Time Computation Rules Spark Dueling Precedents
Growing tension between Oklahoma’s two highest courts has strained the state’s bifurcated judicial system to historic proportions. The latest scrap involves differences in how criminal and civil courts count days.
In the criminal court’s first published decision of 2016, Oklahoma Court of Criminal Appeals Judge Robert Hudson leveled furious allegations against the Oklahoma Supreme Court.
Hudson accused the Oklahoma Supreme Court of “either an attempt to revise the constitutional and statutory mandate placing exclusive appellate jurisdiction in all criminal cases in the Court of Criminal Appeals or a blatant disregard” of that historic mandate.
Hudson’s was the most scathing of three concurring opinions tendered among four of the five judges who closed ranks in the unanimous decision. The question at hand was whether the Oklahoma Supreme Court may declare rules for how the Court of Criminal Appeals counts days – whether deadlines for some filings are counted as business days or calendar days. Meyer v. Engle, 2016 OK CR 1
In the historically contentious decision, the Court of Criminal Appeals rejected a defendant’s request that it withdraw its October, 2015 dismissal of his appeal. The criminal court at that time said Kurt Meyer’s appeal of a motion to disqualify a district judge in his Lincoln County murder trial was not timely filed.
He appealed six calendar days after an adverse district court decision. Court rules allow five days, but a civil court rules say that means five business days. By that rule, he appealed four days after the decision.
Turned away in the criminal appeals court, the man’s attorneys took his case to the state’s other high court. The top civil court declined to issue a writ, which would direct the criminal court to change its decision. The Oklahoma Supreme Court nonetheless published a declaratory judgment supporting the business-day rule.
The civil court’s terse December, 2015 opinion said its rules govern how days are counted by any court – whether criminal or civil – when motions to disqualify a judge are appealed. In fewer than 80 words, the civil court assumed jurisdiction, cited to constitutional authority and said its rule governs criminal procedure. Meyer v. Smith 2105 OK 86
Two Sides of the Same Coin
By way of background, Oklahoma has a rare bifurcated court system. One side hears criminal cases. The other side hears civil cases.
The constitutional authority the Oklahoma Supreme Court cited says it may determine which court has jurisdiction “in the event there is any conflict as to jurisdiction.”
In its contrary Meyer decision, the Court of Criminal Appeals noted the Supreme Court’s Meyer decision “did not identify a conflict of jurisdiction.”
In stark contrast to the Oklahoma Supreme Court’s sparse six-line decision of December, 2015, the Court of Criminal Appeals judges waxed verbose across 10 pages to explain their reasons for rejecting Meyer’s application to withdraw their previous order.
The court’s withering rebuttal concluded with some conciliatory dictum toward the other court before judges resumed their furious fusillade in concurring epilogues. The Court of Criminal Appeals’ Meyer concluded with a promise to review its rules “for the sake of comity.”
Comity refers to courtesy among legal jurisdictions. The Court of Criminal Appeals said it will explore whether amended time computation rules could reduce confusion among litigants in the future.
All This Over Counting Days?
Beyond the urgency of a murder trial, and high courts’ mutually staunch defense of their nearly co-equal jurisdictions, the matter at hand involves tediously dry legal procedures. Since Oklahoma has two court systems, it also has two sets of rules for court procedure.
Oklahoma laws include a title for criminal procedure and a title for civil procedure. Each includes respective court rules, codified as appendices. The Court of Criminal Appeals promulgates criminal court rules. The Oklahoma Supreme Court promulgates civil court rules. There is some overlap. That is where things get messy.
The civil procedure pleadings code governs “the district courts of Oklahoma in all suits of a civil nature…” Oklahoma criminal attorneys know the civil procedure statutes well, in part because they include important rules for criminal proceedings.
For example, civil procedure refers specifically to criminal proceedings with regard to spousal privilege – Okla. Stat. tit. 12 § 2504(B) – and hearsay evidence in child abuse cases – Okla. Stat. tit. 12 § 2803.1(A).
It was one of the civil court’s shared rules that sparked the high courts’ dueling decisions. A civil pleadings rule gives parties five days to appeal adverse orders in motions to disqualify a judge. Rule 15 is titled “Disqualification of Judges in Civil and Criminal Cases.” (emphasis added) The rule specifically references appeals filed with the Court of Criminal Appeals. Okla. Stat. tit. 12 § Rule 15.
Elsewhere, the Oklahoma Pleading Code discusses computation of time “by the rules of any court of this state.” Okla. Stat. tit. 12 § 2006.
Yet, the Pleading Code elsewhere says it applies “…in all suits of a civil nature.” Okla. Stat. tit. 12 § 2001 Which is it? In “suits of a civil nature” or in “any court of this state?”
The computation subsection in the civil procedure title says when a period of time for a legal action is less than 11 days, only days when the court is open are counted. That is where the two courts came into conflict.
The civil procedure the criminal court applied allows five days “to institute a proceeding in… the Court of Criminal Appeals” challenging a judicial disqualification decision. The criminal court’s Meyer said five days means five calendar days.
“Our rules say days are always calendar days,” the criminal appeals judges explained in verbose detail. The civil court’s Meyer referred to the civil procedure’s more generous business day computation.
The Court of Criminal Appeals defense of its calendar days definition cites its own traditions and what it sees as a legislative mandate. Their opinion rather generalized a few differences between criminal court rules, civil court rules and statutory language. To reach their conclusion, they commingled their rules with what they called a legislative mandate, and ignored common practice.
The criminal judges decided “the Legislature has adopted the calendar method of computation of time in criminal proceedings.” It did. Sometimes. In several sections, the criminal procedure statute references “calendar days.” But not everywhere.
Other parts of the criminal code reference “days from the date of.” That does not really specify whether those are calendar days or business days, nor whether the first or last day is counted. Elsewhere, the criminal procedure statues simply references “days after” and “within… days of.” Okla. Stat. tit. 22 § 60.6. Okla. Stat. tit. 22 § 1089.
Except where a law specifically states “calendar days,” statutes do not specify how those days are computed – whether the first or last day of a period are included, or weekends or holidays. There simply is no comprehensive statute in the criminal code defining computation of time. With regard to filing appeals, the Court of Criminal Appeals promulgated a rule for time computations.
In Meyer, the Court of Criminal Appeals said its Rule 1.4 adopted calendar day computation – under a legislative mandate. That rule says “the first day shall be excluded and the last day included….” There is no mention of “calendar days” in the rule.
Their rule can stand as it is without excluding any more specific rules elsewhere. Yet they say it does.
The Court of Criminal Appeals says its “calendar day” rule for criminal cases is different than the civil court’s “business day” rule. The difference? Unless the period is less than 11 days, the civil procedure excludes the last day in circumstances when the court is not open that day.
For deadlines under 11 days the civil procedure could add four weekend days, or as many as six if back-to-back year-end holidays were involved. Under the criminal court’s interpretation, five days if five days whether the courts are open or not.
An Absurd Result
If the Court of Criminal Appeals cracked down on district courts statewide with its Rule 1.4, it would produce an absurd result. Five-day deadlines on holiday weekends could effectively become two-day deadlines while 11 days could become eight-day deadlines.
In our experience, that is not the way district courts have interpreted the rule. The civil rules of procedure are widely used to inform criminal procedure, especially where time computations are involved. Oklahoma criminal attorneys we know routinely expect to be able to file criminal documents on Monday if the deadline otherwise falls on a weekend.
For periods under 11 days, the civil(ish) pleading code is slightly more generous than the criminal procedure’s Rule 1.4. There – under civil procedure – weekends, holidays and snow days when the court is closed are never counted, whether or not it is the last day of the deadline. (And remember – civil the procedure for time computation applies either “to any court” or “in suits of a civil nature”)
Seriously, we are splitting hairs here. The criminal court relied on the civil court’s rule to limit appeals to five days. Then it relied on its reading of its rules to say how those days are counted.
The civil pleading code leaves more than ample room for application in criminal matters when it comes to computing time. (i.e. “In computing any period of time…by the rules of any court of this state”).
For the most part, unless the period in consideration is less than 11 days, we are only talking the difference of one to three days between the criminal court’s “calendar days” and the civil courts’ “business days.” Where the period is less than 11 days, the criminal court’s new interpretation can effectively reduce time to file by more than half before a holiday weekend– 48 hours to meet a five day deadline.
The Court of Criminal Appeals’ opinion that it cannot adopt civil court rules that sometimes apply in criminal cases is somewhat unconvincing. The criminal court could as well have decided the civil rule for counting days – when a period is less than 11 days – applies to “any court of this state” as the statute says.
Oklahoma’s Dueling Jurisdictions Explained
On the matter of whether the criminal appeals court has authority to interpret its own rules, the Court of Criminal Appeals’ reasoning is more convincing. Their explanation relies heavily on a 2015 case in which the Oklahoma Supreme Court reiterated what is otherwise a well defined separation between criminal and civil jurisdictions in Oklahoma.
In Dutton v City of Midwest City 2015 OK 51, the Oklahoma Supreme Court spelled out what would otherwise appear to be black letter law in Oklahoma:
- The Oklahoma Supreme Court’s original jurisdiction extends to general superintendent control over all inferior courts,
- The Oklahoma Supreme Court has jurisdiction over all state cases except criminal cases,
- The Court of Criminal Appeals has exclusive appellate jurisdiction over all criminal cases.
A case cited in Dutton provides further insight into that court’s view of its own jurisdiction. In Okla. State Senate ex rel. Roberts v. Hetherington, 1994 OK 16, the civil court emphasizes that an action for a declaratory judgment may not be used “to launch an impermissible collateral attack upon the judgment and sentence in a criminal case.”
Generally, the Oklahoma Supreme Court will not hand down writs or injunctions against the Court of Criminal Appeals. Roberts, however, alludes to a “declaratory judgment remedy” available to Oklahoma criminal litigants appealing to the civil court. When is that remedy available?
In Meyer (2015) they suggest declaratory relief might be available when criminal litigants seek interpretation of conflicting court rules — although the Court of Criminal Appeals’s Meyer (2016) suggests such relief can be an empty gesture. That is the controversy that got us to this point.
Otherwise, the Supreme Court in Roberts cites Anderson v. Trimble 1974 OK 2 to describe its jurisdiction to return declaratory judgments in criminal proceedings. In that case, the court said it would enjoin criminal enforcement of invalid ordinances when prosecution would violate a defendant’s property right.
Of course, there was no property right at stake when a defendant sought civil review of the criminal court’s day count in Meyer.
Because Speedy Trial? Really?
Concurring with the Court of Criminal Appeals’ unanimous Meyer decision, Judges Smith and Johnson opined that defendants’ interest in a speedy trial requires inclusion of weekends or holidays in time computations of deadlines for criminal trials. They implied that civil proceedings could afford to lumber along at a more leisurely pace.
We are not as convinced the right to speedy trial informs whether weekends and holidays should be counted when only five days are allowed for a legal action. The right to speedy trial in Oklahoma allows 18 months for a trial to begin after a person is charged with a felony, and a year after misdemeanor charges are brought.
Even then, judges are allowed by statute to determine whether a trail has been delayed. To allow defendants five full business days to appeal a judge’s refusal to disqualify would probably not impair anyone’s right to a speedy trial.
And the criminal court’s Rule 1.4 across the board only applies to appeals. It would not extend the clock on speedy trials, or extend the statute of limitations to recognize that attorneys routinely anticipate filing documents on a Monday when a deadline falls on a Sunday.
The same two justices opined, to paraphrase, that surely the Supreme Court would never ask Court of Criminal Appeals to violate its own rules. We just don’t see it. We are not so sure the Court of Criminal Appeals had to read its own rules that way. The court could easily interpret the collective rules of both courts, with their often vague and overlapping requirements, to count only business days in deadlines under 11 days.
The full court’s opinion promised a review of relevant Court of Criminal Appeals rules, for the sake of comity. The court could as well have extended comity when it interpreted its existing rules. It looks to some people like there are other reasons the courts are slap-fighting over jurisdiction.
Prior to this latest tiff, the courts’ jurisdictional conflict erupted in a 2014 death penalty case. Oklahoma’s constitutional crisis was a footnote to a death penalty case that became a national headline.
Just days before two men were scheduled for what turned out to be a notoriously botched execution, the Oklahoma Supreme Court handed down a stay. In that case, the court stayed enforcement of a criminal sentence while it heard the men’s civil appeal. They questioned the legality of an Oklahoma execution drug secrecy law. Lockett v Evans 2014 OK 33.
In his concurrence with Meyer, Hudson also bristled over a 2011 case in with the Oklahoma Supreme Court stayed a felony bribery trial. A former legislator had asked the Oklahoma Supreme Court to direct the Court of Criminal Appeals’s interpretation of constitutional language governing lawmakers’ conversations during a legislative session. Leftwich v. Court of Criminal Appeals 2011 OK 80.
An agreement between the prosecution and defense averted a showdown that time. In dissenting opinions, though, some Oklahoma Supreme Court justices said their civil court should have stood its ground and defended its turf.
Come Together, Right Now, Over Me
Understandably, each court has a genuine interest in protecting its jurisdiction – especially when the top criminal court sees itself as a named respondent in actions filed in the other top court. And especially when the State Constitution says the Oklahoma Supreme Court has the final word – when jurisdiction is disputed.
Oklahoma is one of only two states that maintains a two-sided judiciary with no centralized superior court. The invention does not appear to be a stroke of genius among Oklahoma’s framers. In most Oklahoma counties, judges hear criminal and civil matters alike. They answer to different superior judiciaries depending on the nature of a case, or even on aspects of a single case.
It would be reasonable to ask whether the courts should be combined – for better efficiency and for better administration of justice. Unless and until that happens, for the sake of efficiency, the courts would do everybody a favor to extend comity – common courtesy – before an appeal on procedural rules bounces through two top courts.
For a free consultation about any matter pending in an Oklahoma court, call Wirth Law Office at 918-879-1681 or send your question using the form at the top of this page. If we do not have the answer you need, we will try to refer you to an Oklahoma attorney can answer your specific question.