They Should Have Revealed That An Almost Identical Motion Was Made And Denied Before.
As recently reported in the on-line ABA Journal, the Fifth Circuit Court of Appeals in Texas Alliance for Retired Americans v. Hughs, No. 20-40643 (5th Cir. Mar. 11, 2021) (per curiam, 2-1 vote) issued sanctions against defendant’s attorney in a lawsuit seeking elimination of straight-ticket voting in Texas based on the theory it disproportionately affected minorities. What happened is that defendant filed a second motion to supplement the appellate record even though a nearly identical first motion had been denied earlier. As indicated by the majority, “This inexplicable failure to disclose the earlier denial of their motion violated their duty of candor to the court.” It also was an improper motion for reconsideration filed outside of the fourteen-day window for such motions under appellate rules. Even if the attorneys were confused about what was done earlier, all they had to do was disclose the earlier motion in their subsequent paperwork. The majority imposed double-barrel sanctions: (1) the fees and costs incurred by plaintiffs in connection the duplicative motion; and (2) “double costs.”