Ten months after the First Department held that the Supremacy Clause of the United States Constitution does not divest state courts of jurisdiction over a state law case against a sitting President, the First Department has granted President Trump leave to appeal to bring that question of first impression in New York to the Court of Appeals. First, a little background on the case and what lies ahead at the Court of Appeals. And second, a quick appellate practice tip that explains why it took so long for the First Department to certify this important question.
In October 2016, while President Trump was running for office, Summer Zervos, a former Apprentice contestant, held a press conference and claimed that Trump had made repeated unwanted sexual advances toward her. Trump denied the claims, calling Zervos’ story “totally false” and “all big lies,” among other things. Shortly after Trump was elected President, Zervos sued him for defamation in New York Supreme Court. Trump moved to dismiss the complaint, arguing that the state courts were precluded from exercising jurisdiction over him while he was the sitting President, or alternatively for a stay of the action until his presidency ends.
Supreme Court, New York County denied Trump’s motion, holding that nothing in the Supremacy Clause precluded the state courts from exercising their jurisdiction under the state constitution to decide a civil case brought against a sitting President. The court reasoned that allowing the defamation action to go forward would not threaten to intrude on the President’s official duties, and thus could not constitute state interference with federal government operations. The Court also denied Trump’s arguments for dismissal on the merits, and an appeal ensued.
In March 2019, the First Department, in a divided 3-2 opinion, affirmed the denial of Trump’s motion to dismiss. In particular, the majority held,
The dissent disagreed, and would have held Trump immune from suit because “subjecting the President to a state trial court’s jurisdiction imposes upon him a degree of control by the State of New York that interferes with his ability to carry out his constitutional duty of executing the laws of the United States. Since the Supremacy Clause guarantees that any effort by the individual states to annul, minimize, or otherwise interfere with those laws will be struck down, it follows that any effort by a state court to control the President must likewise fail” (Dissenting Op, at 34).
At the time when this decision came out, it seemed ripe to head directly to the Court of Appeals. The issue is one of first impression in New York, and the case has been closely followed across the country. Because the Appellate Division order was nonfinal—it merely affirmed the denial of motion to dismiss, thereby leaving the whole case pending—there was only one way that the parties could immediately get to the Court of Appeals. They had to ask the First Department to grant leave to appeal on a certified question of law. The Court of Appeals’ jurisdiction doesn’t allow it to grant leave on a nonfinal order like this one; only the Appellate Division could.
But, yet, the parties didn’t seem to be in a rush to ask the Appellate Division to certify the question to the Court of Appeals for further review. In fact, Zervos did not immediately serve the order with notice of its entry, as required by CPLR 5513(b) to start the clock for Trump’s time to move for permission to appeal. So Trump waited until November 2019, 8 months after the March decision, to make the leave motion to the First Department. That’s an unusually long time to wait.
It could have been much shorter had Zervos’ counsel served the First Department’s March 2019 order with notice of its entry immediately after it was issued. But if the prevailing party never serves the order with notice of its entry, as required under CPLR 5513(b), the time to seek permission to appeal never begins to run. So, conceivably, a case could go on for years, and the losing party would still have the right to move for permission to appeal from the order that was never served with notice of entry. Don’t make that mistake. Don’t subject your client to the risk that your opponent’s counsel will one day, years later decide to seek permission to appeal from an old Appellate Division order that was never served with notice of its entry. (By the way, the Court entering the order on the electronic docket, which is then sent to the losing counsel, DOES NOT count as service of the order with “written notice of its entry.” You have to draft a separate notice of entry document with the Appellate Division order attached to it, and e-file or otherwise serve that). If you’ve won, always serve the order with notice of its entry as soon as the order is issued to start your opponent’s time to make the motion for leave to appeal. And if you haven’t, hope you have Zervos’ counsel on the other side.
The First Department has now sent the Zervos case up to the Court of Appeals for a decision on whether state courts are precluded from exercising their jurisdiction granted under the State Constitution over cases involving only state law brought against a sitting President. It should be a fascinating case, and will definitely liven up the Court of Appeals’ term. Or, as Professor Steve Vladeck explained yesterday on Twitter:
Only time will tell.