A Year Later: The COVID-19 Judicial Emergency in Georgia - SGR Law

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Jury Trials to Resume Again!

The world has been battling the COVID-19 pandemic for a year now. All sectors of life, from businesses to schools, to courts, to places of worship, have socially-distanced and shifted to technology to carry out their work.

A year ago, on March 14, 2020, Chief Justice Melton of the Supreme Court of Georgia declared a Statewide Judicial Emergency in the State of Georgia due to the “transmission of Coronavirus/COVID-19 throughout the State and the potential infection of those who work in or are required to appear in our courts.”[i] The first order suspended all jury trials. Today, on March 9, 2021, almost one year after the first order, Chief Justice Melton has entered the 12th order extending the judicial emergency. This order authorizes jury trials to begin again.[ii]

A Look Back:

The first judicial emergency order followed federal and state emergency declarations issued the day before, and came the same week that the World Health Organization declared coronavirus a pandemic.[iii] Over the past year, the statewide judicial emergency order has been extended 12 times.

The first order last March did not close Georgia’s court system altogether, but pared down court operations to the basics. In the first statewide order, Chief Justice Melton directed “the judicial branch of government to suspend all but essential court functions.” The order also suspended a number of judicial deadlines and urged courts to begin using video conferencing where possible as a safe alternative to in-person proceedings.[iv]

Georgia courts were to remain open, and the order directed courts to prioritize matters such as domestic abuse restraining orders, mental health commitment hearings, and cases “where an immediate liberty or safety concern is present requiring the attention of the court as soon as the court is available.” The order also suspended jury trials due to the number of people required to gather at courthouses, except for criminal trials for which a jury had already been empaneled and the trial had already commenced, unless the presiding judge determined that good cause existed to suspend the trial or declare a mistrial.

For many cases, the wheels of justice ground to a halt. Nonessential cases were stalled, trials were postponed, and the filing deadlines that drive litigation were suspended. But for those cases raising immediate safety concerns, judges, like their doctor counterparts, conducted triage operations to keep the legal system running. For example, judges entered restraining orders in domestic violation situations and held bail hearings to avoid unnecessary detentions in jails where the virus was spreading. Courts adopted safety measures, like those at grocery stores, such as the use of hand sanitizer, plexiglass dividers, and social-distancing.

When the judicial emergency first started, the Georgia Supreme Court postponed three days of March oral arguments. Then, on April 20, 2020, the Supreme Court of Georgia held oral arguments via video conference for the first time in its history. The Supreme Court quickly adapted to the use of video conferencing technology, and with the exception of March, did not miss a single month of arguments. The cases canceled in March were added to the April calendar.

As an alternative to in-person dockets, many Georgia courts adopted virtual, limited in-person, or hybrid (virtual and limited in-person) formats in an effort to maintain operational continuity, while reducing transmission, and complying with health and safety directives.[v] As the pandemic progressed, courts across Georgia, at all levels, began to utilize technology to largely reinstitute their processes. The use of audio and video conferencing technology, in particular, has been a great resource for courts as they allow for judges, counsel, parties, and court personnel to continue to convene and confer as necessary, albeit in a different format.

On May 11, 2020, the second order extending the statewide judicial emergency was issued, and on May 14, the Chief Justice created a Judicial COVID-19 Task Force to evaluate how courts should operate safely statewide. In the succeeding months, Georgia’s Chief Justice signed a new order at the end of each 30-day period extending the Statewide Judicial Emergency.[vi]

On June 11, 2020, the Georgia Court Reopening Guide (Bench Card) was issued.[vii] The following day, on June 12, 2020, the third order extending the statewide judicial emergency was issued. Included therein was a plan for the re-imposition of deadlines.

To encourage courts and litigants to aggressively clear out the backlogs in cases, the Supreme Court reinstated on July 14, 2020, many of its deadlines for litigating parties that had been suspended. However, criminal and civil jury trials and most grand jury proceedings continued to be prohibited around the state. In the order that Chief Justice Melton signed in mid-August, he made clear that “[t]his broad prohibition cannot last too much longer, even if the pandemic continues, because the judicial system, and the criminal justice system in particular, must have some capacity to resolve cases by indictment and trial.”

On September 10, 2020, Chief Justice Melton signed an order that authorized the resumption of grand jury proceedings “if doing so can be done safely and in compliance with public health guidance based on local conditions.” The order stated that the goal of the next 30-day extension order in mid-October would be to authorize the resumption of jury trials.

In mid-October, Chief Justice Melton signed an order lifting the prohibition of jury trials “because our judicial system, and the criminal justice system in particular, must have some capacity to resolve cases by trial, and our trial courts have accumulated many cases that are awaiting trial.” For a short period, jury trials were allowed to resume. However, on Dec. 23, 2020, due to the rise in COVID-19 cases, Chief Justice Melton signed an order again suspending jury trials that were not already in progress.

On February 7, 2021, Chief Justice Melton extended the Statewide Judicial Emergency due to COVID-19 for another month. That order was the 11th he had signed extending the COVID-19 judicial emergency. That order was nearly identical to the last extension order he signed in January 2021, and it continued the suspension of jury trials.[viii] However, the February order cautiously signaled that jury trials might resume in March, noting that “the surge in COVID-19 cases that led to the suspension of jury trials appears now to be declining.”

A Look Ahead:

Today, on March 9, 2021, almost one year after the first order, Chief Justice Melton issued the 12th order extending the Statewide Judicial Emergency. This order lifts the suspension of jury trials in Georgia “effective immediately.” Under the order, trial courts may resume jury trials “if that can be done safely and in accordance with a final jury trial plan developed in collaboration with the local committee of judicial system participants and incorporated into the court’s written operating guidelines for in-person proceedings.” Because the dangerous surge in COVID-19 cases has declined recently, the order says “the prohibition against conducting jury trials is lifted and trial courts, in their discretion, may resume jury trials as local conditions allow.” As with previous orders, the new order urges all courts to use technology to conduct remote judicial proceedings as a safer alternative to in-person proceedings where practicable and lawful. The order extends the Statewide Judicial Emergency for another 30 days, until April 8, 2021.

When the courts commence jury trials again under the new order, the system will need people to serve as jurors. Accordingly, the Georgia Judicial Council and Administrative Office of Courts is prepared to launch the #Justice Needs Jurors public service announcement campaign, which includes a video.[ix] A trial by a jury of one’s peers is “fundamental to the American justice system,” and “I’m asking for your help,” Chief Justice Melton says in the PSA due to air soon. He speaks directly to citizens, stating “[y]ou and every citizen of Georgia are critical to this process because we cannot conduct a trial by jury without jurors, without you.” He assures prospective jurors that “[w]e have put into place the most rigorous safety protocols available.” These protocols include pre-screening for health risks of all parties, temperature checks, masks, plexiglass barriers, touch-free evidence technology, constant surface cleaning, and the reconfiguration of courtrooms and jury spaces to ensure social distancing.

Indeed, courts across Georgia have been hard at work putting in place plans for the resumption of jury trials that comply with public health guidance and guidelines by the Judicial COVID-19 Task Force to safeguard the health and safety of all involved. The “Guidance for Resuming Jury Trials,” which is included in the Appendix of the new order, provides a set of detailed guidelines that address many topics, including the use of masks, the reconfiguring of courtrooms and chairs, installation of plexiglass barriers, the use of markers to ensure social distancing, the regular replacement of air filters, and plans for guaranteeing public access to court proceedings, including setting up areas where the public can watch remotely from within the courthouse.

With the new order allowing the resumption of jury trials, and certainly as more people receive the coronavirus vaccination and case counts decline, we can expect court proceedings to increase. 2021 is expected to be a busy year on the litigation front. However, the serious backlog in trials due to COVID-19 will likely frustrate parties and the courts.[x] Many are anticipating a backlog of at least two years to catch up. Others estimate it could take Georgia’s court system years more to dig out of the piled-up cases.

In addition to conducting jury trials with COVID-19 safeguards and the use of reconfigured space or alternative sites, such as renovated or expanded space, the following methods may be effective ways for clearing the case backlog caused by the pandemic: continue or increase the use of virtual hearings, offer hearings at nontraditional times, such as weekends or evenings, adopt new or evolving technology that focuses on making courts more efficient, increase the number of judges, whether pro tem, senior or permanent, and encourage more parties in civil cases to agree to arbitration or mediation. Whatever methods are utilized, the resumption of jury trials in Georgia is a long-awaited step toward resolving the backlog of cases stalled by the pandemic.

[i] The judicial emergency order was issued pursuant to O.C.G.A. § 38-3-61. A “judicial emergency” is one that “substantially endangers or infringes upon the normal functioning of the judicial system, the ability of persons to avail themselves of the judicial system, or the ability of litigants or others to have access to the courts or to meet schedules or time deadlines imposed by court order or rule, statute, or administrative rule or regulation.” O.C.G.A. § 38-3-60(2).

[ii] The current order can be found at:  https://www.gasupreme.us/wp-content/uploads/2021/03/12th-SJEO_as-issued.pdf

[iii] On March 11, 2020, the World Health Organization declared COVID-19 a global pandemic. On March 13, 2020, President Donald Trump declared the outbreak of COVID-19 a national emergency. On March 14, 2020, Governor Brian Kemp declared a public health state of emergency in Georgia due to the spread of COVID-19. By executive order dated April 3, 2020, Governor Kemp clarified his emergency order by expressly stating that the “Judiciary of the State of Georgia is a separate branch of government” and that the “Judiciary of the State of Georgia has independent authority to declare a state of emergency pursuant to Code Section 38-3-60.”

[iv] From the beginning of the emergency, the Georgia Supreme Court took several steps to assist courts and litigants to continue court business during the pandemic, such as by amending trial court rules to allow virtual hearings through video conferencing technology in proceedings that normally require the physical presence of the judge and parties.

[v] Holding ordinarily-public proceedings, such as oral arguments, but barring public access to public proceedings could be problematic. Lack of access not only weakens public trust and confidence in the courts, it also raises Constitutional issues. In response, Georgia courts that moved to conducting hearings via audio or video technology made them available to the public by streaming them online to observe or listen to in real-time.

[vi] All the orders and actions taken by the Supreme Court throughout the pandemic are posted on the court’s website at www.gasupreme.us.

[vii] The guide can be found at: Georgia-Court-Reopening-Guide-FINAL.pdf (georgiacourts.gov)

[viii] The most recent order entered by the U.S. District Court for the Northern District of Georgia extended the suspension of jury trials through and including May 2, 2021, due to COVID-19, but allows for grand jurors to continue to be summoned and for grand jury proceedings to continue to be held. The order also allows prospective petit jurors to be summoned for trials scheduled to begin after May 2, 2021. The Eleventh Amendment to General Order 20-01, entered March 9, 2021, can be found at: http://www.gand.uscourts.gov/sites/default/files/NDGA_GenOrder20-01_11adm.pdf

[ix] The public service announcement video can be found at:  https://www.youtube.com/watch?v=vC_hibJqcnY&feature=youtu.be.

[x] The new order notes: “It should be recognized that grand jury hearings and jury trials will not actually start until a month or longer after the process for resuming them begins in a particular county or court, due to the time required to summon potential jurors for service. It also should be recognized that there are substantial backlogs of unindicted and untried 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.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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