Legal News

A Holiday Gift for Appellate Procedure Wonks

By Brian Harris

In early December, the Supreme Court issued its first four opinions in cases argued this term.  In reporting on the decisions, Adam Liptak, the New York Times? Supreme Court correspondent, referred to them as ?all minor? cases.  But to appellate procedure wonks (and if you?re reading this blog post, you may be one), the decisions were far from ?minor.?  To the contrary, their subject matter ? covering principles of mootness, waiver and jurisdiction ? was interesting and their results potentially significant.

The first decision (alphabetically) was Alvarez v. Smith.  The issue in Alvarez, at least initially, was ?whether Illinois law provides a sufficiently speedy opportunity for an individual, whose car or cash police have seized without a warrant, to contest the lawfulness of the seizure.?  However, the court did not reach this due process question because, at oral argument, the court was informed that each of the underlying property disputes in the case had been resolved.  Thus, the court found the case moot and vacated the judgment of the Court of Appeals, which had ruled in favor of the plaintiffs, and remanded to that court with instructions to dismiss the case.

Interestingly, both sides to the dispute urged the court to reach the merits, but the court held that the plaintiffs had no concrete interest in resolution of the question whether the state?s procedures were lawful.  According to the court, that dispute ?is an abstract dispute about the law, unlikely to affect these plaintiffs any more than it affects other Illinois citizens.?  The court then decided what it referred to as the ?less easy? issue of what to do with the lower court?s judgment: vacate it or leave it intact.  While the court?s default rule when a case becomes moot is to vacate the lower court judgment, it has applied an exception where mootness results from the parties? settlement of the case.  Finding the procedural history of this case more consistent with the default situation (i.e., mootness through happenstance) than mootness through settlement, the Court vacated the appeals court?s judgment in favor of the plaintiffs.  Justice John Paul Stevens dissented on this latter point, arguing that the general rule against vacating judgments that become moot due to settlement should apply in this case.

In the second case, Beard v. Kindler, the court addressed the sometimes convoluted and always complex area of habeas law known as ?procedural default.?  Under this doctrine, a federal court cannot rule on the merits of a habeas petitioner?s claims if a state court refused to reach the merits of those claims on the ground that the petitioner had not complied with a state procedural rule.  However, for procedural default to apply, the state rule that is invoked to preclude a merits determination must be firmly established and consistently and regularly applied.  In other words, invocation of a state procedural rule that is arbitrarily or unfairly applied is not a sufficient ground to preclude habeas review in federal court.

In Kindler, the 3rd U.S. Circuit Court of Appeals had held that Pennsylvania?s fugitive forfeiture rule, under which fugitives forfeit their right to appeal their convictions, was not consistently and regularly applied, and thus, was not a sufficient ground to preclude consideration of a habeas petitioner?s claims.  The commonwealth petitioned for a writ of certiorari, arguing that the 3rd Circuit had erroneously held that a state procedural rule cannot be the basis for procedural default if the rule is discretionary rather than mandatory.  The habeas petitioner agreed that a discretionary state rule could form the basis for procedural default, but contended that the 3rd Circuit had not held otherwise.  Despite the parties? agreement on this point, the Supreme Court granted the commonwealth?s petition and, following briefing and argument, held that ?a discretionary state procedural rule can serve as an adequate ground to bar federal habeas review.?

The third case generated the most notice in the press, but not for substantive reasons.  Mohawk Industries Inc. v. Carpenter represented new Justice Sonia Sotomayor?s first opinion as a Supreme Court justice.  Substantively, the case is much more significant than the non-legal press reports would indicate.

In general, pretrial decisions of federal district courts are non-appealable.  For the most part, only ?final judgments? of the district courts are appealable.  Thus, if a district court orders a party to produce certain documents the party seeks to withhold or orders a witness to answer questions at a deposition that the witness?s attorney has instructed the witness not to answer, those decisions may not be immediately appealed.  Only after a final judgment is entered in the case can the losing party in those situations challenge the court?s pretrial rulings.  And if that party prevails in the case (through, for example, summary judgment or a jury verdict in the party?s favor), the pretrial rulings likely will be insulated from review by the rule that a prevailing party has no standing to appeal from a final judgment in its favor.

Certain exceptions exist to these general principles, largely from statutes or procedural rules, although one ? the one at issue in Mohawk ? is judge-made.  The collateral order doctrine, first adopted by the Supreme Court 60 years ago, provides that certain interlocutory orders are immediately appealable if they resolve important questions separate from the merits of the case and are effectively unreviewable on appeal from the final judgment.  In the past dozen years, three circuits ? including the 3rd Circuit ? had held that orders compelling a party to produce materials allegedly protected by the attorney-client privilege fell within the collateral order doctrine.  Six circuits, including the Eleventh Circuit in the decision under review in Mohawk, had ruled to the contrary, finding such orders non-appealable.

In Mohawk, the Supreme Court unanimously sided with the latter group of appeals courts and rejected the minority (and 3rd Circuit) view that such orders were immediately appealable.  In doing so, the court disagreed with the argument by the defendant corporation and its supporters (including the American Bar Association) that an order compelling the production of privileged material is effectively unreviewable after final judgment.  The court found no basis for distinguishing orders requiring the production of attorney-client privileged materials from other pre-trial discovery orders.  The court noted that, as with the latter type of order, if a pretrial ruling on privilege prejudiced a losing party (for example, through the erroneous and prejudicial admission of evidence at trial), effective relief on appeal from a final judgment could be had through a reversal and order of a new trial.

Finally, in Union Pacific Railroad Co. v. Locomotive Engineers & Trainmen General Committee of Adjustment, another unanimous decision, the court addressed five decisions of the National Railroad Adjustment Board in which that agency had refused to reach the merits of disputes between railroads and their unions because of alleged ?jurisdictional? defects in the cases.  The Supreme Court reversed the board?s rulings, holding that the board had no authority to decline to exercise the jurisdiction conferred on it by Congress, even where a party failed to comply with a procedural rule established by the board.

None of the Supreme Court?s first four decisions addressed substantive legal issues, such as the constitutionality of a state law, interpretation of a federal statute or a cutting-edge issue such as executive authority to hold enemy combatants.  Yet, each of the cases involved important issues of procedure that, like many rulings regarding procedure and jurisdiction, could potentially affect numerous subsequent cases raising these important substantive issues, not only in the Supreme Court, but in lower state and federal courts and administrative agencies.

This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.

Bruce P. Merenstein
Schnader Harrison Segal & Lewis LLP
www.schnader.com

Full post as published by The Legal Intelligencer Blog on January 05, 2010 (boomark / email).