Marshall's Law

by Marshall H. Tanick, Attorney at Law

Jumping to Conclusions: The Law Of Leap Year

"Striking from the calendar
Unborn Tomorrow and Dead Yesterday."
E. Fitzgerald, The Rubiyat of Omar Khayyam, Stanza 57

If this painfully frigid winter seems particularly long, the disturbing duration is not due solely to the woeful weather windchill.

It may be because this is a leap year, and February contains an extra day, which is commemorated on Sunday, February 29. The added day comes along nearly every four years. But, contrary to popular misbelief, not every fourth year is a leap year.

The actual solar year does not consist of exactly 365.25 days, but a smidgen less than 365 days, 5 hours, 48 minutes and 46 seconds. Consequently, the founders of the modern Gregorian calendar in 1582, which was not a leap year, essentially made periodic adjustments so a leap year, or extra day at the end of February, is added nearly every fourth year.

This arrangement did not quite balance out, though. As a result, leap year occurs in those years whose last two digits are evenly divided by four, like this year, 2008.

But this manipulation was still imperfect. Consequently, every centenary year that is not evenly divisible by 400 is not a leap year. Thus, while 2000 was a leap year, as will 2400, the intervening centennial years of 2100, 2200 and 2300 will not include the extra day. But, more about that later.

For the time being, the logic, and occasional illogic, of leap year has raised some interesting legal issues, often imbued with intriguing legal conclusions popping up in Minnesota and elsewhere.

Liquor Leap
Nearly a century ago, the Minnesota Supreme Court addressed the legal effect of leap year in State v. Bates, 108 Minn. 55, 121 N.W.225 (1909). A Duluthian convicted of selling liquor without a license was ordered to serve 90 days in the county jail, the maximum allowed under the Duluth City Charter. But, the Minnesota State Constitution restricted the punishment for the offense to three months.

The liquor seller argued in a habeas corpus proceeding that the municipal charter provision was unconstitutional, because in leap years, a three-month sentence including the month of February would be less than 90 days; therefore, the three-month ceiling in the Constitution was beyond the authority of the City to proscribe. That the jail sentence did not coincide with a leap day did not seem to trouble the earnest advocate.

But, this "highly technical" argument did not sway the Supreme Court. While acknowledging the argument was clever, the court did not find it logical and denied relief. Although the liquor seller's contention was "ingenious in the extreme," it was too "artificial and metaphysical." The general "presumption in favor of the constitutionality" of legislative enactments warrants a determination upholding "the ordinance and the 90-day imprisonment." It so happened that a defendant had to serve 90 days, including a year with the leap year, 29 days in February, any sentence would be "void only as to the excess" day, and the ordinance as a whole would not be constitutionally infirm.

More recently, a similar contention was made, recognized for its shrewdness, and rejected by the Tenth Circuit Court of Appeals. In Yokley v. Belaski, 982 F.2d 423 (10^th Cir. 1992), a criminal defendant in a counterfeiting case asserted that his sentence of 10 years was invalid because it exceeded the statutory maximum of 10 years if leap-year day is include. Although "novel," the argument was "without merit" because the defendant had been "sentenced to a term of years, not days."

But other courts have been less lavish in praising and rejecting leap year arguments. In Neff v. Jackson County, 67 P.3d 977 (Ore. Ct. App. 2003), the court belittled the defendant's claim that a one-year statute of limitations lasts for 365 days even if a leap day is included, because under that argument, "a juvenile would attain 15 years of age ...three or four days before his or her 15^th birthday."

The Court also disregarded leap days in rejecting an ex-wife's claim to Social Security benefits on behalf of a decedent in Albertson v. Apfel, 247 F.3d 448 (2d. Cir. 2001). The divorce was finalized three days prior to her 10^th anniversary. Had the marriage lasted 10 full years, she would have qualified for benefits as a 10-year spouse when her ex-husband died many years later. She argued that by counting three leap days during the marriage, the relationship satisfied the 10-year threshold.

The Court rebuffed that argument, finding that the 10-year statutory requirement "does not differentiate between leap years and non-leap years." Regardless of the earth's journey around the sun, the parties were not married for the requisite 10 years because "scientifically speaking, a year is 365 ¼ days, not 365 days, as [the ex-spouse] wishes us to believe."

English Enigma
The enigma of leap days also figures in cases involving filing deadlines. In Walker v. Hazen, 90 F.2d 502 (DC App. 1937), an appeal in a leap year was deemed untimely under a provision requiring a 20-day deadline for filing appeals. The appeal was filed on the second day of March, 21 days after the filing of the verdict on February 10.

The late-filing claimant asserted that the appeal was timely, based upon an ancient English statute dating back to the days of King Henry III of England, who reigned in the 13^th century. The measure provided that a leap day "shall be taken and reckoned of the same month wherein it groweth; and that day, and the day next going before, shall be accounted for one day."

The claimant asserted that under this statute, which was incorporated in the municipal governing code, February 28 and 29 are to be counted as one day, which made the appeal timely under the 20-day requirement. But, the Court rejected that argument, concluding that "this statute applies only to periods measured in years, and where the period is measured in days, as in this case, the 28^th and 29^th of February are to be counted as two days."

The same medieval statute was disregarded in Harker v. Addis, 4 Pa. 515 (Pa. 1846), which involved a similar post-trial filing in mid-March, 21 days after the trial court decision, which invoked a 20-day period to appeal. The Court refused to allow the appeal to proceed, treating the ancient Henry III law as a measure "passed in a barbarous age to produce uniformity of time." The old English statute also was not applied in Helphenstin v. Vincennes National Bank, 65 Ind. 582 (Ind. 1879), which involved computing the time period for responding to a summons served on February 25 in a leap year. Because state law provided that a day "means a period of time consisting of 24 hours," each of the separate days of February 28 through 29 "must be regarded and computed as two days, and not as one day, for every purpose."

Even the oddity that not every 100^th year includes a leap day, in order to make the appropriate solar adjustment, has been the subject of litigation. In Ott v. State Ex. Rel. Lowery, 29 So. 520 (Miss. 1900), two litigants claiming to be the city tax collector clashed over their respective appointments. One of them was appointed by a lame-duck board of city officials during its last days in office, but the mayor voted against it, creating a tie vote. The other was appointed by a subsequent board.

Affirming a decision in favor of the lame-duck appointee, the State Supreme Court held that the mayor had not been entitled to vote in order to create a tie, which led to the subsequent board's appointment. The successor argued that "this controversy would not have arisen if the year 1900 had been a leap year" because the incoming board would already have taken office and been able to vote (1900 Miss. LEXIS 167.*12.) He portrayed himself as a victim of a "mere exigency of computing time, a thing that happened three times in 400 years." Despite the irregularity, the argument was insufficient.

Leap Limitations
In U.S. v. Marcello, 212 F.3d 1005 (7^th Cir. 2000, the Seventh Circuit was even less enamored with a leap-day argument that the statute of limitations in a RICO case was not satisfied because of a leap day. The statutory time period is the "anniversary" date of the triggering event, "even when the intervening period includes an extra leap year day." Not counting leap days in measuring the limitations period averts the unacceptable practice of "judges ... becoming enmeshed in such nitpicking ..."

The Marcello ruling is consistent with most cases that tend to ignore the effect of leap year in calculating statutes of limitations. Parties generally prevail in using the commonly understood calendar definition of "year," including 366 days in leap year.

In Commonwealth v. Fenati, 748 A.2d 205 (Pa. 2000), a petition for post-conviction was required to be filed within a year. It was deemed to have been timely filed 366 days later, during an intervening leap year. The one-year limitations period applied "during a 12-month cycle in which a leap year occurred."

Leap Law
This year's leap-day falls on a Sunday, a day when no court rulings are issued. Incidentally, a leap day occurs on Sunday only once every 18 times, meaning that this past February had five Sundays, a phenomenon that occurs every 112 years. But, a number of important rulings of the U.S. Supreme Court and its Minnesota counterpart have been issued on other leap days.

On the last leap day, February 29, 2000, the High Court in Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1 (Feb. 29, 2000) set aside a lower court ruling allowing a nursing home association to challenge certain Medicare-related regulations. The court reasoned the dispute must go through a special administrative review process under the Medicare statutes, which bars direct judicial action.

Leap days have witnessed a plethora of High Court rulings. On February 29, 1892, it issued 28 written opinions on diverse topical subjects ranging from import taxes on wool to construction of confederate civil war property to patent litigation over barbed wire. The earliest recorded leap-day decision of the Supreme Court dates back two centuries. On February 29, 1804, in Blakeney v. Evans, 6 U.S. 185 (Feb. 29, 1804), it ruled that a man who agreed to perform work was entitled to delegate the work to an assignee.

The Minnesota Supreme Court also has been busy on leap-days. Its February 29 rulings have ranged from In re Indritz, 607 N.W.2d 139 (Minn. Feb. 29, 2000), suspending an attorney for six months for neglecting client matters, practicing law while suspended, and lying to investigators; to Owings v. Freeman, 48 Minn. 483, 51 N.W. 476 (Feb. 29, 1892), interpreting flawed boundary lines in a deed of conveyance.

Leap Lyrics
Writers of operettas generally have more leeway than drafters of legal opinions in dealing with leap years. But, the two crafts coalesced in Woodward Iron Co. v. United States, 396 F.2d 552 (5^th Cir. 1968). The case involved a taxpayer's action for a refund of income taxes.

Adding some spark to an otherwise dry decision involving statutory interpretation of the Internal Revenue Code, the Court cited dialogue from Gilbert & Sullivan's Pirates of Penzance relating to leap years, in which the pirate king character tells another thespian that a man born on leap day who reaches age 21 will have only experienced five birthdays, and the chorus retorts:

"He is a little boy of 5! Ha! Ha!
A paradox, a paradox
A most ingenious paradox!"

The existence of a leap year nearly every four years may be a paradox, but it also is a panacea to most lawyers in Minnesota and elsewhere.

It gives them an extra day to bill their time!

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Marshall H. Tanick is an attorney with the law firm of MANSFIELD, TANICK & COHEN, P.A. He is certified as a civil trial specialist by the Minnesota State Bar Association (MSBA) and represents employers and employees in a variety of workplace-related matters.