Court Deadlines and Statutes of Limitations in the Time of Coronavirus

hourglassAs I write this, many state courts have announced that they are closed to the public due to the coronavirus (COVID-19) crisis and will continue to operate but only for designated “essential functions.” This could obviously affect deadlines in existing cases as well as statutes of limitations for filing new cases. States have already sought to address the problem. In Pennsylvania, for example, the highest court has closed all state court to the public except for “essential functions.” It has also ordered that “all calculations for purposes of time computation relevant to court cases or other judicial business, as well as time deadlines, are SUSPENDED through April 3, 2020.” In New York State, which similarly has postponed all non-essential judicial proceedings, Governor Cuomo has issued an order providing that “any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020.” 

Federal courts are different. Congress long ago decreed that “[a]ll courts of the United States shall be deemed always open for the purpose of filing proper papers, issuing and returning process, and making motions and orders.” 28 U.S.C. §452 (emphasis added). Hence, while many trials and public proceedings may be postponed due to the crisis, all ordinary deadlines in federal court will apply, unless courts by general orders applicable to classes of cases or in individual cases extend the deadlines. For example, the United States Supreme Court last week issued an order extending the time for petitions for review from 90 to 150 days after the lower-court ruling. Federal court clerks’ offices are expected to remain open, albeit with limited staff due to the need to limit personal interactions, with filings accepted in person or electronically throughout the crisis. 

So with federal courts open for business with limited staff available to the public and some state courts closed for all but non-essential business, what can you expect if you have deadlines in an existing case or a new case that needs to be filed before a statutory deadline? The first thing is for you or your lawyer to consult the orders and rules that apply to the court where your case is pending or where you intend to file the case. If the case is an existing one, the deadlines may be adjusted by general rule, as in Pennsylvania or New York. If the deadlines are not adjusted by general rule, prudent counsel will confer with opposing counsel and make best efforts to reach agreement and proceed by remote filing whenever possible. It is hard to believe that courts anywhere would look kindly on litigation opponents who are unwilling to cooperate with opposing counsel on reasonable requests for extending deadlines in this time of national crisis. Wherever possible, counsel and clients should work it out reasonably with their opponents and seek judicial approval of scheduling adjustments at the earliest opportunity.

The much harder case is what to do with statutes of limitations, which are generally regarded as absolute bars to recovery if the lawsuit is filed late. Will the closure of a law office due to the crisis extend the deadline for filing? What about if the court is closed and will not accept a new filing until after the statute of limitation has passed? What legal effect will orders like the ones issued by the Pennsylvania Supreme Court or Governor Cuomo ostensibly extending all deadlines have on this issue? 

There are no current answers to any of these questions, and no lawyer or client wants to be the test case. As a result, prudent counsel will take whatever measures are necessary to file actions within the statutory time periods and without hoping that late filings of new matters will be excused. If the court is open and will accept the complaint for filing, either in person or electronically, the best course of action will be to file timely anyway. Even if the court closures prevent counsel from doing all the due diligence and preparing the complaint with the degree of rigor normally employed, because in-person meetings with clients or witnesses are not possible for example, counsel can still file a competent, bare bones complaint that satisfies professional obligations under the circumstances, and can later amend it if necessary. 

If the court is closed to the public and will not accept new filings, either in person or electronically, then counsel should make best efforts to file by mail on time. A credible argument can be made that, if the complaint was mailed with a postmark several days in advance of the deadline, the statute of limitations should be satisfied. Correspondence to the opponent in litigation advising that the complaint was mailed and providing a copy of the complaint prior to the deadline will help the argument.

In short, common sense must rule. Keep all deadlines if possible. Seek and agree to extensions wherever it would be reasonable to do so. If the court will not accept the filing of a complaint prior to the statutory deadline, do your utmost to document that you tried to file it on time and gave the opponent notice. If you follow this guidance, your cases may be delayed but will not be lost due to missing deadlines as a result of the current crisis.  

Courts and Counsel Confront Coronavirus Closures— How Will Your Legal Matter Be Affected?

Female Lawyer working from home with Justice statueLike many other law firms, mine is subject to government mandated shutdown for all public business and physical human interaction due to the coronavirus (COVID-19) pandemic. This means that our attorneys and staff can continue to work, as long we do it remotely, without personal contact with anyone else, such as clients, courts, witnesses, and other lawyers. No employees can come to the office.

Similar prohibitions apply to all businesses and organizations that have been designated by the law as “non-life-sustaining,” in contrast to life-sustaining industries such as hospitals, grocery stores, gas stations, farms, and transit systems. I live and work in Philadelphia, but restrictions like these are being imposed in cities and states throughout the United States.

Smart lawyers and judges defer to experts in other fields, and public health experts everywhere are calling for strong measures like these to save lives. The need for these measures is undisputable. If anything, this should have started sooner.

While law offices are closed for all but remote work, many courts are closed to the public for all but “essential” functions. In Pennsylvania, for example, the state supreme court has issued an order closing to the public all courts statewide except for essential functions, such as issuance of search warrants, criminal case filings, and preliminary hearings for incarcerated persons, and limited civil matters such as those involving juvenile delinquents, protection from abuse, and emergency equity matters, until at least April 3.

By the same order, the Pennsylvania Supreme Court also:

  • suspended time for the calculation of all deadlines relevant to court cases or other judicial business through April 3;
  • specifically authorized and encouraged the use of advanced communications technology to conduct court proceedings; and
  • ordered all courts to consider, whenever possible, deciding matters on the papers, without oral argument.

The United States Supreme Court has closed its building to the public, postponed oral arguments scheduled for March, and extended the time for filing petitions for review from 90 to 150 days after the lower-court ruling. Other federal courts are addressing the crisis on a court-by-court basis. The Court of Appeals for the Third Circuit has announced that it is still holding oral arguments and that the clerk’s office is open, although staffed minimally, with most staff working remotely and able to return phone calls. Many of the federal district courts nationwide also remain at least nominally open, but with public functions such as trials postponed for weeks at least, leaving judges and their staffs working remotely as much as they can.

Where does this leave you and your legal matter? For cases already in the court system that cannot be decided without a trial, this almost certainly means further delay, probably of months, as the backlog of cases set for trial grows. Cases that can be decided on the papers may move faster than usual, because the curtailment of public proceedings should mean that trial judges and their staffs will have more time to focus on reading and deciding motions.

For cases not yet filed, uncertainties abound. The need for justice does not end just because many courts are closed due to the coronavirus. Clients will still need to consult lawyers and lawyers will still need to file lawsuits and other proceedings. Some of this can wait until the crisis passes, but some of it cannot wait. The employer who uses this crisis as an excuse not to pay workers needs to be sued and forced to pay quickly. The 69-year-old client who just realized they need a will cannot wait long. Absent legislative action, statutes of limitations will still run, which means lawsuits need to be filed or somehow preserved, even if the court system will not accept filings through ordinary means. There are countless legal matters that will require attention by courts and counsel throughout the crisis.

While courts and counsel must comply with and respect the social distancing mandate, putting large parts of the justice system on ice for weeks or longer is simply not an option. It is essential to restrict in-person interactions, but most lawyers, judges, court staff, and clients can find ways to continue to work remotely. Fortunately, this is easier in our field than in others, because a large part of the job for many of us includes research, reading, writing, and conferring with others by phone, all of which can be done remotely. Video technology has made it possible for us to hold meetings and even conduct depositions all without leaving our home offices. In a very real sense, law firms and courts are still open for business to a great degree, and clients should be able to expect that close attention will be paid to their cases even during these difficult times.

All players in the justice system must recognize the downside risk inherent in the closure of law offices and the partial closure of the court system. It could have a negative impact not just on the current cases, but on the cases that arise during the immediate crisis, and even on cases that arise later, because of the substantial backlog of cases likely to result. Justice delayed very often leads to justice denied.

We also must consider self-preservation and sanity. Most of us need our work to support our families and to keep ourselves engaged. It is far better for us to take on the challenge of finding ways to continue our work as lawyers and judges than to consider ourselves checked out for the duration of this frightening episode.

Finally, there is the need for us to provide employment not just for ourselves but for others during these difficult times. Whether it is other lawyers or nonlegal staff, our colleagues need to be given work to do, so they can support their families and maintain their sense of self-worth.

For all these reasons, it is incumbent on judges and lawyers everywhere to find ways to make the justice system work remotely during this crisis to the greatest extent possible, consistent with public safety and the social distancing mandate. Mitigating the adverse effect of the health crisis on the justice system should be a matter of utmost concern for the judiciary and legal profession.

On Election Eve, Pennsylvania Courts Enjoin Victims’ Rights Amendment to Constitution Pending Further Judicial Review

In a split decision that came down after 4 p.m. on the eve of the November 5 election, the Pennsylvania Supreme Court affirmed an injunction issued last week by the Commonwealth Court in an important lawsuit regarding victims’ rights and the rights of criminal defendants.

The action concerned a proposed amendment to the Pennsylvania constitution commonly referred to as “Marsy’s Law,” which was scheduled to be on the ballot in the November 5, 2019 general election. Marsy’s Law, if enacted, would confer broad, and numerous, constitutional rights on victims of crime that would be equally weighty before the law as the constitutional rights of persons accused of crime.

Petitioners League of Women Voters of Pennsylvania and Lorraine Haw, represented by the American Civil Liberties Union (ACLU) and Dechert LLP, filed an action in the Commonwealth Court maintaining that the proposed amendment was unconstitutional in that it violated the “single subject” requirement of the Pennsylvania constitution, and that the proposed ballot question was incomplete and misleading, and therefore harmed the ability of voters to knowingly and intelligently cast a vote. Petitioners sought an injunction that would allow the proposed amendment to remain on the ballot, but would prevent the votes from being tabulated, and the results certified, until the courts could finally resolve the constitutional issues involved.

Philadelphia criminal defense attorney Ronald L. Greenblatt, represented by Steve Harvey Law LLC, sought to intervene in the action for a specific purpose—to testify as to how enactment of Marsy’s Law would cause immediate and irreparable harm by impairing the constitutional rights of criminal defendants, and would create great uncertainty and confusion in the criminal justice system. Particularly troublesome was the potential for the amendment to impair the ability of those accused of crime to engage in a complete investigation; to restrict the ability of defendants to fully and effectively cross-examine accusers; and to impair the right to a speedy trial. Mr. Greenblatt successfully intervened in the action, and provided crucial testimony at the October 23, 2019 injunction hearing before Commonwealth Court Judge Ellen Ceisler. In her opinion granting the requested injunction, Judge Ceisler extensively quoted Mr. Greenblatt’s testimony, and specifically relied on it in finding that the Petitioners and Mr. Greenblatt had established the “irreparable harm” necessary to obtain an injunction.

The day after Judge Ceisler granted the injunction, Respondent Kathy Boockvar, the Acting Secretary of the Commonwealth, appealed the decision to the Pennsylvania Supreme Court, which ordered expedited briefing, for the clear purpose of being able to decide the case prior to the election. On November 4, 2019, after 4:00 p.m. on the day before the election, the court, in a split 4-3 decision, upheld the injunction. Thus, as the Petitioners and Mr. Greenblatt requested, the proposed amendment will remain on the ballot for the voters to consider, but the results will not be tabulated, or the results certified, until the constitutional issues are finally resolved. This is an excellent result, as it will give the courts the ability to thoughtfully consider the weighty constitutional issues involved, without the immediate harm that would result if the amendment became effective before those issues are finally decided.

Lower Susquehanna Riverkeeper Sues Fredericksburg Poultry Plant Over Pollution

River

 

Steve Harvey Law LLC is pleased to represent the Plaintiffs in this important environmental justice matter which was filed in federal court in the Middle District of Pennsylvania. The complaint alleges that the defendant, a poultry rendering facility, discharges over 350,000 pounds of nitrogen in excess of its permit limits in violation of the Clean Water Act. Excess nitrogen, in addition to phosphorus and sediment, cause algae blooms which consume oxygen and create dead zone that are fatal to aquatic life.

Follow the story here: http://bit.ly/31tvFxM

Suit Alleges Sunoco Drilling Contaminated Homeowner’s Water Well

Suit Alleges Sunoco Contaminated Water Well

 

Here is a report on a case Steve Harvey Law LLC filed last week. We are proud to represent our client, David W. Anspach, III, as he seeks justice for the contamination of his water well caused by pipeline activities on his property in Eastern Pennsylvania.

Follow the story here: http://bit.ly/2OiVsHi

Trial Lawyer, Litigator Mike Gehring Joins Steve Harvey Law

Steve Harvey Law LLC is very pleased to announce that Michael E. Gehring has joined the firm’s commercial and complex litigation practice as Senior Counsel effective July 1, 2019. “I am super psyched to have Mike join me and the team at Steve Harvey Law,” said Steve Harvey. “He is a great lawyer. We worked together on the Villanova Law Review in 1987-89 and have been friends ever since.”

Over the past 30 years, Mike has worked as a trial lawyer and litigator for some of the best law firms in Chicago and Philadelphia. He also worked as an appellate lawyer for the Philadelphia District Attorney’s office. He has worked on wide variety of litigation subjects, ranging from business disputes to civil rights, class actions, and insurance. Learn more about Mike here.

Mike’s skills and deep substantive knowledge match perfectly with our firm’s mission of helping people and organizations seek justice in complex civil legal matters. Having him on the team enhances our ability to provide high quality, cost effective representation to our clients.
Steve Harvey Law LLC is a trial and litigation law firm based in Philadelphia, PA, that represents plaintiffs and defendants in cases involving business, employment, intellectual property, environmental justice, trusts and estates, and other state and federal legal matters.

Steve Harvey Named to PennFuture Board

Philadelphia-based commercial litigator and environmental justice lawyer, Steve Harvey, was recently named to the Board of Directors of PennFuture.org. Steve brings his advocacy, legal thinking, and passion for climate change action to PennFuture’s goal of a clean energy economy for Pennsylvania and beyond. @SteveHarveyLaw @PennFuture

Update: Additional Petitioners Added to Pennsylvania Cap-and-Trade Program Petition

On February 28, 2019, the Clean Air Council and other petitioners for an economy-wide cap-and-trade program in Pennsylvania submitted a supplemental petition for the purpose of adding to the list of petitioners. The list now includes 192 environment leaders.

 

Supplemental petition can be found here: Climate Petitioner Feb 28 Supplemental Submission w email

CLE Program: Reflections on the 13th Anniversary of the Intelligent Design Case, Kitzmiller v. Dover Area School District and its Legal Implications.

November 1, 2018

Speakers: Steve Harvey with Lauri Lebo and Eric Rothschild

Steve will be joined by Eric Rothschild, his co-counsel in the noted case of Kitzmiller v. Dover Area School District, and journalist Lauri Lebo, who covered the trial and later wrote a book about the experience, The Devil in Dover An Insider’s Story of Dogma v. Darwin in Small-Town America. Together, they will make a presentation entitled Wandering 40 Days in the High Profile Case Desert: What to Consider When the Media is an Interested Party. Their presentation will be part of a larger CLE to commemorate the 13th anniversary of the Kitzmiller case. Other program highlights include mock argument and discussion of the outcome of Kitzmiller and a review of the ethical issues and other considerations.

The program will take place at the Delaware State Bar Association, 405 N. King St., Suite 100, Wilmington, DE.

To register and for more information go to http://media.dsba.org/CLEReg/OfficeandTrialPractice2018

 

Supreme Court Kiboshes Kids’ Climate Claims (For Now)

 

On Friday, October 19, Chief Justice Roberts issued an administrative stay order in Juliana v. U.S., a lawsuit over climate change in federal court in Oregon against the federal government with a group of children as plaintiffs. https://www.supremecourt.gov/orders/courtorders/101918zr1_086c.pdf?fbclid=IwAR0M2xwMUaoXOWUc8yuKFnXKqvImJk50pPiu0J8gULSPVhoN9jpoI9mlF5M

The trial was scheduled to begin on October 29. The case survived motions to dismiss in the trial court, two trips to the 9th Circuit, and a prior stay request in the Supreme Court, which it unanimously denied on July 30, 2018.

The government sought the stay claiming irreparable harm from being forced to participate in a trial scheduled to last 50 days that it claims is inconsistent with Article III and the separation of powers under the Constitution and allegedly violates the law in other respects.

The trial was expected to feature numerous experts testifying about a wide range of topics, including the impacts of climate change on ocean chemistry, sea level, glaciers, terrestrial ecosystems, and human physical and mental health as well as the technical and economic feasibility of transitioning to renewable sources of energy and sequestering carbon from the atmosphere.

Effect of Stay on Trial

The stay order is temporary. It lasts until after the plaintiffs file a response on October 23 and further order of the Court. Theoretically, this means the Court is only staying the case to give itself time to decide whether to issue a longer stay of the case.

The stay order will make it very difficult if not impossible for the trial to begin on October 29 or anytime soon. This will have the practical effect of preventing the plaintiffs from commanding national news attention for a lawsuit about the science and danger of climate change. Coming just days before the November 6 election, some will claim that the five conservative justices are playing politics.

The timing of the stay is particularly hard on the plaintiffs, given that the case is over three years old. According to a plaintiffs’ press release, their 20 experts, all working pro bono, have already booked their travel to be in Oregon for trial. Plaintiffs’ experts include Nobel Laureate Joseph Stiglitz and renowned climate scientists including Dr. Kevin Trenberth, Dr. Ove Hoegh-Guldberg, and Dr. Eric Rignot.

Main Allegation and Relief Sought

The plaintiffs allege that, through the government’s affirmative actions that cause climate change, it has violated the youngest generation’s constitutional rights to life, liberty, and property, as well as failed to protect essential public trust resources. They seek declaratory and injunctive relief, including an order requiring the U.S. government “to prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2 so as to stabilize the climate system and protect the vital resources on which Plaintiffs now and in the future will depend.”

What Happens Next

It will be noteworthy if the Court issues any order before October 29. If the Court as a whole issues an order before then denying the stay, the trial could begin on or soon after October 29. Otherwise, the parties and the trial court will have to shelve the plan for the trial until the Court rules, which could take weeks. Either way, court watchers will look first to see how the justices voted on this case, which stands as a proxy for concern about climate change.

Our Children’s Trust

The plaintiffs’ legal team is led by Our Children’s Trust, a nonprofit organization based in Eugene, Oregon. Its mission is to give young people a legal and public platform on the climate issue. https://www.ourchildrenstrust.org/

Steve Harvey

Steve Harvey is the founder and president of A Call to the Bar: Lawyers for Common Sense on Climate Change, a nonpartisan, nonprofit group of lawyers, law professors, law students, and citizens dedicated to using the law to secure the rights of all people to a healthy and sustainable planet earth.