So, my readers might be surprised to learn that there is a bill being prepared that will kill the remnants of civil rights litigation, the way it exists (or nearly does not exist) today, and it has already passed House and is in the Senate for further legislative proceedings.
Here is the text on the bill.
Here is the voting record on the bill.
And here is the call to democrats by the minority leader to vote "NO" on that bill because of the potential and history of Rule 11 to be disproportionately used against civil rights plaintiffs and their attorneys to chill civil rights litigation against government abuses.
The call to vote "No" to the bill (above) contains ere is the description of the history of Rule 11 showing that Rule 11 was already used to chill civil rights litigation.
After it was "reformed" and a "safe harbor provision" put into it, Rule 11 motions are simply not used by government defendants.
Instead, they resort to motions asking for penalties against civil rights plaintiffs and their attorneys under the so-called "inherent power of the court" and 28 U.S.C. 1927.
The penalties are still for "frivolous conduct", and, as democrats who dissented, were fearing, they are already used to chill civil rights litigation.
The same is occurring in state courts.
In New York, the rule of frivolous conduct, 22 NYCRR 130.1, as far as I know, is used ONLY, EXCLUSIVELY and ENTIRELY to chill civil rights issues.
I was sanctioned 3 times by a judge whom I sued on behalf of my clients, right after I sued him.
The judge sanctioned me for raising constitutional arguments in motions to recuse.
The State of New York, a defendant in actions where I sued it on behalf of clients, took my state law license, without a hearing, based on my constitutional arguments on behalf of my clients.
Please, note that constitutional arguments are especially vulnerable to the "frivolous conduct" rule, because the "frivolous conduct" rules allow judges discretion (use their whim, practically) for arguments that are not "mainstream", not "supported by authorities".
For judges reviewing motions under the rules of frivolous conduct, "authorities" are not the U.S. Constitution itself, interpreted by the litigant or the litigant's attorney (which is completely legal and part of the attorney's duty), but additional state and federal statutes and cases where another court or another government body would first say what the litigant or the litigant's attorney is saying.
In other words, the rule of frivolous conduct does not allow certain novel ideas to be raised for the first time in the pleading, it prohibits the so-called "cases of first impression", thus stifling development of constitutional jurisprudence, and stifling social progress.
As dissenting democratic Senators correctly stated regarding House Bill 758, if penalties are imposed for novel or unusual constitutional arguments, there would have been no "Brown v Board of Education" and other important precedents of the U.S. Supreme Court that changed how we all live and prohibited various forms of discrimination.
I wrote on this blog long time ago about the "mysterious rule of frivolous conduct", its vagueness, overbreadth, reaching protected conduct and disproportionately targeting civil rights attorneys and attorneys raising constitutional arguments in any other litigation.
I wrote on this blog long time ago about the whole "tree" of thoughts (and that tree is far from complete) that an attorney needs to go through before making a motion to recuse a judge, for fear of retaliation.
The target of these rules is not "lawsuit abuse".
The target of these rules is civil rights litigation.
These rules are used to intimidate litigants and especially their attorneys not to take civil rights cases.
Even while 42 U.S.C. 1988 was enacted to encourage civil rights litigation by providing incentives to civil rights attorneys for taking cases without being paid up front, with the hope that, if the case is successful, the attorney will be paid by the governmental defendants, the courts managed to hack up even that statute and put it on its head, instead using it now to award attorney fees to governmental defendants, perpetrators of constitutional violations, making their victims pay their perpetrators' attorney fees, which is completely contrary to the legislative intent of 42 U.S.C. 1988.
So, while the U.S. Congress is toiling on whether to pass or not to pass H.R.L. 758 that seeks to amend Rule 11 back to where it was in the year 1983 and was used to stifle civil rights litigation, the U.S. courts are quietly laughing at the efforts and are bypassing Rule 11 anyway, stifling civil rights litigation just the same, by other means.
And state courts are contributing to that stifling by simply revoking licenses of civil rights attorneys who raise constitutional arguments - and are sanctioned for them as if "for frivolous conduct".
The legislation that is really needed is the Civil Rights Litigation Protection Act, imposing an absolute prohibition on the courts against penalizing civil rights plaintiffs and their attorneys.
After all, judges and prosecutors are immunized for malicious and corrupt acts in office, as a matter of public policy (even though courts that invented that rule may not create public policy decisions, it is the exclusive matter of legislating for the U.S. Congress).
Enforcement of the U.S. Constitution against government encroachments is no less important.
It is necessary to enact federal legislation prohibiting ANY rules, regulations or court decisions imposing ANY penalties on litigants and/or their court representatives who raise constitutional issues in litigation.
I mean, once a constitutional argument is raised, the litigant or attorney must be immune to penalties, otherwise it is too easy for courts to invent a reason other than a penalty for a constitutional argument to impose a penalty for filing a pleading CONTAINING a constitutional argument.
Ask your U.S. representative in Congress to introduce and enact Civil Rights Litigation Protection Act.
Otherwise, you can say goodbye to civil rights litigation, because ANY of your pleadings in court may now, at a judge's whim, be considered "frivolous", and NO attorney, whose licenses are in the hands of those same judges before whom they are raising constitutional arguments, will want to raise constitutional issues of sensitive nature - such as on a motion to recuse, or raising an issue of misconduct of a government official.
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