In fact, factual pleadings were, since long ago, deemed implausible, because such rules require people to plead enough facts to survive the lawsuit before discovery, and often under the circumstances when the proof is within exclusive possession of the defendants.
That is even more true when the parity of power between the plaintiffs and the defendants is squarely with the defendants, when the defendants are the government and the plaintiffs are lay individuals.
Yet, the U.S. Supreme Court chose to actually re-create the factual pleadings, FRCP 8 be damned, in two cases:
1) Bell Atlantic Corp. v Twombly, 550 U.S. 544 (2007), and
2) Aschcroft v Iqbal, 556 U.S. 662 (2009),
prompting a cartoonist to describe civil rights cases dismissed because they did not satisfy the court-invented factual pleading amendment to the FRCP 8 and FRCP 9 as "twomblied in the iqbals".
After these two cases, the majority of civil rights cases are dismissed, and only a very small fraction of civil rights cases reach beyond discovery and to trial. The courts, this way, obtained a result, reduction of their overloaded docket - but at the sake of fairness and with the help of violating the law and blocking real victims of constitutional violations from having any remedy for those violations against the government perpetrators.
In Bell Atlantic Corp. v Twombly, 550 U.S. 544 (2007), see description of the case also here, the court changed a decades-old rule, which was in compliance with FRCP 8, the claim-pleading standard, that a civil (and a civil rights) case in federal court will not be dismissed unless there may be NO set of facts under which the claim could be valid - a difficult standard for the defendants to meet before discovery, and the intention of FRCP 8 to adjudicate claims on the merits and not on pleadings.
Twombly was an antitrust case alleging anti-competitive behavior of telecommunications companies.
The court in Twombly indicated that certain pled facts, while being admissible circumstantial evidence of a conspiracy, are not enough, per se, to carry the claim of violation of the antitrust, Sherman Act.
In other words, the U.S. Supreme Court usurped the function of the jury, in violation of hte 7th Amendment, and claimed that a civil rights plaintiff must plead enough admissible facts for a jury to find for the Plaintiff, at the outset of the case and before discovery, including discovery of evidence in exclusive possession of the defendants,
When Twombly was decided, legal scholars already said that it rendered a motion to dismiss unconstitutional.
In Aschcroft v Iqbal, 556 U.S. 662 (2009), see description of the case also here, the U.S. Supreme Court has added insult to injury and allowed judges to consider their own experience and
Aschcroft v Iqbal was a politically charged case where the U.S. Supreme Court held that governmental officials cannot be charged for failure to supervise their subordinates engaging in racial and religious discrimination of suspects detained after September 11, 2001 attacks.
The court in Iqbal dismissed the case for conspiracy among governmental officials, defendants in the action, to engage in a conspiracy to discriminate because the plaintiffs could not provide facts in the pleadings that would allow the court to "draw inferences" of such discrimination.
Since a federal court would not draw inferences against the government until proof of conspiracy is provided, and proof cannot be provided until discovery, and even then, the evidence may be circumstantial and subject to a jury determination whether, on such facts, conspiracy should be found, after Iqbal, no conspiracy can be proven until plaintiffs, using their limited or, often, non-existent resources, wrangle from the government some kind of a confession of a conspiracy to violate their constitutiona rights - which, as any reasonable person would understand, is an unrealistic possibility.
Moreover, FRCP 9(b) specifically states that it does not require to show meetings of the mind at the pleading stage:
"[m]alice, intent, knowledge, and other conditions of a person's mind may be alleged generally".
Yet, the court in Iqbal, and federal courts throughout the country after Iqbal universally violate this rule in civil rights actions by demanding that the civil rights plaintiffs put into pleadings facts showing "malice, intent, knowledge, and other conditions of the mind" of governmental defendants.
In Iqbal, the U.S. Supreme Court also allowed judges to become unsworn witnesses, and thus, advocates in the proceedings on behalf of defendants by allowing judges, in considering a motion to dismiss a case, to draw and rely upon the judge's own experiences (unknown to the plaintiffs).
It is irrefutable that Iqbal and Twombly was protective of the government and was aiming to undermine, and did effectively undermine, the civil rights litigation based on existing statutes and rules.
The U.S. Supreme Court in Iqbal and Twombly acted like a crook helping crooks - let's call a spade a spade - in telling the injured victims of constitutional violations: "haha, you cannot prove it - because we hold the evidence you need that you can get only through discovery? - tough, case tossed before discovery because you cannot prove it".
After Iqbal, some practicing attorneys cautiously stated that while the pleading rules did not change (only technically, FRCP 8 and 9 did not change), "the game" changed:
But, practicing attorneys, in their dual rope-balancing act of pleasing the court while advertising their knowledge to gain more paying clients, sometimes do not pay attention how crass their comments may be.
The author of the above quoted article, Robert L. Rothman, an attorney from Georgia, didn't notice, apparently, when putting his "game changing" comment in the very first, "catch", paragraph, of his article, that equating adjudication of human rights violations with a "game" being played is (1) inappropiate, and (2) revealing - because that is EXACTLY what the government, and the courts turned the promise given to people in the Civil Rights Act, of providing a remedy for constitutional violations: and that is a game, and a rigged game.
Let's note that in both cases, Twombly and Iqbal, the U.S. Supreme Court dismissed the action based on a new "rule" that it JUST CREATED, which means - when the plaintiffs were pleading their case, those new rules did not exist, and the plaintiffs, or their attorneys, did not have notice of those rules.
And, of course, such a drastic change of rules as occurred in Iqbal and Twombly, severely restricting civil rights plaintiffs' access to court, guaranteed by the 1st Amendment, and barring victims of unconstitutional conduct by government officials to have effective legal remedies for their injuries, is a matter of POLICY, of LEGISLATIVE POLICY, which is NOT within the Article III authority of federal courts to adjudicate, but is within the EXCLUSIVE authority of the U.S. Congress to deal with.
The U.S. Supreme Court cannot change rules by interpretation, it has no such authority under Article III of the U.S. Constitution which describes authority of federal courts.
Yet, the U.S. Supreme Court treated Twombly, its own interpretation of Rule 8, and an ultra vires interpretation, unlawfully changing the Rule, and not the original text of Rule 8, as controlling itself in deciding Iqbal, a further amendment through interpretation of Rule 8.
Consider the possibilities of this game-rigging strategy.
You have a rule you do not want to comply with.
You know that the highest court of the country acts mostly like a political body, picking and choosing cases for its limited docket only when it wants to either issue some sensationalized case and garner some political capital for further perks, speeches, trips and books from the legal establishment, or to help the government escape liability under existing statutes.
With that in mind, you pitch at that body a catch they cannot miss, so they take the case and decide it your way (for how much in bribes I can only imagine - what? U.S. Supreme Court judges were never caught in conflicts of interest? They did not just decide U.S. v McDonnell, practically legitimizing and thus encouraging the bribing of government officials in the United States?).
You have a rule.
You rig the rule once.
The next time you are requested to rig the rule, in reviewing of the rule, you use in rigging the rule not the text of the rule itself, but your previous - rigged - interpretation of that rule, to rig it further.
That's the logic of Rule 8 and 9 turned into civil rights lawsuits "twomblied in the iqbals" en masse.
Legal scholars were not as forgiving to the change of rules as practicing attorneys whose livelihood depends on "may we please the court", no matter what kind of misconduct the court may be committing on the attorneys' watch. (The best example of that cowardly behavior is the Kids for Cash scandal in Pennsylvania where a judge was selling kids for money into juvenile detention facilities FOR YEARS, while many attorneys knew about it, but kept mum, and that starts from the prosecutor or prosecutors of such cases who KNEW that juveniles' rights were violated and built their careers on it.)
After Iqbal, U.S. Senator Arlen Specter from Pennsylvania introduced a "Notice Pleading Restoration Act", but, Senator Specter was voted out of office in 2011 (when he was already critically ill with cancer), and the bill was not enacted. Senator Specter, who tried to make a difference for us all and to restore to Americans their right to a jury trial in civil rights cases, guaranteed by the 7th Amendment to the U.S. Constitution, died in 2012.
Senator Specter's memory should be honored this coming July 4, 2016 for what he was trying to do for all of us.
While attorneys matter-of-factly claimed "game change", and Senator Specter introduced a bill to kill the Twombly/Iqbal rigging of the 7th Amendment, legal scholars squarely called Iqbal (which was based on Twombly) unconstitutional.
So, before rigging Rule 8 and Rule 9, the U.S. Supreme Court and lower federal courts - sworn to uphold the U.S. Constitution, and every provision and Amendment to it - actually rigged the 7th Amendment to the U.S. Constitution, claiming that the way to interpret it is
- to pin constitutional rights of present-day U.S. citizens to a jury trial in federal court,
- guaranteed to people in the U.S. by the U.S. Constitution, the 7th Amendment that was ratified in 1791, 15 years AFTER the U.S. was created as a country separate and distinct from the British monarchy with which Americans went to war and laid down their lives to gain their country's independence
- to how the right to a jury trial was understood in that monarchy, England, in 1791.
There was no logic or LEGALITY in that "historic test", but, with the help of that "test", the right of Americans, under their own U.S. Constitution, to the jury trial in civil rights cases was rigged - and is continued to be rigged every day by courts applywing Twombly and Iqbal, which cuts off the 7th Amendment right to a jury trial allowing judges to make factual considerations, drawing on judges' own experience and "common sense" - as judges understand it.
So, while we are about to celebrate the 240th anniversary of this country's Declaration of Independence from Britain, the absolute monarchy AND FROM ITS LAWS, our celebration is rigged and dampened by our own courts, starting with the top one, the U.S. Supreme Court, because those same laws that we as a country claimed independence from in a war where many of Americans laid down their lives to achieve that independence, are jammed right down our throats through various "historic tests" - like the one described above - which restrict our constitutional rights based on the death grip of ancient British common law, the very common law that people fled from to America in the first place.
That's why I perceived the news that the U.S. Court of Appeals for the 7th Circuit recently overturned a case where a judge, following the U.S. Supreme Court encouragement and directive in the Iqbal case to draw upon the judge's "experience", actually googled the case and based his determination of dismissal of an excessive-force civil rights lawsuit against the police upon newspaper articles.
I obtained the docket of the case from the lower court, and it is a saga of retaliation of Senior U.S. District Court Judge Milton I. Shadur against pro se injured (and now incarcerated) plaintiff Joseph Felton that I will describe in a separate blog.
For now - Joseph Felton won his appeal, and I hope he will be given a new judge on remand, because, judging from the docket, Judge Milton I. Shadur, date of birth June 25, 1924 who just turned 92 of age, has no energy to handle this case properly and is unable to treat Joseph Felton fairly.
By the way, in 2010 the same 7th Circuit reversed and remanded a too-lenient conviction by Judge Shadur of a politician convicted of corruption, to another judge. The defendant was Edward Vrydolyak, date of birth December 28, 1937, a white male and a powerful Cook County official in Chicago.
This is Vrydolyak advocate judge Shadur:
I wonder if the two are relatives - looks like it by the facial features, but what is beyond dispute is that both of them are old white powerful males, and one supports the other, in violation of his duties and the law.
In 2015, the wonderful white man Edward Vrydolyak, who was given an extremely - and inappropriately - lenient treatment by Judge Shadur that led to the reversal of 2010, was at the center of a federal tax-evasion indictment.
And, of course, you do not have to ask what race plaintiff Joseph Felton is.
Here is his picture.
From his decisions and conduct in Felton's lawsuit, Judge Shadur appears to be an elderly white racist thinking that injuries inflicted by the police upon a black man should not be chargeable in civil rights litigation per se - looks like, doesn't it?
Judge Shadur also recused from the lawsuit of Michael Jordan, a black litigant, and a famous black litigant, in June 2014, and retaliated against Michael Jordan's attorney who claimed bias.
That happened 2 months after Judge Shadur dismissed pro se black civil rights plaintiffs Joseph Fenton's lawsuit, 4 days after it was filed and before it was even served:
Note what the judge said in Docket 5, date September 8, 2014:
"It is frankly an affront to the judicial system for Felton to attempt, like alchemists of the Middle Ages, to transmute base metal into gold. Section 1915A(b)(1) amply justifies the dismissal of both Felton's Complaint and his action as frivolous, and this Court so orders."
No service on defendants.
Just Judge Shadur acting as the replacement of judicial process and who mocked the injured plaintiff and tossed his claim of excessive police force that, the plaintiff claimed, caused his injuries. So, to toss the complaint, Judge Shadur had to also decide the issue of causation, without a medical expert, discovery or jury.
Judge Shadur undoubtedly acted here as an advocate for government defendants and mocked the civil rights plaintiff.
That behavior was noted by the 7th Circuit in another case when in November of 2014, the same year, the 7th Circuit reversed a sex-bias case decided by Judge Shadur, also because of bias, here is the full opinion.
The federal court specifically noted the "unmistakable (and to [the court] incomprehensible) tone of derision that pervades [Judge Shadur's] opinion"
Yet, after all of that, Judge Shadur was still allowed to stay on the bench and continue, same as another 92-year old federal judge who had multiple reversals, Manuel T. Real of a U.S. District of California and who remains on the bench despite an astounding number of reversals indicating, same as with Judge Milton Shadur, senility, and thus disability and incompetence and unfitness for the bench.
As to the detailed story of how white Judge Shadur tossed black civil rights plaintiff Joseph Felton's excessive force case and what misconduct Judge Shadur engaged in to discriminate against Joseph Felton after the dismissal, interfere with his right to appeal and punish him for appealing the dismissal, stay tuned.
This coming weekend is the 4th of July weekend.
Our rights that the 4th of July celebrates, for the 240th time, are obtained by many Americans who gave their lives for us to have those rights.
Let's not allow our errant government officials to take those rights away.
What the 7th Circuit did in overturning Judge Shadur - again - is one step in the right direction to restore one of our major rights taken away by federal courts through Iqbal and Twombly and similar decisions.
The 7th Circuit reversed Judge Shadur for what Iqbal and Twombly allowed - for drawing upon the judge's own experience, however obtained (here, Judge Shadur obtained his extrajudicial experience by reading newspaper accounts of the chase of plaintiff Fenton).
We need to put pressure on the U.S. Congress to restore our rights under the 7th Amendment to the U.S. Constitution for a jury trial in civil rights litigation.
For a separate blog about Judge Shadur's discrimination against black pro se civil rights plaintiff Joseph Felton, stay tuned.