Supreme Court relaxes pandemic restrictions
By Jason Boleman, Virginia Lawyers Weekly – 7/12/2021
In extending the declaration of judicial emergency on June 29, the Supreme Court of Virginia marked a milestone in the commonwealth’s legal system’s response to COVID-19.
For the first time in more than a year, circuit courts do not need an approved plan by a panel of Supreme Court justices in order to conduct jury trials.
“Chief judges and presiding judges of all courts should exercise their discretion in determining how best to safely operate their respective courts, including how to safely conduct jury trials,” the court said. Additionally, the order recommends judges follow the guidance of the Centers of Disease Control and Prevention and the Virginia Department of Health in deciding how to best operate their respective courthouses.
The shift in policy represents the end of the most visible and major effect of the judicial emergency after more than a year. Prior to the June 29 order, circuit courts had to submit plans on how their courts were going to resume jury trials to a panel of Supreme Court justices for approval. Once approved, the court had to adhere to the approved plan – any edits to the plan required re-approval from a panel of justices.
“The most dramatic effect of the judicial emergency, the sharp statewide curtailment of jury trials, is over; that decision is now in local judges’ hands,” Virginia Beach attorney L. Steven Emmert said via email. Emmert added that the change in policy marked “a major milestone in the judicial emergency.”
In an order on June 22, 2020, the Supreme Court of Virginia initially announced the creation of a “Jury Task Force” to address the reinstatement of jury trials in Virginia. Prior to then, jury trials had been effectively halted since the judicial emergency first went into effect in March 2020. The order also asked chief circuit court judges to create a plan to be reviewed by the panel on how the court would safely conduct jury trials. The first plans were reviewed and approved in August 2020.
Currently, the Virginia courts website lists 119 approved circuit court plans for jury trials. The Henrico County Circuit Court conducted the first jury trial during the COVID-19 pandemic, a criminal trial held Sept. 15, 2020.
Virginia Lawyers Weekly previously reported on the resumption of jury trials in the spring, finding that many locales had similar rules requiring mandatory masking, social distancing and physical barriers to attempt to reduce the transmission of COVID-19. Additionally, some courts reported having trouble filling juries and holding trials despite having approved plans, citing the worsening of the pandemic during the fall and winter months.
The high court had already begun relaxing restrictions in recent extensions of the judicial emergency. On May 17, the court amended its 21st order extending the judicial emergency by allowing judges to modify restrictions related to masks without seeking further review. The change was made after Gov. Ralph Northam lifted Virginia’s universal mask mandate due to updated CDC guidance allowing vaccinated individuals to go without masks in most settings.
The most recent order, the 25th extension of the judicial emergency, is effective through Aug. 11. Despite the change in jury trial policy, courts are still required to screen people entering the courthouse for illness as long as the VDH recommends. Additionally, the tolling of Speedy Trial Act deadlines continues through the judicial emergency.
“The ongoing judicial emergency caused by the COVID-19 pandemic continues to impede the operation of Virginia’s courts,” the order states.
Court of Appeals
On June 29, the Court of Appeals of Virginia also released an order on operations during the pandemic. The order, the court’s sixth, extended in part a Feb. 22 order on the operations of the court during the public health emergency.
“Going forward into the ‘new normal,’ the Court’s goal remains to balance vital health and safety concerns with the critical need to ensure access to justice for all and to continue to provide essential services to those with business before the Court,” the order states.
The order from the Court of Appeals stated that the court will conduct its upcoming oral argument writ dockets via videoconference through the end of 2021. The court also said it will continue “its liberal extension of time policy” for pleadings due to be filed where persons are impacted by the pandemic. Like the Supreme Court order, the Court of Appeals left decisions on safety protocols in the hands of local courthouses and chief judges.
The order from the Court of Appeals is effective “until further order of the Court.”