IN RE MISCELLANEOUS SUPREME COURT ORDERS

03/27/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: AF 07-0064
IN THE MATTER OF THE STATEWIDE
RESPONSE BY MONTANA STATE COURTS
ORDER
TO THE COVID-19 PUBLIC HEALTH
EMERGENCY
Governor Bullock proclaimed a state of emergency due to the novel coronavirus
disease (COVID-19) outbreak in Montana, and on March 13, 2020, President Trump
declared a national ernergency due to the(COVID-19) outbreak across the United States.
During this state of emergency, the Centers for Disease Control and Prevention
and the Montana State Department of Health have recommended increasingly stringent
social distancing measures of at least six feet between people, and encouraged vulnerable
individuals to avoid public spaces.
Consistent with these recommendations, Governor Bullock has now directed all
Montana citizens, unless exeinpt as providers of essential services, to shelter in place
through April 10, 2020. Montana courts are providers of essential services, and as such,
the courts shall reinain open.
Many court facilities in Montana are ill-equipped to effectively comply with social
distancing and other public health requirements; therefore, continued in-person court
appearances jeopardize the health and safety of litigants, attorneys, judges, court staff,
and members of the public.
Pursuant to the guidelines in this Court's March 13 and March 17 memorandums,
many Montana courts have already taken important steps to protect public health while
ensuring continued access to justice and essential court services; however, the crisis is
increasing daily and it may becorne necessary for courts to suspend most in-building
operations or otherwise significantly modify their operations.
The increasingly aggressive spread of COVID-19 across Montana requires a
uniform, coordinated response frorn Montana courts to prevent further outbreak and to
maintain consistent and equitable access to justice.
This Court's consultation with trial court judges, justice partners and public health
authorities confirms the need for further direction from this Court.
The presiding judges across Montana need direction and authority to effectively
adrninister their courts in response to this state of emergency, including authority to
adopt, rnodify, and suspend court rules and orders as warranted to address the emergency
conditions. Therefore,
Pursuant to the Court's authority under Article VII, Section 2(2), of the Montana
Constitution, and the requirement to administer justice and to ensure the safety of court
personnel, litigants, and the public,
IT IS HEREBY ORDERED:
1. All civil jury trials shall be suspended until after April 10, 2020.
2. All non-emergency civil matters shall be continued until after April 10, 2020,
except those motions, actions on agreed orders, conferences or other proceedings that can
appropriately be conducted by telephone, video or other means that does not require
in-person attendance.
3. All emergency rnatters, including civil protection and restraining order matters, that
should be heard before April 10, 2020, must be heard by telephone, video, or other rneans
that does not require in-person attendance, unless irnpossible. Where court matters rnust
be heard in person, social distancing and other public health measures must be strictly
observed. Telephonic, video or other hearings required to be public in courts of record
must be recorded, with the recording preserved for the record.
4. All criminal jury trials are suspended until after April 10, 2020. Trials already in
session where a jury has been sworn and social distancing and other public health
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measures are strictly observed may proceed or be continued if the defendant agrees to a
continuance.
5. All out of custody criminal rnatters already pending shall be continued until after
April 10, 2020, except those motions, actions on agreed orders, conferences or other
proceedings that can appropriately be conducted by telephone, video or other means that
does not require in—person attendance. Initial appearances on out of custody cases filed
between today's date and April 10, 2020, shall be conducted by video or telephone if
possible. All arraignments on out of custody cases shall be postponed until a date after
April 10, 2020. The new arraignment date shall be considered the "initial
commencement date" for purposes of establishing the time for trial under speedy trial
guidelines.
6. Courts may enter ex parte no-contact orders when an information, citation, or
cornplaint is filed with the court and the court finds that probable cause is present for a
sex offense, dornestic violence offense, stalking offense, or harassrnent offense. Ex parte
orders may be served upon the defendant by rnail. This provision does not relieve the
prosecution of proving a knowing violation of such an ex parte order in any prosecution
for violating the order. Good cause exists for courts to extend ex parte orders beyond the
initial period until a hearing can be held.
7. All in custody criminal matters shall be continued until after April 10, 2020, with
the following exceptions:
a. Scheduling and hearing of first appearances, arraignrnents, plea hearings,
criminal motions, and sentencing hearings. Courts retain discretion in the
scheduling of these matters, except that the following rnatters shall take priority:
i. Pretrial release and bail modification rnotions.
ii. Plea hearings and sentencing hearings that result in the anticipated
release of the defendant from pretrial detention within 30 days of the
hearing.
iii. Parties are not required to file rnotions to shorten time in scheduling
any of these matters.
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8. Juvenile court jurisdiction in all pending offender proceedings and in all cases in
which a petition is filed with the juvenile court prior to April 10, 2020, in which the
offender will reach the age of 18 within 120 days of April 10, 2020, shall be extended to
the offender's next scheduled juvenile court hearing after April 10, 2020.
9. A continuance of these criminal hearings and trials is required in the
administration ofjustice. Based upon the court's finding that the serious danger posed by
COVID-19 is good cause to continue criminal jury trials, and constitutes an unavoidable
circumstance, the time between the date of this order and the date of the next scheduled
trial date are considered institutional delay when calculating time for trial.
10. The Court finds that obtaining signatures from defendants for orders places
significant burdens on attorneys, particularly public defenders, and all attorneys who
must enter correctional facilities to obtain signatures in person. Therefore, for all matters
covered in Sections 4 and 5, this Order serves to continue those matters without need for
further written orders. Additionally:
a. Defense counsel is not required to obtain signatures from defendants on
orders to continue criminal rnatters through April 10, 2020.
b. Courts shall provide notice of new hearing dates to defense counsel and
unrepresented defendants.
c. Defense counsel shall provide notice to defendants of new court dates.
11. Bench warrants rnay issue for violations of conditions of release from now through
April 10, 2020. However, courts should not issue bench warrants for failure to appear
in-person for court hearings and pretrial supervision meetings unless necessary for the
immediate preservation of public or individual safety.
12. Motions for Pre-Trial Release:
a. Courts shall hear motions for pretrial release on an expedited basis without
requiring a rnotion to shorten time. In counties participating in our Pretrial
Release Program, public safety assessments will continue to be provided in a
prompt manner.
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b. The Court finds that for those identified as part of a vulnerable or at-risk
population by the Centers for Disease Control, COVID-19 is presumed to be a
material change in circumstances, and the parties do not need to supply additional
briefing on COVID-19 to the court. For all other cases, the COVID-19 crisis rnay
constitute a material change in circumstances and new inforrnation allowing
amendment of a previous bail order or providing different conditions of release,
but a finding of changed circuinstances in any given case is left to the sound
discretion of the trial court. Under such circumstances in juvenile matters, the
court may make revisions to detention provisions without a new detention hearing.
c. Parties may present agreed orders for release of in-custody defendants,
which should be signed expeditiously.
d. If a hearing is required for a vulnerable or at-risk person as identified
above,the court shall schedule such hearing within five days.
13. Courts must allow telephonic or video appearances for all scheduled criminal
hearings between now and through April 10, 2020, unless impossible. For all hearings
that involve a critical stage of the proceedings, courts shall provide a means for the
defendant to have the opportunity for private and continual discussion with his or her
attorney. Telephonic, video or other hearings required to be public in courts of record
must be recorded, with the recording preserved for the record.
14. The Court recognizes that there are procedural issues in juvenile, dependency,
involuntary commitment, child support, and other matters that may not be encornpassed
in this Order. Nothing in this Order limits other interested parties in submitting similar
orders tailored to the unique circumstances of those rnatters and any other matters not
contemplated by this Order; however, parties are strongly encouraged to contemplate the
issues addressed in this Order. Nothing in this Order prevents courts froin following
specific emergency plans for such rnatters, including for involuntary commitments and
dependent and neglect matters.
15. All courts need to apply the provisions of § 1-6-105, MCA, that provide for the
use of declarations rather than requiring notarized affidavits in both civil and criminal
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matters. Attorneys are also allowed to make waivers and acknowledgments on behalf of
their clients.
16. Nothing in this Order limits the authority of courts to adopt measures to protect
health and safety that are more restrictive than this order, as circumstances warrant,
including by extending as necessary the tirne frames in this Order.
17. The Supreme Court may extend the tirne frarnes in this Order as required by
continuing public health emergency, and if necessary, will do so by further order. This
Order and other applicable emergency orders rnay be deerned part of the record in
affected cases for purposes of appeal without the need to file the orders in each case.
This Order shall be automatically extended if the Governor extends the shelter in place
directive issued on March 26, 2020.
DATED this Z-+ day of March, 2020.
For the Court,
Chief Justice
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