High court approves emergency powers for chief judge in pandemic

ANNAPOLIS – Maryland’s top court Monday unanimously approved COVID-19 pandemic-inspired rules that immediately gave its chief judge sweeping emergency authority to have cases moved to other courthouses or, if necessary, to any suitable and available building.

Court of Appeals Chief Judge Mary Ellen Barbera also has the authority to suspend set or judicially ordered deadlines under the rules drafted by Maryland Judiciary’s Standing Committee on Rules of Practice and Procedure, known as the Rules Committee.

The chief judge’s authority applies if the Maryland governor declares an emergency or when a natural or other disaster significantly affects access to the courts, other judicial facilities or the Judiciary’s ability to operate effectively.

“These are challenging times for each of us,” Barbera said after the high court’s 7-0 vote. “One needs to seize the moment and get the job done as best we can.”

The Court of Appeals’ approval of the emergency rules put the imprimatur on Barbera’s administrative order, issued late Friday, that Maryland courts be closed to the public for a three-week period that began Monday.

Courts will remain staffed for emergency matters and personnel are to report to work as usual under the order. Emergency matters include domestic violence petitions, bail reviews, juvenile detention and shelter hearings, and search warrants. Judges are authorized to use electronic means to conduct legal proceedings when possible, the order stated.

Under the new emergency rules, the chief judge can “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 rules also empower 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 also has 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.”

Alan M. Wilner, chair of the Rules Committee, told the high court before its vote that “it is unfortunate that we need to be here” amid a pandemic.

“We need to do all that is possible to make sure our courts remain functional and accessible,” Wilner said.

“The thrust of these rules is to keep courts open when possible” but to enable the chief judge to close them if necessary, added Wilner, a retired Court of Appeals judge.

Before the high court’s vote, Judge Michele D. Hotten suggested that she and her colleagues add language to the rule making it clear that the chief judge would consult the administrative judge of a circuit court before making a decision affecting that court’s operations.

Judge Brynja M. Booth said such language would be unnecessary because consultation with the administrative judges is implicit in the rule.

Barbera said her practice has always been to have such consultations, especially during the COVID-19 crisis.

“There have been multiple conversations” with administrative judges, Barbera said.

Wilner said the high court could adopt the rules and add supplementary language later specifically addressing consultation with administrative judges – a suggestion Barbera welcomed in light of the court’s desire to quickly adopt the emergency rule.

“I would suggest that we work expeditiously,” Barbera said before calling for the final vote.