Home -> Law Blog Directory -> Federal Judiciary Blogs -> California Appellate Report

Federal Judiciary

: California Appellate Report

Dietrich v. John Ascuaga's Nugget (9th Cir. - Dec. 1, 2008)

By Shaun Martin

It's a random point, but I just wanted to share how much I appreciated footnote 3.

The judgment in this case probably became final -- at least as to some of the defendants -- on September 27, 2006, and the notice of appeal was filed on Monday, October 30, 2006. Which predictably (and to its credit)made the court inquire whether the notice of appeal was late, since the thirty days to appeal would appear to have ended on Friday, October 27, 2006.

Judge Graber doesn't mention it in her opinion, but I listened to the oral argument, and Judge Graber made this point to appellant's counsel about eight minutes in. To which counsel, who hadn't prepared anything on (or even thought about) this point for oral argument, mumbled some inapplicable words in response. And the court didn't seem too sure about the point either. And when the court (around 15 minutes in) asked the same question to appellee's counsel, more words were again mumbled, none of which were especially relevant. (All of the participants seemed focused on the Monday issue, but if the 30-day period expired on Friday, you don't normally get until Monday).

What no one mentioned -- but eventually everyone figured out, albeit after oral argument -- were the following two dispositive magic words: "Nevada Day."

You heard me. Nevada Day. Nevada was admitted to the Union on October 31st, 1864. So every October 31st was traditionally a holiday. At least in Nevada. And, as you know, under Rule 6, if it's a holiday in the state in which the district court sits (here, Nevada), it doesn't count.

But why does that matter? How does a traditional state holiday on October 31st affect the timeliness of an appeal that was due on October 27th?

More Nevada history for you. Sure, October 31st seemed the right day for a holiday. And so it was for a century or so. But what a bummer to have a holiday on Halloween, right? Don't you want two holidays? Or one holiday day and another celebratory night? What about a day just for Nevada, without a confusing -- if accurate -- reference to All Souls?

Or at least that persuaded the voters of Nevada, who in November 1998 voted to ask the Legislature to please change the day. And, after much heated debate, apparently, the Nevada Legislature eventually complied. In an act that changed the date of Nevada Day to the last Friday in October.

So what about Friday, October 27, 2006? You guessed it. Nevada Day. Hence the appeal is timely.

A neat little story. Regarding a holiday (and the consequences thereof) I couldn't have otherwise named for (as they say) all the tea in China.

P.S. - This is also a reminder that, prior to oral argument on appeal, to always spend three or four minutes making sure you're prepared on jurisdictional stuff like the timeliness of the appeal. It's a tiny issue. But one about which appellate courts often care. It's worth the marginal investment. Trust me.

Full post as published by California Appellate Report on December 01, 2008 (boomark / email).