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Chief judge would get emergency powers under proposed rule

Court of Appeals Chief Judge Mary Ellen Barbera. (File photo)

Court of Appeals Chief Judge Mary Ellen Barbera. (File photo)

ANNAPOLIS – Maryland’s top judge would be given sweeping emergency authority to have cases moved to other courthouses or, if necessary, to any suitable and available building under a proposal the state Judiciary’s rules committee will consider Friday in response to the COVID-19 pandemic.

Court of Appeals Chief Judge Mary Ellen Barbera would also have the authority to suspend set or judicially ordered deadlines under the proposal before the Standing Committee on Rules of Practice and Procedure.

If the panel approves the proposal, the Court of Appeals could vote early next week on bestowing the broad authority. The authority would apply if the Maryland governor declares an emergency or when a natural or other disaster “significantly disrupts” access to the courts, other judicial facilities or the Judiciary’s ability to operate effectively.

“The governor has long had both constitutional and statutory authority to deal with public emergencies, whether caused by natural events, infectious disease, or rioting or insurrection, and governors have exercised that authority when conditions warranted,” wrote Alan M. Wilner, the committee’s chair, in a memorandum accompanying the proposal.

“One gaping hole in this is the lack of rules delineating the authority of the chief judge of the Court of Appeals as the constitutional administrative head of the Maryland Judiciary, to direct and coordinate the Judiciary’s response to public emergencies of any kind, whether due to widespread disease, natural events, or rioting or insurrection,” wrote Wilner, a retired Court of Appeals judge. “The challenges to judicial operations from any of those kinds of emergencies can be devastating, as judicial facilities become inaccessible or unusable, personnel becomes unavailable and transportation and communications are disrupted, yet for public safety purposes and the protection of civil rights, judicial operations need to continue to the extent possible.”

Courthouse operations in Maryland have been largely unaffected by the pandemic. However, many private companies in the state have directed their employees to work remotely, Maryland universities are preparing to hold classes online and Gov. Larry Hogan is having regular news conferences on his administration’s efforts to contain the spread of the virus

“We need to be prepared or at least have a structure that can deal with this,” Wilner said Thursday. “You hope that we would never have to have these rules but we can’t take a chance.”

The committee’s proposal would enable the chief judge to “transfer cases pending in a court that becomes inaccessible or otherwise unusable to any other court having subject matter jurisdiction over the case (and to) permit cases to be filed in any court having subject matter jurisdiction where no court with venue is reasonably accessible or otherwise usable, subject to transfer when the emergency ends.”

For example, the chief judge could order a lawsuit moved from Baltimore City Circuit Court to Howard County Circuit Court, though the parties live in Baltimore and the event that sparked the litigation occurred in the city. The chief judge could also permit courts to operate in available facilities not designated as courthouses.

The proposed emergency rule would also enable the chief judge to “suspend, toll, extend, or otherwise grant relief from time deadlines, requirements, or expirations otherwise imposed by applicable statutes, rules, or court orders, including deadlines for appeals or other filings, deadlines for filing or conducting judicial proceedings, and the expiration of injunctive, restraining, protective, or other orders that otherwise would expire, where there is no practical ability of a party subject to such deadline, requirement, or expiration to comply with the deadline or requirement or seek other relief.”

The chief judge would also have the authority to “take any other appropriate action necessary to ensure that, to the maximum extent possible, essential judicial business is effectively handled by the courts.”

The rules committee is scheduled to meet Friday morning in Annapolis.

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