(Md. Nov. 8, 2005)

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Rules Order

Court of Appeals of Maryland

Nov 8, 2005

(Md. Nov. 8, 2005)

Opinion

November 8, 2005.

ALEXANDER L. CUMMINGS, Clerk.

This Court's Standing Committee on Rules of Practice and Procedure having submitted its One Hundred Fifty-Fifth Report to the Court recommending adoption of proposed new Rules 1-326 (Proceedings Regarding Victims and Victims' Representatives), 2-605 (Offers of Judgment — Health Care Malpractice Claims), and 7-211 (Request for Impleader of the Subsequent Injury Fund); proposed new Title 7, Chapter 400 (Administrative Mandamus) and proposed new Title 15, Chapter 1100 (Coram Nobis); and proposed amendments to Rules 2-126, 2-202, 2-325, 2-332, 2-341, 2-506, 3-126, 3-202, 3-506, 4-231, 4-262, 4-263, 4-342, 4-343, 4-345, 4-406, 4-507, 4-508, 4-509, 4-510, 5-101, 5-706, 5-802.1, 5-803, 5-804, 5-902, 6-415, 7-208, 7-301, 8-204, 8-205, 8-207, 8-411, 8-412, 8-511, 8-604, 14-206, 14-503, 15-402, 15-701, 16-814, 17-101, 17-104, and 17-109 and Forms 4-504.1 and 4-508.1, all as set forth in that Report published in the Maryland Register, Vol. 32, Issue 20, pages 1616-1653 (September 30, 2005); and

This Court having considered at an open meeting, notice of which was posted as prescribed by law, all those proposed rules changes and making certain amendments to the proposed rules changes on its own motion, it is this 8th day of November, 2005,

ORDERED, by the Court of Appeals of Maryland, that new Title 7, Chapter 400 and new Rules 1-326, 2-605, and 7-211 be, and they are hereby, adopted in the form previously published; and it is further

ORDERED that new Title 15, Chapter 1200 (Coram Nobis) be, and it is hereby, adopted in the form attached to this Order; and it is further

ORDERED that the amendments to Rules 2-126, 2-325, 2-332, 2-341, 3-126, 4-231, 4-342, 4-345, 4-406, 4-508, 4-509, 4-510, 5-706, 5-802.1, 5-803, 5-804, 5-902, 6-415, 7-208, 7-301, 8-205, 8-207, 8-411, 8-412, 8-511, 14-206, 14-503, 15-402, 15-701, 16-814, 17-101, and 17-104 and Forms 4-504.1 and 4-508.1. be, and they are hereby, adopted in the form previously published; and it is further

ORDERED that amendments to Rules 2-202, 2-506, 3-202, 3-506, 4-343, 5-101, 8-204, 8-604, and 17-109 be, and they are hereby, adopted in the form attached to this Order; and it is further

ORDERED that the proposed amendments to Rule 4-507 be, and they are hereby, rejected; and it is further

ORDERED that action on proposed amendments to Rules 4-262 and 4-263 be, and it is hereby, deferred; and it is further

ORDERED that the rules changes hereby adopted by this Court shall govern the courts of this State and all parties and their attorneys in all actions and proceedings, and shall take effect and apply to all actions commenced on or after January 1, 2006, and insofar as practicable to all actions then pending; and it is further

ORDERED that a copy of this Order be published in the next issue of the Maryland Register.

/s/ Robert M. Bell _____________________________ Robert M. Bell

/s/ Irma S. Raker _____________________________ Irma S. Raker

/s/ Alan M. Wilner _____________________________ Alan M. Wilner

/s/ Dale R. Cathell _____________________________ Dale R. Cathell

/s/ Glenn T. Harrell, Jr. _____________________________ Glenn T. Harrell, Jr.

/s/ Lynne A. Battaglia _____________________________ Lynne A. Battaglia

/s/ Clayton Greene, Jr. _____________________________ Clayton Greene, Jr.

MARYLAND RULES OF PROCEDURE TITLE 1 — GENERAL PROVISIONS CHAPTER 300 — GENERAL PROVISIONS

ADD new Rule 1-326, as follows:

Rule 1-326. PROCEEDINGS REGARDING VICTIMS AND VICTIMS' REPRESENTATIVES

(a) Entry of Appearance

An attorney may enter an appearance on behalf of a victim or a victim's representative in a proceeding under Title 4 or Title 11 of these Rules for the purpose of representing the rights of the victim or victim's representative.

(b) Service of Pleadings and Papers

A party shall serve, pursuant to Rule 1-321 on counsel for a victim or a victim's representative, copies of all pleadings or papers that relate to: (1) the right of the victim or victim's representative to be informed regarding the criminal or juvenile delinquency case, (2) the right of the victim or victim's representative to be present and heard at any hearing, or (3) restitution. Any additional pleadings and papers shall be served only if the court directs.

The clerk shall (1) send to counsel for a victim or victim's representative a copy of any court order relating to the rights of the victim referred to in section (b) of this Rule and (2) notify counsel for a victim or a victim's representative of any hearing that may affect the rights of the victim or victim's representative.

Committee note: This Rule does not abrogate any obligation to provide certain notices to victims and victims' representatives required by statute or by other Rule.

Cross reference: See Maryland Declaration of Rights, Article 47; Rules 16-813, Maryland Code of Judicial Conduct, Canon 3B (6)(a); and Rule 16-814, Maryland Code of Conduct for Judicial Appointees, Canon 3B (6)(a). For definitions of "victim" and "victim's representative," see Code, Courts Article, § 3-8A-01 and Code, Criminal Procedure Article, Title 11.

Source: This Rule is new.

MARYLAND RULES OF PROCEDURE TITLE 2 — CIVIL PROCEDURE — CIRCUIT COURT CHAPTER 100 — COMMENCEMENT OF ACTION AND PROCESS

AMEND Rule 2-126 to require an individual serving process to provide certain additional information, as follows:

Rule 2-126. PROCESS — RETURN

(a) Service by Delivery or Mail

An individual making service of process by delivery or mailing shall file proof of the service with the court promptly and in any event within the time during which the person served must respond to the process.

(1) If service is by delivery, ~~The~~ the proof shall set~~out~~ forth the name of the person served, the date, and the particular place and manner of service. If service is made under Rule 2-121 (a)(2), the proof also shall set forth a description of the individual served and the facts upon which the individual making service concluded that the individual served is of suitable age and discretion. (2) If service is made by an individual other than a sheriff, the individual also shall file proof under affidavit ~~which shall also~~ that includes the name, address, and telephone number of the affiant and ~~state~~ a statement that the affiant is of the age of 18 or over.

(3) If service is by certified mail, the proof shall include the original return receipt.

(b) Service by Publication or Posting

Promptly and in any event within the time during which the person notified must respond, An an individual making service of process pursuant to Rule 2-122 shall file with the court (1) the name, address, and telephone number of the individual making service, (2) proof of compliance with the Rule, and (3) ~~file with the court proof of compliance with the Rule together with~~ a copy of the publication or posted notice~~promptly and in any event within the time during which the person notified must respond.~~ The certificate of the publisher constitutes proof of publication.

When process requires for its execution a method other than or in addition to delivery or mailing, or publication or posting pursuant to Rule 2-122, the return shall be filed in the manner prescribed by rule or law promptly after execution of the process.

(d) Service Not Made

An individual unable to make service of process in accordance with these rules shall file a return as soon thereafter as practicable and in no event later than ten days following the termination of the validity of the process.

(e) Return to Include Process

A return shall include a copy of the process if served and the original process if not served.

(f) Place of Return

In every instance the return shall be filed with the court issuing process. In addition, when a writ of attachment, a writ of execution, or any other writ against property is executed in another county, a return shall be filed with the court of that county.

(g) Effect of Failure to Make Proof of Service

Failure to make proof of service does not affect the validity of the service.

Source: This Rule is derived as follows:

Section (a) is derived from former Rules 104 b 2, 107 a 2 and 116 c 1 and 2.

Section (b) is derived from former Rule 105 b 1 (a) and b 2.

Section (c) is new.

Section (d) is new.

Section (e) is new.

Section (f) is derived from former Rules 104 a (2) and 622 h 2.

Section (g) is derived from the 1980 version of Fed.R.Civ.P. 4 (g) and former Rules 104 h 3 (c) and 116 c 3.

MARYLAND RULES OF PROCEDURE TITLE 2 — CIVIL PROCEDURE — CIRCUIT COURT CHAPTER 200 — PARTIES

AMEND Rule 2-202 to add a new section (c) concerning settlement of suits on behalf of minors and to add a certain cross reference, as follows:

Rule 2-202. CAPACITY

(a) Generally

Applicable substantive law governs the capacity to sue or be sued of an individual, a corporation, a person acting in a representative capacity, an association, or any other entity.

(b) Suits by Individuals Under Disability

An individual under disability to sue may sue by a guardian or other like fiduciary or, if none, by next friend, subject to any order of court for the protection of the individual under disability. When a minor is in the sole custody of one of its parents, that parent has the exclusive right to sue on behalf of the minor for a period of one year following the accrual of the cause of action, and if the custodial parent fails to institute suit within the one year period, any person interested in the minor shall have the right to institute suit on behalf of the minor as next friend upon first mailing notice to the last known address of the custodial parent.

(c) Settlement of Suits on Behalf of Minors A next friend who files an action for the benefit of a minor may settle the claim in accordance with this subsection. If the next friend is not a parent or person in loco parentis of the child, the settlement is not effective unless approved by each living parent or person in loco parentis. If (1) both parents are dead and there is no person in loco parentis of the child or (2) one of the parents does not approve the settlement, the settlement is not effective unless approved by the court in which the suit is pending. Approval may be granted only on verified application by the next friend, stating the facts of the case and why the settlement is in the best interest of the child.

Cross reference: For settlement of suits on behalf of minors, see Code, Courts Article, § 6-405. For settlement of a claim not in suit asserted by a parent or person in loco parentis under a liability insurance policy, see Code, Insurance Article, § 19-113. ~~(c)~~ (d) Suits Against Individuals Under Disability

In a suit against an individual under disability, the guardian or other like fiduciary, if any, shall defend the action. The court shall order any guardian or other fiduciary in its jurisdiction who fails to comply with this section to defend the individual as required. If there is no such guardian or other fiduciary, the court shall appoint an attorney to represent and defend the individual.

Source: This Rule is derived as follows:

Section (a) is new.

Section (b) is derived from former Rule 205 c and d.

Section (c) is new.

Section ~~(c)~~ (d) is derived from former Rule 205 e 1 and 2.

MARYLAND RULES OF PROCEDURE TITLE 2 — CIVIL PROCEDURE — CIRCUIT COURT CHAPTER 300 — PLEADINGS AND MOTIONS

AMEND Rule 2-325 (d) to correct a reference to a certain agency, as follows:

Rule 2-325. JURY TRIAL

. . .

(d) Appeals from Administrative Agencies

In an appeal from the ~~Workmen's~~ Workers' Compensation Commission or other administrative body when there is a right to trial by jury, the failure of any party to file the demand within 15 days after the time for answering the petition of appeal constitutes a waiver of trial by jury.

. . .

MARYLAND RULES OF PROCEDURE TITLE 2 — CIVIL PROCEDURE — CIRCUIT COURT CHAPTER 300 — PLEADINGS AND MOTIONS

AMEND Rule 2-332 by adding a cross reference to a certain Code provision at the end of the Rule, as follows:

Rule 2-332. THIRD-PARTY PRACTICE

(a) Defendant's Claim Against Third Party

A defendant, as a third-party plaintiff, may cause a summons and complaint, together with a copy of all pleadings, scheduling notices, court orders, and other papers previously filed in the action, to be served upon a person not previously a party to the action who is or may be liable to the defendant for all or part of a plaintiff's claim against the defendant. A person so served becomes a third-party defendant.

(b) Response by Third Party

A third-party defendant shall assert defenses to the third-party plaintiff's claim as provided by Rules 2-322 and 2-323 and may assert counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided by Rule 2-331. The third-party defendant may assert against the plaintiff any defenses that the third-party plaintiff has to the plaintiff's claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff.

The plaintiff shall assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff, and the third-party defendant thereupon shall assert defenses as provided by Rules 2-322 and 2-323 and may assert counterclaims and cross-claims as provided by Rule 2-331. If the plaintiff fails to assert any such claim against the third-party defendant, the plaintiff may not thereafter assert that claim in a separate action instituted after the third-party defendant has been impleaded. This section does not apply when a third-party claim has been stricken pursuant to section (e) of this Rule.

(d) Additional Parties

A third-party defendant may proceed under this Rule against any person who is or may be liable to the third-party defendant for all or part of the claim made in the pending action. When a counterclaim is asserted against a plaintiff, the plaintiff may cause a third party to be brought in under circumstances that would entitle a defendant to do so under this Rule.

(e) Time for Filing

If a party files a third-party claim more than 30 days after the time for filing that party's answer, any other party may file, within 15 days of service of the third-party claim, a motion to strike it or to sever it for separate trial. When such a motion is filed, the time for responding to the third-party claim is extended without special order to 15 days after entry of the court's order on the motion. The court shall grant the motion unless there is a showing that the late filing of the third-party claim does not prejudice other parties to the action.

Cross reference: For third-party practice in health care malpractice cases, see Code, Courts Article, § 3-2A-04.

Source: This Rule is derived as follows:

Section (a) is derived from former Rule 315 a.

Section (b) is derived from former Rule 315 c 1, c 2 and d 1.

Section (c) is derived from former Rule 315 d.

Section (d) is derived from former Rule 315 f 1 and 2.

Section (e) is derived from former Rule 315 b.

MARYLAND RULES OF PROCEDURE TITLE 2 — CIVIL PROCEDURE — CIRCUIT COURT CHAPTER 300 — PLEADINGS AND MOTIONS

AMEND Rule 2-341 to add certain requirements concerning the highlighting of amendments to pleadings, as follows:

Rule 2-341. AMENDMENT OF PLEADINGS

(a) Prior to 15 Days of Trial Date

A party may file an amendment to a pleading at any time prior to 15 days of a scheduled trial date. Within 15 days after service of an amendment, any other party to the action may file a motion to strike setting forth reasons why the court should not allow the amendment. If an amendment introduces new facts or varies the case in a material respect, an adverse party who wishes to contest new facts or allegations shall file a new or additional answer to the amendment within the time remaining to answer the original pleading or within 15 days after service of the amendment, whichever is later. If no new or additional answer is filed within the time allowed, the answer previously filed shall be treated as the answer to the amendment.

(b) Within 15 Days of Trial Date and Thereafter

Within 15 days of a scheduled trial date or after trial has commenced, a party may file an amendment to a pleading only by written consent of the adverse party or by leave of court. If the amendment introduces new facts or varies the case in a material respect, the new facts or allegations shall be treated as having been denied by the adverse party. The court shall not grant a continuance or mistrial unless the ends of justice so require.

Committee note: By leave of court, the court may grant leave to amend the amount sought in a demand for a money judgment after a jury verdict is returned.

An amendment may seek to (1) change the nature of the action or defense, (2) set forth a better statement of facts concerning any matter already raised in a pleading, (3) set forth transactions or events that have occurred since the filing of the pleading sought to be amended, (4) correct misnomer of a party, (5) correct misjoinder or nonjoinder of a party so long as one of the original plaintiffs and one of the original defendants remain as parties to the action, (6) add a party or parties, (7) make any other appropriate change. Amendments shall be freely allowed when justice so permits. Errors or defects in a pleading not corrected by an amendment shall be disregarded unless they affect the substantial rights of the parties.

(d) If New Party Added

If a new party is added by amendment, the amending party shall cause a summons and complaint, together with a copy of all pleadings, scheduling notices, court orders, and other papers previously filed in the action, to be served upon the new party.

(e) Highlighting of Amendments Unless the court orders otherwise, a party filing an amended pleading shall also file a comparison copy of the amended pleading showing by lining through or enclosing in brackets material that has been stricken and by underlining or setting forth in bold-faced type new material.

Source: This Rule is derived as follows:

Section (a) is derived from former Rule 320.

Section (b) is new and is derived in part from former Rule 320 e.

Section (c) is derived from sections a 2, 3, 4, b 1 and d 5 of former Rule 320 and former Rule 379.

Section (d) is new.

Section (e) is derived from the 2001 version of L.R. 103 (6)(c) of the Rules of the United States District Court for the District of Maryland.

MARYLAND RULES OF PROCEDURE TITLE 2 — CIVIL PROCEDURE — CIRCUIT COURT CHAPTER 500 — TRIAL

AMEND Rule 2-506 to clarify that a stipulation of dismissal is signed by the parties to the complaint, counterclaim, cross-claim, or third-party claim being dismissed, to delete the phrase "or a motion for summary judgment" from section (a), to delete section (e), to add a certain cross reference concerning settlement of claims on behalf of minors, and to make certain stylistic changes, as follows:

Rule 2-506. VOLUNTARY DISMISSAL

(a) By Notice of Dismissal or Stipulation

Except as otherwise provided in these rules or by statute, a~~plaintiff may dismiss an action~~ party who has filed a complaint, counterclaim, cross-claim, or third-party claim may dismiss all or part of the claim without leave of court ~~(1)~~ by filing (1) a notice of dismissal at any time before the adverse party files an answer ~~or a motion for summary judgment~~ or (2)~~by filing~~ a stipulation of dismissal signed by all parties ~~who have appeared in the action~~ to the claim being dismissed.

(b) By Order of Court

Except as provided in section (a) of this Rule, a ~~plaintiff~~ party who has filed a complaint, counterclaim, cross-claim, or third-party claim may dismiss ~~an action~~ the claim only by order of court and upon such terms and conditions as the court deems proper. If a counterclaim has been ~~pleaded prior to~~ filed before the filing of a plaintiff's motion for voluntary dismissal, the action shall not be dismissed over the objection of the party who ~~pleaded~~ filed the counterclaim unless the counterclaim can remain pending for independent adjudication by the court.

Unless otherwise specified in the notice of dismissal, stipulation, or order of court, a dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a party who has previously dismissed in any court of any state or in any court of the United States an action based on or including the same claim.

(d) Costs

Unless otherwise provided by stipulation or order of court, the dismissing party is responsible for all costs of the action or the part dismissed.

Cross reference: See Code, Courts ~~Art.~~ Article, § 7-202.For settlement of suits on behalf of minors, see Code, Courts Article, § 6-405 and Rule 2-202. For settlement of a claim not in suit asserted by a parent or person in loco parentis under a liability insurance policy, see Code, Insurance Article, § 19-113. ~~(e) Dismissal of Counterclaims, Cross-claims, or Third-party Claims~~ The provisions of this Rule apply to the dismissal of any counterclaim, cross-claim, or third-party claim, except that a notice of dismissal filed by a claimant pursuant to section (a) of this Rule shall be filed before the filing of an answer.

Source: This Rule is derived as follows:

Section (a) is derived in part from the 1968 version of Fed.R.Civ.P. 41 (a) (1) and is in part new.

Section (b) is derived from former Rule 541 b and the 1968 version of Fed.R.Civ.P 41 (a) (2).

Section (c) is derived from former Rule 541 c.

Section (d) is derived from former Rules 541 d and 582 b.

~~Section (e) is derived from the 1968 version of Fed.R.Civ.P. 41 (c).~~

MARYLAND RULES OF PROCEDURE TITLE 2 — CIVIL PROCEDURE — CIRCUIT COURT CHAPTER 600 — JUDGMENT

ADD new Rule 2-605, as follows:

Rule 2-605. OFFERS OF JUDGMENT — HEALTH CARE MALPRACTICE CLAIMS

A party to a health care malpractice claim may serve on the adverse party an offer of judgment pursuant to Code, Courts Article, § 3-2A-08A.

Cross reference: With respect to "costs" as used in Code, Courts Article, § 3-2A-08A, see Rule 2-603.

Source: This Rule is new.

MARYLAND RULES OF PROCEDURE TITLE 3 — CIVIL PROCEDURE — DISTRICT COURT CHAPTER 100 — COMMENCEMENT OF ACTION AND PROCESS

AMEND Rule 3-126 to require an individual serving process to provide certain additional information, as follows:

Rule 3-126. PROCESS — RETURN

(a) Service by Delivery or Mail

(1) If service is by delivery, ~~The~~ the proof shall set~~out~~ forth the name of the person served, the date, and the particular place and manner of service. If service is made under Rule 3-121 (a)(2), the proof also shall set forth a description of the individual served and the facts upon which the individual making service concluded that the individual served is of suitable age and discretion. (2) If service is made by an individual other than a sheriff or clerk, the individual shall file proof under affidavit ~~which shall also~~ that includes the name, address, and telephone number of the affiant and a ~~state~~ statement that the affiant is of the age of 18 or over~~, and if~~ . If service is by certified mail is made by a person other than the clerk, the proof shall include the original return receipt.

(3) If service by certified mail is made by the clerk, the receipt returned through the Post Office shall be promptly filed by the clerk as proof of service.

(b) Service by Publication or Posting

Promptly and in any event within the time during which the person notified must respond, An an individual making service of process pursuant to Rule 2-122 shall file with the court (1) the name, address, and telephone number of the individual making service, (2) proof of compliance with the Rule, and (3) ~~file with the court proof of compliance with the Rule together with~~ a copy of the publication or posting notice~~promptly and in any event within the time during which the person notified must respond.~~ The certificate of the publisher constitutes proof of publication.

(d) Service Not Made

(e) Return to Include Process

A return shall include a copy of the process if served and the original process if not served.

(f) Place of Return

(g) Effect of Failure to Make Proof of Service

Failure to make proof of service does not affect the validity of the service.

Source: This Rule is derived as follows:

Section (a) is derived from former M.D.R. 104 b 2 and h 3 (a), 107 a 2 and 116 c 1 and 2.

Section (b) is derived from former Rule 105 b 1 (a) and b 2.

Section (c) is new.

Section (d) is derived from former M.D.R. 103 d 2.

Section (e) is new.

Section (f) is derived from former M.D.R. 104 a (ii) and 622 h 2.

Section (g) is derived from the 1980 version of Fed.R.Civ.P. 4 (g) and former M.D.R. 104 h 3 (c) and 116 c 3.

MARYLAND RULES OF PROCEDURE TITLE 3 — CIVIL PROCEDURE — DISTRICT COURT CHAPTER 200 — PARTIES

AMEND Rule 3-202 to add a new section (c) concerning settlement of suits on behalf of minors and to add a certain cross reference, as follows:

Rule 3-202. CAPACITY

(a) Generally

Applicable substantive law governs the capacity to sue or be sued of an individual, a corporation, a person acting in a representative capacity, an association, or any other entity.

(b) Suits by Individuals Under Disability

Source: This Rule is derived as follows:

Section (a) is new.

Section (b) is derived from former M.D.R. 205 c and d.

Section (c) is new.

Section ~~(c)~~ (d) is derived from former M.D.R. 205 e.

MARYLAND RULES OF PROCEDURE TITLE 3 — CIVIL PROCEDURE — DISTRICT COURT CHAPTER 500 — TRIAL

AMEND Rule 3-506 to clarify that a stipulation of dismissal is signed by the parties to the complaint, counterclaim, cross-claim, or third-party claim being dismissed, to add a new section (b) pertaining to dismissal upon stipulated terms, to delete current section (f), to correct a cross reference to a certain statute, to add a certain cross reference concerning settlement of claims on behalf of minors, and to make certain stylistic changes, as follows:

Rule 3-506. VOLUNTARY DISMISSAL

(a) By Notice of Dismissal or Stipulation

Except as otherwise provided in these rules or by statute, ~~a plaintiff may dismiss an action~~ a party who has filed a complaint, counterclaim, cross-claim, or third party claim may dismiss all or part of the claim without leave of court ~~(1)~~ by filing (1) a notice of dismissal at any time before the adverse party files a notice of intention to defend, or if the notice of dismissal specifies that it is with prejudice, at any time before judgment, or (2) ~~by filing~~ a stipulation of dismissal signed by all parties ~~who have appeared in the action~~ to the claim being dismissed. (b) Dismissal Upon Stipulated Terms If an action is settled upon written stipulated terms and dismissed, the action may be reopened at any time upon request of any party to the settlement to enforce the stipulated terms through the entry of judgment or other appropriate relief. ~~(b)~~ (c) By Order of Court

Except as provided in section (a) of this Rule, a ~~plaintiff~~ party who has filed a complaint, counterclaim, cross-claim, or third party claim may dismiss ~~an action~~ the claim only by order of court and upon such terms and conditions as the court deems proper.

~~(c)~~ (d) Effect on Claim

~~(d)~~ (e) Effect on Counterclaim

If a counterclaim has been pleaded before the filing of a notice of dismissal or motion for voluntary dismissal, the dismissal of the action shall not affect the continued pendency of the counterclaim.

~~(e)~~ (f) Costs

Unless otherwise provided by stipulation or order of court, the dismissing party is responsible for all costs of the action or the part dismissed.

Cross reference: See Code, Courts ~~Art.~~ Article, ~~§ 7-202~~ § 7-301. For settlement of suits on behalf of minors, see Code, Courts Article, § 6-405 and Rule 3-202. For settlement of a claim not in suit asserted by a parent or person in loco parentis under a liability insurance policy, see Code, Insurance Article, § 19-113. ~~(f) Dismissal of Counterclaims, Cross-claims, or Third-party Claims~~ ~~The provisions of this Rule apply to the dismissal of any counterclaim, cross-claim, or third-party claim.~~

Source: This Rule is derived as follows:

Section (a) is derived in part from the 1968 version of Fed.R.Civ.P. 41 (a)(1) and is in part new. Section (b) is new.

Section ~~(b)~~ (c) is derived from former Rule 541 b and the 1968 version of Fed.R.Civ.P. 41 (a)(2).

Section ~~(c)~~ (d) is derived from former M.D.R. 541 b.

Section ~~(d)~~ (e) is derived from former Rule 541 b and the 1968 version of Fed.R.Civ.P. 41 (a)(2).

Section ~~(e)~~ (f) is derived from former Rules 541 d and 582 b.

~~Section (f) is derived from the 1968 version of Fed.R.Civ.P. 41 (c).~~

MARYLAND RULES OF PROCEDURE TITLE 4 — CRIMINAL CAUSES CHAPTER 200 — PRETRIAL PROCEDURES

AMEND Rule 4-231 (b) to clarify that the right to be present is the right to be physically present and to delete language pertaining to a reduction of sentence pursuant to certain Rules, as follows:

Rule 4-231. PRESENCE OF DEFENDANT

(a) When Presence Required

A defendant shall be present at all times when required by the court. A corporation may be present by counsel.

(b) Right to be Present — Exceptions

A defendant is entitled to be physically present in person at a preliminary hearing and every stage of the trial, except (1) at a conference or argument on a question of law; and (2) when a nolle prosequi or stet is entered pursuant to Rules 4-247 and 4-248~~; or (3) at a reduction of sentence pursuant to Rules 4-344 and 4-345.~~

Cross reference: Code, Criminal Procedure Article, § 11-303.

The right to be present under section (b) of this Rule is waived by a defendant:

(1) who is voluntarily absent after the proceeding has commenced, whether or not informed by the court of the right to remain; or

(2) who engages in conduct that justifies exclusion from the courtroom; or

(3) who, personally or through counsel, agrees to or acquiesces in being absent.

(d) Video Conferencing in District Court

In the District Court, if the Chief Judge of the District Court has approved the use of video conferencing in the county, a judicial officer may conduct an initial appearance under Rule 4-213 (a) or a review of the commissioner's pretrial release determination under Rule 4-216 (f) with the defendant and the judicial officer at different locations, provided that:

(1) the video conferencing procedure and technology are approved by the Chief Judge of the District Court for use in the county;

(2) immediately after the proceeding, all documents that are not a part of the District Court file and that would be a part of the file if the proceeding had been conducted face-to-face shall be electronically transmitted or hand-delivered to the District Court; and

(3) if the initial appearance under Rule 4-213 is conducted by video conferencing, the review under Rule 4-216 (f) shall not be conducted by video conferencing.

Committee note: Except when specifically covered by this Rule, the matter of presence of the defendant during any stage of the proceedings is left to case law and the Rule is not intended to exhaust all situations. By the addition of section (d) to the Rule, the Committee intends no inference concerning the use of video conferencing in other contexts.

Source: Sections (a), (b), and (c) of this Rule are derived from former Rule 724 and M.D.R. 724. Section (d) is new.

MARYLAND RULES OF PROCEDURE TITLE 4 — CRIMINAL CAUSES CHAPTER 300 — TRIAL AND SENTENCING

AMEND Rule 4-342 to add a certain cross reference after section (a), as follows:

Rule 4-342. SENTENCING — PROCEDURE IN NON-CAPITAL CASES

(a) Applicability

This Rule applies to all cases except those governed by Rule 4-343.

Cross reference: For procedures pertaining to collection of DNA samples from an individual convicted of a felony or a violation of Code, Criminal Law Article, §§ 6-205 or 6-206, see Code, Public Safety Article, § 2-504.

. . .

MARYLAND RULES OF PROCEDURE TITLE 4 — CRIMINAL CAUSES CHAPTER 300 — TRIAL AND SENTENCING

AMEND Rule 4-343 to add a certain cross reference following section (a), as follows:

Rule 4-343. SENTENCING — PROCEDURE IN CAPITAL CASES

(a) Applicability

This Rule applies whenever a sentence of death is sought under Code, Criminal Law Article, § 2-303.

Cross reference: For procedures pertaining to collection of DNA samples from an individual convicted of a felony, see Code, Public Safety Article, § 2-504.

. . .

MARYLAND RULES OF PROCEDURE TITLE 4 — CRIMINAL CAUSES CHAPTER 300 — TRIAL AND SENTENCING

AMEND Rule 4-345 to state that the defendant may waive the right to be present at a hearing under this Rule, as follows:

Rule 4-345. SENTENCING — REVISORY POWER OF COURT

(a) Illegal Sentence

The court may correct an illegal sentence at any time.

(b) Fraud, Mistake, or Irregularity

The court has revisory power over a sentence in case of fraud, mistake, or irregularity.

The court may correct an evident mistake in the announcement of a sentence if the correction is made on the record before the defendant leaves the courtroom following the sentencing proceeding.

(d) Desertion and Non-support Cases

At any time before expiration of the sentence in a case involving desertion and non-support of spouse, children, or destitute parents, the court may modify, reduce, or vacate the sentence or place the defendant on probation under the terms and conditions the court imposes.

(e) Modification Upon Motion

(1) Generally

Upon a motion filed within 90 days after imposition of a sentence (A) in the District Court, if an appeal has not been perfected or has been dismissed, and (B) in a circuit court, whether or not an appeal has been filed, the court has revisory power over the sentence except that it may not revise the sentence after the expiration of five years from the date the sentence originally was imposed on the defendant and it may not increase the sentence.

Cross reference: Rule 7-112 (b).

(2) Notice to Victims

The State's Attorney shall give notice to each victim and victim's representative who has filed a Crime Victim Notification Request form pursuant to Code, Criminal Procedure Article, § 11-104 or who has submitted a written request to the State's Attorney to be notified of subsequent proceedings as provided under Code, Criminal Procedure Article, § 11-503 that states (A) that a motion to modify or reduce a sentence has been filed; (B) that the motion has been denied without a hearing or the date, time, and location of the hearing; and (C) if a hearing is to be held, that each victim or victim's representative may attend and testify.

(f) Open Court Hearing

The court may modify, reduce, correct, or vacate a sentence only on the record in open court, after hearing from the defendant, the State, and from each victim or victim's representative who requests an opportunity to be heard. The defendant may waive the right to be present at the hearing. No hearing shall be held on a motion to modify or reduce the sentence until the court determines that the notice requirements in subsection (e)(2) of this Rule have been satisfied. If the court grants the motion, the court ordinarily shall prepare and file or dictate into the record a statement setting forth the reasons on which the ruling is based.

Source: This Rule is derived in part from former Rule 774 and M.D.R. 774, and is in part new.

MARYLAND RULES OF PROCEDURE TITLE 4 — CRIMINAL CAUSES CHAPTER 400 — POST CONVICTION PROCEDURE

AMEND Rule 4-406 by adding a certain cross reference after section (c), as follows:

Rule 4-406. HEARING

(a) When Required

A hearing shall be held promptly on a petition under the Uniform Post Conviction Procedure Act unless the parties stipulate that the facts stated in the petition are true and that the facts and applicable law justify the granting of relief. If a defendant requests that the court reopen a post conviction proceeding that was previously concluded, the court shall determine whether a hearing will be held, but it may not reopen the proceeding or grant the relief requested without a hearing unless the parties stipulate that the facts stated in the petition are true and that the facts and applicable law justify the granting of relief.

Cross reference: For time requirements applicable to hearings in death penalty cases, see Code, Criminal Procedure Article, § 7-204.

(b) Judge

The hearing shall not be held by the judge who presided at trial except with the consent of the petitioner.

Evidence may be presented by affidavit, deposition, oral testimony, or in any other form as the court finds convenient and just. In the interest of justice, the court may decline to require strict application of the rules in Title 5, except those relating to the competency of witnesses.

Cross reference: For procedures concerning DNA testing and preservation of DNA evidence in post conviction cases, see Code, Criminal Procedure Article, § 8-201.

(d) Presence of Petitioner

The petitioner has the right to be present at any hearing on the petition.

Cross reference: For post conviction procedure, right to counsel and hearing, see Code, Criminal Procedure Article, §§ 7-101-7-108 and §§ 7-201-7-204; victim notification, Criminal Procedure Article, § 11-104.

Source: This Rule is derived as follows:

Section (a) is new.

Section (b) is derived from former Rule BK44 c.

Section (c) is derived from former Rule BK44 d.

Section (d) is derived from former Rule BK44 e.

MARYLAND RULES OF PROCEDURE TITLE 4 — CRIMINAL CAUSES CHAPTER 500 — EXPUNGEMENT OF RECORDS

AMEND Rule 4-508 to provide under certain circumstances for an automatic stay of an order granting expungement, to eliminate the thirty-day delay in serving custodians of records with orders granting expungements, and to make certain stylistic changes, as follows:

Rule 4-508. COURT ORDER FOR EXPUNGEMENT OF RECORDS

(a) Content

An order for expungement of records shall be substantially in the form set forth at the end of this Title as Form 4-508.1, as modified to suit the circumstances of the case. If the court determines that the procedures for expungement of court records set forth in Rule 4-511 are not practicable in the circumstances, the order shall specify the alternative procedures to be followed.

Cross reference: Code, Criminal Procedure Article, §§ 10-103 (f) and 10-105 (f).

(b) Stay (1) Entry If the court, over the objection of a State's Attorney or law enforcement agency, enters an order granting expungement, the order is stayed for 30 days after entry and thereafter if a timely notice of appeal is filed, pending the disposition of the appeal and further order of court. (2) Lifting A stay shall be lifted upon disposition of any appeal or, if no notice of appeal was timely filed, upon expiration of the time prescribed for filing a notice of appeal. If an order for expungement has been stayed and no appeal is pending, a stay based upon an application may be lifted upon written consent of the law enforcement agency, and a stay based upon a petition may be lifted upon written consent of the State's Attorney. (3) Notice Promptly upon the lifting of a stay, the clerk shall send notice of the lifting of the stay to the parties and to each custodian of records, including the Central Repository, to which an order for expungement and a compliance form are required to be sent pursuant to section (d) of this Rule. ~~(b)~~ (c) Finality

An order of court for expungement of records, whether or not stayed, or an order denying an application or petition for expungement, is a final judgment.

Cross reference: Code, ~~(1957, 1989 Repl. Vol.)~~ Courts Article, § 12-301.

~~(c)~~ (d) Service of Order and Compliance Form

Upon entry of a court order granting or denying expungement, the clerk forthwith shall serve a true copy of the order and any stay of the order on all parties to the proceeding. ~~Thirty days after the~~ Upon entry of an order granting expungement ~~or upon expiration of any stay~~, the clerk shall serve on each custodian of records designated in the order and on the Central Repository a true copy of the order together with a blank form of Certificate of Compliance set forth at the end of this Title as Form 4-508.3.

Source: This Rule is derived in part from former Rule EX7 and is in part new.

MARYLAND RULES OF PROCEDURE TITLE 4 — CRIMINAL CAUSES CHAPTER 500 — EXPUNGEMENT OF RECORDS

AMEND Rule 4-509 to delete existing section (b) and to add a new section (b) requiring the clerk to send certain notices, as follows:

Rule 4-509. APPEAL

(a) How Taken

Any party may appeal within 30 days after entry of the order by filing a notice of appeal with the clerk of the court from which the appeal is taken and by serving a copy on the opposing party or attorney.

~~(b) Stay~~ ~~The filing of a notice of appeal stays the court order pending the determination of the appeal.~~ (b) Notice Promptly upon the disposition of an appeal, the clerk of the court from which the appeal was taken shall send notice of the disposition to the parties and to each custodian of records, including the Central Repository, to which an order for expungement and a compliance form were sent pursuant to Rule 4-508(d).

Cross reference: Code, Criminal Procedure Article, § 10-105(g).

Source: This Rule is derived in part from former Rule EX8 and is in part new.

MARYLAND RULES OF PROCEDURE TITLE 4 — CRIMINAL CAUSES CHAPTER 500 — EXPUNGEMENT OF RECORDS

AMEND Rule 4-510 to require a custodian to remove records from public inspection forthwith upon receipt of an order for expungement that is not stayed or notice that a stay has been lifted and to require compliance with an order for expungement no later than 60 days after the entry of an unstayed order or 30 days after the lifting of a stay of the order, as follows:

Rule 4-510. COMPLIANCE WITH COURT ORDER FOR EXPUNGEMENT

Upon receipt of an order for expungement that is not stayed or notice that a stay has been lifted, each custodian of records subject to the order shall forthwith remove the records from public inspection. ~~Within 30~~ As soon as practicable but in no event later than 60 days after ~~service~~ the entry of a court order for expungement, or if the order for expungement is stayed, 30 days after the stay is lifted, every custodian of police records and court records subject to the order shall comply with the order, file an executed Certificate of Compliance, and serve a copy of the certificate on the applicant or petitioner.

Source: This Rule is derived from former Rule EX9.

MARYLAND RULES OF PROCEDURE TITLE 4 — CRIMINAL CAUSES EXPUNGEMENT FORMS

AMEND Form 4-508.1 to conform to certain proposed amendments to the Rules in Title 4, Chapter 500, to add a new "Order" paragraph requiring a certain removal of records from public inspection, to add a new "Order" paragraph pertaining to stays, to add a certain Notice, and to make certain stylistic changes, as follows:

Form 4-508.1. ORDER FOR EXPUNGEMENT OF RECORDS

(Caption)

ORDER FOR EXPUNGEMENT OF RECORDS

~~The applicant/petitioner/defendant~~ Having found that ________________________________________________________________ (Name) of______________________________________________________________ (Address)~~having been found to be~~ is entitled to expungement of the police records pertaining to ~~the~~ his/her arrest, detention, or confinement ~~of the applicant/petitioner/defendant~~ on or about __________________________, at _________________________________ (Date) _______________________________________________________________, Maryland, by a law enforcement officer of the __________________

________________________________________________________________ (Law Enforcement Agency) and the court records in this action, it is by the _____________ ______________________________ Court for _______________________ _____________________________________ City/County, Maryland, this _________ day of ________________, ___________. (Month) (Year)

ORDERED that the clerk forthwith shall serve a true copy of this Order on each of the parties to this proceeding; and it is further

ORDERED that ~~30 days after entry of this Order or upon expiration of any stay~~, the clerk forthwith shall serve on each custodian of police and court records designated in this Order and on the Central Repository a copy of this Order together with a blank form of Certificate of Compliance; and it is further

ORDERED that within 30 60 days after ~~service~~ the entry of this Order or, if this Order is stayed, 30 days after the stay is lifted, the clerk and the following custodians of court and police records and the Central Repository shall (1) expunge all court and police records pertaining to this action or proceeding in their custody, (2) file an executed Certificate of Compliance, and (3) serve a copy of the Certificate of Compliance on the applicant/petitioner/defendant; and it is further ORDERED that the clerk and other custodians of records forthwith upon receipt of this Order if it is not stayed or notice that the stay is lifted shall remove the records from public inspection; and it is further ORDERED that this Order

is stayed pending further order of the court.

is not stayed.

_________________________________________________________________ (Custodian) (Address) _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ Date Judge

NOTICE TO APPLICANT/PETITIONER/DEFENDANT: Until a custodian of records has received a copy of this Order AND filed a Certificate of Compliance, expungement of the records in the custody of that custodian is not complete and may not be relied upon.

MARYLAND RULES OF PROCEDURE TITLE 4 — CRIMINAL CAUSES FORMS FOR EXPUNGEMENT OF RECORDS

AMEND Form 4-504.1 to make a certain stylistic change, as follows:

Form 4-504.1. PETITION FOR EXPUNGEMENT OF RECORDS

(Caption)

PETITION FOR EXPUNGEMENT OF RECORDS

1. (Check one of the following boxes) On or about____________, (Date)

I was arrested, served with a summons, or served with a citation by an officer of the ____________________________ (Law Enforcement Agency) at _______________________________________________, Maryland, as a result of the following incident ______________________________ _________________________________________________________________ ________________________________________________________________.

2. I was charged with the offense of _________________________ ________________________________________________________________.

3. On or about ______________________________________________, (Date)

the charge was disposed of as follows (check one of the following boxes):

I was acquitted and either three years have passed since disposition or a General Waiver and Release is attached.

The charge was dismissed or quashed and either three years have passed since disposition or a General Waiver and Release is attached.

A judgment of probation before judgment was entered on a charge that is not a violation of Code*, Transportation Article, § 21-902 or Code*, Criminal Law Article, §§ 2-503, 2-504, 2-505, or 2-506, or former Code*, Article 27, § 388A or § 388B, and either (a) at least three years have passed since the disposition, or (b) I have been discharged from probation, whichever is later. Since the date of disposition, I have not been convicted of any crime, other than violations of vehicle or traffic laws, ordinances, or regulations not carrying a possible sentence of imprisonment; and I am not now a defendant in any pending criminal action other than for violation of vehicle or traffic laws, ordinances, or regulations not carrying a possible sentence of imprisonment.

A Nolle Prosequi was entered and either three years have passed since disposition or a General Waiver and Release is attached. Since the date of disposition, I have not been convicted of any crime, other than violations of vehicle or traffic laws, ordinances, or regulations not carrying a possible sentence of imprisonment; and I am not now a defendant in any pending criminal action other than for violation of vehicle or traffic laws, ordinances, or regulations not carrying a possible sentence of imprisonment.

The proceeding was ~~placed on the Stet docket~~ stetted and three years have passed since disposition. Since the date of disposition, I have not been convicted of any crime, other than violations of vehicle or traffic laws, ordinances, or regulations not carrying a possible sentence of imprisonment; and I am not now a defendant in any pending criminal action other than for violation of vehicle or traffic laws, ordinances, or regulations not carrying a possible sentence of imprisonment.

The case was compromised or dismissed pursuant to Code, Criminal Law Article, § 3-207, former Code,^fn_ Article 27, § 12A-5, or former Code,^fn_ Article 10, § 37 and three years have passed since disposition.

References to "Code" in this Petition are to the Annotated Code of Maryland.

On or about _____________________________, I was granted (Date)

a full and unconditional pardon by the Governor for the one criminal act, not a crime of violence as defined in Code,^fn_ Criminal Law Article, § 14-101 (a), of which I was convicted. Not more than ten years have passed since the Governor signed the pardon, and since the date the Governor signed the pardon I have not been convicted of any crime, other than violations of vehicle or traffic laws, ordinances, or regulations not carrying a possible sentence of imprisonment; and I am not now a defendant in any pending criminal action other than for violation of vehicle or traffic laws, ordinances, or regulations not carrying a possible sentence of imprisonment.

WHEREFORE, I request the Court to enter an Order for Expungement of all police and court records pertaining to the above arrest, detention, confinement, and charges.

I solemnly affirm under the penalties of perjury that the contents of this Petition are true to the best of my knowledge, information and belief, and that the charge to which this Petition relates was not made for any nonincarcerable violation of the Vehicle Laws of the State of Maryland, or any traffic law, ordinance, or regulation, nor is it part of a unit the expungement of which is precluded under Code, Criminal Procedure Article, § 10-107.

________________________ _________________________________ (Date) (Signature) _________________________________ (Address) _________________________________

_________________________________ (Telephone No.)

MARYLAND RULES OF PROCEDURE TITLE 5 — EVIDENCE CHAPTER 100 — GENERAL PROVISIONS

AMEND Rule 5-101 to correct an obsolete statutory reference, to add language to subsection (c)(6) to conform to a recent appellate opinion, to add a new subsection (c)(9) in light of the addition of rules pertaining to coram nobis proceedings, and to make a certain stylistic change, as follows:

Rule 5-101. SCOPE

(a) Generally

Except as otherwise provided by statute or rule, the rules in this Title apply to all actions and proceedings in the courts of this State.

(b) Rules Inapplicable

The rules in this Title other than those relating to the competency of witnesses do not apply to the following proceedings:

(1) Proceedings before grand juries;

(2) Proceedings for extradition or rendition;

(3) Direct contempt proceedings in which the court may act summarily;

(4) Small claim actions under Rule 3-701 and appeals under Rule 7-112 (d)(2);

(5) Issuance of a summons or warrant under Rule 4-212;

(6) Pretrial release under Rule 4-216 or release after conviction under Rule 4-349;

(7) Preliminary hearings under Rule 4-221;

(8) Post-sentencing procedures under Rule 4-340;

(9) Sentencing in non-capital cases under Rule 4-342;

(10) Issuance of a search warrant under Rule 4-601;

(11) Detention and shelter care hearings under Rule 11-112; and

(12) Any other proceeding in which, prior to the adoption of the rules in this Title, the court was traditionally not bound by the common-law rules of evidence.

Committee note: The Rules in this Chapter are not intended to limit the Court of Appeals in defining the application of the rules of evidence in sentencing proceedings in capital cases or to override specific statutory provisions regarding the admissibility of evidence in those proceedings. See, for example, Tichnell v. State, 290 Md. 43 (1981); Code,~~Article 41, § 4-609 (d)~~ Correctional Services Article, § 6-112 (c).

In the following proceedings, the court ~~may~~, in the interest of justice, may decline to require strict application of the rules in this Title other than those relating to the competency of witnesses:

(1) The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 5-104 (a);

(2) Proceedings for revocation of probation under Rule 4-347;

(3) Hearings on petitions for post-conviction relief under Rule 4-406;

(4) Plenary proceedings in the Orphans' Court under Rule 6-462;

(5) Waiver hearings under Rule 11-113;

(6) Disposition hearings under Rule 11-115, including permanency planning hearings under Code, Courts Article, § 3-823;

(7) Modification hearings under Rule 11-116;

(8) Catastrophic health emergency proceedings under Title 15, Chapter 1100; ~~and~~ (9) Hearings on petitions for coram nobis under Rule 15-1206; and ~~(9)~~ (10) Any other proceeding in which, prior to the adoption of the rules in this Title, the court was authorized to decline to apply the common-law rules of evidence.

Source: This Rule is derived from Uniform Rule of Evidence 1101.

MARYLAND RULES OF PROCEDURE TITLE 5 — EVIDENCE CHAPTER 700 — OPINIONS AND EXPERT TESTIMONY

AMEND Rule 5-706 by adding a cross reference to a certain Code provision at the end of the Rule, as follows:

Rule 5-706. COURT APPOINTED EXPERTS

(a) Appointment

The court, on its own initiative or on the motion of any party, may enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness's duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness's findings, if any; the witness's deposition may be taken by any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.

(b) Compensation

Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. The compensation thus fixed is payable from funds which may be provided by law in civil actions, proceedings involving just compensation for the taking of property, and criminal actions. In other civil actions the compensation shall be paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs.

In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness.

(d) Parties' Experts of Own Selection

Nothing in this Rule limits the parties in calling expert witnesses of their own selection.

Cross reference: Rule 2-603. See Code, Courts Article, § 3-2A-09 concerning court-appointed experts in health care malpractice cases.

Source: This Rule is derived without substantive change from F.R.Ev. 706. Any language differences are solely for purposes of style and clarification.

MARYLAND RULES OF PROCEDURE TITLE 5 — EVIDENCE CHAPTER 800 — HEARSAY

AMEND Rule 5-802.1 to clarify subsection (a)(2), as follows:

Rule 5-802.1. HEARSAY EXCEPTIONS — PRIOR STATEMENTS BY WITNESSES

The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule:

(a) A statement that is inconsistent with the declarant's testimony, if the statement was (1) given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (2) reduced to writing and was signed by the declarant; or (3) recorded in substantially verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement;

. . .

MARYLAND RULES OF PROCEDURE TITLE 5 — EVIDENCE CHAPTER 800 — HEARSAY

AMEND Rule 5-803 to conform to the proposed deletion of current subsection (b)(5) of Rule 5-804, as follows:

Rule 5-803. HEARSAY EXCEPTIONS: UNAVAILABILITY OF DECLARANT NOT REQUIRED

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

. . .

(24) Other Exceptions

Under exceptional circumstances, the following are not excluded by the hearsay rule~~, even though the declarant is available as a witness~~: A statement not specifically covered by any of the~~foregoing~~ hearsay exceptions listed in this Rule or in Rule 5-804 , but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. A statement may not be admitted under this exception unless the proponent of it makes known to the adverse party, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the intention to offer the statement and the particulars of it, including the name and address of the declarant.

Committee note: The residual ~~exceptions~~ exception provided by Rule 5-803 (b) (24) ~~and Rule 5-804 (b)(5) do~~ does not contemplate an unfettered exercise of judicial discretion, but~~they do~~ it does provide for treating new and presently unanticipated situations which demonstrate a trustworthiness within the spirit of the specifically stated exceptions. Within this framework, room is left for growth and development of the law of evidence in the hearsay area, consistently with the broad purposes expressed in Rule 5-102.

It is intended that the residual hearsay ~~exceptions~~ exception will be used very rarely, and only in exceptional circumstances. The Committee does not intend to establish a broad license for trial judges to admit hearsay statements that do not fall within one of the other exceptions contained in Rules 5-803 and 5-804 (b). The residual ~~exceptions are~~ exception is not meant to authorize major judicial revisions of the hearsay rule, including its present exceptions. Such major revisions are best accomplished by amendments to the Rule itself. It is intended that in any case in which evidence is sought to be admitted under~~these subsections~~ this subsection, the trial judge will exercise no less care, reflection, and caution than the courts did under the common law in establishing the now-recognized exceptions to the hearsay rule.

. . .

MARYLAND RULES OF PROCEDURE TITLE 5 — EVIDENCE CHAPTER 800 — HEARSAY

AMEND Rule 5-804 to add a cross reference to a certain Code provision, to delete current subsection (b)(5), and to provide that under certain circumstances certain statements of a declarant whose unavailability was procured through wrongdoing that a party engaged in, directed, or conspired to commit are not excluded by the hearsay rule, as follows:

Rule 5-804. HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE

(a) Definition of Unavailability

"Unavailability as a witness" includes situations in which the declarant:

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement;

(2) refuses to testify concerning the subject matter of the declarant's statement despite an order of the court to do so;

(3) testifies to a lack of memory of the subject matter of the declarant's statement;

(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(5) is absent from the hearing and the proponent of the statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subsection (b)(2), (3), or (4) of this Rule, the declarant's attendance or testimony) by process or other reasonable means.

A statement will not qualify under section (b) of this Rule if the unavailability is due to the procurement or wrongdoing of the proponent of the statement for the purpose of preventing the witness from attending or testifying.

(b) Hearsay Exceptions

The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former Testimony

Testimony given as a witness in any action or proceeding or in a deposition taken in compliance with law in the course of any action or proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

(2) Statement Under Belief of Impending Death

In a prosecution for an offense based upon an unlawful homicide, attempted homicide, or assault with intent to commit a homicide or in any civil action, a statement made by a declarant, while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be his or her impending death.

(3) Statement Against Interest

A statement which was at the time of its making so contrary to the declarant's pecuniary or proprietary interest, so tended to subject the declarant to civil or criminal liability, or so tended to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Cross reference: See Code, Courts Article, § 10-920, distinguishing expressions of regret or apology by health care providers from admissions of liability or fault.

(4) Statement of Personal or Family History

(A) A statement concerning the declarant's own birth; adoption; marriage; divorce; legitimacy; ancestry; relationship by blood, adoption, or marriage; or other similar fact of personal or family history, even though the declarant had no means of acquiring personal knowledge of the matter stated.

(B) A statement concerning the death of, or any of the facts listed in subsection (4)(A) about another person, if the declarant was related to the other person by blood, adoption, or marriage or was so intimately associated with the other person's family as to be likely to have accurate information concerning the matter declared.

(5) ~~Other Exceptions~~ Witness Unavailable Because of Party's Wrongdoing (A) Civil Actions Under exceptional circumstances, the following are not excluded by the hearsay rule, even though the declarant is unavailable as a witness: A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. A statement may not be admitted under this exception unless the proponent of it makes known to the adverse party, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the intention to offer the statement and the particulars of it, including the name and address of the declarant. In civil actions in which a witness is unavailable because of a party's wrongdoing, a statement that (i) was (a) given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (b) reduced to writing and was signed by the declarant; or (c) recorded in substantially verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement, and (ii) is offered against a party who has engaged in, directed, or conspired to commit wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness, provided however the statement may not be admitted unless, as soon as practicable after the proponent of the statement learns that the declarant will be unavailable, the proponent makes known to the adverse party the intention to offer the statement and the particulars of it.

Committee note: A "party" referred to in subsection (b)(5)(A) also includes an agent of the government. (B) Criminal Causes In criminal causes in which a witness is unavailable because of a party's wrongdoing, admission of the witness's statement under this exception is governed by Code, Courts Article, § 10-901.

Committee note: Subsection (b)(5) of this Rule does not affect the law of spoliation, "guilty knowledge," or unexplained failure to produce a witness to whom one has superior access. See Washington v. State , 293 Md. 465, 468 n. 1 (1982) ; Breeding v. State . 220 Md. 193, 197 (1959) ; Shpak v. Schertle , 97 Md. App. 207, 222-27 (1993) ; Meyer v. McDonnell , 40 Md. App. 524, 533, (1978), rev'd on other grounds, 301 Md. 426 (1984) ; Larsen v. Romeo , 254 Md. 220, 228 (1969); Hoverter v. Director of Patuxent Inst ., 231 Md. 608, 609 (1963); and DiLeo v. Nugent , 88 Md. App. 59, 69-72 (1991). The hearsay exception set forth in subsection (b)(5)(B) is not available in criminal causes other than those listed in Code, Criminal Procedure Article, § 10-901 (a).

Cross reference: ~~See Committee note to~~ For the residual hearsay exception applicable regardless of the availability of the declarant, see Rule 5-803 (b)(24).

Source: This Rule is derived from F.R.Ev. 804.

MARYLAND RULES OF PROCEDURE TITLE 5 — EVIDENCE CHAPTER 900 — AUTHENTICATION AND IDENTIFICATION

AMEND Rule 5-902 to move the text of current section (b) into section (a), to require the proponent of business records proposed to be authenticated pursuant to new section (b) to give a certain notice to the adverse party and make certain materials available to the adverse party, to require that an objection to authentication pursuant to section (b) must be filed no later than five days after service of the proponent's notice, to add a certain form to section (b), to add a certain Committee note following section (b), and to correct certain statutory references, as follows:

Rule 5-902. SELF-AUTHENTICATION

(a) Generally

As used in this Rule, "certifies," "certificate," or "certification" means, with respect to a domestic record or public document, a written declaration under oath subject to the penalty of perjury and, with respect to a foreign record or public document, a written declaration signed in a foreign country which, if falsely made, would subject the maker to criminal penalty under the laws of that country. The certificate relating to a foreign record or public document must be accompanied by a final certification as to the genuineness of the signature and official position (1) of the individual executing the certificate or (2) of any foreign official who certifies the genuineness of signature and official position of the executing individual or is the last in a chain of certificates that collectively certify the genuineness of signature and official position of the executing individual. A final certificate may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country who is assigned or accredited to the United States.

Except as otherwise provided by statute, extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

(1) Domestic Public Documents Under Seal

A document bearing a seal purporting to be that of the United States, or of any state, district, commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the trust territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.

(2) Domestic Public Documents Not Under Seal

A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in subsection (a)(1) of this Rule, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.

(3) Foreign Public Documents

A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation and accompanied by a final certification. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.

(4) Certified Copies of Public Records

A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with this Rule or complying with any applicable statute or these rules.

(5) Official Publications

Books, pamphlets, or other publications purporting to be issued or authorized by a public agency.

(6) Newspapers and Periodicals

Printed materials purporting to be newspapers or periodicals.

(7) Trade Inscriptions and the Like

Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.

(8) Acknowledged Documents

Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.

(9) Commercial Paper and Related Documents

To the extent provided by applicable commercial law, commercial paper, signatures thereon, and related documents.

Cross reference: See, e.g., Code, Commercial Law Article, §§ 1-202, ~~3-307~~ 3-308, and ~~3-510~~ 3-505.

(10) Presumptions under Statutes or Treaties

Any signature, document, or other matter declared by applicable statute or treaty to be presumptively genuine or authentic.

~~(11) Certified Records of Regularly Conducted Business Activity~~ The original or a duplicate of a record of regularly conducted business activity, within the scope of Rule 5-803 (b) (6), which the custodian or another qualified individual certifies (A) was made, at or near the time of the occurrence of the matters set forth, by (or from information transmitted by) a person with knowledge of those matters, (B) is made and kept in the course of the regularly conducted business activity, and (C) was made and kept by the regularly conducted business activity as a regular practice, unless the sources of information or the method or circumstances of preparation indicate lack of trustworthiness; but a record so certified is not self-authenticating under this subsection unless the proponent makes an intention to offer it known to the adverse party and makes it available for inspection sufficiently in advance of its offer in evidence to provide the adverse party with a fair opportunity to challenge it. ~~(12)~~ (11) Items as to Which Required Objections Not Made

Unless justice otherwise requires, any item as to which, by statute, rule, or court order, a written objection as to authenticity is required to be made before trial, and an objection was not made in conformance with the statute, rule, or order.

Committee note: As used in this Rule "document" is a generic term. It includes public records encompassed by Code, Courts Article, § 10-204.

~~(b) Definition~~ As used in this Rule, "certifies," "certificate," or "certification" means, with respect to a domestic record or public document, a written declaration under oath subject to the penalty of perjury and, with respect to a foreign record or public document, a written declaration signed in a foreign country which, if falsely made, would subject the maker to criminal penalty under the laws of that country. The certificate relating to a foreign record or public document must be accompanied by a final certification as to the genuineness of the signature and official position (1) of the individual executing the certificate or (2) of any foreign official who certifies the genuineness of signature and official position of the executing individual or is the last in a chain of certificates that collectively certify the genuineness of signature and official position of the executing individual. A final certificate may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country who is assigned or accredited to the United States. (b) Certified Records of Regularly Conducted Business Activity (1) Procedure Testimony of authenticity as a condition precedent to admissibility is not required as to the original or a duplicate of a record of regularly conducted business activity, within the scope of Rule 5-803 (b)(6) that has been certified pursuant to subsection (b)(2) of this Rule, provided that at least ten days prior to the commencement of the proceeding in which the record will be offered into evidence, (A) the proponent (i) notifies the adverse party of the proponent's intention to authenticate the record under this subsection and (ii) makes a copy of the certificate and record available to the adverse party and (B) the adverse party has not filed within five days after service of the proponent's notice written objection on the ground that the sources of information or the method or circumstances of preparation indicate lack of trustworthiness.

Committee note: An objection to self-authentication under subsection (b)(1) of this Rule made in advance of trial does not constitute a waiver of any other ground that may be asserted as to admissibility at trial. (2) Form of Certificate For purposes of subsection (b)(1) of this Rule, the original or duplicate of the business record shall be certified in substantially the following form:

Certification of Custodian of Records or Other ____ Qualified Individual

I, ____ , do hereby certify that: (1) I am the Custodian of Records of or am otherwise qualified to administer the records for____ ____ (identify the organization that maintains the records), and (2) The attached records (a) are true and correct copies of records that were made at or near the time of the occurrence of the matters set forth, by or from the information transmitted by, a person with knowledge of these matters; and (b) were kept in the course of the regulated conducted activity; and (c) were made and kept by the regularly conducted business activity as a regular practice. I declare under penalty of perjury that the foregoing is true and correct.

_________________________________ Signature and Title

_________________________________ Date

Source: This Rule is in part derived from F.R.Ev. 902 and in part new.

MARYLAND RULES OF PROCEDURE TITLE 6 — SETTLEMENT OF DECEDENTS' ESTATES CHAPTER 400 — ADMINISTRATION OF ESTATES

AMEND Rule 6-415 by adding a certain cross reference, as follows:

Rule 6-415. PETITION AND ORDER FOR FUNERAL EXPENSES

When a petition for funeral expenses is required by law, it shall be filed in the following form:

[CAPTION] PETITION AND ORDER FOR FUNERAL EXPENSES

I hereby request allowance of funeral expenses and I state that:

(1) The expenses are as follows (or as set forth in the attached statement or invoice):

___________________________________________________________ ________________________________________________________________.

(2) The estate is (solvent) (insolvent).

I solemnly affirm under the penalties of perjury that the contents of this petition are true to the best of my knowledge, information, and belief.

Date: __________________ _________________________________ _________________________________ Personal Representative(s)

_______________________________ Attorney _______________________________ Address _______________________________ Telephone Number

Certificate of Service

I hereby certify that on this ______ day of ______________, (month) ______, I delivered or mailed, postage prepaid, a copy of the (year) foregoing Petition to the following persons: ________________ _____________________________________________________________. (name and address) ________________________________ Signature

ORDER

Upon a finding that $______________ is a reasonable amount for funeral expenses, according to the condition and circumstances of the decedent, it is this ______ day of ___________________, _______. (month) (year)

ORDERED, by the Orphans' Court for ______________ County, that this sum is allowed.

__________________________________ __________________________________

_________________________________ JUDGES

Cross reference: Code, Estates and Trusts Article, §§ 7-401 (i) and 8-106. For limitations on the amount of allowable funeral expenses, see Code, Estates and Trusts Article, § 8-106 (b).

MARYLAND RULES OF PROCEDURE TITLE 7 — APPELLATE AND OTHER JUDICIAL REVIEW IN CIRCUIT COURT CHAPTER 200 — JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY DECISIONS

AMEND Rule 7-208 to add a certain cross reference, as follows:

Rule 7-208. HEARING

(a) Generally

Unless a hearing is waived in writing by the parties, the court shall hold a hearing.

(b) Scheduling

Upon the filing of the record pursuant to Rule 7-206, a date shall be set for the hearing on the merits. Unless otherwise ordered by the court or required by law, the hearing shall be no earlier than 90 days from the date the record was filed.

Additional evidence in support of or against the agency's decision is not allowed unless permitted by law.

Cross reference: Where a right to a jury trial exists, see Rule 2-325 (d). See Montgomery County v. Stevens , 337 Md. 471 (1995) concerning the availability of prehearing discovery.

Source: This Rule is in part derived from former Rules B10 and B11 and in part new.

MARYLAND RULES OF PROCEDURE TITLE 7 — APPELLATE AND OTHER JUDICIAL REVIEW IN CIRCUIT COURT CHAPTER 200 — JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY DECISIONS

ADD new Rule 7-211, as follows:

Rule 7-211. REQUEST FOR IMPLEADER OF THE SUBSEQUENT INJURY FUND

(a) Generally

If a party files a request for impleader of the Subsequent Injury Fund more than 60 days before trial, the court shall grant the request. If a party files a request for impleader within the 60-day period before trial, the court shall determine whether there is good cause to grant the request.

(b) Order Granting Request for Impleader

If the court grants a request for impleader, the court shall suspend further proceedings and remand the case to the Workers' Compensation Commission.

Within 10 days after the date of an order granting a request for impleader, the impleading party shall provide to the Subsequent Injury Fund and all other parties:

(1) a copy of the original claim, any amendments, each issue previously filed, and any award or order entered by the Commission on the claim;

(2) identification, by claim number if available, of prior awards or settlements to the claimant for permanent disability made or approved by the Commission, by a comparable commission of another state as defined in Code, Labor and Employment Article, § 1-101;

(3) all relevant medical evidence relied on to implead the Subsequent Injury Fund; and

(4) a certification that a copy of the request for impleader and all required information and documents have been mailed to the Subsequent Injury Fund and all other parties.

Cross reference: COMAR 14.09.01.13.

Source: This Rule is new.

MARYLAND RULES OF PROCEDURE TITLE 7 — APPELLATE AND OTHER JUDICIAL REVIEW IN CIRCUIT COURT CHAPTER 300 — CERTIORARI

AMEND Rule 7-301 to change certain terminology, to limit the applicability of the Rule to review of certain actions of the District Court or the Orphans' Court, to modify service and notice procedures, and to eliminate reference to a certain "show cause" order, as follows:

Rule 7-301. CERTIORARI IN THE CIRCUIT COURT

(a) Applicability; Definitions

This Rule governs applications in the circuit court for a writ of certiorari. As used in this Rule, ~~"defendant"~~ "respondent" means the ~~person or body~~ District Court or the Orphans' Court whose acts are sought to be reviewed. As used in this Rule, "party" means any party to a proceeding in the District Court or Orphans' Court other than the petitioner or petitioners in the circuit court.

(b) Petition

An application for a writ of certiorari shall be by petition filed in the circuit court for the county where the acts sought to be reviewed take, have taken, or would take effect. ~~and~~ The petition shall name as ~~defendant~~ respondent the ~~person or body~~ court whose acts are sought to be reviewed and the names and addresses of all known parties in the proceeding with respect to which the review by the circuit court is sought. The petition shall be under oath and shall ~~contain~~ state (1) ~~a description~~ the name of the ~~defendant~~ respondent, ~~and of~~ (2) the matter sought to be reviewed, ~~(2)~~ (3) ~~a statement of~~ the interest of the ~~plaintiff~~ petitioner in the matter, and ~~(3)~~ (4) ~~a statement of~~ the facts relied on to show that the ~~defendant~~ respondent lacked jurisdiction or committed unconstitutional acts reviewable by writ of certiorari.

Upon the filing of a petition, the court shall (1) issue an order requiring the ~~defendant~~ respondent to file a response by a specified date ~~stated in the order~~ showing cause why the writ should not issue, (2) issue a writ of certiorari to the~~defendant~~ respondent, requiring the production by a specified date of all records of the ~~defendant~~ respondent in the matter by a date stated in the writ, or (3) dismiss the petition if the court determines from the petition that it lacks jurisdiction. Before issuing a writ of certiorari, the court may require the ~~plaintiff~~ petitioner to file a bond conditioned on the payment to any person of any damages sustained because of the issuance of the writ if the court ultimately determines that the writ should not have issued.

Cross reference: Title 1, Chapter 400.

(d) Service and Notice

A copy of the petition, any show cause order, and any writ of certiorari shall be served upon the defendant, or if the defendant is not an individual, upon an official of the defendant in the manner provided by Rule 2-121. Service of a writ of certiorari shall stay all further proceedings by the defendant. The court may require notice of the certiorari proceeding to be given to any other person. Upon filing the petition, the petitioner shall deliver to the clerk one additional copy of the petition for the respondent and one additional copy for each party. The petitioner also shall notify the other parties in conformity with Rule 1-351 (b). The clerk shall promptly mail a copy of the petition to the clerk of the respondent and to each party, together with a notice stating: (1) the date the petition was filed; (2) the name of the court in which the petition was filed; (3) the civil action number assigned to the petition; and (4) that if the respondent or a party opposes the petition, the respondent or party shall file a response within 30 days after the date the notice was mailed or, if the court has shortened or extended the time for filing a response, within such other time stated in the notice. The clerk also shall mail a copy of the notice to each petitioner.

(e) Hearing

(1) If No Response is Filed If no response to the petition is filed within the time allowed, the court may issue the writ without a hearing. ~~(1)~~ (2) ~~When Show Cause Order Issued~~ If a Response is Filed

If the ~~defendant~~ respondent or a party files a response to~~a show cause order~~ the petition, the court shall hold a hearing to determine its own jurisdiction and whether to issue the writ. ~~If no response is filed, the court may issue the writ without a hearing.~~ ~~(2)~~ (3) When Writ Issued

Upon the return of the writ and the production by the~~defendant~~ respondent of its records, the court shall first determine if whether it has jurisdiction and, if so, shall review the jurisdiction and constitutionality of the acts of the~~defendant~~ respondent.

(f) Motion to Intervene

Any person whose interest may be affected adversely by the certiorari proceeding may move to intervene pursuant to Rule 2-214.

Source: This Rule is derived in part from former Rules K41 through K48 and is in part new.

MARYLAND RULES OF PROCEDURE TITLE 7 — APPELLATE AND OTHER JUDICIAL REVIEW IN CIRCUIT COURT CHAPTER 400 — ADMINISTRATIVE MANDAMUS TABLE OF CONTENTS

Rule 7-401. GENERAL PROVISIONS

(a) Applicability

(b) Definition

Rule 7-402. PROCEDURES

(a) Complaint and Response

(b) Stay

(d) Record

(e) Memoranda

(f) Hearing

Rule 7-403. DISPOSITION

MARYLAND RULES OF PROCEDURE TITLE 7 — APPELLATE AND OTHER JUDICIAL REVIEW IN CIRCUIT COURT CHAPTER 400 — ADMINISTRATIVE MANDAMUS

ADD new Rule 7-401, as follows:

Rule 7-401. GENERAL PROVISIONS

(a) Applicability

The rules in this Chapter govern actions for judicial review of a quasi-judicial order or action of an administrative agency where review is not expressly authorized by law.

Committee note: A writ of mandamus is an appropriate remedy for review of a quasi-judicial order or action of an administrative agency only when no other right of appeal is provided by state or local law. See Heaps v. Cobb, 185 Md. 372 (1945). Ordinarily, administrative finality is required, but see Prince George's County v. Blumberg, 288 Md, 275 (1980) and Holiday Spas v. Montgomery County, 315 Md. 390 (1989).

Cross reference: For judicial review of an order or action of an administrative agency where judicial review is authorized by statute, see Title 7, Chapter 200 of these Rules.

(b) Definition

As used in this Chapter, "administrative agency" means any agency, board, department, district, commission, authority, Commissioner, official, or other unit of the State or of a political subdivision of the State.

Committee note: This Rule does not apply to writs of mandamus in aid of appellate jurisdiction.

Source: This Rule is new.

MARYLAND RULES OF PROCEDURE TITLE 7 — APPELLATE AND OTHER JUDICIAL REVIEW IN CIRCUIT COURT CHAPTER 400 — ADMINISTRATIVE MANDAMUS

ADD new Rule 7-402, as follows:

Rule 7-402. PROCEDURES

(a) Complaint and Response

An action for a writ of administrative mandamus is commenced by the filing of a complaint, the form, contents, and timing of which shall comply with Rules 7-202 and 7-203. A response to the filing of the complaint shall comply with the provisions of Rule 7-204.

(b) Stay

The filing of the complaint does not stay the order or action of the administrative agency. The court may grant a stay in accordance with the provisions of Rule 7-205.

The court may permit discovery, in accordance with the provisions of Title 2, Chapter 400, that the court finds to be appropriate, but only in cases where the party challenging the agency action makes a strong showing of the existence of fraud or extreme circumstances that occurred outside the scope of the administrative record, and a remand to the agency is not a viable alternative.

(d) Record

If a record exists, the record shall be filed in accordance with the provisions of Rule 7-206. If no record exists, the agency shall provide (1) a verified response that fully sets forth the grounds for its decision and (2) any written materials supporting the decision. The court may remand the matter to the agency for further supplementation of materials supporting the decision.

(e) Memoranda

Memoranda shall be filed in accordance with the provisions of Rule 7-207.

(f) Hearing

The court may hold a hearing. If a hearing is held, additional evidence in support of or against the agency's decision is not allowed unless permitted by law.

Source: This Rule is new.

MARYLAND RULES OF PROCEDURE TITLE 7 — APPELLATE AND OTHER JUDICIAL REVIEW IN CIRCUIT COURT CHAPTER 400 — ADMINISTRATIVE MANDAMUS

ADD new Rule 7-403, as follows:

Rule 7-403. DISPOSITION

The court may issue an order denying the writ of mandamus, or may issue the writ (1) remanding the case for further proceedings, or (2) reversing or modifying the decision if any substantial right of the plaintiff may have been prejudiced because a finding, conclusion, or decision of the agency:

(A) is unconstitutional,

(B) exceeds the statutory authority or jurisdiction of the agency,

(D) is affected by any error of law,

(E) is unsupported by competent, material, and substantial evidence in light of the entire record as submitted,

(F) is arbitrary or capricious, or

(G) is an abuse of its discretion.

Source: This Rule is new.

MARYLAND RULES OF PROCEDURE TITLE 8 — APPELLATE REVIEW IN COURT OF APPEALS AND COURT OF SPECIAL APPEALS CHAPTER 200 — OBTAINING REVIEW IN COURT OF SPECIAL APPEALS

AMEND Rule 8-204 to reorganize sections (b) and (c), to add provisions concerning applications for leave to appeal the denial of victims' rights, and to make certain stylistic changes, as follows:

Rule 8-204. APPLICATION FOR LEAVE TO APPEAL TO COURT OF SPECIAL APPEALS

(a) Scope

This Rule applies to applications for leave to appeal to the Court of Special Appeals.

Cross reference: For Code provisions governing applications for leave to appeal, see Courts Article, § 3-707 concerning bail; Courts Article, § 12-302 (e) concerning guilty plea cases; Courts Article, § 12-302 (g) concerning revocation of probation cases; Criminal Procedure Article, § 11-103 concerning victims of violent crimes; Criminal Procedure Article, § 7-109 concerning post conviction cases; Correctional Services Article, § 10-206 et seq. concerning inmate grievances; and Health-General Article, §§ 12-117 (e) (2), 12-118 (d) (2), and 12-120 (k) (2) concerning continued commitment, conditional release, or discharge of an individual committed as not criminally responsible by reason of insanity or incompetent to stand trial.

(b) Application

(1) How Made~~; Time for Filing~~

An application for leave to appeal to the Court of Special Appeals shall be filed in duplicate with the clerk of the lower court.

(2) Time for Filing (A) Generally Except as otherwise provided in subsection (b)(2)(B) of this Rule, ~~The~~ the application shall be filed within 30 days after entry of the judgment or order from which the appeal is sought~~, except that an application for leave to appeal with regard to bail pursuant to Code, Courts Article, § 3-707 shall be filed within ten days after entry of the order from which the appeal is sought.~~ (B) Interlocutory Appeal by Victim An application with regard to an interlocutory appeal by a victim pursuant to Code, Criminal Procedure Article, § 11-103 alleging that the trial court denied or failed to consider a victim's right may be filed at the time the victim's right is actually being denied or within 10 days after the request is made on behalf of the victim, whether or not the court has ruled on the request.

Committee note: Code, Courts Article, § 11-103 (c) provides that the filing of an application for leave to appeal by a victim does not stay other proceedings in a criminal action unless all parties in the action consent to the stay. (C) Bail An application for leave to appeal with regard to bail pursuant to Code, Courts Article, § 3-707 shall be filed within ten days after entry of the order from which the appeal is sought. ~~(2)~~ (3) Content

The application shall contain a concise statement of the reasons why the judgment should be reversed or modified and shall specify the errors allegedly committed by the lower court.

~~(3)~~ (4) Service

If the applicant is the State of Maryland, it shall serve a copy of the application on the adverse party in compliance with Rule 1-321. Any other applicant shall serve a copy of the application on the Attorney General in compliance with Rule 1-321. If the applicant is not represented by an attorney, the clerk of the lower court shall promptly mail a copy of the application to the Attorney General.

(1) Time for Transmittal

Within (A) five days after the filing of an application by a victim for leave to file an interlocutory appeal pursuant to Code, Criminal Procedure Article, § 11-103, (B) 30 days after the filing of an application for leave to appeal in any other case, or ~~within~~ (C) such shorter time as the appellate court may direct, the clerk of the lower court shall transmit the record, together with the application, to the Court of Special Appeals.

(2) Post Conviction Proceedings

On application for leave to appeal from a post conviction proceeding, the record shall contain the petition, the State's Attorney's response, any subsequent papers filed in the proceeding, and the statement and order required by Rule 4-407.

(3) Habeas Corpus Proceedings

On application for leave to appeal from a habeas corpus proceeding in regard to bail, the record shall contain the petition, any response filed by the State's Attorney, the order of the court, and the judge's memorandum of reasons.

(4) Victims On application by a victim for leave to appeal pursuant to Code, Criminal Procedure Article, § 11-103, the record shall contain (A) the application; (B) any response to the application filed by the defendant, the State's Attorney, or the Attorney General; (C) any pleading regarding the victim's request including, if applicable, a statement that the court has failed to consider a right of the victim; and (D), if applicable, any order or decision of the court. (5) Other Applications for Leave to Appeal

On any other application for leave to appeal, the record shall contain all of the original papers and exhibits filed in the proceeding.

Cross reference: Code, Courts Article § 3-707.

(d) Response

Within 15 days after service of the application, any other party may file a response in the Court of Special Appeals stating why leave to appeal should be denied or granted, except that any response to an application for leave to appeal with regard to bail pursuant to Code, Courts Article, § 3-707 or with regard to an interlocutory appeal by a victim pursuant to Code, Criminal Procedure Article, § 11-103 shall be filed within five days after service of the application.

(e) Additional Information

Before final disposition of the application, the Court of Special Appeals may require the clerk of the lower court to submit any portion of the stenographic transcript of the proceedings below and any additional information that the Court may wish to consider.

(f) Disposition

On review of the application, any response, the record, and any additional information obtained pursuant to section (e) of this Rule, without the submission of briefs or the hearing of argument, the Court shall:

(1) deny the application;

(2) grant the application and affirm the judgment of the lower court;

(3) grant the application and reverse the judgment of the lower court;

(4) grant the application and remand the judgment to the lower court with directions to that court; or

(5) grant the application and order further proceedings in the Court of Special Appeals in accordance with section (g) of this Rule.

The Clerk of the Court of Special Appeals shall send a copy of the order disposing of the application to the clerk of the lower court.

(g) Further Proceedings in Court of Special Appeals

(1) Generally

Further proceedings directed under subsection (f)(5) of this Rule shall be conducted pursuant to this Title and as if the order granting leave to appeal were a notice of appeal filed pursuant to Rule 8-202. If the record on application for leave to appeal is to constitute the entire record to be considered on the appeal, the time for the filing of the appellant's brief shall be within 40 days after the date of the order granting leave to appeal.

(2) Further Proceedings in Interlocutory Appeals of Denial of Victims' Rights If the order granting leave to appeal involves an interlocutory appeal by a victim pursuant to Code, Criminal Procedure Article, § 11-103, the Court may schedule oral argument without the submission of briefs and shall consider the application and any responses in lieu of briefs.

Source: This Rule is derived as follows:

Section (a) is new.

Section (b) is derived from former Rules 1093 a, 1095 a 1, 2 and 4, and 1096 a 1, 2, and 4.

Section (c) is derived from former Rules 1093 b, 1095 a 3, and 1096 a 3.

Section (d) is new.

Section (e) is derived from former Rules 1093 c, 1095 b, and 1096 b.

Section (f) is new.

Section (g) is derived from former Rules 1093 d, 1095 c, and 1096 c.

MARYLAND RULES OF PROCEDURE TITLE 8 — APPELLATE REVIEW IN COURT OF APPEALS AND COURT OF SPECIAL APPEALS CHAPTER 200 — OBTAINING REVIEW IN COURT OF SPECIAL APPEALS

AMEND Rule 8-205 (a) by adding appeals from guardianships terminating parental rights to the list of categories of actions for which information reports are not required, as follows:

Rule 8-205. INFORMATION REPORTS

(a) Applicability

This Rule applies to appeals in all civil actions in the Court of Special Appeals except juvenile causes, appeals from guardianships terminating parental rights, and applications and appeals by prisoners seeking relief relating to confinement or conditions of confinement.

(b) Report by Appellant Required

Upon the filing of a notice of appeal, the clerk of the lower court shall provide to the appellant an information report form prescribed by the Court of Special Appeals. Unless an expedited appeal is elected pursuant to Rule 8-207, the appellant shall file with the Clerk of the Court of Special Appeals a copy of the notice of appeal and a complete and accurate information report.

When a notice of appeal is filed more than ten days after the entry of judgment, the information report shall be filed within ten days after the filing of the notice. When the notice of appeal is filed within ten days after the entry of judgment, the information report shall be filed within ten days after the expiration of that ten-day period, if no post-judgment motion pursuant to Rule 2-532, 2-533, or 2-534 or a notice for in banc review pursuant to Rule 2-551 has been timely filed.

Cross reference: Rule 8-202 (c).

(d) Report by Appellee

Within seven days after service of appellant's information report, each appellee may file with the Clerk of the Court of Special Appeals a supplemental report containing any other information needed to clarify the issues on appeal or otherwise assist the prehearing judge.

(e) Disclosure of Post-judgment Motions

If the filing, withdrawal, or disposition of a motion pursuant to Rule 2-532, 2-533, or 2-534 has not been disclosed in an information report or supplemental report, the party filing the motion shall notify the Clerk of the Court of Special Appeals of the filing and of the withdrawal or disposition.

(f) Confidentiality

Information contained in an information report or a supplemental report shall not (1) be treated as admissions, (2) limit the disclosing party in presenting or arguing that party's case, or (3) be referred to except at a prehearing or scheduling conference.

Source: This Rule is derived from former Rule 1023 with the exception of section (a) which is derived from former Rule 1022 and section (f), the substance of which was transferred from Rule 8-206.

MARYLAND RULES OF PROCEDURE TITLE 8 — APPELLATE REVIEW IN COURT OF APPEALS AND COURT OF SPECIAL APPEALS CHAPTER 200 — OBTAINING REVIEW IN COURT OF SPECIAL APPEALS

AMEND Rule 8-207 to clarify the applicability of section (a) and to make a certain stylistic change to section (b), as follows:

Rule 8-207. EXPEDITED APPEAL

(a) Adoption, Guardianship, Child Access, Child in Need of Assistance Cases

(1) This section applies to every appeal to the Court of Special Appeals (A) from a judgment granting or denying a petition for adoption, guardianship terminating parental rights, or guardianship of the person of a minor or disabled person,and (B) contesting a judgment granting, denying, or establishing custody of or visitation with a minor child, ~~and (C) from an order entered pursuant to Code, Courts Article, § 12-303~~ including an appeal from an interlocutory order taken pursuant to Code, Courts Article, § 12-303(3)(x). Unless otherwise provided for good cause by order of the Court of Special Appeals or by order of the Court of Appeals if that Court has assumed jurisdiction over the appeal, the provisions of this section shall prevail over any other rule to the extent of any inconsistency.

(2) In the information report filed pursuant to Rule 8-205, the appellant shall state whether the appeal is subject to this section.

(3) Within five days after entry of an order pursuant to Rule 8-206 (a)(1) or an order pursuant to Rule 8-206 (d) directing preparation of the record, the appellant shall order the transcript and make an agreement for payment to assure its preparation. The court reporter or other person responsible for preparation of the transcript shall give priority to transcripts required for appeals subject to this section and shall complete and file the transcripts with the clerk of the lower court within 20 days after receipt of an order of the party directing their preparation and an agreement for payment of the cost. An extension of time may be granted only for good cause.

(4) The clerk of the lower court shall transmit the record to the Court of Special Appeals within thirty days after the date of the order entered pursuant to Rule 8-206 (a)(1) or Rule 8-206 (d).

(5) The briefing schedule set forth in Rule 8-502 shall apply, except that (A) an appellant's reply brief shall be filed within 15 days after the filing of the appellee's brief, (B) a cross-appellee's brief shall be filed within 20 days after the filing of a cross-appellant's brief, and (C) a cross-appellant's reply brief shall be filed within 15 days after the filing of a cross-appellee's brief. Unless directed otherwise by the Court, any oral argument shall be held within 120 days after transmission of the record. The decision shall be rendered within 60 days after oral argument or submission of the appeal on the briefs filed.

(6) Any motion for reconsideration pursuant to Rule 8-605 shall be filed within 15 days after the filing of the opinion of the Court or other order disposing of the appeal. Unless the mandate is delayed pursuant to Rule 8-605 (d) or unless otherwise directed by the Court, the Clerk of the Court of Special Appeals shall issue the mandate upon the expiration of 15 days after the filing of the court's opinion or order.

(b) By Election of Parties

(1) Election

Within 20 days after the first notice of appeal is filed or within the time specified in an order entered pursuant to Rule 8-206 (d), the parties may file with the Clerk of the Court of Special Appeals a joint election to proceed pursuant to this Rule.

(2) Statement of Case and Facts

Within 15 days after the filing of the joint election, the parties shall file with the Clerk four copies of an agreed statement of the case, including the essential facts, as prescribed by Rule 8-413 (b). By stipulation of counsel filed with the clerk, the time for filing the agreed statement of the case may be extended for no more than an additional 30 days.

Committee note: Rule 8-413 (b) requires that an agreed statement of the case be approved by the lower court.

(3) Withdrawal

The election is withdrawn if ~~(1)~~ (A) within 15 days after its filing the parties file a joint stipulation to that effect or~~(2)~~ (B) the parties fail to file the agreed statement of the case within the time prescribed by subsection (a)(2) of this Rule. The case shall then proceed as if the first notice of appeal had been filed on the date of the withdrawal.

(4) Appellant's Brief

The appellant shall file a brief within 15 days after the filing of the agreed statement required by subsection (a)(2) of this Rule. The brief need not include statement of facts, shall be limited to two issues, and shall not exceed ten pages in length. Otherwise, the brief shall conform to the requirements of Rule 8-504. The appellant shall attach the agreed statement of the case as an appendix to the brief.

(5) Appellee's Brief

The appellee shall file a brief within 15 days after the filing of the appellant's brief. The brief shall not exceed ten pages in length and shall otherwise conform to the requirements of Rule 8-504.

(6) Reply Brief

A reply brief may be filed only with permission of the Court.

(7) Briefs in Cross-appeals

An appellee who is also a cross-appellant shall include in the brief filed under subsection (a)(5) of this Rule the issue and argument on the cross-appeal as well as the response to the brief of the appellant. The combined brief shall not exceed 15 pages in length. Within ten days after the filing of an appellee/cross-appellant's brief, the appellant/cross-appellee shall file a brief, not exceeding ten pages in length, in response to the issues and argument raised on the cross-appeal.

(8) Oral Argument

Except in extraordinary circumstances, any oral argument shall be held within 45 days after the filing of the appellee's brief or, if the Court is not in session at that time, within 45 days after commencement of the next term of the Court. The oral argument shall be limited to 15 minutes for each side.

(9) Decision

Except in extraordinary circumstances or when a panel of the Court recommends that the opinion be reported, the decision shall be rendered within 20 days after oral argument or, if all parties submitted on brief, within 30 days after the last submission.

(10) Applicability of Other Rules

The Rules of this Title governing appeals to the Court of Special Appeals shall be applicable to expedited appeals except to the extent inconsistent with this Rule.

Source: This Rule is derived from former Rule 1029.

MARYLAND RULES OF PROCEDURE TITLE 8 — APPELLATE REVIEW IN THE COURT OF APPEALS AND COURT OF SPECIAL APPEALS CHAPTER 400 — PRELIMINARY PROCEDURES

AMEND Rule 8-411 to provide for a certain time period within which a transcript must be ordered in a child in need of assistance case and to add a certain cross reference after section (b), as follows:

Rule 8-411. TRANSCRIPT

(a) Ordering of Transcript

Unless a copy of the transcript is already on file, the appellant shall order in writing from the court stenographer a transcript containing:

(1) a transcription of (A) all the testimony or (B) that part of the testimony that the parties agree, by written stipulation filed with the clerk of the lower court, is necessary for the appeal or (C) that part of the testimony ordered by the Court pursuant to Rule 8-206 (d) or directed by the lower court in an order; and

(2) a transcription of any proceeding relevant to the appeal that was recorded pursuant to Rule 16-404 e.

(b) Time for Ordering

The appellant shall order the transcript within ten days or five days in child in need of assistance cases after:

(1) the date of an order entered pursuant to Rule 8-206 (a)(1) that the appeal proceed without a prehearing conference, or an order entered pursuant to Rule 8-206 (d) following a prehearing conference, unless a different time is fixed by that order, in all civil actions specified in Rule 8-205 (a), or

(2) the date the first notice of appeal is filed in all other actions.

Cross reference: Rule 8-207 (a).

The appellant shall (1) file a copy of the written order to the stenographer with the clerk of the lower court for inclusion in the record, (2) cause the original transcript to be filed promptly by the court reporter with the clerk of the lower court for inclusion in the record, and (3) promptly serve a copy on the appellee.

Source: This Rule is derived from former Rule 1026 a 2 and Rule 826 a 2 (b).

MARYLAND RULES OF PROCEDURE TITLE 8 — APPELLATE REVIEW IN THE COURT OF APPEALS AND COURT OF SPECIAL APPEALS CHAPTER 400 — PRELIMINARY PROCEDURES

AMEND Rule 8-412 to provide for a certain time period within which the record must be transmitted in child in need of assistance cases and to add a certain cross reference after section (a), as follows:

Rule 8-412. RECORD — TIME FOR TRANSMITTING

(a) To the Court of Special Appeals

Unless a different time is fixed by order entered pursuant to section (d) of this Rule, the clerk of the lower court shall transmit the record to the Court of Special Appeals within sixty days or thirty days in child in need of assistance cases after:

(2) the date the first notice of appeal is filed, in all other actions.

Cross reference: Rule 8-207 (a).

(b) To the Court of Appeals

Unless a different time is fixed by order entered pursuant to section (d) of this Rule, the clerk of the court having possession of the record shall transmit it to the Court of Appeals within 15 days after entry of a writ of certiorari directed to the Court of Special Appeals, or within sixty days after entry of a writ of certiorari directed to a lower court other than the Court of Special Appeals.

For purposes of this Rule the record is transmitted when it is delivered to the Clerk of the appellate court or when it is sent by certified mail by the clerk of the lower court, addressed to the Clerk of the appellate court.

(d) Shortening or Extending the Time

On motion or on its own initiative, the appellate court having jurisdiction of the appeal may shorten or extend the time for transmittal of the record. If the motion is filed after the prescribed time for transmitting the record has expired, the Court will not extend the time unless the Court finds that the failure to transmit the record was caused by the act or omission of a judge, a clerk of court, the court stenographer, or the appellee.

Source: This Rule is derived from former Rules 1025 and 825.

MARYLAND RULES OF PROCEDURE TITLE 8 — APPELLATE REVIEW IN THE COURT OF APPEALS AND COURT OF SPECIAL APPEALS CHAPTER 500 — RECORD EXTRACT, BRIEFS, AND ARGUMENT

AMEND Rule 8-511 to require an amicus curiae to disclose certain information pertaining to other persons or entities that contributed to the preparation or submission of the brief, as follows:

Rule 8-511. AMICUS CURIAE

(a) Generally

A person may participate as an amicus curiae only with permission of the Court.

(b) Brief

The Court, on motion of an amicus curiae or a party or on its own initiative, may grant permission to the amicus curiae to file a brief. A motion requesting permission for an amicus curiae to file a brief shall (1) identify the interest of the amicus curiae, (2) state the reasons why the amicus brief is desirable,~~and~~ (3) state the issues that the amicus curiae intends to raise, and (4) identify every person or entity, other than the amicus curiae, its members, or its counsel, who made a monetary or other contribution to the preparation or submission of the brief, and identify the nature of the contribution. The style (except for the color of the cover), content, and time for filing of the amicus brief shall be the same as prescribed by these rules for the brief of the party whose position as to affirmance or reversal the amicus curiae supports.

The amicus curiae shall not participate in oral argument without permission of the Court. Permission shall be granted only for extraordinary reasons.

Source: This Rule is derived from ~~FRAP~~ Fed.R.App.P. 29 and Sup.Ct.R. 37 (b)6.

MARYLAND RULES OF PROCEDURE TITLE 8 — APPELLATE REVIEW IN THE COURT OF APPEALS AND COURT OF SPECIAL APPEALS CHAPTER 600 — DISPOSITION

AMEND Rule 8-604 by adding a new subsection (d)(3) pertaining to requests for impleading the Subsequent Injury Fund in an appeal from a Workers' Compensation Commission, as follows:

Rule 8-604. DISPOSITION

(a) Generally

As to each party to an appeal, the Court shall dispose of an appeal in one of the following ways:

(1) dismiss the appeal pursuant to Rule 8-602;

(2) affirm the judgment;

(3) vacate or reverse the judgment;

(4) modify the judgment;

(5) remand the action to a lower court in accordance with section (d) of this Rule; or

(6) an appropriate combination of the above.

(b) Affirmance in Part and Reversal, Modification, or Remand in Part

If the Court concludes that error affects a severable part of the action, the Court, as to that severable part, may reverse or modify the judgment or remand the action to a lower court for further proceedings and, as to the other parts, affirm the judgment.

(1) Matters of Form

A judgment will not be reversed on grounds of form if the Court concludes that there is sufficient substance to enable the Court to proceed. For that purpose, the appellate court shall permit any entry to be made by either party during the pendency of the appeal that might have been made by that party in the lower court after verdict by the jury or decision by the court.

(2) Excessive Amount of Judgment

A judgment will not be reversed because it is for a larger amount than claimed in the complaint if the plaintiff files in the appellate court a release of the excess.

(3) Modified Judgment

For purposes of implementing subsections (1) and (2), the Court may modify the judgment.

(d) Remand

(1) Generally

If the Court concludes that the substantial merits of a case will not be determined by affirming, reversing or modifying the judgment, or that justice will be served by permitting further proceedings, the Court may remand the case to a lower court. In the order remanding a case, the appellate court shall state the purpose for the remand. The order of remand and the opinion upon which the order is based are conclusive as to the points decided. Upon remand, the lower court shall conduct any further proceedings necessary to determine the action in accordance with the opinion and order of the appellate court.

Committee note: This Rule is not intended to change existing case law regarding limited remands in criminal cases; see Gill v. State, 265 Md. 350 (1972); Wiener v. State, 290 Md. 425 (1981); Reid v. State, 305 Md. 9 (1985).

(2) Criminal Case

In a criminal case, if the appellate court reverses the judgment for error in the sentence or sentencing proceeding, the Court shall remand the case for resentencing.

(3) Request for Impleader of the Subsequent Injury Fund in an Appeal from a Workers' Compensation Commission Decision (A) Generally If a party files a request for impleader of the Subsequent Injury Fund before the record on appeal has been filed, the Court shall grant the request. If a party files a request for impleader after the record on appeal is filed, the Court shall determine whether there is good cause to grant the request. (B) Order Granting Request for Impleader If the Court grants a request for impleader, the Court shall suspend further proceedings and remand the case to the Workers' Compensation Commission for further proceedings. (C) Information To Be Provided to the Subsequent Injury Fund and Parties Within 10 days after the date of an order granting a request for impleader, the impleading party shall provide to the Subsequent Injury Fund and all other parties: (i) a copy of the original claim, any amendments, each issue previously filed, and any award or order entered by the Commission on the claim; (ii) identification, by claim number if available, of prior awards or settlements to the claimant for permanent disability made or approved by the Commission, by a comparable commission of another state as defined in Code, Labor and Employment Article, § 1-101; (iii) all relevant medical evidence relied on to implead the Subsequent Injury Fund; and (iv) a certification that a copy of the request for impleader and all required information and documents have been mailed to the Subsequent Injury Fund and all other parties. Cross reference: COMAR 14.09.01.13.

(e) Entry of Judgment

In reversing or modifying a judgment in whole or in part, the Court may enter an appropriate judgment directly or may order the lower court to do so.

Source: This Rule is derived as follows:

Section (a) is derived from former Rules 1070 and 870.

Section (b) is derived from former Rules 1072 and 872.

Section (c) is derived from former Rules 1073 and 873.

Section (d) is in part derived from former Rules 1071 and 871 and in part new.

Section (e) is derived from former Rules 1075 and 875.

MARYLAND RULES OF PROCEDURE TITLE 14 — SALES OF PROPERTY CHAPTER 200 — FORECLOSURE OF LIEN INSTRUMENTS

AMEND Rule 14-206 to conform subsection (b)(2) to recent legislation concerning the timing and content of the notice of sale sent to the record owner and to add a certain cross reference at the end of the Rule, as follows:

Rule 14-206. PROCEDURE PRIOR TO SALE

(a) Bond

Before making a sale of property to foreclose a lien, the person authorized to make the sale shall file a bond to the State of Maryland conditioned upon compliance with any court order that may be entered in relation to the sale of the property or distribution of the proceeds of the sale. Unless the court orders otherwise, the amount of the bond shall be the amount of the debt plus the estimated expenses of the proceeding. On application by a person having an interest in the property or by the person authorized to make the sale, the court may increase or decrease the amount of the bond pursuant to Rule 1-402 (d).

(b) Notice

(1) By Publication

After commencement of an action to foreclose a lien and before making a sale of the property subject to the lien, the person authorized to make the sale shall publish notice of the time, place, and terms of sale in a newspaper of general circulation in the county in which the action is pending. "Newspaper of general circulation" means a newspaper satisfying the criteria set forth in Code, Article 1, Section 28. A newspaper circulating to a substantial number of subscribers in a county and customarily containing legal notices with respect to property in the county shall be regarded as a newspaper of general circulation in the county, notwithstanding that (1) its readership is not uniform throughout the county, or (2) its content is not directed at all segments of the population. For the sale of an interest in real property, the notice shall be given at least once a week for three successive weeks, the first publication to be not less than 15 days prior to sale and the last publication to be not more than one week prior to sale. For the sale of personal property, the notice shall be given not less than five days nor more than 12 days before the sale.

(2) By Certified and First Class Mail

(A) Before making a sale of the property, the person authorized to make the sale shall send notice of the time, place, and terms of sale by certified mail and by first class mail to the last known address of (i) the debtor, (ii) the record owner of the property, and (iii) the holder of any subordinate interest in the property subject to the lien.

(B) The notice of the sale shall be sent to the record owner of the property no later than two days after the action to foreclose is docketed and shall include the notice required by Code, Real Property Article, § 7-105 (a). (C) The notice of the sale shall be sent not more than 30 days and not less than ten days before the date of the sale to all other such persons whose identity and address are actually known to the person authorized to make the sale or are reasonably ascertainable from a document recorded, indexed, and available for public inspection 30 days before the date of the sale.

(3) To Counties or Municipal Corporations

In addition to any other required notice, not less than 15 days prior to the sale of the property, the person authorized to make the sale shall send written notice to the county or municipal corporation where the property subject to the lien is located as to:

(A) the name, address, and telephone number of the person authorized to make the sale; and

(B) the time, place, and terms of sale.

(4) Other Notice

If the person authorized to make the sale receives actual notice at any time before the sale is held that there is a person holding a subordinate interest in the property and if the interest holder's identity and address are reasonably ascertainable, the person authorized to make the sale shall give notice of the time, place, and terms of sale to the interest holder as promptly as reasonably practicable in any manner, including by telephone or electronic transmission, that is reasonably calculated to apprise the interest holder of the sale. This notice need not be given to anyone to whom notice was sent pursuant to subsection (b)(2) of this Rule.

(5) Return Receipt or Affidavit

The person giving notice pursuant to subsections (b)(2), (b)(3), and (b)(4) of this Rule shall file in the proceedings an affidavit (A) that the person has complied with the provisions of those subsections or (B) that the identity or address of the debtor, record owner, or holder of a subordinate interest is not reasonably ascertainable. If the affidavit states that an identity or address is not reasonably ascertainable, the affidavit shall state in detail the reasonable, good faith efforts that were made to ascertain the identity or address. If notice was given pursuant to subsection (b)(4), the affidavit shall state the date, manner, and content of the notice given.

If the sale is postponed, notice of the new date of sale shall be published in accordance with subsection (b)(1) of this Rule. No new or additional notice under subsection (b)(2) or (b)(3) of this Rule need be given to any person to whom notice of the earlier date of sale was sent, but notice shall be sent to persons entitled to notice under subsections (b)(2)(B) and (4) of this Rule to whom notice of the earlier date of sale was not sent.

Cross reference: Regarding foreclosure consulting contracts, see Code, Real Property Article, §§ 7-301 through 7-321.

Source: This Rule is derived in part from former Rule W74 and is in part new.

MARYLAND RULES OF PROCEDURE TITLE 14 — SALES OF PROPERTY CHAPTER 500 — TAX SALES

AMEND Rule 14-503 to add a new subsection (c)(2) allowing posting of property by a private person, as follows:

Rule 14-503. PROCESS

(a) Notice to Defendants Whose Whereabouts are Known

Upon the filing of the complaint, the clerk shall issue a summons as in any other civil action. The summons, complaint, and exhibits, including the notice prescribed by Rule 14-502 (b) (3), shall be served in accordance with Rule 2-121 on each defendant named in the complaint whose whereabouts are known.

(b) Notice to Defendants Whose Whereabouts are Unknown, Unknown Owners, and Unnamed Interested Persons

When the complaint includes named defendants whose whereabouts are unknown, unknown owners, or unnamed persons having or claiming to have an interest in the property, the notice filed in accordance with Rule 14-502 (b)(3), after being issued and signed by the clerk, shall be served in accordance with Rule 2-122.

Upon the filing of the complaint, the plaintiff shall cause~~the sheriff to post a notice in a conspicuous place on the property. The content of the notice shall be as prescribed in Rule 14-502 (b)(3).~~ a notice containing the information required by Rule 14-503 (b)(3) to be posted in a conspicuous place on the property. The posting may be made either by the sheriff or by a competent private person, appointed by the plaintiff, who is 18 years of age or older, including an attorney of record, but not a party to the action. A private person who posts the notice shall file with the court an affidavit setting forth the name and address of the affiant, the caption of the case, the date and time of the posting, and a description of the location of the posting and shall attach a photograph of the location showing the posted notice.

(d) Notice to Collector

Upon the filing of the complaint, the plaintiff shall mail a copy of the complaint and exhibits to the collector of taxes in the county in which the property is located.

Cross reference: For due process requirements, see St. George Church v. Aggarwal, 326 Md. 90 (1992).

Source: This Rule is new. Section (a) is derived in part from Code, Tax-Property Article, § 14-839 (a). Section (b) is derived in part from Code, Tax-Property Article, § 14-840. Section (c) is new. Section (d) is derived from Code, Tax-Property Article, § 14-839 (c).

MARYLAND RULES OF PROCEDURE TITLE 15 — OTHER SPECIAL PROCEEDINGS CHAPTER 400 — HEALTH CLAIMS ARBITRATION

AMEND Rule 15-402 by modifying the definition of the term "Director" to comply with a statutory change, as follows:

Rule 15-402. DEFINITIONS

In these Rules the following definitions apply except as expressly otherwise provided or as necessary implication requires:

(a) Arbitration Panel

"Arbitration panel" means the arbitrators selected to determine a health care malpractice claim in accordance with Code, Courts Article, Title 3, Subtitle 2A.

(b) Award

"Award" means a final determination of a health care malpractice claim by an arbitration panel or by the panel chair. Cross reference: For the authority of the panel chair to rule on issues of law, see Code, Courts Article, § 3-2A-05 (a).

"Defendant" means the health care provider.

(d) Director

"Director" means the Director of the Health ~~Claims Arbitration~~ Care Alternative Dispute Resolution Office.

(e) Plaintiff

"Plaintiff" means the party making a claim against a health care provider.

Source: This Rule is new.

MARYLAND RULES OF PROCEDURE TITLE 15 — OTHER SPECIAL PROCEEDINGS CHAPTER 700 — MANDAMUS

AMEND Rule 15-701 to add an applicability section, to add a Committee note after section (b), and to delete current section (d), as follows:

Rule 15-701. MANDAMUS

(a) Applicability This Rule applies to actions for writs of mandamus other than administrative mandamus pursuant to Title 7, Chapter 400 of these Rules or mandamus in aid of appellate jurisdiction. ~~(a)~~ (b) Commencement of Action

An action for a writ of mandamus shall be commenced by the filing of a ~~verified~~ complaint, the form and contents of which shall comply with Rules 2-303 through 2-305. The plaintiff shall have the right to claim and prove damages, but a demand for general relief shall not be permitted.

Committee note: Because a mandamus action is similar to an ordinary civil proceeding, the discovery rules and the Rules in Title 5 apply. Code, Courts Article, § 3-8B-02 provides: "An action for a writ of mandamus shall be tried by a jury on request of either party." This has been judicially interpreted to apply to fact questions. See Cicala v. Disability Review Board for Prince George's County, 288 Md. 254 (1980).

~~(b)~~ (c) Defendant's Response

The defendant may respond to the complaint as provided in Rule 2-322 or Rule 2-323. An answer ~~shall be verified and~~ shall fully and specifically set forth all defenses upon which the defendant intends to rely~~, but the defendant shall not assert any defense that the defendant might have relied upon in an answer to a previous complaint for mandamus by the same plaintiff for the same relief.~~ ~~(c)~~ (d) Amendment

Amendment of pleadings shall be in accordance with Rule 2-341.

~~(d) Ex Parte Action on Complaint~~ ~~(1) Upon Default by Defendant~~ If the defendant is in default for failure to appear, the court, on motion of the plaintiff, shall hear the complaint ex parte. The plaintiff shall be required to introduce evidence in support of the complaint. If the court finds that the facts and law authorize the granting of the writ, it shall order the writ to issue without delay. Otherwise, the court shall dismiss the complaint. ~~(2) Upon Striking of Defendant's Answer~~ If the court grants a motion to strike an answer filed pursuant to Rule 2-322 (e) and the court does not permit the filing of an amended answer, the court may enter an order authorizing the writ to issue without requiring the plaintiff to introduce evidence in support of the complaint.

(e) Writ of Mandamus

(1) Contents and ~~Time for~~ Compliance

The writ shall be peremptory in form and shall require the defendant to perform immediately the duty sought to be enforced~~. For~~ , unless for good cause shown, ~~however~~, the court ~~may~~ extends the time for compliance. ~~It shall not be necessary for the writ to~~ The writ need not recite the reasons for its issuance.

(2) Certificate of Compliance

Immediately after compliance, the defendant shall file a certificate stating that all the acts commanded by the writ have been fully performed.

(3) Enforcement

Upon application by the plaintiff, the court may proceed under Rule 2-648 against a party who disobeys the writ.

(f) Adequate Remedy at Law

The existence of an adequate remedy in damages does not preclude the issuance of the writ unless the defendant establishes that property exists from which damages can be recovered or files a sufficient bond to cover all damages and costs.

Source: This Rule is derived from former Rules BE40, BE41, BE43, BE44, BE45, and BE46.

MARYLAND RULES OF PROCEDURE TITLE 15 — OTHER SPECIAL PROCEEDINGS CHAPTER 1200 — CORAM NOBIS TABLE OF CONTENTS

Rule 15-1201. APPLICABILITY

Rule 15-1202. PETITION

(a) Filing; Caption (b) Content (c) Attachments (d) Service (e) Amendment

Rule 15-1203. NOTICE OF PETITION

Rule 15-1204. RESPONSE

Rule 15-1205. VOLUNTARY DISMISSAL

Rule 15-1206. HEARING

(a) Generally (b) Notice to Victims

Rule 15-1207. STATEMENT AND ORDER OF COURT

(a) Statement (b) Order of Court (c) Copy to the Parties (d) Finality

MARYLAND RULES OF PROCEDURE TITLE 15 — OTHER SPECIAL PROCEEDINGS CHAPTER 1200 — CORAM NOBIS

ADD new Rule 15-1201, as follows:

Rule 15-1201. APPLICABILITY

The Rules in this Chapter govern proceedings for a writ of coram nobis as to a prior judgment in a criminal action.

Committee note: The Rules in this Chapter are not intended to apply to proceedings for a writ of coram nobis as to judgments in civil actions.

Source: This Rule is new.

MARYLAND RULES OF PROCEDURE TITLE 15 — OTHER SPECIAL PROCEEDINGS CHAPTER 1200 — CORAM NOBIS

ADD new Rule 15-1202, as follows:

Rule 15-1202. PETITION

(a) Filing; Caption

An action for a writ of error coram nobis is commenced by the filing of a petition in the court where the conviction took place. The caption of the petition shall state the case number of the criminal action to which the petition relates. If practicable, the petition shall be filed in the criminal action.

Cross reference: For the authority of the District Court to issue a writ of error coram nobis, see Code, Courts Article, § 1-609. See Rule 1-301 (a) for captioning and titling requirements of court papers.

(b) Content

(1) The petition shall include:

(A) the identity of the petitioner as the person subject to the judgment and sentence;

(B) the place and date of trial, the offense for which the petitioner was convicted, and the sentence imposed;

(C) a statement of all previous proceedings, including appeals, motions for new trial, post conviction petitions, and previous petitions for writ of error coram nobis, and the results of those proceedings;

(D) the facts that would have resulted in the entry of a different judgment and the allegations of error upon which the petition is based;

(E) a statement that the allegations of error have not been waived;

(F) the significant collateral consequences that resulted from the challenged conviction;

(G) the unavailability of appeal, post conviction relief, or other remedies; and

(H) a demand for relief.

(2) The petition may include a concise argument with citation to relevant authority.

The petitioner shall attach to the petition all relevant portions of the transcript or explain why the petitioner is unable to do so.

(d) Service

The petitioner shall serve a copy of the petition and any attachments on the State's Attorney pursuant to Rule 1-321 (a).

(e) Amendment

Amendment of the petition shall be freely allowed when justice so permits.

Source: This Rule is new.

MARYLAND RULES OF PROCEDURE TITLE 15 — OTHER SPECIAL PROCEEDINGS CHAPTER 1200 — CORAM NOBIS

ADD new Rule 15-1203, as follows:

Rule 15-1203. NOTICE OF PETITION

Upon the filing of a petition for a writ of error coram nobis, the clerk promptly shall notify the State's Attorney that the petition has been filed and the case number of the criminal action to which the petition relates.

Source: This Rule is new.

MARYLAND RULES OF PROCEDURE TITLE 15 — OTHER SPECIAL PROCEEDINGS CHAPTER 1200 — CORAM NOBIS

ADD new Rule 15-1204, as follows:

Rule 15-1204. RESPONSE

The State's Attorney shall file a response to the petition within 30 days after the clerk gives notice of the filing, or within such other time as the court may order.

Source: This Rule is new.

MARYLAND RULES OF PROCEDURE TITLE 15 — OTHER SPECIAL PROCEEDINGS CHAPTER 1200 — CORAM NOBIS

ADD new Rule 15-1205, as follows:

Rule 15-1205. VOLUNTARY DISMISSAL

Voluntary dismissal of a petition is governed by Rules 2-506 and 3-506.

Source: This Rule is new.

MARYLAND RULES OF PROCEDURE TITLE 15 — OTHER SPECIAL PROCEEDINGS CHAPTER 1200 — CORAM NOBIS

ADD new Rule 15-1206, as follows:

Rule 15-1206. HEARING

(a) Generally

The court, in its discretion, may hold a hearing on the petition. The court may deny the petition without a hearing but may grant the petition only if a hearing is held. The court may permit evidence to be presented by affidavit, deposition, oral testimony, or any other manner that the court finds convenient and just. In the interest of justice, the court may decline to require strict application of the Rules in Title 5, except those relating to competency of witnesses.

(b) Notice to Victims

The State's Attorney shall give notice to each victim and victim's representative who has filed a Crime Victim Notification Request form pursuant to Code, Criminal Procedure Article, § 11-104 or who has submitted a written request to the State's Attorney to be notified of subsequent proceedings as provided under Code, Criminal Procedure Article, § 11-503. The notice shall state that (1) a petition for a writ of error coram nobis has been filed; (2) the petition has been denied without a hearing or the date, time, and location of the hearing; and (3) each victim or victim's representative may attend any hearing and request the opportunity to be heard. The court may allow the testimony of a victim or victim's representative if relevant to an issue before the court.

Source: This Rule is new.

MARYLAND RULES OF PROCEDURE TITLE 15 — OTHER SPECIAL PROCEEDINGS CHAPTER 1200 — CORAM NOBIS

ADD new Rule 15-1207, as follows:

Rule 15-1207. STATEMENT AND ORDER OF COURT

(a) Statement

The judge shall prepare and file or dictate into the record a statement setting forth separately each ground on which the petition is based, the federal and state rights involved, the court's ruling with respect to each ground, and the reasons for the ruling.

(b) Order of Court

The statement shall include or be accompanied by an order granting or denying relief. If the order is in favor of the petitioner, the court may provide for rearraignment, retrial, custody, bail, discharge, correction of sentence, or other matters that may be necessary and proper.

A copy of the order shall be filed promptly with the clerk and sent to the petitioner, petitioner's counsel, and the State's Attorney.

(d) Finality

The order constitutes a final judgment when entered by the clerk.

Committee note: An appeal from a District Court judgment under this Rule proceeds in accordance with the Rules in Title 7, Chapter 100 applicable in civil actions. An appeal from a circuit court judgment under this Rule proceeds in accordance with the Rules in Title 8.

Cross reference: See Skok v. State, 361 Md. 52 (2000).

Source: This Rule is new.

MARYLAND RULES OF PROCEDURE TITLE 16 — COURTS, JUDGES, AND ATTORNEYS CHAPTER 800 — MISCELLANEOUS

AMEND Rule 16-814 to add to the Terminology section a sentence concerning boldface type, as follows:

Rule 16-814. MARYLAND CODE OF CONDUCT FOR JUDICIAL APPOINTEES

. . .

Terminology

Terms explained below are noted in boldface type in the Canons and Comments where they appear.

In this Code the following definitions apply except as expressly otherwise provided or as necessary implication requires:

(a) Fiduciary

" Fiduciary" includes administrator, attorney-in-fact by power of attorney, executor, guardian, personal representative, and trustee.

Cross reference: See Canons 3D (1)(c) and (2) and 4E. For a definition of "guardian," see Rule 1-202 (j).

. . .

MARYLAND RULES OF PROCEDURE TITLE 17 — ALTERNATIVE DISPUTE RESOLUTION CHAPTER 100 — PROCEEDINGS IN CIRCUIT COURT

AMEND Rule 17-101 to exclude health care malpractice claims from the applicability of the Rules in Title 17 with the exception of Rule 17-104 and to add a certain Committee note after section (a), as follows:

Rule 17-101. APPLICABILITY

(a) Generally

The rules in this Chapter apply ~~only~~ to all civil actions in a circuit court except (1) they ~~. The rules in this Chapter~~ do not apply to actions or orders to enforce a contractual agreement to submit a dispute to alternative dispute resolutionand (2) other than Rule 17-104, they do not apply to health care malpractice claims. Committee note: Alternative dispute resolution proceedings in a health care malpractice claim are governed by Code, Courts Article, § 3-2A-06C.

(b) Rules Governing Qualifications and Selection

The rules governing the qualifications and selection of a person designated to conduct court-ordered alternative dispute resolution proceedings apply only to a person designated by the court in the absence of an agreement by the parties. They do not apply to a master, examiner, or auditor appointed under Rules 2-541, 2-542, or 2-543.

Source: This Rule is new.

MARYLAND RULES OF PROCEDURE TITLE 17 — ALTERNATIVE DISPUTE RESOLUTION CHAPTER 100 — PROCEEDINGS IN CIRCUIT COURT

AMEND Rule 17-104 by deleting the phrase "on a non-paid basis" from section (c), by adding a new section (e) pertaining to qualifications of mediators of health care malpractice claims, and by adding a certain cross reference, as follows:

Rule 17-104. QUALIFICATIONS AND SELECTION OF MEDIATORS

(a) Qualifications in General

To be designated by the court as a mediator, other than by agreement of the parties, a person must:

(1) unless waived by the court, be at least 21 years old and have at least a bachelor's degree from an accredited college or university;

Committee note: This subsection permits a waiver because the quality of a mediator's skill is not necessarily measured by age or formal education.

(2) have completed at least 40 hours of mediation training in a program meeting the requirements of Rule 17-106;

(3) complete in every two-year period eight hours of continuing mediation-related education in one or more of the topics set forth in Rule 17-106;

(4) abide by any standards adopted by the Court of Appeals;

(5) submit to periodic monitoring of court-ordered mediations by a qualified mediator designated by the county administrative judge; and

(6) comply with procedures and requirements prescribed in the court's case management plan filed under Rule 16-202 b. relating to diligence, quality assurance, and a willingness to accept a reasonable number of referrals on a reduced-fee or pro bono basis upon request by the court.

(b) Additional Qualifications — Child Access Disputes

To be designated by the court as a mediator with respect to issues concerning child access, the person must:

(1) have the qualifications prescribed in section (a) of this Rule;

(2) have completed at least 20 hours of training in a family mediation training program meeting the requirements of Rule 17-106; and

(3) have observed or co-mediated at least eight hours of child access mediation sessions conducted by persons approved by the county administrative judge, in addition to any observations during the training program.

To be designated by the court as a mediator of Business and Technology Program cases, other than by agreement of the parties, the person must:

(1) have the qualifications prescribed in section (a) of this Rule;

(2) within the two-year period preceding application for approval pursuant to Rule 17-107, have completed as a mediator at least five non-domestic circuit court mediations or five non-domestic non-circuit court mediations of comparable complexity (A) at least two of which are among the types of cases that are assigned to the Business and Technology Case Management Program or (B) have co-mediated~~, on a non-paid basis~~, an additional two cases from the Business and Technology Case Management Program with a mediator already approved to mediate these cases;

(3) agree to serve as co-mediator with at least two mediators each year who seek to meet the requirements of subsection (c)(2)(B) of this Rule; and

(4) agree to complete any continuing education training required by the Circuit Administrative Judge or that judge's designee.

(d) Additional Qualifications — Marital Property Issues

To be designated by the court as a mediator in divorce cases with marital property issues, the person must:

(1) have the qualifications prescribed in section (a) of this Rule;

(2) have completed at least 20 hours of skill-based training in mediation of marital property issues; and

(3) have observed or co-mediated at least eight hours of divorce mediation sessions involving marital property issues conducted by persons approved by the county administrative judge, in addition to any observations during the training program.

(e) Additional Qualifications — Health Care Malpractice Claims To be designated by the court as a mediator of health care malpractice claims, other than by agreement of the parties, the person must: (1) have the qualifications prescribed in section (a) of this Rule; (2) have completed as a mediator at least five non-domestic circuit court mediations or five non-domestic non-circuit court mediations of comparable complexity; (3) be knowledgeable about health care malpractice claims because of experience, training, or education; and (4) agree to complete any continuing education training required by the court. Cross reference: Code, Courts Article, § 3-2A-06C (c).

Source: This Rule is new.

MARYLAND RULES OF PROCEDURE TITLE 17 — ALTERNATIVE DISPUTE RESOLUTION CHAPTER 100 — PROCEEDINGS IN CIRCUIT COURT

AMEND Rule 17-109 to permit a certain disclosure pertaining to certain allegations of fraud, duress, or misrepresentation, as follows:

Rule 17-109. MEDIATION CONFIDENTIALITY

(a) Mediator

Except as provided in sections (c) and (d) of this Rule, a mediator and any person present or otherwise participating in the mediation at the request of the mediator shall maintain the confidentiality of all mediation communications and may not disclose or be compelled to disclose mediation communications in any judicial, administrative, or other proceeding.

(b) Parties

Subject to the provisions of sections (c) and (d) of this Rule, (1) the parties may enter into a written agreement to maintain the confidentiality of all mediation communications and to require any person present or otherwise participating in the mediation at the request of a party to maintain the confidentiality of mediation communications and (2) the parties and any person present or otherwise participating in the mediation at the request of a party may not disclose or be compelled to disclose mediation communications in any judicial, administrative, or other proceeding.

A document signed by the parties that reduces to writing an agreement reached by the parties as a result of mediation is not confidential, unless the parties agree in writing otherwise. Cross reference: See Rule 9-205 (d) concerning the submission of a memorandum of the points of agreement to the court in a child access case.

(d) Permitted Disclosures

In addition to any disclosures required by law, a mediator and a party may disclose or report mediation communications to a potential victim or to the appropriate authorities to the extent that they believe necessary to help:

(1) prevent serious bodily harm or death, or

(2) assert or defend against allegations of mediator misconduct or negligence. , or (3) assert or defend against a claim or defense that because of fraud, duress, or misrepresentation a contract arising out of a mediation should be rescinded.

Cross reference: For the legal requirement to report suspected acts of child abuse, see Code, Family Law Article, § 5-705.

(e) Discovery; Admissibility of Information

Mediation communications that are confidential under this Rule are privileged and not subject to discovery, but information otherwise admissible or subject to discovery does not become inadmissible or protected from disclosure solely by reason of its use in mediation.

Committee note: A neutral expert appointed pursuant to Rule 17-105.1 is subject to the provisions of sections (a), (b), and (e) of this Rule.

Source: This Rule is new.

Rules Order

Opinion

MARYLAND RULES OF PROCEDURE TITLE 1 — GENERAL PROVISIONS CHAPTER 300 — GENERAL PROVISIONS

MARYLAND RULES OF PROCEDURE TITLE 2 — CIVIL PROCEDURE — CIRCUIT COURT CHAPTER 100 — COMMENCEMENT OF ACTION AND PROCESS

MARYLAND RULES OF PROCEDURE TITLE 2 — CIVIL PROCEDURE — CIRCUIT COURT CHAPTER 200 — PARTIES

MARYLAND RULES OF PROCEDURE TITLE 2 — CIVIL PROCEDURE — CIRCUIT COURT CHAPTER 300 — PLEADINGS AND MOTIONS

MARYLAND RULES OF PROCEDURE TITLE 2 — CIVIL PROCEDURE — CIRCUIT COURT CHAPTER 300 — PLEADINGS AND MOTIONS

MARYLAND RULES OF PROCEDURE TITLE 2 — CIVIL PROCEDURE — CIRCUIT COURT CHAPTER 300 — PLEADINGS AND MOTIONS

MARYLAND RULES OF PROCEDURE TITLE 2 — CIVIL PROCEDURE — CIRCUIT COURT CHAPTER 500 — TRIAL

MARYLAND RULES OF PROCEDURE TITLE 2 — CIVIL PROCEDURE — CIRCUIT COURT CHAPTER 600 — JUDGMENT

MARYLAND RULES OF PROCEDURE TITLE 3 — CIVIL PROCEDURE — DISTRICT COURT CHAPTER 100 — COMMENCEMENT OF ACTION AND PROCESS

MARYLAND RULES OF PROCEDURE TITLE 3 — CIVIL PROCEDURE — DISTRICT COURT CHAPTER 200 — PARTIES

MARYLAND RULES OF PROCEDURE TITLE 3 — CIVIL PROCEDURE — DISTRICT COURT CHAPTER 500 — TRIAL

MARYLAND RULES OF PROCEDURE TITLE 4 — CRIMINAL CAUSES CHAPTER 200 — PRETRIAL PROCEDURES

MARYLAND RULES OF PROCEDURE TITLE 4 — CRIMINAL CAUSES CHAPTER 300 — TRIAL AND SENTENCING

MARYLAND RULES OF PROCEDURE TITLE 4 — CRIMINAL CAUSES CHAPTER 300 — TRIAL AND SENTENCING

MARYLAND RULES OF PROCEDURE TITLE 4 — CRIMINAL CAUSES CHAPTER 300 — TRIAL AND SENTENCING

MARYLAND RULES OF PROCEDURE TITLE 4 — CRIMINAL CAUSES CHAPTER 400 — POST CONVICTION PROCEDURE

MARYLAND RULES OF PROCEDURE TITLE 4 — CRIMINAL CAUSES CHAPTER 500 — EXPUNGEMENT OF RECORDS

MARYLAND RULES OF PROCEDURE TITLE 4 — CRIMINAL CAUSES CHAPTER 500 — EXPUNGEMENT OF RECORDS

MARYLAND RULES OF PROCEDURE TITLE 4 — CRIMINAL CAUSES CHAPTER 500 — EXPUNGEMENT OF RECORDS

MARYLAND RULES OF PROCEDURE TITLE 4 — CRIMINAL CAUSES EXPUNGEMENT FORMS

MARYLAND RULES OF PROCEDURE TITLE 4 — CRIMINAL CAUSES FORMS FOR EXPUNGEMENT OF RECORDS

MARYLAND RULES OF PROCEDURE TITLE 5 — EVIDENCE CHAPTER 100 — GENERAL PROVISIONS

MARYLAND RULES OF PROCEDURE TITLE 5 — EVIDENCE CHAPTER 700 — OPINIONS AND EXPERT TESTIMONY

MARYLAND RULES OF PROCEDURE TITLE 5 — EVIDENCE CHAPTER 800 — HEARSAY

MARYLAND RULES OF PROCEDURE TITLE 5 — EVIDENCE CHAPTER 800 — HEARSAY

MARYLAND RULES OF PROCEDURE TITLE 5 — EVIDENCE CHAPTER 800 — HEARSAY

MARYLAND RULES OF PROCEDURE TITLE 5 — EVIDENCE CHAPTER 900 — AUTHENTICATION AND IDENTIFICATION

Certification of Custodian of Records or Other ____ Qualified Individual

MARYLAND RULES OF PROCEDURE TITLE 6 — SETTLEMENT OF DECEDENTS' ESTATES CHAPTER 400 — ADMINISTRATION OF ESTATES

[CAPTION] PETITION AND ORDER FOR FUNERAL EXPENSES

Certificate of Service

ORDER

MARYLAND RULES OF PROCEDURE TITLE 7 — APPELLATE AND OTHER JUDICIAL REVIEW IN CIRCUIT COURT CHAPTER 300 — CERTIORARI

MARYLAND RULES OF PROCEDURE TITLE 7 — APPELLATE AND OTHER JUDICIAL REVIEW IN CIRCUIT COURT CHAPTER 400 — ADMINISTRATIVE MANDAMUS TABLE OF CONTENTS

MARYLAND RULES OF PROCEDURE TITLE 7 — APPELLATE AND OTHER JUDICIAL REVIEW IN CIRCUIT COURT CHAPTER 400 — ADMINISTRATIVE MANDAMUS

MARYLAND RULES OF PROCEDURE TITLE 7 — APPELLATE AND OTHER JUDICIAL REVIEW IN CIRCUIT COURT CHAPTER 400 — ADMINISTRATIVE MANDAMUS

MARYLAND RULES OF PROCEDURE TITLE 7 — APPELLATE AND OTHER JUDICIAL REVIEW IN CIRCUIT COURT CHAPTER 400 — ADMINISTRATIVE MANDAMUS

MARYLAND RULES OF PROCEDURE TITLE 8 — APPELLATE REVIEW IN THE COURT OF APPEALS AND COURT OF SPECIAL APPEALS CHAPTER 400 — PRELIMINARY PROCEDURES

MARYLAND RULES OF PROCEDURE TITLE 8 — APPELLATE REVIEW IN THE COURT OF APPEALS AND COURT OF SPECIAL APPEALS CHAPTER 400 — PRELIMINARY PROCEDURES

MARYLAND RULES OF PROCEDURE TITLE 8 — APPELLATE REVIEW IN THE COURT OF APPEALS AND COURT OF SPECIAL APPEALS CHAPTER 600 — DISPOSITION

MARYLAND RULES OF PROCEDURE TITLE 14 — SALES OF PROPERTY CHAPTER 200 — FORECLOSURE OF LIEN INSTRUMENTS

MARYLAND RULES OF PROCEDURE TITLE 14 — SALES OF PROPERTY CHAPTER 500 — TAX SALES

MARYLAND RULES OF PROCEDURE TITLE 15 — OTHER SPECIAL PROCEEDINGS CHAPTER 400 — HEALTH CLAIMS ARBITRATION

MARYLAND RULES OF PROCEDURE TITLE 15 — OTHER SPECIAL PROCEEDINGS CHAPTER 700 — MANDAMUS

MARYLAND RULES OF PROCEDURE TITLE 15 — OTHER SPECIAL PROCEEDINGS CHAPTER 1200 — CORAM NOBIS TABLE OF CONTENTS

MARYLAND RULES OF PROCEDURE TITLE 15 — OTHER SPECIAL PROCEEDINGS CHAPTER 1200 — CORAM NOBIS

MARYLAND RULES OF PROCEDURE TITLE 15 — OTHER SPECIAL PROCEEDINGS CHAPTER 1200 — CORAM NOBIS

MARYLAND RULES OF PROCEDURE TITLE 15 — OTHER SPECIAL PROCEEDINGS CHAPTER 1200 — CORAM NOBIS

MARYLAND RULES OF PROCEDURE TITLE 15 — OTHER SPECIAL PROCEEDINGS CHAPTER 1200 — CORAM NOBIS

MARYLAND RULES OF PROCEDURE TITLE 15 — OTHER SPECIAL PROCEEDINGS CHAPTER 1200 — CORAM NOBIS

MARYLAND RULES OF PROCEDURE TITLE 15 — OTHER SPECIAL PROCEEDINGS CHAPTER 1200 — CORAM NOBIS

MARYLAND RULES OF PROCEDURE TITLE 15 — OTHER SPECIAL PROCEEDINGS CHAPTER 1200 — CORAM NOBIS

MARYLAND RULES OF PROCEDURE TITLE 16 — COURTS, JUDGES, AND ATTORNEYS CHAPTER 800 — MISCELLANEOUS

Terminology

MARYLAND RULES OF PROCEDURE TITLE 17 — ALTERNATIVE DISPUTE RESOLUTION CHAPTER 100 — PROCEEDINGS IN CIRCUIT COURT

MARYLAND RULES OF PROCEDURE TITLE 17 — ALTERNATIVE DISPUTE RESOLUTION CHAPTER 100 — PROCEEDINGS IN CIRCUIT COURT

MARYLAND RULES OF PROCEDURE TITLE 17 — ALTERNATIVE DISPUTE RESOLUTION CHAPTER 100 — PROCEEDINGS IN CIRCUIT COURT

Rules Order

Rules Order

Case Details

CitationsCopy Citation

Citations