Chief Justice Newby Rescinds Remaining COVID-19 Emergency Directives

by Sarah Izzell, Law Clerk

Chief Justice Paul Newby rescinded the two remaining COVID-19 Emergency Directives this week after the enactment of Senate Bill 255. The Bill enacts new G.S. 7A-49.6, which authorizes judicial officials to conduct remote proceedings of “all types” if several requirements are met.

Requirements for Remote Proceedings

1. If the parties proceed by video and audio transmission, each represented party must be able to communicate fully and confidentially with his or her attorney.
2. When the right to confront witnesses or the right to presence is implicated in criminal or juvenile delinquency proceedings, the court may not proceed by audio and video transmission unless the court has obtained knowing, intelligent, and voluntary waiver of the defendant or juvenile respondent’s rights or unless another provision of law permits the proceeding.
3. Remote proceedings must comply with any applicable federal and State laws governing the confidentiality and security of confidential information.
4. If the proceeding is open to the public, the presiding official must facilitate access to the proceeding by the public and media as nearly as practicable to the access that would be available if the proceeding were to be conducted in person.
5. If the proceeding is required to be recorded, then the remote proceeding must be recorded.
6. Remote proceedings must be conducted using videoconferencing applications approved by the Administrative Office of the Courts.

Search Warrants

The Senate Bill also amended G.S. 15A-245(a) to allow officers to testify in support of a search or arrest warrant by videoconference. The testimony must still be made under oath or affirmation and comply with the general remote proceedings requirements. The amendment also removed the need for a judicial official to physically sign a paper original of the warrant. After hearing the officer’s sworn testimony, the judicial official may now affix an electronic signature to a search or arrest warrant.

Verification of Pleadings

Currently, if a document needs to be notarized, House Bill 196 authorizes video notarizations through December 31, 2021. Senate Bill 255 enacts new G.S. 7A-98, which permits unsworn written declarations, signed and dated under penalty of perjury, to be submitted in support of matters that are electronically filed. Exceptions apply for certain declarations, including those made in support of oral testimony, oaths of office, self-proved wills and codicils, and certain real property transactions. The new statute is effective December 1, 2021, and will curtail the need for the continuation of video notarization.

Remnants of Covid-Era Protocols

As conditions continue to improve, you will notice that courthouses are getting back to normal. However, some judicial officials may still require the use of masks in the courtroom so remember to bring your mask with you just in case and continue to wash your hands.