March 19, 2021
The Honorable Mary Ellen Barbera, Chief Judge
Court of Appeals of Maryland
361 Rowe Boulevard
Annapolis, Maryland 21401
The Honorable John P. Morrissey, Chief Judge
District Court of Maryland
Maryland Judicial Center
187 Harry S. Truman Parkway
Annapolis, Maryland 21401
Re: Clearing a Backlog of Failure to Pay Rent Cases
Dear Chief Judge Barbera and Chief Judge Morrissey:
We are writing to make you aware of some jurisdictions’ unreasonable treatment of the extraordinary backlog of Failure to Pay Rent cases. The problem primarily concerns Montgomery County, but other jurisdictions are likely to adopt similar practices to Montgomery County in dealing with their backlog. We propose a simple solution that creates automatic, “on-the-record” dismissal for very old summonses filed unless the plaintiff takes one minor step to preserve it. Since the backlog consists primarily of cases filed before December 1, 2020, the approximate date that the courts closed again to most landlord-tenant actions, that is the relevant date for purposes of defining what a “very old” case is. We urge you to adopt this proposal statewide.
The Problem: An Unreasonable Schedule to Clear Substantial Backlogs In order to get through more than 14,000 backlogged Failure to Pay Rent (FTPR) cases in Montgomery County landlord-tenant court, the administrative judges have proposed opening the Silver Spring courthouse to a “rocket docket”—three courtrooms, four dockets per day, sixty cases per docket, five days a week, for more than a month. This equates to 3,600 cases per week, or 720 cases per day. This does not include all the cases that will continue in the Rockville courthouse for Tenant Holding Over, Breach of Lease, and other landlord-tenant actions. And it represents a 2500% increase in the number of FTPR cases typically heard in a given week. This rocket docket is scheduled to begin April 5, 2021. We have recently received a docket grid confirming that the County is proceeding with this plan.
This volume of cases imposes an unreasonable burden on members of the bar representing both landlords and tenants, and does not serve the interests of justice. Lawyers cannot be expected to spend a full day, five days a week, litigating cases without attending to their other duties. They cannot attend hearings in both Silver Spring and Rockville courthouses at the same time. They cannot provide competent representation to clients when their workload balloons to four or five times their normal level for an extended period of time.
On the tenants’ attorneys’ side, this proposal has meant mobilizing nearly all of the attorneys at nonprofit organizations providing legal services in Montgomery County to try and cover just this backlog alone. Maryland Legal Aid is more than doubling their presence in landlord-tenant court, and both the Homeless Persons Representation Project (HPRP) and CASA are using all of their available attorney resources to try and cover these cases.
On the landlords’ attorneys’ side, one firm typically represents a given landlord for all of its eviction cases, but that firm’s attorneys appear in various courthouses across Maryland as well as Virginia and the District of Columbia. Thus, the five-days-a-week scheduling mandate will mean that attorneys will not be able to represent landlords in these cases, or will have to propose rescheduling, which threatens to make the proposed schedule ineffective in the first place. Alternatively, they will have to represent their client on hundreds of cases in a single day.
Most of these 14,000 cases will be moot or dismissed anyway. Landlords of tenants who still owe money will be almost certain to refile soon if they haven’t already, given that the courts have returned to Phase IV. Landlords are almost certain to refile because, for many months, they have been unable to proceed on eviction cases for a tenant’s failure to pay rent between December 2020 and March 2021. If rent from prior to December is still owed, a landlord’s refiling will likely also include a demand for such rent. That fact would make the vast majority of cases filed prior to December moot as duplicative. If rent from prior to December is not owed, because the tenant has paid something towards their rental debt, then these cases are also moot. And if the tenant has vacated the unit, then the case should be dismissed for a third reason. Thus, almost all of these cases should be dismissed even if a hearing is held. In light of this fact, the reasonable solution is not to hold individual hearings on every individual case, as Montgomery County plans to do in rushed form, but to flip the default to automatic dismissal unless the landlord states formally that they wish to proceed.
The proposed 3,600-cases-per-week schedule is also an enormous administrative burden to the courts. Hearing each case individually threatens to consume court staff with long days and hundreds of cases in a short timeframe. It is not clear to us how quadrupling their work for a month will do more than simply clog the pipeline for future cases. Moreover, justice cannot be done in two minutes, yet that is the amount of time each case will have in each courtroom, if proposals like these are to be adopted. When faced with this question, the bench seems to be counting on upwards of 95% of defendants to miss their hearings. Respectfully, we should be doing the exact opposite: encouraging tenants to show up for their court dates to make sure that their case is heard by a fair and neutral arbiter of justice.
Finally, this proposal threatens to be a public health disaster. Despite decreasing case rates and increasing access to vaccinations, the COVID-19 pandemic continues to present very real public health concerns. Maryland continues to operate under a State of Emergency declared by Governor Hogan. Montgomery County is properly retaining protections such as capacity limits in businesses, a mask mandate and other common-sense public safety protocols. Tenants’ and landlords’ attorneys are not in line to receive the vaccine imminently, as many court personnel are, yet they are expected to meet with and represent dozens of clients each day. Even a small fraction of the 720 tenants showing up for their court date on a single day will almost certainly violate public health orders, especially in the Silver Spring courthouse, where there is less space and it is nearly impossible to keep six feet of social distance. Other courthouses are sure to face similar problems.
The Solution: On-the-Record Dismissal
Our proposal of “on-the-record dismissal” is simple. Some of the signatories to this letter have proposed legislation, a copy of which is appended to this letter, which could potentially be helpful in dealing with situations like this in future, but will not likely be enacted in time to deal with today’s crisis. Only you have the authority to take the bold and immediate action necessary to resolve this problem, as it deals solely with the administration of the courts.
The proposal is as follows: For each FTPR complaint or summons filed prior to December 1, 2020, the landlord must reassert, in a signed declaration, that the statements in the summons are still correct and valid. Then the landlord must serve this declaration on the tenant by regular mail at least ten days before the hearing. If the landlord fails to sign this declaration or serve it on the tenant, or if any change in circumstances vitiates the original cause of action, the case will automatically be dismissed.
Under this proposal, there is no need to conduct a hearing. There is no chance of an erroneous eviction judgment against a former tenant who has already vacated the apartment, as often happens in very old landlord-tenant filings. At the same time, if the landlord’s claim is still viable, the landlord may take this very small step and proceed with the hearing on the scheduled court date. And if the landlord does not take these steps, they are not prejudiced in refiling. In fact, they likely already have refiled by the time of this court hearing.
Addressing Potential Concerns
Under the current proposed process for dealing with old landlord-tenant cases, everyone loses. Under our proposal, everyone wins: the landlords focus on renewed efforts to obtain eviction judgments; the tenants do not have to go to court to answer for debts they’ve already paid; the attorneys do not have to quadruple their workload for mostly moot cases; and no one has to expose themselves unnecessarily to COVID-19 in a crowded courthouse.
This proposal does not seriously burden landlords. In essence, it simply asks them to redeclare the validity of their debt, which is already a prerequisite to obtaining a judgment in the first place. It may even be a financial boon to landlords who do not have to deal with two, three, or four separate eviction cases, paying their attorneys and trying to collect on piecemeal debts. At the same time, it does not unreasonably favor tenants, even though many signatories to this letter have advocated for stronger tenant protections in other forums. Landlords can still proceed against tenants on the complaints they have made, if desired.
This proposal enhances the efficiency of the courts. Instead of conducting hundreds of individual hearings each day, risking unjustified default judgments against tenants, judges can order automatic dismissals within a few seconds. This procedure is very similar to one of the provisions in the CARES Act from April 2020, which required dismissal if certain landlords did not make appropriate declarations in their complaints.
Finally, this proposal is temporary. As it only applies to cases from before the courts closed, there will be no threat of a landlord failing to abide by an additional procedural requirement in the future. This is merely a matter of administrative convenience.
We would be happy to meet and discuss this proposal at your earliest convenience, but as we have stated above, time is of the essence. Once this “rocket docket” is implemented in Montgomery County, it will have a devastating negative impact on our members and clients, as well as their families. Correcting the errors and miscarriages of justice that will result from this system will become an entirely separate problem, which will only add further burden to attorneys and the courts.
We urge you again to immediately use your inherent powers to control the functioning of the courts and adopt our proposal. If the proposal cannot be accepted in its current form, we urge you to make other arrangements as soon as possible to drastically reduce the number of cases scheduled, such as ordering a cap on the number of FTPR cases that can be heard per day. An ordered and efficient clearing of the FTPR backlog is essential to the administration of justice.
Sincerely,
CASA, Housing Initiative Partnership, The Latino Economic Development Center, Homeless Persons Representation Project, Coalition for Smarter Growth, Renters Alliance, Jews United for Justice, IMPACT Silver Spring, Progressive Maryland, Sisterhood of Salam Shalah, Silver Spring. Public Justice Center, Takoma Park Mobilization, Global Land Alliance, Everyday Canvassing, Disability Rights Maryland, Montgomery County Racial Equity Network, Montgomery County Democratic Socialists of America
Addendum 1: Proposed Legislation to Deal with Administrative Backlog in Failure to Pay Rent cases
(a) For any pending Failure to Pay Rent case filed by a landlord prior to December 1, 2020, a landlord shall:
(1) sign a sworn statement confirming that
(A) upon information and belief, the tenant is still in possession of the unit;
(B) the amount of the rent owed, as declared in the summons, is still accurate, or, if not accurate, the new amount owed for that specific period of time; AND
(C) the time periods for which rent is owed, as declared in the summons, are still accurate, or, if not accurate, the months owed for that specific period of time; Provided, however, that a landlord may not declare rent owed for any amount of time after the last month requested in the original summons.
AND
(2) serve the statement in subparagraph (1) on the tenant and his or her attorney via first class mail or certified mail at least ten days before the hearing.
(b) The court shall dismiss any case in which
(1) a landlord fails to properly file and serve the statement referred to in paragraph (a); or (2) the amount of the declared debt for the months declared is $0.
(c) If the court dismisses a Failure To Pay Rent case based on the landlord’s failure to comply with these provisions, nothing in this bill shall prevent a landlord from refiling for the months and amounts owed.