On October 5, 2020, Maryland state courts entered Phase V, the fifth and final phase of the Court of Appeals’ progressive COVID-19 reopening plan. Jury trials and full in-person operations resumed, albeit with now-ubiquitous precautions in place: face masks, pandemic screening questions, contactless temperature checks, and social distancing. Now, with COVID-19 cases and infection rates surging in Maryland and nationwide, Maryland’s courts find themselves again restricting operations to ensure the health and safety of courthouse personnel, litigants, and the public at large. The courts’ “retreat from full operational functions” is outlined in Chief Judge Mary Ellen Barbera’s latest series of Administrative Orders, issued on November 12, 2020.
Under the new Orders, effective beginning Monday, November 16 and running through Thursday, December 31, 2020 (pending any further order from the Court), all Maryland state courts will return to Phase III of operations. Courts are “authorized and encouraged to conduct remote proceedings to the greatest extent possible,” so long as they provide adequate notice to all participants. If matters can be addressed without a hearing, courts are permitted and encouraged to do so. In order to satisfy social distancing requirements, administrative judges are authorized to limit the total number of people entering the courthouse or a particular courtroom. Jury trials scheduled to commence between now and December 31 will be postponed and rescheduled. Civil jury trials will be rescheduled on dates beginning January 4, 2021 and after, but with priority given to criminal trials and other urgent matters. Litigants’ concerns regarding Scheduling Orders in civil, family law, and appellate cases will be addressed by motion on a case-by-case basis.
In response to what she described as “inconsistent interpretations and compliance” that “have resulted in health concerns being raised by Judiciary personnel, justice system stakeholders, and members of the public,” Judge Barbera issued a Third Administrative Order focused specifically on clarifying the COVID-19 health measures that apply in state courthouses. Noting that the “efficacy of wearing face masks and social distancing together have been accepted by the medical community as the single best mitigation strategy in the suppression of the spread of COVID-19,” and explaining the need for “full compliance” with such measures by all court users, the Order provides the following precise rules for masking and social distancing in courthouses:
• Masks must be worn at all times in courthouses and judicial facilities, including during court proceedings and by all judges, judiciary personnel, and any person over the age of two. Masks must cover the nose, mouth, and chin completely, without vents. Barriers, including clear plexiglass shields, do not substitute for or fulfill this masking requirement. Three exceptions are provided: (1) Masks may be lowered to eat, drink, or take medication, but must be replaced when finished. (2) For good cause shown, and for a limited duration, a presiding judge may require a case participant to use a clear mask or personal barrier shield in lieu of a mask to ensure that the participant can be adequately heard and observed. (3) If judiciary personnel have a single-occupancy office, they may lower masks whenever alone in their office with the door closed.
• If members of the public or courthouse personnel appear on site without an appropriate mask, they will be: (1) provided a disposable mask as available; and/or (2) provided an alternative means to remotely access any proceedings, if appropriate and possible.
• Social distancing of six feet or more must be maintained in all judicial facilities, including offices, chambers, and courtrooms, but is not a substitute for masking.
• A person’s failure to comply with these directives will result in removal from the courthouse or judicial facility and may result in disciplinary action, if appropriate.
Maryland’s federal court also made changes. Finding the Court’s “triggering criteria” for return to reduced operations met (including a 7-day test positivity rate exceeding 5% statewide and in multiple counties, business restrictions imposed by the Governor, and increased numbers of hospitalized patients and new cases reported), and by Standing Order dated November 11, 2020, United States Chief District Judge James K. Bredar returned Maryland’s federal courthouses from Phase 3 of their COVID-19 Recovery Plan (entered on September 28, 2020) to Phase 1.
Under the Order, effective Monday, November 16, all in-court proceedings and hearings are suspended. If possible, some will be transferred to virtual format. Others will be postponed. Without prior permission from the Chief Judge or Clerk of Court, no member of the public, counsel, party, or witness may enter any U.S. courthouse in the District of Maryland. Drop boxes will remain available to the public at entrances to each courthouse for depositing and date-stamping papers. Courthouse staff may continue to enter courthouses as instructed by supervisors and so long as they can satisfy standard screening criteria. The Order’s restrictions will remain in place for a minimum of two weeks, through at least November 30, 2020. The Court, the Order states, will regularly monitor the triggering criteria to assess whether conditions have “sufficiently improved” to justify rescinding the Order and resuming some or all in-person operations.
As the COVID-19 pandemic continues, litigants and their counsel will be well-served by frequent monitoring of court websites and Standing and Administrative Orders to ensure that they remain apprised of the current procedures, protocols, and reopening phases governing their cases.