judge is required to exercise his or her discretion in excusing jurors who are affected by COVID-19.  However, this appears to be limited to those jury trials that were in progress at the time the per curiam was handed down, because all juror summonses were suspended until May 1, 2020.

Deadlines Not Affected

The order does not affect any required filing deadlines.

Courts May Rule on Certain Matters

The order does not affect any court’s ability to rule on matters that do not require an in-person hearing.

Appellate Oral Arguments Canceled

The Court canceled all oral arguments before the Arkansas Supreme Court and Arkansas Court of Appeals. [EDIT: The Arkansas Supreme Court will be holding at least some oral arguments via video-conference.]

Notice Requirements

There is a notice requirement for attorneys who have had COVID-19 or who have been in contact with someone who has had COVID-19, and the attorney is expected to err on the side of caution on this.  The language of the order makes this clear:

If an attorney or party reasonably suspects (erring on the side of caution) that a hearing, trial, or deposition was attended by someone infected with COVID-19, or a person who has been in contact with an infected person within fourteen days, they shall immediately give notice to the court and all parties.

Judiciary Closings, Cancellations, & Changes Website

Prior to the March 17, 2020 per curiam suspending in-person proceedings, the Arkansas Supreme Court had published a page listing court closings and cancellations.  This page is still a valuable resource because some of the district and circuit courts have taken actions even beyond what the Arkansas Supreme Court has ordered.  (For example, some courts have already announced closings through May.)

Federal Courts

The Eastern and Western Districts have issued administrative orders that are similar, but vary slightly in some of the details.

Eastern District of Arkansas

Administrative Order No. 1 (March 13, 2020)

Some of the provisions of Administrative Order No. 1 have been superseded by Administrative Order No. 2, but these are the portions that are still in effect.

Postponement of Public Events in the Courthouse

All March and April large-scale public events (such as mock trials) scheduled for March and April are postponed.

Notice Requirement

There is a notice requirement for any attorney affected by or exposed to COVID-19:

If an attorney or party reasonably suspects (erring on the side of caution) that a scheduled hearing, trial, or deposition may involve contact with an individual who may be infected by COVID- 19, or has been in contact within the past fourteen days with such a person, the attorney or party must immediately give notice to all parties and the Court.

Cancellation of Civil Jury Trials

All civil jury trials through April 30, 2020 are canceled.

Administrative Order No. 2 (March 18, 2020)

Administrative Order No. 2 expanded the scale-back of court operations.

Cancellation of Some Criminal Proceedings

All criminal jury trials and all grand jury proceedings are canceled through April 30, 2020, although there is a process for seeking an exception to this order in the case of emergencies.

Hearings, Conferences, and Bench Trials

Hearings, conferences, and bench trials are not canceled, but should be held by telephone or video conference when possible.

Western District of Arkansas

Administrative Order No. 2020-1 (March 16, 2020)

Administrative Order No. 2020-1 postponed civil and criminal trials, but allowed certain criminal and civil proceedings to continue as scheduled.

Civil and Criminal Trials Postponed

All civil and criminal trials, including both bench and jury trials, scheduled through May 1, 2020 will be postponed until a later date.

Certain Criminal Matters Still To Continue as Scheduled

Criminal matters before a magistrate judge (initial appearances, arraignments, etc.) will continue to be held as scheduled, although possibly by video conference.

Civil Proceedings Still to Continue as Scheduled

Non-trial civil proceedings (such as hearings and settlement conferences) are to continue as scheduled, although possibly by video conference.

Grand Jury Proceedings

All grand jury proceedings are continued until the court directs otherwise.

Petty Offense Proceedings

Petty offense (CVB) proceedings are continued under the court directs otherwise.

Civil and Criminal Motions

The court may still rule on civil and criminal motions.

Administrative Order No. 2020-2 (March 16, 2020)

Administrative Order No. 2020-02 completely bans certain people from entering the courthouses in Fort Smith, Fayetteville, and El Dorado and from the courtrooms and court offices in Hot Springs and Texarkana.  The list is set forth in detail in the order itself, but generally speaking, the list includes people who have traveled to certain countries (or who live with or have been in close contact with those who have); people who have been asked to self-quarantine; people who have been diagnosed with COVID-19 or have had direct contact with those who have; and people experiencing the symptoms of COVID-19.

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