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.