Friday, May 22, 2009

A quick thought about CAAF's proposed rules changes

I have to race to the airport shortly -- and every minute I type probably represent one more MPH above the speed limit that I'll have to drive -- so this will be a skeletal thought. I'll try to flesh it out over the weekend.

Given Rodriguez and now Angell, CAAF shouldn't change its rules in a way that makes it harder to invoke the court's jurisdiction. The petition is the document that invokes the court's jurisdiction. It should, therefore, be easy to file a petition. But CAAF's proposed rules changes make it far harder to do so by marrying up the petition with the supp. Whether it should or shouldn't, as a practical matter I'll bet such a change has the effect of increasing the number of untimely filed petitions, since counsel will necessarily take longer to file a petition and supp rather than just a petition. And the more necessary steps, the more likely the ball is to be dropped at some point.

So if CAAF wants to expedite the initial grant/deny process, it should do so by reducing the number of days in which to file the supp after the petition is filed rather than requiring that the supp be filed along with the petition.


Anonymous said...

The proposal also allows for extensions of time to file the supp- for good cause shown. Intended to be exceptional.

Anonymous said...

I couldn't agree more - I was thinking the same thing. Perhaps changing the rule to "marry" the petition to the supp made sense pre-Rodriguez, but it most certainly does not now.

I foresee many more missed deadlines and as a result, "disciplined" attorneys (which is a pretty scary outcome) and potential appellants denied review (which is a very bad outcome). At best, the quality of the supps will likely decrease as defense attorneys scramble to get _something_ in before the deadline.

And, what happens if a supp/petition is filed, but an issue is missed? Can an issue be added later?

The "exceptional" extension of time for good cause shown does little to allay my concerns, when the only "cause" is that the attorney is awfully busy. That might not cut it with CAAF. Interesting jurisdictional question - what if the attorney files the petition but not the supp, despite the new rule? Does jurisdiction vest? Anyone willing to risk their bar license to test it?

This also poses a significant problem when the client goes missing/cannot be reached. In light of all of the threats of disciplinary action, defense attorneys might feel the need to just file for all of their clients (or at least the MIA ones) "just in case." But, sometimes the implications of appeal are a mixed bag for the appellant, and so might not be what the appellant really wants. What happens if the missing client appears _after_ decision rendered by CAAF, unhappy with the fact that a petition was filed? While this problem exists currently, it is made worse by the joining of the petition and supp.

This seems very bad all around. Surely CAAF will reconsider and not go through with the proposal to join petition and supp in light of the laundry list of cases of lost jurisdiction???