Maintaining Court Operations When Disaster Strikes: Emergency Powers

William Raftery, Senior Knowledge and Information Services Analyst, National Center for State Courts

What happens when a courthouse is rendered unusable following a man-made or natural disaster? Many states have started to grant special powers to chief justices and court leadership to help courts meet these challenges.

In the immediate aftermath of Hurricane Harvey, the Texas judiciary was faced with the potential of courts in and around Houston impacted, or outright underwater, for days if not weeks. While the Texas judiciary has faced its share of harsh weather and conditions before, the state’s two courts of last resort (the supreme court and court of criminal appeals) did have something relatively new in terms of their ability to handle the situation. Under a law enacted in 2009, the courts issued a joint order authorizing the state’s lower courts to modify or suspend court procedures affected by the disaster. The supreme court then separately issued an order, again citing the same 2009 law, to extend civil statutes of limitations. These orders reflect a change in policy and practice, first begun after September 11 and expanding after Hurricane Katrina, to provide state courts more explicit authority to move, modify, or even suspend their proceedings to address crises.

Tolling/Suspending Deadlines

In the days immediately following the September 11 attacks, the New York courts relied, at least in part, on the power of Governor George Pataki to address civil and criminal cases by suspending portions of the state’s civil practice laws and rules and criminal procedure law. He possessed this authority based on a statute that allowed the governor to “temporarily suspend specific provisions of any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency, if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster.”

Many states have now granted their chief justices, courts of last resort, or both the ability to address this issue without relying on a governor.

Moving Locations

When courthouses and the surrounding areas are simply incapable of being used, it may prove necessary to move the court’s operations out of the courthouse and perhaps even outside of the court’s normal geographic location, such as moving to a neighboring city or county. This was particularly an issue post-Hurricane Katrina. Since then, many states have granted chief justices, courts of last resort, or even local chief/administrative judges the ability to move courts, cases, or both.

State Examples

Connecticut HB 5539 (2010): Provides chief justice may take any action necessary in the event of a (as defined by statute) major disaster, emergency, civil-preparedness emergency, disaster emergency, or a public-health emergency to ensure the continued efficient operation of the supreme, appellate, and superior courts; the prompt disposition of cases; and the proper administration of judicial business. Such necessary action may include 1) establishing alternative locations to conduct judicial business in the event that one or more court locations cannot be used; 2) suspending any judicial business that is deemed not essential by the chief justice; and 3) taking any other appropriate action necessary to ensure that essential judicial business is effectively handled by the courts.

Delaware SB 25 (2009): Provides for the operation of the courts in the event of an emergency due to natural or man-made causes that destroys or severely damages one or more court facilities or severely impacts the ability to staff the courts. Grants the chief justice the authority to declare a judicial emergency when there are emergency circumstances affecting one or more court facilities. Provides the order declaring a judicial emergency shall be limited to an initial duration of 30 days, but may be modified or extended for additional 30-day periods. Provides chief justice may also 1) order that a court may operate in a county other than the county in which it is normally located; 2) extend statutes of limitations and time periods prescribed by statute as well as those time limitations prescribed by court rule or administrative directive, which the chief justice already has the authority to extend pursuant to his authority under Art. IV, Section 13 of the Delaware Constitution; 3) declare that specific proceedings not normally conducted by audiovisual device may be conducted in this manner (when such usage is not otherwise authorized by statute or court rule, an explanation of the compelling state interest in such usage shall be included in the order); and 4) take such other actions as the chief justice reasonably believes necessary for the continued operation of the courts during a judicial emergency. Provides that the host county shall be a proper venue for proceedings. Establishes provisions of this law shall preempt and supersede but not repeal any conflicting provisions of any other provision of law.

Georgia HB 1294 (2008): Allows chief justice to extend judicial emergencies beyond normal limitations if a public-health emergency exists. Emergency declaration may remain in place for as long as the public-health emergency exists.

Georgia HB 339 (2011): Revises the courts to which a challenge of a quarantine or vaccination order may be brought and manner of appealing orders concerning such challenges. Removes chief judge of the court of appeals’ power to declare judicial emergencies. Provides that extensions of judicial emergencies by chief justice may only last as long as the governor has declared a state of emergency.

Hawaii HB 1983 (2006): Provides during a period of civil-defense emergency proclaimed by the governor that the chief justice shall be authorized to order the suspension, tolling, extension, or granting of relief from deadlines, time schedules, or filing requirements imposed by otherwise applicable statutes, rules, or court orders, in civil or criminal cases or administrative matters, in any judicial circuit affected by the governor’s proclamation. Provides chief justice shall determine the judicial circuits so affected.

New Hampshire SB 370 (2008): Grants the chief justice of the supreme court the power to enter orders to suspend, toll, or otherwise grant relief from time deadlines imposed by statutes and rules of procedure, for a 21-day period, in the event of a declared state of emergency. Permits the legislature to terminate such orders by concurrent resolution.

New York AB 6921/SB 2849 (2009): Repeals most existing law related to judicial emergencies. Provides if a court location is unsafe or impractical for the holding of a trial court, then the governor may by order appoint another place for the temporary holding of court after consulting with the chief judge or his or her designee if practicable. Provides that for the court of appeals and for trial courts where the governor has not acted, the relocation power would fall to the chief judge. Provides for intermediate appellate courts (i.e., appellate division and appellate terms of supreme court) that the relocation power would fall to the presiding justice of the appellate division after consulting with the chief judge or his or her designee. Provides all temporary relocations must be to the most proximate place that the term of court safely and practicably can preside, and should be consistent with applicable state and local disaster-preparedness plans. Provides for trial courts, temporary relocations must be after consultation with relevant local leaders (e.g., county executives or mayors) if practicable. Provides that relocation orders would expire within 30 days but could be renewed for successive periods of 30 days each in like fashion as an original order. Provides regardless where a court temporarily sits, the court would continue to preside on behalf of its original jurisdiction (i.e., judicial department, judicial district, county, city, etc.) and the same substantive and procedural laws (e.g., governing venue, jury selection, papers, and appeals) would apply as if the court were not relocated. Provides if a court is relocated temporarily outside its original jurisdiction, then facility costs would not be borne by the receiving locality but instead would become state costs charged to the Office of Court Administration. Memorializes the chief judge’s emergency relocation powers as provided above. Recognizes the continuing obligation of the state disaster-preparedness commission and local disaster-preparedness commissions to ensure that the disaster-preparedness plans for which they are responsible take appropriate account of the provisions of this measure. (See also AB 10616/SB 6900 of 2008.)

North Carolina HB 1269 (2009): Allows courts to be closed for “catastrophic conditions” and defines the term. Allows chief justice to extend certain deadlines for “catastrophic conditions” and to issue any emergency directives necessary to ensure the continuing operation of essential trial or appellate court functions for 30 days, subject to 30-day renewals.

North Dakota HB 1073 (2013): Grants supreme court power to declare judicial emergencies. Allows for supreme court to toll statutes/deadlines. Does not allow for tolling or extension of deadlines or requirements imposed by U.S. or North Dakota constitution.

Ohio HB 290 (2014): Provides that, in the event of a natural or man-made disaster, civil disorder, or any extraordinary circumstance that interrupts the orderly operation of a municipal court, county court, court of common pleas, or court of appeals, the administrative judge may issue an order authorizing the court to operate at a temporary location.

Oregon HB 2322 (2007): Provides chief justice may designate locations in the state for the sitting of circuit courts in the event of an emergency and that such locations designated need not be in the circuit court’s judicial district.

Oregon SB 270 (2009): Grants chief justice power to establish procedures for closing courts in emergencies and to establish standards for determining when courts are closed for purposes of ORCP 10, ORS 174.120, and other rules and laws that refer to periods of time when courts are closed.

South Dakota HB 1093 (2007): Allows chief justice to suspend, toll, extend, or otherwise grant relief from deadlines, time schedules, or filing requirements imposed by otherwise applicable statutes, rules, or court orders, whether in civil cases, criminal cases, administrative matters, or any other legal proceedings as determined necessary.

Tennessee SB 3660/HB 3060 (2008): Specifies that if an appellate court declares a disaster pursuant to applicable court rules, then all statutes of limitation and repose will be extended by the same number of days that the applicable filing deadlines are extended with deadlines to be extended only in the county in which disaster is declared.

Texas HB 1861 (2009): Authorizes the Supreme Court of Texas to modify or suspend procedures for the conduct of any court proceeding affected by a disaster during the pendency of a disaster declared by the governor and sets forth contingencies that provide for such action by another court or judge if a disaster prevents the supreme court from acting. Authorizes the local rules of administration that must be adopted by district and statutory county-court judges in each county to provide for a coordinated response for the transaction of essential judicial functions in the event of a disaster. Includes as a purpose of the Texas Disaster Act of 1975 clarifying and strengthening the role of the judicial branch of state government in prevention of, preparation for, response to, and recovery from disasters.

Virginia HB 883/SB 127 (2010): Sets out a procedure for the supreme court to follow in entering an order declaring a judicial emergency when there is a disaster as defined in the Commonwealth’s Emergency Services and Disaster Law. Permits the judicial emergency order to suspend, toll, extend, or otherwise grant relief from time limits or filing requirements in any court affected by the order and allows designation of a neighboring jurisdiction as proper venue for civil and criminal.

Reports are part of the National Center for State Courts' "Report on Trends in State Courts" and "Future Trends in State Courts" series.
Opinions herein are those of the authors, not necessarily of the National Center for State Courts.