|Updates:||Issued August 6, 2020, effective August 10, 2020|
Replaces Standing Order 8-20. Rescinds Standing Order 8-20 effective August 10, 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 Third Updated Order Regarding Court Operations Under the Exigent Circumstances Created by the COVID-19 (Coronavirus) Pandemic (issued June 24, 2020, effective July 1, 2020) (SJC’s Third 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REPLACE Boston Municipal Court Standing Order 8-20 (issued on June 24, 2020, effective July 13, 2020), which Order is rescinded on August 10, 2020 when this Order shall take effect.2
The Divisions of the Boston Municipal Court shall continue to be open to the public subject to the limits, including, but not limited to, occupancy limits and health and safety protocols imposed by the Supreme Judicial Court, Executive Office of the Trial Court and this Order. All matters, other than jury trials, that do not occur in-person pursuant to Section I.B. shall occur virtually. Any Court rule, criminal or civil, 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 be permitted subject to the limitations prescribed in the SJC’s Third Updated Order, the Supreme Judicial Court’s Third Order Regarding Public Access to State Courthouses and Court Facilities (issued July 29, 2020, effective August 3, 2020), the limitations and protocols established by the Trial Court to protect the health and safety of the public and court personnel and allow for physical distancing, and the provisions of this Order. In the event courthouse capacity reaches occupancy limits, access to the courthouses shall be granted based on the priority as established in the Supreme Judicial Court’s Third Updated Order: a) persons seeking to address emergency matters;3 b) persons participating in a scheduled in-person proceeding; c) persons with a scheduled or otherwise required meeting with probation; and d) persons having a scheduled appointment within the courthouse.
ii. Courtroom access: Physical access to the courtrooms shall be permissible for court personnel, parties to cases, witnesses, attorneys and any other person as determined necessary by the presiding justice for those matters held in-person pursuant to Section I.B.. For such in-person hearings, the presiding justice will determine the method by which the public and “news media,” as defined by Supreme Judicial Court Rule 1:19(2), may access the proceeding including through virtual means. If a matter is being conducted virtually, no party or attorney for a party may be present in the courtroom in the absence of exceptional circumstances as determined by the presiding justice. If a matter is conducted in-person, a judge, upon a showing of good cause related to the COVID-19 pandemic, may authorize a participant (an attorney, party, or witness) 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.
The following in-person matters shall proceed subject to Trial Court occupancy limits and health and safety protocols. The matters listed below are subject to change. Any changes will be posted by notices to the judiciary’s COVID-19 webpage pursuant to paragraph 3 of the Supreme Judicial Court’s Third Updated Order.
i. The following matters shall take place in-person:
a. arraignments for cases where the defendant is in custody;
b. motions for pretrial detention pursuant to G.L. c. 276, §58A;
c. warrant removal hearings;
d. motions for return of bail;
e. probation detention hearings and stipulated final probation violation hearings;
f. plea and admission hearings; and
g. hearings on petitions pursuant to G.L. 123, § 35.
All such proceedings, including ex parte hearings and extension hearings, shall be conducted virtually unless otherwise ordered by the court. Virtual hearings shall be conducted by videoconference, unless a videoconference hearing is not practicable, in which case the hearing may proceed by telephone conference. 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. In determining whether to permit an in-person hearing to occur, the judge should take into consideration all relevant factors, including but not limited to the positions of the parties, case scheduling constraints, building and courtroom occupancy limits, and physical distancing accommodations.
Specialty court matters may be conducted in-person if it is in the interest of the participant achieving the goals of the specialty court. Judges presiding over specialty court matters shall have the discretion to stagger in-person court appearances by date and time 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; 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, including bench trials, 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;
All show cause hearings currently scheduled or filed between March 18, 2020 and September 4, 2020, that are not able to occur virtually shall be CONTINUED to the first business day no less than 60 days from the date of the scheduled event, or to a date by agreement of the parties and the respective Clerk’s Office,;
Summons arraignments scheduled after March 18, 2020 that are not able to occur virtually, shall be CONTINUED to the first business day no less than 60 days from the date of the scheduled event, or to a date by agreement of the parties and the respective Clerk’s Office;
A person arrested on a new complaint, or any warrant, and released on bail by the bail magistrate shall be scheduled to appear for arraignment as soon as practicable as directed by the bail magistrate, but in any event not more than 30 days following arrest;
Bench trials in civil cases shall be heard via videoconference where the parties agree in writing, and the court agrees, that the case can be decided virtually without the need for in-person appearance in court, pursuant to this order;
All jury trials scheduled between March 13, 2020 and September 4, 2020 shall be CONTINUED to a date no earlier than September 8, 2020;
All other matters scheduled for an event or filed, between March 18, 2020 and September 4,2020, that are not able to be heard pursuant to this Order, shall be CONTINUED to the first business day no less than 60 days from the date of the scheduled event, or to a date by agreement of the parties and the respective Clerk’s Office.
i. Clerk’s Offices: Clerk’s offices will remain open to the public, 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, to conduct court business and accept all legally permissible filings in all matters. To continue to limit the number of persons entering courthouses, clerk’s offices will still endeavor to conduct business virtually to the extent possible. 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 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 BMC Standing Orders 1-20,3-20, 4-20, 6-20, 7-20, or 8-20 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.4 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 Third 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 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 August 10, 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.