Strict Adherence to Deadlines

Mon Jun 18 16:39:15 PDT 2007

I'm pleased my earlier brief comment was ignored, since I didn't at that
time understand that the appeal was from denial of habeas relief.
Perhaps this post will have a bit more merit.

One of the questions here is what was relied upon. The reliance was not
on the 1962 and 1964 cases  (Harris Truck and Thompson) that were
overruled by the Supreme Court in Bowles but rather on the district
court judge's mistaken order. There was no authority for the judge to
grant 17 days rather than 14 days so that the appeal would have been
timely; instead there was only authority that an untimely filed appeal
could be considered under "unique circumstances." If Harris Truck and
Thompson had been overruled ten years ago, the defendant and his counsel
in this case would have apparently have done nothing differently. Then
we would not be having this discussion, because the issue would not have
been cert-worthy.

Had the trial court order allowed 17 days in reliance on Supreme Court
decisions giving the trial court discretion to increase the time for
filing the appeal, then there would be an extraordinarily compelling
argument for applying the overruling of such decisions only
prospectively. The argument here for only prospective application is
much weaker, given that there was no such authority for the trial court
or the defendant or the defendant's counsel to rely on. They did not
even rely on the authority that has now been overruled, which makes the
case for only prospective application even less strong.

On the other side of the scales you have the interest in government
actors not taking for themselves authority not given to them under the
law. If under any reasonable interpretation of the statute (28 USC
section 2107(c)) the circuit court did not have jurisdiction, then for
the circuit court to take for itself power to review a conviction by a
state court would be troubling. I think a reaction against arrogation of
power is a common thread in a lot of the situations in which
conservatives are bothered by judicial decisions. Whether it's Roe or
Goodrich, or even a federal court taking power that it was not given to
second-guess a state court, conservatives are concerned when it appears
that courts take power to themselves that they have not fairly been
given under our constitutions and statutes.

I do hope that the Governor of Ohio will take a very close look at Mr.
Bowles' case, and grant any relief that is justified. Court processes
often are flawed, and if there was a meritorious ground that Mr. Bowles
lost due to the late filing of the appeal, the Governor should take
action. Of course, that would require the Governor to see the matter in
a different light than the state court and in a different light than the
federal district court that rejected the habeas petition. It seems
unlikely there is anything there, but it should be considered. I'd
happily sign a petition asking the governor to take that step.

Mark S. Scarberry
Pepperdine University School of Law

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Bernard Bell
Sent: Monday, June 18, 2007 3:58 PM
To: James Blumstein; conlawprof at lists.ucla.edu
Subject: Re: Strict Adherence to Deadlines

    As I recall, though, Locke (a classic statutory interpretation case
involving presumed "legislative intent" versus text) differs from Bowles
in a significant respect.  In Locke, I believe, there was not much of a
reliance argument -- Locke's counsel was not relying on an order from a
federal judge or anything else that would give rise to an estoppel
interest.  (Indeed, Locke's counsel may not have even asked for a waiver
of the statutory deadline; his main, and perhaps only, argument was that
his reading of the statute, that a claim could be filed on December 31,
was the correct one.)  Note also that Justices Brennan and Sevens
dissented.  
    I have no doubt that at times judges on various parts of the
spectrum of judicial philosophy and ideology will at times demand strict
adherence to deadlines.  I do suspect, though, that judicial philosophy
and ideology will play a role in how often a judge will insist on strict
adherence to deadlines, and in what types of cases.

Regards,

Bernie Bell

Bernard W. Bell
Associate Dean for Academic Affairs & Faculty Professor & Herbert
Hannoch Scholar Rutgers Law School-Newark
123 Washington Street
Newark, NJ 07102
(973) 353-5464 (voice)
(973) 353-1445 (fax)
bbell at kinoy.rutgers.edu

>>> "Blumstein, James" <james.blumstein at law.vanderbilt.edu> 6/18/2007
6:16 pm >>>
Apropos of the recent discussion of filing deadlines, List members may
be interested in an opinion by Justice Marshall, U.S. v. Locke, 471 U.S.
84 (1985), in which he ruled that parties forfeited significant rights
because they filed the required materials on December 31 when the
relevant law required that the materials be filed "prior to December
31."  Strict adherence to time filing deadlines can cut across the
judicial philosophical spectrum..... 

_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu To subscribe,
unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof 

Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly
or wrongly) forward the messages to others.
_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu To subscribe,
unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof 

Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly
or wrongly) forward the messages to others.