|Updates:||Issued October 5, 2020, effective October 5, 2020|
Replaces Standing Order 9-20. Rescinds Standing Order 9-20 effective October 5, 2020.
As Chief Justice of the Boston Municipal Court Department, I issue the following Standing Order pursuant to my authority under G.L. c. 211, § 10, G.L. c. 218, § 38, and G.L. c. 220, § 5, as well as the Supreme Judicial Court’s Fourth Updated Order Regarding Court Operations Under the Exigent Circumstances Created by the COVID-19 (Coronavirus) Pandemic (issued September 17, 2020, effective September 17, 2020) (SJC’s Fourth Updated Order),1 to allow for the progression of cases while continuing to limit the number of people coming into Massachusetts state courthouses.
This Standing Order shall REPLACE Boston Municipal Court Standing Order 9-20 (issued on August 6, 2020, effective August 10, 2020), which Order is rescinded on October 5, 2020 when this Order shall take effect.2
The Divisions of the Boston Municipal Court shall continue to be physically open to the public for certain purposes, as generally outlined in this order, and operated with regard for the health and safety of court users and personnel, in accordance with the protocols established by the Supreme Judicial Court, Executive Office of the Trial Court and this Order. In order to limit the number of persons entering the courthouses, all matters shall proceed virtually except those specifically designated to proceed in-person pursuant to this Order. Any court rule that impedes a judge’s or court clerk’s ability to utilize available technologies to limit in-person contact is suspended for the duration of this Order.
i. Courthouse Access: Courthouse access shall continue to be permitted subject to the limitations prescribed in the SJC’s Fourth Updated Order (issued September 17, 2020, effective September 17, 2020), the Trial Court’s health and safety protocols, and the provisions of this Order.
ii. In-Person Courtroom Access: Court personnel, parties to cases, witnesses, attorneys, summonsed or empaneled trial jurors and any other person as determined necessary by the presiding justice shall be permitted courtroom access for those matters held in-person pursuant to this Order.
iii. Virtual Hearing Access: No party or attorney for a party may be present in the courtroom during a hearing where all participants appear virtually in the absence of exceptional circumstances as determined by the presiding justice. Phone lines and webpages used for virtual hearings shall only be accessed by the participants to the virtual hearing. Members of the public may access court hearings remotely by dialing the public teleconference line listed on each BMC Division’s mass.gov webpage.
i. Mandatory: Upon the effective date of this Order, the following matters shall proceed with the defendant or respondent appearing in-person:
a. arraignments following arrest, regardless of custodial status;
b. motions to revoke bail or conditions of release;
c. motions for pretrial detention pursuant to G.L. c. 276, § 58A;
d. warrant removal hearings;
e. motions for return of bail;
f. probation detention hearings;
g. criminal bench trials for defendants in custody; and
h. hearings on petitions pursuant to G.L. 123, §§ 12(e) and 35.
ii. Permissive: The following matters may proceed with the defendant appearing in-person in the court’s discretion:
a. summons arraignments;
b. plea and admission hearings; and
c. final probation violation hearings for defendants in custody.
iii. Motions for Virtual Hearing or Appearance: If a matter is scheduled to proceed with the defendant or respondent appearing in-person, any party may move that the hearing be conducted virtually, and the judge or clerk-magistrate scheduled to preside at the hearing will rule on the motion. Alternatively, a judge, may authorize an individual participant (an attorney, party, or witness) in a matter scheduled to proceed with the defendant or respondent appearing in-person pursuant to this Order to appear virtually while other participants appear in-person, so long as it is consistent with the protection of constitutional rights. A participant who requests to appear virtually for an otherwise in-person proceeding shall have no grounds to object to other participants appearing in-person.
iv. Public Access: The method by which the public and “news media”, as defined by Supreme Judicial Court Rule 1:19(2), may access the proceeding shall be determined by the presiding justice.
The Clerk Magistrate of each division shall commence scheduling all proceedings related to all matters not proceeding in-person pursuant to this Order, which shall proceed virtually. These matters shall include, but are not be limited to, the following:
i. criminal pre-trial hearings and discovery compliance and election hearings;
ii. criminal motion hearings;
iii. criminal probable cause hearings;
iv. criminal show cause hearings;
v. civil motor vehicle infraction hearings;
vi. small claims hearings;
vii. summary process hearings, when permitted4 to proceed;
viii. all events, including bench trials, in all civil cases, other than jury trials.5
All protection order proceedings , including ex parte hearings and extension hearings, shall be conducted with all participants appearing virtually unless otherwise ordered by the court. An in-person hearing may be permitted by a judge if requested by one or more of the parties, or as ordered by a judge after considering all relevant factors, including but not limited to the positions of the parties, case scheduling constraints, building and courtroom occupancy limits, physical distancing accommodations, and COVID-19 related concerns.
Specialty court matters may be conducted in-person if it is in the best interest of the participant. Judges presiding over specialty court matters shall have the discretion to and to permit participants to attend such sessions by videoconference or teleconference. All staffing meetings for all specialty court matters shall continue to be conducted virtually.
In the event these matters occur virtually, they shall only proceed 1) with the approval of the presiding justice; 2) via videoconference; 3) upon written motion of the defendant accompanied by an affidavit signed by the defendant and his/her attorney affirming that they have consulted and defendant has been advised of his/her rights; and 4) after a colloquy is conducted with the defendant which includes that the defendant is knowingly, intelligently, and voluntarily waiving their right to physical presence, agreeing to the use of videoconferencing for the hearing, and that the COVID-19 pandemic has not unduly influenced the decisions made in connection with their case.
Upon approval of the presiding justice, virtual evidentiary criminal matters, shall only proceed after 1) the parties file a conference report agreeing to proceed by videoconference and accompanied by an affidavit signed by the defendant and his/her attorney affirming that they have consulted and defendant has been advised of his/her rights; 2) a colloquy is conducted with the defendant to ensure the defendant is knowingly, intelligently, and voluntarily waiving their right to physical presence, agreeing to the use of videoconferencing for the hearing, and that the COVID-19 pandemic has not unduly influenced the decisions made in connection with their case; and 3) all parties to the hearing, including the defendant, can participate via videoconference.
Bench trials in civil cases shall only proceed where all participants appear by videoconference and only when the parties agree to do so in writing, and the presiding justice agrees, that the case can be decided virtually without the need for in-person appearance in court, pursuant to this order.
Procedures relating to the resumption of jury trials will be set forth in a separate Standing Order.
i. Clerk’s Offices: Clerk’s offices will remain open to the public to conduct court business and accept all legally permissible filings in all matters, in accordance with limitations and health and safety protocols established by the Supreme Judicial Court and the Executive Office of the Trial Court to protect public health and allow for physical distancing. Each clerk is authorized to require the physical presence of such staff as may be necessary to address court business, provided that any increase in staff presence will be conducted in accordance with health and safety protocols established by the Supreme Judicial Court and the Trial Court. To continue to limit the number of persons entering courthouses, clerk’s offices will still endeavor to conduct business virtually. Clerk’s offices shall provide a drop box in a secure and accessible location for any pleadings or other documents that court users wish to hand-deliver. Clerk’s offices shall continue to use and monitor the dedicated emails set up for each Division at bmc [court division name]@jud.state.ma.us. Any document that may be filed through the Tyler eFile application should not be sent to the court dedicated email addresses. Any document filed electronically shall be served on all parties, as well as the probation service for criminal matters, electronically when possible.
ii. Motions Based on Continuances: Where a trial or evidentiary hearing is postponed as a result of this Order, or any prior BMC Standing Orders, the parties may file a motion seeking a conference with the court to address matters arising from the postponement by motion to the court where the event was supposed to occur. Any hearing on such motion shall be conducted virtually over videoconference or telephonic conference.
iii. Court Recordings: Judges and Clerks shall ensure that all videoconferences or telephonic conference are recorded to the extent practicable.
iv. Electronic Signatures: All court documents, other than search warrants, may be signed electronically by any party to be accepted for filing. Electronic signatures may take the form of either a scan of an individual’s handwritten signature, an electronically inserted image intended to substitute for a signature, or a “/s/ name of signatory” block. Such electronic signature shall have the same force and effect as if the person had affixed his or her original signature to a paper copy of the document so signed.6 If a party has a good faith basis to believe that an electronic signature was not authorized by the attorney, self-represented party, or other person whose signature it purports to be, a challenge may be raised promptly by way of motion. If the motion has merit, the court may, among other things, strike the challenged document and/or direct that it be served or filed again with an original handwritten signature.
v. Media Access: Courts shall allow media access for both in-person and virtual hearings consistent with Supreme Judicial Court Orders in OE-144 and this Order.
vi. Cell Phones: Cell phones and other personal electronic devices, as defined in the SJC’s Fourth Updated Order, shall be permitted in courthouses in accordance with the Trial Court Emergency Administrative Order 20-10: Order Concerning Trial Court Policy on Possession & Use of Cameras & Personal Electronic Devices.
vii. Other Matters: This Order does not prevent any court’s consideration of any matter that can be resolved virtually in the discretion of a presiding justice so long as it is consistent with current Orders of the Supreme Judicial Court, Trial Court, and Boston Municipal Court as well as any constitutional protections.
viii. Speedy Trial Computations: Pursuant to Mass. R. Crim. P. 36, I find that the basis for the continuances occurring based on this Order, and all prior court COVID-19 standing orders, are in the best interests of the ends of justice and outweigh the public’s and the defendant’s interest in a speedy trial. Therefore, the time periods of such continuances shall be excluded from speedy trial computations under Mass. R. Crim. P. 36.
Any deviation from this Order must be sought from the Chief Justice of the Boston Municipal Court.
This Order is effective October 5, 2020 and shall remain in effect until further order of this Court.
This Standing Order shall be posted on the judiciary's "Court System Response to COVID-19" mass.gov webpage, which is located at https://www.mass.gov/guides/court-system-response-to-covid-19.