Today in State v. Chapman, the Ohio Supreme Court issued an order in response to the state of Ohio’s Motion for Leave to file its Merit Brief Out of Time. The Supreme Court ordered that Chapman must respond to the request before 12:00 on Monday, June 8. Chapman (and amicus on his behalf), timely filed the initial briefs on April 6, 2020 (the 40 days allotted under Supreme Court Rule of Practice 16.02). This would have made the state’s brief due May 17 (well, May 16, but that’s a Sunday). The state did not file anything before that date.

An order scheduling oral argument went out June 3, and on June 4, the court issued its notice to the state that due to the failure to file a brief, it would not be permitted to participate in oral argument. Apparently recognizing the issue, the state immediately filed the motion, citing Section (D)(3) of the Supreme Court’s April 14, 2020 Administrative Order. Counsel states in the motion that they have not had access to the case materials due to “home quarantine” and that support staff only returned to the office two weeks ago and made the materials available. The motion does assert that the state will be ready to file its brief on June 8.

Section (D)(3) of the administrative order provides:

For any other document that is filed after April 21, 2020, the party shall comply with the applicable time requirements. In addition to the provisions of S.Ct.Prac.R. 3.03(B), the Court will also grant reasonable requests to extend the time for filing of any type of document, provided that the request is necessitated by the COVID-19 emergency. A party may also file a motion for leave to file out of time, and the Clerk shall accept the motion if the delay in filing is due to the effects of or measures necessitated by the COVID-19 emergency and the motion explicitly states it is being filed because of the COVID-19 emergency.

The Ohio Supreme Court is notoriously strict regarding timing requirements. Untimely filings are usually rejected. 

The court’s administrative orders in response to the COVID-19 pandemic have created some confusion, but the April 14 administrative order is clear. Documents are due under normal timing requirements if the due date is after April 21. S.Ct.Prac.R. 3.04 already provided two methods for getting an extension for a merits brief or reply brief: a 20 day extension by agreement of the parties, or a 10 day extension upon motion and for “good cause.” However, in both instances, the stipulation or request must be “filed with the clerk within the time prescribed by the rules for filing the brief” and untimely stipulations or requests are to be rejected.

Here, the Supreme Court is clearly confronting new ground. While Section (D)(3) of the administrative order plainly permits a motion for leave to be filed out of time, the motion must be accepted “if the delay in filing is due to the effects of” the pandemic. It will be interesting to see how this one plays out.

Practice Pointer: At the Ohio Supreme Court (unlike some of the intermediate appellate districts), deadlines must be strictly complied with. Pay attention to the requirements for extensions of deadlines.