"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.

Saturday, August 16, 2014

Attorneys are more savvy to file electronically than pro se parties? Why does the U.S. Court of Appeals for the 2nd Circuit discriminate against pro se parties by not allowing them to file electronically as a matter of right.

I have written in my blog about the so-called "unpublished" appellate opinions as a way to sweep issues raised in federal civil rights litigation under the rug and discriminate against civil rights plaintiffs.

In this post I want to raise a no less important issue - how the U.S. Court of Appeals for the 2nd Circuit discriminates against pro se appellants by denying them an option to file appellant's briefs electronically, an option allowed to appellants represented by counsel.

I have witnessed how my husband applied, in vain, for permission of the 2nd Circuit to file electronically.  His requests were simply ignored, and he had to comply with the 2nd Circuit deadlines by mail - while the 2nd Circuit clerk's office routinely lags behind between receiving mail and filing it by about 2 weeks based on my personal experience, and while the 2nd Circuit lost my husband's mail which resulted in a dismissal of his appeal for "default", as described here.

I do not have statistics of this office, but I am sure that if my husband, as a pro se civil rights appellant, was treated this way, any other number of pro se civil rights plaintiffs who cannot advocate for themselves in public forums, could also be treated the same way by the same office.

There are distinct advantages created, deliberately or without thinking, by federal appellate courts for parties represented by counsel by disallowing to pro se parties electronic filing as a matter of right while allowing such filing to attorneys (and even requiring it from attorneys).

Appellants represented by counsel are in a better position because their counsel simply file electronically, which:

(1) saves the expense of printing;

(2) saves the expense of mailing or travel to the clerk's office especially that, with the mess in the clerk's office where the office routinely claims it did not receive correspondence sent to it even by certified mail and causes dismissals of appeals through its own negligence, it becomes a must to send correspondence to the clerk's office by certified mail, an extra expense to pro se parties;  yet, even certified mail does not guarantee delivery by a certain deadline, so the safest way to submit appellate briefs to the Clerk's office for pro se parties (short of traveling to the office and making sure that your papers are filed under your watch, with a time stamped copy given to you) is to send the briefs by overnight mail - only this type of mail guarantees delivery by a certain date;

(3) adds time to work on the brief for the counseled party as compared to a pro se party submitting the brief not by electronic means (where the rule requires that the court receives the filing on the deadline, not that the filing must be mailed on the deadline, and mailing takes time); and

My husband, on his pro se appeals, sent applications to the U.S. Court of Appeals (same as to the U.S. District Court for the Northern District of New York) to apply electronically.  All of them were not even denied - ignored.

Thus, he was forced to comply with deadlines by submissions through regular mail, and do it not even by certified - by overnight mail, because only that type of mail guarantees delivery on a certain date. 

I fail to understand why attorneys practicing in the U.S. Court of Appeals for the 2nd Circuit are required to file electronically - and, thus, are saved the expense and hassle described above, associated with "regular" filing by mail, as well as given extra time to work on their briefs, while pro se parties who are presumably less knowledgeable in the law and need more time to research their briefs, are actually given less time to do that?

It may be a sheer lack of thinking, but that lack of thinking, nevertheless, discriminates against pro se parties big time and takes away from them opportunities for access to courts, in violation of both the Equal Protection Clause of the 14th Amendment and the Petitions Clause of the 1st Amendment, not to mention the Due Process Clause of the 14th Amendment.

There is no rational, legal or constitutional basis for such discrimination, for counsel to be "required" (or, rather, given an indisputable right) to file electronically, while pro se appellants must necessarily apply for permission to file electronically at the court's discretion, and the court, in its discretion, ignores such requests from pro se parties.

It is laughable to claim that in our day and age where everybody is posting on social networks through their phones and where there have been raised generations of Americans who were taught in school how to use computers and the Internet, attorneys are somehow more savvy than pro se parties in electronic filing.

First of all, attorneys are not taught in law schools how to use the electronic filing system, and bar examinations do not include testing of that skill.

Second, applicants to law schools are predominantly coming from humanitarian majors and cannot be presumed to be more knowledgeable than the rest of the population, including pro se parties with technical and computer-related background.

It is common knowledge that attorneys, if anything, are more technologically challenged than the rest of the population because:

(1) they are predominantly not trained in technology in their pre-law school majors;
(2) they are not trained in technology in law schools;
(3) they do not need technology in their everyday lives;
(4) they have secretaries who do routine technical work for them.

I personally talked to some attorneys who had to "learn" the electronic filing system through going to "classes" and paying to a "consultant" to teach them - what? How to read the rules of electronic filing, follow them, scan documents or convert Word documents to a pdf?  Something that any middle-schooler can do without a problem?

If electronic filing from attorneys are required as a matter of convenience to the clerk, there is no reason why, for that same convenience, pro se parties may not file electronically as a matter of right.  Electronic scanners (wand scanners) are dropping in price, scanning programs are available for smartphones, one can convert a Word file into a pdf format online, for free or for a small fee, and think how much timber will be saved by not having to send tons of paper to the office of court clerks!

Does anybody in the judiciary think along those lines?

Apparently not, and that is a shame, because what results from this lack of thinking, is, as I stated above, blatant discrimination against pro se appellants, which is unacceptable, and especially because for the majority of civil rights plaintiffs/appellants a federal appellate court is the court of last resort.

No comments:

Post a Comment