Justices hand down ‘more aggressive’ guidance on court COVID operations amid outbreaks

Court-related outbreaks of the novel coronavirus mean more aggressive approaches are needed for Indiana’s trial courts when it comes to in-person operations during the pandemic, according to a new order from the Indiana Supreme Court.

The order handed down Tuesday provides additional guidance to trial courts as court staff adjust operations in response to the continued COVID-19 pandemic. The guidance is scheduled to remain effective well into next year.

In May, the justices handed down an order to assist trial judges as they began resuming operations after largely shutting down in-person proceedings due to COVID-19.

Previous orders from the high court had allowed for remote administration of oaths and other remote functions, modified procedures for witnessing wills and even allowed for protection of CARES Act stimulus checks from creditors.

Trial courts were later instructed to submit their transition plans to the high court for approval of expanded in-person operations.

But “(d)espite these efforts, there have been outbreaks as a result of court proceedings and operations,” Chief Justice Loretta Rush wrote in a Tuesday order.

“Large outbreaks have involved entire probation departments; judicial officers and court staff have tested positive — sadly, one court employee has died — and courts have closed; and jurors have become symptomatic and infected others during trials, leading to mistrials and subsequent infection of non-participants and family members,” Rush wrote Tuesday. “These incidents highlight the need for more aggressive approaches to in-person trial court operations.”

One such incident occurred last week in Gas City, where the murder trial of a northern Indiana woman accused of killing her stepdaughter ended in a mistrial after at least four people involved in the proceedings came down with COVID-19.

“Trial judges have an obligation to help protect their communities by taking proactive, responsible steps to minimize the potential for exposure and infection in — and from — their courtrooms by reducing in-person proceedings. Judges have broad authority to take those steps as well as comply with local public health mandates,” the order reads.

Specifically, the Supreme Court noted that trial courts have the inherent authority to:

• Suspend and/or reschedule any individual criminal or civil jury trials for a limited time (subject in criminal cases to the Constitutional right to speedy trial and the Constitutional protection against double jeopardy).
• Pursuant to Criminal Rule 4, order a continuance of any criminal trial upon the finding of an emergency without the necessity of a motion.
• Suspend new juror orientations, extend existing jury panels, and/or postpone jury service to a later date for jurors who are ill, caring for someone who is ill or a dependent child at home due to school closure or quarantine, or in a high-risk category.
• Continue and/or reschedule non-essential hearings, excluding emergency matters, domestic violence hearings and evidentiary hearings in criminal cases.
• Allow a county’s judges to exercise general jurisdiction over cases in each other’s courts.
• Issue summonses in lieu of bench warrants or notices of failure to appear.
• Limit in-court spectators, subject to applicable Constitutional limitations.
• Review, in collaboration with their local criminal justice partners, county jail and direct-placement community correction sentences of non-violent inmates and juveniles to mitigate the spread within detention facilities.

If local needs require broad emergency action for which any of those measures are insufficient, trial courts may petition the Supreme Court pursuant to Administrative Rule 17 for authority to take more extensive measures. That can include tolling rules and procedures setting time limits in civil and criminal matters other than trials, as well as suspending and/or rescheduling all criminal and civil jury trials before the court for a limited time.

Additionally, the order states that all trial courts should do the following until further direction is given by the Supreme Court:

• Communicate with local bar associations and attorneys to maximize the use of remote proceedings in accordance with the high court’s May 13, 2020, emergency order and maintain public confidence in the health and safety of court proceedings.
• Require all participants of in-person court proceedings to wear appropriate masks or face shields throughout the proceedings except for witnesses, who may remove their masks for the limited period of providing a verbal response to questions, and other limited individual circumstances.
• Employ senior judges working remotely to the fullest extent possible.
• Minimize in-person proceedings in non-essential matters where remote proceedings will be as effective.
• Provide for remote essential proceedings when physical access to a courtroom is limited or exposed judges and court staff must quarantine.

Lastly, the state justices ordered that courts shall comply with and enforce local and statewide public health orders as they relate to court facilities, staff and proceedings.

Orders issued in 20S-MS-236, 20S-MS-237 and 20S-MS-258, as well as in the instant case, will expire July 1, 2021, unless otherwise ordered by the high court.

The order is In the Matter of Administrative Rule 17 Emergency Relief for Indiana Trial Courts Relating to the 2019 Novel Coronavirus (COVID-19), 20S-CB-123.