In The Coney Island Void
The latest podcast episode, and a few additional thoughts on Coney Island Auto Parts
A new episode of the Divided Argument podcast, Counter-Counter-Counter Designations, went up on Thursday:
Will and Dan record a rare live show in an unusual venue: the Salamander Resort in Middleburg, Virginia, at the annual attorney retreat for trial boutique Wilkinson Stekloff. Dan teaches Will some of the new lingo he’s learned from the firm’s trial experts before a deep dive into civil procedure. First, we dig into the recently argued Coney Island Auto Parts Unlimited v. Burton, which presents a seemingly easy legal question and harder questions about SCOTUS advocacy and ethics. Then we look back at last Term’s LabCorp v. Davis, which the Court DIG’d but which raises some fundamental questions about class action litigation that the Court is likely to revisit down the road.
Two additional show notes about Coney Island. First, the issue of SCOTUS representation we discuss on the show was raised earlier on Twitter by Orin Kerr, and there is some interesting discussion over at that site.
Second, as we discuss some on the show, I think there are some relatively easy ways to rule for the respondents in Coney Island, but only because some of the most important limitations have sort of been left out of the way the case has been argued. As framed, the case focuses on the narrow question of whether the motion for relief from a void judgment under rule 60(b)(4) must be “made within a reasonable time” under tule 60(c)(1). As we discuss, and as the Sixth Circuit held, I think it’s easy to answer that question “yes.”
But there are three important questions left out of frame that are not so easy.
Are there other ways to attack or disregard a void judgment outside of 60(b)(4)? It seems to me the answer is very likely yes. (After all, what did folks do before Rule 60?)
Is it possible that almost any time could be a “reasonable time” when the judgment is void? Or, more modestly, should the voidness of the judgment be taken into account in thinking about what time is reasonable?
This question might also relate to the first. If for some reason there were no other way to prevent enforcement of a void judgment, shouldn’t that be relevant to the reasonableness analysis?
If the answers to the first two questions are no, does the Constitution prevent the use of a void judgment to deprive a litigant of life, liberty, or property?
Again, I don’t think any of these three questions are well-posed in this litigation, and it’s easy to rule for the respondents by leaving those three questions open. But the Court will likely need to at least be aware of those questions in resolving the QP and hopefully won’t say anything about them it doesn’t intend to.
Meanwhile, feel free to comment on the case or anything else in the episode in the comments below!
It was nice to see you had more to say on Coney Island than you did in the podcast.
Still, even more would be better. The small question in Coney Island raises the larger question – How is the Court held to account?
As to the narrower, necessarily included, question of personal jurisdiction, didn’t Lisa Blatt suggest that constructive service could resolve that question in this case? “Here, notice is conceded, I think, six times over.” The questions of Justices Thomas and Gorsuch suggest this was on their mind. So, maybe there’s no non-frivolous 60(b)(4) question in the first place.
Blatt says the answer to your first question (are there other ways) is ‘No’ per 60(e). Maybe she’s right. ¿Quien sabe?
Blatt says the answer to your second question (is any time reasonable) is ‘No’: “The phrase ‘reasonable time’ does not mean anytime.” Maybe she’s wrong. She does not explore the definition of ‘void’ or the history of ‘reasonable’ challenges to void judgments. Instead, she makes a ‘that-was-then-this-is-now’ appeal to change by reference to the US v. Brogan reversal of the ‘right to lie.’ Clever. But…
Your third question reveals a little disinterest on your part, I think. Maybe I’m wrong. For example, Ginzburg’s petition cites Worldwide Volkswagon which says a denial of due process makes a judgment ‘void.’ So, the Court has already given the term constitutional dimension (and you didn’t need knowledge of Roman law to know that ;).
The hearing focused too little on the definition of ‘void’ and the history of ‘reasonable’ challenges to void judgments.
Consider Judge Posner’s statement in Matter of Edwards: “A rich body of doctrine surrounds collateral attacks on criminal judgments under the habeas corpus jurisdiction — and there the concept of "voidness" as a predicate for such an attack has been abandoned.”
Pretty scary.
How is the Court held accountable? Appeal to Heaven?