Published: 12/11/2020 6:20:24 AM

Modified: 12/11/2020 6:20:13 AM

‘Whether the trial court committed an unsustainable exercise of its discretion” is rarely a winning appeal issue, much less an issue that an appellate court with discretion to accept or deny an appeal will ever deign to consider, as the U.S. Supreme Court, reassuringly, confirmed on Dec. 8.

The court declined to accept President Trump’s appeal, thereby refusing to review the lower court’s denial of . . . a motion to amend.

The Supreme Court accepts only 1% of the appeals it is asked to hear. The appeals the court takes generally involve weighty constitutional issues, or federal law issues about which the lower federal courts have issued divergent opinions.

Any law student who has stayed awake through one law school course on our federal courts would find unfathomable the notion that the Supreme Court would ever accept an appeal concerning denial of a motion to amend. Whether to grant or deny such a motion involves a straightforward application of a Federal Rule of Civil Procedure performed by federal courts across this country every day. Whether a lower court decides to allow a party to amend its lawsuit – or not – presents neither any constitutional issue nor any unsettled question of federal law.

Yet this was the issue, the only issue, that Donald Trump brought to the Supreme Court – and that the court declined to consider in a one-line order that the court issued Dec. 8, mere hours after the filing of the written legal arguments.

The motion to amend that Trump filed in the lower court essentially asked the court (as does any motion to amend) for a do-over. A litigant often files a motion to amend his lawsuit, as Trump did, when the court determines that the lawsuit the litigant originally filed fails to state any viable legal claim. Amendment gives the litigant the opportunity to correct deficiencies in the original filing. The litigant seeking to amend must not only move the court to do so but must also provide the court with the proposed amended complaint that the litigant contends would correct the insufficiencies that the original filing contained.

The lower court has discretion to determine if the proposed filing would state a legally viable claim. If the lower court finds that the proposed amended complaint is fatally flawed as the first one was, the court may find the amendment futile and exercise its discretion to deny it.

In Trump’s case, the lower court found that the president’s original lawsuit stated no viable legal claim. The lower court then denied Trump leave to amend, finding that the proposed amendment would be futile, since it had no more legal merit than the original filing.

No competent lawyer, having sat through that law school course in federal courts, would ever appeal a decision such as this to the U.S. Supreme Court, given that the decision involved only the lower court’s sound exercise of its discretion, not a constitutional issue or a novel question of federal law.

But Trump did, doubtless because of his view of all relationships as transactional. He appointed Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. They should therefore side with him, the frivolousness of his position notwithstanding.

But no justice dissented from the Supreme Court’s one-line order declining Trump’s appeal, confirming that our checks-and-balances system still works, and that we do not live in Belarus. At least not yet.

(Benjamin T. King is a Concord resident and a partner with the Concord law firm Douglas, Leonard & Garvey, P.C.)