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Rules, Silly Rules, and How Judges Sometimes Avoid Justice

Kish Law LLC

All lawyers must deal with rules, whether practicing mostly in Atlanta and Georgia like our firm, or in any other part of the country. Most rules are made by the legislature, but sometimes, judges themselves get to make rules. These judge-made rules control the procedure or process of how a particular case works through the court system. Today, the United States Supreme Court refused to take a case that shows that sometimes these judge-made rules can allow judges to avoid justice. The discussion of the case noting the refusal to hear the matter is found here.

The case involves a man named Patrick Henry Joseph (you’d think the courts would be reluctant to be unfair with someone with such a grand history behind his first two names). Mr. Joseph was convicted of several drug offenses. Using the well-known Federal Sentencing Guidelines, the trial judge imposed a lengthy sentence after deciding that Mr. Joseph was a “career offender.” Joseph’s very able Public Defender then appealed his case to the United States Court of Appeals for the Eleventh Circuit. So far, so good.

At the point when his Public Defender filed what we lawyers call the “Opening Brief”, she was faced with certain precedent, or earlier cases, from the Eleventh Circuit, that clearly prohibited a claim that Mr. Joseph was not a career offender. In other words, the Public Defender did not argue that Mr. Joseph should have not been sentenced as a career offender.

Soon after the Public Defender filed the Opening Brief, the United States Supreme Court issued a ruling in the case of Descamps v. United States. The Descamps decision, made clear that the earlier cases in the Eleventh Circuit were “no longer good law.” Within a mere five days, the Public Defender asked for permission to file a replacement brief in order to challenge whether Mr. Joseph truly was a “career offender.” This request to file a replacement brief was nine days before the Government’s brief came due. To its credit, the Government did not oppose the motion, and only asked for additional time to file its own brief.

The Eleventh Circuit nonetheless refused to accept Joseph’s request to file a replacement brief. That Court has a judge-made rule providing that issues not raised in an opening appellate brief are forfeited, and so may not be raised in subsequent filings. Most of the time, such a rule makes sense. However, among all 12 federal appellate courts, only the Eleventh Circuit applies the rule in a mandatory fashion to completely prevent a person from litigating an issue not raised in the Opening Brief. Every other federal appellate circuit accepts supplemental or substitute briefs as a matter of course when the Supreme Court issues a decision that upsets precedent relevant to a pending case and thereby provides an appellant with a new theory or claim.

Mr. Joseph’s legal team asked the Supreme Court to take his case in order to decide whether the Eleventh Circuit’s lone wolf position could withstand scrutiny. Earlier today the Supreme Court refused to accept Mr. Joseph’s case for review. However, in a very meaningful statement, Justices Kagan, Ginsburg and Breyer wrote at length about the Eleventh Circuit’s odd position. The Justices noted that there is a good reason every other court would have allowed Mr. Joseph’s argument. “When a new claim is based on an intervening Supreme Court decision-as Joseph’s is on Descamps-the failure to raise the claim in an opening brief reflects not a lack of diligence, but merely a want of clairvoyance.”

Although the Supreme Court refused to accept the case, Justice Kagan’s statement sent a very firm warning to the Eleventh Circuit. “We do not often review the circuit courts’ procedural rules. And we usually allow the courts of appeals to clean up intra-circuit divisions on their own, in part because their doing so may eliminate any conflict with other courts of appeals. For those combined reasons, I favor deferring, for now, to the Eleventh Circuit, in the hope that it will reconsider whether its current practice amounts to a ‘reasoned exercise[ ]’ of its authority. ”

Rules can make sense. Slavish adherence to rules can be downright silly. Some rules are used to avoid justice. We only hope that the Eleventh Circuit has the wisdom to recognize those times when the job of bringing justice to litigants sometimes requires an exception to the rules.

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