United States District Court, S.D. Mississippi, Northern Division
CARLTON W. REEVES UNITED STATES DISTRICT JUDGE
the Court is the parties' joint motion to approve their
proposed Agreed Order. The parties propose the following
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).
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).
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.
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.
Wansley v. Mississippi Department of Corrections, I
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
Id. at *11 (citations and brackets omitted).
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