On April 3, 2020, in response to the ongoing COVID-19 pandemic, Chief Judge Mary Ellen Barbera of the Maryland Court of Appeals issued a trio of administrative orders. One of the orders—“Administrative Order on Tolling or Suspension of Statutes of Limitations and Statutory and Rules Deadlines Related to the Initiation of Matters and Certain Statutory and Rules Deadlines in Pending Matters”—is sure to catch the attention, and raise questions, for litigators across the state.
What Does the Order Say?
Under sections (a) and (b) of the order, effective March 16, 2020, “all statutory and rules deadlines related to the initiation of matters required to be filed in a Maryland state court, including statutes of limitations” and “all statutes and rules deadlines to hear pending matters, including but not limited to juvenile matters, shall be tolled or suspended … by the number of days that the courts are closed to the public.”
Section (c) provides that “such deadlines”—presumably, those referenced in sections (a) and (b)—“further shall be extended by a period to be described in an order by the Chief Judge of the Court of Appeals terminating the COVID-19 emergency period.”
Finally, section (d) of the order states that “[a]ny such filings made within the period to be described in (b),” meaning the time period starting March 16, 2020, and ending when the courts are reopened to the public, “shall relate back to the day before the deadline expired.”
What Is The Practical Impact For Civil Litigants?
On its face, the effect of the order is to toll the limitations periods applicable to causes of action that would otherwise expire during “the COVID-19 emergency period.” Thus, if Maryland’s general three-year statute of limitations applicable to a plaintiff’s breach of contract cause of action was set to expire on April 10, 2020, the order extends the limitations period “by the number of days that the courts are closed to the public.” If the courts are closed for 90 days, the cause of action must be filed on or before July 9, 2020. Under section (c) of the order, the expiration date may be pushed out even further depending on the order from the Chief Judge that terminates the COVID-19 emergency period.
The impact of section (d) is less obvious, but appears to be directed at amendments of pleadings adding parties to cases already in suit prior to March 16, 2020. Under the order, any amendment to a pleading that adds a party to a case, which amendment would otherwise be time barred by a statute of limitations or rule requiring an earlier amendment, is deemed to have been timely filed.
Questions Linger (And Will Likely Be Litigated)
Chief Judge Barbera’s order raises several questions that will likely be litigated in Maryland’s trial courts, and ultimately decided by the Court of Appeals, in the years to come. Perhaps the most obvious and important question is whether the order exceeds the Chief Judge’s authority?
The primary authority in support of Chief Judge Barbera’s authority to issue the order is Article IV, § 18 of the Maryland Constitution. This provision of the Maryland Constitution empowers the Court of Appeals to “adopt rules and regulations concerning the practice and procedure in and the administration of the appellate courts and in the other courts of this State, which shall have the force of law until rescinded, changed or modified by the Court of Appeals or otherwise by law.” Importantly, on March 16, the Court of Appeals adopted new Title 16, Chapter 1000 (“Emergency Powers of the Chief Judge of Court of Appeals”) which authorizes 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 … 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.”
First, while Chief Judge Barbera is unquestionably authorized to modify or suspend deadlines established by the Maryland Rules, the same may not be true of limitations periods established by the Maryland General Assembly. As with all statutes, in an appropriate case or controversy, the Maryland judiciary must construe the application of limitations periods set forth in the Maryland Code. Historically, the judiciary’s analysis of limitations issues has resulted in judicially created principles, such as the discovery rule, which directly impacts how limitations periods are calculated. Chief Judge Barbera’s order, however, goes much further, as it provides a blanket extension to limitations deadlines that have passed, or will pass, during the COVID-19 emergency period.
Second, under Rule 16-1003(a)(7), Chief Judge Barbera’s authority to modify deadlines extends only to situations “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.” Although the clerk’s offices of Maryland’s courts are currently restricted to emergency operations, the offices continue to accept filings, including case initiating documents. Moreover, one of the other orders issued by Chief Judge Barbera on April 3 acknowledges that electronic filings continue to be accepted in MDEC jurisdictions (all jurisdictions but Baltimore City, Prince George’s County and Montgomery County), and Chief Judge Barbera authorized the non-MDEC Courts to “make a virtual drop box available for filings during the COVID-19 emergency period.” Thus, while the COVID-19 situation seems to change on a daily basis, at this point, most, if not all litigants in Maryland are able to file pleadings and other papers. Thus, Chief Judge Barbera’s order may be premature under Rule 16-1003(a)(7).
Other questions raised by the order that will likely be litigated include:
- Subsection (a) applies to “all statutory and rules deadlines related to the initiation of matters required to be filed in a Maryland state court.” If a cause of action could be filed in federal court, or another state court, does the order apply to the applicable limitations period?
- Is the Chief Judge authorized to retrospectively revive causes of actions that already expired (i.e., between March 16 and April 3, 2020)?
- If the order is subsequently ruled ultra vires, what is the legal impact on litigants who can prove they relied upon the validity of the order to their detriment?
- How is the tolling period to be calculated? By the number of business days the courts were closed, or the number of days from start to finish (e.g. including weekends and holidays)?
- Does the order apply to deadlines to appeal administrative orders, or orders from the district court, to the circuit court?
- Does the order apply to a limitations period established by federal law or the law of another state?
Guidance During the COVID-19 Emergency Period
Given the uncertainty and questions raised by the order, current and would-be litigants in Maryland would be wise to continue to file pleadings and papers in Maryland’s courts under the deadlines that normally control (i.e., act as if the order does not exist). Plaintiffs should not rely on the order to wait to file causes of actions or amend their complaints to bring in new parties until the pandemic is over, and defendants should continue to raise limitations and other time-related defenses where appropriate. This is especially true in Maryland jurisdictions where filings continue to be accepted electronically or otherwise.
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