Required Recertification of Operating Plans for All In-Person Proceedings on or after 1/1/2021

Dec 23, 2020

Trial judges in the district, county, justice, and municipals courts are not permitted by the Supreme Court's Twenty-Ninth Emergency Order to hold in-person proceedings in any matter (regardless of whether the county/city has an approved operating plan) unless the trial judge has used all reasonable efforts to conduct the proceeding remotely.

The Order and OCA Guidance require that all proceedings should occur remotely unless litigants or other court participants are unable to successfully participate in a remote hearing for reasons beyond the judge's control. If the reasonable efforts of the trial judge to conduct the hearing remotely have been unsuccessful, then the trial judge may conduct the hearing in accordance with an approved operating plan with a current recertification. The existence of an operating plan does not excuse a trial judge from first using reasonable efforts to conduct the hearing remotely.

Having been almost seven months since courts have submitted in-person operating plans, local administrative district judges and presiding judges of the municipal courts are required to submit recertifications meeting the following requirements in order to hold in-person proceedings on or after January 1, 2021. Courts whose local administrative district judge or presiding judge have not submitted the required recertification by January 1, 2021, are not permitted to hold in-person proceedings.

Required Recertification of In-Person Proceedings Operating Plans:

  1. The local administrative district judge (LADJ) or presiding judge of a municipal court (PJ) must consult with the local public health authority to review a previously-submitted in-person proceeding operating plan to determine whether the plan provides sufficient health and safety protocols to permit in-person proceedings. LADJs and PJs should discuss with the local public health authority whether current local pandemic conditions are conducive to in-person proceedings and what precautions should be taken when those proceedings are conducted. Documentation of the consultation must be submitted with the recertification.
  2. The LADJ and PJ must, after conferring with the judges of all courts with courtrooms in county building (LADJs) or municipal buildings (PJs), state the objective criteria that will be used to determine when an in-person proceeding is necessary and when all reasonable efforts do not permit the proceeding to be conducted remotely. The criteria should be specific and not include broad case of hearing type categories (e.g. courts may not indicate that all motions to suppress will be held in person, etc.). Examples of criteria may include items such as inability of parties to participate due to a disability or lack of technology. If a LADJ or PJ has questions about whether certain criteria are appropriate for in-person proceedings, please contact the Regional Presiding Judge.

The LADJ and PJ should submit the recertification to the Regional Presiding Judge. Upon written acknowledgement from the Regional Presiding Judge that the recertification meets the requirements, the courts in the county or city may commence in-person proceedings only in accordance with the Supreme Court's most recent emergency orders, guidance issued by the Office of Court Administration (OCA), the county/city operating plan, and the criteria stated in the recertification. The Regional Presiding Judge must forward a copy of each recertification to the OCA at 
LADJs or PJs who wish to update their operating plans should follow the process detailed in the Guidance for All Court Proceedings During COVID-19 Pandemic (Effective October 1, 2020)

Posted by: Pat Monks