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Access to Justice and the Right to Appeal

October 4, 2016

When legal advocates speak about “access to justice,” they typically are referring to a set of formidable barriers that can halt cases at the outset, shutting the proverbial courthouse doors to particular groups of people. Less discussed, but no less critical, is the ability of individuals to appeal unfavorable rulings against them. When the Supreme Court Justices meet this Friday in their weekly private conference to decide which new cases to hear, they will be considering a case, Rosillo v. Holten, in which a plaintiff’s recourse to an appeal was unfairly denied. The Justices should agree to hear his case and recognize his right to appeal; “access to justice” requires no less.

It’s not surprising that people typically think of barriers that halt cases at the outset when they talk about access to justice. After all, when courts wrongly deny plaintiffs “standing” to bring a lawsuit, or force them into unfair arbitration proceedings, or prevent them from joining together in a class action to bring claims that are too small to pursue as individual lawsuits, it’s obvious that access to the courts is being limited. But if a trial court judge erroneously dismisses a case, without the possibility of review by other judges, then justice has been denied as surely as if the case were blocked by any other obstacle.

That’s why appellate review is an essential part of our legal system. When Congress established the current federal appellate court system in 1891, the bill’s sponsor declared appellate review “as dear to freemen as liberty itself” and explained that the appellate system was meant to constrain the “kingly” power of federal trial court judges, who had become too numerous for correction by one Supreme Court.

The ability to access this system of appellate review is at issue in the petition that the Justices will consider on Friday. Alfredo Rosillo claims that two Minnesota law enforcement officers used excessive force while arresting him, including by allowing him to be bitten by a police dog. He sued the officers, alleging that their conduct violated his constitutional right under the Fourth Amendment to be free from unreasonable seizures.

Before these allegations could be tested, however, the district court judge dismissed Rosillo’s claims against one defendant, Officer Holten, on technical grounds—the lack of a specific term of art in the document initiating his lawsuit. The other officer later agreed to settle with Rosillo, and together they obtained a court order approving their settlement. But Rosillo still wanted to appeal the dismissal of his claims against Holten, so Rosillo’s then-attorney filed a notice of appeal, a procedural step required to seek review of a district court ruling. Unfortunately, the attorney made a mistake in doing so. Rather than stating that Rosillo wanted to appeal the order regarding Holten, the notice instead indicated that he wanted to appeal the order approving his settlement with the second officer. That, of course, would make no sense: after all, Rosillo himself asked the judge to issue the settlement order. And Officer Holten’s attorneys were not misled by this obvious mistake. They quickly filed a motion with the appellate court, asking it to dismiss Rosillo’s appeal against Holten because the notice of appeal listed the wrong order. In other words, Officer Holten’s attorneys told the court that Rosillo should have no opportunity to appeal because of the technical mistake made by his attorney.

Remarkably, the United States Court of Appeals for the Eighth Circuit agreed. In the court’s view, it was irrelevant that Holten’s attorneys were not misled by the mistake and that it caused no harm of any kind. Because listing the wrong order being appealed from deviated from the instructions in the Federal Rules of Appellate Procedure, the Eighth Circuit concluded that the mistake deprived it of jurisdiction to consider the appeal at all.

That decision, unfortunately, is not an aberration. The question whether this kind of minor mistake deprives an appellate court of power to hear an appeal has divided and confused appellate courts throughout the country. Many have rightly heeded the Supreme Court’s admonition that the requirements for notices of appeal should be “liberally construed,” and that a defect should be overlooked when the notice provides the “functional equivalent” of what the rules require. As the Court has said, the purpose of these rules is simply to provide “sufficient notice to other parties and the court,” which clearly was not lacking in Rosillo’s case. But other appellate courts, seizing on less forgiving language from other Supreme Court opinions, have mechanically rejected appeals based on variances from the strict letter of the rules, even where (as here) those variances caused no harm. One reason that appellate courts are so flummoxed on this matter is the Supreme Court’s failure—so far—to offer clear guidance on how to decide which errors are forgivable and which are not. Because of this confusion, the fate of appeals—and the people bringing them—now hinges on which appellate court happens to review them.

It is clear, though, that the American justice system is not supposed to operate in the rigid manner exemplified by the Eighth Circuit’s decision. As Constitutional Accountability Center argues in a brief supporting Rosillo’s petition, our nation’s federal procedural rules were designed to supplant the ornate technicalities that we inherited from English common law, replacing them with a flexible system that would subordinate such complexity to “the end of substantive justice,” in the words of one drafter. Leading authority Arthur R. Miller has explained that these new rules were founded on a belief “in citizen access to the courts and in the resolution of disputes on their merits, not by tricks or traps or obfuscation.” In short, the American legal system should not resemble the underground labyrinth of the film The Goonies, beset with antiquated booby traps, false floors, and deadly snares around every turn poised to snag the unwary. Decisions on the merits should not be thwarted by “mere technicalities,” as the Supreme Court has stated, and our system “reject(s) the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome.”

In a case like Rosillo’s, where the mistake in a notice of appeal causes no confusion or prejudice to anyone, there simply is no good reason to deny a person his or her right to appeal. That result is not only pointless and unfair but contrary to the spirit of our civil procedure rules. Indeed, it bears emphasis that Rosillo’s complaint was dismissed by the district court on a technicality as well. Although the correctness of that ruling would not be reviewed by the Supreme Court if it takes this case, it does illustrate how technicality can be heaped upon technicality, which here has prevented anyone from determining whether Officer Holten actually violated Rosillo’s constitutional rights.

Many commentators have noted that the Supreme Court, hobbled by an unacceptably long vacancy, appears reluctant now to take on important but potentially divisive questions out of fear that eight deadlocked Justices will not be able to resolve them. Rosillo’s petition is an opportunity for the Court to show that at least it can still fulfill its most basic function: resolving confusion and disagreement among the lower courts on matters that affect the disposition of fundamental legal rights.

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