MSBA’s Rules of Practice Committee follows the proceedings of the Maryland Supreme Court’s Standing Committee on Rules of Practice and Procedure (hereafter, “Rules Committee”), provides updates to MSBA section chairs and MSBA members on the work of the Rules Committee and its subcommittees so that they may provide input during the rule-making process, participates in discussions and meetings with the Rules Committee and its subcommittees regarding proposed changes to existing rules or creation of new rules, reviews suggested amendments, identifies relevant issues, prepares comments, and serves as the liaison between the MSBA and the Judiciary. 

Here the MSBA provides an update to our members regarding Maryland rules and procedures, upcoming Rules Committee meetings, and deadlines for comments.

On September 7, 2023, the Judiciary’s Rules Committee held an open meeting to consider the following proposed rule changes:

1. Recommendations from General Court Administration Subcommittee

Rule 16-934 (Case Records – Court Order Denying or Permitting Inspection Not Otherwise Authorized by Rule)

• The Committee approved proposed amendments to require service on subjects of a case record only where the petition is to permit inspection of an otherwise shielded record.

Rule 1-322 (Accommodation Under the Americans with Disabilities Act)

• Amendments to Rule 1-322 were recently suggested in the Report and Recommendations of the Maryland Committee on Equal Justice Rules Review Subcommittee.
• The Rule is renamed to more broadly address accommodations for persons with disabilities instead of only accommodations under the Americans with Disabilities Act.
• The Committee approved proposed amendments defining “accommodation,” defining “person with a disability,” addressing sign language interpreter requests, addressing the determination of a request for accommodation, the authority to determine a request, general factors to consider a request, and requiring submission of an annual report to the State Court Administrator and publication of certain data on the Judiciary website. Committee members discussed the referral process to legal services providers for impacted litigants.

2. Recommendations from the Appellate Subcommittee

Rule 8-303 (Petition for Writ of Certiorari – Procedure)

• The Committee approved proposed amendments permitting fee waivers for petitions by unrepresented incarcerated or institutionalized petitioners at the time of filing, with the court permitted to later order petitioners to pay the fee or assess costs later if petitioner is not indigent.

Rule 8-511 (Amicus Curiae)

• The Committee approved proposed amendments suggested by an appellate practitioner to clarify the practices around copies of an amicus brief. Because appellate actions are electronically filed in MDEC, the proposed amendments require the motion and brief to be filed but do not require paper copies to be served unless the court grants the motion to accept the brief.

3. Recommendations from the Juvenile Subcommittee

Proposed New Rule 11-420.2 (Safe Harbor – Victims of Child Sex Trafficking and Human Trafficking)

• The Committee approved proposed new Rule 11-420.2 that implements Chapter 686/687, 2023 Laws of Maryland (SB 292/HB 297).  The statute generally prohibits a minor from being criminally prosecuted or the subject of a delinquency petition for certain offenses if the alleged act was committed as a direct result of the child being a victim of sex trafficking or human trafficking.
• This “safe harbor” legislation creates new Code, Courts Article, § 3-8A-17.13 and places certain duties on the court, including requiring a stay of proceedings, referral for services, and a determination by the court as to whether the child was a victim of trafficking and the child’s actions were a direct result of being trafficked. The proposed new rule also addresses use of statements or information from the child at later proceedings.

4. Recommendations from the Criminal Rules Subcommittee

The Criminal Rules Subcommittee considered the Report and Recommendations of the Committee on Equal Justice Rules Review Subcommittee (“EJC Report”) and identified instances in the Rules which “reflect, perpetuate, or fail to correct systemic biases.”

The Judiciary’s Rules Committee will continue to review rule amendments and updates stemming from the EJC Report, as other Subcommittees submit additional proposals to correct systemic biases.   

Proposed new Rule: Rule 1-342 (Fairness; Recognition of Potential Bias)

• The Subcommittee determined that the risks of implicit bias may impact more than criminal causes. To ensure a broader application of the EJC Report principles, the Subcommittee recommended adding new rules for judicial fairness and avoidance of impermissible actual or implicit bias in all case types.

Rule 18-102.3 (Bias, Prejudice, and Harassment (ABA Rule 2.3))

Rule 18-202.3 (Bias, Prejudice, and Harassment)

• The Subcommittee recommended adding the following comment to both Rule 18-102.3 and 18-202.03 related to judicial performance of judges and judicial appointees:

[3] A judge/judicial appointee often must make decisions that can affect the rights or status, or perceived rights or status, of a variety of individuals or organizations.  In making a decision – whether large or small – a judge/judicial appointee always must remain mindful of whether the decision, or the manner in which it is made, expressed, or enforced, could reasonably be perceived as reflecting an impermissible actual or implicit bias on the part of the judge/judicial appointee and, if so, take all lawful and reasonable steps to avoid the basis for such a perception.

• During the September 7th meeting, the Judiciary’s Rules Committee discussed the importance for ongoing judicial education and education of the Bar to help judges and attorneys recognize and compensate for implicit and systemic bias. The Committee also heard comments and engaged in discussions with representatives of the Commission on Judicial Disabilities, charged with investigation, determining, and enforcing claims related to judicial conduct, given the EJC report and the Criminal Subcommittee’s recommendations.
• The Committee approved a motion to move comment [3] above into comment [2] of both Rule 18-102.3 and 18-202.03 for clarity. The proposed comment [2] follows:

 [2] A judge must avoid conduct that may reasonably be perceived as prejudiced or biased.  A judge often must make decisions that can affect the rights or status, or perceived rights or status, of a variety of individuals or organizations.  In making a decision – whether large or small – a judge always must remain mindful of whether the decision, or the manner in which it is made, expressed, or enforced, could reasonably be perceived as reflecting an impermissible actual or implicit bias on the part of the judge and, if so, take all lawful and reasonable steps to avoid the basis for such a perception. Examples of manifestations of bias or prejudice include epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant references to personal characteristics.  Even facial expressions and body language can convey to parties and attorneys in the proceeding, jurors, the media, and others an appearance of bias or prejudice.

5. Recommendations from the Probation/Fiduciary Subcommittee

Rule 6-416 (Attorney’s Fees or Personal Representative’s Commissions) 

• The Probation/Fiduciary Subcommittee (comprised of a group of attorneys, Registers of Wills, and orphans’ court judges), discussed the benefit of locating the Consent to Compensation for Personal Representative and/or Attorney Form outside of the Rule, making it more easily searchable and quickly amended without going through the Rules Committee amendment process.   
• The Committee approved proposed amendments deleting the form from the rules and instead referring to a form approved by the Registers of Wills and available on the Register of Wills forms website.

Rule 6-454 (Special Administration)

Rule 16-101 (General Administrative Structure)

Rule 18-103.9 (Service as Arbitrator or Mediator) (ABA Rule 3.9)

Rule 20-101 (Definitions)

• The Committee approved proposed amendments to add Howard County to the list of counties that do not have a separate chief judge of the Orphans’ Court. Judges of the Circuit Court of the county are now required to sit as an Orphans’ Court following the ratification of a constitutional amendment by voters in November 2022.

6. Recommendations from the Judgments Subcommittee

Rule 3-633 (Discovery in Aid of Enforcement)

Rule 3-634 (Judgment Debtor Fact Information Sheet)

• Chapter 709, Laws of Maryland (HB 127), adds §11-704 to the Courts Article.  The new provision, pertaining to money judgments arising out of small claim actions, prohibits the District Court of Maryland from ordering an individual to (1) appear for examination in aid of execution or (2) answer interrogatories in aid of execution.
• This policy change from the Legislature led to revisions to Rules 3-633 and 3-634. The Committee approved the proposed amendments to clarify that the rule no longer applies to money judgments arising out of small claims actions and to confirm Rule 3-634 to Rule 3-633.
• While §11-704 limits post-judgment discovery to individuals, the proposed revisions to Rules 3-633 and 3-634 eliminate all post-judgment discovery including corporate entities.
• After considering a practitioner’s comments about an inconsistent result if a small claims action is appealed to Circuit Court for a de novo trial, the Committee approved a motion to add in language to align such Circuit court matter with the District Court discovery parameters in the proposed revisions.

7. Recommendations from the Style Subcommittee

Remove Gendered Pronouns From the Rules

• One recommendation contained in the EJC Report was for the Rules Committee to remove gendered pronouns from the Rules.  The EJC Report identified approximately 50 Rules in which gendered pronouns exist. 
• To implement the recommendation of the EJC Report, the Committee approved proposed amendments of several rules (contained in pages 66 – 226 of the Sept. 7 agenda), where each instance of gendered pronouns was removed and replaced with non-gender specific language.

Upcoming Meetings and Deadlines:

September 12, 2023: Open Meeting on the 217th Report

Live-stream/webcast on Judiciary’s website: https://mdcourts.gov/coappeals/webcasts

September 18, 2023: Comment Period Ends for 218th Report

September 25, 2023: Comment Period Ends for 219th Report

October 13, 2023: Judiciary’s Rules Committee Open Meeting

In-person at the Maryland Judicial Center, Rooms 131-133

November 7, 2023: Open Meeting on the 218th and 219th Reports

Live-stream/webcast on Judiciary’s website: https://mdcourts.gov/coappeals/webcasts

November 17, 2023: Judiciary’s Rules Committee Open Meeting

In-person at the Maryland Judicial Center, Rooms 131-133

You Belong Here: Your input is critical as the Maryland Supreme Court considers new language. Please reach out to the MSBA with any important issues, comments, or feedback at advocacy@msba.org, so that the MSBA can comprehensively share commentary with the Court and best protect your interests.