Responses to questions from SBAND Members Friday, March 27, 2020

The following are responses to questions and comments forwarded to the Court through the State Bar Association of North Dakota. Thank you for the prompt submission of questions and comments. All of your questions and comments have been considered, answers have been provided to many of your questions, and we have provided a response to many of your comments. We will continue to review the remaining questions and comments. Your input is appreciated.

1. Will future jury trials be suspended for several incubation cycles of the COVID-19 virus? Jury trials have been suspended. The health of our judicial team members and individuals who interact with our judicial system is our priority. Jury trials will resume when the risk of transmittal of the virus is minimal. Comments we have been provided about sharing microphones during jury selection are appreciated and we will review how we conduct our jury selection to reduce unnecessary risk.

2. Can transcription fees for indigent clients be waived? The Court is not currently considering the waiver of transcription fees for indigent civil clients as part of its response to the COVID-19 emergency. The cost of transcripts in civil proceedings has been and remains a concern of the court.

3. Can the use of ITV, telephonic and other forms of remote access be expanded? Many of the comments, questions, and suggestions we have received relate to the expanded use of remote participation in hearings. We appreciate the suggestions we have received. For example, one suggestion was to integrate multi-party access into the existing ITV network. That suggestion and others will be forwarded to our technology department.
   
   Many of our courts are using remote methods for conducting hearings. Administrative Rule 52 provides broad discretion for conducting proceedings by reliable electronic means. In civil cases, there are no restrictions on what proceedings can be conducted by reliable electronic means. The exchange of documentary evidence can be overcome by pre-hearing submission of exhibits and stipulations. Criminal cases have greater restrictions on when proceedings can be conducted by reliable electronic means.

4. Why are the courts still operating? We received many comments regarding this subject and the related subject of uniformity. Uniformity is addressed in the response to question number 5.
   
   The comments and questions regarding our continued operations were split between requesting a complete shutdown of all court proceedings with the possible exception of emergency proceedings, and requests to continue court operations to the extent possible. Our priority is the health of our judicial team members and individuals who come in contact with the court system. That priority must be balanced with our duty to provide a forum for protecting vulnerable persons, providing a forum to ensure children in abusive or neglectful situations are safe, and satisfying our obligation with regard to the rights of individuals accused of crimes. We understand any proceeding not conducted remotely creates a risk of exposure to COVID-19. Most of our districts have eliminated in-person contact except in emergency proceedings. As of March 25, 2020, we have addressed these concerns by instructing all districts to conduct in-person hearings only in emergency proceedings and when an alternative is not available.

5. Why isn’t there uniformity between the districts? Your comments for more uniformity have been heard. As noted in the prior response, a clear directive has been provided to the districts regarding the limitation on conducting in-person hearings. Essential court functions will continue. Proceedings that can continue to be heard through reliable electronic means will continue to be heard when possible.
   
   Each district has different experiences and ability to conduct proceedings through the use of reliable electronic means. All of the districts are increasing their capabilities. Cases which can proceed through electronic means should proceed through electronic means. The practicing bar can facilitate this process by preparing and distributing documentary evidence prior to the hearing.

6. Why haven’t deadlines in civil cases been automatically extended? Comments and questions from the practicing bar were received on both sides of this issue. Many responses indicated discovery, and in particular depositions, have become impossible to conduct or arrange. Other comments stressed the need for clients to have a resolution, noted there are many cases decided through default procedures, and stressed the use of reliable electronic means.
   
   Requests for continuances related to COVID-19 are presumptively made for good cause. No civil cases are being required to proceed forward where there is an agreement by counsel to continue the proceeding. District judges will continue to be given discretion to proceed with non-emergency cases by using reliable electronic means. Regardless of how well the judicial system’s workload is managed during the emergency, there will be significant delays following the end of the emergency. To the extent we are able to resolve cases now through reliable electronic means, future delay times will be reduced.

7. How will cases be handled when the emergency ends? Cases with statutory or constitutional time requirements will be provided priority. This includes, but is not limited to, juvenile proceedings, speedy trial requests in criminal proceedings, and civil commitment proceedings. The resolution of cases through the use of reliable electronic means during the emergency is critical to limiting the amount of post-emergency delays.

8. What happens if the Governor issues a shelter in place order? We anticipate emergency proceedings will continue. Non-emergency proceedings will continue if there are reliable electronic means available. Continuance requests related to the COVID-19 emergency will be presumed to be supported by good cause.

9. Why are eviction proceedings continuing? The Court has issued an order suspending residential eviction proceedings.

10. Can Administrative Rule 52 be relaxed in criminal cases to allow proceedings to continue through reliable electronic means? Subject to the Court’s obligation to protect constitutional rights afforded to criminal defendants, relaxation of Administrative Rule 52 will be considered.

11. Can the requirement to notarize documents and the physical presence of the stenographer to swear in deposition witnesses be addressed? Rule 11 of the North Dakota Rules of Civil Procedure was recently amended to substantially expand the use of sworn declarations. The Court will consider an emergency order eliminating the physical presence of the stenographer to swear in deposition witnesses. In a recent conversation with the North Dakota Secretary of State we have confirmed remote notary attestation is covered by N.D.C.C. 44-06.1-13.1 (please review the public notice issued by the North Dakota Secretary of State and the statute for guidance).

12. Will the Court address potential visitation disputes? First, our family mediation program is being expanded to allow parties to access mediation to resolve parenting disputes without the necessity of filing a motion. A decision will be made by the mediator within three days. The suggestion to clarify whether or not the school year has ended or continues with regard to summer parenting time is appreciated and action will be considered.

13. Can North Dakota Rule of Criminal Procedure 43 be expanded? The Court has expanded the use of Rule 43 to include felonies with presumptive probation sentences. Further expansion will be considered.

The Court will continue to provide responses to questions and comments. Again, thank you for your input.