Tolling Legislation and Court Orders/Frequently Asked Questions

On March 27, 2020, the Supreme Court of Ohio issued an order that tolls the time requirements established by all Supreme Court-promulgated rules. The order works in conjunction with Am. Sub. H.B. 197, which Governor Mike DeWine also signed on March 27, 2020. The order is intended to align the time requirements contained in Supreme Court-promulgated rules with statutory time requirements tolled by Am. Sub. H.B. 197. Additionally, on April 14, 2020, the Supreme Court issued a subsequent order concerning the time requirements established by the Rules of Practice of the Supreme Court.

NEED FOR LEGISLATION AND MARCH 27 COURT ORDER

Q: WHY WAS ACTION NEEDED?

A: The impact of the coronavirus emergency and measures needed to mitigate the spread of the virus, including social distancing, impact the operation of the Ohio judicial system and the ability of courts and parties to comply with time requirements established by the various Supreme Court promulgated rules. Although courts currently have some ability to address time requirements under existing authority, such as the ability to issue continuances, these tools alone may not be entirely adequate.

Q: WHY WAS THE MARCH 27 COURT ORDER NEEDED? DOESN’T AM. SUB. H.B. 197 ADDRESS THESE ISSUES?

A: Am. Sub. H.B. 197 tolls only statutorily established time requirements (e.g., statutes of limitations). Constitutional separation of powers precludes the General Assembly from tolling time requirements that have been established by the various Supreme Court promulgated rules. The March 27 Court order is intended to work in conjunction with Am. Sub. H.B. 197.

PROVISIONS OF LEGISLATION AND MARCH 27 COURT ORDER?

Q: WHAT IS COVERED BY THE LEGISLATION AND THE MARCH 27 COURT ORDER?

A: Am. Sub. H.B. 197 applies to any criminal, civil, or administrative time limitations imposed by the Ohio Revised Code or the Ohio Administrative Code. The legislation provides the following specific examples:

The March 27 Court order was designed to complement the legislation, applying to all time requirements imposed by Supreme Court rules.2 This includes the following:

Q: WHAT IS THE EFFECTIVE DATE FOR THE MARCH 27 COURT ORDER AND FOR HOW LONG IS IT EFFECTIVE?

A: The March 27 Court order is retroactive to March 9, 2020, the date of Governor DeWine’s Executive Order 2020-01D. The order expires on the earlier of the two following dates: (1) the date the Governor’s declaration of emergency ends or (2) July 30, 2020. This timeframe is generally referred to as the “emergency period.”

Q: WHY WERE THOSE DATES CHOSEN?

A: The March 27 Court order is intended to work in conjunction with Am. Sub. H.B. 197, which contained those specific dates.

GENERAL IMPACT OF LEGISLATION AND MARCH 27 COURT ORDER

Q: DOES THE MARCH 27 ORDER CLOSE MY COURT?

A: No. It is imperative that courts remain operational to deal with essential services and matters, such as arraignments, domestic violence orders and stalking, child protection orders, emergency custody, emergency guardianships, adult protective services, civil commitments, etc. However, in order to mitigate the spread of coronavirus, it is recommended that entry to the courthouse by the public be limited to those with business before the court or to file documents with the clerk.

Additionally, the use of technology (telephone or conference calls, video conferencing, and other technology) is strongly encouraged, including the use of teleworking for staff. The technology grant from the Supreme Court can help with your capabilities. Also, courts should coordinate with other local courts to determine what technology resources can be shared.

Furthermore, courts must comply with all orders from the director of the Ohio Department of Health and the local health department in the workplace. This includes disinfecting, protection wear, social distancing, limiting groups to no more than 10 people if the room or facility can accommodate that number of people who are correctly distanced, and not allowing people who are exhibiting signs of illness into the building, which includes taking the temperature of all those entering the building.

In deciding whether to continue or proceed with cases, the court should consider all relevant factors and circumstances, including the urgency or time-sensitivity of the issue; the previously mentioned orders and recommendations of the Ohio Department of Health and local health department; and any other reason made known to the court.

Q: DOES THE MARCH 27 COURT ORDER VOID PREVIOUS SCHEDULING ORDERS ISSUED BY A LOCAL COURT?

A: Any scheduling orders issued on or after March 9, 2020, remain in effect. Any scheduling orders issued before March 9, 2020, should be reconsidered by the local court.

TOLLING UNDER LEGISLATION AND MARCH 27 COURT ORDER

Q: WHAT DOES “TOLL” MEAN?

A: Tolling serves to effectively freeze time from the date the tolling begins, which is March 9, 2020, until the expiration of the order.

Q: ARE ALL TIME REQUIREMENTS TOLLED?

A: No. Am. Sub. H.B. 197 tolls only those time requirements that are set to expire during the emergency period. So that the March 27 Court order can work in conjunction with Am. Sub. H.B. 197, the order included the same limitation.

Q: HOW DOES TOLLING APPLY?

A: How tolling applies is fact dependent. The following examples of a defendant’s answer are demonstrative:

Q: CAN THE TIME RESTRICTION STILL BE APPLIED OR CAN THE TOLLING BE SUPERSEDED?

A: Although the legislation or the March 27 Court order may toll a time requirement, it does not necessarily mean an action or case should or must completely cease during the emergency period. Rather, the tolling simply pauses the time requirements.

Nothing in the legislation prohibits a party or a local court from voluntarily complying with a time requirement that applies to the party or the local court. For example, although the statute of limitations may be tolled, a party still may file the action during the emergency period. A further example: If a statute requires a local court to issue a decision by a set date, even though the time requirement is tolled, the court still may decide to issue the decision.

As with the legislation, nothing in the March 27 Court order prohibits a party or a local court from voluntarily complying with a time requirement that applies to the party or local court. In fact, the order specifically states that it does not preclude filings during the duration of the order if the local court is able to receive filings and it is a matter related to a situation requiring immediate attention.

The one exception to the March 27 Court order is that a local court can supersede the tolling of a Supreme Court-rule-established time requirement if the local court determines it is a situation that requires immediate attention. “A situation that requires immediate attention” is meant to refer to cases involving child safety, domestic violence, impaired operation of a motor vehicle, human trafficking, and any other matter that concerns the immediate safety and welfare of a person. This is not a limitation or exhaustive list, but is given as guidance. Using this guidance, local courts can determine how to deal with cases. Note: This authority does not extend to time requirements established by the Revised Code or Administrative Code.

Q: CAN/SHOULD A CASE STILL PROCEED, EVEN IF THE TIME REQUIREMENT IS TOLLED?

A: When a local court is deciding whether to voluntarily comply with a time requirement tolled by the legislation or the March 27 Court order, or when a local court is considering issuing an order superseding that Court order, there are a variety of important factors to consider and questions to ask.

  1. Other Current Alternatives. Does other authority independent of the legislation and March 27 Court order exist allowing for a continuance in the case? The existence of such authority, whether in statute or rule, may give the local court an alternative means or additional reason to delay the case.3 And when utilizing such authority, the court should be very clear on the basis and rationale for such.
  2. Technology. The March 27 Court order provides that a local court may waive a requirement in Supreme Court rules that a party appear in person by using technology (e.g., appearing via video or phone) that guarantees the integrity of the proceedings and protects the parties’ interests and rights.4 Utilizing technology may be a means of complying with a time requirement while ensuring the safety and health of the those involved.
  3. Federal Laws and Regulations. A local court should determine whether there are applicable federal laws or regulations that impact compliance with a time requirement. Although the legislation or March 27 Court order may toll a time requirement, federal law or regulation may require the local court to still proceed with the case. Alternatively, federal law or regulations, especially those that may be enacted in response to the coronavirus, may prohibit the case from proceeding.5
  4. Health and Safety Concerns. Lastly, local courts must comply with all orders from the Director of the Ohio Department of Health and local health department. Examples of requirements that pertain to all Ohioans, businesses, and government include:
    • Complying with the rules for social distancing;
    • Ensuring any required protective equipment, such as masks, are worn;
    • Limiting groups to no more than 10 people if the room or facility can accommodate 10 people that are correctly distanced;
    • Denying entrance to a court if one is ill, maintaining a temperature, or exhibiting any signs of the coronavirus, which includes taking the temperature of all those entering the building;
    • Asking for self-quarantining of persons who have interacted with people who tested positive for the virus;
    • Taking all measures to minimize personal contact by using technology to conduct hearings, conferences, appearances.

EVICTION ACTIONS

Q: WHAT IS THE EFFECT OF THE GOVERNOR’S EXECUTIVE ORDER 2020-08D ON EVICTION ACTIONS?

A: Executive Order 2020-08D concerns commercial evictions and foreclosures. Specifically, it requests, but doesn’t require, landlords provide a moratorium on evictions of small business commercial tenants for at least 90 days. The Executive Order does not address residential evictions and foreclosures, but does note that under the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act, many residential properties have had a temporary period of suspension regarding evictions and foreclosures (see below).

Q: WHAT IMPACT DOES THE FEDERAL CARES ACT HAVE ON EVICTION ACTIONS?

A: The federal Coronavirus Aid, Relief, and Economic Security (CARES) Act prevents some landlords from bringing legal causes of action to recover possession from a tenant for nonpayment of rent or other fees or charges for 120 days if the dwelling is a property insured, guaranteed, supplemented, protected, or assisted in any way by the U.S. Department of Housing, Fannie Mae, Freddie Mac, the rural housing voucher program or the Violence Against Women Act of 1994. Courts should consider the possible application of the CARES Act in eviction proceedings.

Q: WHAT IS THE EFFECT OF AM. SUB. H.B. 197 AND THE MARCH 27 COURT ORDER ON EVICTION ACTIONS?

A: There are two key provisions in the legislation and the March 27 Court order:

  1. Section 22(A)(10) of Am. Sub. H.B. 197 tolls any “criminal, civil, or administrative time limitation under the Revised Code” (emphasis added) that is set to expire between March 9, 2020 and July 30, 2020.
  2. The March 27 Court order tolls any “time requirements imposed by the rules of the [Supreme] Court” (emphasis added) set to expire during this same timeframe. However, in cases that require immediate attention, the Court order still allows a local court to issue orders requiring filing in accordance with existing rules and setting a specific schedule, which would supersede the rule-based tolling provisions of the Court order. However, these orders would not supersede the General Assembly’s tolling of statutory timelines.

In deciding whether an eviction action should proceed, the court must consider Am. Sub. H.B. 197 and the potential application of the proposed federal Coronavirus Aid, Relief, and Economic Security (CARES) Act. In deciding whether to issue a scheduling order, the court should consider all relevant factors and circumstances, to include the reason for the eviction action; the orders and recommendations of the Ohio Department of Health and local health department and the court’s ability to conform to such; and any other reason made known to the court.

CASELOAD STATISTICS / TIME GUIDELINES

Q: DOES THE MARCH 27 COURT ORDER AFFECT THE CASE PROCESSING TIME GUIDELINES AS OUTLINED ON THE APPELLATE AND TRIAL COURT STATISTICAL REPORT FORMS?

A: Yes, the March 27 Court order tolls the time by which appellate courts and trial courts are required to complete certain case types.

It is imperative that courts remain operational to hear essential matters such as arraignments, domestic violence orders, child protection orders, etc. The court may use discretion and toll the age of a case for statistical reporting purposes (Sup.R. 39).

Courts may consider the following alternative approaches:

If a court opts to place cases on temporary inactive statistical reporting status during the emergency period, it should implement a process to ensure that those cases are immediately reactivated either when the tolling order ends, or when the court sets a hearing in a case, whichever comes first. The Supreme Court recognizes that the coronavirus emergency has created extraordinary circumstances that, depending on how a court chooses to proceed, may cause either a temporary increase in that court’s overage rates or a temporary increase in that court’s rate of cases being reported as placed on inactive statistical reporting status.

Q: DOES THE MARCH 27 ORDER AFFECT THE APPELLATE AND TRIAL COURT STATISTICAL REPORT FORMS?

A: Yes, the March 27 Court order tolls the requirement that appellate and trial courts submit caseload statistics. However, if a court is able to submit the report pursuant to Sup.R. 37, the court should do so.

APRIL 14 COURT ORDER – RULES OF PRACTICE OF THE SUPREME COURT

Q: WHAT IS THE EFFECTIVE DATE FOR THE APRIL 14 COURT ORDER?

A: The order was issued on April 14, but had an effective date of April 21.6

Q: WHAT IS THE DIFFERENCE BETWEEN THE MARCH 27 COURT ORDER AND THE APRIL 14TH COURT ORDER?

A: The March 27 Court order tolled all time requirements imposed by Supreme Court rules. The April 14 Court order reinstates only the time requirements in the Rules of Practice of the Supreme Court. All other Supreme Court-rule-imposed time requirements remain tolled for the duration of the March 27 Court order.

Q: WHY ARE THE TIME REQUIREMENTS FOR THE RULES OF PRACTICE OF THE SUPREME COURT TREATED DIFFERENTLY FROM ALL OTHER TIME REQUIREMENTS?

A: The Rules of Practice of the Supreme Court apply to litigation before only the Supreme Court. There are various factors that differentiate the Supreme Court from Ohio’s local courts and that lead to the conclusion the March 27 Court order should not extend to the Supreme Court during the emergency period. These include the following:

Q: WHAT IMPACT DOES THE APRIL 14 COURT ORDER HAVE ON TIME REQUIREMENTS THAT EXPIRED PRIOR TO MARCH 9TH?

A: The April 14 Court order has no impact upon time requirements that expired before March 9 (i.e., before the start of the emergency period).

Q: WHAT IMPACT DOES THE APRIL 14 COURT ORDER HAVE ON TIME REQUIREMENTS THAT WOULD HAVE EXPIRED BETWEEN MARCH 9 AND APRIL 21?

A: The combined effect of the March 27 and April 14 Court orders is that time requirements imposed by the Rules of Practice of the Supreme Court that were set to expire between March 9 and April 21 were tolled for that period of time. Because the April 14 Court order reinstates these tolled time requirements, the order provides that for any document that was not filed and for which a time requirement would have expired between March 9, 2020, and April 21, 2020, but for the March 27 Court order, the parties must file their document within 30 days of the April 14 Court order.

However, if a party fails to file within the 30-day period due to the effects of or measures necessitated by the coronavirus emergency, the party may file a motion for leave to file out of time. The Supreme Court Clerk must accept the motion if the delay in filing is for this reason and the motion explicitly states that.

Lastly, if a party did file a document between March 9 and April 21 when time requirements were tolled and an applicable time requirement for that filing would have expired during that period if not for the tolling of the March 27 Court order, the April 14 Court order provides the document is deemed properly filed.

Q: WHAT IMPACT DOES THE APRIL 14 COURT ORDER HAVE ON DOCUMENTS FILED AFTER APRIL 21?

A: After April 21, parties must comply with the time requirements in the Rules of Practice of the Supreme Court. However, the April 14th Court order notes the Supreme Court will grant reasonable requests for extension of time to file, provided that the request is necessitated by the coronavirus emergency.

Additionally, if a party misses a deadline due to the effects of or measures necessitated by the coronavirus emergency, it may file a motion for leave to file out of time. The Supreme Court Clerk must accept the motion if the delay in filing is for this reason and the motion explicitly states that.


1However, see the March 27, 2020 letter to Child Welfare Legal and Judicial Leaders from the U.S. Department of Health and Human Services, Administration for Children and Families, detailing the judicial determinations to be made in all abuse, neglect, and dependency cases for Ohio to continue to receive Title IV-E of the Social Security Act funds.

2On April 14, the Supreme Court issued a subsequent order. This order, which is discussed in further detail below, reinstated the time requirements established in the Rules of Practice of the Supreme Court.

3An example is R.C. 2945.72(H), which allows a court to sua sponte grant a reasonable continuance in a criminal trial.

4Courts should consider how using technology affects other legal requirements. For example, courts receiving VOCA or VAWA funds are subject to certain confidentiality requirements, which have not been relaxed to date. The court needs to consider if and how using technology as an alternative to in-person appearance impacts confidentiality requirements.

5For example, Sec. 4024(b) of the recently enacted federal Coronavirus Aid, Relief, and Economic Security (CARES) Act prevents lessors of dwellings from bringing legal causes of action to recover possession from a tenant for nonpayment of rent or other fees or charges for 120 days if the dwelling is a property insured, guaranteed, supplemented, protected, or assisted in any way by the U.S. Department of Housing, Fannie Mae, Freddie Mac, the rural housing voucher program or the Violence Against Women Act of 1994.

6Similar to the March 27 Court order, the April 14 order expires on the earlier of the two following dates: (1) the date the Governor’s declaration of emergency ends or (2) July 30, 2020. The expiration date is necessary due to the fact that the order includes provisions that temporarily require the Clerk of the Supreme Court to accept out-of-time filings due to the coronavirus emergency.