"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Sunday, April 6, 2014

It's time for the U.S. legislators to abolish judicially created rules and doctrines restricting access of civil rights litigants to court

Article III of the U.S. Constitution defines jurisdiction of federal courts.
U.S. Congress has a right, under the U.S. Constitution, to define jurisdiction of federal courts, within constitutional limits.
Federal courts have a right to apply the law, not change it through interpretation.
The U.S. Constitution is the Supreme Law of the Land, and that is written in the U.S. Constitution itself, Article VI, Supremacy Clause.
Therefore, any law that is repugnant to the U.S. Constitution is void, not voidable, but void, as if it never existed.  The U.S. Supreme Court recognized as much in Marbury v. Madison, by which case the U.S. Supreme Court assigned to itself the power of interpretation of the U.S. Constitution.
Judging from my practice in both state and federal courts, courts have a tendency to consider the U.S. Supreme Court decisions as the law of the land, and not the actual text of the U.S. Constitution.
A fine example is the 11th Amendment.
The text of the 11th Amendment says:  "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State".
The U.S. Supreme Court has "read" the 11th Amendment in the following way: "an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another state", Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (quotation marks and quoted cases omitted).
The U.S. Supreme Court has no right to amend a constitutional amendment by interpretation, but that's exactly what it did by expanding the 11th Amendment to apply not only to lawsuits by citizens of other states and foreign countries, but also to lawsuits against a state by citizens of that same state.  Anybody who can read can see that 11th Amendment does not include citizens of the same state.  Yet, not only the U.S. Supreme Court has read the constitutional amendment contrary to its clear plain-English text, but lower federal courts follow it till this day.
The interesting part is that 15 years after the Pennhurst case,  in Alden v. Maine, 527 U.S. 706 (1999) the U.S. Supreme Court now found that 11th Amendment had nothing to do with immunity of the states to lawsuits of their own citizens, but still found a "common law sovereign immunity" that allegedly pre-existed before 11th Amendment was enacted.  
Of course, if such sovereign immunity did exist, there would have been no reason to introduce the 11th Amendment to begin with, but, I guess, the high Court does not have to explain its logic to the public.
Yet, even after the announcement by the U.S. Supreme Court that sovereign immunity has nothing to do with 11th Amendment, federal courts continue to apply the concept of 11th Amendment and sovereign immunity interchangeably, granting motions to dismiss in federal civil rights actions against state defendants on 11th Amendment grounds as if 11th Amendment and sovereign immunity is the same thing.
Moreover, in the "in-between" case decided after Pennhurst but before Alden v. Maine the U.S. Supreme Court factored in 11th Amendment immunity when interpreting congressional intent in enacting 42 U.S.C. 1983 in 1871, Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989).  In Will the U.S. Supreme Court refused to recognize states as "persons" for purposes of application of the Civil Rights Act, even though it did recognize municipalities as such persons in Monell v. Department of Soc. Svcs, 436 US 658 (1978).
Thus, interpretation by the U.S. Supreme Court of 42 U.S.C. 1983 in denying "personhood" to the states and state officials sued in their official capacity was clearly done in order to remove state officials and the states from the reach of 42 U.S.C. 1983.  Such a removal based on 11th Amendment that does not provide a bar to lawsuits of citizens against their own states, was obviously wrong.

Yet, federal courts continue to apply Will in denying civil rights suits against the states and state officials sued in their official capacity, even though the U.S. Supreme Court did not amend its decision in Will which was based on the 11th Amendment, and was invalidated according to its own decision in Alden v Maine, because 11th Amendment has nothing to do with "state sovereign immunity".

The concept of state sovereign immunity, same as the issues of prosecutorial immunity, absolute judicial immunity in general and as to judges' malicious, corrupt acts and unconstitutional acts on the bench specifically, qualified discretionary immunity or any other immunity, is not reflected in the U.S. Constitution.  In fact, public officials who take their office on a condition of an oath of office to support the U.S. Constitution may not be given immunity to violate that same Constitution the moment they took that oath to support it.  The U.S. Constitution contains a Nobility Clause and Equal protection Clause which would prohibit creating unequal conditions for the government. The U.S. Constitution does not contain a clause allowing anybody to violate it for any reason and under any circumstances.  Therefore, judicially created absolutions to constitutional violations are clearly unconstitutional.

The Civil Rights Act of 1871 through which Americans are allowed a private cause of action to enforce their federal Constitution against their state governments, must be liberally construed, as any enforcement statute is.

Yet, while federal courts make the necessary disclaimers each time they introduce a restriction on its own jurisdiction in civil rights lawsuits, stating that such a restriction is an exception and not the rule, exceptions did become the rules of civil rights litigation long time ago, and civil rights litigation unnecessarily became a judicially created minefield with practically no chance of survival for the civil rights litigants, who are mostly poor, uneducated and left without recourse.

There are strong dissents in cases where the U.S. Supreme Court created doctrines restricting jurisdiction of federal courts.  Yet, in federal jurisprudence dissents are not considered part of the law.

There are numerous scholars writing on the subject and criticizing decisions of the U.S. Supreme Court in creating bars to federal jurisdiction for civil rights litigant as exceeding authority of federal courts to rule this way.  Yet, the only body in the United States which can "overrule" the U.S. Supreme Court, the U.S. Congress, sleeps at the wheel since 1871 and has failed to legislatively abolish judicially created restrictions to federal jurisdiction. 
The result is that innumerable civil rights cases have been dismissed and are continued to be dismissed as we speak, based on judicially created unconstitutional bars to federal jurisdiction.
Federal jurisdiction under Article III of the U.S. Constitution requires only that the court must accept cases for review that involve controversies that arose under federal law or the U.S. Constitution.     The Civil Rights Act allows a private cause of action for enforcement of such cases and controversies.
As early as in 1821 the U.S. Supreme Court has recognized that federal courts have “no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given”, Cohens v. Virginia, 6 Wheat 264, 19 U.S. 264, 5 L. Ed. 257 (1821).
Yet, since then the U.S. Supreme Court has practically amended the Civil Rights Act, 42 U.S.C. 1983 by inventing multiple doctrines barring a civil rights' litigants case from proceeding.
As an example, the Civil Rights Act contains no statute of limitation, and for a good reason, because unconstitutional actions of the government are void and thus challenges to such unconstitutional actions can be brought, pursuant to the language and spirit of the Supremacy Clause, at any time.

Yet, the U.S. Supreme Court did create such a statute of limitations for the Civil Rights Act of 1871, 42 U.S.C. 1983, even though it is nowhere to be found in the statute itself.

Moreover, the U.S. Supreme Court matched the judicially created statute of limitations to statutes of limitations for torts in state law of various states.  Thus, there is no uniform statute of limitations for the federal claim under the Civil Rights Act.  There are instead, multiple statutes of limitations matching state law, which is completely unacceptable for prosecution of a federal claim.

In New York the judicially created statute of limitations is 3 years.  It means that if the constitutional violation, or unconstitutional conduct of a government official occurred more than 3 years before the litigant brought the lawsuit, the litigant is without recourse, no matter that unconstitutional conduct is considered void under the Supremacy Clause and Marbury v Madison.  There are multiple reasons why poor and uneducated people, often intimidated by the government, either do not know their rights to sue, or do not have enough funds for access to court within the statute of limitations.

Making statute of limitations for federal claims in federal courts different in different states, in my opinion, defies the Equal Protection Clause and the Petitions Clause of the U.S. Constitution, but federal courts consistently apply state-generated statutes of limitations to federal civil rights claims.
When civil rights movement, and accompanying civil rights litigation, became more vigorous in mid-20th century, the courts which were supposed to vigorously apply existing law, started to vigorously change the law, preventing a mass of civil rights cases from reaching the jury.
I provide here just a conservative list of bars to civil rights lawsuits.  I plan to explore each one of these bars in separate books, to be published in 2014-2015.
  1. Abstentions:
    1. Pullman (1957)
    2. Younger (1971)
    3. Colorado River (1976)
  2. Constitutional avoidance
  3. Comity
  4. Federalism
  5. Deference
  6. Judicial Immunity construed as covering a multitude of non-judicial court employees and experts, even for malicious and corrupt acts and constitutional violations
  7. Sovereign Immunity
  8. Prosecutorial immunity
  9. Qualified immunity of any public official
  10. The Rooker-Feldman doctrine
  11. The Twombly/Iqbal specific factual pleading requirement (amending Rule 8 of Federal Civil Procedure that does not require specific pleading for civil rights claims)
  12. Res Judicata
  13. Collateral Estoppel
  14. Narrowly defined standing concept
  15. Playing games with mootness and ripeness concepts
  16. Statute of limitations
  17. Impracticable page limits for memoranda of law in opposition to motions to dismiss civil rights lawsuits and on appeals
  18. Impracticable time limits for response to motions to dismiss and appeals of dismissals of civil rights claims
  19. Impracticable filing fees making civil rights lawsuits unaffordable for majority of the population in the United States
  20. Impracticable numbers of copies to the U.S. Supreme Court (40) in the era of electronic filing, making it impracticable and unaffordable to file for writs of certiorari to most of U.S. litigants
  21. Refusal of federal courts to allow pro se parties to file electronically as of right, which discriminates pro se parties as compared to represented parties
  22. Allowing state Attorneys General to use public funds to represent violators of their oaths of office instead of prosecuting them and ousting them out of office;
  23. Rules of frivolous conduct against civil rights litigants and their attorneys, requiring constitutional arguments to be "reasonable", or mainstream.  Such a requirement does not make any sense when any new constitutional precedent declared a victory over an old rule which was previously a mainstream rule.  If the mainstream thinking is set in stone for an eternity, at no time can constitutional law develop and such an approach stifles social change in how the society views basic human rights.  At some point in the past it was acceptable to treat women as commodities of men, deny them education, employment, right to own property, marry them against their will.  It was allowed under the same U.S. Constitution under which it is not allowed now.  Therefore, some attorney or party at some point made a breakthrough argument and overturned the previous "well settled law".  Constitutional arguments must not be subject, as a matter of due process of law, to a majoritarian rule.
None of these doctrines are part of the enacted Civil Rights Act.  None of these doctrines are part of the written U.S. Constitution or its Amendments.

Thus, none of these doctrines are part of the Supreme Law of the Land and should have any part in constitutional jurisprudence.
Moreover, none of these doctrines may be honored by federal courts as they are outside of the written Constitution and written federal law.
Yet, these doctrines are routinely applied in federal courts to deprive civil rights litigants, often indigent and often people of low social and educational status, of any remedy for egregious violations by the government of their constitutional rights.
The U.S. Congress silently watched encroachment upon its authority by the U.S. Supreme Court to be happening since the enactment of the Civil Rights Act of 1871. 
It is time for the American people to assert to their legal representatives in the U.S. Congress that the U.S. Supreme Court is acting beyond its authority by restricting federal jurisdiction, by amending the U.S. Constitution and its amendments through interpretation and by engrafting upon the Civil Rights Act of 1871 what is not there, in order to clear its dockets and allow the government to continue violating people's civil rights with the discretion the government does not have in a constitutional democracy.
The mere recital of the above far from full list of the judicially created bars to the civil rights litigation that I presented here shows that it is impossible for a pro se civil rights litigant to navigate the barrage of judicially created doctrines barring his or her lawsuit in federal court.
Civil Rights Act was supposed to be liberally construed in favor of civil rights plaintiffs.  The Civil Rights Act was introduced when the majority of the U.S. population was illiterate, and thus the U.S. Congress could not possibly contemplate that the pro se illiterate litigants must know complex judicial common law doctrines or presuppose application of such doctrines to the Act.  Since the Act was created at the time of nearly complete illiteracy of the population, what was in it was what the Congress intended it to be. 

Now, when multiple scholars and courts disagree on the scope, meaning and legitimacy of judicially created restrictions to federal jurisdiction, it is unconscionable to assert that pro se civil rights litigants, mostly lacking legal education or any higher education, proceeding in large numbers pro se because attorneys are increasingly weary of sanctions and refuse to take civil rights cases, must know the quagmire of judicial doctrines now required for a federal civil rights lawsuit to survive.  Civil rights litigants are practically set up for failure by the amount and breadth of judicially created doctrines barring their access to federal courts.

It is my sincere and good faith belief that such doctrines, taken in their totality, represent a gross violation of the Petitions Clause of the 1st Amendment, and exceed authority of federal courts restricted by Article III of the U.S. Constitution. 

Federal courts' refusal to abide by the text of the U.S. Constitution and instead regarding the U.S. Supreme Court precedents as the Supreme Law of the Land, which view does not correspond with the contents of the Supremacy Clause of the Article VI of the U.S. Constitution, is a separate violation by each federal judge who follows this misconception of the judge's own personal oath of office to be faithful to the U.S. Constitution, which is intolerable, unconstitutional and must not be accepted by the American people as the "rule of law".

Federal courts have no authority to rule that judicially created doctrines and rules cited above somehow "require" the court, according to the rulings of the U.S. Supreme Court, unsupported by the Article III jurisdictional restrictions, to refuse to exercise the court's jurisdiction, toss cases for exceeding time or page limits, even though courts take months to decide cases and write cases on hundreds of pages sometimes.

The U.S. Supreme Court recognized that it has “no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given”, Cohens v. Virginia, 6 Wheat 264, 19 U.S. 264, 5 L. Ed. 257 (1821).  Each federal judge of the lower district and appellate federal court is taking an oath of office not to the U.S. Supreme Court, not to the state governments that federal courts but to the U.S. Constitution, and should not engage in protecting state governments from civil rights lawsuits by applying unconstitutional judicially created restrictions to the courts' jurisdiction.

Thus, if a precedent of a higher court, no matter how high, including precedents of the U.S. Supreme Court, contradicts the U.S. Constitution, a lower federal court must apply the Supremacy Clause and not follow such precedents, instead of claiming as federal courts do now that the unconstitutional precedent of the U.S. Supreme Court is somehow "well settled law" and punishing any litigants or attorneys who dare to spawn a heresy of challenging that law on the basis of the text of the U.S. Constitution and its plain meaning and fair and reasonable interpretation. 

We need to return the cart behind the horse and have our courts stick to the U.S. Constitution and not to their own "common law" generated by amending that Constitution and amending the enacted federal laws through interpretation, for which federal courts have no constitutional authority.
In other countries, as I have already written in this blog, people whose basic human and civil rights are violated can at least sue their governments and obtain a remedy through, in Europe, European Court of Human Rights and, otherwise, through the International Covenant of Political and Civil Rights adopted by many countries - members of the United Nations Organization.
No such remedies are permitted to American citizens by courts and the U.S. Congress, even though such rights would be clearly within that same Supremacy Clause of Article VI considering international Treaties as part of the Supreme Law of the Land.  Therefore, all that has to be done is to amend ratification of a Treaty, the International Covenant for Political and Civil Rights, to include the private right for U.S. citizens to sue their own government.

All it takes is for the U.S. Congress to finally wake up from its beauty sleep and to legislatively abolish judicial amendments to the Civil Rights Act and to the U.S. Constitution, thus clearing the rightful path of civil rights litigation.

Otherwise, a situation where the United States continues to claim itself to be the beacon of democracy and the example of respect to human rights for other countries while it refuses to allow its own citizens effective access to courts and a right to effective redress of their basic human rights violations, is completely unconscionable.
American citizens, part of the People of the United States, part of the sovereign of the United States, are not permitted any rights to enforce their own Constitution against their own public servants, their own government, for violation of their own constitutional rights. 

Judicially created doctrines created a situation where the public servants are abusing their sovereign and master, the American People, and are not allowing the master any redress for the abuse.  Such a situation puts the concept of fairness, constitutionality and sovereignty on its head.

Judicially created doctrines and rules gradually created a situation where federal courts which are supposed to be strictly adhering to and strictly applying the law and the U.S. Constitution, pursuant to their limited Article III jurisdiction, are instead acting as protectors of the state governments and creating conveniences for themselves to reduce their dockets, while at the same time denying civil rights litigants remedies for egregious constitutional violations by the government.

It is my sincere and good faith belief that such a situation is unacceptable, it presents the U.S. to the international community as not acting in good faith in fighting for human rights anywhere but not within its own borders, and this situation surely must be changed.
I call for the People of the United States of America, readers of this blog, to contact their legal representatives and to request them to legislatively abolish all judicially created amendments to the Civil Rights Act and to remove any barriers from enforcement of the International Covenant for Political and Civil Rights by private citizens against the United States in the United Nations Organization.

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