Delaware Largely Closes All Courts For 'Stay-At-Home' Order

By Jeff Montgomery
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Law360 (March 23, 2020, 5:16 PM EDT) -- Delaware's chief justice battened down the state court system's hatches Sunday, ordering most state court buildings closed to the public hours ahead of a COVID-19-driven statewide stay-at-home and nonessential-business-closing order, effective 8 a.m. Tuesday, by Democratic Gov. John Carney.

Chief Justice Collins J. Seitz Jr.'s order means delays for some cases and stepped-up reliance on video and teleconferencing proceedings for others, while keeping open a trio of state magistrate courts that handle criminal arraignments and emergency proceedings. But courthouse staffing was otherwise trimmed to cover only essential needs.

Delaware's courts already had been ratcheting down public access and exposure risks, with the state Supreme Court last week canceling oral arguments through May 1, and Superior Court canceling jury trials through April 15. Other nonessential proceedings in other courts were likewise postponed to no earlier than May 1.

"Despite these measures to reduce the traffic in our state courthouses, we have had several possible exposures which have been reported publicly," Chief Justice Seitz said in his announcement. "Given the escalating nature of the public health emergency, we needed to take further measures to protect the safety of the courts and our justice partners while keeping essential judicial functions operating."

One of the incidents involved a partial dismissal hearing in mid-March for a long-running stockholder challenge to Oracle's $9.3 billion acquisition of Netsuite. Not long afterward, an attorney who attended reported a possible exposure, prompting the closing of the Chancery Court's main courtroom in Georgetown for cleaning and a precautionary isolation.

Chancellor Andre G. Bouchard separately urged attorneys and litigants to keep in perspective a related order allowing orders for good cause extension of case schedules, including for Chancery Court, where schedules are usually stipulated among the parties in cases and on-the-fly changes can be disruptive.

"Our nation is confronting a crisis that has disrupted our daily lives and the normal operations of businesses, law firms, government institutions and other enterprises in unprecedented ways," the chancellor wrote on Sunday. "The reality is that many hearings and case schedules will have to be adjusted, perhaps multiple times."

Delaware's courts already had been postponing or bumping to conference calls or teleconference many of its routine in-court actions, with the Chancery Court stepping up significantly use of web-integrated Court Solutions teleconferencing that it began evaluating in 2018.

Jurists and attorneys in Delaware and across the country have responded in part by a light-speed shift toward tech solutions, including conference calling, video conferencing and other variations.

The Chancery Court earlier this month went all in with CourtSolutions, becoming part of a wave of adoptions that company founder and President Morris Massel, a former longtime restructuring attorney, said, "Our growth plan did not involve this kind of crisis, but it has given us an opportunity to step up in a very big way and many courts have turned to us rapidly because a lot of the bottlenecks that are involved in other systems don't exist with us."

Massel said CourtSolution's cloud-based system can rapidly scale up, although some bottlenecks could occur in some systems along the way because "the virtual world is not meant to accommodate the entire professional world being online all the time."

"There are obviously issues with open courts and people who cannot afford to pay fees to appear on the phone, especially in the bankruptcy courts," Massel said. "We're working with all the courts. While we certainly have constituents we answer to as a business, we recognize the critical nature of this service we're providing, so we're adapting, with the courts, to assist them."

Justice Seitz said in his order on Sunday that, for all court proceedings through April 15, when practical, courts will post time and dates of proceedings.

On Monday afternoon, the administrative office of Delaware's courts reported that the state's Family Court will continue to handle emergency requests for Protection from Abuse Orders, emergency child welfare, custody, visitation and guardianship matters, and limited adult criminal and juvenile delinquency matters.

"Temporary procedures have been adopted to make it easier to communicate and file remotely," the notice said.

Carney reported that the nonessential business closings will be based on each company's North American Industry Classification System code, with the least-restrictive code in multicode enterprises. Legal services are among the businesses permitted to remain open.

--Editing by Stephen Berg.

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