Wednesday, May 18, 2011

Sen. Henry Marsh held in contempt by federal judge

On May 13, 2011 Sen. Henry L. Marsh, III (D - Richmond) suffered an awful fate for any attorney.  In a thirty page opinion resolving a summary judgment motion, Federal Judge Jackson L. Kiser spent approximately six pages detailing the facts, circumstances, and law behind his finding of contempt against Sen. Marsh.  Sen. Marsh has been fined $500.00 by the U.S. District Court for the Western District of Virginia for filing a late response to the motion, and for failing to notice his own motion.

Original coverage of this issue can be found here.
The opinion can be found here.  The order can be found here.

What did Sen. Marsh do procedurally?

Civil cases generally have scheduling orders that govern the timing of the procedures in the case.  The scheduling order in this instance required summary judgment motions to be filed within a particular time frame.  Sen. Marsh represented the Plaintiff.  Counsel for the Defendant filed a summary judgment motion in accordance with the scheduling order on March 4, 2011.  Pursuant to the electronic filing rules, Sen. Marsh received notice of this motion via an email to his designated email address.  The Plaintiff then had 14 days to file a response.  24 days later, on March 28, 2011 Sen. Marsh filed a motion for extension of time, with an attached memorandum in opposition to the motion.  This memorandum mistakenly was largely constituted of a brief from a different case (Sen. Marsh would later blame this clerical error on his  secretary, Op. p. 15).   On April 1st, 2011 Sen. Marsh filed a “meaningful response” fifteen days beyond the responsive deadline.  On May 5, 2011 a hearing was held.

The effect of the General Assembly session

Among the excuses offered by Sen. Marsh, he claimed that his “main reason” he needed an extension was due to his duties in the General Assembly.  The Court disregarded this reason and suggested Sen. Marsh should have planned better.  Just so the reader understands, the General Assembly adjourned sine die on February 27, 2011.  Sen. Marsh had a week to regroup before the motion was even filed.  By the time he filed for an extension the session had been adjourned for an entire month.

Va. Code § 30-5

There is a little known statute under Virginia law passed particularly to aid members of the General Assembly who are also practicing attorneys.  Va. Code § 30-5 allows a member of the General Assembly who is an attorney in a matter in state court to delay all court proceedings in his or her cases until thirty days after the conclusion of the session.  This law has no application in Federal Court, although the court addresses the statute.  Having invoked this statute myself, I have plenty more to say about it which will be saved for another time.

Results of late filings

There is a strong preference under both Federal and local rules to decide cases on the merits, rather than based on procedural defaults.  For this reason the late filed pleadings were ultimately accepted. Still the summary judgment motion was granted and the case was dismissed.  The Court appeared to accept that the late filings were the fault of the attorney, and instead of penalizing the client, Judge Kiser held Sen. Marsh in contempt for violations of the scheduling order.  The amount of $500.00 is symbolic, but rest assured attorneys take such a finding very seriously.

A final note

One might think I am being too harsh on Sen. Marsh.  In response: He is an elected official.  He chose, and even asked for his public position.  He claimed his public position as an excuse so he could receive relief from procedural rules.  This makes this matter fair game for public scrutiny.  If I see a similar thing happen to another member of the General Assembly, regardless of party, I will report in the same manner. 

UPDATE: As of May 18, Sen. Marsh appears to have paid the sanctions.

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