"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.

Friday, May 2, 2014

It is not honorable for the U.S. Congress and federal courts to blatantly discriminate against indigent pro se litigants

I've posted this story in two of my blogs, one dedicated specifically to discrimination by American courts against pro se litigants and this one, focusing on judicial accountability and independence of the legal profession.  I believe it is important for the readers of both of these blogs to see this story.

I've got a phone call today from a reader of my blog who has been litigating pro se in federal and state courts, so far unsuccessfully.

The reader, a well respected retired professional, was surprisingly well versed in the mazes of doctrines and rules of federal and state appellate courts, which shows years' worth of litigation.

The cases were still lost, both in state and in federal courts, for reasons well described in my this blog.

Even before I started this blog, I have been contacted by many people whose federal cases were already lost or who had no hope winning those cases because of barricades of judicially created doctrines that block their access to courts.

Yet, one case stood out.  It introduced me to the area of federal law I did not know about and which I am deeply ashamed of, more than of anything else I encountered during my years as a civil rights attorney.

It is statutory discrimination against civil rights litigants in federal courts who represent themselves and who are poor and obtained from the court a "poor person status" with a fee waiver.

The current filing fee in the federal district court where I am practicing is $450.00.  For many people such a price tag on access to justice makes that access impossible.

To alleviate that problem, federal courts allow civil rights litigants to apply for what is called "in forma pauperis" (IFP) status, or a leave to proceed as a poor person, with a waiver of filing fees.

Yet, when an IFP status is granted, the poor (and mostly uneducated) pro se litigants are not told that with the IFP status comes such conditions that they should beware the courts bearing such gifts and instead should struggle, but pay that $450.00 fee, because for $450.00 they are agreeing to egregious discrimination by federal courts, authorized by the U.S. Congress, in 28 U.S.C. 1915.

Pursuant to 28 U.S.C. 1915(e) a federal court has authority to dismiss a civil rights case of an IFP pro se litigant sua sponte (on its own motion) if the action or appeal is "frivolous or malicious",  28 U.S.C. 1915(e)(B)(I);  fails to state a claim on which relief may be granted, 28 U.S.C. 1915(e)(B)(ii), or seeks monetary relief against a defendant who is immune from such relief.

Now, concepts of immunity are not reflected in statutes, most of them (with the exception of judicial immunity from injunctive relief when sued in official capacity, an odd addition to 42 U.S.C. 1983)are judicially created doctrines with multiple exceptions and intricacies of application.

The statute clearly provides that at any time, including the time before defendants are even served with the lawsuit (which was the case for the person who brought to me the description of their case after such a dismissal) a federal court may, on its own motion, not only dismiss the case, but also impose costs upon a poor pro se litigant!

Moreover, if the court does such sua sponte dismissals three times, a prisoner/pro se litigant's access to court as an IFP person will be simply barred, whether he actually remains a poor person or not:

28 U.S.C. 1915(g): 


"In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

 Furthermore, under 28 U.S.C. 1915(h):

" (h) As used in this section, the term “prisoner” means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.

It is apparent that the federal statute makes no difference between a convicted individual and a detained or accused individual who is still covered by presumption of innocence.

Even then, whether a person has been convicted and sentenced for commission of a crime or not, that does not automatically cancel his civil rights, which is what is being presented in this statute.  I draw the readers' attention to the fact that it is presumed that the dismissal is correct.  So, it takes three careless dismissals to block an access to court of an individual who is "detained" (not convicted yet),  "accused" (not convicted yet),  violated "pretrial release" (not convicted yet), or violated diversionary program ( as an alternative to conviction, so not convicted).

Presumption of innocence goes out the door.

Detention is presumed lawful.

Accusations is presumed evidence.

Delinquency which is a sealed proceeding is revealed.

The law is put on its head.

But that is not all that is wrong with this statute.

Normally, after a defendant is served, a defendant must timely file an answer with affirmative defenses or

In IFP cases, the court must serve the defendant.

In the case that was complained about to me by my confidential client, the court dismissed the case on its own motion BEFORE that same court fulfilled its duty to the IFP litigant to serve the defendants.  The defendants were powerful public officials and agencies, judges and courts.

Some defenses upon which the court dismissed the lawsuit, were not jurisdictional, they were affirmative defenses that were for defendants to timely raise, and if they would not be raised, they would be waived.

Plaintiff would have benefited by being allowed to at least argue on her own behalf.

The U.S. Congress allowed federal courts to be advocates for powerful governmental defendants by giving a court to sua sponte dismiss cases before they were even served based on the court's own understanding, on its "own motion" as to what constitutes "frivolous" constitutional claims is, oxymoronic, because constitutional arguments are counter-majoritarian by their nature and what is "frivolous" is a majoritarian argument, moreover, such rules are vague, poorly defined and allow arbitrary enforcement.

American court proceedings are adversarial.

When a court is moving sua sponte to dismiss a case of a poor person, the court acts as that person's opponent and thus completely cancels out the whole idea of access to a fair and impartial tribunal.

Yet, in the even that the IFP pro se plaintiff had money, that plaintiff would have been entitled, with the very same claim, to hire an attorney, have that attorney serve the complaint, declare a default if defendants do not appear in the action timely, oppose any motions to dismiss and bring forth arguments that could change the court's mind and change previous caselaw  if previous cases are decided incorrectly.

An IFP pro se litigant is not only at a disadvantage because, well, the pro se plaintiff is poor, but the pro se plaintiff has no legal representation and no time or opportunity to be heard before the court dismisses the case before the lawsuit is even served and before any affirmative defenses are raised!!!

To add insult to the injury, in my confidential client's case the court not only dismissed the case before serving defendants, but told the IFP pro se plaintiff that if plaintiff takes an appeal from the dismissal, it will be presumed to be in bad faith and frivolous.

IFP pro se plaintiffs often have low educational level.

Yet, the courts and the U.S. Congress which enacted this statute, appear to presume and require that IFP pro se litigants be educated in judicial doctrines without any representation, even while professors, courts and attorneys differ as to the meaning, scope and the very validity of the doctrines that illiterate IFP pro se plaintiffs are presumed to know, "or else" their access to the court will be barred.

The issue of the IFP pro se federal lawsuit that was dismissed sua sponte was, sadly, about access to Family Court files for pro se appellants to prepare a Pro Se Record on Appeal, as well as caps on compensation of assigned counsel on appeal in Family Court cases in New York state.

The plaintiff did not ask for money damages, only for prospective injunctive and declaratory relief, and that relief was supposed to be granted, because otherwise the plaintiff would be left without access to state court and without  any remedy at law, despite the obvious fact that her constitutional rights as an appellant were violated.

28 U.S.C. 1915 is an example of shameless discrimination against the poor and the pro se litigants in American courts, leaving poor people without any legal remedies pertaining to violations of their civil rights.


No comments:

Post a Comment