Steven Donziger, represented by Harvard Law School Professor Charles Nesson, filed a cert. petition last week seeking review of the decision of the New York bar disbarring him.
It seems to me the petition has a very small chance of success. This is of course an easy prediction to make, since the vast majority of petitions are denied, but it is particularly noteworthy that Donziger has not really tried to fit the case into the Court’s usual criteria for granting petitions to review decisions of lower state courts (“a state court … has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conficts with relevant decisions of this Court”). The gist of the petition is that the New York courts misapplied the law of collateral estoppel, which might be right, but the Supreme Court generally doesn’t take cases merely to correct errors.
There may also be an issue with the petition’s timeliness, although I am not certain. The ordinary rule is that a petition must be filed within 90 days of the date of the judgment for which review is sought. In a case such as Donziger’s, where the state courts allows for a discretionary appeal, if the petitioner has unsuccessfully sought to take a discretionary appeal, the 90 day period runs from the denial of the application for a discretionary appeal. Here, Donziger also asked the New York Court of Appeals to reconsider its denial of his application to take a discretionary appeal, but the court denied that, too. All of these decisions are much more than 90 days in the past. During COVID, the Supreme Court, by order, extended the time from 90 days to 150 days, but in a July 2021 order, the Court rescinded the earlier order. The July 2021 order provided, however, that “in any case in which the relevant lower court judgment, order denying discretionary review, or order denying a timely petition for rehearing was issued prior to July 19, 2021, the deadline to file a petition for a writ of certiorari remains extended to 150 days from the date of that judgment or order.” Here, the order denying leave to appeal was issued prior to July 19, 2021, but the order denying reconsideration of the order denying leave to appeal was not. If you combine the fact that the denial of leave to appeal occurred before July 19, 2021 with the fact that the petition for cert. was filed 148 days after the denial of the motion for reconsideration of the denial of leave to appeal, do you get a timely petition? I am not sure. But it would be a fitting coda to the saga if the clerk refuses to file the petition on the grounds that it is jurisdictionally out of time.
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