The Honorable Glenn T. Harrell, Jr. The Honorable Lynne A ...

[Pages:106]January 20, 2015

The Honorable Mary Ellen Barbera, Chief Judge

The Honorable Glenn T. Harrell, Jr. The Honorable Lynne A. Battaglia The Honorable Clayton Greene, Jr. The Honorable Sally D. Adkins The Honorable Robert N. McDonald, The Honorable Shirley M. Watts

Judges The Court of Appeals of Maryland Robert C. Murphy Courts of Appeal Building Annapolis, Maryland 21401

Your Honors:

The Rules Committee submits this Supplement to its One Hundred Eighty-Sixth Report and recommends that the Court adopt the changes to the Maryland Rules transmitted with it. The purpose of this Supplement is to deal (1) with certain comments received to the One Hundred Eighty-Sixth Report and (2) with certain circumstances and requests that have arisen since that Report was transmitted to the Court that may affect proposals in that Report. A copy of this Supplement will be posted on the Judiciary Website today.

The Supplement contains five categories of proposals. The first category consists of updating cross-references in Rules 1202, 1-203, 4-212, 9-203, 15-205, 16-307, 16-308, 16-406, 16-503, 16-506, 16-608, 16-812.1, 16-813, 16-815, 16-816, 16-903, and 161005 to take account of the enactment of the General Provisions Article of the Code in the 2014 session of the General Assembly. These changes are in the nature of "housekeeping" amendments.1

The second category consists of amendments to several of the access-to-court-records Rules currently in Title 16, Chapter 1000. Those Rules were adopted in 2004, well before the development of MDEC and before invasions of privacy and identity theft became

1

There are several other Rules to which similar cross-reference updates are proposed, but because of other proposed amendments to them, they are included in other categories in this Supplement.

fully recognized as the threat they now present. With assistance from the Administrative Office of the Courts, judges, clerks, and representatives from the victim community, the news media, and the Maryland State Bar Association, the Committee reviewed the "access" Rules in light of issues brought to the Committee's attention and recommends amendments to Rules 16-1002 (c), 16-1003, 16-1004 (c), 16-1006, 16-1007, and 16-1008. Mostly for style reasons, current Rule 16-1008 is split into two Rules ? 16-1008 and a new 161008.1.2 Conforming amendments to Rules 16-404 and 20-109 also are in this category.

Some of these amendments are to take account of later-enacted statutes; others are largely for clarification. There are a few that have policy implications.

Rule 16-1006 is amended to shield from public inspection reports filed by guardians of the property pursuant to Rules 10-706 through 10-708, which contain sensitive financial information. The current Rule shields only guardianship records involving children.

Rule 16-1007 is amended in two respects.

(1) A new section (c) is proposed to implement a provision in Chapter 205, Acts of 2014 requiring the shielding of certain identifying information concerning victims and victim's representatives.

(2) Current section (c), which would become section (d), is amended to shield the last four digits, and thus the entirety, of social security and federal tax identification numbers. When Rule 16-1007 was adopted in 2004, the Court recognized the mischief that could be caused by providing unlimited public access to social security and tax identification numbers but, consistent with general practice at the time, believed that, by shielding the first five digits and allowing access only to the last four digits, that danger could be averted.

The Committee was recently advised, however, that it is possible to learn the first five digits of other persons' social security numbers from other sources, including on the internet, so that, by accessing the last four digits from court records, anyone can learn the entire number. In light of that information, the Rules Committee has given consideration to proposing that no part of a social security or tax identification number be placed in a court record. Whether or not that proposal, which may involve other considerations and could have only prospective effect in any event, will ultimately be transmitted to the Court, the Committee

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It may be appropriate, in light of experience that will be gained from MDEC, for the Committee to undertake a review of the access Rules in greater depth. The proposed changes in this Supplement deal principally with matters presented to the Committee.

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believes, at the very least, that, unless otherwise required by law or permitted by court order, no part of a social security or tax identification number contained in a case record should be publicly accessible.3 To the extent a legitimate need for access to such numbers can be shown, there are ways for it to be provided, by court order or by directly providing it to the person needing it.

The third category consists of amendments to Rules 20-201, 20202, and 20-203 and new Rule 20-204.2, all of which are MDEC Rules.

Two amendments are proposed to Rule 20-201. The first, to section (h), implements a request by Judicial Information Systems and the State Court Administrator to delete the current requirement that a proposed order transmitted electronically under MDEC be in editable form and, in its place, to add requirements that the proposed order be (1) in an electronic text format specified by the State Court Administrator and (2) filed as a separate document identified as relating to the motion or other request for court action to which the order pertains. The need for these amendments, explained in part in a proposed Committee note to Rule 20-210 (h) and in part below with respect to amendments proposed to Rule 20203, arises from the fact that, at present, MDEC can accommodate only documents that are in non-editable pdf format. That may change in time, so, rather than mandate a particular format in the Rule, the Committee thought best, at least for the time being, to give administrative discretion to the State Court Administrator. That discretion reaches only to the electronic format of the order and not to its structure or content.

Amendments to Rule 20-201 (i) conform the requirements and procedure for the waiver of prepayment of prepaid costs in an MDEC county to those set forth in Rules 1-325 and 1-325.1, as proposed in the One Hundred Eight-Sixth Report (Category 10) and in this Supplement to that Report (Category 4). The amendments to Rule 20202 conform that Rule to Rule 20-201.

The amendments proposed to Rule 20-203 (b) also emanate from a late-discovered problem with MDEC software pertaining to the inclusion of exhibits or other documents related to a lead document, such as a pleading or motion, in a single filing. In a nutshell, as MDEC was inaugurated in Anne Arundel County, there were two ways in which a filer could attach exhibits or related documents to a lead document. One was to click on an "Attachment" box and follow the instructions that ensued. That is what filers were directed to do in the Policies and Procedures Manual and what most of them did. A second method, which was not so obvious, was

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"Case record" is defined in Rule 16-1001 (c). Excluded from that definition are records that constitute notice records or administrative records, as defined in Rule 161001.

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to treat the exhibits or related documents as separate filings. Several problems arose if the filer chose the "Attachment" approach. In many instances, all of the documents were consolidated into one pdf filing. Even when the documents were transmitted as individual pdf "attachments," they were not separately coded, which made identification of and direct access to each document difficult. In order to resolve that problem, clerks were forced to spend an inordinate amount of time ? upwards of 35 minutes per filing ? to locate, identify, and code the "attachments."

After several meetings and conversations, it was decided that the principal solution was to eliminate the "Attachment" box from the computer screen, which the Committee was assured could and would be done, and to add more specific language to the Policies and Procedures Manual, instructing filers how to deal with exhibits and other related documents. Most of that language has been drafted and will be added to the Manual. With limited exceptions, that approach will continue to permit filers to include in one filing, denoted in the Manual as an "envelope," all exhibits and other documents related to the lead document, but those "attachments" will be separately identified and coded as part of the transmission.

There remains the problem, however, of how to deal with filings that are not in conformance with the published Policies and Procedures, which Rule 20-201 (c) requires. Three options were considered: (1) permit the clerk to reject a non-compliant filing; (2) create a procedure whereby the non-compliance would be brought to the attention of the administrative judge (or designee), who could strike the filing; and (3) allow the clerk to accept the filing, promptly send a deficiency notice to the filer that explains the nature of the non-compliance and what must be done to correct it, and provide that, until it is corrected or a judge orders otherwise, no action will be taken on the filing.

The Rules Committee proposes the third option. It avoids having the clerk reject a filing on the clerk's own discretion, which is currently allowed only for non-payment of a required fee or the lack of a required certificate; it avoids burdening a judge with routinely exercising supervisory authority over the clerk's office in this regard; and it gives the filer prompt notice of the problem and an opportunity to correct it. The proposed amendment allows a filer who believes that the filing is not non-compliant to request the administrative judge to order the clerk to withdraw the deficiency notice.

The Committee believes that (1) the clearer instructions in the Policies and Procedures Manual should eliminate most of the problem, and (2) most filers who receive a deficiency notice will promptly correct the deficiency.

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Rule 20-204.2 provides the procedure for filing submissions and issuing original process in criminal cases. It was anticipated that filings in those cases would be electronic in MDEC counties, and the MDEC Rules submitted to and approved by the Court so provided. Unfortunately, just before the scheduled initial rollout in Anne Arundel County, it was discovered that MDEC was currently incapable of accepting the electronic filing of initial charging documents, so the paper filing of those documents became necessary. The Rules Committee has been advised that this is a temporary impediment. Rule 20-204.2 provides that, upon the filing of an unserved charging document, the clerk issues a summons (unless an arrest warrant is issued) and transmits the summons electronically to the State's Attorney, who prints a copy and is responsible for having it served.

The fourth category consists of further amendments to Rule 1325, new Rules 1-325.1 and 8-403, and conforming amendments to Rules 2-603, 7-103, 7-505, 8-201, 8-303, 8-505, and 10-107. Some of the issues relating to Rule 1-325 are discussed in the Committee's response to Comments received regarding that Rule. The Committee acquiesced in some of the proposals made in the Comments, which require revisions to the proposal submitted with the One Hundred Eighty-Sixth Report. Those revisions would have lengthened the Rule to the point of making it too long and somewhat cumbersome. For ease of reading and for clarification, the Committee now proposes splitting the Rule into two ? Rule 1-325 dealing with the waiver of prepaid costs in one court, and Rule 1325.1 dealing with waiver when, in an appeal setting, costs in both the trial court and the appellate court are involved. The provisions of current Rule 1-325 (b) are transferred to new Rule 8403 and new section (d) of Rule 7-103.

The fifth category, adding a provision to Rule 1-333, implements a recommendation from the Court Interpreter Program of the Administrative Office of the Courts that the Registry of Interpreters for the Deaf and the National Association of the Deaf be recognized as certifying agencies for sign language interpreters.

For the further guidance of the Court and the public, following the proposed new Rules and the proposed amendments to some of the existing Rules is a Reporter's note describing in further detail the reasons for the proposals. We caution that the Reporter's notes are not part of the Rules, have not been debated or approved by the Committee, and are not to be regarded as any kind of official comment or interpretation. They are

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included solely to assist the Court in understanding some of the reasons for the proposed changes.

Respectfully submitted,

AWM:cdc

Alan M. Wilner Chair

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MARYLAND RULES OF PROCEDURE TITLE 1 - GENERAL PROVISIONS CHAPTER 200 - CONSTRUCTION, INTERPRETATION, AND DEFINITIONS AMEND Rule 1-202 to conform an internal reference to revised Code provisions, as follows: Rule 1-202. DEFINITIONS . . . (r) Newspaper of General Circulation "Newspaper of general circulation" means a newspaper as defined in Code, Article 1, ?28 General Provisions Article, ?1113. . . .

REPORTER'S NOTE A proposed amendment to Rule 1-202 conforms an internal reference to Code references contained in the recently enacted General Provisions Article.

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MARYLAND RULES OF PROCEDURE TITLE 1 - GENERAL PROVISIONS CHAPTER 200 - CONSTRUCTION, INTERPRETATION, AND DEFINITIONS

AMEND Rule 1-203 to conform an internal reference to revised Code provisions, as follows:

Rule 1-203. TIME

(a) Computation of Time After an Act, Event, or Default In computing any period of time prescribed by these rules,

by rule or order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not included. If the period of time allowed is more than seven days, intermediate Saturdays, Sundays, and holidays are counted; but if the period of time allowed is seven days or less, intermediate Saturdays, Sundays, and holidays are not counted. The last day of the period so computed is included unless:

(1) it is a Saturday, Sunday, or holiday, in which event the period runs until the end of the next day that is not a Saturday, Sunday, or holiday; or

(2) the act to be done is the filing of a paper in court and the office of the clerk of that court on the last day of the period is not open, or is closed for a part of the day, in which event the period runs until the end of the next day that is not a Saturday, Sunday, holiday, or a day on which the office is not

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