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Montalto v. Mississippi Department of Corrections

United States District Court, S.D. Mississippi, Northern Division

December 9, 2019

STEPHEN DANIEL MONTALTO PETITIONER
v.
MISSISSIPPI DEPARTMENT OF CORRECTIONS, ET AL. RESPONDENTS

          ORDER

          CARLTON W. REEVES UNITED STATES DISTRICT JUDGE

         Before the Court is the parties' joint motion to approve their proposed Agreed Order. The parties propose the following language:

The Court clarifies that its previous order contained no formal findings of professional misconduct and imposed no sanctions on the attorneys or parties involved in this case. The Court's previous order did no more than express concerns and issue a warning.

See Email from Jason P. Steed, Counsel for Petitioner (Sept. 23, 2019).

         I do not know how the parties arrived at this statement. It seems to contradict respondents' written and oral arguments before the Fifth Circuit. See, e.g., Respondents' Supplemental Letter Brief, Montalto v. Miss. Dep't of Corr., 938 F.3d 649 (5th Cir. 2019) (No. 18-60274, Dkt. # 72); Respondents' Supplemental Letter Brief, Montalto v. Miss. Dep't of Corr., 938 F.3d 649 (5th Cir. 2019) (No. 18-60274, Dkt. # 56); Brief of Respondents, Montalto v. Miss. Dep't of Corr., 938 F.3d 649 (5th Cir. 2019) (No. 18-60274, Dkt. # 16).

         As I told the parties in September, however, I think the above language is factually correct. See Docket No. 72. I will sign and enter it today. Perhaps that will finally resolve this case. It is up to the Fifth Circuit.

         The limited remand of this matter presents an opportunity to place this case in its proper context. Montalto is not the first time I have been frustrated with this unit of the Attorney General's Office.

         In Wansley v. Mississippi Department of Corrections, I observed that

Respondents' current argument is directly contradictory to their 2002 pleading. Then, the State contended that § 41-29-142(1) was “discretionary” and irrelevant to Wansley because “the enhancement provision was not applied.” See Answer and Affirmative Defenses, supra. Now, it contends that the statute automatically enhances the offender, including Wansley. Both of these claims cannot be correct.
Present counsel for respondents, Special Assistant Attorney General Owens, blamed the contradiction on the author of the 2002 filing. But Ms. Owens' name was also listed on the 2002 document as one of two attorneys on the brief.

No. 4:10-CV-149-CWR-FKB, 2013 WL 1827765, at *9 (S.D.Miss. Apr. 30, 2013), rev'd on other grounds, 769 F.3d 309 (5th Cir. 2014). I expressed my displeasure with this course of action:

It is not fair for the State to completely reverse course when the parties are the same, the underlying facts are the same, the state statute is the same, and the case law is the same. It is unseemly for the State to change its position without an intervening change in fact or law because it suggests that the State has “deliberately changed positions according to the exigencies of the moment.” As the Fifth Circuit put it earlier this year, “From the standpoint of equity, as most federal courts recognize, a change of legal position can be just as abusive of court processes and an opposing party as deliberate factual flip-flopping.”

Id. at *11 (citations and brackets omitted).

         Despite this behavior, in both Wansley and Montalto, I did not sanction the responsible Assistant Attorney Generals. In part that may be due to the benefit of the doubt public servants so often receive. But I also ...


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