In a 2-page dissent, Justice Neil Gorsuch on Monday criticized each of his fellow justices for ruling that the deadline of a drug offender’s criminal appeal had expired all because of a “mysterious 1946 amendment” to a procedural rule which deleted the word “his.”
The case is Kemp v. United States, and the justices considered a procedural rule with weighty impact on the criminal appeals process.
Dexter Earl Kemp was convicted in 2011 for drug and firearms offenses and sentenced to 35 years in federal prison. As is typical after similar convictions, Kemp filed an appeal which failed. In 2015, Kemp filed another appeal for ineffective assistance of counsel. That appeal was dismissed in district court, because the judge found the appeal had missed a deadline. All parties now agree, however, that the decision had been incorrect and that Kemp’s filing had been timely. At stake in Kemp’s SCOTUS appeal is how and when the trial judge’s error might be corrected.
At the heart of Kemp’s current case is a battle between two procedural rules. When it dismissed Kemp’s appeal, the court relied on Federal Rule of Civil Procedure 60(b)(1), which imposes a one-year timeline for a claim based on “mistake, inadvertence, surprise, or excusable neglect” by the trial court.
Kemp, however, contended that instead of focusing on the “mistake” by the trial court, FRCP 60(b)(6) should apply. It allows relief from a judgment “for any reason that justifies relief” and imposes the more flexible “within a reasonable time” deadline.
The Supreme Court sided 8-1 with the U.S. Court of Appeals for the 11th Circuit, and affirmed the ruling against Kemp. The justices used the case to clarify a decades-old circuit split on what, exactly, constitutes a “mistake” under the federal rules.
Justice Clarence Thomas wrote the 17-page opinion for the Supreme Court, and began by setting out the rule: “based on the text, structure, and history of Rule 60(b), that a judge’s errors of law are indeed “mistake[s]” under Rule 60(b)(1).
Thomas explained that while Rule 60(b)(1) allows the reopening of a case after a “mistake,” Rule 60(b)(6) serves as “a catchall” that is available only when Rule 60(b)(1) (as well as other avenues of relief) are inapplicable.
Thomas continued, and clarified that not only are judge’s errors of law “mistakes,” but that this definition of “mistake” goes beyond “obvious” legal mistakes and instead includes “all mistakes of law made by a judge.” The Court reasoned that neither standard English language nor legal dictionaries make any distinction based on the “obviousness” of the mistake, and the justices were unwilling to create any such distinction.
To bolster the Supreme Court’s ruling on the scope of the word “mistake,” Thomas pointed to the word’s dictionary definition, as adopted in 1938 then revised in 1946. As of 1946, “mistake” meant any “misconception,” “misunderstanding,” or “fault in opinion or judgment,” reasoned Thomas. The justice pointed to several standard dictionaries, as well as Black’s Law Dictionary. “Thus, regardless whether ‘mistake’ in Rule 60(b)(1) carries its ordinary meaning or legal meaning, it includes a judge’s mistakes of law,” wrote Thomas.
Thomas next turned to the history of Rule 60(b). When it was adopted in 1938, Thomas said, it ” initially referred to ‘his’—i.e., a party’s—’mistake,’ so judicial errors were not covered.” However, in 1946, the rule was amended to delete the word “his” — a change, according to Thomas, that “thereby remov[es] any limitation on whose mistakes could qualify.”
Lone dissenter Justice Neil Gorsuch took issue with precisely this line of reasoning employed by his fellow justices. Gorsuch said the Supreme Court should never have spent any time with the Kemp case because “[f]rom the start, granting review was a questionable use of judicial resources.”
As unhappy as Gorsuch appeared to be with the high court’s decision to review Kemp’s case, he was even less satisfied with the majority’s decision to allow all judicial errors to constitute “mistakes” under the rule. Gorsuch wrote:
In an unexpected twist, the Court adopts a further position neither party saw fit to advance. Going forward, every judicial legal error—not just an inadvertent or obvious “mistake”—is fodder for collateral attack under Rule 60(b)(1). And what is the basis for all this? A mysterious 1946 amendment deleting the word “‘his.'”
Gorsuch wrote that the question of whether a district court be permitted “to clean up a legal error” by having a second proceeding within a year, or whether the standard appellate process should apply is too important to decide “through a doubtful interpretive project focused on a pronoun dropped in 1946.” Rather, Gorsuch argued, this is a matter to be addressed by the rulemaking process in which policy interests at stake can be properly articulated and considered.
Justice Sonia Sotomayor penned a brief lone concurrence to Thomas’ majority opinion, in which she underscored the limits of the SCOTUS decision with regard to two aspects of the court’s rule interpretation. First, she wrote, the majority opinion should not cast doubt on the power Rule 60(b)(6) to reopen a judgment in extraordinary circumstances, including a change in controlling law. Second, she pointed out, nothing in the Kemp decision should be interpreted to change the rule that the deadline for Rule 60(b) motions is the “made within a reasonable time,” framework, which differs from case to case.
[image via Jabin Botsford/Getty Images]
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