Murphy v. Liberty Mutual Ins.

Jesse J. Murphy, et al. v. Liberty Mutual Insurance Co.
Misc. No. 5, September Term 2021

Administrative Authority of Chief Judge – Emergency Powers of Chief Judge. Under
the Maryland Constitution, the Chief Judge of the Court of Appeals is the administrative
head of the Judicial Branch of the Maryland State government. In the exercise of its
rulemaking authority with respect to administration of, and practice and procedure in, the
State courts, the Court of Appeals has adopted rules to guide the Chief Judge’s exercise of
that administrative authority in the circumstances of an emergency affecting the court
system. Among other things, measures taken should be consistent with actions taken in
the other branches of government when the Governor has declared a state of emergency
pursuant to the authority granted to the Governor by the General Assembly in the Public
Safety Article of the Maryland Code. An administrative order of the Chief Judge
temporarily tolling statutes of limitations under Maryland law with respect to civil actions
during the Covid-19 pandemic was within the authority of the Chief Judge under the
Maryland Constitution and Maryland Rules in light of the state of emergency that had been
declared by the Governor. Maryland Constitution, Article IV, §18; Maryland Rules 16-
1001 et seq.

Separation of Powers – Emergency Powers of Chief Judge. An administrative order of
the Chief Judge temporarily tolling statutes of limitations under Maryland law with respect
to civil actions during the Covid-19 pandemic did not violate the principle of separation of
powers of the branches of Maryland State government guaranteed by Article 8 of the
Maryland Declaration of Rights.

Prohibition Against Suspension of Laws – Emergency Powers of Chief Judge. An
administrative order of the Chief Judge temporarily tolling statutes of limitations under
Maryland law with respect to civil actions during the Covid-19 pandemic did not violate
the prohibition against suspension of laws set forth in Article 9 of the Maryland Declaration
of Rights.
 United States District Court
for the District of Maryland
Case No. 1:20-cv-01961-SAG IN THE COURT OF APPEALS
Argument: December 3, 3021 OF MARYLAND

Misc. No. 5

September Term, 2021

JESSE J. MURPHY, ET AL.

V.

LIBERTY MUTUAL INSURANCE CO.

_____________________________________

*Getty, C.J.,
*McDonald
Watts
Hotten
Booth
Biran
Gould,

JJ.
______________________________________

Opinion by McDonald, J.
______________________________________

Filed: April 27, 2022

*Getty, C.J., and McDonald, J., now Senior
Judges, participated in the hearing and
conference of this case while active members of
Pursuant to Maryland Uniform Electronic Legal
Materials Act
this Court; after being recalled pursuant to
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.

2022-04-27
Maryland Constitution, Article IV, Section 3A,
10:28-04:00 they also participated in the decision and
adoption of this opinion.
Suzanne C. Johnson, Clerk
 On April 24, 2020, then-Chief Judge Mary Ellen Barbera issued an administrative

order that temporarily tolled statutes of limitations in civil cases for a period of time during

the state of emergency occasioned by the Covid-19 pandemic. A commercial dispute is

pending in the United States District Court for the District of Maryland between Appellants

J.M. Murphy Enterprises, Inc., and its president Jesse J. Murphy (collectively, “Murphy

Enterprises”) and Appellee Liberty Mutual Insurance Company (“Liberty Mutual”). The

timeliness of certain claims alleged in that case, as well as the diversity jurisdiction of the

federal court over that action, may depend on the validity of the Chief Judge’s

administrative tolling order. Pursuant to statute and rule,1 the federal district court has

certified to this Court a question of law as to whether that administrative order exceeded

the powers of the Chief Judge under the Maryland Constitution. As framed by the parties,

the answer to that question turns on whether the Chief Judge’s administrative tolling order

violated the Maryland Declaration of Rights – in particular, Article 8, which guarantees the

separation of powers of the branches of Maryland State government, and Article 9, which

prohibits the “suspension” of laws.

For the reasons set forth in this opinion, we conclude that the Chief Judge acted

within her authority when, in her capacity as administrative head of the Maryland Judiciary,

she issued the administrative tolling order concerning the timeliness of complaints filed in

Maryland courts during the pandemic. Specifically, the administrative order was based on

1
Maryland Uniform Certification of Questions of Law Act, Maryland Code, Courts
& Judicial Proceedings Article (“CJ”), §12-601 et seq.; Maryland Rule 8-305.
the authority of the Chief Judge under the Maryland Constitution, the Maryland Code, and

the Maryland Rules. In issuing that order, the Chief Judge did not, under the circumstances

that existed at that time, unduly take upon herself – or, in the language of the case law

concerning separation of powers, “usurp” – core functions belonging to either the

Executive or the Legislative branches of State government. Nor did the emergency rules

on which the administrative tolling order was based usurp another branch’s core function.

Finally, the tolling order did not violate the prohibition against the suspension of laws.

I

Background

A. Administrative Authority and Rulemaking in the Maryland Judiciary

The question posed by the federal district court relates to the administrative

authority of the Chief Judge of the Court of Appeals and the rulemaking authority of the

Court. Those powers are simply stated in Article IV, §18 of the Maryland Constitution and

elaborated to some extent in the Maryland Code and Maryland Rules.

1. Administrative Authority

The State Constitution provides that the “Chief Judge … shall be the administrative

head of the Judicial system of the State.” Article IV, §18(b)(1). Subsection (b) sets forth

certain aspects of that authority with respect to the assignment of judges. §18(b)(2)-(5). It

further provides that, in the absence of the Chief Judge, the administrative authority

devolves upon the judge of the Court with the most seniority. §18(b)(5). Finally, it states

that “[t]he powers of the Chief Judge set forth in [§18] shall be subject to any rule or

regulation adopted by the Court of Appeals.” Id.

2
 The Maryland Rules acknowledge this constitutional delegation of power to the

Chief Judge. See Maryland Rules 16-101 (general administrative structure of the

Judiciary), 16-102 (noting the Chief Judge’s “overall responsibility for the administration

of the courts of this State”).

2. Rulemaking

The State Constitution also confers rulemaking authority on the Court of Appeals

with respect to (1) practice and procedure in the courts and (2) the administration of the

courts. It states that “[t]he Court of Appeals from time to time shall adopt rules and

regulations concerning the practice and procedure in and the administration of the appellate

courts and in the other courts of this State….” Article IV, §18(a). The rules adopted by

the Court “shall have the force of law until rescinded, changed or modified by the Court of

Appeals or otherwise by law.” Id.2

The General Assembly has acknowledged the rulemaking power of the Court of

Appeals with respect to both practice and procedure and judicial administration. In

particular, it has directed that “[t]he power of the Court of Appeals to make rules and

regulations to govern the practice and procedure and judicial administration … shall be

liberally construed.” CJ §1-201(a). That statute further provides that “[w]ithout intending

to limit the comprehensive application of the term ‘practice and procedure,’ the term

2
The Constitution also authorizes other courts of the State to adopt rules of practice
and procedure or administrative rules “subject to the rules and regulations adopted by the
Court of Appeals or otherwise by law.” Article IV, §18(a). A statute limits the purview
of such local rules. CJ §1-201(b).

3
includes the forms of process; writs; pleadings; motions; parties; depositions; discovery;

trials; judgments; new trials; provisional and final remedies; appeals; unification of practice

and procedure in actions at law and suits in equity, so as to secure one form of civil action

and procedure for both; and regulation of the form and method of taking and the

admissibility of evidence in all cases, including criminal cases.” Id.

In the Maryland Rules, the Court has established a Standing Committee on Rules of

Practice and Procedure (“Rules Committee”)3 and a process for the Court’s consideration

and adoption of rules. See Maryland Rule 16-802.

B. Statutes of Limitations

The timeliness of a claim in a civil action is generally measured against the pertinent

statute of limitations or under the doctrine of laches.4 As the label itself indicates, a statute

3
The Rules Committee is appointed by the Court of Appeals to assist the Court in
the exercise of its constitutional rulemaking powers. Maryland Rule 16-701. The
committee consists of judges, court officials, lawyers, and others with interest and expertise
in the subject matter of court rules. Among the Committee’s members are two legislators
appointed from the State Senate and House of Delegates, respectively. Id.
4
The doctrine of laches is a judicially-developed doctrine applicable to equitable
claims in civil cases under which a court will decline to consider that claim when there has
been an unreasonable delay on the part of the plaintiff in asserting it, to the prejudice of the
defendant. State Center, LLC v. Lexington Charles LP, 438 Md. 451, 585-87 (2014). In
applying the doctrine of laches, a court will “look to the General Assembly for guidance”
by consulting an analogous statute of limitations or the general period of limitations in CJ
§5-101. Id. at 603-04; see also Frederick Road LP v. Brown & Sturm, 360 Md. 76, 117
(2000) (when a case involves concurrent legal and equitable remedies, the deadline set by
the statute of limitations is applied).

4
of limitations is a product of legislation enacted by a legislative body5 – in this case, the

General Assembly. A statute of limitations represents “a policy judgment by the

Legislature that serves the interest of a plaintiff in having adequate time to investigate a

cause of action and file suit, the interest of a defendant in having certainty that there will

not be a need to respond to a potential claim that has been unreasonably delayed, and the

general interest of society in judicial economy.” Ceccone v. Carroll Home Services, LLC,

454 Md. 680, 691 (2017). In being faithful to that legislative judgment, the courts typically

construe such statutes strictly. Cain v. Midland Funding, LLC, 475 Md. 4, 38 (2021).

However, a statute of limitations is not immutable. Ceccone, 454 Md. at 692. This Court

has recognized, in both rule and case law, that the deadline for filing an action seemingly

set forth in a statute of limitations may be extended and, in some cases, shortened.

Because a statute of limitations sets a deadline for filing an action in court, it falls

to the courts to interpret and administer that deadline. Some of that work is done by rule.

For example, a court rule details how “any period of time” prescribed by rule or “any

applicable statute” is to be computed. Maryland Rule 1-203.6 Accordingly, that rule

5
Another legislatively-created filing deadline that is a close cousin to a statute of
limitations is a statute of repose. See Anderson v. United States, 427 Md. 99, 117-22 (2012)
(noting that, while both types of statutes set deadlines for the assertion of a claim, a statute
of limitations is triggered by accrual of the claim while a statute of repose may extinguish
a claim before it accrues). We need not delve into the differences between a statute of
limitations and a statute of repose here. There is no question that the filing deadline at
issue in this case is a statute of limitations.
6
That rule appears to be consistent with a statute that also describes generally the
computation of time periods in statutes. See Maryland Code, General Provisions Article,
§1-302. A Rules Committee Note codified with the rule observes that section (a) of the

5
governs the computation of time for purposes of a statute of limitations. Excluded from

those computations of filing deadlines are, among others, days on which the pertinent

clerk’s office is not open for regular hours. Maryland Rule 1-203(a)(2).

Another court rule provides an additional 30 days for a plaintiff to file suit in a

Maryland court, if the lawsuit was initially filed within the Maryland statute of limitations

in another jurisdiction and dismissed by the court in the other jurisdiction for certain

reasons specified in the rule. Maryland Rule 2-101(b).

Like other statutes, the application of a statute of limitations is also construed in

case law. For example, the question of when a cause of action accrues – and thereby

triggers the start of the limitations period – “is one left to judicial determination.” Cain,

475 Md. at 35. Under that rubric, this Court developed a “discovery rule” that delays

accrual of a cause of action, for purposes of computing the statute of limitations, until the

plaintiff is aware, or reasonably should be aware, of the wrong done by the defendant. See

Poffenberger v. Risser, 290 Md. 631, 634-38 (1981); Hahn v. Claybrook, 130 Md. 179

(1917).7

rule supersedes the statute to the extent of any inconsistency. See Maryland Constitution,
Article IV, §18(a) (rules of practice and procedure adopted by the Court of Appeals have
“the force of law”).
7
The discovery rule was originally developed to apply to medical malpractice cases,
see Hahn v. Claybrook, 130 Md. 179 (1917), and “culminated in Poffenberger v. Risser,
290 Md. 631 (1981), where [the Court] made the discovery rule applicable in all civil suits.”
Doe v. Maskell, 342 Md. 684, 689-90 (1996). There is also now a statute of limitations
that includes a discovery rule specific to medical malpractice actions. CJ §5-109.

6
 In addition, the Court has applied “judicial tolling” to a statute of limitations when

the tolling would “gratify legislative intent” – in other words, “prevent perversion of the

[legislative] policy and purpose” underlying the statute of limitations. Philip Morris USA,

Inc. v. Christensen, 394 Md. 227, 238-39 (2006), abrogated on other grounds, Mummert

v. Alizadeh, 435 Md. 207 (2013). Judicial tolling is appropriate in a particular case if a

two-part test is met: “(1) there is persuasive authority or persuasive policy considerations

supporting the recognition of the tolling exception, and (2) recognizing the tolling

exception is consistent with the generally recognized purposes for the enactment of statutes

of limitations.” Id.; see also Cain, 475 Md. at 53-69.

Finally, because a statute of limitations does not affect a court’s jurisdiction over a

claim, parties may generally toll or lengthen a period of limitations by agreement or waiver.

Ceccone, 454 Md. at 692. In some circumstances, they may agree to shorten a statutory

period of limitations in a way that courts will recognize. The courts have, by case law,

established criteria as to when a private alteration of a limitations period will be given

effect. Id. at 692-95.

The bottom line is that a statute of limitations is an expression of legislative policy

to be implemented by and in the courts. In giving effect to a statute of limitations, as in

A related statutory exception, known as the fraud exception, that was enacted in
1868 and that is now codified at CJ §5-203, was based on a judicially-created doctrine that
tolled the period for filing an action in equity where the defendant’s fraud had induced the
plaintiff not to sue within the applicable period. See Piper v. Jenkins, 207 Md. 308, 316
(1955).

7
construing other statutes and acts of the Legislature, the courts must ascertain and carry out

the legislative purpose underlying the statute of limitations in harmony with other

enactments of the Legislature.

C. Dealing with Emergencies under Maryland Law

1. The Governor and General Assembly

As head of the Executive Branch of State government,8 the Governor inevitably

must take the lead in dealing with state-wide emergencies. The General Assembly has

specifically conferred certain powers on the Governor for that purpose. Several sections

of the Public Safety Article (“PS”) of the Maryland Code pertaining to emergency powers

are relevant here.

The Legislature has authorized the Governor to declare a state of emergency “if

public safety is endangered or on reasonable apprehension of immediate danger to public

safety.” PS §14-303(a)(1); see also PS §14-107(a). The Legislature has further authorized

the Governor to take certain actions for dealing with that emergency, including

promulgation of “reasonable orders, rules, or regulations that the Governor considers

necessary to protect life and property or calculated effectively to control and terminate the

public emergency in the emergency area.” PS §14-303(b). Among other things, those

orders, rules, or regulations may:

8
See Maryland Constitution, Article II, §1 (“The executive power of the State shall
be vested in a Governor”), §9 (the Governor “shall take care that the Laws are faithfully
executed”); see also Maryland Code, State Government Article, §3-302 (“The Governor is
the head of the Executive Branch of the State government and, except as otherwise
provided by law, shall supervise and direct the officers and units in that Branch.”).

8
 (1) control traffic, including public and private transportation, in the
emergency area;

(2) designate specific zones in the emergency area in which the
occupancy and use of buildings and vehicles may be controlled;

(3) control the movement of individuals or vehicles into, in, or from
the designated zones;

(4) control places of amusement and places of assembly; [and]

(5) control individuals on public streets; . . . .

PS §14-303(b)(1)-(5). More generally, upon declaring a state of emergency, the Governor

may “suspend the effect of any statute or rule or regulation of an agency of the State or a

political subdivision” after finding such action “necessary in order to protect the public

health, welfare, or safety.” PS §14-107(d)(1)(i). The Director of the Maryland Emergency

Management Agency (“MEMA”) is to “coordinate the activities of the agencies of the State

and of those political subdivisions included in the declaration in all actions that serve to

prevent or alleviate the ill effects of the imminent or actual emergency.” PS §14-107(c)(1).

Other powers conferred on the Governor are triggered by a “catastrophic health

emergency” – defined as a “situation in which extensive loss of life or serious disability is

threatened imminently because of exposure to a deadly agent.” PS §14-3A-01(b). The

phrase “deadly agent” includes, among other things, a “viral agent” or “other biological

agent capable of causing extensive loss of life or serious disability.” PS §14-3A-01(c)(1).

If the Governor determines that a catastrophic health emergency exists in the State,

the Governor may issue a proclamation to that effect and may, among other things, order

(1) “the evacuation, closing, or decontamination of any facility” and (2) “[i]f necessary and

9
reasonable to save lives or prevent exposure to a deadly agent … [that] individuals …

remain indoors or refrain from congregating.” PS §14-3A-03(d). The General Assembly

has authorized the Governor to delegate certain duties to the Secretary of Health during

such an emergency and authorized the Secretary to issue directives concerning the isolation

or quarantine of individuals during the emergency. PS §14-3A-03 through §14-3A-05.

The statutes also specify the content of emergency declarations and certain notice,

duration, and procedural requirements for a declaration of a state of emergency. PS §§14-

107(a)(2)-(b), 14-303(c)-(d), 14-3A-02. The General Assembly has retained for itself the

power to terminate a declared state of emergency by joint resolution “at any time.” PS

§14-107(a)(4)(i).

2. The Judiciary

The Maryland Rules describe the authority of the Chief Judge for dealing with

public emergencies. Maryland Rules 16-1001 et seq.9

The rules concerning emergency powers apply when the Governor has declared a

state of emergency or in the event of “a natural or other event that significantly affects

9
As we shall see, the rules codified in Maryland Rules 16-1001 et seq. were adopted
at the outset of the Covid-19 pandemic. Such rules had been previously contemplated, and
the rules that the Court adopted are not limited to emergencies caused by a viral pandemic.

Before the pandemic, the Court had adopted other rules related to catastrophic health
emergencies. Those rules concern proceedings that might be brought by an individual or
group of individuals to contest an isolation or quarantine directive issued by the Secretary
of Health under PS §14-3A-05 and Maryland Code, Health-General Article, §18-901 et
seq. See Maryland Rule 15-1101 et seq. Those rules do not bear on the issues in this
opinion.

10
access to or the operations of one or more courts or other judicial facilities of the State or

the ability of the Maryland Judiciary to operate effectively.” Maryland Rule 16-1001(a),

(b). As described by a Rules Committee Note10 codified with Rule 16-1001(c), the “Rules

recognize that, in the event of an emergency declared by the Governor, the authority

granted under these Rules must be exercised in harmony with lawful directives of the

Governor and other Executive Branch officials to the maximum extent practicable.” Upon

a declaration of a state of emergency by the Governor, the Chief Judge “directly or through

designees, shall, to the extent practicable, consult with the Governor, the Governor’s

designees, the Maryland Emergency Management Agency, and, as appropriate, other

Executive Branch officials, in order to coordinate Judicial and Executive Branch responses

to the emergency.” Maryland Rule 16-1002.

The rules further describe specific actions the Chief Judge may take in an

emergency. Maryland Rule 16-1003(a). Any such actions are to be “to the extent

practicable, … compatible with directives and orders issued by the Governor” in

connection with a declared state of emergency. Maryland Rule 16-1003(b).

Pertinent to this case, the rule authorizes the Chief Judge to:

(2) suspend the operation of Rules that cannot be implemented as
intended because of the emergency or event;

***

10
A Rules Committee Note is approved by the Court of Appeals as part of its
consideration of rules proposed by the Rules Committee and is an authoritative basis for
construing the rule to which it is appended. See, e.g., State v. Walker, 345 Md. 293, 317
(1997); Palmisano v. Baltimore County Welfare Board, 249 Md. 94, 101 (1968).

11
 (7) suspend, toll, extend, or otherwise grant relief from time
deadlines, requirements, or expirations otherwise imposed by
applicable statutes, Rules, or court orders, including deadlines for
appeals or other filings, deadlines for filing or conducting judicial
proceedings, and the expiration of injunctive, restraining, protective, or
other orders that otherwise would expire, where there is no practical
ability of a party subject to such deadline, requirement, or expiration to
comply with the deadline or requirement or seek other relief;

(8) suspend any judicial business that is deemed not essential by
the Chief Judge or close a court entirely when necessary;

(9) triage cases and categories of cases with respect to expedited
treatment;
***
(14) take any other appropriate action necessary to ensure that, to
the maximum extent possible, essential judicial business is effectively
handled by the courts.

Maryland Rule 16-1003(a). A Rules Committee Note codified with subsection (a)(7)

states: “Granting relief from filing deadlines may take the form of directing relation back

of filings made promptly after termination of the emergency to the day before the deadline

expired.”

Upon termination of an emergency, the Chief Judge is to review any measures taken

under the emergency rules and devise a “reasonable schedule” for rescission of those

measures. Maryland Rule 16-1003(b). A Rules Committee Note accompanying that

section acknowledges that, upon termination of an emergency, some extensions of

deadlines “may need to remain in place for a reasonable time.”

Finally, the rules provide for the publication of any directives or orders of the Chief

Judge on the Judiciary website and for notice of those actions to be given specifically to

12
the Governor, the legislative leadership, the director of MEMA, and (in the case of a

catastrophic health emergency) the Secretary of Health. Maryland Rule 16-1003(d).

II

The Pandemic, the State of Emergency, and
the Chief Judge’s Administrative Tolling Orders

The Chief Judge issued the administrative tolling order that is the subject of this

case as part of the State’s response to the Covid-19 emergency that began in early 2020. It

was issued against the backdrop of the pandemic and various measures taken by the

Governor and Legislature in response to that emergency.

A. The Pandemic

Everyone above a very young age is conscious of the Covid-19 pandemic – the

worst public health crisis in a century – that suddenly and pervasively altered life

worldwide during the past two years. For future readers of this opinion on the other side

of the pandemic, the history books will provide the details. For now, it suffices to say that

the pandemic upended the patterns, rituals, and timelines of daily life – how one worked,

shopped, played, and prayed; where one went; when and how one met with others; who

was present for births, deaths, and the major life events in between. Mandated vaccination,

self-testing for the disease, masking, and “social distancing” became commonplace and,

on occasion, controversial.

Some of the most drastic measures were taken in the early days of the pandemic

during the spring of 2020 when its virulence was unknown, and the medical tools to combat

it – vaccination and treatment – were a hope rather than a certainty. Government offices

13
were closed, “non-essential” businesses were shuttered, stay-at-home orders were issued,

and personal interaction of any sort was viewed as risky. At that time, a federal judge in

Maryland, who was presiding over a case concerning anti-Covid-19 measures required to

protect inmates at a local detention center, alluded to grim statistics on the spread of the

virus and the resulting deaths and “struggle[d] to put into words the magnitude of COVID-

19’s devastation.”11

The tide began to turn in early 2021 as vaccines became available. There were

further advances and retreats as variants of the virus emerged, proliferated, and dissipated.

People are resilient and have adapted, but adaptation takes time. The story of Covid-19 is

not yet over, but this account is sufficient for purposes of this opinion.

We turn next to the specific measures taken in Maryland during the late winter and

early spring of 2020.

B. Legal Measures Taken to Combat the Pandemic

1. January – February 2020: Preparation for Arrival of the Virus in Maryland

The response of the Maryland State government to the pandemic began to take shape

in January 2020, when the Governor directed State agencies to plan for a possible outbreak

of Covid-19 in the State. On February 27, 2020, in anticipation of the arrival of the virus

in Maryland, the Governor announced that he had added funds to the State budget for

emergency preparedness, that the Department of Health and MEMA were coordinating the

11
Seth v. McDonough, 461 F.Supp.3d 242, 247 (D. Md. 2020).

14
effort, and that his administration would brief members of the General Assembly, the

Comptroller, the Attorney General, and the Treasurer.12

Also on February 27, the State Office of Personnel Services and Benefit Policy

issued a notice entitled “Pandemic Flu and Other Infectious Diseases – Attendance and

Leave.” The stated purpose of the notice was to “ensure that the State has . . . policies that

facilitate the containment of pandemic flu or other infectious disease while supporting

Executive Branch operations and protecting the health and welfare of employees.” The

notice outlined three “levels” of agency operations during a pandemic flu or other

infectious disease that, depending on the severity of the outbreak, would result in reduced

operations that could include the closure of schools and public buildings.13 The policy

explicitly applied to Executive Branch agencies in the State Personnel Management

12
A list of certain actions taken by the Governor and other Executive Branch
officials referenced in this section of this opinion is provided, with links, in Appendix A to
this opinion. The appendices to this opinion are available at the following link:
https://perma.cc/J237-W89M. It should be noted that this list is hardly exhaustive of the
many measures taken by the Governor, other Executive Branch officials, and local
governments in Maryland during the early days of the pandemic.
13
At “Level I” – the category for a “low to moderate” number of cases –
“absenteeism in agencies may become noticeable and begin to concern the agency as a
whole, or affect specific operations.” At Level II, “cases will continue to increase,”
“[s]ome schools may have closed,” and “[a]bsenteeism in agencies will be noticeable, and
perhaps significant, and will cause disruption in agency operations as a whole, or in specific
locations.” Level III, “Emergency Operations,” would be marked by “a high number of
pandemic flu . . ., and/or a greater severity of the resulting illness, with the likelihood of
increasing mortality rates.” At that level, public schools and public buildings would be
closed, either state-wide or in affected areas; “only mission-critical functions” would
continue; only essential employees, as designated by their employer, were to report to
work; and telework requirements could be relaxed.

15
System. It thus did not encompass personnel in the Judicial Branch, which is not part of

that personnel system. See Maryland Code, State Personnel and Pensions Article (“SPP”),

§6-303 (“All positions in the Judicial Branch of State government are excluded from the

State Personnel Management System except as otherwise provided by law.”); §2-201

(“Except as otherwise provided by law, an employee in the Judicial, Legislative, or

Executive Branch of State government is governed by the laws and personnel policies and

procedures applicable in that branch.”).

2. March 2020: Governor Declares State of Emergency

One week later, on March 5, 2020, a Covid-19 case was reported in Maryland, and

the Governor declared a “state of emergency and catastrophic health emergency” to

“control and prevent the spread of Covid-19 within the entire state of Maryland.” The State

was not alone in taking such actions. On March 11, the World Health Organization

declared the outbreak to be a global pandemic.

Each branch of State government then began taking measures to limit access to

public buildings and reduce interactions among government personnel and members of the

public. In the Executive Branch, the Governor activated the National Guard, closed the

public schools, and issued orders prohibiting large gatherings, closing senior citizen

centers, controlling the movement of people into the State’s ports, and restricting the use

of large government buildings.

The Governor also issued an order in which he found that, “to protect and save lives,

it is necessary and reasonable” to extend expiring “permits, licenses, registrations, and

other governmental authorizations,” not only because of increased employee absences and

16
alternative working arrangements within the State’s workforce, but also because the

renewal of such authorizations “often requires the public to enter public buildings and

interact with State employees and other persons, which may be contrary to prudent social

distancing.” The order authorized the “head of each unit of State or local government” to

suspend “any legal or procedural deadline . . . or other time of an act or event described

within any State or local statute, rule, or regulation that it administers.”

Then in mid-session, the General Assembly announced on the evening of March 12

that its buildings would be closed to the general public.14 The Legislature enacted

emergency legislation targeted at various aspects of the pandemic, including providing the

Governor with enhanced emergency powers for its duration. Chapters 13, 14, Laws of

Maryland 2020. Shortly thereafter, the General Assembly announced that it would adjourn

its session early, reportedly for the first time since the Civil War.15

During the remainder of March 2020, as the virus spread in Maryland and elsewhere

in the country, the Governor issued orders limiting public gatherings and activities in

various ways. On March 23, the Governor issued an order closing “all non-essential

businesses,” finding that, in order to “protect the public health, welfare, and safety, prevent

14
See Bryan Renbaum, Ferguson Urges Calm in Response to Coronavirus
(MarylandReporter.com March 13, 2020).
15
See Erin Cox & Ovetta Wiggins, Coronavirus to Shut Down Maryland General
Assembly (Washington Post March 16, 2020); Pamela Wood & Luke Broadwater,
Maryland Lawmakers to End General Assembly Session Wednesday, with Threat of
Coronavirus Looming (Baltimore Sun March 15, 2020).

17
the transmission of the novel coronavirus, control the spread of COVID-19, and save lives,

it is necessary to control and direct the movement of individuals in Maryland, including

those on the public streets” and “to control and direct in Maryland the occupancy and use

of buildings and premises.” One week later, the Governor issued a further directive

“requiring all persons to stay at home.” It stated that, unless specifically excepted, “all

persons living in the State of Maryland are hereby ordered, effective as of 8:00 p.m. on

March 30, 2020, to stay in their homes or places of residences.” That order has been

described as a “shelter-in-place” order. See Duvall v. Hogan, No. CV ELH-94-2541, 2020

WL 3402301, at *3 (D. Md. June 19, 2020).

3. March 2020: Initial Emergency Response of the Judiciary

On March 11, 2020, the Secretary of Health briefed the Judicial Council, an

advisory body to the Chief Judge,16 about the State’s response to the expected pandemic.

The Secretary advised the Council that there was currently no vaccine or therapy to treat

the rapidly-spreading virus and that the Judiciary should plan for courts to be closed for

16
The 21-member Judicial Council includes, among others, the Chief Judge of the
Court of Appeals, the Chief Judge of the Court of Special Appeals, the Chair of the
Conference of Circuit Judges, the Chief Judge of the District Court, the State Court
Administrator, the Chair of the Conference of Circuit Court Clerks, the Chair of the
Conference of Circuit Court Administrators, the Chair of the Court of Appeals Standing
Committee on Rules of Practice and Procedure, and the Chief Clerk of the District Court.
See Maryland Rule 16-110.

18
some time during the public emergency.17 One member of the Council, noting that most

District Court facilities are in State buildings and that the courts “have a constitutional

requirement to stay open to address certain matters,” suggested that the Governor could

defer to the Chief Judge as to whether courts would close or remain open upon declaration

of a state of emergency.

The Secretary provided the Judicial Council with information about quarantine and

incubation periods. He stated that the “executive branch is experimenting with telework,

to the extent possible, to mitigate exposure to risks,” requested that the courts accept

written reports in lieu of status hearings in certain cases, and expressed a concern that

backlogs in community placement for individuals ready for release would soon develop.

The Chief Judge asked the members of the Judicial Council to maintain “open and constant

communication” with the Department of Health.

On March 12 – the same day that the Governor issued the order restricting use of

government buildings and imposing restrictions on large gatherings and that the General

Assembly closed its buildings to the public – the Chief Judge issued two administrative

orders suspending jury trials and non-essential matters, respectively.18 In those orders, the

17
Minutes of the Judicial Council (March 11, 2020), available at
https://mdcourts.gov/sites/default/files/import/judicialcouncil/pdfs/minutes/minutes20200
311.pdf (https://perma.cc/A85U-2NFZ).
18
See Administrative Order on the Statewide Suspension of Jury Trials (March 12,
2020), available at https://mdcourts.gov/sites/default/files/admin-orders-
archive/20200312suspensionofjurytrials.pdf (https://perma.cc/GC7U-QDBA);
Administrative Order on the Statewide Suspension of Non-Essential Judicial
Activities Due to Emergency (March 12, 2020), available at

19
Chief Judge found that the Covid-19 outbreak had caused “an emergency . . . that poses a

threat of imminent and potentially lethal harm to vulnerable individuals, including some

Judiciary personnel, who may come into contact with a court or judicial facility and

personnel.” In light of that emergency, the Chief Judge suspended jury trials and certain

non-essential activities. The next day, March 13, the Chief Judge issued an additional

administrative order that closed courthouses to the public for all but certain emergency

matters.19

In those administrative orders, the Chief Judge invoked her authority under the State

Constitution as administrative head of the Judicial Branch. Simultaneously, the Rules

Committee was drafting rules governing use of that authority for dealing with a public

emergency.

4. Court of Appeals: Adoption of Rules Relating to Emergencies

On March 13, 2020, the Rules Committee considered a set of proposed rules relating

to the emergency authority of the Chief Judge. At that meeting, the Chair of the Committee

explained that the few provisions in statute and rule concerning public emergencies and the

https://www.courts.state.md.us/sites/default/files/admin-orders-
archive/20200312suspensionnonessential.pdf (https://perma.cc/QTF2-5LUJ).
19
See Administrative Order on Statewide Closing of the Courts to the Public Due
to the COVID-19 Emergency (March 13, 2020), available at
https://mdcourts.gov/sites/default/files/admin-orders-
archive/20200313statewideclosingofcourts.pdf (https://perma.cc/BRQ3-PSS2).

20
Judiciary had resulted from specific past emergencies.20 He said that the development of

more general emergency rules had been contemplated, but could be delayed no longer in

light of the rapidly-spreading coronavirus. The Chair noted that the Governor had

comprehensive authority under a number of statutes to deal with emergencies, but that the

statutes made little reference to the Judiciary. He stated that the lack of mention of the

Judiciary was understandable because the responsibility to run the Judicial Branch is vested

by the Maryland Constitution in the Court of Appeals and the Chief Judge, to be

implemented primarily through the Court’s rulemaking authority. He noted that the

proposed rules recognized that any emergency actions taken by the Chief Judge must be

taken in harmony with the Governor’s lawful directives.

The Rules Committee approved the proposed rules with minor amendments and

submitted its report to the Court of Appeals that day. The report noted that the authority

of the Chief Judge “to assure, to the extent possible, the continued functioning of the courts

and the judicial system” was “necessarily broad,” but that “its exercise is limited to those

things that prove necessary to assure reasonable access to the courts during and

immediately following an emergency or other disabling event.”21

20
Minutes of Rules Committee Meeting, pp. 12-13 (March 13, 2020), available at
https://mdcourts.gov/sites/default/files/minutes-rules/minutes20200313.pdf
(https://perma.cc/MD6K-TMQ5).
21
204th Report of the Rules Committee, p. 3 (March 13, 2020), available at
https://mdcourts.gov/sites/default/files/rules/reports/204threport.pdf
(https://perma.cc/2F8P-ZA9T).

21
 The following Monday, March 16, the Court of Appeals considered the rules in an

open hearing. The Court adopted the proposed rules, which are codified at Maryland Rule

16-1001 et seq. as described in Part I.C.2 of this opinion. As noted there, those rules,

among other things, delegated to the Chief Judge a conditional authority to extend

deadlines that was substantially analogous to the authority that the Governor’s March 12

order had granted to heads of the units of State and local governments for deadlines

imposed by the laws that the agencies in those units administered.

5. Administrative Orders Issued under Emergency Rules

Closing Clerks’ Offices

On March 16, the Chief Judge issued an order that closed clerks’ offices, with

limited exceptions.22 That order, which stated that it was effective immediately, noted the

safety measures that the courts had taken thus far and found that there was “a threat of

imminent and potentially lethal harm to vulnerable individuals who may come into contact

with a … judicial facility and personnel” and that “[f]urther rapid escalation of the

emergency requires more comprehensive measures to protect the health and safety of

Maryland residents and Judiciary personnel.” Citing the new emergency rules, the Chief

Judge ordered that the courts, offices, and units in the Maryland Judiciary, and the offices

of the clerks of the circuit courts and the District Court, “shall be restricted to emergency

22
Administrative Order on Statewide Judiciary Restricted Operations Due to the
COVID-19 Emergency (March 16, 2020), available at
https://mdcourts.gov/sites/default/files/admin-orders-
archive/20200316restrictedoperationsduetocovid19.pdf (https://perma.cc/F8S6-G5CS).

22
operations and closed with limited exceptions as described in this order beginning on

March 17, 2020, through April 3, 2020, or until further order of the Chief Judge . . . .” The

order specified that MDEC – the Judiciary’s electronic case management system –

“continues to be available for electronic filing and is required to be used for all MDEC

counties.”23 Regarding “pleadings not required to be filed electronically,” the order

provided that “filings will be received by mail and may be received via drop boxes installed

at local courthouses.” The order further specified that “[o]ther than as set forth in this

Administrative Order, deadlines established by Maryland statutes or rules remain in

effect[.]”

Extending Filing and Hearing Dates

On April 3, 2020, the Chief Judge issued the initial order extending filing and

hearing dates as a result of the pandemic.24 Finding that the Covid-19 outbreak “continues

to require comprehensive measures to protect the health and safety of Maryland residents

and Judiciary personnel” and citing Article IV, §18 of the Maryland Constitution and Rule

16-1003(a)(7) as authority, she ordered that:

23
At the time of the order, all jurisdictions except Baltimore City, Montgomery
County, and Prince George’s County were part of the MDEC electronic filing system.
24
See Administrative Order on Emergency Tolling or Suspension of Statute of
Limitations and Statutory and Rules Deadlines Related to the Initiation of Matters and
Certain Statutory and Rules Deadlines in Pending Matters (April 3, 2020), available at
https://mdcourts.gov/sites/default/files/admin-orders-
archive/20200403emergencytollingorsuspensionofstatutesoflimitationsetc.pdf
(https://perma.cc/N3QU-UBNT).

23
 all statutory and rules deadlines related to the initiation of matters
required to be filed in a Maryland state court, including statutes of
limitations, shall be tolled or suspended, as applicable, effective March
16, 2020, by the number of days that the courts are closed to the public
due to the COVID-19 emergency by order of the Chief Judge of the
Court of Appeals[.]

The April 3 order further provided that “such deadlines shall be extended by a period to

be described in an order by the Chief Judge of the Court of Appeals terminating the

COVID-19 emergency period.” The order also tolled deadlines regarding hearings in

pending matters.25

The April 24 Administrative Tolling Order

On April 24, 2020, the Chief Judge issued the order to which the certified question

in this case refers. That order was titled “Amended Administrative Order Clarifying the

Emergency Tolling or Suspension of Statutes of Limitations and Statutory and Rules

Deadlines Related to the Initiation of Matters and Certain Statutory and Rules Deadlines

in Pending Matters.” A copy of that order appears in Appendix B to this opinion.26 It

elaborated on the April 3 order and recited, in a series of “whereas” clauses, the backdrop

against which the tolling order was issued. In particular, it stated that the “comprehensive

measures” required by the Covid-19 emergency, including “the stay-at-home orders

issued by the Governor and restricted operations of the courts and judicial facilities,” were

“causing delays in the processing of routine matters,” that the restrictions were having “a

25
The Chief Judge amended the April 3 order on April 8 in ways not relevant here.
26
Appendix B, as well as the other appendices to this opinion, may be found at the
following link: https://perma.cc/J237-W89M.

24
widespread detrimental impact upon the administration of justice, impeding the ability of

parties and potential litigants to meet with counsel, conduct research, gather evidence, and

prepare complaints, pleadings, and responses,” with the greatest impact on impoverished

individuals, and that the impact of the pandemic “is so widespread as to have created a

general and pervasive practical inability for certain deadlines to be met.” The order

reiterated that the tolling period would begin on March 16, 2020 and run for “the number

of days that the courts are closed to the public due to the COVID-19 emergency.”

The April 24 order made clear that the tolling provision applied to matters in both

the trial and appellate courts27 and contained a new provision explaining that the tolling

provision applied regardless of whether a party made a specific showing of hardship as a

result of the pandemic.28

27
The order amended the language in the April 3 order regarding the tolling or
suspending of statutory and rules deadlines related to the initiation of matters “required to
be filed in a Maryland state court” to read “required to be filed in a Maryland state trial or
appellate court.”
28
The order stated:

Justice requires that the ordering of the suspension of such deadlines
during an emergency as sweeping as a pandemic be applied consistently and
equitably throughout Maryland, and no party or parties shall be compelled to
prove his, her, its, or their practical inability to comply with such a deadline
if it occurred during the COVID-19 emergency to obtain the relief that this
Administrative Order provides[.]

25
 Later Administrative Orders Relevant to Tolling

During May 2020, the Chief Judge issued administrative orders setting forth

additional findings on the impact of the pandemic-related restrictions on the courts.

A May 1, 2020 order concerning “Case Time Standards and Related Reports” stated

that the pandemic “has forced the restriction of court operations and closure of facilities,

requiring postponements of thousands of court events across the state,” that the “restricted

operations have resulted in a backlog of new and pending matters causing heretofore

unforeseen delays in the resolution of cases that must be processed when the courts can be

re-opened to routine operations,” and that “it is anticipated that the courts will be required

to reopen in phases and may continue to be constrained by safety measures . . . .”29

A May 4 order “Expanding and Extending Statewide Judiciary Restricted

Operations”30 addressed the mechanics of filing in the courts and ordered that the clerks of

the various courts “shall continue to process” filings, whether electronic or otherwise, “to

the extent possible with essential staff working onsite, staff teleworking, or both[.]” The

29
Administrative Order on Case Time Standards and Related Reports for Fiscal
Years 2020 and 2021 in Light of the COVID-19 Emergency (May 1, 2020), available at
https://mdcourts.gov/sites/default/files/admin-orders-
archive/20200501casetimestandardsandrelatedreports.pdf (https://perma.cc/9Z2W-
5AER).
30
Fourth Amended Administrative Order Expanding and Extending Statewide
Judiciary Restricted Operations Due to the COVID-19 Emergency (May 4, 2020), available
at https://mdcourts.gov/sites/default/files/admin-orders-
archive/20200504fourthamendedadministrativeorderexpandingandextendingjudiciaryrestr
ictedoperations.pdf (https://perma.cc/89L4-N46A).

26
order further provided that another order issued that day would “control as to statutory and

rules deadlines,” except as to criminal jury trials. The latter order, “Further Clarifying the

Emergency Tolling or Suspension of Statutes of Limitations and Statutory and Rules

Deadlines Related to the Initiation of Matters and Certain Statutory and Rules Deadlines

in Pending Matters,” retained the March 16, 2020 effective date of the earlier tolling orders

and did not change the earlier orders in ways relevant here.

On May 22, the Chief Judge issued an order that superseded the April 24 tolling

order. Among other things, the new order noted that clerks’ offices would be reopened on

July 20, 2020 – which would mark the end of the tolling period established in the previous

orders. The order elaborated on the previous tolling orders by specifying that, for purposes

of tolling the statutes and limitations and other deadlines related to the initiation of matters,

the 126 days during which the clerks’ offices were closed (March 16, 2020 until July 20,

2020) “do not count against the time remaining for the initiation of the matter.” The May

22 order further extended the filing deadlines for the initiation of matters by an additional

15 days past the date on which clerks’ office reopened and provided an example as to how

a new filing deadline would be computed.

From June 2020 through March 2022, the revised administrative tolling order was

amended 11 times. The amendments included some minor changes to the tolling order,31

31
An amended order issued on November 24, 2020, added a definition of “matters”
to which the tolling orders would apply “nunc pro tunc” – i.e., the definition applied
retroactively. That definition has no bearing on this case and its validity is not before us.

27
but largely consisted of updated cross-references to other administrative orders concerning

the Covid-19 pandemic.32 On March 28, 2022, the Chief Judge issued a “final”

administrative tolling order; it recognized the termination of emergency operations in the

Judiciary as of April 3, 2022.

A list of all the administrative tolling orders, and links to each, is contained in

Appendix C to this opinion.33

6. Informing the Legislature about the Judiciary’s Response to the Emergency

On May 7, 2020, the Chief Judge briefed the Senate Judicial Proceedings

Committee on the Judiciary’s response to the pandemic and specifically informed the

committee about the various administrative orders, including the order tolling statutes of

limitations and other filing deadlines. On May 28, the Chief Judge provided a similar

briefing to the House Judiciary Committee and again described the administrative orders,

including the tolling orders.

On January 8, 2021, the Chief Judge provided a further briefing to the Senate

Judicial Proceedings Committee on “the Courts and Criminal Justice System During the

COVID-19 Pandemic.” Attached to the agenda of that meeting was a timeline of the

32
According to the Judiciary website, a total of 107 administrative orders have been
issued concerning various matters related to the pandemic emergency. The vast majority
of those orders consist of minor revisions of a relatively small number of distinct orders.
See https://mdcourts.gov/coronavirusorders (https://perma.cc/82HA-4Q32).
33
Like the other appendices to this opinion, Appendix C may be found at the
following link: https://perma.cc/J237-W89M.

28
Judiciary’s response, including links to the April 3 and 24, 2020 tolling orders and many

of the succeeding ones, and a statement that “[t]he Maryland Judiciary has maintained

ongoing communication with the Maryland Department of Health, the Department of

Public Safety and Correctional Services, Department of Juvenile Services, the Department

of General Services, the Maryland State Bar Association and the Governor’s Office of

Legal Counsel.”34

III

The Dispute between Liberty Mutual and Murphy Enterprises

The federal district court’s certification order describes the lawsuit and proceedings

there that gave rise to the certified question of law.

A. Payment and Performance Bonds and Claims for Indemnification

The facts of the underlying dispute do not affect our answer to the certified question.

We describe them briefly for context. As indicated in the federal court’s certification order,

34
Maryland Senate Judicial Proceedings Committee, Briefing on the Courts and
Criminal Justice System During the COVID-19 Pandemic, Agenda (Jan. 8, 2021),
available at https://mgaleg.maryland.gov/2021RS/meeting_material/jpr%20-
%20132545970372917678%20-%20JPR%20Briefing%20January%208.pdf
(https://perma.cc/DZP4-5X4H).

29
Liberty Mutual35 issued payment and performance bonds to Murphy Enterprises,36 a

concrete subcontractor on a construction contract for a Maryland State Police facility at

Martin State Airport. Under a related indemnification agreement, Murphy Enterprises

agreed to indemnify Liberty Mutual in certain circumstances. According to Liberty

Mutual, Murphy Enterprises defaulted on its obligations at the construction project,

resulting in claims against the payment and performance bonds. Liberty Mutual allegedly

made payments to third parties as a result of those claims on five occasions during February

2017 through August 2017. According to Liberty Mutual, it is entitled to indemnification,

including associated legal fees and other costs, from Murphy Enterprises for those

payments.

B. Litigation in Federal Court Concerning the Claims for Indemnification

On July 2, 2020, Liberty Mutual sued Murphy Enterprises in a diversity action in

federal court to recover the amounts allegedly owed. The complaint asserted a breach of

contract claim and alleged that the damages exceeded the jurisdictional amount of $75,000

for purposes of the federal court’s diversity jurisdiction. Liberty Mutual Ins. Co. v. Jesse

J. Murphy, et al., Civil Action No. 1:20-cv-01961-SAG (D. Md.).

35
According to the complaint filed in the federal district court, Liberty Mutual
brought the action as administrator and assignee of another entity that had issued the
payment and performance bonds. For simplicity, we refer solely to Liberty Mutual in the
text.
36
Jesse J. Murphy, the individual defendant in the underlying case, is identified in
the caption of the complaint in the federal district court as the president and resident agent
of J.M. Murphy Enterprises, Inc.

30
 Murphy Enterprises moved for dismissal of the complaint on the ground that the

federal court lacked subject matter jurisdiction. It argued that several of the bond payments

were made more than three years before the complaint was filed, that the claims related to

those payments accrued outside the relevant period of limitations under Maryland law,37

that the amount of those claims should not be included in computing the amount in

controversy, and that the remaining claims did not meet the $75,000 jurisdictional

threshold for a diversity action in federal court. Liberty Mutual countered that the claims

were timely under Maryland law because the April 24, 2020 administrative tolling order

had tolled the applicable statute of limitations. In reply, Murphy Enterprises argued that

the tolling order exceeded this Court’s authority under Maryland’s Constitution to “adopt

rules and regulations concerning the practice and procedure in and the administration of

the appellate courts and in other courts of the State” and “constituted an unlawful

assumption of legislative power.” Liberty Mutual rejoined that the Court had properly

exercised its emergency powers.

C. Federal Court Certifies Question of Maryland Law

On July 2, 2021, the federal district court issued a memorandum opinion in which

it opined that the April 24, 2020 administrative tolling order was “substantive law” that

tolled the statute of limitations under Maryland law and that would apply in a federal

37
The general statute of limitations under Maryland law applicable to breach of
contract claims is three years. CJ §5-101.

31
diversity action if “validly enacted.”38 Accordingly, the court concluded that the validity

of the administrative tolling order could be determinative of its jurisdiction over the

litigation. Two weeks later, the federal district court transmitted its certified question of

law to this Court to resolve that issue.

The timeliness of certain claims asserted in Liberty Mutual’s complaint in the

federal court action – and the jurisdiction of the federal court over that action – thus may

turn on whether the April 24, 2020 administrative tolling order was a proper exercise of

powers under the Maryland Constitution.39 For that purpose, the federal court has certified

a question of law to this Court, which we rephrase as follows:40

38
Under the “Erie doctrine,” a federal court is to apply the substantive law of the
state in which it sits, including the state’s choice-of-law rules, in an action brought under
the federal court’s diversity jurisdiction. See Erie R.R. v. Tompkins, 304 U.S. 64 (1938).
39
While we have no reason to dispute the federal court’s view of how the validity
of the administrative tolling order may affect its jurisdiction over the litigation, we express
no opinion as to when the various claims asserted by Liberty Mutual actually accrued.
40
The federal district court worded the certified question as follows:

Did the Maryland Court of Appeals act within its enabling authority
under, inter alia, the State Constitution and the State Declaration of Rights
when its April 24, 2020 Administrative Order tolled Maryland’s statutes of
limitation in response to the COVID-19 pandemic?

We have reformulated the question to reflect that, as noted in Part II.B of this opinion, the
April 24 administrative tolling order and the subsequent tolling orders that revised it were
issued by the Chief Judge of the Court of Appeals, not the entire Court, and that those
orders invoked rules adopted by the Court in addition to the Chief Judge’s administrative
authority as head of the Judicial Branch under the State Constitution. Our rephrasing is
simply an effort to present the important issue identified by the federal court more precisely
in terms of Maryland law. Our rephrasing also recognizes that the Chief Judge’s
administrative orders for criminal matters and other deadlines are not at issue in this matter.

32
 Did the Chief Judge of the Court of Appeals of Maryland act within
her authority under Maryland law when, in response to the Covid-19
pandemic, she issued Administrative Orders that tolled statutes of limitations
related to civil cases?

The certification order designated Murphy Enterprises and Mr. Murphy as appellants in

this Court and so Liberty Mutual is to be treated as appellee. Maryland Rule 8-305(b).

IV

Discussion

A. Certified Questions of Law

Under the Maryland Uniform Certification of Questions of Law Act, CJ §12-601 et

seq., this Court may “answer a question of law certified to it by a court of the United States

or by an appellate court of another state or of a tribe, if the answer may be determinative

of an issue in pending litigation in the certifying court and there is no controlling appellate

decision, constitutional provision, or statute of this State.” CJ §12-603; see also Maryland

Rule 8-305. For that purpose, we may reformulate the question certified to us, as we have

done in this case. CJ §12-604. In responding to a certification from another court, this

Court resolves only issues of Maryland law, not questions of fact. Parler & Wobber v.

Miles & Stockbridge, 359 Md. 671, 681 (2000).

In responding to the certified question from the federal district court, it is not our

role to decide the timeliness of the claims asserted by Liberty Mutual, to determine whether

the amount in controversy satisfies the minimum for federal diversity jurisdiction, or to

resolve Murphy Enterprises’ motion to dismiss. Those are jobs for the federal court. Our

33
task is simply to answer the question of Maryland law posed to us to assist the federal court

in resolving the questions before it.

The federal district court has asked whether the Chief Judge acted within her

authority under Maryland law, including the Maryland Constitution, in issuing the

administrative tolling order.41 We answer that question in two steps.

First, we address whether there is authority under Maryland law for a Chief Judge

to issue such an order in an emergency. The answer to that question is relatively

straightforward and largely answered in the text of the administrative tolling order itself.

Second, we consider whether, regardless of the authority for issuing such an order,

that order violated the Maryland Declaration of Rights. Murphy Enterprises contends that

two provisions of the Declaration of Rights precluded that order: (1) Article 8, which

guarantees separation of powers of the Executive, Legislative, and Judicial branches of the

Maryland State government, and (2) Article 9, which prohibits the suspension of laws.

B. Whether the Chief Judge Had Authority to Issue the Order

The administrative tolling order issued on April 24, 2020 was based on explicit

authority provided by Maryland Rule 16-1003(a)(7) for the Chief Judge to “suspend, toll,

extend, or otherwise grant relief from time deadlines … otherwise imposed by applicable

statutes ….” The Chief Judge’s authority to take such action is triggered under Maryland

41
Although our analysis and answer relate, as does the certified question of law,
specifically to the April 24, 2020 administrative tolling order as it affected statutes of
limitations governing civil actions, the same analysis applies to the later iterations of that
provision in the amended administrative tolling orders issued by the Chief Judge.

34
Rule 16-1001 when the Governor declares a state of emergency – as the Governor had done

in March 2020 prior to the issuance of the administrative tolling order. Those rules were

adopted by the Court of Appeals, pursuant to the Court’s rulemaking authority in Article

IV, §18(a) of the Maryland Constitution after notice and a public hearing, albeit on a short

timetable due to the pandemic emergency. There is no contention that the adoption of the

rules was procedurally deficient.

The administrative tolling order also invoked Article IV, §18 of the Maryland

Constitution and alluded to the Chief Judge’s role as the “administrative head” of the

Maryland judicial system. See Part I.A.1 of this opinion. The order was based in part on

the Chief Judge’s administrative responsibility to ensure that the courts were available to

discharge their constitutional duty to adjudicate disputes. As the recitals in the

administrative order indicate, at the time the order was issued in the spring of 2020, the

pandemic had disrupted access to the courts and the ability of the State Judiciary to operate

effectively. See Appendix B (text of April 24, 2020 order). In particular, the Chief Judge

found that the measures the Judiciary had taken to respond to that emergency, in

compliance with directives of the Governor and guidance from the federal Centers for

Disease Control and Prevention, had had a “detrimental impact” that “imped[ed] the ability

of parties and potential litigants to meet with counsel, conduct research, gather evidence,

and prepare complaints, pleadings, and responses.” Id. As a result, there was a “general

and pervasive practical inability” to meet certain deadlines. Id. Moreover, the Chief Judge

found that the pandemic had affected not only the ability of litigants to file pleadings – a

35
problem addressed at least in part by drop boxes and MDEC – but also the ability to prepare

them in the first place.

In setting the amount of additional time that would be allowed for the “initiation of

matters,” section (a) of the order stated that the tolling period would run from March 16,

2020 – the date on which access to clerks’ offices was first restricted – and consist of “the

number of days that the courts are closed to the public due to the COVID-19 emergency.”42

A later administrative order set the end date of the tolling period as July 20, 2020, once the

courts had been reopened.43 Accordingly, the tolling period was explicitly tied to the period

that the courts were closed to the public.

There thus was ample and explicit authority under Article IV of the State

Constitution and the Maryland Rules for the Chief Judge to issue the administrative tolling

order. The remaining issue is whether, as Murphy Enterprises argues, the order – and

presumably the rules on which it was based – overreached the authority of the Judiciary by

offending other provisions of the Maryland Constitution, in particular, Articles 8 and 9 of

the Maryland Declaration of Rights.

42
Other sections of the order applied a similar tolling period to deadlines in pending
matters and made clear that the tolling applied universally without a requirement that
litigants demonstrate a hardship in a particular case. See sections (b) and (c) of the April
24, 2020 order.
43
Later revisions of the order also added a 15-day grace period to the tolling period.
That was apparently based on Rule 16-1003(b), which, according to the accompanying
Rules Committee Note, contemplates that some extensions of deadlines might remain in
place for a reasonable time after termination of an emergency. See Part I.C.2 of this
opinion.

36
C. Whether the Order Violated Article 8 of the Maryland Declaration of Rights

1. Article 8 – Separation of Powers

The Three Branches

The Maryland Constitution establishes State government in three branches –

Legislative, Executive, and Judicial – that are often referred to as “Departments” in that

document. Article II, entitled “Executive Department,” sets forth the powers of the

Governor as to that branch; Article III, entitled “Legislative Department,” concerns the

General Assembly, its composition, and its powers; and Article IV, entitled “Judicial

Department,” concerns the composition and powers of the Judiciary. Article 8 of the

Maryland Declaration of Rights sets forth a principle of separation of powers with respect

to those branches. It states, in its entirety: “That the Legislative, Executive and Judicial

powers of Government ought to be forever separate and distinct from each other; and no

person exercising the functions of one of said Departments shall assume or discharge the

duties of any other.”

Shared Authority

Read literally, Article 8 appears to presuppose that each branch can, and must, carry

out its functions without performing any of the functions assigned to another branch.

However, this Court has long acknowledged that the “respective powers of the legislative,

executive and judicial branches of government are not ‘wholly separate and unmixed,’”

Crane v. Meginnis, 1 G. & J. 463, 476 (1829).

37
 In a well-known opinion concerning the relationship of the branches of government

under the federal constitution, Justice Robert Jackson described how the principle of

separation of powers does not isolate each branch in its own silo:

The actual art of governing under our Constitution does not and
cannot conform to judicial definitions of the power of any of its branches
based on isolated clauses or even single Articles torn from context. While
the Constitution diffuses power the better to secure liberty, it also
contemplates that practice will integrate the dispersed powers into a
workable government. It enjoins upon its branches separateness but
interdependence, autonomy but reciprocity.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J.,

concurring).

The Maryland Constitution recognizes on its face that the powers of the three

branches of State government are often and inevitably intertwined. For example, the

General Assembly has a role in elections and appointments to positions in the Executive

Branch under Article II. See Article II, §6 (vacancies in offices of Governor and Lieutenant

Governor), §10-11 (Senate confirmation of gubernatorial appointees). The Governor, as

well as the General Assembly, plays a role in the enactment of legislation and in the

organization of the Executive Branch. Article II, §17, 24. The Governor, as well as the

General Assembly, has an important role in the State budget process. See Article III, §52;

Judy v. Schaefer, 331 Md. 239, 261-62 (1993) (describing the Governor’s role in the State

budget process as “a major legislative-type role”).

Other examples of shared authority necessarily occur in practice. The General

Assembly, in enacting a statute, may delegate some legislative-type powers to an Executive

Branch agency charged with administering the statute, so long as the statute provides

38
“sufficient safeguards” to guide the agency’s exercise of those powers. Department of

Transportation v. Armacost, 311 Md. 64, 72 (1987); see also Department of Natural

Resources v. Linchester, 274 Md. 211, 218-20 (1975). The authority of one branch may

overlap with those of another in some circumstances “because each branch may be

concerned with different objectives.” Meyer v. State, 445 Md. 648, 677 (2015)

(recognizing the shared authority of the Executive and Judiciary branches to restrict an

individual’s driving privileges).

The separation of powers concept embodied in Article 8 accommodates the fact that,

in addition to the specific powers and functions that the Constitution expressly grants to

the three branches of government, each branch must as a practical matter “possess[]

additional powers perforce implied from the right and obligation to perform its

constitutional duties.” Attorney General v. Waldron, 289 Md. 683, 690-91 (1981).

Because each branch has those implied powers, which are also referred to as “incidental”

or “inherent” powers, Article 8 “may constitutionally encompass a sensible degree of

elasticity.” Id. at 689 (quoting Linchester, 274 Md. at 220 (1975) (internal quotation marks

omitted)). Accordingly, instead of interpreting Article 8 in a “literal sense,” the Court has

read it to “preserve to the one branch of government its essential functions” and to “prohibit

any other branch from interfering with or usurping those functions.” McCulloch v.

Glendening, 347 Md. 272, 283-84 (1997) (internal punctuation and citations omitted)..

The Limits of Sharing – “Usurping” the Powers of Another Branch

Still, the meaning of Article 8 “cannot be stretched to a point where, in effect, there

no longer exists a separation of governmental power, as the Maryland Constitution does

39
not permit a merger of the three branches of our State government, nor does it ‘make any

one of the three departments subordinate to the other, when exercising the trust committed

to it.’” Merchant v. State, 448 Md. 75, 97 (2016) (quoting Linchester, 274 Md. at 220).

Generally, in determining where that point might lie, the Court has looked to whether the

branch whose power was challenged was “usurping” a power of another branch. See, e.g.,

Schisler v. State, 394 Md. 519 (2006) (holding invalid an action taken by the Legislature

that fell within the Executive’s purview). To the same effect, the Court has considered

whether the performance of a function by one branch “encroach[ed]” on the other branch’s

powers, see, e.g., Linchester, 274 Md. at 220, and whether the branch in question had “a

significant role” in the subject of the action, or whether, by contrast, that subject lay “solely

and exclusively within the purview of [a different] branch.” McCulloch, 347 Md. at 284.

In considering whether one branch’s action usurped a function properly belonging to

another branch, the Court has considered not only the respective roles and functions of

each branch as to the particular subject matter, but also the surrounding circumstances.

See, e.g., Schisler, 394 Md. at 542 (recounting the circumstances that led to the General

Assembly’s adoption of legislation that encroached on the Executive appointment power).

2. Application to the Administrative Tolling Order

The certified question in the present case involves the respective powers and

functions of all three branches. The issue here is whether the Judiciary had a “significant

role” in the courts’ application of statutes of limitations during an emergency or whether,

instead, that subject fell solely within the purview of either the Legislative or the Executive

branch such that the administrative tolling order interfered with the performance by the

40
other two branches of their essential functions. In short, did the Chief Judge’s

administrative tolling order “usurp” another branch’s power?

Separation of Powers and the Judiciary

This Court has addressed the Judiciary’s place in Maryland’s system of government

in numerous contexts. The cases can be sorted into four broad categories: (1) those

involving a legislative attempt to assign to the courts a task that had nothing to do with

adjudicating cases, such as approving the accounts that county officers presented to a board

of county commissioners for payment;44 (2) those involving actions taken by, or requested

of, a particular court in a particular proceeding that encroached upon a legislative or

executive function;45 (3) those that concern whether the adoption of a particular rule by the

44
Beasley v. Ridout, 94 Md. 641(1902). Other examples of such statutes include laws
requiring a court to find facts, for referral to the Legislature for its action, as to whether a
candidate for register of wills had violated the state Corrupt Practices Act, Duffy v.
Conaway, 295 Md. 242, 261 (1983); requiring a court to appoint members of a board of
visitors to a county jail, Robey v. Prince George’s County, 92 Md. 150 (1900); or requiring
the circuit court to receive petitions on whether to permit the sale of liquor in the county
and order an election if the petitions met the required threshold, Board of Supervisors
Elections v. Todd, 97 Md. 247 (1903).

With regard to legislation that limits the Judiciary’s powers, the Legislature retains
authority to limit the Judiciary’s exercise of its powers to the extent that a power is “not an
essential [one] inherent in the courts in the discharge of their constitutionally mandated
duty to administer justice.” Commission on Medical Discipline v. Stillman, 291 Md. 390,
402 (1981).
45
See, e.g., Getty v. Carroll County Board of Elections, 399 Md. 710, 738 (2007)
(holding that the circuit court had exceeded its powers in issuing a consent order
implementing an agreement between a county resident and the election board to adopt a
particular redistricting plan and explaining that the circuit court had “assumed a role that,
in fact, constitutionally belongs to the legislative and executive departments of our
government”); Maryland-Nat’l Cap. Park & Plan. Comm’n v. Randall, 209 Md. 18, 27

41
Court of Appeals exceeded the Court’s authority under Article IV, §18(a) to adopt rules

and regulations concerning “the practice and procedure” in the courts;46 and (4) those

involving whether a particular rule or other action by the Judiciary exceeded the

rulemaking authority of the Court of Appeals under that same section concerning “the

administration” of the courts.47

The last two categories of cases are the most instructive here. The certified question

of law concerns the validity of an administrative order that invoked the Chief Judge’s

authority under both Article IV, §18(b) and the emergency rules, which themselves were

based on the rulemaking authority of the Court of Appeals under Article IV, §18(a) (“The

Court of Appeals from time to time shall adopt rules and regulations concerning the

practice and procedure in and the administration of the appellate courts and in the other

courts of this State …” (emphasis added)).

(1956) (affirming the circuit court’s dismissal of a petition to enjoin the Secretary of State
from transmitting a vetoed bill back to the legislative house of origin).
46
See, e.g., Consol. Const. Servs., Inc. v. Simpson, 372 Md. 434, 448-49 (2002)
(provision of rule governing garnishment actions effected a substantive change in the cause
of action that exceeded the Court’s rulemaking authority).
47
See, e.g., Whitaker v. Prince George’s County, 307 Md. 368 (1986) (rule granting
power to assign cases to a circuit court administrative judge was within the rulemaking
power under §18(a)).

42
 Whether the rules and administrative tolling order fell within the Court’s
rulemaking powers related to “practice and procedure”

The “practice and procedure” category includes cases in which the Court held

invalid either its own rule or a local rule adopted by a circuit court with rulemaking

authority, and cases in which the Court held instead that the rule fell properly within the

Judicial Branch’s role in regulating practice and procedure in the courts. In a case in which

a rule was found to be invalid, the Court held that it had exceeded its power and had

encroached on the General Assembly’s legislative power by adopting a rule that added a

substantive element to attachment and garnishment proceedings. Those proceedings, the

Court explained, are “creatures of statute,” such that the “substance of the statute . . . is the

province of the Legislature and not the courts.” Consol. Const. Servs., Inc. v. Simpson, 372

Md. 434, 451–52 (2002); see also State v. Kanaras, 357 Md. 170, 183 (1999) (“It is

doubtful that this Court’s rule-making authority would extend to the creation of a separate

cause of action.”).

A statute of limitations, however, neither creates a right of action nor pertains to the

merits of a cause of action; rather, it regulates the plaintiff’s exercise of that right. See

Park Plus, Inc. v. Palisades of Towson, LLC, ___ Md. ___ (March 25, 2022), slip op. at 18

(“Statutes of limitations have historically been considered procedural, not substantive

defenses, and are generally understood to extinguish the remedy for enforcing a right, not

the right itself.”) (emphasis in original); see also Foos v. Steinberg, 247 Md. 35, 38 (1967);

Snyder v. Cearfoss, 187 Md. 635, 639 (1947); Young v. Mayne Realty Co., Inc., 48 Md.

App. 662, 664-66 (1981).

43
 The tolling of the statute of limitations thus falls within the field of procedural

matters in which the Court may play a role. Further, as noted in Part I.B. of this opinion,

the Court has played a role on the subject, both by rule and through the development in

case law of doctrines applicable to broad categories of cases. As noted earlier, Rule 2-

101(b) tolls the statute of limitations for filing in a Maryland court for a plaintiff whose

lawsuit was initially filed in federal court or a court of another state, but dismissed in that

forum on jurisdictional or certain other grounds. See Turner v. Kight, 406 Md. 167, 190

(2008) (applying Rule 2-101(b) in conjunction with a federal statute); see also Christensen,

394 Md. at 242 (referring to Rule 2-101(b), stating, “this Court not only has the authority

to adopt rules that alter the operation of existing statutes of limitations, it has exercised its

rulemaking authority to adopt such a rule”). That rule, adopted to preserve a plaintiff’s

ability to litigate an action timely brought in federal court but dismissed there on certain

grounds not bearing on the merits, illustrates that “practice and procedure” may include

generally-applicable measures to ensure that the courts’ procedures are fair to litigants.

Similar policy goals underlie the various judicially-created doctrines that extend the

deadline for filing suit for various categories of claimants, such as the “discovery rule” and

“judicial tolling.” In creating such categorical exceptions, the Court has looked to the

several interests accommodated in a statute of limitations. For example, in extending the

discovery rule to latent disease claims that the plaintiff could not have discovered within

the applicable time period, the Court concluded that “avoiding possible injustice in these

situations outweighed interests in repose and administrative expediency.” Hecht v. Resol.

Tr. Corp., 333 Md. 324, 335 (1994) (recounting the Court’s development of the discovery

44
rule). And, the Court has applied the doctrine of “judicial tolling” when “(1) there is

persuasive authority or persuasive policy considerations supporting the recognition of the

tolling exception, and (2) recognizing the tolling exception is consistent with the generally

recognized purposes for the enactment of statutes of limitations.” Christensen, 394 Md. at

238.48

Certainly, the tolling of a statute of limitations is a subject that also lies within the

sphere of the legislative branch; as this Court has noted, “the harshness” of the general rule

that the limitations period runs upon the occurrence of the alleged wrong has “led to the

creation of both legislative and judicial exceptions.” Poffenberger, 290 Md. at 634

(emphasis added). One such legislated exception is provided by CJ §5-202, which tolls the

pertinent statute of limitations on the claims against a defendant who files a “petition in

insolvency” for a period of time between “the filing and the dismissal” of such a petition.

See Ali v. CIT Tech. Fin. Servs., Inc., 416 Md. 249, 252, 259 (2010) (construing CJ §5-

202). Another is set forth in PS §14-207, which provides for the tolling of the statute

regarding persons in emergency management or, during the emergency period, persons

suffering certain injuries or damages. And, at times, the Legislature has codified a

judicially-created exception by amending a statute to include it, or creating a new statutory

cause of action. See, e.g., Piper v. Jenkins, 207 Md. 308, 316 (1955) (describing a statutory

amendment that extended the judicially-created fraud exception to cases filed at law).

48
The federal district court did not ask, and we express no opinion on, whether
judicial tolling would be appropriate in this particular case.

45
 Just as certainly, however, the General Assembly’s authority to enact legislation on

the subject of tolling does not deprive the Judicial Branch of its constitutional authority to

adopt rules that regulate the method by which litigants exercise a right of action. The

shared authority of the two branches in that broad field – and the back-and-forth between

the two branches that may occasionally and constitutionally occur – can be seen in Hensley

v. Bethesda Sheet Metal Co., 230 Md. 556 (1963). That case also illustrates the principle

under Article IV, §18 that, when a rule and statute conflict in this area, the last enacted

provision prevails.49

The decision in Hensley concerned the procedure by which a workers’

compensation claimant was to seek judicial review of an adverse decision of the Workers’

Compensation Commission. As of 1959, a claimant was required by a longstanding statute

to serve notice of such an appeal on the Commission as a prerequisite to obtaining judicial

review. That year, the Court adopted a general rule for appeals from administrative

agencies – which would include an appeal of a Commission decision.50 That rule required

a claimant to note an appeal in circuit court and did not require service on the administrative

tribunal. In 1960, in the course of amending the statute pertaining to the Commission, it

49
That principle is akin to the direction that the General Assembly has given for
resolving contradictory provisions in its own enactments. See Maryland Code, General
Provisions Article, §1-207.
50
At that time, the Maryland Rules referred to an “appeal” of an administrative
agency decision. Currently, the rules refer, more accurately, to “judicial review” of such
decisions. See Maryland Rule 7-201 et seq.

46
repealed and re-enacted that statute, which still included the requirement that a claimant

note an appeal with the Commission. In 1962, the Court re-promulgated the rules

concerning appeals from administrative agencies, including the rule regarding the

prerequisites for pursuing such an appeal, thereby superseding once again the legislative

provision concerning service on the Commission. Id. at 559-60. In Hensley, a claimant

had followed the statutory procedure while appealing an adverse Commission decision in

1961; the circuit court dismissed that appeal for failing to comply with the court rule. This

Court reversed that decision, holding that the claimant had properly followed the statutory

procedure during the interlude when the statute prevailed over the rule. The Court

explained that it had, “pursuant to the constitutional grant of power, promulgated [the rules]

to govern the method, manner and mechanics of appeals from administrative agencies.”

Id. Just as constitutionally, the Legislature had enacted legislation that overrode the

Court’s rules on that subject.51

The Court’s adoption of rules providing for the tolling of the statute of limitations

in the event of an emergency fell within the Court’s constitutional authority to adopt rules

51
Another example of the concurrent roles of the two branches in procedural matters
involved the regulation of appeals of a court’s denial of a request for an injunction. As
related in Funger v. Mayor & Council of Town of Somerset, 244 Md. 141 (1966), a statute
had made such denials immediately appealable; the Court of Appeals adopted a rule that
superseded the statute as to certain actions; and the Legislature then “restored the situation
to where it was” before the Rule was adopted. The Court explained, “[i]n enacting [that
law,] the Legislature was concerned directly and precisely with the interplay of its statutes
and the rules of the Court of Appeals. In that enactment it repealed statutes which were
made ineffective or obsolete by the new rules and preserved or newly enacted the statutes
it desired to be still effective.” 244 Md. at 150.

47
of practice and procedure. It is also evident that the tolling order itself did not usurp powers

belonging solely to another branch. As set forth in Part II of this opinion, the Chief Judge

issued the administrative tolling order against the backdrop of the rapidly-spreading Covid-

19 outbreak in Maryland. The tolling order addressed the effect of the emergency on the

ability of litigants and attorneys to comply with filing deadlines – a matter that the

Governor had already addressed in substantially similar terms for deadlines administered

by Executive Branch agencies52 – and the ability of Judiciary personnel to process

pleadings – an issue that the Executive Branch had analogously addressed in its policy

applicable to employees in that branch.53 When the Chief Judge’s pandemic tolling order

is viewed in that context, and also viewed against the backdrop of the Governor’s orders

limiting the movements of the public, the Judiciary’s role as to litigants and members of

the bar, the representation of the Legislature on the Rules Committee, and, particularly, the

ongoing communications between the Judiciary and the Executive and Legislative

branches, it becomes apparent that the administrative tolling order did not usurp a function

52
In its brief, Liberty Mutual argues that the Chief Judge acted “under the ambit”
of the Governor’s executive order declaring a state of emergency, suggesting that the
Governor had delegated authority to issue a tolling order to the Chief Judge. However, as
shown by the administrative order, the Chief Judge did not purport to act under a delegation
from the Governor; instead, she expressly relied on the constitutional grant of
administrative authority to the Chief Judge and of rulemaking authority to the Court of
Appeals. As outlined in Part I.C.2 of this opinion, the pertinent rules required the Chief
Judge to act “in harmony” with the measures taken in the Executive Branch and to consult
with the Governor and other officials in exercising the powers specified in the rules.
53
As a general rule, the Governor’s executive authority does not extend to employees
in other branches. SPP §2-201. Nor does the Public Safety Article direct the Executive
Branch to coordinate activities in the Judicial Branch in the event of an emergency.

48
solely belonging to another branch. Instead, the order not only comported with the

Executive Branch policy of limiting interactions among the public but also served the

statutory purposes of the statute of limitations by affording litigants adequate time in which

to prepare and file their pleadings and by avoiding the filing of inadequately-investigated

lawsuits in the courts.

Whether the tolling order and enabling rules fell within the Court’s power over the
administration of the courts

The second category of instructive Article 8 cases is comprised of those that address

the validity of a rule or other Judiciary action regarding the administration of the courts –

a power that the Constitution grants to both the Court of Appeals and the Chief Judge. The

Court described that power in Whitaker v. Prince George’s County, 307 Md. 368, 375-76

(1986). There, the petitioner challenged the validity of a rule54 that authorized the

administrative judge of each circuit to “assign any judge of his judicial circuit to sit as a

judge of the Circuit Court of any county in the judicial circuit, in any specified case or

cases or for any specified time.” Id. Holding that the rule was consistent with the Court’s

general power under Article IV, §18(a) to adopt rules concerning the administration of the

courts, as well as §18(b) concerning the Chief Judge’s authority to make assignments, the

Court stated that “whether it be by the Court of Appeals directly or the circuit

54
Former Maryland Rule 1202(b)(1). That rule, with minor amendments, has been
re-codified and now appears as Maryland Rule 16-108(c). See also Strickland v. State, 407
Md. 344, 360 (2009).

49
administrative judge as its alter ego in the circuit, this power and authority encompasses

all facets of the internal management of our courts.” Id. at 376.

There are many facets of the internal management of the Judiciary, among them the

management of Judiciary personnel, operations, and facilities. Additionally, the Court

holds the incidental (or implied or inherent) power to regulate the legal profession, because

lawyers are officers of the Court. See, e.g., Waldron, 289 Md. 683 (discussing the

Judiciary’s role with regard to members of the Maryland bar). In both areas, the authority

of the Judiciary and, as applicable, its administrative head, is not only inherent, but also

expressly recognized by statute. See, e.g., CJ §1-201(a) (providing that the Court’s power

to issue rules and regulations concerning practice and procedure and judicial administration

in the courts is to be “liberally construed”); SPP §2-201 (stating that employees in the

Judicial Branch are governed by that branch’s personnel policies).

Both the administrative tolling order and the emergency rules fell within the

administrative powers assigned to the Judicial Branch. As noted above, the Chief Judge’s

April 24, 2020 order stated the comprehensive impact that the pandemic-related

restrictions, including the Governor’s stay-at-home orders and the restricted operations of

the courts, were having on logistical matters such as the processing of routine matters and

the ability of parties and potential litigants to meet with counsel, conduct research, and

prepare pleadings. Under those emergency circumstances, the Chief Judge’s order was

within her authority as administrative head of the Courts. And, as noted above, the Chief

Judge issued orders that followed on, and did not contravene, the Executive Branch orders

that governed the general public, State buildings, and Executive Branch personnel.

50
Further, the Judiciary conferred with Executive Branch agencies throughout, and the Chief

Judge reported those actions to committees of both houses of the General Assembly –

which had retained for itself in statute, but did not exercise in these circumstances, the

power to terminate a declared state of emergency.

Whether the order or rules “usurped” the function of another Branch

The Chief Judge’s April 24, 2020 administrative tolling order did not usurp the

Legislative Branch’s powers. The rules on which that order was based fell within the

Court’s “practice and procedure” and administrative functions under the Maryland

Constitution. The order was not an expression of a Judicial policy preference for a period

of limitations different from that set by the Legislature. Rather, in a sense, it was an effort

to respect the period of limitations set by the General Assembly by ensuring that the

administrative obstacles faced by litigants and the courts during the early days of the

pandemic did not effectively and retroactively shorten the period of limitations in those

cases in which the period would expire while the courts were closed. Thus, while an order

tolling a statute of limitations would not ordinarily be an administrative matter, in this

instance there were good grounds for treating it as such. Given the Court’s role regarding

the procedural aspects of the statute of limitations, and given the Judiciary’s coordination

with the Executive Branch with regard to the pandemic response, the rule and order also

did not encroach upon the Executive Branch’s emergency powers.

51
D. Whether the Order Violated Article 9 of the Maryland Declaration of Rights

1. Article 9 – Prohibition Against Suspension of Laws

Article 9 of the Maryland Declaration of Rights provides “[t]hat no power of

suspending Laws or the execution of Laws, unless by, or derived from the Legislature,

ought to be exercised, or allowed.” This provision has been part of the Maryland

Declaration of Rights since 1776 and was derived from the English Bill of Rights of 1689.

See Dan Friedman, The Maryland State Constitution: A Reference Guide (Praeger 2006)

20. It has never been construed by this Court.55 An earlier treatise on the Maryland

Constitution suggests why there is a paucity of case law concerning Article 9. See Alfred

S. Niles, Maryland Constitutional Law (Hepbron & Haydon 1915). Niles classified the

various articles of the Maryland Declaration of Rights into four different categories. Id. at

12-14. In his view, Article 9 fell into a category of “(d)eclarations of abstract principles

whose sole practical effect is to declare from what standpoint the law shall be considered

and in what spirit interpreted …. [I]n reality they amount to little more than a statement as

to the point of view from which the court is expected to look at any particular concrete

question.” Id. at 12, 22 (emphasis in original).

55
The Court of Special Appeals has had occasion to consider the application of
Article 9 on two occasions and held that it did not apply in those cases. See Paula v. Mayor
& City Council of Baltimore, 253 Md. App. 566, ___ (2022) (affirming circuit court
decision that Article 9 did not confer standing on plaintiff seeking to challenge alleged
actions and inactions of police civilian review board); Doctor’s Hospital of Prince
George’s County v. Maryland Health Resources Commission, 65 Md. App. 656, 675-76
(1986) (Commission decision not to issue certificate of need to hospital, despite a provision
in the State Health Plan contemplating additional beds in the county, was not an “illegal
moratorium” that violated Article 9).

52
 2. Application to this Case

Murphy Enterprises does not articulate why it believes the administrative tolling

order violated Article 9 other than to quote the language of the constitutional provision.

Even if Article 9 is read literally to provide a specific safeguard as opposed to an abstract

principle of construction, it must be read in harmony with the rest of the State Constitution

of which it is part. A “basic rule of construction” applicable to the principles stated in the

Maryland Declaration of Rights is “that ordinarily the specific prevails over the general.”

State v. Smith, 305 Md. 489, 511 (1986). In other words, a specific power conferred in the

State Constitution prevails over a general principle stated in the Declaration of Rights. Id.56

As outlined earlier in this opinion, the State Constitution specifically assigns to the

Judiciary the power to make rules and regulations to govern the practice and procedure and

judicial administration in the courts of the State.

As explained above, the Court’s adoption of the emergency rules, which authorized

the issuance of an administrative tolling order such as the one that is the subject of the

certified question, was inherently within the Court’s constitutional rulemaking power. The

Constitution also designates the Chief Judge as administrative head of the Judiciary. The

specific constitutional grants of rulemaking and administrative powers to the Court of

Appeals and Chief Judge, respectively, would prevail over the more general principle

56
In Smith, the defendant argued that the issuance of a statement of charges by a
District Court Commissioner violated the separation of powers guaranteed by Article 8 of
the Maryland Declaration of Rights. The Court rejected that argument, holding that the
specific powers conferred on commissioners under Article IV, §41G of the Constitution
prevailed over the general principle of separation of powers stated in Article 8.

53
stated in Article 9. In any event, the adoption of a new rule under the Court’s rulemaking

power, and the issuance of an administrative order based on that rule, do not appear to fit

the description of a “suspension” of the laws.

Furthermore, even if the tolling of a period of limitations could be characterized as

a “suspension” of a law, in the circumstances of this emergency, it was consistent with

legislative policies and actions. The Legislature has granted certain emergency powers to

the Governor that include suspending State and local laws and has specified emergency

exemptions in particular statutes. Constitutionally, however, the Chief Judge, not the

Governor, is the administrative head of the Judiciary. As an incident of its core

constitutional powers, the Judiciary must be able to address emergencies affecting judicial

operations and personnel, whether those emergencies be local and brief, such as a hurricane

or public safety event, or widespread, such as the pandemic. Particularly when such powers

are exercised consistently with the statutorily-authorized actions taken by the Governor

upon the Governor’s declaration of a state of emergency and coordinated with the other

branches of State government, including the Legislature, it cannot be said that there is a

“suspension” of laws that is not in some way “derived from the Legislature.”

E. Summary

The certified question of law presents a novel question as to the extent of the

Judiciary’s authority to manage the State’s court system, including its personnel, the public,

and court facilities, during a prolonged state of emergency that, at various times, has

affected many litigants’ ability to marshal facts and find, engage, and meet with lawyers;

has affected lawyers’ ability to meet with clients and assess their cases, gather facts and

54
records, and prepare pleadings; and has affected the ability of the court system to serve and

docket pleadings and set scheduling orders. Under such circumstances, the strict

application of the usual tolling rules in the various statutes of limitations would in many

cases have resulted in the filing of a premature complaint, not founded on sufficiently-

confirmed facts, or in an untimely filing, or in an abandoned cause of action, or in more

interactions among people at risk to the public health. None of these results would have

served the cause of justice; none would have promoted judicial efficiency; none would

have been necessary to effectuate the purposes of such statutes; and all would have had an

impact on the administration of, and practice and procedure in, the judicial system. We

therefore conclude that the tolling order fell within the scope of the Judiciary’s role in

Maryland government, did not usurp another branch’s power, and did not contravene the

Maryland Declaration of Rights.

V

Conclusion

The federal district court has asked whether the Chief Judge of the Court of Appeals

acted within her authority and consistently with the Maryland Constitution when she issued

an administrative order temporarily tolling statutes of limitations under Maryland law with

respect to civil actions during the Covid-19 pandemic.

For the reasons set forth in this opinion, the answer to that question is “yes.”

CERTIFIED QUESTION OF LAW ANSWERED AS SET FORTH
ABOVE. COSTS TO BE DIVIDED EQUALLY BETWEEN THE
PARTIES.

55
 List of and Links to Selected Documents
Concerning Actions Taken by the Executive Branch
Related to the Covid-19 Pandemic

February 27, 2020 Governor Hogan Announces Additional Steps to Protect
Marylanders from Coronavirus
https://governor.maryland.gov/2020/02/27/governor-hogan-
announces-additional-steps-to-protect-marylanders-from-
coronavirus/ (https://perma.cc/5SK3-843F)

February 27, 2020 Office of Personnel Services and Benefits Policy, Pandemic
Flu and Other Infectious Diseases: Attendance and Leave
https://dbm.maryland.gov/employees/Documents/PandemicFl
uAttendanceLeavePolicy.pdf (https://perma.cc/E3ED-U46F)

March 5, 2020 Declaration of State of Emergency and Existence of
Catastrophic Health Emergency – COVID-19
https://governor.maryland.gov/wp-
content/uploads/2020/03/Proclamation-COVID-19.pdf
(https://perma.cc/M45P-7U2B)

March 12, 2020 Order of the Governor Prohibiting Large Gatherings and
Events and Closing Senior Centers
https://governor.maryland.gov/wp-
content/uploads/2020/03/Prohibiting-Large-Gatherings.pdf
(https://perma.cc/4TZF-3UJA)

March 12, 2020 Order of the Governor Extending Certain Licenses, Permits,
Registrations, and Other Governmental Authorizations, and
Authorizing Suspension of Legal Time Requirements
https://governor.maryland.gov/wp-
content/uploads/2020/03/Licenses-Permits-Registration.pdf
(https://perma.cc/P9UB-2PC5)

1
March 23, 2020 Order of the Governor Number 20-03-23-01 Amending and
Restating the Order of March 19, 2020, Prohibiting Large
Gatherings and Events and Closing Senior Centers, and
Additionally Closing All Non-Essential Businesses and Other
Establishments
https://governor.maryland.gov/wp-
content/uploads/2020/03/Gatherings-THIRD-AMENDED-
3.23.20.pdf (https://perma.cc/CZR5-6RET)

March 30, 2020 Order of the Governor Number 20-03-30-01 Amending and
Restating the Order of March 23, 2020, Prohibiting Large
Gatherings and Events and Closing Senior Centers, and All
Non-Essential Businesses and Other Establishments, and
Additionally Requiring All Persons to Stay at Home
https://governor.maryland.gov/wp-
content/uploads/2020/03/Gatherings-FOURTH-AMENDED-
3.30.20.pdf (https://perma.cc/ADA2-7HJZ)

2
 List of and Links to
the Initial and Amended Administrative Tolling Orders
Related to the Covid-19 Pandemic

Initial Tolling Order Setting Date for Beginning of Tolling Period

April 3, 2020 Administrative Order on Emergency Tolling or Suspension of
Statutes of Limitations and Statutory and Rules Deadlines Related to
the Initiation of Matters and Certain Statutory and Rules Deadlines
in Pending Matters
https://mdcourts.gov/sites/default/files/admin-orders-
archive/20200403emergencytollingorsuspensionofstatutesoflimitatio
nsetc.pdf (https://perma.cc/N3QU-UBNT)

April 8, 2020 Amended Administrative Order on Emergency Tolling or
Suspension of Statutes of Limitations and Statutory and Rules
Deadlines Related to the Initiation of Matters and Certain Statutory
and Rules Deadlines in Pending Matters
https://mdcourts.gov/sites/default/files/admin-orders-
archive/20200408emergencytollingorsuspensionofstatuesoflimitatio
nsamended.pdf (https://perma.cc/58XN-VEQR)

Detailed Tolling Order and its Amendment

* April 24, 2020 Amended Administrative Order Clarifying the Emergency Tolling or
Suspension of Statutes of Limitations and Statutory and Rules
Deadlines Related to the Initiation of Matters and Certain Statutory
and Rules Deadlines in Pending Matters
https://mdcourts.gov/sites/default/files/admin-orders-
archive/20200424clarifyingemergencytollingorsuspensionofstatuteso
flimitationsamended.pdf (https://perma.cc/GC97-6R5Q)

May 4, 2020 Amended Administrative Order Further Clarifying the Emergency
Tolling or Suspension of Statutes of Limitations and Statutory and
Rules Deadlines Related to the Initiation of Matters and Certain
Statutory and Rules Deadlines in Pending Matters
https://mdcourts.gov/sites/default/files/admin-orders-
archive/20200504furtherclarifyingstatutesoflimitations.pdf
(https://perma.cc/9C9K-W7PB)

*This order is the subject of the certified question of law.
1
Amended Detailed Tolling Order Setting End Date of Period

May 22, 2020 Revised Administrative Order on the Emergency Tolling or
Suspension of Statutes of Limitations and Statutory and Rules
Deadlines Related to the Initiation of Matters and Certain Statutory
and Rules Deadlines in Pending Matters
https://mdcourts.gov/sites/default/files/admin-orders-
archive/20200522revisedemergencytollingorsuspensionofstatutesofli
mitations.pdf (https://perma.cc/T3KQ-J5S3)

Revisions of Tolling Order Largely Changing Cross References to Other Orders

June 3, 2020 Second Revised Administrative Order on the Emergency Tolling or
Suspension of Statutes of Limitations and Statutory and Rules
Deadlines Related to the Initiation of Matters and Certain Statutory
and Rules Deadlines in Pending Matters
https://mdcourts.gov/sites/default/files/admin-orders-
archive/20200603secondrevisedemergencytollingorsuspensionofstat
utesoflimitationanddeadlines.pdf (https://perma.cc/ML58-EEMC)

October 2, 2020 Third Revised Administrative Order on the Emergency Tolling or
Suspension of Statutes of Limitations and Statutory and Rules
Deadlines Related to the Initiation of Matters and Certain Statutory
and Rules Deadlines in Pending Matters
https://mdcourts.gov/sites/default/files/admin-orders-
archive/20201002thirdrevisedorderonemergencytollingorsuspension
ofstatutesoflimitationsandstatutoryandrulesdeadlines.pdf
(https://perma.cc/ML8N-CEQ3)

November 12, 2020 Fourth Revised Administrative Order on the Emergency Tolling or
Suspension of Statutes of Limitations and Statutory and Rules
Deadlines Related to the Initiation of Matters and Certain Statutory
and Rules Deadlines in Pending Matters
https://mdcourts.gov/sites/default/files/admin-orders-
archive/20201112fourthrevisedorderonemergencytollingorsuspensio
nofstatutesoflimitationsandstatutoryandrulesdeadlines.pdf
(https://perma.cc/SJ23-RD4K)

2
November 24, 2020 Fifth Revised Administrative Order on the Emergency Tolling or
Suspension of Statutes of Limitations and Statutory and Rules
Deadlines Related to the Initiation of Matters and Certain Statutory
and Rules Deadlines in Pending Matters
https://mdcourts.gov/sites/default/files/admin-orders-
archive/20201124fifthrevisedemergencytollingorsuspensionofstatute
soflimitationsandstatutoryandrulesdeadlines.pdf
(https://perma.cc/Z4AJ-AYDL)

December 22, 2020 Sixth Revised Administrative Order on the Emergency Tolling or
Suspension of Statutes of Limitations and Statutory and Rules
Deadlines Related to the Initiation of Matters and Certain Statutory
and Rules Deadlines in Pending Matters
https://mdcourts.gov/sites/default/files/admin-orders-
archive/20201222sixthrevisedadministrativeorderonemergencytollin
gorsuspensionofstatuesoflimitationsandstatutoryandrulesdeadlines.p
df (https://perma.cc/Y4YC-CWWL)

February 2, 2021 Seventh Revised Administrative Order on the Emergency Tolling or
Suspension of Statutes of Limitations and Statutory and Rules
Deadlines Related to the Initiation of Matters and Certain Statutory
and Rules Deadlines in Pending Matters
https://mdcourts.gov/sites/default/files/admin-orders-
archive/20210202seventhrevisedadministrativeorderontheemergency
tollingorsuspensionofstatutesoflimitationsandstatutoryandrulesdeadli
nesetc.pdf (https://perma.cc/YTB3-GDB2)

February 16, 2021 Eighth Revised Administrative Order on the Emergency Tolling or
Suspension of Statutes of Limitations and Statutory and Rules
Deadlines Related to the Initiation of Matters and Certain Statutory
and Rules Deadlines in Pending Matters
https://mdcourts.gov/sites/default/files/admin-orders-
archive/20210216eighthrevisedorderonemergencytollingorsuspensio
nofstatuesoflimitationsandstatutoryandrulesdeadlines.pdf
(https://perma.cc/Y8N7-3TEK)

3
May 24, 2021 Ninth Revised Administrative Order on the Emergency Tolling or
Suspension of Statutes of Limitations and Statutory and Rules
Deadlines Related to the Initiation of Matters and Certain Statutory
and Rules Deadlines in Pending Matters
https://mdcourts.gov/sites/default/files/admin-orders-
archive/20210524ninthrevisedorderontheemergencytollingorsuspens
ionofstatuesoflimitationsandstatutoryandrulesdeadlines.pdf
(https://perma.cc/QM56-PLKQ)

August 6, 2021 Tenth Revised Administrative Order on the Emergency Tolling or
Suspension of Statutes of Limitations and Statutory and Rules
Deadlines Related to the Initiation of Matters and Certain Statutory
and Rules Deadlines in Pending Matters
https://mdcourts.gov/sites/default/files/admin-
orders/20210806tenthrevisedorderontheemergencytollingorsuspensi
onofstatuesoflimitationsandstatutoryandrulesdeadlines.pdf
(https://perma.cc/EWW5-BHX6)

February 18, 2022 Eleventh Revised Administrative Order on the Emergency Tolling or
Suspension of Statutes of Limitations and Statutory and Rules
Deadlines Related to the Initiation of Matters and Certain Statutory
and Rules Deadlines in Pending Matters
https://mdcourts.gov/sites/default/files/admin-
orders/20220218eleventhrevisedonemergencytollingorsuspensionofs
tatutesoflimitationsandrulesdeadlines.pdf (https://perma.cc/75HL-
8XCF)

March 1, 2022 Twelfth Revised Administrative Order on the Emergency Tolling or
Suspension of Statutes of Limitations and Statutory and Rules
Deadlines Related to the Initiation of Matters and Certain Statutory
and Rules Deadlines in Pending Matters
https://mdcourts.gov/sites/default/files/admin-
orders/20220301twelfthrevisedonemergencytollingorsuspensionofsta
tutesoflimitationsandrulesdeadlines.pdf (https://perma.cc/3NNS-
HFSY)

4
Final Tolling Order Recognizing Return to Normal Operations

March 28, 2022 Final Administrative Order on the Emergency Tolling or Suspension
of Statutes of Limitations and Statutory and Rules Deadlines Related
to the Initiation of Matters and Certain Statutory and Rules
Deadlines in Pending Matters During the Covid-19 Emergency
https://mdcourts.gov/sites/default/files/admin-
orders/20220328finalonemergencytollingorsuspensionofstatutesofli
mitationsandstatutoryandrulesdeadlines.pdf (https://perma.cc/5DHT-
5VPX)

5