Appellate Practice: When is an Attorney "Aggrieved"?

One of the fundamentals of appellate practice is that only a party "aggrieved" by an order or judgment can appeal that determination. This is true in the federal courts, Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 333 (1980)("only a party aggrieved by a judgment or order of a district court may exercise the statutory right to appeal therefrom"), and it is true in the New York State courts. CPLR § 5511 (an "aggrieved party" may appeal).

There is a vast, and sometimes arcane, body of case law on who is an aggrieved party. Generally speaking, a party is aggrieved when he does not prevail, as when an order or judgment is entered against him, or his motion for affirmative relief is denied.

Can an attorney representing a party be aggrieved? The question arises, for example, when an attorney moves to have a court sanction opposing counsel for frivolous or improper conduct during the litigation. Suppose the judge denies the motion to sanction the attorney but in the course of his opinion he makes comments critical of the attorney. Can the attorney appeal the order which did not sanction him because he objects that the judge's critical comments are unjustified?

Today in Keach v. County of Schenectady the United States Court of Appeals for the Second Circuit concludes that the criticized but unsanctioned attorney is not an aggrieved party and, therefore, the appellate court has no jurisdiction to hear his appeal. The opinion can be found here.

For an attorney to be aggrieved for purposes of appeal, says the Second Circuit, the attorney must have suffered an adverse decision. Critical words alone are not reviewable by an appellate court. On the other hand, an attorney is an aggrieved party if he is sanctioned by the court, or the court makes specific findings that the attorney violated a rule of professional conduct, or a court refers the attorney's alleged misconduct to a disciplinary committee. "An appellate court can reverse an order imposing a sanction or making a finding that an attorney has violated a rule of professional conduct; it has no power to reverse a judge's poor opinion of the skill or trustworthiness of a lawyer who has appeared before him or her. "

Appellate Courts and Stare Decisis

The most difficult task facing any appellate attorney is convincing an appeals court to overrule its own precedent.

Because stare decisis has identifiable benefits it has a strong pull on appellate courts. The doctrine promotes political and social stability, adds certainty to commercial transactions, and fosters public confidence in the legal system by suggesting that the law does not change simply because some judges on an appellate court have been replaced by other judges.

But everyone agrees that precedent can be overruled. The question is when and for what reason. That is the rub. Courts, for example, are slow to overrule precedent in matters affecting real property and contracts so as not to unsettle long established legal relationships and expectations. On the other hand, it is argued that stare decisis should have less significance in constitutional law: because the Constitution is so difficult to amend the United States Supreme Court for all practical purposes has the final word on what the document means, and, therefore, the Court should be more amenable to rethinking some prior ill-considered or time worn decision.

Last week's Supreme Court ruling in Citizens Union v. Federal Election Commission brings all of this to mind. The five Justices in the majority not only overrule two of the Court's decisions, one from 1990 and the other from 2003. They also reject the distinction the Court and the Congress have drawn for a century between speech by a natural person and speech by a corporation, and discard Congressional restrictions on corporate financial contributions to candidates for public office. What effect this will have on political campaigns will be the subject of debate well into the future.

For appellate attorneys, however, the concurring opinion of Chief Justice Roberts, and the dissenting opinion of Justice Stevens, are required reading. Part Two of each opinion is devoted to an extraordinary analysis of stare decisis, and each opinion lays out its own road map for when an appellate court should, or should not, overrule precedent. The opinions are essential for any attorney preparing to argue that a precedent should be overruled, and for any attorney maintaining precedent should be reaffirmed.

Improper Dismissal of Civil Claims: The Procedural Niceties

New York's civil law is filled with procedural niceties which can make or break a case. Two recent decisions by the Appellate Division, Second Department, and the United States Court of Appeals for the Second Circuit, illustrate the point.

Because an opening statement to the jury in a civil case is supposed to lay out what the plaintiff intends to prove, it is often said that the failure of counsel to refer in his opening to a particular cause of action will entitle the defendant to dismissal of the omitted cause of action.

But in Beshay v. Eberhart the Appellate Division clarifies that dismissal after the opening statement of plaintiff's counsel is limited to situations in which (1) the complaint fails to state a cause of action, (2) the opening statement admits as fact a defense which has been interposed, or (3) plaintiff's counsel makes an admission or statement which so completely compromises his or her case that the court is justified in awarding judgment as a matter of law to the defendant. The decision can be found here.

In Hanrahan v. Riverhead the Second Circuit addresses CPLR § 1003 which authorizes a New York trial court to dismiss a complaint for failure to join a necessary party. The court notes that § 1003 calls for dismissal without prejudice, which means it is not a dismissal on the merits.

After suffering a § 1003 dismissal, plaintiff Hanrahan brought suit in federal court instead of refiling in state court. Because the § 1003 dismissal was not on the merits, the Circuit Court concludes that the federal action is not barred by res judicata.

The Second Circuit does give a procedural warning: a dismissal by the New York courts on the grounds a suit is untimely is considered a dismissal on the merits by the New York Court of Appeals. A suit dismissed in the New York courts on statute of limitations grounds and later brought in federal court will, therefore, be dismissed in federal court on grounds of res judicata. The Second Circuit opinion can be found here.

Proof of Prior Criminal Conduct

One of the more knotty procedural issues at a criminal trial arises when a prosecutor seeks to place in evidence before a jury proof of a defendant's prior criminal conduct.

In the seminal case People v. Molineux, 168 N.Y. 264 (1901), the New York Court of Appeals concluded that evidence of a defendant's prior criminal conduct is admissible only when relevant to establish motive, intent, absence of mistake, a common scheme, or the identity of the person charged with the crime on trial.

In the federal courts the issue is addressed by Federal Rule of Evidence 404. While Article 45 of the CPLR covers many evidentiary matters, New York has not codified the Molineux rule. As a result, there is now an enormous body of case law, developed since 1901, interpreting Molineux.

The basic concern is one of policy: a person should not be convicted of a crime because of his "bad character" or because his prior conduct indicates he has a propensity to commit the crime for which he is now on trial. Guilt must be established solely by evidence which specifically shows the commission of the crime being tried. But as the vast body of case law indicates, applying the policy is not always a simple matter.

The latest addition to the case law is recommended reading: the opinion of Justice Steven W. Fisher for the Appellate Division, Second Department, in People v. Wilkinson . The decision contains an excellent survey of the application of the Molineux rule by New York's appellate courts. The decision can be found here.

Supreme Court: Effective Assistance of Counsel in Capital Cases

Since the current Term of the United States Supreme Court began in October, the Court has issued thirteen opinions.

A remarkable five of those opinions have addressed claims that a criminal defendant was denied his constitutional right to the effective assistance of counsel. All five of these cases are death penalty cases, and all five address the penalty phase of a capital case.

A capital trial is bifurcated: the jury must first determine whether the defendant is guilty of a capital offense. If the jury finds the defendant is guilty, a second trial is then conducted before the same jury at which the jurors must decide whether to impose the death penalty.

In many death penalty cases the evidence of guilt is overwhelming, so the strategy of defense counsel is to focus on phase two: trying to convince the jury to spare the defendant's life. The difficulties for defense counsel at the penalty phase are self-evident: the crime is horrific, and the defendant may not cut a very sympathetic figure.

Ineffective assistance of counsel claims are very fact specific. It is, therefore, unusual for the Court to address so many of them in such a short period of time. I think this does reflect a general uneasiness that all capital defendants are not being adequately represented at the trial level.

But I think the fact that all five cases address the sentencing phase of a capital case also reflects a message from the Court: in light of the difficult hand dealt to defense counsel at the penalty phase--trying to elicit a sympathetic response from a jury, or trying to find a redeeming or mitigating fact, for someone already convicted of a horrific crime--only so much can be constitutionally expected of defense counsel.

Court of Appeals: Judicial Salaries

The New York Court of Appeals sat for three days of oral arguments last week, and will sit for three days of arguments this week. The next oral arguments will be in February.

Of the thirteen cases the Court will hear this week, the most compelling from a legal as well as a political point of view are the three cases to be argued tomorrow which bring up for review the question of the Legislature's failure to raise judicial salaries since 1999.

The issue is "linkage": the Legislature has refused to raise judicial salaries unless it also raises legislators' salaries. The question is whether linking raises in the two salaries violates the State Constitution. The Appellate Division, Third Department, concluded that linkage does not violate the State Constitution, while the Appellate Division, First Department, concluded that it does.

Chief Judge Lippman has recused himself because he was a plaintiff in one of the cases when he was Presiding Justice of the Appellate Division, First Department. The remaining six judges of the Court will hear the case based on the "rule of necessity": when judges should recuse themselves because of a conflict of interest (as here where judges will pass judgment on their own salaries) they will, nevertheless, decide the case because they are the only judges who can decide the case.

While judges are plainly entitled to a salary increase, I have not been persuaded by the legal claims against linkage. The State Constitution's Compensation Clause, like the same clause in the Federal Constitution, prohibits the legislative branch from reducing judges' salaries. The First and Third Departments concluded, as the United States Supreme Court concluded when interpreting the Federal Constitution, that the Compensation Clause is not violated when unchanged judicial salaries are eroded by inflation.

The argument is made under the Separation of Powers Doctrine that by failing to increase judges' salaries the Legislature is undermining the independence of a co-equal branch of government. But the independence of the judiciary is explicitly protected by the Compensation Clause which prohibits the Legislature from retaliating against judicial decisions by reducing judges' salaries. In light of the explicit Compensation Clause, I do not think that from the State Constitution's scheme of separation of powers an inference can be drawn that there is a constitutional obligation imposed on the Legislature to increase judicial salaries. A judge's salary is a matter for the political process.

Oral argument begins tomorrow at 2 p.m. You can watch the webcast by going to the Court's website which can be found here.

Supreme Court Note: beginning today the United States Supreme Court will hear three days of oral argument this week, and two days of arguments next week. Among the cases to be heard are Abbott v. Abbott which addresses the application of provisions of the Hague Convention on International Child Abductions when one parent takes a child to another country without the consent of the other parent; American Needle v. National Football League which addresses whether the NFL is exempt from the Sherman Antitrust Act; and Briscoe v. Virginia which will give the Court a further occasion to explore the full reach of Crawford v. Washington, 541 U.S. 36 (2004), the Court's seminal ruling on the Right of Confrontation.

Supreme Court: Major Prosecutorial Misconduct Case Settled

One of the major criminal justice cases of the current Term of the United States Supreme Court has been settled after oral argument.

As I reported in November, Pottawattamie County, Iowa v. McGhee raised the question of the limits on prosecutorial immunity from civil suit.

The Supreme Court has long held that prosecutors are immune from civil suit for damages under 42 U.S.C. § 1983 for actions and decisions taken in connection with the prosecution of a case. In Pottawattamie County the claim was made that the prosecutor procured false testimony during the investigation of a case and then used that testimony against the defendant at trial. The United States Court of Appeals for the Eighth Circuit concluded that there is no prosecutorial immunity "where the prosecutor was accused of both fabricating evidence and then using the fabricated evidence at trial."

Oral argument was heard by the Supreme Court on November 4. On Monday the plaintiff's law firm announced that the case has been settled for $12 million, which suggests that the defendant county was not encouraged by the Justices' questions at oral argument.

I am not aware whether statistics are kept of cases which are settled after the Supreme Court has granted the writ of certiorari and heard oral argument. I am certain, however, that Pottawattamie County is very unusual.

2009: Waiting for 2010

As I look back on 2009 I realize that I will not know the results of many of my appellate efforts until 2010.

Unlike trial attorneys who quickly learn the result of their labors when the verdict is announced, appellate lawyers often will not know the outcome of an appeal until many months after the case has been argued. An appellate decision is the collective effort of a panel of judges. Drafting the opinion, and getting all the judges to agree, can take time. And if there is a dissenting opinion, the process can take even longer.

In a number of instances, therefore, my clients and I must wait until 2010 for the outcome of appeals I argued in 2009. In March I appeared before the Appellate Division on behalf of a company unhappy with the way in which the lower court addressed a fee award made by arbitrators to the company's attorneys pursuant to the fee arbitration program established under the Rules of the Chief Administrator of the Courts. See, Rules of the Chief Administrator § 137.0 et seq. In the company's view, the lower court made additions to the fee award which are not authorized by New York law.

In August, I argued before the United States Court of Appeals for the Second Circuit on behalf of a group of law firms that the District Judge correctly ruled that the firms, which did not prevail in their suit against the defendant corporation, did not engage in bad faith litigation and, therefore, should not be required to pay the defendant's substantial legal fees.

I am also waiting for (a) the result of an appeal from the Surrogate's Court which maintains that the Surrogate erroneously ruled that a husband is not disqualified from taking his spousal share of his wife's estate although he abandoned her 32 years before her death; (b) the result of an appeal which maintains that after a judge has recused himself from a case he cannot later sua sponte reenter the case; and (c) the result of an Article 78 proceeding in the Appellate Division.

One wait has turned out well. My application for leave to appeal to the New York Court of Appeals in a criminal case, pending since July, was granted this month. Once a case is accepted for review by the Court of Appeals, it will move along pretty quickly. I, therefore, feel confident I will not have to wait until 2011 for a decision.

Happy New Year to all.

A Busy December

While an appellate practice is generally more "relaxed" than a trial lawyer's practice because deadlines are more spaced apart in appellate courts, December has been more hectic for me than usual.

First, on December 2nd I argued a very interesting civil appeal before the Appellate Term, Second Department: after a judge has recused himself from a case, and another judge is presiding over the matter, can the first judge sua sponte "revoke" his recusal and direct that a trial proceed before him?

There is little case law in New York or elsewhere on the issue (probably because few judges try to undo a recusal), but the general rule is that after a judge has recused himself he no longer has any authority to do anything further in the case. That is what I argued, and now I await the appellate determination.

Second, on December 3rd I chaired the New York State Bar Association's all-day appellate practice CLE in Manhattan. About 120 lawyers attended. By all accounts it was very well received, with some attorneys telling me it was the best CLE program they had ever attended!

Third, on December 4th I appeared in Supreme Court, Kings County, for an extended oral argument of a motion pursuant to Criminal Procedure Law Article 440 which is related to a homicide appeal I am handling.

Fourth, on December 7th I filed a brief with the Appellate Division, First Department, which raises the question of whether attorney's "fees on fees" can be awarded under a judicial stipulation of settlement which provides for attorney's fees, but does not expressly provide for "fees on fees"?

Fifth, on December 17th I will appear before the Appellate Division, First Department, for oral argument of an Article 78 proceeding.

Busy, yes. But fortunately each case is unique, and each case raises absorbing appellate issues.

Appellate Practice CLE This Week

If you want to become familiar with the basics of appellate practice in New York, or you simply want to fine tune your appellate skills, this Thursday, December 3, I will be chairing an all-day Continuing Legal Education program on appellate practice sponsored by the Committee on Courts of Appellate Jurisdiction of the New York State Bar Association.

The program, which begins at 9 a.m. and concludes at 4:45 p.m., will he held at the Affinia Manhattan Hotel, 371 Seventh Avenue, at 31st Street.

The program will present insiders' views from Stuart Cohen, the Clerk of the New York Court of Appeals; John W. McConnell, Clerk of the Appellate Division, First Department; and James Pelzer, Clerk of the Appellate Division, Second Department. Justice Angela M. Mazzarelli, of the Appellate Division, First Department, will speak on brief writing and oral argument, and experienced appellate attorneys will address such matters as stays pending appeal, and preservation of error.

The session will conclude in the afternoon with a panel discussion, "Differences in Briefing and Arguing a Case in the Court of Appeals and in the Appellate Division." Panelists will include two experienced appellate attorneys and Chief Judge Jonathan Lippman and Justice Steven W. Fisher, of the Appellate Division, Second Department. Former Justice of the Appellate Division Betty Weinberg Ellerin will chair the panel.

This is a wonderful and valuable opportunity to hear from very experienced appellate judges and attorneys. A 487 page book is included with the program which carries seven CLE credits. Walk-in registration is available.

U.S. Supreme Court: Again, No Denial of the Effective Assistance of Counsel

For the second time in eight days the United States Supreme Court has unanimously reversed a United States Court of Appeals and ruled that a criminal defendant facing the death penalty was not denied his constitutional right to the effective assistance of counsel.

Last week I reported that the Court in Bobby v. Van Hook concluded that the Sixth Circuit had erred when it ruled that the defendant was denied the effective assistance of counsel at the sentencing phase of his capital trial.

Earlier this week in Wong v. Belmontes the Court reversed the Ninth Circuit and concluded that the defendant was not denied the effective assistance of counsel at the sentencing phase of his capital trial. While the Court issued a per curiam opinion, the opinion is notable for the extraordinary detail with which the Court examines the facts to reach its conclusion that the defendant was not prejudiced by the tactical choices made by defense counsel at the sentence hearing before the jury. The opinion can be found here.

Second Circuit: The "Fifth Avenue Rule" for New York City Parades

Fifth Avenue in Manhattan is the most famous and most desirable parade route in New York City.

Informally since 1971, and by statute since 2001, the City will not grant a permit for a parade on Fifth Avenue to a "new" parade--a parade which has not previously marched on Fifth Avenue. The City first adopted the informal rule after the number of Fifth Avenue parades increased to 18, and it justifies the "Fifth Avenue Rule" on the grounds of the "over-saturation" of parades in one of the most congested areas of the City--midtown Manhattan.

In International Action Center v. City of New York the United States Court of Appeals for the Second Circuit today upheld the constitutionality of the Fifth Avenue Rule, concluding that the rule is not content based in violation of the First Amendment, but applies equally to all "new" parades regardless of the political or cultural views being expressed in the parade. The decision can be found here.

I had long noticed that the groups parading on Fifth Avenue were the same year after year. I now understand why: the Fifth Avenue Rule.

U.S. Supreme Court Update

Since the opening of the new Term of the United States Supreme Court in October, the Court has issued two opinions. The first, Corcoran v. Levenhagen, I discussed here on October 23.

Earlier this week in Bobby v. Van Hook, the Court unanimously reversed the United States Court of Appeals for the Sixth Circuit and concluded that the defendant was not denied his constitutional right to the effective assistance of counsel at the sentencing phase of his capital trial.

The defendant Van Hook was tried in 1985. The Supreme Court's opinion is notable for two reasons. First, it is highly critical of the Sixth Circuit's reliance on the American Bar Association Guidelines for capital cases issued in 2003, or 18 years after Van Hook's trial.

Second, the Court is critical of the Sixth Circuit treating ABA guidelines as "inexorable commands with which all capital defense counsel 'must fully comply.'" The Supreme Court's opinion emphasizes that ABA standards are "only guides" and are not the "definition" of what is reasonably expected of defense counsel. The decision can be found here.

New Supreme Court Data Bank: the Supreme Court Database, which contains a wealth of information about Court cases since 1953, is now online. It is supported by funding from the National Science Foundation. It can be found at scdb.wustl.edu/. Thank you to scotusblog.com for bringing this to my attention.

In the Supreme Court Tomorrow: Prosecutorial Immunity

The United States Supreme Court is hearing oral argument in eight cases this week relating to such matters as habeas corpus, bankruptcy, and the fees charged by investment advisers of mutual funds.

For me the most interesting case is Pottawattamie County, Iowa v. McGhee which will be argued tomorrow and raises the question of the limits on prosecutorial immunity from civil suit.

The Supreme Court has long held that prosecutors are immune from civil suit for damages under 42 U.S.C. § 1983 for actions and decisions taken in connection with the prosecution of a case. In Pottawattamie County the claim is that the prosecutor procured false testimony during the investigation of a case and then used that testimony against the defendant at trial. The United States Court of Appeals for the Eighth Circuit concluded that there is no prosecutorial immunity "where the prosecutor was accused of both fabricating evidence and then using the fabricated evidence at trial."

Eight amicus briefs have been filed with the Court representing the views of over 40 states and organizations.

Second Circuit: Costs on Appeal

Pursuant to Rule 39 of the Federal Rules of Appellate Procedure an award of costs can be made to the party prevailing on an appeal.

The United States Court of Appeals for the Second Circuit ruled yesterday in Moore v. The County of Delaware that while the award of costs to the prevailing party is "the norm and not the exception," an appeals court retains the discretion to determine whether the award of costs is appropriate in a particular case. The decision can be found here.

The plaintiff sued law enforcement personnel for an illegal search. While the Second Ciruit had concluded in a prior ruling that the plaintiff's constitutional rights were violated, it also concluded that in the circumstances here the defendants were entitled to qualified immunity from suit, and, therefore, they are the prevailing party on the appeal.

In yesterday's decision the court concluded that in light of the fact that the litigation was brought in good faith by the losing party--he had shown constitutional wrongdoing--and in light of the "meager financial resources" of the losing party, it would not award costs to the prevailing party.