# COURT OF APPEALS STANDING COMMITTEE > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/court_rules%3Amd%3A57067de02a95089a ## Record - **Collection:** Court rules - **Document type:** Court rule ## Text COURT OF APPEALS STANDING COMMITTEE ON RULES OF PRACTICE AND PROCEDURE Minutes of a meeting of the Rules Committee held in Training Rooms 5 and 6 of the Judiciary Education and Conference Center, 2011 Commerce Park Drive, Annapolis, Maryland on September 10, 2015. Members present: Hon. Alan M. Wilner, Chair H. Kenneth Armstrong, Esq. Hon. Yvette M. Bryant James E. Carbine, Esq. Hon. John P. Davey Mary Anne Day, Esq. Christopher R. Dunn, Esq. Hon. Angela M. Eaves Hon. JoAnn M. Ellinghaus-Jones Alvin I. Frederick, Esq. Donna Ellen McBride, Esq. Hon. Danielle M. Mosley Hon. Douglas R. M. Nazarian Hon. Paula A. Price Scott D. Shellenberger, Esq. Steven M. Sullivan, Esq. Robert Zarbin, Esq. Thurman W. Zollicoffer, Esq. In attendance: Sandra F. Haines, Esq., Reporter David R. Durfee, Jr., Esq., Assistant Reporter Sherie B. Libber, Esq., Assistant Reporter Erin McCarthy, Esq., Circuit Court for Anne Arundel County Lee Sampson, Administrative Office of the Courts Hon. Gary G. Everngam Faye D. Matthews, Deputy State Court Administrator Polly Harding, District Court Headquarters Jeffrey C. Shipley, Esq., Secretary, State Board of Law Examiners Hon. Anne C. Dodd, Howard County Orphans’ Court Sarah Norton, Esq., Court of Special Appeals Rachel Dombrowski, Esq., Court of Special Appeals Margaret H. Phipps, Register of Wills for Calvert County Grace G. Connolly, Register of Wills for Baltimore County P. Gregory Hilton, Esq., Clerk, Court of Special Appeals The Chair convened the meeting. after the summer break. He welcomed everyone back He welcomed a new member, the Honorable Yvette M. Bryant, a judge on the Circuit Court of Baltimore City, who is replacing the Honorable W. Michel Pierson. He also welcomed Scott D. Shellenberger, Esq., State’s Attorney for Baltimore County, who had previously attended many Committee meetings, and who is now on the Committee. The Chair officially announced the unfortunate and untimely death of Derrick Lowe, Esq., who had been the Clerk of Cecil County and a member of the Committee. The Chair had sent a letter on behalf of the Committee to Mr. Lowe’s wife and children expressing the Committee’s sympathy. The Chair had just learned that the Court of Appeals had appointed Dennis J. Weaver, Clerk of Washington County, in place of Mr. Lowe. Mr. Weaver had only found out about the appointment yesterday afternoon and was unable to be at the meeting. The Chair said that the Court of Appeals is going to have an open hearing on the 187th Report on September 17, 2015 at 1:00 p.m. The Chair told the Committee that they had been tasked over the summer with two new items to study and develop rules on quickly. One is going to be the product of a work group appointed by the Honorable Mary Ellen Barbera, Chief Judge of the Court of Appeals, to address what to do about teaching professionalism. The Honorable Clayton Greene, Jr., Associate Judge of the Court of Appeals, is chairing the work group, and he is going to make a report to the Court, possibly by September 17, 2015. Some rules will be necessary to implement whatever is decided. These also need to be completed in a hurry, because the -2- current professionalism procedures sunset on January 1, 2016. The Chair referred to the exposés in The Washington Post, which were picked up by The Sunpapers, on problems arising from the assignment of rights under structured settlement agreements. The Court of Appeals has asked the Committee to address this issue quickly. The Chair has appointed a special subcommittee to discuss this and draft rules. Hopefully, there will be some rules to consider at the October Rules Committee meeting. The Chair said that he had been asked to take up Agenda Item 2 first. Agenda Item 2. Consideration of proposed amendments to Rule 16-205 (Disposition of Records) _________________________________________________________________ The Chair presented Rule 16-205, Disposition of Records, for the Committee’s consideration. MARYLAND RULES OF PROCEDURE TITLE 16 - COURT ADMINISTRATION CHAPTER 200 - GENERAL PROVISIONS – CIRCUIT AND DISTRICT COURT Rule 16-205. (a) DISPOSITION OF RECORDS Definitions In this Rule, the following definitions apply except as otherwise provided or as necessary implication requires. (1) Authorized Judge “Authorized judge” means -3- (A) with respect to records of a circuit court, the County Administrative Judge; and (B) with respect to records of the District Court, the Chief Judge of that Court. (2) Court “Court” means a circuit court or the District Court. Cross reference: See Rule 8-113 (b)(3) for disposition of records of the Court of Appeals and Court of Special Appeals. (3) Dispose "Dispose" means to destroy or remove. (4) Records "Records" means any original papers, official books, documents, files, including dockets, electronic recordings of testimony, and exhibits within the custody of the clerk of the court. Cross reference: See Code, State Government Article, §§9-1009 and 10-639 through 10-642. (5) Schedule "Schedule" means the form known as the "Records Retention and Disposal Schedule" used by the Records Management Division of the Department of General Services. (b) Authority of Clerk The clerk of the court may dispose of records in the clerk’s custody: (1) in accordance with the provisions of this Rule or Rule 16-405 (d)(2); (2) with the written approval of the authorized judge; and (3) in cooperation with the State -4- Archivist. Cross reference: §2-205. (c) See Code, Courts Article, Procedure (1) The clerk shall prepare an initial schedule for the disposition of court records and submit the schedule to the State Archivist for the Archivist’s recommendation. (2) Upon receipt of the recommendation of the State Archivist, the clerk shall submit the schedule and the recommendation to the authorized judge, who may approve, amend, or disapprove the schedule. Approval of the schedule in whole or in part shall be by an order providing for disposal of the records. (3) The schedule, as approved, shall identify the records and set forth: (A) the length of time the records are to be retained by the clerk of the court before disposition; (B) whether the State Archivist declines to accept the records for preservation; (C) whether the records are to be destroyed or removed; (D) if the records are to be removed, the place to which they would be removed; and (E) whether the schedule shall be operative until changed by further order of court. (4) The records shall be disposed of: (A) in accordance with procedures of the State Archivist if the State Archivist accepts the records; (B) otherwise, in accordance with the terms specified in the approved schedule. If the records are to be destroyed, the clerk shall obtain the approval of the Board of -5- Public Works and, upon destruction, shall file a certificate of destruction with the State Archivist. Cross reference: See Code, State Government Article, §10-642. (d) Limitations Upon Disposal of Circuit Court Records (1) This section applies only to circuit court records. (2) Subject to subsection (d)(5) of this Rule, the following records shall be retained permanently either by the clerk or the State Archivist: (A) permanent books of account; (B) indices and dockets maintained by the clerk; and (C) other records designated on an approved schedule. (3) Subject to subsection (d)(5) of this Rule, the clerk shall retain permanently records affecting title to real property. (4) The clerk may destroy: (A) Records in a motor vehicle or natural resources case at any time three years or more after the case was closed and any required audit was completed, except that the clerk shall retain as permanent records convictions of offenses which carry subsequent offender penalties; (B) Records in a landlord/tenant case involving restitution of the premises but no money judgment at any time three years or more after the case was closed; and (C) Other records designated in an approved schedule at any time 12 years or more after the case was closed. (5) The clerk may dispose of records specified in subsections (d)(2), (d)(3), or -6- (d)(4) of this Rule at any time if an unredacted version of the records has been duplicated in accordance with State Archivist’s procedures and copies have been substituted for the originals. (e) Limitations upon Disposal of District Court Records (1) This section applies only to District Court records. (2) Subject to subsection (e)(10) of this Rule, the clerk shall retain the records described in subsections (e)(3) through (e)(9) of this Rule for the periods specified in those subsections. (3) The clerk shall retain permanently all indices, dockets, and books of account. (4) The clerk shall retain for a period of 12 years after the case is closed all original papers and exhibits in any case containing a petition for emergency evaluation or a petition for protection from domestic violence. (5) In any case in which a money judgment is entered, the clerk shall retain all original papers, exhibits, and electronic recordings of testimony for a period of three years after entry of the judgment and thereafter shall continue to retain all original papers and exhibits in the file until the judgment expires or is satisfied. (6) In any criminal case which is dismissed or in which a nolle prosequi or stet is entered, the clerk shall retain all original papers, exhibits, and electronic recordings of testimony for a period of three years after the case is so concluded. (7) In any criminal case in which judgment is entered or probation before judgment is granted, the clerk shall retain all original papers, exhibits, and electronic recordings of testimony for a period of three years after the case is so concluded, and if within that three year period the defendant -7- fails to comply with the order of court, the clerk shall continue to retain the original papers and exhibits in the file until the failure is cured or an arrest warrant issued as a result of the failure is invalidated as permitted by law. (8) In any criminal case involving a misdemeanor in which an arrest warrant issued on the charging document or as a result of the defendant's failure to appear for trial remains unserved three years after its issuance, the clerk shall retain all the original papers and exhibits in the file until the warrant is invalidated as permitted by law. (9) The clerk shall retain the original papers, exhibits, and electronic recordings of testimony in all other cases for a period of three years after the case is concluded by dismissal, settlement, or entry of judgment. (10) (A) Any of the records, except dockets, set forth in subsections (e)(1) through (e)(9) of this Rule may be disposed of at any time provided that an unredacted version of the records has been duplicated in accordance with State Archivist’s procedures and copies have been substituted for the originals, including a master security negative which shall be retained permanently. (B) Traffic and criminal dockets may be disposed of after a period of five years if copies are retained in accordance with subsection (10)(A) of this Rule. (f) Retention by State Archives A requirement of this Rule that the clerk retain records may be satisfied by retention of the records by the State Archives. Records retained by the clerk that are twenty-five years old and have not been transferred to the State Archives shall be transferred to the Archives or disposed of according to an approved schedule. -8- Cross reference: For the archival of MDEC records, see Rules 20-102 (c) and 20-503. (a) Applicability (1) This Rule does not apply to records initially filed or submitted for filing in paper form and subsequently scanned into electronic form pursuant to Rule 20-106. Upon scanning, those written documents cease to be court records and shall be disposed of in accordance with Rule 20-106. (2) This Rule applies to records in the custody of a circuit court or the District Court that (A) for a circuit court are subject to a Records Retention and Disposal Schedule for the Circuit Courts adopted by the Records Management Division of the Department of General Services and approved by the Chief Judge of the Court of Appeals, or (B) for the District Court, are subject to a District Court Records Retention and Storage Manual adopted by the Chief Judge of that Court and approved by the Chief Judge of the Court of Appeals. Committee note: This Rule is to be read in harmony with the statutes and Rules governing the expungement of court records. (b) Definitions In this Rule, the following definitions apply except as otherwise provided or as necessary implication requires. (1) Dispose “Dispose” means to destroy or remove. (2) Records “Records” means original papers, official books, documents, files, dockets, electronic recordings of testimony and court proceedings, and exhibits in the custody of the court. (c) Circuit Court Records -9- (1) Duty of Clerk and County Administrative Judge Each custodian of records of a circuit court and the county administrative judge of that court shall dispose of those records in accordance with the procedures, schedules, forms, and exhibits set forth in the Records Retention and Disposal Schedule for the Circuit Courts of Maryland most recently adopted by the Records Management Division of the Department of General Services and approved by the Chief Judge of the Court of Appeals. (2) Duty of State Court Administrator The State Court Administrator shall assure that a copy of the most recently adopted and approved Schedule is delivered to each county administrative judge and each clerk of a circuit court, along with any appropriate instructions regarding its use. (d) District Court Records The Chief Clerk of the District Court and the Chief Judge of the District Court shall dispose of records of the District Court in accordance with the procedures, schedules, forms, and exhibits set forth in the District Court Records Retention and Storage Manual most recently adopted by the Chief Judge of the District Court and approved by the Chief Judge of the Court of Appeals. Cross reference: See Code, Courts Article, §2-205 and Code, State Government Article, §10-616 (b) concerning destruction of records. Source: This Rule is derived from former Rules 16-505 and 16-818 (2015) new. The Chair explained that when Part I of the 178th Report, which was a complete reorganization of the Rules pertaining to -10- court administration, was completed, one of the Rules in Part 1 was Rule 16-205 dealing with the disposition of court records. The Rule was a combination of two current Rules, Rule 16-505 and 16-818, both entitled “Disposition of Records.” In 2013, the Committee combined the two Rules and restyled them, but they did not change very much substantively. All of the procedures for disposing of court records that were in the current Rules were put in proposed Rule 16-205. This was all done before the Maryland Electronic Court Initiative (“MDEC”) started. In part, as a result of MDEC, proposed Rule 16-205 was reviewed. The Rule is before the Court of Appeals now. In light of MDEC and two statutes governing the disposition of court records that were handed out at the meeting, Code, Courts Article, §2-205 and Code, State Government Article, §10-616 (b), Rule 16-205 needs to be looked at again. The Chair noted that there had been a review of the proposed Rule that had been sent to the Court as part of Part I of the 178th Report in light of actual retention and disposition manuals that exist for the District Court and the circuit courts. The District Court manual is prepared and adopted by the Chief Judge of the District Court. The circuit court manual is prepared by units in the Maryland Department of General Services. Archivist is involved in preparing the manual. The State That schedule is subject to approval by the County Administrative Judge, the clerk, and others for each county. -11- The manuals are far more detailed than the Rules. They include several schedules, and this is what the clerks use for retention and disposition of records. After discussions with the Chair, Chief Judge Barbera, and Ms. Pamela Harris, State Court Administrator, the decision was to get rid of all of the detail that is in the Rule. Instead the clerks will be directed to follow the manuals, which they are required to do and which they already do. The Chair pointed out that the current manuals are out of date, and they need to be revised. They are currently being worked on by a committee of the Judicial Council and a subcommittee of that committee. The Subcommittee is headed by the Honorable James Eyler, a retired judge of the Court of Special Appeals. The Honorable Gary Everngam, a District Court judge, was present at the meeting. He had been very involved in this process and would address the Committee soon. The Chair said that, based upon the discussions with Chief Judge Barbera and Ms. Harris, the main goal for the Committee is to try to get all of the detail out of Rule 16-205. being modified all of the time because of MDEC. Rules are As MDEC rolls out, the retention issues will require more changes, because there are very different situations with retention and disposition of electronic records as opposed to paper records. The Chair noted that one of the concerns that had already been expressed by Judge Eyler’s group pertains to MDEC. This is what Judge Eyler calls the “backscanning” of paper records. -12- In Title 20, several provisions relate to the situation when someone files in paper form. If the paper can be scanned, the clerk scans it and gives the paper back. record. It never really was a court The official record is the electronic record. This is true for exhibits filed with the court or any paper filed that can be scanned. When MDEC goes into force in a particular county, there are already many court files of cases, and Rule 20-106, When Electronic Filing Required; Exceptions, permits the clerk to scan the paper files in, with the approval of the County Administrative Judge of a circuit court, or the Chief Judge of the District Court, and approval by the State Court Administrator. The Chair noted that the point of this was that the file may have been opened only two weeks before with just a complaint and an answer to a motion, so that is easy to scan. However, there could be a protracted case with boxes and boxes of papers, and it would be very difficult to scan all of this. The Rules try to provide some flexibility, so that the clerks do not have to deal with a file that has both paper and electronic files. The question of what happens to the paper arose with respect to those kinds of files that existed in paper form and were then scanned. Does it fall under the retention schedule that requires that it be retained until a certain point in time, or can it just be disposed of? As a result of a conference call, the conclusion was that as to that “backscanning,” those papers do not fall -13- within the retention schedule. given back to the filer. Rule 16-205. The papers can be disposed of or This is in the proposed amendment to The rest of the Rule has been stricken. All of the details about the retention and disposal of records have been taken out. The Rule essentially provides that court records are disposed of in accordance with the manuals. One limitation in the manuals and in the statutes is that the records cannot be destroyed without the approval of the Archivist of the State Archives and the County Administrative Judge or the Chief Judge of the District Court. That limitation has been preserved. Judge Everngam explained that the problem arose, because once someone has a document that is important, the person usually would like to keep it. Even after it becomes unimportant, the person may still want to keep it. One of the benefits of MDEC is that space that had been used for storing papers can be used for other purposes. Early on, the Executive Committee and its predecessor, the Advisory Board, had realized that it is not a good idea to rely on paper, and paper needed to be eliminated from the system as quickly as possible. What to do with the paper caused a great deal of consternation. Judge Eyler’s report pointed out that there may be some ambiguities. Judge Everngam said that he had spoken with Ms. Harris and with the Honorable John P. Morrissey, Chief Judge of the District Court, who are very interested in this. They feel that the proposed amendment to subsection (a)(1) of Rule 16-205 makes it -14- clear that the electronic record is the official record, and the paper form of it is unnecessary. retained. Some papers were required to be The Rule is important, so that the Judiciary can move on with MDEC, and the papers that do not have to be kept can be disposed of. The Executive Committee is in favor of the amendment to subsection (a)(1). They hope that the Court of Appeals will adopt proposed Rule 16-205. The Chair said that a motion would be necessary to approve Rule 16-205, because it had not been considered by a Subcommittee. Mr. Frederick moved to approve Rule 16-205, the motion was seconded, and it passed unanimously. The Chair told the Committee that Agenda Items 10 and 11 would be considered next. Agenda Item 10. Reconsideration of proposed amendments to: Rule 1-321 (Service of Pleadings and Papers Other than Original Pleadings) and Rule 2-613 (Default Judgment) _________________________________________________________________ Mr. Dunn presented Rules 1-321, Service of Pleadings and Papers Other than Original Pleadings, and 2-613, Default Judgment, for the Committee’s consideration. MARYLAND RULES OF PROCEDURE TITLE 1 - GENERAL PROVISIONS CHAPTER 300 - GENERAL PROVISIONS AMEND Rule 1-321 (b) to require service of a request for entry of judgment arising out of an order of default, as follows: -15- Rule 1-321. SERVICE OF PLEADINGS AND PAPERS OTHER THAN ORIGINAL PLEADINGS (a) Generally Except as otherwise provided in these rules or by order of court, every pleading and other paper filed after the original pleading shall be served upon each of the parties. If service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or upon a party shall be made by delivery of a copy or by mailing it to the address most recently stated in a pleading or paper filed by the attorney or party, or if not stated, to the last known address. Delivery of a copy within this Rule means: handing it to the attorney or to the party; or leaving it at the office of the person to be served with an individual in charge; or, if there is no one in charge, leaving it in a conspicuous place in the office; or, if the office is closed or the person to be served has no office, leaving it at the dwelling house or usual place of abode of that person with some individual of suitable age and discretion who is residing there. Service by mail is complete upon mailing. (b) Party in Default - Exceptions No pleading or other paper after the original pleading need be served on a party in default for failure to appear except: (1) a pleading asserting a new or additional claim for relief against the party shall be served in accordance with the rules for service of original process; and (2) a request for entry of judgment arising out of an order of default under Rule 2-613 shall be served in accordance with section (a) of this Rule. (c) Requests to Clerk - Exception -16- A request directed to the clerk for the issuance of process or any writ need not be served on any party. Source: This Rule is derived as follows: Section (a) is derived from former Rule 306 a 1 and c and the 1980 version of Fed. R. Civ. P. 5 (a). Section (b) is derived from former Rule 306 b and the 1980 version of Fed. R. Civ. P. 5 (a). Section (c) is new. Rule 1-321 was accompanied by the following Reporter’s note. An order of default under Rule 2-613 is an interlocutory determination of liability. It is not a judgment for a specific amount of money damages or for other relief. In some cases, after an order of default has been entered, it may be necessary for the court to consider additional evidence before entering a judgment. Even after an order of default has been entered, the defendant has the right to participate in any further proceedings in the action on the issue of damages or other relief to be granted. See Banegura v. Taylor, 312 Md. 609 (1988) and Greer v. Inman, 79 Md. App. 350 (1989). The General Provisions Subcommittee recommends that Rule 1-321 (b) be amended by the addition of the requirement for service of a request for entry of judgment arising out of an order of default under Rule 2-613 to make clear that a request for entry of judgment arising out of an order for default under Rule 2-613 is to be served on the defendant. The Subcommittee also recommends that Rule 2-613 be amended by the addition of a cross reference to the new subsection of Rule 1-321 (b). -17- MARYLAND RULES OF PROCEDURE TITLE 2 - CIVIL PROCEDURE - CIRCUIT COURT CHAPTER 600 - JUDGMENT AMEND Rule 2-613 by adding a cross reference after section (f), as follows: Rule 2-613. DEFAULT JUDGMENT . . . (f) Entry of Judgment If a motion was not filed under section (d) of this Rule or was filed and denied, the court, upon request, may enter a judgment by default that includes a determination as to the liability and all relief sought, if it is satisfied (1) that it has jurisdiction to enter the judgment and (2) that the notice required by section (c) of this Rule was mailed. If, in order to enable the court to enter judgment, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any matter, the court, may rely on affidavits, conduct hearings, or order references as appropriate and, if requested, shall preserve to the plaintiff the right to trial by jury. Cross reference: For the requirement that a request for entry of judgment under section (f) of this Rule be served on the defendant, see Rule 1-321 (b)(2). . . . Rule 2-613 was accompanied by the following Reporter’s note. See the Reporter’s note to Rule 1-321. Mr. Dunn explained that this item pertains to default judgments and the notice to defaulting parties. -18- It involves the interplay between Rules 1-321 and 2-613. A circuit court judge had alerted the Committee that on occasion, a plaintiff who requests a judgment under Rule 2-613 (f) does not serve the request upon the defendant, and the plaintiff will cite Rule 1321 (b) to support this. The judge had said that his practice and the practice of many other judges is that they deny the request and insist that the defendant be served. The General Provisions Subcommittee has suggested adding a new subsection (b)(2), which reads: “a request for entry of judgment arising out of an order of default under Rule 2-613 shall be served in accordance with section (a) of this Rule.” The Subcommittee also recommends a cross reference to subsection (b)(2) after section (f) of Rule 2-613. By consensus, the Committee approved the changes to Rules 1321 and 2-613 as presented. Agenda Item 11. Consideration of proposed amendments to: Rule 2-321 (Time for Filing Answer) _________________________________________________________________ Mr. Dunn presented Rule 2-321, Time for Filing Answer, for the Committee’s consideration. MARYLAND RULES OF PROCEDURE TITLE 2 - CIVIL PROCEDURE - CIRCUIT COURT CHAPTER 300 - PLEADINGS AND MOTIONS AMEND Rule 2-321 (c) to add language referring to matters that have been remanded from certain courts, as follows: -19- Rule 2-321. TIME FOR FILING ANSWER . . . (c) Automatic Extension When a motion is filed pursuant to Rule 2-322 or when a matter is remanded from an appellate court or a federal court, the time for filing an answer is extended without special order to 15 days after entry of the court's order on the motion or remand or, if the court grants a motion for a more definite statement, to 15 days after the service of the more definite statement. . . . Rule 2-321 was accompanied by the following Reporter’s note. An attorney pointed out that the Maryland Rules do not provide for the time for filing a paper following a remand from a federal court or a State appellate court. The attorney suggested amending Rule 1-203 (e). The General Provisions Subcommittee recommends amending Rule 2-321 (c) to address this gap in the Rules. Mr. Dunn told the Committee that an attorney had written to the Chair asking that language be added to Rule 2-321 to clarify when an answer is due after a case has been remanded from an appellate or a federal court. The Subcommittee had not been sure when that issue would ever come up. In a State court, a plaintiff files a complaint, and the defendant, instead of filing an answer, files a motion for lack of venue or for forum non conveniens. The trial judge grants the motion. If it is granted, the plaintiff has a right to an automatic appeal. If the motion is denied, the defendant does not have that right. If the plaintiff files that appeal, it would go up to the appellate -20- court, and no answer would be filed. If the case is remanded, the question is when the answer is due. federal court. This is very rare in Mr. Dunn said that when he files a petition for removal, he files an answer and an automatic stay in State court, and the petition for removal is filed in federal court along with all of the pleadings. This is what most practitioners do. Technically, the attorney can file the motion to stay without filing an answer. The attorney who wrote the letter suggested that language be added to Rule 1-203, Time. However, the Subcommittee felt that it would be better to add language to Rule 2-321 (c), which provides for 15 days to file an answer after a motion is filed pursuant to Rule 2-322. The new language would refer to matters that are remanded, so that the answer would be filed 15 days after entry of the court’s order on the remand. By consensus, the Committee approved the change to Rule 2321 (c) as presented. Agenda Item 1. Consideration of proposed amendments to: Rule 1-311 (Signing of Pleadings and Other Papers), Rule 20-107 (Electronic Signatures), Rule 20-203 (Review by Clerk; Striking of Submission; Delinquency Notice; Correction; Enforcement), and Rule 20-106 (When Electronic Filing Required; Exceptions) _________________________________________________________________ Mr. Carbine explained that the issue of using an attorney’s Client Protection Fund number as the identification number for MDEC had been discussed at the May, 2015 Rules Committee meeting. The MDEC Subcommittee discussed it over the summer, and they came -21- up with some suggestions for tweaking some of the MDEC Rules. None of the Judicial Information Systems (“JIS”) employees who work with MDEC were present, so Mr. Carbine said he would explain the technological limitations of MDEC from a layman’s point of view. He explained that MDEC consists of two separate systems. The filing system is entitled “File and Serve.” The case management system that takes over after filing and does all of the case management work is entitled “Odyssey.” Mr. Carbine noted that, as had been discussed last May, the File and Serve system and the Odyssey system do not communicate with each other. The clerks have to manually take the filing information out of the File and Serve system and enter it into the Odyssey system. Lost in that translation, because it is deep in the part of the computer software that is in cyberspace, is the unique attorney identification number for the Client Protection Fund (“CPF”). All Maryland attorneys have a CPF number. Mr. Carbine said that he had surveyed the members of the Rules Committee last May, and not one member knew what his or her number was. The proposed Rules will require every attorney in Maryland in MDEC and outside of MDEC to supply the CPF number below the attorney’s signature on papers along with the list of other information that is required. issue decided by the Committee. This change was a policy The question arose last May. The purpose of having the unique identifier for attorneys is to -22- make sure that the system can distinguish between attorneys with similar names, or can determine that two different papers filed by the same person but under a different name, such as John Jones and John C. Jones, belong to that one person. Mr. Carbine remarked that the question was asked as to how this would relate to non-attorneys filing papers. The Subcommittee had learned that although it is mandated in Rule 20104, User Registration, JIS does not generate a unique identification number for registered users. It will be necessary to discuss this again, because the same problem exists for nonattorneys, except there is no unique identifier for those individuals. requires. JIS is not issuing the numbers Rule 20-104 The Chair said that JIS has claimed that they cannot issue the numbers. Mr. Carbine remarked that there are reasonable grounds for debate as to whether JIS will not, cannot, or does not want to issue the numbers. Mr. Carbine said that the proposed Rule change is an interim step. At a minimum, it will take care of the vast majority of registered users who are attorneys. Mr. Carbine presented Rule 1-311, Signing of Pleadings and Other Papers, for the Committee’s consideration. MARYLAND RULES OF PROCEDURE TITLE 1 - GENERAL PROVISIONS CHAPTER 300 - GENERAL PROVISIONS -23- AMEND Rule 1-311 to require that every pleading or paper signed by an attorney pursuant to Rule 20-107 contain the attorney’s Client Protection Fund ID number, as follows: Rule 1-311. PAPERS (a) SIGNING OF PLEADINGS AND OTHER Requirement Every pleading and paper of a party represented by an attorney shall be signed by at least one attorney who has been admitted to practice law in this State and who complies with Rule 1-312. Every pleading and paper of a party who is not represented by an attorney shall be signed by the party. Every pleading or paper filed shall contain (1) the signer's address, telephone number, facsimile number, if any, and e-mail address, if any, and (2) if the pleading or paper is signed by an attorney pursuant to Rule 20-107, the attorney’s Client Protection Fund ID number. Committee note: The requirement that a pleading contain a facsimile number, if any, and e-mail address, if any, does not alter the filing or service rules or time periods triggered by the entry of a judgment. See Blundon v. Taylor, 364 Md. 1 (2001). (b) Effect of Signature The signature of an attorney on a pleading or paper constitutes a certification that the attorney has read the pleading or paper; that to the best of the attorney's knowledge, information, and belief there is good ground to support it; and that it is not interposed for improper purpose or delay. (c) Sanctions If a pleading or paper is not signed as required (except inadvertent omission to sign, if promptly corrected) or is signed with intent to defeat the purpose of this Rule, it may be stricken and the action may proceed as though the pleading or paper had -24- not been filed. For a wilful violation of this Rule, an attorney is subject to appropriate disciplinary action. Source: This Rule is derived as follows: Section (a) is derived from former Rules 302 a, 301 f, and the 1937 version of Fed. R. Civ. P. 11. Section (b) is derived from former Rule 302 b and the 1937 version of Fed. R. Civ. P. 11. Section (c) is derived from the 1937 version of Fed. R. Civ. P. 11. Rule 1-311 was accompanied by the following Reporter’s note. At the request of the Judicial Information Systems and the State Court Administrator, an amendment is proposed to Rule 1-311 to require that every pleading or paper signed by an attorney pursuant to Rule 20-107 contain the attorney’s Client Protection Fund ID number. Requiring an attorney to include the Client Protection Fund ID number, a unique identifier, will assist clerks if there is any confusion over an attorney’s identity. Mr. Carbine explained that the change to Rule 1-311 requires that the CPF ID number be added to the list of information that is given below the signature lines on a filing. The importance of Rule 1-311 is that the Rule applies to all pleadings and papers and not only those filed under MDEC. be informed of this change. attorney education. The bar will have to It will require a great amount of The Committee is fairly comfortable with the fact that if the CPF ID number is not on a paper filing, the filing will not be rejected. Mr. Carbine said that he felt very strongly about the policy issue concerning the miscreant who fails to put his or her CPF ID number below the person’s signature. Without the changes being proposed at the meeting, -25- the submission would be subject to rejection by the clerk. Mr. Carbine expressed the opinion that it should not be rejected; it should be subject to a deficiency notice that is sent to the person filing. Mr. Carbine presented Rule 20-107, Electronic Signatures, for the Committee’s consideration. MARYLAND RULES OF PROCEDURE TITLE 20 - ELECTRONIC FILINGS AND CASE MANAGEMENT CHAPTER 100 - GENERAL PROVISIONS AMEND Rule 20-107 to divide section (a) into subsections and to require that an attorney filer who electronically signs a submission under MDEC include the attorney’s Client Protection Fund ID number, as follows: Rule 20-107. (a) ELECTRONIC SIGNATURES Signature by Filer; Generally (1) Subject to sections (b), (c), (d), and (e) of this Rule, when a filer is required to sign a submission, the filer shall electronically sign the submission by inserting a (1) (A) facsimile signature or (2) (B) typographical signature. (2) The filer shall insert the electronic signature above the filer's typed name, address, e-mail address, and telephone number and, if the filer is an attorney, the attorney’s Client Protection Fund ID number. An electronic signature on an electronically filed submission constitutes and has the same force and effect as a signature required under Rule 1-311. (b) Signature by Judge or Judicial -26- Appointee A judge or judicial appointee shall sign a submission electronically by (1) personally affixing the judge's or judicial appointee's digital signature or (2) hand-signing a paper version of the submission and scanning or directing an assistant to scan the hand-signed submission to convert the handwritten signature to a facsimile signature in preparation for electronic filing. Cross reference: For delegation by an attorney, judge, or judicial appointee to file a signed submission, see Rule 20-108. (c) Signature by Clerk When a clerk is required to sign a submission electronically, the clerk's signature shall be a digital signature or a facsimile signature. (d) Multiple Signatures on a Single Document When the signature of more than one person is required on a document, the filer shall (1) confirm that the content of the document is acceptable to all signers; (2) obtain the handwritten, facsimile, or digital signatures of all signers; and (3) file the document electronically, indicating the signers in the same manner as the filer's signature. Filers other than judges, judicial appointees, clerks, and judicial personnel shall retain the signed document until the action is concluded. (e) Signature Under Oath, Affirmation, or with Verification When a person is required to sign a document under oath, affirmation, or with verification, the signer shall hand-sign the document. The filer shall scan the hand-signed document, converting the signer's handwritten signature to a facsimile signature, and file the scanned document electronically. The filer shall retain the -27- original hand-signed document until the action is concluded or for such longer period ordered by the court. At any time prior to the conclusion of the action, the court may order the filer to produce the original hand-signed document. (f) Verified Submissions When a submission is verified or attaches a document under oath, the electronic signature of the filer constitutes a certification by the filer that (1) the filer has read the entire document; (2) the filer has not altered, or authorized the alteration of, the text of the verified material; and (3) the filer has either personally filed the submission or has authorized a designated assistant to file the submission on the filer's behalf pursuant to Rule 20-108. Cross reference: For the definition of "hand-signed," see Rule 20-101. Source: This Rule is new. Rule 20-107 was accompanied by the following Reporter’s note. The amendments proposed to Rule 20-107 would accomplish two things. First, in conjunction with proposed amendments to Rule 1-311, an attorney who is filing submission under MDEC must include the attorney’s Client Protection Fund ID number, which is the unique user identification number that MDEC has been using. The amendments require that the Client Protection Fund ID number be placed beneath the attorney’s signature, which will assist clerks if there is confusion over an attorney’s identity. The second purpose of the proposed amendments is to modify the responsibilities of the clerk to strike a non-conforming pleading or paper. Presently, Rule 20-203 -28- (c) requires a clerk to strike a submission if it fails to comply with Rule 20-201 (d). Rule 20-101 (d) requires that a submission be signed in accordance with Rule 20-107 if a signature is required. In the proposed amendment to Rule 20-107 (a) the signature requirement is broken into two parts: subsection (a)(1) will require an electronic signature by facsimile signature or typographic signature, and subsection (a)(2) will require that the electronic signature be placed above the filer’s typed name, address, e-mail address, and telephone number. The proposed amendment adds the requirement that if the filer is an attorney, the submission must contain the attorney’s Client Protection Fund ID number. Conforming changes are proposed to Rule 20-106 (d)(2), to substitute the phrase, “and that the pleading is signed” for the current reference to Rule 20-201 (d). In conjunction with the proposed amendments, Rule 20-203 (c) is being changed to require a clerk to strike a submission if it fails to comply with the requirements of Rule 20-107 (a)(1). Therefore, a pleading that contains a facsimile or a typographical signature will not be stricken automatically, even if it does conform with the requirements of subsection (a)(2). Instead, under Rule 20-203 (d)(1), the clerk will send a deficiency notice and under subsection (d)(2), “If the deficiency is not corrected within two business days of the notice, any party may move to strike the submission.” Mr. Carbine explained that section (a) of Rule 20-107 had been broken into two parts, subsections (a)(1) and (a)(2). Subsection (a)(1) provides that the filer has to sign the paper being filed. Subsection (a)(2) lists all of the information that goes along with the paper. subsection (a)(2). There is a typographical error in The word “electronic,” which is shown with a -29- strikeout line through it, should not have been deleted. The CPF ID number is now part of the information that the filer includes below the signature. Mr. Carbine presented Rule 20-203, Review by Clerk; Striking of Submission; Delinquency Notice; Correction; Enforcement, for the Committee’s consideration. MARYLAND RULES OF PROCEDURE TITLE 20 - ELECTRONIC FILINGS AND CASE MANAGEMENT CHAPTER 200 - FILING AND SERVICE AMEND Rule 20-203 (c) to delete references to Rule 20-201 (d) and to add two references to Rule 20-107 (a)(1), as follows: Rule 20-203. REVIEW BY CLERK; STRIKING OF SUBMISSION; DELINQUENCY NOTICE; CORRECTION; ENFORCEMENT (a) Time and Scope of Review As soon as practicable, the clerk shall review a submission, other than a submission filed by a judge or judicial appointee, for compliance with Rule 20-201 (d), (e), (f)(1)(B), and (i) and the published policies and procedures for acceptance established by the State Court Administrator. Until the submission is accepted by the clerk, it remains in the clerk's queue and shall not be docketed. (b) Docketing (1) Generally The clerk shall promptly correct errors of non-compliance that apply to the form and language of the proposed docket -30- entry for the submission. The docket entry as described by the filer and corrected by the clerk shall become the official docket entry for the submission. (2) Submission Signed by Judge or Judicial Appointee The clerk shall enter on the docket each judgment, order, or other submission signed by a judge or judicial appointee. (3) Submission Generated by Clerk The clerk shall enter each writ, notice, or other submission generated by the clerk into the MDEC system for docketing in the manner required by Rule 16-305. (c) Striking of Certain Non-compliant Submissions If, upon review pursuant to section (a) of this Rule, the clerk determines that a submission, other than a submission filed by a judge or judicial appointee, fails to comply with the requirements of Rule 20-107 (a)(1) or Rule 20-201 (d), (e), or (f)(1)(B), the clerk shall (1) strike the submission, (2) notify the filer and all other parties of the striking and the reason for it, and (3) enter on the docket that the submission was received, that it was stricken for non-compliance with the applicable section of Rule 20-107 (a)(1) or Rule 20-201 (d), (e), or (f)(1)(B), and that notice pursuant to this section was sent. The filer may seek review of the clerk's action by filing a motion with the administrative judge having direct administrative supervision over the court. (d) Deficiency Notice (1) Issuance of Notice If, upon review, the clerk concludes that a submission is not subject to striking under section (c) of this Rule but materially violates a provision of the Rules in Title 20 -31- or an applicable published policy or procedure established by the State Court Administrator, the clerk shall send to the filer with a copy to the other parties a deficiency notice describing the nature of the violation. (2) Correction; Enforcement If the deficiency is not corrected within two business days after the date of the notice, any party may move to strike the submission. (e) Restricted Information (1) Shielding Upon Issuance of Deficiency Notice If, after filing, a submission is found to contain restricted information, the clerk shall issue a deficiency notice pursuant to section (d) of this Rule and shall shield the submission from public access until the deficiency is corrected. (2) Shielding of Unredacted Version of Submission If, pursuant to Rule 20-201 (f)(2), a filer has filed electronically a redacted and an unreadacted submission, the clerk shall docket both submissions and shield the unredacted submission from public access. Any party and any person who is the subject of the restricted information contained in the unredacted submission may file a motion to strike the unredacted submission. Upon the filing of a motion and any timely answer, the court shall enter an appropriate order. Source: This Rule is new. Rule 20-203 was accompanied by the following Reporter’s note. See the Reporter’s note to Rule 20-107. Mr. Carbine explained that the clerk would review an -32- original submission to be sure it complied with section (d) of Rule 20-201, Requirements for Electronic Filing, which encompasses all of Rule 20-107 and would require including the CPF ID number. This was kept in section (a) of Rule 20-203, because the clerk has to review the filing for the presence of the CPF ID number. However, in section (c), the references to section (d) of Rule 20-201 were deleted, and in its place is a reference to Rule 20-107 (a)(1), which applies only to the signature of the filer. The only way that a pleading can be rejected by the clerk is if the person filing it does not sign it. If the filing does not have an e-mail address or the CPF ID number on it, the filer gets a deficiency notice. Mr. Carbine presented Rule 20-106, When Electronic Filing Required; Exceptions, for the Committee’s consideration. MARYLAND RULES OF PROCEDURE TITLE 20 - ELECTRONIC FILINGS AND CASE MANAGEMENT CHAPTER 100 - GENERAL PROVISIONS AMEND Rule 20-106 (d) to delete references to Rule 20-201 (d) and to add the phrase “and that the submission is signed,” as follows: Rule 20-106. WHEN ELECTRONIC FILING REQUIRED; EXCEPTIONS . . . (d) Paper Submissions -33- (1) Compliance with MDEC Rules A paper submission shall comply with Rule 20-201 (f) and (i). If applicable, a paper submission also shall comply with Rule 20-201 (g). (2) Review by Clerk; Scanning (A) Except as provided in subsection (d)(2)(B) of this Rule, upon receipt of a submission in paper form, the clerk shall review the submission for compliance with Rule 20-107 (a)(1) and Rule 20-201 (d), (e), (f)(1)(B), and (I) and that the submission is signed. If the submission is in compliance, the clerk shall scan it into the MDEC system, verify that the electronic version of the submission is legible, and docket the submission. If the submission is not in compliance, the clerk shall decline to scan it and promptly notify the filer in person or by first class mail that the submission was rejected and the reason for the rejection. Committee note: The clerk's pre-scanning review is a ministerial function, limited to ascertaining whether any required fee has been paid (Rule 20-201 (i)) and the presence of the filer's signature (Rule 20-201 (d)); a certificate of service if one is required (Rule 20-201 (e)); and a certificate as to the absence or redaction of restricted information (Rule 20-201 (f)(1)(B)). (B) Upon receipt of a submission in paper form that is required by the Rules in this Title to be filed electronically, the clerk shall (i) decline to scan the submission, (ii) notify the filer electronically that the submission was rejected because it was required to be filed electronically, and (iii) enter on the docket that the submission was received and that it was not entered into the MDEC system because of non-compliance with Rule 20-106. The filer may seek review of the clerk's action by filing a motion with the administrative judge having direct administrative supervision over the court. -34- Committee note: Subsection (d)(2)(B) of this Rule is necessary to enforce the electronic filing requirement of Rule 20-106. It is intended to be used only when it is clear that the filer is a registered user who is required to file submissions electronically and that none of the exceptions in sections (b) or (c) of this Rule appear to be applicable. (3) Destruction of Paper Submission Subject to subsections (d)(4) and (e)(2) of this Rule, the clerk may destroy a paper submission after scanning it and verifying the legibility of the electronic version of it. (4) Optional Return of Paper Document The State Court Administrator may approve procedures for identifying and, where feasible, returning paper documents that must be preserved in their original form. [Amendment to subsection (d)(5) was approved at the June 2015 meeting] (5) Public Notice Prior to the date specified in Rule 20-102 (a)(1)(A), the The State Court Administrator shall provide public notice alerting the public to the procedure set forth in subsections (d)(2), (3), and (4) of this Rule. Committee note: If submissions properly filed in paper form are to be destroyed by the clerk following their being scanned into MDEC, the public must be given reasonable notice of that policy. Notice may be given in a variety of ways, including on the Judiciary website, on on-line and pre-printed forms prepared by the Judiciary, on summonses or other notices issued by the clerks, and by postings in the clerks' offices. . . . -35- Rule 20-106 was accompanied by the following Reporter’s note. See the Reporter’s note to Rule 20-107. Mr. Carbine explained that section (d) of Rule 20-106 applies to non-registered users who file papers. These people bring the submission to the clerk, who scans it and gets rid of the paper form. part of MDEC. It is in the system as a submission, and it is Subsection (d)(1) of Rule 20-106 provides that a paper submission shall comply with Rule 20-201 (g). (d)(2) pertains to review by the clerk. not grammatically correct. Subsection The proposed change is Mr. Carbine and the Reporter worked together to reword this provision. It should read: “Except as provided in subsection (d)(2)(B) of this Rule, upon receipt of a submission in paper form, the clerk shall review the submission for the presence of a signature and for compliance with Rule 20107 (a)(1) and Rule 20-201 (e), (f)(1)(B), and (I).” Judge Eaves asked whether the reference to section “(I)” should be a reference to section “(i).” Judge Nazarian answered that it should be a lower case (i). Mr. Shellenberger inquired whether people can publicly access the CPF ID number and get an attorney’s personal information. The Assistant State’s Attorneys who work with him would not like the public to have access to their home addresses. Mr. Carbine responded that this is a problem that had been discussed. The CPF publishes the information. -36- The Reporter added that it is on the Internet. She said that the attorneys can use their office addresses, so their home addresses are not public. The attorneys can ask the CPF to keep the home address confidential. Judge Everngam pointed out that the CPF website now has the CPF ID numbers added to it. Whatever address the attorney gives the CPF would be the contact address. If the attorney gave the CPF his or her home address, that will be the main address. already exists. Mr. Carbine noted that this is a problem that Mr. Frederick remarked that it is simple to get personal information that is on the Internet. By consensus, the Committee approved Rules 1-311, 20-107, and 20-203 as presented and Rule 20-106 as amended. Agenda Item 3. Consideration of proposed amendments to: Rule 6-456 (Modified Administration - Extension of Time to File a Final Report and to Make Distribution), Rule 10-106 (Appointment of Attorney or Investigator), Rule 10-201 (Petition for Appointment of a Guardian of the Person), and Rule 10-206 (Annual Report - Guardianship of a Minor or Disabled Person) _________________________________________________________________ Because Mr. Allen, Chair of the Probate/Fiduciary Subcommittee was not present, the Chair asked Ms. Margaret Phipps, Register of Wills for Calvert County, to help with the presentation of the Rules. The Chair presented Rule 6-456, Modified Administration Extension of Time to File a Final Report and to Make Distribution, for the Committee’s consideration. -37- MARYLAND RULES OF PROCEDURE TITLE 6 - SETTLEMENT OF DECEDENTS’ ESTATES CHAPTER 400 - ADMINISTRATION OF ESTATES AMEND Rule 6-456 by adding a new section (c) that permits a further extension, by adding a new section (d), containing a new form, and by making a stylistic change, as follows: Rule 6-456. MODIFIED ADMINISTRATION EXTENSION OF TIME TO FILE A FINAL REPORT AND TO MAKE DISTRIBUTION (a) Generally The initial time periods for filing a final report and for making distribution to each legatee and heir may be extended for 90 days if the personal representative and each interested person sign the form set out in section (b) of this Rule and file the form within 10 months of the date of appointment of the personal representative. (b) Form A consent to an extension of time to file a final report and to make distribution in a modified administration shall be in substantially the following form: BEFORE THE REGISTER OF WILLS FOR _____________________, MARYLAND IN THE ESTATE OF __________________________ Estate No. ________ Date of Death ________________________ Date of Appointment of Personal Representative _________________ CONSENT TO EXTEND TIME TO FILE FINAL REPORT AND TO MAKE DISTRIBUTION IN A MODIFIED ADMINISTRATION -38- We, the Personal Representative and Interested Persons in the above-captioned estate, consent to extend for 90 days the time to file a final report and to make distribution in the modified administration of the estate. We acknowledge that this consent must be filed within 10 months of the date of appointment of the personal representative. Personal Representative(s) (Type or Print Names) ________________________________ Name _______________________________ Signature ________________________________ Name _______________________________ Signature ________________________________ Name _______________________________ Signature Interested Persons (Type or Print Names) ________________________________ Name _______________________________ Signature ________________________________ Name _______________________________ Signature ________________________________ Name _______________________________ Signature (c) Further Extension A register of wills is permitted to extend the time periods -39- for filing a final report and for making distribution to each legatee and heir for an additional period not to exceed 90 days if a prior request for an additional extension had been filed, and the time periods have already been extended as permitted by section (a) of this Rule. The request shall be signed by the personal representative and consented to by each interested person. The request shall be delivered to the register of wills before the date for filing a final report as extended under section (a) of this Rule. (d) Form A request for and consent to an additional extension of the time period to file a final report and to make distribution to each legatee and heir in a modified administration shall be in substantially the following form: BEFORE THE REGISTER OF WILLS FOR _____________________, MARYLAND IN THE ESTATE OF __________________________ Estate No. ________ Date of Death ________________________ Date Final Report was Due After First Extension_________________ REQUEST FOR AND CONSENT TO FURTHER EXTEND TIME TO FILE A FINAL REPORT AND TO MAKE DISTRIBUTION IN A MODIFIED ADMINISTRATION I, the Personal Representative, in the above-captioned estate request an additional extension of time, not to exceed 90 -40- days, to file a final report and make distribution to each legatee and heir in the modified administration of the estate. Personal Representative(s) (Type or Print Names) ________________________________ Name _______________________________ Signature ________________________________ Name _______________________________ Signature ________________________________ Name _______________________________ Signature We, the Interested Persons, in the above-captioned estate consent to further extend for __________ days (not to exceed 90) the time to file a final report and to make distribution to each legatee and heir in the modified administration of the estate. We acknowledge that this consent has been delivered to the register of wills before the expiration of the first extension period for filing the final report. Interested Persons (Type or Print Names) ________________________________ Name _______________________________ Signature ________________________________ Name _______________________________ Signature ________________________________ Name _______________________________ Signature ___________________________________ Register of Wills -41- Source: The Rule is new. Rule 6-456 was accompanied by the following Reporter’s note. Chapter 30, Laws of 2015 (SB 418) amended Code, Estates and Trusts Article, §5703 to provide for a further extension of the time periods for filing a final report and for making distribution to each legatee and heir after the first extension of 90 days in a modified administration. The Probate/Fiduciary Subcommittee recommends amending Rule 6-456, including the addition of a new form, to conform to the statutory changes. The proposed amendment to Rule 6-456 was to add a new section (c) and (d). Their purpose is to conform the Rule to Chapter 30, Laws of 2015 (SB 418). Ms. Phipps said that in a modified administration probate, the personal representative and the interested persons can ask for a 90-day extension for filing a final report and making distribution to each legatee and heir. This happens automatically. However, this may not always solve the problem, so the personal representative and interested persons may need another extension, but this one cannot exceed 90 days. It has to be approved by the Register of Wills. The second extension is not automatic and has to be requested. The Chair said that he had a style issue pertaining to Rule 6-456. He referred to the language in section (a) that read: “...file the form within 10 months of the date...”. language be: “...within 10 months after the date...”? Should this Ms. Phipps responded that this means 10 months before the date. The Chair presented Rule 10-106, Appointment of Attorney or -42- Investigator, for the Committee’s consideration. MARYLAND RULES OF PROCEDURE TITLE 10 - GUARDIANS AND OTHER FIDUCIARIES CHAPTER 100 - GENERAL PROVISIONS AMEND Rule 10-106 by deleting language from and adding language to section (a), by adding a new subsection (a)(2) pertaining to disabled persons, and by making stylistic changes, as follows: Rule 10-106. INVESTIGATOR (a) APPOINTMENT OF ATTORNEY OR Appointment of Attorney by the Court (1) Minor Persons Upon the filing of a petition for guardianship of the person or property of a disabled person or minor who is not represented by an attorney, the court shall promptly may appoint an attorney for the disabled person and may appoint an attorney for the minor. The fee of an appointed attorney shall be fixed by the court and shall be paid out of the fiduciary estate or as the court shall direct. To the extent the estate is insufficient, the fee of an attorney appointed for a disabled person shall be paid by the State. (2) Disabled Persons Upon the filing of a petition for guardianship of the person or property of a disabled person who is not represented by an attorney, the court shall promptly appoint an attorney for the disabled person and may require the deposit of an appropriate sum into the court registry or the appointed attorney’s escrow account within 30 days after the order of appointment has been entered, subject to further order of the court. If the person is indigent, the State shall pay a reasonable attorney’s fee. The court may not require the deposit of an -43- appropriate sum into the court registry or the appointed attorney’s escrow account under this section if payment for the services of the court-appointed attorney for the alleged disabled person is the responsibility of (A) a government agency paying benefits to the disabled person, (B) a local department of Social Services, or (C) an agency’s eligible to serve as the guardian of the disabled person under Code, Estates and Trusts Article, §13-707. Cross reference: Code, Estates and Trusts Article, §§13-211 (b) and 13-705 (d). See also Rule 1.14 of the Maryland Lawyers' Rules of Professional Conduct with respect to the attorney's role and obligations. (b) Automatic Termination of Appointment; Continuation of Representation if Public Guardian Appointed If no appeal is taken from a judgment dismissing the petition or appointing a guardian other than a public guardian, the attorney's appointment shall terminate automatically upon expiration of the time for filing an appeal unless the court orders otherwise. If a public guardian has been appointed for the disabled person, the court shall either continue the attorney's appointment or appoint another attorney to represent the disabled person before the Adult Public Guardianship Review Board. Cross reference: §14-404 (c)(2). (c) Code, Family Law Article, Investigator The court may appoint an independent investigator to investigate the facts of the case and report written findings to the court. The fee of an appointed investigator shall be fixed by the court and shall be paid out of the fiduciary estate or as the court shall direct. To the extent the estate is insufficient, the fee of an independent investigator appointed by the court shall be paid by the State. -44- Source: This Rule is derived in part from former Rules R76 and V71 and is in part new. Rule 10-106 was accompanied by the following Reporter’s note. Chapter 400, Laws of 2015 (HB 109) amended Code, Estates and Trusts Article, §13-705 to add a provision that an attorney who has been appointed by the court to represent an alleged disabled person in a guardianship of the person proceeding may be required to deposit money into the court registry or into the attorney’s escrow account. The Probate/Fiduciary Subcommittee recommends amending Rule 10-106 (a) to conform to the amended statute. The Chair told the Committee that subsection (a)(2) of Rule 10-106 is intended to conform the Rule to Chapter 400, Laws of 2015 (HB 109). The Chair noted that there was a typographical error towards the end of subsection (a)(2). should be “agency.” The word “agency’s” Judge Bryant pointed out that in subsection (a)(1), the language “disabled person or” should be taken out, because disabled persons are covered in subsection (a)(2). By consensus, the Committee agreed with these suggestions. The Chair presented Rule 10-201, Petition for Appointment of a Guardian of the Person, for the Committee’s consideration. MARYLAND RULES OF PROCEDURE TITLE 10 - GUARDIANS AND OTHER FIDUCIARIES CHAPTER 200 - GUARDIAN OF PERSON AMEND Rule 10-201 by adding a new section (b) pertaining to the form of petition, by deleting current section (c), by -45- adding a new section (d) pertaining to attorney’s fees, by adding a cross reference after section (d), by adding a new section (e) containing a form for designation of a guardian of the person by a minor, by adding a cross reference at the end of the Rule, and by making stylistic changes, as follows: Rule 10-201. PETITION FOR APPOINTMENT OF A GUARDIAN OF THE PERSON (a) Who May File An interested person may file a petition requesting a court to appoint a guardian of a minor or alleged disabled person. (b) Form of Petition The petition for a guardianship of the person of a minor shall be filed in substantially the form set forth in Rule 10111. The petition for a guardianship of the person of an alleged disabled person shall be filed in substantially the form set forth in Rule 10-112. (b) (c) Venue (1) Resident If the minor or alleged disabled person is a resident of Maryland, the petition shall be filed in the county where (A) the minor or alleged disabled person resides or (B) the person has been admitted for the purpose of medical care or treatment to either a general or a special hospital which is not a State facility as defined in Code, Health-General Article, §10-406 or a licensed private facility as defined in Code, Health-General Article, §§10-501 to 10-511. (2) Nonresident If the minor or alleged disabled person does not reside in this State, a petition for guardianship of the person may -46- be filed in any county in which the person is physically present. (c) Contents The petition shall be captioned, "In the Matter of . . ." [stating the name of the minor or alleged disabled person]. It shall be signed and verified by the petitioner, may contain a request for the guardianship of property, and shall contain at least the following information: (1) The petitioner's name, address, age, and telephone number. (2) The petitioner's familial or other relationship to the minor or alleged disabled person. (3) Whether the person who is the subject of the petition is a minor or alleged disabled person, and, if an alleged disabled person, a brief description of the alleged disability and how it affects the alleged disabled person's ability to function. (4) The reasons why the court should appoint a guardian of the person and, if the subject of the petition is a disabled person, allegations demonstrating an inability of that person to make or communicate responsible decisions concerning the person, including provisions for health care, food, clothing, or shelter, because of mental disability, disease, habitual drunkenness or addiction to drugs, and a description of less restrictive alternatives that have been attempted and have failed. Cross reference: Code, Estates and Trusts Article, §13-705 (b). (5) An identification of any instrument nominating a guardian or constituting a durable power of attorney, with a copy attached to the petition, if possible, and, if not, an explanation of its absence. Cross reference: Code, Estates and Trusts Article, §13-701. -47- (6) If a guardian or conservator has been appointed for the alleged disabled person in another proceeding, the name and address of the guardian or conservator and the court that appointed the guardian or conservator. If a guardianship or conservatorship proceeding was previously filed in any other court, the name and address of the court, the case number, if known, and whether the proceeding is still pending in that court. (7) A list of (A) the name, age, sex, and address of the minor or alleged disabled person, (B) the name and address of the persons with whom the minor or disabled person resides, and (C) if the minor or alleged disabled person resides with the petitioner, the name and address of another person on whom service can be made. (8) The name, address, telephone number, and nature of interest of all other interested persons and all other persons exercising control of the minor or alleged disabled person, to the extent known or reasonably ascertainable. (9) If the minor or alleged disabled person is represented by an attorney, the name and address of the attorney. (10) A statement that the certificates required by Rule 10-202 are attached, or, if not, an explanation of their absence. (11) If the petition also seeks a guardianship of the property, the additional information required by Rule 10-301. (12) A statement of the relief sought. (d) Attorney’s Fees If a petition for attorney’s fees is filed by an interested person or an attorney employed by the interested person, the court may order reasonable and necessary attorney’s fees incurred in bringing a petition for the appointment of a guardian of the person of a disabled person to be paid from the estate of -48- the disabled person. The court shall consider the financial resources and needs of the disabled person and whether there was substantial justification for the filing of the petition for guardianship. The court may not award attorney’s fees if the petition for guardianship is brought by (1) a government agency paying benefits to the disabled person, (2) a local department of Social Services, or (3) an agency eligible to serve as the guardian of the disabled person under Code, Estates and Trusts Article, §13-707. Cross reference: Code, Estates and Trusts Article, §13-704. (e) Designation of a Guardian of the Person by a Minor After a minor’s 14th birthday, a minor may designate a guardian of the minor’s person substantially in the following form: [CAPTION] DESIGNATION OF A GUARDIAN OF THE PERSON BY A MINOR I, ___________________________________, a minor child, having attained my 14th birthday, declare: 1. I am aware of the Petition of __________________________ (petitioner’s name) to become the guardian of my person. 2. I hereby designate ____________________________________ as the Guardian of my person. 3. I understand that I have the right to revoke this designation at any time up to the granting of the guardianship. I solemnly affirm under the penalties of perjury that the contents of this document are true based upon my personal -49- knowledge. ______________________________ Signature of Minor Date Cross reference: See Code, Estates and Trusts Article, §13-702. Source: This Rule is derived as follows: Section (a) is derived from former Rule R71 a. Section (b) is new. Section (b) (c) is derived from former Rule R72 a and b. Section (c) is derived in part from former Rule R73 a and in part from former Rule V71 c. Section (d) is new. Section (e) is new. Rule 10-201 was accompanied by the following Reporter’s note. See the Reporter’s note to Rule 10-111 as to the form of the petition and to explain the deletion of section (c) of this Rule. The Chair said that Chapter 400, Laws of 2015 (HB 109) amends Code, Estates and Trusts Article, §13-704 and provides a mechanism for an interested person or an attorney employed by the interested person to receive attorney’s fees incurred in bringing a petition for appointment of the guardian of the person of a disabled person. The Probate/Fiduciary Subcommittee recommends amending Rule 10-201 to add a new section (d) setting out the procedure for obtaining attorney’s fees pursuant to Code, Estates and Trusts Article, §13-704. The Chair noted that the Subcommittee recommends the -50- addition of a form, “Designation of a Guardian of the Person by a Minor” to be consistent with Code, Estates and Trusts Article, §13-702. This form is based upon a draft submitted by a committee of registers of wills, Orphans’ Court judges and members of the bar, including members of the Estate and Trust Law Section of the Maryland State Bar Association. Ms. Phipps commented that section (d) had been added to Rule 10-201 to conform to Chapter 400, Laws of 2015 (HB 109). The Reporter pointed out that the statute goes into effect on October 1, 2015. The Chair presented Rule 10-206, Annual Report Guardianship of a Minor or Disabled Person, for the Committee’s consideration. MARYLAND RULES OF PROCEDURE TITLE 10 - GUARDIANS AND OTHER FIDUCIARIES CHAPTER 200 - GUARDIAN OF PERSON AMEND Rule 10-206 to change the title of the Rule, to amend the cross reference after section (a), to provide that the current “Annual Report of Guardian” form applies to guardianships of disabled persons, to add the word “caption” before the “Order” section of the form, to conform the affirmation clauses to other affirmation clauses in Title 10, and to make stylistic changes, as follows: Rule 10-206. ANNUAL REPORT - GUARDIANSHIP OF A MINOR OR DISABLED PERSON (a) Report Required A guardian, other Other than a -51- temporary guardian, a guardian of the person of a minor or disabled person shall file an annual report in the action. The reporting year shall end on (1) the anniversary of the date the court assumed jurisdiction over the person or (2) any other date approved by the trust clerk or the court. Cross reference: See Code, Estates and Trusts Article, §13-708 (b)(7), which provides that the court may appoint a guardian of the person of a disabled person for a limited period of time, and that the annual report may be filed biannually. (b) Time for Filing The report shall be filed not later than 60 days after the end of the reporting year, unless the court for good cause shown shall extend the time. (c) Copies to Interested Persons The guardian shall furnish a copy of the report to any interested person requesting it, unless the court orders otherwise. (d) Court Approval The court shall review the report and either enter an order accepting the report and continuing the guardianship or take other appropriate action. (e) Form of Annual Report of Guardian of Disabled Person The guardian's report shall be in substantially the following form: [CAPTION] ANNUAL REPORT OF __________________________________, GUARDIAN OF THE PERSON OF_________________________________, WHO IS DISABLED -52- 1. The name and permanent residence of the disabled person are:____________________________________________________________. 2. The disabled person currently resides or is physically present in: ____ own home ____ guardian's home ____ nursing home ____ hospital or medical facility ____ foster or boarding home ____ relative's home: _____________ relationship other ____ (If other than disabled person's permanent home, state the name and address of the place where the disabled person lives _______ _______________________________________________________________.) 3. The disabled person has been in the current location since _____________. (date) If the person has moved within the past year, the reasons for the change are: ____________________________________ ________________________________________________________________. 4. The physical and mental condition of the disabled person is as follows: ____________________________________________________ ________________________________________________________________. 5. During the past year, the disabled person's physical or mental condition has changed in the following respects: ________ ________________________________________________________________ ________________________________________________________________. 6. The disabled person is presently receiving the following care: __________________________________________________________ ________________________________________________________________. -53- 7. I have applied funds as follows from the estate of the disabled person for the purpose of support, care, or education: ________________________________________________________________ ________________________________________________________________. 8. The plan for the disabled person's future care and wellbeing, including any plan to change the person's location, is: ________________________________________________________________ ________________________________________________________________. 9. [ ] I have no serious health problems that affect my ability to serve as guardian. [ ] I have the following serious health problems that may affect my ability to serve as guardian: ________________________ ________________________________________________________________. 10. This guardianship [ ] should be continued. [ ] should not be continued, for the following reasons: ____________________________________________________ ___________________________________________________. 11. My powers as guardian should be changed in the following respects and for the following reasons: ________________________ ________________________________________________________________ ________________________________________________________________. 12. The court should be aware of the following other matters relating to this guardianship: _________________________________ ________________________________________________________________ -54- ________________________________________________________________. I solemnly affirm under the penalties of perjury that the contents of this report document are true to the best of my knowledge, information, and belief. __________________________ Date _________________________________ Guardian's Signature _________________________________ Guardian's Name (typed or printed) _________________________________ Street Address or Box Number _________________________________ City and State _________________________________ Telephone Number [CAPTION] ORDER The foregoing Annual Report of a Guardian having been filed and reviewed, it is by the Court, this ___ day of ______________, _______. (month) (year) ORDERED, that the report is accepted, and the guardianship is continued. (or) ORDERED, that a hearing shall be held in this matter on ________________________. (date) _____________________________ JUDGE -55- (f) Form of Annual Report of Guardian of Minor [CAPTION] ANNUAL REPORT OF ________________________, GUARDIAN OF THE PERSON OF _____________________________, WHO IS A MINOR 1. The name and permanent residence of the minor are: _______________________________________________________________. 2. The minor currently resides or is physically present in: ____ own home ____ hospital or medical facility ____ foster or boarding home ____ relative’s home: _____________ relationship ____ guardian’s home ____ other (If other than minor’s permanent home, state the name and address of the place where the minor lives _____________________________ _______________________________________________________________.) 3. The minor has been in the current location since _____________. (date) If the person has moved within the past year, the reasons for the change are: ____________________________________ ________________________________________________________________. 4. The physical and mental condition of the minor is as follows: _______________________________________________________ ________________________________________________________________. 5. During the past year, the minor’s physical or mental condition has changed in the following respects: _______________ ________________________________________________________________ -56- ________________________________________________________________. 6. The minor is presently receiving the following care: ________________________________________________________________ ________________________________________________________________. 7. I have applied funds as follows from the estate of the minor for the purpose of support, care, or education: ________________________________________________________________ ________________________________________________________________. 8. The plan for the minor’s future care and well-being, including any plan to change the person's location, is: ________________________________________________________________ ________________________________________________________________. 9. [ ] I have no serious health problems that affect my ability to serve as guardian. [ ] I have the following serious health problems that may affect my ability to serve as guardian: ________________________ ________________________________________________________________. 10. This guardianship [ ] should be continued. [ ] should not be continued, for the following reasons: ____________________________________________________ ___________________________________________________. 11. My powers as guardian should be changed in the following respects and for the following reasons: ________________________ ________________________________________________________________ -57- ________________________________________________________________. 12. The court should be aware of the following other matters relating to this guardianship: _________________________________ ________________________________________________________________ ________________________________________________________________. I solemnly affirm under the penalties of perjury that the contents of this document are true to the best of my knowledge, information, and belief. __________________________ Date _________________________________ Guardian's Signature _________________________________ Guardian's Name (typed or printed) _________________________________ Street Address or Box Number _________________________________ City and State _________________________________ Telephone Number [CAPTION] ORDER The foregoing Annual Report of a Guardian having been filed and reviewed, it is by the Court, this ___ day of ______, ______, (month) (year) ORDERED, that the report is accepted, and the guardianship is continued. (or) -58- ORDERED, that a hearing shall be held in this matter on _________________________. (date) _____________________________ JUDGE Source: This Rule is new and is derived as follows: Section (a) is derived from Code, Estates and Trusts Article, §13-708 (b)(7) and former Rule V74 c 2 (b). Section (b) is derived from former Rule V74 c 2 (b). Section (c) is patterned after Rule 6-417 (d). Sections (d) and (e) are new. Section (f) is new. Rule 10-206 was accompanied by the following Reporter’s note. Guardians of disabled persons had been required by statute to file an annual report informing the court of the status of the guardianship. Chapter 412, Laws of 2015 (HB 293) amended the statute, Code, Estates and Trusts Article, §13-708, to provide that the court may appoint a guardian of the person of a disabled person for a limited period of time and that the report may be filed biannually. The Probate/Fiduciary Subcommittee recommends that the cross reference after section (a) of Rule 10-206 be amended to refer to this change in the statute. An attorney had suggested that there be a similar report for minor persons who are the subject of a guardianship, noting that the court should also be monitoring guardianship of minors. The Rules Committee had approved amending Rule 10-206 to make it applicable to guardianship of minors and to add a form parallel to the report form for guardianships of disabled persons. A clerk has suggested that the word “Caption” be added before the word “Order” in the order forms. The addition of the word -59- indicates that the order should be on a separate piece of paper, making it more convenient for the clerks to use and docket the form separately. See the Reporter’s note to the deletion of Rule 6-123 for the change to the affirmation clause. Judge Nazarian pointed out that section (a) of Rule 10-206 refers to an annual report, but the cross reference after section (a) states that the report can be filed biannually to track the statute, Chapter 412, Laws of 2015 (HB 293). Or is the “annual report” a term of art that now by statute means that it could be biannual? Ms. Phipps explained that if a guardian dies and another one needs to be appointed, the biannual report is to catch what happens in between the two guardianships, so the report could be biannual or annual. By consensus, the Committee approved Rules 6-456, 10-201, and 10-206 as presented and Rule 10-106 as amended. Agenda Item 4. Consideration of proposed amendments to: Rule 16-1005 (Case Records - Required Denial of Inspection - In General), Rule 16-1006 (Required Denial of Inspection - Certain Categories of Case Records), and Rule 16-1009 (Court Order Denying or Permitting Inspection of Case Record) _________________________________________________________________ The Chair presented Rule 16-1005, Case Records - Required Denial of Inspection - In General, for the Committee’s consideration. MARYLAND RULES OF PROCEDURE TITLE 16 - COURTS, JUDGES, AND ATTORNEYS CHAPTER 1000 - ACCESS TO COURT RECORDS -60- AMEND Rule 16-1005 by adding a cross reference following section (b), as follows: Rule 16-1005. CASE RECORDS - REQUIRED DENIAL OF INSPECTION - IN GENERAL . . . (b) Unless inspection is otherwise permitted by the Rules in this Chapter, a custodian shall deny inspection of a case record or any part of a case record if inspection would be contrary to a statute enacted by the Maryland General Assembly, other than the Maryland Public Information Act (Code, General Provisions Article, Title 4), that expressly or by necessary implication applies to a court record. Cross reference: For an example of a statute enacted by the General Assembly that restricts inspection of a case record, see Code, Criminal Procedure Article, Title 10, Subtitle 3. Committee note: Subsection (a)(5) allows a court to seal a record or otherwise preclude its disclosure. So long as a court record is under seal or subject to an order precluding or limiting disclosure, it may not be disclosed except in conformance with the order. The authority to seal a court record must be exercised in conformance with the general policy of these Rules and with supervening standards enunciated in decisions of the United States Supreme Court and the Maryland Court of Appeals. Source: This Rule is new. Rule 16-1005 was accompanied by the following Reporter’s note. A proposed amendment to Rule 16-1005 adds a cross reference to Code, Criminal Procedure Article, Title 10, Subtitle 3, which requires that certain criminal case records be shielded, and which also provides -61- for certain exceptions where inspection is to be permitted. A comparable change will be proposed for Rule 16-905 (Case Records - Required Denial of Inspection - In General), which is currently before the Court as part of the 178th Report, Part I. The Chair told the Committee that a cross reference to Chapter 3l3, Laws of 2015 (HB 244), the Second Chance Act, had been added after section (b) of Rule 16-1005. The statute provides for the shielding of certain criminal records, but it is not part of the Public Information Act (Code, General Provisions Article, Title 4, Subtitle 3). Under the Access Rules, if the legislature provides for shielding by statute other than the PIA, the record is shielded. Rule 16-1005 does not incorporate all of the PIA, because that Act provides for shielding subject to court rules. But if the legislature passes another statute to shield, then the record or records are shielded. The cross reference is added to Rule 16-1005 to draw attention to the statute. By consensus, the Committee approved the proposed change to Rule 16-1005 as presented. The Chair presented Rule 16-1006, Required Denial of Inspection - Certain Categories of Case Records, for the Committee’s consideration. MARYLAND RULES OF PROCEDURE TITLE 16 - COURTS, JUDGES, AND ATTORNEYS CHAPTER 1000 - ACCESS TO COURT RECORDS -62- AMEND Rule 16-1006 by adding a new subsection (h)(7), as follows: Rule 16-1006. REQUIRED DENIAL OF INSPECTION - CERTAIN CATEGORIES OF CASE RECORDS . . . (h) The following case records in criminal actions or proceedings: (1) A case record that has been ordered expunged pursuant to Rule 4-508. (2) The following case records pertaining to search warrants: (A) The warrant, application, and supporting affidavit, prior to execution of the warrant and the filing of the records with the clerk. (B) Executed search warrants and all papers attached thereto filed pursuant to Rule 4-601. (3) The following case records pertaining to an arrest warrant: (A) A case record pertaining to an arrest warrant issued under Rule 4-212 (d) and the charging document upon which the warrant was issued until the conditions set forth in Rule 4-212 (d)(3) are satisfied. (B) Except as otherwise provided in Code, General Provisions Article, §4-316, a case record pertaining to an arrest warrant issued pursuant to a grand jury indictment or conspiracy investigation and the charging document upon which the arrest warrant was issued. (4) A case record maintained under Code, Courts Article, §9-106, of the refusal of a person to testify in a criminal action against the person's spouse. (5) A presentence investigation report -63- prepared pursuant to Code, Correctional Services Article, §6-112. (6) A case record pertaining to a criminal investigation by (A) a grand jury, (B) a State's Attorney pursuant to Code, Criminal Procedure Article, §15-108, (C) the State Prosecutor pursuant to Code, Criminal Procedure Article, §14-110, or (D) the Attorney General when acting pursuant to Article V, §3 of the Maryland Constitution or other law. Committee note: Although this Rule shields only case records pertaining to a criminal investigation, there may be other laws that shield other kinds of court records pertaining to such investigations. This Rule is not intended to affect the operation or effectiveness of any such other law. (7) A case record required to be shielded by Code, Criminal Procedure Article, Title 10, Subtitle 3. . . . Rule 16-1006 was accompanied by the following Reporter’s note. A new subsection (h)(7) is proposed to be added to Rule 16-1006 to add to the category of criminal case records that are required to be shielded by Code, Criminal Procedure Article, Title 10, Subtitle 3. Those provisions require the shielding of certain criminal records, but also set forth exceptions to permit inspection for certain purposes. A comparable change will be proposed for Rule 16-906 (Required Denial of Inspection Certain Categories of Case Records), which is currently before the Court as part of the 178th Report, Part I. The Chair explained that the change to Rule 16-1006, which adds subsection (h)(7), implements Chapter 313, Laws of 2015 (HB -64- 244), the Second Chance Act. By consensus, the Committee approved the proposed change to Rule 16-1006 as presented. The Chair presented Rule 16-1009, Court Order Denying or Permitting Inspection of Case Record, for the Committee’s consideration. MARYLAND RULES OF PROCEDURE TITLE 16 - COURTS, JUDGES, AND ATTORNEYS CHAPTER 1000 -ACCESS TO COURT RECORDS AMEND Rule 16-1009 by specifying that a motion to shield a court record pursuant to Code, Criminal Procedure Article, Title 10, Subtitle 3 be filed in the county where the judgment of conviction was entered; by requiring that service be provided in accordance with the statute; by specifying that subsection (b)(1) does not apply to petitions filed under the statute; by requiring that a final order granting relief under the statute include the applicable provisions of the statute; by adding certain provisions pertaining to actions that were removed pursuant to Rule 4-254; by providing that a certain order not be open to public inspection if otherwise provided by law; and by making stylistic changes, as follows: Rule 16-1009. COURT ORDER DENYING OR PERMITTING INSPECTION OF CASE RECORD (a) Motion (1) A party to an action in which a case record is filed, including a person who has been permitted to intervene as a party, and a person who is the subject of or is specifically identified in a case record may file a motion: -65- (A) to seal or otherwise limit inspection of a case record filed in that action that is not otherwise shielded from inspection under the Rules in this Chapter or Title 20; or (B) to permit inspection of a case record filed in that action that is not otherwise subject to inspection under the Rules in this Chapter or Title 20. (2) The Except as provided in subsection (a)(3) of this Rule, the motion shall be filed with the court in which the case record is filed and shall be served on: (A) all parties to the action in which the case record is filed; and (B) each identifiable person who is the subject of the case record. (3) A petition to shield a court record pursuant to Code, Criminal Procedure Article, Title 10, Subtitle 3 shall be filed in the county where the judgment of conviction was entered, and service shall be provided in accordance with the statute. (b) Shielding Upon Motion or Request (1) Preliminary Shielding upon Motion Subsection (b)(1) of this Rule does not apply to a petition filed pursuant to Code, Criminal Procedure Article, Title 10, Subtitle 3. Upon the filing of a motion to seal or otherwise limit inspection of a case record pursuant to section (a) of this Rule, the custodian shall deny inspection of the case record for a period not to exceed five business days, including the day the motion is filed, in order to allow the court an opportunity to determine whether a temporary order should issue. (2) Shielding upon Request If a request to shield information in a case record is filed by or on behalf of a -66- person entitled to request the shielding under Code, Courts Article, Title 3, Subtitle 15 (peace orders) or Code, Family Law Article, Title 4, Subtitle 5 (domestic violence), and the request is granted, or if a request to shield the address or telephone number of a victim, victim's representative, or witness is filed in a criminal action, and the request is granted, a custodian shall deny inspection of the shielded information. The shield remains in effect until terminated or modified by order of court. If the request is denied, the person seeking to shield information may file a motion under section (a) of this Rule. Committee note: If a court or District Court Commissioner grants a request to shield information under subsection (b)(2) of this Rule, no adversary hearing is held unless a person seeking inspection of the shielded information files a motion under section (a) of this Rule. (c) Temporary Order Precluding or Limiting Inspection (1) The court shall consider a motion filed under this Rule on an expedited basis. (2) In conformance with the provisions of Rule 15-504 (Temporary Restraining Order), the court may enter a temporary order precluding or limiting inspection of a case record if it clearly appears from specific facts shown by affidavit or other statement under oath that (A) there is a substantial basis for believing that the case record is properly subject to an order precluding or limiting inspection, and (B) immediate, substantial, and irreparable harm will result to the person seeking the relief if temporary relief is not granted before a full adversary hearing can be held on the propriety of a final order precluding or limiting inspection. (3) A court may not enter a temporary order permitting inspection of a case record that is not otherwise subject to inspection -67- under the Rules in this Chapter in the absence of an opportunity for a full adversary hearing. (d) Final Order (1) After an opportunity for a full adversary hearing, the court shall enter a final order: (A) precluding or limiting inspection of a case record that is not otherwise shielded from inspection under the Rules in this Chapter; (B) permitting inspection, under such conditions and limitations as the court finds necessary, of a case record that is not otherwise subject to inspection under the Rules in this Chapter; or (C) denying the motion. (2) A final order shall include findings regarding the interest sought to be protected by the order. (3) A final order that precludes or limits inspection of a case record shall be as narrow as practicable in scope and duration to effectuate the interest sought to be protected by the order. (4) A final order granting relief under Code, Criminal Procedure Article, Title 10, Subtitle 3 shall include the applicable provisions of the statute. If the order pertains to a judgment of conviction in an action that was removed pursuant to Rule 4254, the order shall apply to the records of each court in which there is a record of the action, and the clerk shall transmit a copy of the order to each such court. (4) (5) In determining whether to permit or deny inspection, the court shall consider: (A) if the motion seeks to preclude or limit inspection of a case record that is otherwise subject to inspection under the -68- Rules in this Chapter, whether a special and compelling reason exists to preclude or limit inspection of the particular case record; and (B) if the motion seeks to permit inspection of a case record that is otherwise not subject to inspection under the Rules in this Chapter, whether a special and compelling reason exists to permit inspection. (C) if the motion seeks to permit inspection of a case record that has been previously sealed by court order under subsection (d)(1)(A) of this Rule and the movant was not a party to the case when the order was entered, whether the order satisfies the standards set forth in subsections (d)(2), (3), and (4)(A) of this Rule. (5) (6) Unless the time is extended by the court on motion of a party and for good cause, the court shall enter a final order within 30 days after a hearing was held or waived. (e) Filing of Order A copy of any preliminary temporary or final order shall be filed in the action in which the case record in question was filed and, except as otherwise provided by law, shall be subject to public inspection. (f) Non-exclusive Remedy This Rule does not preclude a court from exercising its authority at any time to enter an order that seals or limits inspection of a case record or that makes a case record subject to inspection. Source: This Rule is new. Rule 16-1009 was accompanied by the following Reporter’s note. -69- The Maryland Second Chance Act of 2015 (“the Act”), Chapter 313, Laws of 2015, effective October 1, 2015, will permit a person to petition a court to shield the person’s court records relating to one or more shieldable convictions, subject to certain restrictions and exceptions. The intent of the amendments proposed to Rule 161009 is to harmonize the Rule to the statute. New subsection (a)(3) is proposed to provide that a petition to shield a court record pursuant to the Act shall be filed in the county where the judgment of conviction was entered. It was anticipated that there may be some confusion in cases where an action had been removed from one county to another. Also, subsection (a)(3) specifies that service shall be provided in accordance with the Act. This proposal is necessary because Code, Criminal Procedure Article, §10-303 (e)(1) conflicts with the Rule by requiring that “the Court shall have a copy of the petition for shielding served on the State’s Attorney,” and §10-303 (f) requires the court to send written notice of the proposed action to all listed victims to advise them of the right to offer information relevant to the shielding. In contrast, Rule 16-1009 (a)(2) imposes on the movant the duty to serve the motion on all parties to the action and each identifiable person who is the subject of the case record. New subsection (d)(4) of Rule 16-1009 requires that an order granting relief under the Act include the applicable provisions of the statute. As such, the court will be “order[ing] the shielding of all police records and court records relating to the conviction or convictions” pursuant to Code, Criminal Procedure Article, §10-303 (f)(2), and the records, although shielded, are to remain “fully accessible by” the person listed in Code, Criminal Procedure Article, §10-302 (b). Subsection (d)(4) also addresses a gap in the statute by providing that, if the order pertains to a judgment of conviction in an action that was removed pursuant to Rule 4-254, the order shall apply -70- to the records of each court in which there is a record of the action, and by requiring the clerk to transmit a copy of the order to each such court. Two changes are proposed to section (e). First, the word “temporary” is proposed to substitute for the word “preliminary,” for the sake of consistency between sections (c) and (e). Second, an amendment is proposed to state that a copy of a temporary or final order shall be subject to public inspection, except as otherwise provided by law. The exception that is added reflects that, in addition to the Second Chance Act, there are other laws that direct that the shielding of court records must include the court orders in the case. In Code, Criminal Procedure Article, §10-301(b) the term “court record” is defined to have the meaning stated in Code, Criminal Procedure Article, §10-101. Section 10-101 (c)(2)(ii) defines a court record to include “an index, docket entry, charging document, pleading, memorandum, transcription of proceedings, electronic recording, order, and judgment.” Similarly, in two other shielding statutes, Code, Courts Article, §3-1510 (a)(2)(ii)2 and Code, Family Law Article, §4-512 (a)(2)(ii)1, the term “court record” is defined to include “an index, a docket entry, a petition, a memorandum, a transcription of proceedings, an electronic recording, an order, and a judgment.” A comparable change will be proposed to Rule 16-909 (Court Order Denying or Permitting Inspection of Case Record), which is currently before the Court as part of the 178th Report, Part I. The Chair pointed out that the statute, Chapter 313, Laws of 2015 (HB 244), the Second Chance Act, does not directly shield the criminal records listed. It requires a petition to shield, and the court has some discretion. this petition procedure. The question was where to put Rule 16-1009 is an existing Access Rule -71- that provides that if a record is not shielded by law, and someone would like for it to be shielded, the person can file a petition to shield. The reverse is true. If a record is already shielded, and someone would like for it to be opened, the person can follow the procedure set out in Rule 16-1009. This seemed to be the best approach for bringing in the procedure in the Second Chance Act. The Chair noted that there was one problem that the legislature did not address. It probably will never happen given the fact that the crimes for the convictions for which can be shielded are relatively minor (although they are not all District Court offenses; some are felonies that are tried in the circuit court). This is not a problem in the District Court, because even if the record is not shielded, the person has to file a petition in the District Court in the county where the case was tried. There are no removals in the District Court according to Ms. Roberta Warnken, the Chief Clerk of the District Court. If a case is filed in Carroll County District Court, and a person does not like the judge assigned to the case, as long as the assigned judge agrees, another judge will be brought in to sit in place of the assigned judge, but the case is not sent out to another county. It is called “reassignment,” not “removal.” The Chair said that in the circuit court, a case can be removed to another county. Under Rule 4-254, Reassignment and -72- Removal, which applies in the circuit court, if a case starts in the Circuit Court for Carroll County, and a petition to remove it is granted, the case could be moved to Baltimore County, and the State’s Attorney for Carroll County will come to Baltimore County to try that case. The Carroll County court will have a file, because that is where the case was started. Carroll County will send whatever is in the file to Baltimore County, but Carroll County will still have a file. The Chair commented that according to Rule 4-254, if there is a conviction in Baltimore County, that county will open its own file for the case, so there will be a Baltimore County file and a Carroll County file. Whatever happens in Baltimore County, whether it is a conviction, a dismissal, or an acquittal, will get recorded in the Baltimore County file, and the clerk in Baltimore County is required by Rule 4-254 to then send a certified copy of the docket entries back to Carroll County. The clerk of Carroll County will then file that certificate of the docket entries, so that both courts have a file, and both files will reflect a conviction, if the defendant was convicted. The Chair commented that the statute provides that someone can only file a petition to shield the record in one county. In that rare situation where there has been a removal in the circuit court, two courts will have a record of the conviction, but the defendant can file a petition in only one county. small glitch. This is the The likelihood of this happening is rather remote -73- simply because the crimes for which the petitions can be filed are not likely to be ones where someone would get a removal, but it is theoretically possible. The Chair said that he had spoken with Robin Coffin, Esq., Deputy State’s Attorney for Baltimore County, about how Baltimore County handles this removal situation. has been the procedure there. She confirmed that this The Rule was drafted so that the defendant files the petition in the court where the case started. If the case has been removed and tried in another county, the petition is filed in that county, because they will have the entire record, since the case was tried there. If the defendant was convicted, and the judge in the county where the case was tried decides that the matter falls within the statute and the record is shieldable, that county will shield their file and send the order back to the original county. It will be a kind of res judicata situation, and the original county will shield whatever record it has. It is only a docket entry, but it shows the conviction. The Chair explained that the theory is that it is the same parties, the same State’s Attorney, and the same defendant. The original county should be bound by the judgment in the county to which the case was removed. This was the only way that the drafters of Rule 16-1009 could think of to get around the fact that the defendant cannot file the petition in both courts. legislature could fix this if it so chooses. -74- The A comparable change will have to be made to proposed Rule 16-910, Procedures for Compliance, which is the revision of Rule 16-1009 that is in Part I of the 178th Report to the Court of Appeals. What the Committee does with Rule 16-1009 will be reflected in proposed Rule 16-910. The Chair noted that there is one more glitch. The statute has certain procedural provisions in it that have to be followed. The Criminal Subcommittee will have to discuss this. In subsection (a)(3), a period should be added after the word “entered.” The next sentence should be: “Service shall be provided and proceedings shall be held as directed in that Subtitle.” This would leave no ambiguity. The Chair commented that one of the problems that the legislature did not address is the issue of victims. is a little vague about victims. The statute It requires that the court serve the petition on the State’s Attorney, and there is a provision in the statute that in the final order that the judge makes, the judge has to consider anything that the victim might want to say. This assumes that the victim has been informed about this proceeding. The statute contains no provision for actual service on the victim, but only on the State’s Attorney. The theory is probably that the victim has filed a request for notice. The State’s Attorney will have a copy of this, and so will the clerk. The Chair said that he was not sure how many of the crimes listed in the statute would even have victims. -75- A few crimes may have victims, including the crime of malicious destruction of property where there is a right of restitution. Judge Ellinghaus-Jones referred to the issue of cases that are removed to the circuit court. She asked whether language should be added to Rule 16-1009 to include cases that are appealed from the District Court to the circuit court. The conviction would be in the circuit court, but the District Court would still have a record. The appeals are usually all de novo, so the conviction would be in the circuit court. By analogy, when an expungement is filed, it has to be filed in the circuit court if it is an expungeable offense. She explained that when an offense is expunged in the circuit court, that court’s order directs the District Court to expunge the offense also when the case had been appealed from the District Court. The Chair agreed that cases that had been appealed from the District Court to the circuit court should be included in the scope of Rule 16-1009. The Style Subcommittee can find a way to draft this. The Reporter noted that language could be added to subsection (d)(4) to address it. By consensus, the Committee approved the proposed changes to Rule 16-1009, subject to the change suggested by Judge Ellinghaus-Jones to add language to cover appeals from the District Court to the circuit court. Agenda Item 5. Reconsideration of proposed revised Rules to be included in the 178th Report, Part III - Rule 19-102 (State Board of Law Examiners), Rule 19-103 (Character Committees), Rule 19-104 (Subpoena Power), Rule 19-105 (Confidentiality), -76- Rule 19-202 (Application for Admission and Preliminary Determination of Eligibility), Rule 19-203 (Character Review), Rule 19-204 (Petition to Take a Scheduled Examination), and Rule 19-206 (Bar Examination) _________________________________________________________________ Mr. Frederick presented Rules 19-102, State Board of Law Examiners; 19-103, Character Committees; 19-104, Subpoena Power; 19-105, Confidentiality; 19-202, Application for Admission and Preliminary Determination of Eligibility; 19-203, Character Review; 19-204, Petition to Take a Scheduled Examination; and 19206, Bar Examination, for the Committee’s consideration. MARYLAND RULES OF PROCEDURE TITLE 19 – ATTORNEYS CHAPTER 100 – STATE BOARD OF LAW EXAMINERS AND CHARACTER COMMITTEES Rule 20. 19-102. EXAMINERS (a) THE STATE BOARD OF LAW Appointment There is a State Board of Law Examiners. The Board shall consist of seven members appointed by the Court. Each member shall have been admitted to practice law in Maryland. The terms of members shall be as provided in Code, Business Occupations and Professions Article, §10-202 (c). (b) Quorum A majority of the authorized membership of the Board is a quorum. (a) (c) Authority to Adopt Rules (1) Generally The Board shall exercise the authority and perform the duties assigned to -77- it by the Rules in this Chapter and Chapter 200 of this Title, including general supervision over the character and fitness requirements and procedures set forth in those Rules and the operations of the character committees. (2) Adoption of Rules The Board may adopt rules to carry out the requirements of these Rules and to facilitate the conduct of examinations this Chapter and Chapter 200 of this Title. The Rules of the Board shall be published in the Code, Maryland Rules this Chapter, following these Rules Rule 19-220. (b) (d) Amendment of Board Rules Publication Any amendment of the Board's rules shall be published at least once in a daily newspaper of general circulation in this State. The amendment shall be published posted on the Judiciary website at least 45 days before the examination at which it is to become effective, except that an amendment that substantially increases the area of subject-matter knowledge required for any examination shall be published posted at least one year before the examination. (c) (e) Professional Assistants The Board may appoint the professional assistants necessary for the proper conduct of its business. Each professional assistant shall be an attorney admitted by the Court of Appeals and shall serve at the pleasure of the Board. Committee note: Professional assistants primarily assist in writing and grading the bar examination. Section (e) does not apply to the Secretary or administrative staff. (d) (f) Compensation of Board Members and Assistants -78- The members of the Board and assistants shall receive the compensation fixed from time to time by the Court. (e) (g) Secretary to the Board The Court may appoint a secretary to the Board, to hold office during at the pleasure of the Court. The secretary shall have the administrative powers and duties that prescribed by the Board may prescribe and shall serve as the administrative director of the Office of the State Board of Law Examiners. (h) Fees The Board shall prescribe the fees, subject to approval by the Court, to be paid by applicants under Rules 2 19-202 and 7 19206 and by petitioners under Rule 13 19-212. Cross reference: See Code, Business Occupations and Professions Article, §10-208 (b) for maximum examination fee allowed by law. Source: This Rule is derived as follows: Section (a) is derived from former Rule 7 h and 9 a new. Section (b) is new. Sections (c) through (g) are derived from former Rule 20 of the Rules Governing Admission to the Bar of Maryland (2015). Section (h) is derived from former Rule 18 of the Rules Governing Admission to the Bar of Maryland (2015). Section (b) is derived from former Rule 7 h and i. Section (c) is derived from former Rule 9 c. Section (d) is derived from former Rule 16. Section (e) is derived from former Rule 17. Rule 19-102 was accompanied by the following Reporter’s note. -79- Rule 19-102 is derived from current RGAB 20 and 18, with style changes. Sections (a) and (b) are new and include the provisions of Code, Business Occupations and Professions Article, §10-202 concerning the composition of the Board and quorum requirements. Subsection (c)(1) is new. It implements a recommendation of the Maryland Professionalism Center Bar Admission Task Force that the character and fitness procedure be put under the purview of the Board. Section (d) is updated to require posting on the Judiciary website, rather than publication in a newspaper. Section (e) is clarified by the addition of the word “professional” in the tagline and text and by the addition of a Committee note. MARYLAND RULES OF PROCEDURE TITLE 19 – ATTORNEYS CHAPTER 100 – STATE BOARD OF LAW EXAMINERS AND CHARACTER COMMITTEES Rule 17. 19-103. CHARACTER COMMITTEES The Court shall appoint a Character Committee for each of the seven Appellate Judicial Circuits of the State. Each Character Committee shall consist of not less than five members whose terms shall be five years each, except that in the Sixth Appellate Judicial Circuit the term of each member shall be two years. The terms shall be staggered. The Court shall designate the chair of each Committee and vice chair, if any, and may provide compensation to the members. For each application referred to a Character Committee, the Board shall remit to -80- the Committee a sum to defray some of the expense of the investigation. Cross reference: See Rule 19-203 for the Character Review Procedure. Source: This Rule is derived from former Rule 4 a and e 17 of the Rules Governing Admission to the Bar of Maryland (2015). Rule 19-103 was accompanied by the following Reporter’s note. Rule 19-103 is derived from current RGAB 17, with the addition of a reference to a vice chair, if any, and a cross reference to the Rule concerning the character review procedure itself. The reference to “compensation” is replaced by a sentence that more accurately describes the sums paid by the Board to the Character Committees. MARYLAND RULES OF PROCEDURE TITLE 19 – ATTORNEYS CHAPTER 100 – STATE BOARD OF LAW EXAMINERS AND CHARACTER COMMITTEES Rule 22. 19-104. SUBPOENA POWER OF BOARD AND CHARACTER COMMITTEES (a) Subpoena (1) Issuance In any proceeding before the Board or a Character Committee pursuant to Bar Admission Rule 5 19-203 or Bar Admission Rule 13 19-212, the Board or Committee, on its own motion initiative or the motion of an applicant, may cause a subpoena to be issued -81- by a clerk pursuant to Rule 2-510. The subpoena shall issue from the Circuit Court for Anne Arundel County if incident to Board proceedings or from the circuit court in the county in which the Character Committee proceedings are is pending, and the. The proceedings may shall not be docketed in the issuing court and shall be sealed and shielded from public inspection. (2) Name of Applicant The subpoena shall not divulge the name of the applicant, except to the extent this requirement is impracticable. (3) Return The sheriff's return shall be made as directed in the subpoena. (4) Dockets and Files The Character Committee or the Board, as applicable, shall maintain dockets and files of all papers filed in the proceedings. (5) Action to Quash or Enforce Any action to quash or enforce a subpoena shall be filed under seal and docketed as a miscellaneous action in the court from where the subpoena was issued. Cross reference: See Rule 16-906 (e)(3). (b) Sanctions If a person is subpoenaed to appear and give testimony or to produce books, documents, or other tangible things and fails to do so, the party who requested the subpoena, by motion that does not divulge the name of the applicant, (except to the extent that this requirement is impracticable), may request the court to issue an attachment pursuant to Rule 2-510 (j), or to cite the person for contempt pursuant to Title 15, Chapter 200 of the Maryland Rules, or both. Any such motion shall be filed under seal. -82- (c) Court Rules Costs Al [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/court_rules%3Amd%3A57067de02a95089a. Public record. Not legal advice.