For seven years, a case has been languishing before the 11th Circuit Court of Appeals.
Neither letters from outside advocates, nor status requests from attorneys, nor a motion for a ruling by one of the parties in the case has brought the court within budget.
But 11 years since the case was filed in the Middle District of Alabama, seven years since it was appealed to the 11th Circuit, and six and a half years since a three-judge panel heard oral arguments in the case, the court has not achieved rule.
Multiple appellate attorneys and former circuit court employees told TPM they couldn’t recall hearing of a case that went this long without a ruling.
Arthur Hellman, an expert in federal judicial ethics and professor emeritus at the University of Pittsburgh School of Law, called it “extraordinary” in a telephone interview with TPM.
“If you look at the ethics rules for federal judges, and you don’t need a rule to say this, prompt disposition of cases is one of the primary obligations of all judges,” Hellman said.
The case that has languished before the 11th Circuit pits a homeless black man against an Alabama sex offender registration law.
Michael McGuire’s Montgomery sued the state of Alabama in 2011, claiming the law violated his constitutional rights. A district court judge ruled in her favor in February 2015, finding that two provisions of the law, the Alabama Sex Offender Registration and Community Notification Act, were unconstitutional.
Then-Alabama Attorney General Luther Strange appealed the ruling to the 11th Circuit in March 2015.
The case was heard in February 2016 by a three-judge panel.
The court has since requested a supplemental brief in 2017 for the parties to address amendments the Alabama state legislature made to the underlying law.
Lawyers in the case have made two attempts to pressure the court to act. In April 2019, more than three years after oral arguments, McGuire’s lawyers asked the court for a “status update or, failing that, an order and mandate.” The court responded a week later, noting that “the appeal is still pending before the court.”
More than two years later, in June 2021, the Alabama Attorney General filed a motion to the same end.
“This appeal has been pending without a decision for more than five years after oral argument,” the state observed, before citing its opponent’s request for a status update from two years earlier.
The court “granted” the motion, but has not yet ruled.
It’s a staggeringly aberrant delay, reflected in part by the fact that the attorney general felt the need to file the motion.
“It’s risky, because you can imagine that if you’re appealing to a panel of judges, you risk pissing them off,” Jonathan Nash, a professor at Emory University School of Law who studies the federal judiciary. , he told TPM. “Now, he is filing a motion to try to get it to rule and demanding a response.”
David Pozen, a law professor at Columbia who has served on the DC Circuit, told TPM that “the federal judiciary has a strong standard of resolving cases reasonably expeditiously.”
The 11th Circuit panel included Jill Pryor, an Obama appointee; Kenneth Ripple, a Reagan Designated Visitor from the Seventh Circuit; and Ed Carnes, who was chief judge for the 11th Circuit at the time arguments were heard. Carnes assumed senior status in June 2020, stepping down from his position as chief justice of the circuit.
There is some irony in having Carnes involved in a case so long overdue. Chief judges often work as executors in the circuit courts. If the judges are late in presenting their opinions, it is up to the head judge to make sure that the cases move forward on time.
“The head judge would put pressure on any panel that was slow or was slowing things down,” Pozen said, recalling his experience on the DC circuit. “I have never heard of a delay of more than six years.”
“In any organization, you have to have someone on whose desk accountability is held, and in the federal appeals courts, that’s the chief judge of the circuit,” Hellman, the judicial ethicist, told TPM. “That includes a lot of formal steps and formal actions, but it also includes the informal, picking up the phone and calling the colleague.”
Since Carnes resigned, Judge William Pryor has taken over as chief judge of the 11th Circuit.
For the plaintiff, Michael McGuire, the case is simple.
McGuire was convicted in 1986 of first-degree sexual assault, second-degree assault, and menacing in Colorado state court. The crime involved the use of a kitchen knife and a bottle of wine as weapons. He served three years in prison and one year of probation.
After prison, McGuire moved to Washington, DC, where he became a jazz musician and hairdresser and got married, according to a 2015 ruling by an Alabama federal judge in the case. In 2010, McGuire moved with his wife to Montgomery, Alabama, where his brother is a lawyer.
Alabama passed its sex offender registration law in 2011. Among other things, the law requires that anyone convicted of a list of crimes that qualify as “sex crimes” under the Alabama penal code, ranging from public indecency to sexual torture, anywhere in the United States and at any time must meet a list of requirements that the judge of the district court in the case he described as “the most comprehensive and debilitating”. sex offender scheme in the country.
Offenders must apply for a travel permit, providing, among other things, dates of travel and places of stay, to local law enforcement before leaving their county, and are restricted as to where they can live.
Those affected by the law must register at least four times a year; homeless residents must check in once a week with county and municipal law enforcement.
All of this, a federal judge found, left McGuire homeless and living under a bridge.
“Mr. McGuire has shown that he would live with his wife and not under a bridge without ASORCNA’s residency restrictions,” the judge wrote, ruling that the registration and travel requirements were unconstitutional.
Hellman, the scholar of judicial ethics, suggested that the delay amounted to a dereliction of duty.
“It’s always possible to take a little more time and improve the opinion marginally, but that’s not what appellate judges are supposed to do,” he said. “They are supposed to resolve disputes.”
Nash, the Emory University legal scholar, said he “couldn’t explain it.”
It has not been explained why the 11th Circuit did not rule on McGuire’s appeal.
The court issued a brief explanation in 2021, in response to the Alabama attorney general’s ruling motion.
“This case involves considerable unresolved law and a number of complex issues,” the court wrote in a record order issued two months after Alabama’s request. “Since it was introduced, the Alabama legislature has amended the relevant statute. The judges on the panel have worked very hard and have spent considerable time researching and analyzing all the issues and writing about them.”
Both the Alabama attorney general’s office and McGuire’s attorneys declined to comment on TPM for this story. The 11th Circuit Court of Appeals did not respond to repeated requests for comment.
Hellman added that the Supreme Court and other courts across the country routinely resolved the “most complex and difficult” disputes in less than a year.
“No matter how complex the issues are in a case, the court is bound to decide it,” he said. “The appellate court shouldn’t need seven years, five years or two years.”
The panel added in its August 2021 order that it “has worked diligently on the case and continues to do so, but more work remains to be done.”
“Motion to enter judgment as soon as possible is GRANTED,” he wrote 13 months ago.