The New York Blawg Round Up
The New York Legal News Round Up

The Pendulum Swings Madly

Drlogo11This week's Legal Currents column, which is published in The Daily Record, is entitled "The Pendulum Swings Madly"  The article is set forth in full below, and a pdf of the article can be found here.

My prior articles can be accessed here.

The Pendulum Swings Madly

At issue in Bowles v. Russell, No. 06-5306, a decision recently handed down by the U.S. Supreme Court, was whether the time limits for filing an appeal were jurisdictional and, thus, could not be waived no matter what the reason for the lapse in timely filing an appeal.

At first glance, this decision seems fairly routine, but there is far more to this case than meets the eye. Lurking just below the surface is a fascinating study of the ebb and flow of constitutional jurisprudence. But, inquisitive constitutional scholars beware: The pendulum of justice can sometimes swing suddenly and quickly, so be prepared to duck.

In Bowles, the imprisoned petitioner filed a federal habeas corpus application, which was denied by the District Court. He subsequently failed to appeal the denial within the 30 days allowed by federal statute and, therefore, moved for an extension of time in which to file his notice of appeal. His motion was granted, but the District Court judge’s order inexplicably allowed 17 days in which to file his notice of appeal rather than the statute’s mandated 14 days. Bowles filed his notice of appeal within the order’s time period, but outside of the timeframe allowed for by statute.

The Court of Appeals concluded that because the notice of appeal was untimely filed, it lacked jurisdiction to hear the case. The Supreme Court then granted certiorari.

Not surprisingly and in keeping with the oft-repeated pattern established this term, the majority and the dissent were sharply divided along familiar lines regarding this seemingly mundane procedural issue.

The majority opinion, authored by Justice Clarence Thomas, affirmed the lower court’s decision. The majority declined to apply the “unique circumstances” doctrine, a rule established in 1962 that allowed the court to make exceptions to jurisdictional rules in certain situations, such as when excusable error by an attorney had occurred. In doing so, the court expressly overruled two Supreme Court precedents and held that the time limits for filing a notice of appeal were jurisdictional and, therefore, could not be waived for any reason.

The dissent, written by Justice David Souter and joined by Justices Ruth Bader Ginsberg, Stephen Breyer and John Paul Stevens, asserted that the time limits in this case were not jurisdictional and that the majority ignored the fact that, in recent years, the court narrowed the definition of “jurisdiction,” an inherently ambiguous term.

Justice Souter then chastised the majority for their alleged hypocrisy: “In ruling that Bowles cannot depend on the word of a District Court Judge, the Court demonstrates that no one may depend on the recent, repeated and unanimous statements of all participating Justices of this Court. Yet, more incongruously, all of these pronouncements by the Court, along with two of our cases, are jettisoned in a ruling for which the leading justification is stare decisis.

“My initial inclination as a criminal defense attorney was to side with the dissent, since to deny a prisoner the opportunity to challenge his conviction due to the error of a District Court judge offended my basic sensibilities.”

Justice Souter’s lofty and convincing language in the dissent served only to further convince me that a great injustice occurred in this case.

That was until I read the first footnote of the dissent, FN1, which states: “The court thinks my fellow dissenters and I are forgetful of an opinion I wrote and the others joined in 2003, which referred to the 30-day rule of 28 U.S.C. § 2107(a) as a jurisdictional time limit. See ante, at — 5 (quoting Barnhart v. Peabody Coal Co., 537 U.S. 149, 160, n. 6, 123 S.Ct. 748, 154 L.Ed.2d 653 (2003)). But that reference in Barnhart was a perfect example of the confusion of the mandatory and the jurisdictional that the entire Court has spent the past fouryears repudiating in Arbaugh, Eberhart, and Kontrick. My fellow dissenters and I believe that the Court was right to correct its course; the majority, however, will not even admit that we deliberately changed course, let alone explain why it is now changing course again.”

After reading this footnote, it suddenly occurred to me that a helmet of some sort might be in order when tackling this issue, since it would seem that this particular pendulum has been swinging back and forth with glee since the early 1960s, with no end in sight.

Quite frankly, I’m not sure which side is technically correct. Equity would seem to side with Bowles, while the latest Supreme Court precedent comes down squarely against him.

I’m not sure if we’ll ever know the answer to the question of whether time limitations are jurisdictional. But rest assured, I can comfortably predict with utmost confidence that we’ll always have an answer, since the pendulum will continue to swing wildly to and fro. Of that I have no doubt.

And, for your viewing entertainment, a video about the balance of the Supreme Court and the importance of the 2008 elections:


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