Wednesday, March 31, 2010

Filing a Timely Notice of Appeal

One of the fundamental rules of appellate practice is that the timely filing of a notice of appeal is a jurisdictional requirement: if the notice of appeal is filed late, an appellate court has no jurisdiction over the matter, and the appeal will be dismissed.

On Monday, the United States Court of Appeals for the Second Circuit reminded us of the basic rule when it dismissed the appeal in Napoli v. Town of New Windsor. The decision can be found here.

For appeals in the New York State courts the time to file the notice of appeal is laid out in CPLR § 5513. The time frame for appeals in federal court is stated in Rule 4 of the Federal Rules of Appellate Practice. Note that Rule 4(a) states the time for civil appeals, while Rule 4(b) states a different time for criminal appeals.

In federal court a problem arises when the a judgment is entered and later amended. Does the filing of an amended judgment reset the clock for filing the notice of appeal? See e.g., Rezzonico v. H & R Block, Inc., 182 F.2d 144 (2nd Cir. 1999).

In the Napoli decision on Monday, the Second Circuit stated that because rulings a district judge made after issuing an order subject to an interlocutory appeal did not reset the clock for appealing the order, the notice of appeal was late and the appeal would be dismissed.

Appeals should be decided on their merits: file a timely notice of appeal.

Second Circuit: N.Y. Persistent Felony Offender Law Unconstitutional

In a major ruling today, the Second Circuit has determined in Besser v. Walsh that New York's persistent felony offender law, N.Y. Penal Law § 70.10, violates a defendant's constitutional right to trial by jury by permitting a judge, rather than a jury, to make critical fact findings in violation of Blakely v. Washington, 542 U.S. 296 (2004). The decision can be found here.

Constitutional challenges to the statute have been repeatedly rejected by the New York State courts, including most recently by the New York Court of Appeals in People v. Quinones, 12 N.Y.3d 116 (2009). The Second Circuit ruling is a stunning rebuke of the state courts in a matter of critical importance to the state's criminal justice system. Because of the importance of the case to the State of New York, I anticipate that it will either seek en banc review in the Second Circuit, or file a certiorari petition in the Supreme Court.

Arguing Another Attorney's Appeal

Last August I discussed an appeal in the United States Court of Appeals for the Second Circuit which I orally argued for the appellees although I did not write the brief and I did not know anything about the case until appellees' counsel asked me to argue.

In response to some comments I explained that some lawyers are uncomfortable at oral argument so they prefer that someone else appear. In other instances the lawyer who appeared at the trial writes the appellate brief, and something he did (or did not do) at trial becomes an important matter on appeal. It may, therefore, be awkward for the lawyer to appear at oral argument and defend his own action (or inaction). He may also be concerned that his oral argument will smack too much of self-justification, and detract from the client's case. He, therefore, has another lawyer argue the case.

Earlier this month it happened again: a law firm which successfully represented a plaintiff in defeating a motion for summary judgment and then drafted the respondent's appellate brief, asked me to argue the case before the Appellate Division, First Department. It is an important case for the firm, and it opted for someone with considerable appellate experience.

I see a growing awareness that oral argument of an appeal is important. It is the only time in the appellate process when an attorney can answer the questions which are on a judge's mind. After reading the briefs and pertinent parts of the record, appellate judges obviously go on the bench inclined to decide a case a particular way. Different appellate judges have told me that oral argument changes their mind from 5% to 15% of the time. That is not an opportunity any attorney should pass up.

Tuesday, March 16, 2010

Suggested Reading: Justice Stevens

United States Supreme Court watchers are in a flutter over rumors that Justice John Paul Stevens will retire at the end of the Court's current Term in June.

The Justice will be 90 years old in April, and the rumors began with reports that he hired only one law clerk for next year (the allotment for a retired Justice) instead of four (the allotment for sitting Justices). As the rumors persisted, short lists of potential nominees to the Court have circulated, as well as speculation on what effect, if any, his retirement will have on voting patterns on the Court.

The New Yorker magazine dated March 22, 2010, which is out this week, has a fine profile of the Justice, "After Stevens," by Jeffrey Toobin. The Justice tells Toobin that he will decide in April whether to retire. As for the number of law clerks: he has received assurances from three of his current four clerks that they will stay on for another year if he does not retire.

Most notable for baseball fans is that Justice Stevens' was at the famous 1932 game in which Bath Ruth is said to have pointed to center field and then hit a home run there. The Justice reports that he saw Ruth point. Is more proof needed than the testimony of a United States Supreme Court Justice?

Tuesday, March 2, 2010

Governor Paterson's Judicial Legacy

With Governor David Paterson's announcement that he will not seek reelection in the wake of claims that he was involved in efforts to persuade a woman not to press assault charges against one of the Governor's aides, it is worthwhile to take a step back from the political frenzy to examine the Governor's judicial legacy. The legacy is impressive.

First, there is the appointment of Jonathan Lippman as Chief Judge of the New York Court of Appeals to replace Chief Judge Judith Kaye. Shortly after the appointment, and soon after the new Chief Judge had participated in a few of the Court's rulings, I wrote in May, 2009, "The early signs suggest that he will be more liberal than Chief Judge Kaye, and not hesitant to dissent."

Time has borne out that early conclusion. A recent article in The New York Times, "Top Judge Sets Liberal Course for New York," provides a valuable analysis of Chief Judge Lippman's voting patterns over the past year in a wide range of civil and criminal cases. That article can be found here.

The Governor has also had a profound effect on the Appellate Division, First Department. Under the State Constitution positions on the Appellate Division are filled by a gubernatorial appointment from among persons elected to sit as trial judges on the state Supreme Court. By my count, Governor Paterson has made seven appointments to the First Department since April 2008. Anecdotal evidence from attorneys suggests that the First Department has become more liberal as a result of those appointments.