Tolling the Statute of Limitations During the COVID-19 Pandemic: Did Former Chief Judge Barbera Overstep Her Authority or Soundly Act to Preserve the Courts’ Function?

*Sara Braniecki

I. Introduction

With COVID-19 uncertainty and safety concerns looming overhead, all Maryland courts closed their doors on March 17, 2020, and were limited to emergency operations.[1] On April 3, 2020, former Maryland Court of Appeals Chief Judge Mary Ellen Barbera signed an emergency administrative order: the “Administrative Order on Tolling or Suspension of Statutes of Limitations and Statutory and Rules Deadlines Related to the Initiation of Matters and Certain Statutory and Rules Deadlines in Pending Matters” (the “Order”).[2] The Order went into effect that day, suspending the statute of limitations for matters filed in Maryland state courts during the courts’ COVID-19 related closures.[3]

When Chief Judge Barbera signed the Order, it did not explicitly state how long the statute of limitations would toll. Instead, Chief Judge Barbera crafted the Order to allow the suspension to last for however long the courts were closed to the public.[4] This seemed reasonable, given the novelty of the COVID-19 pandemic, as no one knew exactly what to expect for the upcoming days, months, or even years.

More than a year later, however, a litigant challenged the constitutionality of Chief Judge Barbera’s Order due to the impact it had on his case.[5] Upon certification from the federal district court, the Maryland Court of Appeals will determine if the Order is constitutional under Maryland’s Constitution.[6] The court’s decision will have a significant impact on both decided and pending cases.

II. The April 8, 2020, Order

The Order tolled “all statutory and rules deadlines related to the initiation of matters required to be filed in a Maryland state court, including statutes of limitations . . . .”[7] Additionally, it tolled “all statutes and rules deadlines to hear pending matters . . . .”[8] Per the Order, these suspensions were made retroactive to March 16, 2020, and continued for the number of days that the courts were closed to the public due to the COVID-19 emergency.[9] Ultimately, from March 16, 2020, through July 20, 2020, the courts were closed to the public; thus, the statute of limitations for filing claims in Maryland state courts and deadlines relating to pending claims were tolled for just over four months.

III. The Pending Challenge to the Administrative Order

In Liberty Mutual Insurance Co. v. Murphy, a breach of contract case, the defendants challenged the constitutionality of the Order after the case ended up in federal court.[10] The plaintiff, an insurance company, sought to recover for claims paid on behalf of defendants.[11] Defendants alleged that, if not for the Order, then the federal court would have “lack[ed] . . . jurisdiction, because the amount in controversy fail[ed] to meet the $75,000 threshold for federal diversity jurisdiction.”[12] Without the Order, the amount in controversy would not have amounted to $75,000 before the statute of limitations would have run on the plaintiff’s claim, leaving the federal court without jurisdiction to hear it.[13]

Defendants argued that Chief Judge Barbera did not have the authority to issue the Order.[14] Chief Judge Barbera grounded her authority to suspend the statute of limitations in Maryland’s Constitution, which allows the Court of Appeals to establish rules and regulations for the practice of law in Maryland state courts.[15] On March 16, 2020, the Court of Appeals’ Standing Committee on Rules of Practice and Procedure adopted new rules that allowed the Chief Judge of the Court of Appeals to modify deadlines, such as the statute of limitations, during emergencies, like the COVID-19 pandemic.[16]

Furthermore, defendants contended that only the General Assembly, not the Chief Judge, has the authority to alter the statute of limitations, preserving an underlying theme of the Maryland Constitution: separation of powers among the legislative, judicial, and executive branches.[17] Specifically, defendants argued, “[i]t is self-evident that the Judiciary cannot cloak unconstitutional conduct inside the guise of its rule-making authority. To suspend, toll or otherwise abrogate the statute of limitations during the COVID-19 pandemic was squarely [within] the province of the legislature.”[18]

Although the case was brought in federal court, the federal court called on the Court of Appeals to determine the constitutionality of Chief Judge Barbera’s Order.[19] The federal court’s deference is rooted in federalism. The federal court referenced the “overwhelming federalism concerns implicated by a federal district court potentially concluding, on entirely state law grounds, that Chief Judge Barbera did not have the authority to toll the statute of limitations in the fashion she did.”[20] Furthermore, the federal court stated that “[t]he Court of Appeals is indisputably better positioned to interpret Maryland’s Constitution on this question and is better equipped to analyze the interplay between the state’s laws and the state court’s administrative and procedural authority given the far-reaching consequences for the Maryland court system.”[21]

IV. The Impact Will Not Be Limited to One Case

This issue was argued before the Court of Appeals in December 2021.[22] As noted by the federal court, if the Court of Appeals determines that the Order was in fact unconstitutional, the effects will spread far beyond Liberty Mutual Insurance Co. v. Murphy.[23] Countless cases in Maryland are proceeding due to the Order’s tolling of the statute of limitations. If the Court of Appeals finds the Order unconstitutional, “[s]uch a decision would dramatically alter Maryland’s legal landscape, possibly upending myriad cases in Maryland state court that have up to this point been allowed to proceed due to the tolled limitations period.”[24] Although Chief Judge Barbera attempted to preserve the courts’ function during the COVID-19 pandemic, it is evident that, if the Court of Appeals finds the Order unconstitutional, the court will have to decide how to handle the cases that relied upon the suspension of the statute of limitations.

*Sara Braniecki is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review and a distinguished scholar in the Royal Graham Shannonhouse III Honor Society. She also serves as a teaching assistant for Professor Sloan and a fellow in the school’s Legal Writing Center. Sara worked as a summer associate at Baker, Donelson, Bearman, Caldwell & Berkowitz P.C. this past summer and looks forward to being a summer associate at Hogan Lovells LLP during the upcoming summer of 2022. Prior to law school, Sara taught middle school science and coached varsity lacrosse.


[1] See Administrative Order on Statewide Judiciary Restricted Operations Due to the COVID-19 Emergency (Mar. 16, 2020), https://mdcourts.gov/sites/default/files/admin-orders/20200316restrictedoperationsduetocovid19.pdf.

[2] See Administrative Order on Emergency Tolling or Suspension of Statutes of Limitations and Statutory and Rules Deadlines Related to the Initiation of Matters and Certain Statutory and Rules Deadlines in Pending Matters (Apr. 3, 2020), https://mdcourts.gov/sites/default/files/admin-orders/20200403emergencytollingorsuspensionofstatutesoflimitationsetc.pdf [hereinafter Apr. 3 Administrative Order]. Chief Judge Barbera subsequently amended the Orders to extend the tolling of the statutes of limitations through July 20, 2020, when the Maryland courts reopened to the public. See Amended Administrative Order on Expanding Statewide Judiciary Restricted Operations Due to the COVID-19 Emergency (Apr. 8, 2020), https://mdcourts.gov/sites/default/files/admin-orders/20200408expandingstatewidejudiciaryrestrictedoperationsamended.pdf; see also Amended Administrative Order Further Clarifying the Emergency Tolling or Suspension of Statutes of Limitations and Statutory and Rules Deadlines Related to the Initiation of Matters and Certain Statutory and Rules Deadlines in Pending Matters (May 4, 2020), https://mdcourts.gov/sites/default/files/admin-orders/20200504furtherclarifyingstatutesoflimitations.pdf.

[3] See Apr. 3 Administrative Order, supra note 2.

[4] See id.

[5] Liberty Mut. Ins. Co. v. Murphy, No. 1:20-CV-01961-SAG, 2021 WL 2784264, at *1 (D. Md. July 2, 2021).

[6] Id. at *5.

[7] Apr. 3 Administrative Order, supra note 2.

[8] Id.

[9] See id.

[10] See Murphy, 2021 WL 2784264, at *1.

[11] See id.

[12] Id.; Steve Lash, Barbera’s Statute-of-Limitations Suspension Was Unconstitutional, Attorney Says, Daily Rec. (Sept. 21, 2021), https://thedailyrecord.com/2021/09/21/barberas-statute-of-limitations-suspension-was-unconstitutional-attorney-says/.

[13] See Murphy, 2021 WL 2784264, at *1.

[14] See Lash, supra note 12.

[15] See Md. Const. art. IV, § 18.

[16] See Md. R. 16-1003.

[17] Lash, supra note 12.

[18] See id.

[19] See Liberty Mut. Ins. Co. v. Murphy, No. 1:20-CV-01961-SAG, 2021 WL 2784264, at *1, *5 (D. Md. July 2, 2021).

[20] Id.

[21] Id.

[22] See Court of Appeals Argument Schedule – December, 2021, Md. Courts, https://www.courts.state.md.us/coappeals/schedule/202112schedule (last visited Feb. 7, 2022).

[23] See Murphy, 2021 WL 2784264 at *5.

[24] Steve Lash, Challenge to Statute-Of-Limitations Suspension Appears Doomed at Md. High Court, Daily Rec. (Dec. 3, 2021), https://thedailyrecord.com/2021/12/03/challenge-to-statute-of-limitations-suspension-appears-doomed-at-md-high-court/.

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