Friday, November 30, 2012

Ahead for the Court of Appeals: Change

    The composition of the New York Court of Appeals is starting to change. We will get our first look at what lies ahead on December 1. 
    There are two vacancies to be filled in the next few months. Carmen Ciparick has reached the mandatory retirement age of 70, and must step down from the Court on December 31.  And the sudden death of Theodore T. Jones has created the second vacancy. A number of the judges are approaching 70 years of age, so even more vacancies lie ahead for the seven-member court in the next few years. 
    While the the Court of Appeals is not as ideologically divided as the United States Supreme Court, Judges Ciparick and Jones were generally seen as two of the more liberal members of the Court along with Chief Judge Lippman. Replacements more conservative then they would, therefore, work an ideological shift in the Court.   
     In accordance with the State Constitution and the Judiciary Law, New York has a 12-person Commission on Judicial Nomination whose members are appointed by the Governor, the Chief Judge of the Court of Appeals, the Speaker of the State Assembly, the president of the State Senate, and the minority leaders of the Assembly and the Senate. Former Chief Judith Kaye is the chair of the Commission.
    To fill a Court of Appeals vacancy, the Commission must first recommend to the Governor at least three, and not more than seven, persons. At least eight of the Commission members must vote for each person recommended.
    To fill the vacancy created by Judge Ciparick's retirement, the Commission must make its recommendations by December 1. The Governor must then select one person no sooner than January 1 and no later than January 15. That person's name is then sent to the State Senate for a vote. On March 7 the Commission will make its recommendations to fill the vacancy created by the death of Judge Jones. 
    In recent years there has been much criticism that the Commission recommendation process has been a closed or predictable affair. To create a wider pool of people for the Commission to consider, Judge Kaye has publicly encouraged applications. We will know on December 1 whether her efforts have been successful. 
    Judge Ciparick's retirement has reopened the debate over New York's mandatory retirement age for judges. While Appellate Division judges who reach 70 years of age can be certified two years at a time to continue serving until they are 76 years old, there is no similar procedure for the Court of Appeals. 
    Those favoring the mandatory retirement at 70 maintain that it allows new blood to flow into the judicial system, while those opposed to it note the loss to New York of experienced judges. While age is plainly no disqualification--look at the United States Supreme Court--it is politically unrealistic to expect that New York will amend its Constitution to entirely eliminate mandatory retirement for judges.
    In light of the political realities, I favor increasing the age to 76. I am concerned that a mandatory retirement age of 70 creates a smaller pool of candidates for the Court of Appeals. Court of Appeals judges sit for 14 years, but if an outstanding prospect for the Court of Appeals is 64 or 65, it is highly unlikely that a Governor would select that person for only 5 or 6 years of service. Because Governors want to shape the Court for the long-term, mandatory retirement at 70 eliminates many highly talented lawyers and sitting judges from consideration for the Court of Appeals. 
    Finally, I think New York should enlarge the period of time for public comment on the Commission's recommendations. The Commission will make its recommendations on December 1, and the Governor can make his selection as soon as January 1. If the Commission recommends as many as seven people, 30 days is simply too short a period of time for serious public comment on so many people.    
    A few days ago I wrote about the interview of Justice Scalia at the appellate law conference in New Orleans. Justice Scalia was confirmed by the United States Senate by a 98-0 vote. When asked about more fractious confirmation battles, to my surprise he said they were a good thing: as unelected judges weigh in more and more on matters with social and political consequences, it is a good thing to have members of the public make their views known to the United States Senators who will vote on the nominee. Thirty days to comment on seven recommendations for a position which can affect New York law for the next 14 years, is, in my view, too short a period of time.            

Tuesday, November 27, 2012

CLE in the Big Easy

    There are many conferences and continuing legal education programs for appellate lawyers and judges. In the past I have written that the best I have attended is the annual conference sponsored by the American Bar Association's Council of Appellate Lawyers (CAL).  
    About a week ago I returned from a four-day appellate law program in New Orleans sponsored by CAL, and I will say it again: this is, in my opinion, the best. In attendance were federal and state judges, and appellate lawyers, from across the United States, as well as other countries. I found everyone open, friendly, and frank. 
    From early in the morning to early evening there were excellent programs: musings about the United States Supreme Court from a panel of journalists who report on the Court; discussions of the technology changing appellate practice both for the lawyers and the judges; serious discussions on brief writing and appellate law ethics; reviews of the past Term of the Supreme Court; a look forward at the Court's current Term; and a reception at the Supreme Court of Louisiana. In the Supreme Court building there was a fascinating exhibit on Plessy v. Ferguson, 163 U.S. 537 (1896), the United States Supreme Court's "separate but equal" case which began in Louisiana.  
    At last year's program a highlight was a one-hour interview of Justice Sonia Sotomayor. This year it was Justice Antonin Scalia's turn and he, too, was captivating. Most striking for me was his statement that his most important decision on the Court has been Crawford v. Washington, 541 U.S. 36 (2004)the seminal criminal Right of Confrontation case. The ruling has been under attack by some of the other Justices, see e.g., Williams v. Illinois, 132 S.Ct. 2221 (2012), and when I spoke briefly to Justice Scalia at the reception which followed the interview, he expressed concern about Crawford's future. 
    An added delight was New Orleans. Jacqueline and I had never been to the city before, and when we arrived I was not immediately impressed. But the hotel in which the conference was held is located in the French Quarter, and with each passing day the city became more and more alluring: music in the air, excellent restaurants, friendly people, the gentle roll of the Mississippi River, and except for Bourbon Street, a relaxing tranquility.
    The next conference will be held in San Diego from November 14-17, 2013. Mark your calendar and be there. You will not be disappointed.   

Saturday, November 3, 2012

Recovering from Sandy

    As the lights come back on in Manhattan below 34th Street, and subway service returns, I hope all of my readers and their loved ones were safe during the storm, and I wish you a swift return to normalcy.
   The appellate courts were not immune from Hurricane Sandy. The Appellate Division, First Department, and the United States Court of Appeals for the Second Circuit were closed this past week. The Appellate Division, Second Department, was open most of the week, as was the New York Court of Appeals, which handed down a number of decisions on Tuesday.
    The Appellate Divisions for the First and Second Departments have issued orders relating to filing deadlines for briefs and other papers affected by the storm. The First Department order can be found on its home page here, and the Second Department order can be found on its home page here
    The Chief Judge of the Second Circuit has also issued an order relating to filing deadlines affected by the storm. The order can be found here.
    As with all such matters, it is important to go to a court's website for the latest information.
    Finally, Governor Cuomo has issued an executive order temporarily suspending and modifying statutory provisions establishing time limitations for such matters as the commencement of civil and criminal actions, and the time to take an appeal. The Governor's order can be found here.  

Tuesday, October 2, 2012

Second Circuit CLE

    For attorneys accustomed to practicing in the New York State courts, a case in the federal courts can be a daunting and uncomfortable prospect. The federal courts have a rhythm of their own, determined by the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, and the Federal Rules of Evidence.
    The same is true at the appellate level: an appeal to the United States Court of Appeals for the Second Circuit will introduce an attorney to rules and procedures unseen in the Appellate Divisions and the New York Court of Appeals: the Federal Rules of Appellate Procedure, local rules of the Second Circuit, case managers, and the Pacer System.
    Making sense of it all is, however, important. As the sheer volume of federal legislation grows, more and more attorneys find themselves in the federal courts, and more and more attorneys must face the prospect of being in the Second Circuit whether as an appellant or an appellee.
    But making sense of it all is possible: the Committee on Courts of Appellate Jurisdiction of the New York State Bar Association is offering two programs this month on Second Circuit practice, The Comprehensive Second Circuit. 
    The first program will be held Wednesday afternoon, October 10, in Syracuse, and the second program will be held Friday afternoon, October 26, in Manhattan. Both programs will feature experienced Second Circuit practitioners, and a Q & A session with judges sitting on the Second Circuit.
   Information on the Syracuse program is available here. Information on the Manhattan program is available here. (Disclosure: I will speak at the Manhattan program.)
   Programs which focus on Second Circuit practice are rare. Take advantage of the opportunity.      

Friday, September 28, 2012

The Fall: A New Appellate Season

    With the arrival of Labor Day came the unofficial end of summer, and a few weeks later its official conclusion. The arrival of fall brought on a new appellate court season.
    After a summer break the Court of Appeals in Albany is again hearing oral arguments, as are the Appellate Divisions for the First and Second Departments in New York City. And on Monday, October 1--the traditional first Monday in October--the United States Supreme Court begins hearing oral arguments in its new Term. 
   The Court will begin its first week hearing arguments in six cases covering a wide range of issues such as maritime jurisdiction, an interpretation of the Clean Water Act, and the circumstances under which compensation must be paid under the Fifth Amendment's Takings Clause.
    The case attracting the most attention this first week is Kiobel v. Royal Dutch Petroleum, in which the Court addresses whether corporations are immune from tort liability under the Alien Tort Statute (28 U.S.C. § 1350) for violations of the law of nations, such as torture, extrajudicial executions, or genocide. 
    One development which has received considerable attention is the declining number of cases decided by the Supreme Court. By one count, last Term, which ran from October 2011 to June 2012, the Court issued only 64 full, signed opinions, purportedly the small number in at least the past 50 years. Because the Court continues to address certiorari petitions as the Term progresses, it is too soon to know whether the number of cases will change this Term.

Thursday, July 5, 2012

The Declaration of Independence, Trial by Jury, and Immigration

    Every Fourth of July I re-read the Declaration of Independence to remind myself why brave people agreed to put at risk "our Lives, our Fortunes and our Sacred Honor."
    Beyond its iconic language, the Declaration is a list of the "repeated injuries and usurpations" which justify severing ties with England. I always pause at one of the causes "which impel ...the separation": the King has assented to laws "For depriving us in many cases, of the benefits of Trial by Jury."
    That the "benefits of Trial by Jury" was central to the thinking of the Founding Fathers is apparent not only from the Declaration, but from the Constitution of 1787 as amended by the Bill of Rights in 1791. The right to trial by jury appears in three separate places in the Constitution: Article III, Section 2 (jury trial for crimes), the Sixth Amendment (the right to an impartial jury in criminal prosecutions), and the Seventh Amendment (the right to trial by jury in civil cases). 
    For the revolutionaries of 1776 and the later Constitution writers, trial by jury was integral to a free society. The point of trial by jury is that important legal decisions, such as guilt or innocence, should not be made by government officials--judges--but by the community which the jury represents. In our hurried lives we may grumble when we receive a notice to report for jury duty, but it is worth pausing at least once a year to appreciate the high importance Jefferson and his contemporaries attached to trial by jury.
   To their credit, in recent years appellate courts have endeavored not to stray from the jury trial message in the Declaration and the Constitution. In cases such as U.S. v. Gaudin, 515 U.S. 506 (1995) and Apprendi v. New Jersey, 530 U.S. 466 (2000),  the Supreme Court has emphasized that juries and not judges must make the critical factual determinations at trial, and the New York Court of Appeals has held that even in civil cases a jury's announced verdict is not final until we receive the assurance of its accuracy provided by polling the jury. Duffy v. Vogel, 12 N.Y.3d 169 (2009). 
    It is generally not noted that the Declaration of Independence also has something to say about a current political issue, immigration. The Declaration notes that "We have reminded [our British brethren] of our emigration and settlement here," and complains that the King "has endeavored to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands."
   Jefferson and others understood the immigrant roots of the thirteen colonies, understood the importance of continuing immigration, and understood the societal importance of "foreigners" becoming citizens. Here, too, the Declaration has something to tell us 236 years later.     

Friday, June 29, 2012

The Holocaust, Law, Morality, and Stolen Property

    In recent years there has been there considerable litigation over property seized by the Nazis before and during World War II. The members of a Jewish family, or descendants of a Jewish family, which owned valuable paintings or other property, will claim that the paintings or property were either stolen by the Nazis, or the original owners were forced by draconian Nazi laws to sell the paintings or property to non-Jews for a pittance.
    The cases provide an easy confluence of law and morality: the law says a thief cannot pass good title, and property taken by the Nazis should be returned to its true owner or his descendants.
    The Appellate Division, Second Department, has just granted leave to appeal to the New York Court of Appeals in a case which presents an unusual legal twist on property stolen during World War II, Matter of Flamenbaum.  
    When Riven Flamenbaum died in 2003, among his possessions was a small inscribed gold tablet which research disclosed dates to the years 1243-1207 BCE. The tablet was discovered by a team of German archaeologists prior to World War I in what is now northern Iraq. The tablet was loaded on a freighter bound for Germany, but with the outbreak of World War I the ship was forced to stop in Lisbon where the tablet was stored until 1926. (This sounds like an Indiana Jones script.) The tablet eventually was shipped to Germany where it was put on display in a German museum from 1934 until the outbreak of World War II in 1939, when it was put in storage. 
    At the end of the war the tablet was found missing. While not mentioned in the Appellate Division decision, news accounts state that after Flamenbaum was released from a concentration camp he obtained the tablet from Russian soldiers who purportedly stole it from the museum. When the tablet came to light after Flamenbaum's death, the museum made a claim for the tablet in Surrogate's Court, Nassau County.
   The Surrogate ruled that while the museum established a superior legal claim to the tablet, its claim is barred by laches. The Appellate Division reversed, ruled for the museum, and has now sent the case to the Court of Appeals for a final determination.
    The appeal has all the ingredients of a World War II case: concentration camp victim, Russian soldiers, stolen property, German museum. But there is the fascinating twist: the concentration camp survivor is not the victim of the theft; he is the recipient of property stolen from a German museum. How do law and morality resolve this?
    The Appellate Division decision can be found here.  

Thursday, June 28, 2012

Predicting Supreme Court Decisions

    Predicting decisions of the United States Supreme Court is a chancy affair, especially with an ideologically divided Court on an ideological issue.
    While I do not ordinarily like to boast, I did predict the outcome of today's ruling on the Affordable Care Act, National Federation of Independent Business v. Sebelius.
    For months I have been telling people two things. First, the Court will uphold the statute--and particularly the individual mandate--under the Congress' taxing power.
    Second, I have been saying that Chief Justice John Roberts will vote with the majority. In fact, I said this to my wife Jacqueline as I left the house this morning. 
    From Chief Justice Roberts' point of view this is a legacy case. Just as the Warren Court is remembered for Brown v. Board of Education and Miranda v. Arizona, the Roberts Court will be seen in the future as the Court which ruled on health care in the United States. By many accounts, Roger Taney was a great Chief Justice, but he is best remembered for his Dred Scott decision a few years before the Civil War. 
    I have always thought that Chief Justice Roberts did not want his Court to be seen as being on the wrong of history with respect to medical care for Americans. He achieved this result skillfully, ruling that the individual mandate, by forcing people to do something--buy insurance--was beyond the commerce clause powers of the federal government, but that the imposition of a tax on people who do not have health insurance is a reasonable exercise of the taxing power. By also ruling that the federal government cannot coerce the states into providing greater Medicaid coverage, he made a point regarding federalism which is important to conservatives. The decision can be found here.       

Thursday, May 17, 2012

Should Appellate Judges Discuss Cases Prior to Oral Argument?

    On a number of occasions I have heard Justices of the United States Supreme Court say that prior to oral argument the members of the Court do not discuss a case among themselves, and that the first time they become aware of another Justice's views about an appeal is during oral argument.
    I have also heard Justices of the Appellate Division, Second Department, say the same thing (although in the past apparently there were some Justices on that Court who made it a point to discuss cases on the calendar before oral argument).
    In my view, this is how it should be. After reading the briefs and records appellate judges undoubtedly form an opinion, before they attend oral argument, on how a case should be decided. But that is very different from discussing the case with other members of the panel which will hear a case: such preargument discussions may lead to conclusions among the judges on how to rule even before the lawyers have been heard, and may make it difficult for a judge to tell his colleagues he has changed his mind based on what he heard at oral argument. In short, it makes a judge less open to persuasion by the lawyer at oral argument.
    All of this came to mind when I read Dan Wise's blog report that there is a "schism" among the Justices of the Appellate Division, First Department, over whether the Justices scheduled to sit together on a panel should, prior to oral argument, discuss the cases they will hear. Wise was a reporter for 28 years with the New York Law Journal and he uses the sources he has cultivated to put together an insider's view of the judiciary. You can see his article here.

Tuesday, April 10, 2012

American "Supermax" Prisons and the European Court of Human Rights

    It is not often that we are aware of an overseas appellate ruling, but today's decision of the European Court of Human Rights in Case of Babar Ahmad and Others v. The United Kingdom is worth some attention.
    In the ruling, the court, which sits in Strasbourg, France, holds there will be no violation of human rights if five individuals are extradited by England to the United States to stand trial on charges of being involved in terrorism. The charges are made in a federal indictment in Connecticut, and two indictments in the United States District Court for the Southern District of New York. One of the New York indictments alleges various degrees of involvement in the 1998 bombings of the United States embassies in Nairobi and Dar es Salamm in East Africa.
    The first matter of note is the structure of the court's opinion: the decision is set forth in a series of 258 numbered paragraphs and will, therefore, look to an American reader as a litigant's pleading, and not the decision of an appellate court. 
    The second matter of considerable interest is the court's extensive discussion of the federal "supermax" prison in Colorado where the five defendants can expect to be incarcerated if they are convicted after trial in federal court. 
    The defendants maintained that the nature of the incarceration in a supermax prison--in particular, the isolation from contact with other humans--would be a violation of their human rights. The court rejects the claims, and in doing so sets forth in great detail how a supermax prison is run. The court cites extensively to American case law interpreting the Eighth Amendment's prohibition against cruel and unusual treatment, and to the Fifth Amendment's Due Process Clause. The court also shows its familiarity with federal court decisions which have addressed conditions in a supermax prison.
    American supermax prisons have been the source of some controversy, and there is much misinformation about them. This opinion offers an excellent description of them, from the size of the cells, to recreation time, to contact with other inmates. There have been some differences among the Justices of the United States Supreme Court over to what extent, if any, American courts should rely on the opinions of the courts of others nations in constitutional adjudication. Regardless of these differences, I expect that future American litigation regarding supermax prisons will cite this decision of the European Court of Human Rights. The decision can be found here.    

Tuesday, February 14, 2012

Appealing a Motion to Reargue

    A recurring error arises in New York when an attorney loses a motion and he wants to appeal the order denying the motion while also moving to reargue in the lower court the motion he lost. 
   There are two simple New York rules to keep in mind: 1) making a motion to reargue does not extend the time to file a notice of appeal from the order denying a motion; and 2) there is no appeal from an order which denies a motion to reargue. 
   I am reminded of this because only last week the Appellate Division, First Department, had occasion to repeat rule 2 in Williams v. Tatham, which can be found here.
   The rules are traps for the unwary: by the time a motion to reargue is decided it will ordinarily be too late to file a notice of appeal from the original order denying the motion.
   What should be done? After a motion is denied file a notice of appeal in accordance with the time limits laid out in CPLR § 5513. Then file the motion for reargument. If the motion for reargument is denied there is no appeal from the denial, but the attorney can still perfect an appeal from the original order because he filed a timely notice of appeal. 
   Final note: if the court grants the motion for reargument but adheres to its original ruling, that order is appealable. See, CPLR § 5701(a)(2)(viii).       

Friday, February 10, 2012

Shades of Daniel Webster

    When I read histories of the United States Supreme Court one matter that jumps off the page is the length of oral arguments before the John Marshall Court in the early part of the nineteenth century.
    I have read of arguments by Daniel Webster and others which went on for days. I even read an account which stated that Webster and others argued one case for ten days!
   I was reminded of this when the Supreme Court announced it would hear three days of oral argument on the challenges to the Patient Protection and Affordable Care Act which requires that beginning in 2014 virtually every person must obtain a minimum amount of health insurance or pay a tax penalty.
   Oral argument will be heard on "Obamacare" on March 26, 27 and 28, and a decision is expected by the end of June--just as the presidential race becomes more intense. 
    The hours of oral argument scheduled by the Court on the constitutionality of the health care law serve, in my view, to illustrate the importance of appellate oral argument. As appellate court dockets have grown, less and less time has been allotted for oral argument, and many attorneys consider oral argument a waste of time. I strongly disagree.
    However brief the time a court allots for oral argument, attorneys--particularly those representing an appellant--should not forego an appearance. It is the only opportunity to address concerns appellate judges may have. In my experience judges have not been hesitent to use the opportunity to clarify or probe matters with the attorneys, and different judges have said that oral argument changes their mind five to fifteen per cent of the time. I only complain about oral argument when a court decides a case on a point the judges did not raise during the argument and which, therefore, an attorney had no opportunity to address.  

Friday, February 3, 2012

The Influence of the New York View of GPS Surveillance

    Back on May 12, 2009, I noted the decision of the New York Court of Appeals in People v. Weaver, 12 N.Y.3d 433 (2009), in which the Court in an opinion by Chief Judge Lippman for the majority, ruled that the government cannot install a global positioning system device (GPS) on an person's automobile without a warrant.
    The opinion harked back to Justice Brandeis' invocation of "the right to be let alone" in his prescient dissent in Olmstead v. United States, 277 U.S. 438 (1928), and noted the intrusive nature of GPS surveillance which allows the government to obtain all sorts of information about a person's private life such as "trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment, the strip club, the criminal defense lawyer, the mosque, the synagogue or church, the gay bar and on and on."
    This past November I noted that the United States Supreme Court was about to hear oral argument in U.S. v. Jones which raised the question of warrantless GPS surveillance, and I wondered whether the Court would follow Chief Judge Lippman's lead.
    Happlily on January 23rd a unanimous Superme Court did conclude that the warrantless installation of a GPS device in an automobile violates the Fourth Amendment. I will not engage in an extended discussion here of Justice Scalia's opinion for the Court, or Justice Alito's concurring opinion for four Justices. I do note, however, that in her concurring opinion Justice Sotomayor cited the above-quoted language of Chief Judge Lippman's opinion in Weaver to emphasize the intrusive nature of GPS surveillance and what it can disclose about a person's private life. 
    At a recent bar association dinner I congratulated Chief Judge Lippman on his impact on Jones. I write here with the hope that the impact of Weaver is more widely appreciated.