Howard J. Bashman's appellate columns, etc.
An archive of Howard J. Bashman's monthly columns about appellate litigation, with other of his writings thrown in for good measureMonday, February 27, 2006
By Howard J. Bashman
Monday, February 27, 2006
On the U.S. Supreme Court's first official day of business after Justice Samuel A. Alito Jr. replaced Sandra Day O'Connor, the Court agreed to revisit the contentious issue of whether a ban on partial–birth abortion is constitutional. Because O'Connor provided the dispositive fifth vote to declare Nebraska's ban on partial–birth abortion unconstitutional, many believe that the Supreme Court in O'Connor's absence is now likely to reverse course and uphold the constitutionality of the federal Partial–Birth Abortion Ban Act of 2003 after hearing oral argument later this year.
[The remainder of this essay can be accessed online here at law.com.]
Monday, February 20, 2006
By Howard J. Bashman
Tuesday, February 21, 2006
The day after Senior Circuit Judge Max Rosenn died Feb. 7 at the age of 96, following more than 35 years of exemplary service on the 3rd U.S. Circuit Court of Appeals, that court issued a decision by a divided three–judge panel in which Rosenn cast the deciding vote. What, if anything, is wrong with this picture?
[The remainder of this essay can be accessed online here at law.com.]
Monday, February 13, 2006
Its Harsh Appellate Waiver Jurisprudence
By Howard J. Bashman
Monday, February 13, 2006
If you handle trials or appeals in the Pennsylvania state court system, you need to be aware of two opinions that the Supreme Court of Pennsylvania issued in late December 2005 on the issue of appellate waiver. Thus far, these two appellate waiver decisions have not received the attention that they deserve.
At issue in both cases was Pennsylvania Rule of Appellate Procedure 1925(b), which provides that after a party files a notice of appeal, the trial court "may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal.... A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of."
As I explained in this space back in June 2004, Rule 1925(b) has a laudable purpose: the rule allows the trial court to determine whether a sufficient explanation of the reasons for the ruling or rulings to be challenged on appeal already exists in the record. If the trial court concludes that additional explanation is merited, the trial court can issue a new opinion in support of what is being challenged on appeal.
As written, Rule 1925(b) is unobjectionable. Yet in 1998, the Pa. Supreme Court, in Commonwealth v. Lord, held -- notwithstanding Rule 1925(b)'s plain language that an appellate court "may" find waiver if the rule's requirements are not complied with -- that a failure to comply with Rule 1925(b) requires a finding of waiver.
In two decisions issued on December 29, 2005, the Pa. Supreme Court expanded even further the scope of the mandatory waiver that the earlier decision in Lord had adopted. In Commonwealth v. Castillo, one of the two decisions issued late last month, Pennsylvania's highest court confronted a case in which Castillo had filed his Rule 1925(b) statement of issues to be raised on appeal after expiration of the 14–day period for filing specified in that rule. Notwithstanding the lateness of that filing, the trial court issued an opinion addressing the issue identified in Castillo's Rule 1925(b) statement.
On appeal to the Superior Court of Pennsylvania, Castillo's attorney raised not only the issue identified in his client's belated Rule 1925(b) statement but also some additional issues. The Superior Court ruled that the additional issues were waived because they had not been raised in the Rule 1925(b) statement, but the court also ruled that Castillo was entitled to a new trial based on the issue that he had raised in his untimely Rule 1925(b) statement.
The prosecution then asked the Supreme Court of Pennsylvania to review the Pa. Superior Court's ruling, and the Supreme Court agreed to hear the case to decide whether "to allow discretion in the intermediate appellate courts to review an issue that was not raised in a timely statement of matters complained of on appeal under Pa. R.A.P. 1925(b)."
The Pa. Supreme Court consolidated its review of the Castillo case with a case captioned Commonwealth v. Schofield that raised a similar issue. In Schofield, the defendant had been convicted of several criminal offenses including first degree murder, and she received a sentence of life imprisonment. Somehow, Schofield managed to find herself proceeding pro se, without an attorney, immediately after her notice of appeal had been filed in the trial court.
During the time that Schofield was without counsel, the trial court entered a Rule 1925(b) order requiring Schofield to identify the issues that she intended to raise on appeal. Schofield claims to have filed a timely Rule 1925(b) statement, but the trial court's records contained no evidence that the statement had been filed with the trial court's Prothonotary’s Office. Nevertheless, apparently Schofield did serve the Rule 1925(b) statement on the trial judge, who thereafter issued an opinion addressing the issues raised in the defendant's Rule 1925(b) statement.
On appeal to the Pa. Superior Court, that court by a 2–1 margin ruled that Schofield had waived all issues for appeal by failing to comply with Rule 1925(b)'s requirement that the statement be timely filed "of record in the trial court" in addition to being served on the trial judge. The dissenting judge vigorously disagreed, asserting that the purpose of Rule 1925(b) had been satisfied because the trial judge had been informed of the issues Schofield intended to raise on appeal and because the trial judge had filed an opinion addressing those issues, thereby allowing the Superior Court to conduct meaningful appellate review.
On December 29, 2005, the Supreme Court of Pennsylvania announced its rulings in Castillo and Schofield. In both cases, the Supreme Court held by identical 6–1 margins that the failure of the parties appealing from the trial court to both file and serve on the trial judge a Rule 1925(b) statement within the 14–day period required under that rule resulted in the forfeiture of all issues that could have been raised on appeal.
The effect of that ruling was especially harsh in the Schofield case, where the defendant, sentenced to life imprisonment, has no ability to claim ineffective assistance of counsel since she was pro se at the time her Rule 1925(b) filing was due. Moreover, the trial court prepared a Rule 1925(a) opinion addressing the issues raised in Schofield's pro se Rule 1925(b) statement of issues to be raised on appeal. Schofield's apparent failure to file her statement of issues to be raised on appeal in the Prothonotary's Office, an omission that caused no actual harm to anyone and that presented absolutely no impediment to appellate review, will nevertheless ensure that she remains in prison for the rest of her natural life without any prospect whatsoever of appellate review in the state court system.
The Pa. Supreme Court's recent rulings in Castillo and Schofield demonstrate the urgent need for two amendments to the Pennsylvania Rules of Appellate Procedure.
First, the language of Rule 1925(b) should be amended to make absolutely clear that the waiver the rule contemplates is mandatory, rather than discretionary at the option of the appellate court as the rule now states. In other words, Rule 1925(b)'s present assertion that "a failure to comply with such direction may be considered by the appellate court as a waiver of all objections" should be changed to accurately advise that "a failure to comply with such direction will be considered by the appellate court as a waiver of all objections."
And second, the Pennsylvania Rules of Appellate Procedure should be further amended to mandate that a trial court's Rule 1925(b) order contain language advising that: (1) if the appealing party's Rule 1925(b) statement is not filed with the Prothonotary's Office and served on the trial judge by the deadline specified in the rule, no issues will be preserved for appellate review; and (2) only those issues set forth in a timely–filed Rule 1925(b) statement, and no other issues, can be raised on appeal.
The Pa. Supreme Court's recent rulings in Castillo and Schofield also demonstrate that in cases where the losing party would benefit from the involvement of an experienced appellate advocate, the losing party should get the appellate lawyer involved before the Rule 1925(b) statement is due. Otherwise, an appellate lawyer may end up identifying potentially meritorious issues that the appellate court will refuse to address because they were not included in the appealing party's Rule 1925(b) statement as filed in the trial court.
The prospect of appellate waiver is nothing new. But in its recent rulings in Castillo and Schofield, the Pa. Supreme Court has expanded the scope of appellate waiver beyond the boundaries of what reason and justice support. Regardless of their merit, those rulings now represent the law of Pennsylvania. Consider yourself forewarned!
This article is reprinted with permission from the February 13, 2006 issue of The Legal Intelligencer © 2006 NLP IP Company.
Means the Opposite of What It Says
By Howard J. Bashman
Monday, February 13, 2006
Judicial confirmation hearings might lead one to conclude that appellate courts spend the bulk of their time deciding whether to invent new, or overrule previously invented, constitutional rights. But, in reality, those very controversial issues, while they may attract the bulk of media attention, only make up a small portion of any appellate court's docket. Much of what appellate courts do on a regular basis involves the rather mundane task of construing laws passed by the legislature.
[The remainder of this essay can be accessed online here at law.com.]
Monday, February 06, 2006
By Howard J. Bashman
Monday, February 6, 2006
With so much media attention focused on outrageously large attorney fees awards and the ever–skyrocketing cost of litigation, it would be easy to overlook a recent en banc decision of the 10th U.S. Circuit Court of Appeals awarding a $1.50 attorney fee in favor of a lawyer who prevailed at trial on a federal civil rights claim for an imprisoned client.
[The remainder of this essay can be accessed online here at law.com.]
