Becker, Dale G. v. Montgomery, Ohio Atty. Gen. (05/29/2001)

By: Nicole Magistro, Medill News Service

Questions presented

Does the timely but unsigned notice of appeal filed by a pro se defendant satisfy the jurisdictional requirements of Fed.R.App.P. 4(a)?

Brief

Dale G. Becker sat in a smoky, southern Ohio prison for almost a decade before he filed suit against Ohio Attorney General Betty Montgomery and the Chillicothe Correctional Institution (CCI) for intentionally exposing him to second-hand smoke.

Becker had been in prison since 1991, serving time for corruption of a minor and gross sexual imposition.

Becker's pro se complaint, filed in the U.S. District Court of southern Ohio, alleged that prison officials and the state attorney general understood the medical dangers of Environmental Tobacco Smoke (ETS) and ignored the inmate's rights as a non-smoker to clean, ventilated air.

The judge dismissed Becker's case for failure to exhaust the internal steps provided to prisoners before making a case in court, as well as for failure to state a real claim.

Without delay, Becker filed his typewritten notice of appeal on Oct. 1, 1999. On the signature line was Becker's typed name. He received an initial briefing and submitted his pro se brief to the 6th Circuit Court of Appeals well before the deadline.

Six months later, the court dismissed the case for lack of jurisdiction due to the technically unsigned notice of appeal. ""They didn't look at the merit of the case at all,"" says David M. Gormley, Ohio state solicitor.

By rejecting Becker's appeal, the dismissal clashed with similar appeals decisions handed down to pro se defendants.

""Circuits have said that yes, the documents have to be signed, but the majority have said (an unsigned notice of appeals) is not a jurisdictional defect,"" says Gormley.

In recognizing this discrepancy at the circuit court level, Becker submitted another pro se petition -- this time to the U.S. Supreme Court.

On Jan. 8, 2001, the U.S. Supreme Court granted certiorari in the case and allowed Becker to proceed in forma pauperis.

Although the Ohio attorney general's office does not believe Becker's second-hand smoking claim deserves merit, they agree with Becker's appeal to the Supreme Court. As a result, Becker's court-appointed lawyer will ask the court to share his time with the state attorney general, according to Gormley.

Special counsel appointed to represent the 6th Circuit Court of Appeals will be allowed to argue for the full time usually given to a respondent.

The Court appointed Jeff Sutton to represent Becker, and Stuart Baker will argue for the 6th Circuit Court of Appeals.

On May 29, 2001, a unanimous Court reversed, holding that Becker's failure to sign the notice on time did not require the court of appeals to dismiss the appeal.

Though the Court said it was not disposed to extend the meaning of the word ""signed"" to permit typed names, as Becker urged, the Court nonetheless held that the 6th Circuit had erred in its dispositive ruling that the signature requirement cannot be met after the appeal period expires.

Justice Ruth Bader Ginsburg wrote the Court's unanimous opinion.