COVID-19 and the Massachusetts Courts

For the last two weeks, you, your neighbors, your town, the Commonwealth of Massachusetts, the United States and almost the entire world has been dealing with the COVID-19 (the “novel” Carona virus). Because you or someone you know may have a case in the Massachusetts Courts (or may be contemplating sch an action) you may be wondering what the Courts are doing in the wake of the global pandemic. The Massachusetts Courts – including the Probate and Family Courts – have taken actions that you need know about especially if they have a case in the courts or if they are simply contemplating one.

On Friday, March 13, The Massachusetts Supreme Judicial Court (SJC) issued two orders. The first was suspending all future jury panels until April 21. This order had little effect on the Family Courts, but it did signal how seriously the courts were taking the possible pandemic. The second order stated that persons who have symptoms of, or any exposure to, COVID-19 may not enter a courthouse or other state court facility until the SJC determines that it is safe to remove the restrictions (likely no earlier than May 1). Persons attempting to enter a courthouse or other state court facility in violation of this order would be denied entry. This order remains in place and bars anyone coming to court who has COVID-19; has symptoms of COVID-19, has had contact with a person either diagnosed with or having symptoms of COVID-19, or has been to a country that has had a wide-spread outbreak (at the time, China, South Korea, Iran, Japan and Italy).

On Saturday, March 14, in conjunction with the other trial courts in the Commonwealth, the Probate and Family Court issued “Standing Order 1-20” which stated, among other things, that beginning March 18:

- Whenever practical and possible, the Court shall conduct hearings by telephone or video-conference rather than having people appear in person or rescheduling event dates and that motions, case management conferences, and status conferences that were already scheduled between March 18, 2020 and May 1, 2020 would be heard by telephone or video-conference.

-Cases scheduled for pretrial conferences between March 18, 2020 and May 1, 2020 would be reviewed and with consultation from the judge assigned to the particular case, a determination would be made as to whether the pretrial conference should be heard via teleconference or postponed. - Trials already in progress will proceed. Trials that have yet begun will be continued beyond May 1, 2020.

- Complaints for modification seeking an increase or reduction in child support and/or alimony will be continued beyond May 1, 2020.

- Temporary orders of appointment in guardianship and conservator cases that expire between March 18, 2020 and May 1, 2020 will be administratively extended for 60 days from the expiration date unless contested.

-Restraining Order Cases will be unaffected whenever possible.

Then on Monday, March 16, the Trial Courts of the Commonwealth of Massachusetts announced that they would close all court houses for that day and Tuesday March 17 to accommodate the Governor’s State-of-Emergency order. The courts (except in emergency cases) have yet to reopen to the public.

On March 17 the SJC ordered all courts closed to the public (outside of true emergencies) until at least April 7. All matters that can be done via teleconference or video conference will still go forward. However, as a practical matter few cases have gone forward by video conferencing.

Later that evening, the Probate and Family Court ordered that not only would all its courts be closed until April 7, but that anything scheduled between now and May 1 would be continued until after May 1, including anything filed between the date of the Order (march 17) and May 1. Therefore, the earliest anyone could reasonably be expected to be heard in the Probate and Family Courts in Massachusetts would be after May 1, barring a true emergency. While the order did say that "Whenever practical and possible, the Court shall conduct hearings by telephone or video-conference rather than having people appear in person or rescheduling event dates," the order did not make any further description of any events (other than Restraining Orders) where video or teleconferencing would take place. The order does identify matters that would constitute an "Emergency" and they are, predictably, very limited and extend only to cases where the immediate health and well-being of a party or a child is in serious jeopardy; “Do Not Resuscitate” orders; certain petitions seeking appointment of a temporary guardian or conservator; and petitions for marriage without delay, to name a few. However, by-in-large, almost all cases the court would normally handle would not be heard until after May 1.

I have read an email from a fellow attorney that illustrates what is going on in the courts. This attorney called Essex Probate and Family Court in Salem. He said that “ … the doors are locked, the glass doors between the metal detectors and the Registry are locked, and the metal gate between the seating area and the Registry is down. Nothing – and I mean nothing – is being scheduled and if you have an absolute emergency, you have to bring all your paperwork to the Court, place it in a bin in front of the doors, call someone inside, and they will come and get it and bring it inside while you stay outside. If an emergency hearing is allowed (and an emergency is basically being defined as life or death at this stage, or legitimate safety of children), the parties will be brought inside. Other than that, nothing is going to be heard for the next several weeks…” For better or worse the Family Courts of Massachusetts are effectively closed until April 7 and may be for some time after that.

This leads to a few questions.

First, what do you do if you did have a case in the Probate and Family Court with a hearing between now and May 1? As unsatisfying as it may be, the answer is that you will have to wait. The court will continue your case and issue a new date on or after May 1 and will notify you or your lawyer of the new date.

Second, what if your case is already scheduled but after May 1? This is uncertain as of now. The court could either continue those cases further down the line (ostensibly to make room for all the cases it rescheduled between March 18 and May 1) or it could keep them on the schedule. The advice here is, again, wait and see what the court does.

Third, what if you are contemplating filing an action but have not done so yet; should you file or wait? Here, I must stress that you, as a litigant, gain very little by filing first, especially now where the courts will not take any action (barring an emergency or a Restraining Order) until after May 1. Therefore, I think now is an ideal time to plan out your case carefully. I suggest that if you have not done so already, you should find an attorney and work with them. Right now, most attorneys are not rushing to court and therefore can dedicate time for a phone call to work on your case. Also, if possible, you could try to set aside some money to pay your attorney given that most action will not take place until May 1. Finally, you can discuss with your attorney what may need to be done on or after May 1 and work on those goals accordingly.

Finally, you may ask, what do you do if you have a real emergency? Here, I must stress that what you and I may consider an “emergency” may be vastly different that what the courts would. As stated above, the courts are taking a very narrow view of an “emergency” and appear to have limited it to matters that require immediate attention to protect the health and well-being of a party or child that is immediately threatened. Very few cases would meet this standard. Therefore, you (and your attorney) should be very careful before trying to declare such an action an “emergency.” You could go to court and have a clerk declare your matter not an emergency, without a hearing. You could end up spending a lot of time and money preparing a Motion that will not be heard until after May 1.

However, if your case is an emergency, you should speak to your lawyer immediately and prepare all the materials you need to, much of which will be dedicated to identifying to the court why your case is an emergency (medical records and your own testimony). Your attorney and you would go to court and speak with a clerk who would, on their own, decide if your case constitutes an emergency. Then, if that clerk decides your case is an emergency, your case would be heard before a judge.

Judge Learned Hand famously suggested that there should be a commandment, "Thou shalt not ration justice." In this time of social distancing, self-quarantines and stressful worries of a global pandemic, there is no question that our justice is being rationed. This is frustrating especially when people seeking redress by the courts are being told it is for their own good. My suggestion is that if you can, speak with your attorney (and if you do not have one try finding one); plan out your next steps and then once the rationing period is over go forward with this case in the hopes that, like everyone else in your state, country and planet, you can move on.