by Robin Kemp

Chief Justice of the Supreme Court of Georgia Harold D. Melton has issued a sixth judicial order on COVID-19 that brings back grand juries as soon as the local courts can do so safely. Melton also told WSB-TV’s Mark Winne that regular juries could be back in session in October if all goes well.

KEY POINTS:

  • Melton issued guidance for courts to determine safety procedures in conjunction with local health officials
  • Each chief judge and district attorney will consult, with the chief judge having the power to “resume grand jury proceedings as local conditions allow and in accordance with this order,” based on that guidance
  • Grand juries can begin again as soon as Sept. 10 if they can be done so safely “and in compliance with public health guidance based on local conditions”, either remotely (e.g., court by Zoom) or in person
  • No court can compel anyone to attend in-person proceedings or alternative dispute resolutions if the court is not in compliance with the safety guidelines
  • Courts can compel anyone to attend remote proceedings (e.g., court by Zoom)
  • Melton anticipates another order around Oct. 10 giving regular jury trials the go-ahead
  • He points out the nearly six-month case backlog will take some time to address but that further delays cannot continue
  • However, Melton notes, “statutory deadlines based on indictments and jury trials will remain suspended and tolled” and “plans may need to be revised based on changing circumstances”

Clayton Circuit Chief Judge Geronda Carter had not yet issued an order for Clayton County courts as of press time. When the order comes down, it will likely be posted on her court page at https://www.claytoncountyga.gov/government/courts/superior-court/chief-judge-geronda-v-carter and the Clayton County Superior Court page at https://www.claytoncountyga.gov/government/courts/superior-court, where past orders are posted.

Below is the full text of the order issued Sept. 10, 2020. See the PDF copy of the order for additional guidance.


On March 14, 2020, in response to the COVID-19 pandemic, the Honorable Harold D. Melton, as the Chief Justice of the Supreme Court of Georgia, issued an Order Declaring Statewide Judicial Emergency pursuant to OCGA § 38-3-61. That Order has been extended five times, with modifications, by orders issued on April 6, May 11, June 12, July 10, and August 11, 2020. After consulting with the Judicial Council of Georgia and other judicial partners, recognizing again that most in-court proceedings compel the attendance of various individuals rather than allowing them to decide how best to protect their own health, and further recognizing that the novel coronavirus continues to spread in Georgia, it is hereby determined that the Order should be extended again.

Courts in Georgia have continued to perform essential functions despite the pandemic. Courts have also greatly expanded the use of remote proceedings and have resumed limited in-person proceedings that can be conducted safely. In an effort to return to more robust court operations, many of the deadlines imposed by law on litigants in civil and criminal cases that had been suspended, tolled, or extended since the initial March 14 Order were reimposed as of July 14, allowing more pending and newly filed cases to move forward in the judicial process. However, because grand jury proceedings and jury trials require the assembly of larger numbers of people, they have been almost entirely prohibited since the judicial emergency began. As explained in the last extension order, this broad prohibition cannot continue, even if the pandemic continues, because our judicial system, and the criminal justice system in particular, must have some capacity to resolve cases by indictment and trial. Accordingly, the Judicial COVID-19 Task Force has been focusing its work on how these proceedings can be safely conducted.

As explained further in Section I below, this order authorizes the Chief Judge of each superior court, in his or her discretion after consultation with the District Attorney, to resume grand jury proceedings as local conditions allow and in accordance with this order. Guidance for resuming in-person proceedings is included in the Appendix to this order, and guidance on remote grand jury proceedings is forthcoming. Conducting safe grand jury proceedings will provide experience useful in conducting safe jury trials.

As also explained in Section I below, this order directs each county to establish a local committee of judicial system participants to develop detailed guidelines for the resumption of jury trials in the county utilizing the safe jury trial guidelines being developed by the Task Force. It is anticipated that the next extension order on or about October 10 will authorize superior and state courts, in their discretion, to resume jury trials as local conditions allow.

It should be recognized that actual grand jury hearings and jury trials will not begin until a month or longer after they are authorized, due to the time required to summon potential jurors for service. It also should be recognized that there are substantial backlogs of unindicted cases, and due to ongoing public health precautions, these proceedings will not occur at the scale or with the speed they occurred before the pandemic. Thus, while our justice system must resume moving cases to indictment and trial as rapidly as can be done safely, statutory deadlines based on indictments and jury trials will remain suspended and tolled. Finally, it should be understood that plans may need to be revised based on changing circumstances.

As has been the direction since the original Order, all Georgia courts must continue to conduct proceedings, remotely or in-person, in compliance with public health guidance, applicable statutes and court rules, and the requirements of the United States and Georgia Constitutions, including the public’s right of access to judicial proceedings and a criminal defendant’s rights to confrontation and an open courtroom. All courts should continue to use and increase the use of technology to

conduct remote judicial proceedings as a safer alternative to in-person proceedings, unless required by law to be in person or unless it is not practicable for technical or other reasons for persons participating in the proceeding to participate remotely. This order again delineates the health precautions required for all in-person judicial proceedings and requires courts to adopt and maintain operating guidelines consistent with the Georgia Court Reopening Guide and any more specific local public health guidance.

Accordingly, the Order Declaring Statewide Judicial Emergency, which would have expired on Thursday, September 10, 2020, at 11:59 p.m., is further extended until October 10, 2020, at 11:59 p.m. All Georgia courts shall continue to operate under the restrictions set forth in that Order as extended; the provisions of this order below are identical to the August 11 extension order except for Section I, which has been substantially revised, and a minor corresponding revision in Section II (A) (1). Where this Order refers to “public health guidance,” courts should consider the most specific current guidance provided by the federal Centers for Disease Control and Prevention (CDC), the Georgia Department of Public Health (DPH), and their local health departments.

I. Grand Jury Proceedings and Jury Trials (A) Grand Jury Proceedings Authorized

(1) The Chief Judge of each superior court, in his or her discretion after consulting with the District Attorney, may resume grand jury proceedings in person or remotely (where consistent with law) on or after September 10, 2020, if doing so can be done safely and in compliance with public health guidance based on local conditions. When a Chief Judge exercises this authority, he or she should provide sufficient notice to the appropriate clerk of court or court administrator to allow the process of summoning potential jurors, and potential jurors should be informed in advance about the practices that the court will use to ensure their safety. Guidance for safely conducting in-person grand jury proceedings, based on recommendations from the

Judicial COVID-19 Task Force, is included in the Appendix to this order, and guidance on conducting remote grand jury proceedings is forthcoming.

(2) Because there are substantial backlogs of unindicted cases, grand jury proceedings even when resumed will not occur at the scale or with the speed as before the pandemic, and jury trials remain suspended, deadlines calculated by reference to the date of grand jury proceedings or jury trials, including but not limited to the speedy trial deadlines in OCGA §§ 17-7-170 and 17-7-171 and the deadlines for indicting detained individuals in OCGA §§ 17-7-50 and 17-7-50.1, will remain suspended and tolled as discussed in Section II (A) (1) below.

(3) Courts and counsel are reminded that many criminal cases may proceed on accusation and do not require a grand jury indictment.

(B) Jury Trials Remain Prohibited; Convening of Local Committees to Develop County Jury Trial Guidelines

(1) The suspension of jury trials shall remain in effect and until further order, all courts are prohibited from summoning new trial jurors and from conducting criminal or civil jury trials.

(2) The Chief Judge of each superior court is directed to convene for each county in his or her circuit a local committee of judicial system participants to develop a plan for safely resuming jury trials in the county, as further specified in the “Guidance for Local Committees on Resuming Jury Trials” included in the Appendix to this order. Guidance for safely conducting jury trials is being developed by the Judicial COVID-19 Task Force and will be provided to local committees. Court operating guidelines for in- person proceedings, see Section IV below, incorporating final jury trial plans shall be submitted to the Administrative Office of the Courts (AOC) as soon as possible and before the jury trial process begins.

II. Reimposition of Deadlines on Litigants

(A) The July 10 extension Order reimposed all deadlines and other time schedules and filing requirements (referred to collectively herein as “deadlines”) that are imposed on litigants by statutes, rules, regulations, or court orders in civil and criminal cases and administrative actions and that have been suspended, tolled, extended, or otherwise relieved by the March 14, 2020 Order Declaring Statewide Judicial Emergency, as extended, on the following schedule and with the following exceptions and conditions:

(1) Consistent with Section I above, deadlines for jury trial proceedings (including statutory speedy trial demands), deadlines for grand jury proceedings, and deadlines calculated by reference to the date of a civil or criminal jury trial or grand jury proceeding shall remain suspended and tolled. This provision does not apply to deadlines calculated by reference to the date of non-jury (bench) trials. Statutes of limitation in criminal cases shall also remain tolled until further order.

(2) All other deadlines imposed on litigants shall be reimposed effective July 14, 2020, as further explained below.

(3) In cases that were pending before the March 14 Order, litigants will have the same amount of time to file or act after July 14 that they had as of March 14. For example, if an answer in a civil case was due on March 20, that answer will now be due on July 20, and if a criminal defendant’s pretrial motions were due on March 23, they will now be due on July 23.

(4) In cases filed between March 14 and July 13, 2020, the time for deadlines will begin running on July 14. For example, if a civil complaint was filed in June and the answer would have been due 30 days later, that 30-day period will begin on July 14 and the answer will be due on August 13.

(5) In cases filed on or after July 14, 2020, litigants shall comply with the normal deadlines applicable to the case.

(6) If the reimposed deadline falls on a weekend or legal holiday, the deadline will as normal be the next businessday. See OCGA § 1-3-1 (d) (3).

(7) Any extension of time for a litigant’s filing or action that was granted by a court, or was agreed or consented to by the litigants as authorized by law, before July 14, 2020 shall also extend the time for that filing or action after July 14. For example, if a litigant’s filing was initially due on March 10 but she was granted a 10-day extension of that deadline (to March 20), the filing will be due on July 24 (10 days after July 14).

(8) Litigants may be entitled to additional time based on the provisions of a local judicial emergency order applicable to their case if such an order tolled applicable deadlines before the March 14, 2020 Order Declaring Statewide Judicial Emergency or tolls applicable deadlines after July 14, 2020.

(9) The tolling and suspension of deadlines imposed on litigants in civil and criminal cases that are calculated by reference to terms of court shall be lifted as of July 14, 2020, and any regular term of court beginning on or after July 14 shall count toward such deadlines. See also the May 4, 2020 Guidance on Deadlines and Time Limits Defined by Reference to Terms of Court included in the Appendix.

(10) The 122 days between March 14 and July 14, 2020, or any portion of that period in which a statute of limitation would have run, shall be excluded from the calculation of that statute of limitation.

(11) Litigants may apply in the normal way for extensions of reimposed deadlines for good cause shown, and courts should be generous in granting extensions particularly when based upon health concerns, economic hardship, or lack of child care.

(B) Recognizing the substantial backlog of pending cases, deadlines imposed on courts shall remain suspended and tolled. All courts should nevertheless work diligently to clear the backlog and to comply with usual deadlines and timetables to the extent safe and

practicable.

(C) If before July 14 a court reimposed deadlines by order in a specific case based on the authority to do so granted by prior extension orders, the case-specific order reimposing deadlines shall control over the deadlines for the same filings or actions reimposed by this statewide Order.

(D) If in a divorce or adoption case a time period required by law actually passed or passes before the court entered or enters a consent order, consent judgment, or consent decree regarding the divorce or adoption, such order, judgment, or decree shall not be invalid based on any suspension or tolling of the applicable period by the March 14 Order as extended.

III. Proceedings Conducted Remotely Using Technology

(A) All courts should continue to use and increase the use of technology to conduct remote judicial proceedings as a safer alternative to in-person proceedings, unless required by law to be in person or unless it is not practicable for technical or other reasons for persons participating in the proceeding to participate remotely.

(B) Courts should understand and utilize the authority provided and clarified by the emergency amendments made to court rules on video conferences and teleconferences.

(C) Courts may compel the participation of litigants, lawyers, witnesses, and other essential personnel in remote judicial proceedings, where allowed by court rules (including emergency amendments thereto). Such proceedings, however, must be consistent with public health guidance, must not impose undue burdens on participants, and must not be prohibited by the requirements of the United States or Georgia Constitutions or applicable statutes or court rules.

(D) In civil, criminal, juvenile, and administrative proceedings, litigants may expressly consent in the record to remote proceedings not otherwise authorized and affirmatively waive otherwise applicable legal requirements.

(E) Courts must ensure the public’s right of access to judicial proceedings and in all criminal cases, unless affirmatively waived in the record, a criminal defendant’s rights to confrontation and an open courtroom.

IV. In-Person Proceedings Under Guidelines for Safe Operations

(A) Courts have discretion to conduct in-person judicial proceedings, but only in compliance with public health guidance and with the requirements of the United States and Georgia Constitutions and applicable statutes and court rules, including the public’s right of access to judicial proceedings and a criminal defendant’s rights to confrontation and an open courtroom.

(B) No court may compel the attendance of any person for a court proceeding if the court proceeding or the court facility in which it is to be held is not in compliance with this order, including in particular large calendar calls. Courts are also prohibited from compelling in-person participation in any court-imposed alternative dispute resolution session that is to be conducted in a manner inconsistent with applicable public health guidelines.

(C) Each court shall develop and implement operating guidelines as to how in-court proceedings generally and particular types of proceedings will be conducted to protect the health of litigants, lawyers, judges, court personnel, and the public.

(1) The Judicial Council Strategic Planning Committee and the Judicial COVID-19 Task Force have issued a bench card entitled “Georgia Court Reopening Guide,” which is included in the Appendix and should be used as the template for such operating guidelines, which at a minimum should include all subject matters contained therein. Courts should also consider guidance from local health departments and guidance provided by CDC and DPH; if local public health guidance is more restrictive than the bench card, the local public health guidance should be followed instead.

(2) With regard to everyone who works in a court facility, the operating guidelines shall require isolation of any person with known or suspected COVID-19 and quarantine of any person with COVID-19 exposure likely to result in infection, in accordance with the DPH Eighth Amended Administrative Order for Public Health Control Measures, a link to which may be found in the Appendix, or any subsequent version thereof.

(3) When there is reason to believe that anyone who works at or has visited a court facility has been exposed to COVID-19, DPH or the local health department shall be notified, and notification of persons who may have been exposed shall occur as directed by DPH or the local health department.

(D) Courts of different classes that share courthouse facilities or operate in the same county should coordinate their operating guidelines, and should seek to coordinate operating guidelines with non-judicial entities sharing courthouse facilities.

(E) Each court must submit its operating guidelines to the AOC at https://georgiacourts.gov/covid-19-court- operating-guidelines-form/ to be posted at https://georgiacourts.gov/covid-19-court-operating- guidelines/ as a centralized website available to litigants, lawyers, and the public. Operating guidelines also should be prominently posted at courthouse entrances and on court and local government websites to provide advance notice to litigants, lawyers, and the public.

(F) Operating guidelines shall be modified as public health guidance is modified, and shall remain in effect until public health guidance indicates that they are no longer required.

V. Discretion of Chief Judges to Declare More Restrictive Local Judicial Emergencies

(A) Nothing in the Order Declaring Statewide Judicial Emergency as extended and modified limits the authority of the Chief Judge of a superior court judicial circuit under OCGA §§ 38-3-61 and 38- 3-62 to add to the restrictions imposed by the statewide judicial emergency, if such additional restrictions are constitutional, necessitated by local conditions, and to the extent possible ensure that courthouses or properly designated alternative facilities remain accessible to carry out essential judicial functions. A Chief Judge may impose such additional restrictions only by a properly entered order.

(B) No court may disregard the restrictions imposed by the Order as extended and modified.

VI. Guidance on Application of the Order

Included in the Appendix are several guidance documents that clarify the application of the Order in particular contexts. Additional guidance documents may be posted on the AOC’s website at https://georgiacourts.gov/judicial-council/aoc/. Guidance related to the tolling of deadlines should be read in light of the reimposition of deadlines by this Order and by orders in specific cases.

VII. Professionalism

With regard to all matters in this challenging time, all lawyers are reminded of their obligations of professionalism. Judges are also reminded of their obligation to dispose of all judicial matters promptly and efficiently, including by insisting that court officials, litigants, and their lawyers cooperate with the court to achieve that end, although this obligation must not take precedence over the obligation to dispose of matters fairly and with patience, which requires sensitivity to health and other concerns raised by court officials, litigants and their lawyers, witnesses, and others.

VIII. Notice Provisions

(A) Notice will be provided as to the expected termination of the Order as extended and modified at least one week in advance to allow courts to plan for the transition to fuller operations.

(B) The clerks and court administrators of trial courts that conduct jury trials and convene grand juries will be provided sufficient notice of the resumption of jury proceedings to allow the complicated process of summoning potential jurors to be completed.

(C) The impact of COVID-19 varies across the state, and the level of response and adjustment will likewise vary among courts. Courts should make available to the public the steps they are taking to safely increase operations while responding to the COVID-19 pandemic. Recognizing that not all courts have a social media presence or website, the AOC will continue to post court-specific information as it becomes available on the AOC website at https://georgiacourts.gov/covid-19-preparedness.

(D) Pursuant to OCGA § 38-3-63, notice and service of a copy of this Order shall immediately be sent to the judges and clerks of all courts in this State and to the clerk of the Court of Appeals of Georgia, such service to be accomplished through means to assure expeditious receipt, which include electronic means. Notice shall also be sent to the media, the State Bar of Georgia, and the officials and entities listed below and shall constitute sufficient notice of the issuance of this Order to the affected litigants, counsel for the affected litigants, and the public.

IT IS SO ORDERED this 10th day of September, 2020, and effective at 11:59 p.m.

/s/ Chief Justice Harold D. Melton, Supreme Court of Georgia


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