Monday, January 22, 2018

Artis v. District of Columbia, J. Gorsuch, with whom JJ. Kennedy, Thomas, and Alito join, dissenting, Docket No. 16-460

Common law: Statute of limitations: Grace periods: Equitable tolling:

(…) Indeed, grace periods appear to find their roots in a common law rule known as the “journey’s account” that expressly sought to account for and afford to a dismissed party “the number of days which he must spend in jour­neying to the court” to refile his claim. 37 C. J., Limita­tions of Actions §526, p. 1082 (1925); see E. Coke, The Second Part of the Institutes of the Laws of England 567 (1642) (reprint 1797) (“The common law set downe the certaine time of 15 dayes,” because “a dayes journey is accounted in law 20 miles,” as “a reasonable time . . . within which time wheresoever the court of justice sate in England, the party . . . wheresoever he dwelt in England . . . might . . . by the said account of dayes journies ap­peare in court”); Spencer’s Case, 77 Eng. Rep. 267,267–268 (1603) (party has “the benefit of a new writ by journeys accompts” after first writ “abated”); Elstob v. Thorowgood, 91 Eng. Rep. 1086, 1087 (1697) (party has 30 days to bring an action “by journeys account” to avoid “the Statute of Limitations”).

(…) Fn. 4: The “principle of journeys account became definitely fixed and somewhat enlarged in England by an early statute. . . . This statute, with varying changes, has been enacted in nearly all of the states of the Union.” 19 American and English Encyclopaedia of Law 262 (2d ed. 1901); Cox, 47 S. E., at 915 (explaining that, “in lieu” of the journey’s account, the colonial act of 1767 permitted “a new action within one year” of dismissal, and then the act of 1847 allowed a new action within six months of dismissal “notwithstanding the intervening bar of the statute”); Denton v. Atchison, 90 P. 764, 765 (Kan. 1907) (statute adopted “the common-law rule of ‘journeys account’ ”); English v. T.H. Rogers Lumber Co., 173 P. 1046, 1048 (Okla. 1918) (“Statutes such as ours are said to have their origin in the common law rule of ‘journeys account’ ”); Baker v. Cohn, 41 N. Y. S. 2d 765, 767 (1943) (“Historically, the extension of one year’s time . . . is said to be an outgrowth of the ancient common law rule of ‘journey’s account’ ”); Sorensen v. Overland Corp., 142 F. Supp. 354, 362 (Del. 1956) (“The statute of ‘journeys’ account’ is one founded under English law, and enacted in most juris­dictions today”); Wilt v. Smack, 147 F. Supp. 700, 702 (ED Pa. 1957) (“Statutes of Journey’s Account originated in England and have long existed, in varying forms, among the states”).

Limitations periods for state law claims fall well within the peculiar province of state sovereign authority. As Chancellor Kent ex­plained, “‘the period sufficient to constitute a bar to the litigation of stale demands, is a question of municipal policy and regulation, and one which belongs to the discre­tion of every government, consulting its own interest and convenience.’” Sun Oil Co. v. Wortman, 486 U. S. 717, 726 (1988) (quoting 2 J. Kent, Commentaries on American Law 462–463 (2d ed. 1832)). Described as “laws for ad­ministering justice,” time bars are “one of the most sacred and important of sovereign rights and duties.” Hawkins v. Barney’s Lessee, 5 Pet. 457, 466 (1831). And “from a re­mote antiquity,” they have been the province of the sover­eign “by which it exercises its legislation for all persons and property within its jurisdiction.” McElmoyle ex rel. Bailey v. Cohen, 13 Pet. 312, 327 (1839). Our States have long “exercised this right in virtue of their sovereignty.”

(…) The propriety of a legal tool in one area does not establish its propriety in all; while stop clock tolling may be standard and off-the-shelf in other contexts (such as for equitable tolling) that doesn’t mean it is necessary and proper here. Indeed, and as we’ve seen, the “standard” and “off-the-shelf” solution to the problem of dismissal and the need to refile is the one adopted at common law and by state law: a grace period. If we’re interested in looking for the right shelf, that’s the one.

(U.S.S.C., Jan 22, 2018, Artis v. District of Columbia, J. Gorsuch, with whom JJ. Kennedy, Thomas, and Alito join, dissenting, Docket No. 16-460)

Les sources de la Common law en matière de suspension de délai et en matière de délai de grâce, citées dans une dissenting opinion du Juge Gorsuch. Cette opinion conteste la décision de la Cour qui applique une suspension de délai pour ouvrir action devant la cour d'un état. Seul un délai de grâce devrait s'appliquer selon le Juge Gorsuch, rejoint en cela par les Juges Kennedy, Alito et Thomas. La dissenting opinion ne remet toutefois pas en cause les principes applicables en matière d'"equitable tolling".

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