"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, January 2, 2016

The U.S. (federal) court system is posed to work faster - not fairer

Every person coming to court has fundamental constitutional rights.

As a minimum - to due process of law, equal protection of law, impartial adjudication and to, generally, access to courts.

To ensure that, there should be enough judges and enough court personnel.

The U.S. justice system is suffering from large caseloads and insufficient number of judges for decades.

While population grows, both from births and from immigration, while the government is increasingly immune from anything wrong it is doing, while government's misconduct is increasingly exposed through the Internet, one can reasonably expect that civil rights filings would be on the rise.

Yet, according to the end-of-year report of the U.S. Chief Justice Roberts, civil filings in federal courts (majority of which are civil rights filings) actually declined 6%, a very significant drop, in the year 2014, which is a tendency that cannot be reasonably explained by the U.S. demographics or by statistics of governmental misconduct and its exposure in the social media (mainstream media usually takes the back seat in such exposures and joins in only when misconduct results in a great public scandal, such as criminal charges and/or conviction for corruption.

But, that tendency can be reasonably explained by the following:

1) declining economy and rising filing fees;
2) dismissals by federal courts of majority of civil rights lawsuits based on judge-created (unlawful) restrictions to federal courts' jurisdictions;
3) increasing imposition of sanctions by federal courts upon civil rights plaintiffs and their attorneys for the contents of their constitutional arguments/ civil rights actions;
4) increasing use of "summary orders" decided, most often against civil rights appellants, without thorough review and analysis of facts or legal issues by senior-age and senior-status judges.

The number of federal judges does not grow for years and decades, while caseloads do grow.

9 judges of the U.S. Supreme Court continue to decide the ever-growing caseload, where in 2014 out of over 7,000 filed petitions the U.S. Supreme Court reviewed and decided only 75, that is 1%.

With such a percentage of petitions chosen by the court for review, it cannot be said that judicial review by the U.S. Supreme Court exists, and the struggle to get through the bottleneck of selection for review may lead to rampant corruption, as with any scarse and valuable resource.

By the way, there is no information in Judge Roberts' report about judicial corruption in the federal judiciary or measures undertaken by the courts to fight it within themselves.

Yet, corruption in the judiciary, both state and federal, is an increasing problem in this country, and has been for a while.  

Yet, while the corruption becomes a systemic problem, and is rooted in judicial immunity/impunity, inadequate number of judges, control by the judiciary of the legal profession, monopoly of the legal profession over court representation and inability of majority of Americans to afford an attorney, the government undertakes no systemic efforts to fight that corruption. 

Instead of fighting corruption and increasing the number of judges so that meritorious cases are not tossed out simply to control growing caseloads, courts invent ways to control caseloads by simply chilling and thus eliminating the most frequent type of civil filings - civil rights cases, and Judge Roberts' report announced of yet one more of such efforts, the "new" discovery rules.

The majority of federal civil cases are civil rights cases (there are only two bases of civil jurisdiction in federal courts - federal question and diversity, diversity comprising, reportedly, only 14% of federal cases).

Only 3% of civil rights cases concluded by trial in 2003, a decline of 5% from 1990.

Percentage of dismissed civil rights cases increased from 66% in 1990 to 75% in 2003, that is, 12 years ago, a 9 % increase.  So, only 1 in 4 cases in the U.S. survives and proceeds to discovery, and that is a 2003 number, which may be considerably worse at this time.

At the same time, from 1990 to 2000 the U.S. experienced a 13.4% growth in population, which would require a proportionate adjustment of court personnel dealing with civil rights litigation.

Yet, adjustment in numbers of judges and court personnel to help judges handle caseloads did not happen, which led judges to simply cut corners and invent "rules" that would allow them to toss more civil rights cases.

Very few federal civil rights cases even get to the point of discovery.  

Most of them are dismissed before discovery is ever reached, even though governmental abuses and corrupt conspiracies are fact-specific cases where information is within absolute control of governmental defendants, and such cases heavily rely on discovery process.

To get rid of even those civil rights cases that survived motions to dismiss or for a "judgment on the pleadings", federal courts introduced, and the U.S. Congress endorsed without critical review, a new "fast-paced" discovery rules that Judge Roberts describes in his report as shown below, rules that give more "discretion" to judges in what the jury will and will not see and as to how fast the discovery process proceeds, and rules that require an early "face-to-face" conference with judges and lawyers.

 Of course, once again, the majority of cases in federal courts are civil rights cases.

The majority of civil rights plaintiffs are unrepresented because they cannot afford a lawyer and because, due to the recent tendency of federal courts to sanction civil rights lawyers for the contents of their constitutional arguments, lawyers are deathly afraid of taking a civil rights case, or especially proceeding with it to trial.

Federal rules require that civil rights cases are filed where the state defendants reside or have their place of business.

Thus, the immediate "face-to-face" conference requirement disproportionately affects out-of-state and pro se plaintiffs by imposing on them unnecessary costs of inter-state travel in order to discuss with a judge what can be discussed on the phone or in a "face-to-face" video-conference.

While the new rules were touted by Chief Judge Roberts as a measure to fight the alleged "gamesmanship" of lawyers, such rules are very obviously targeting civil rights cases, since it is civil rights plaintiffs whose cases are the most numerous in federal courts and it is civil rights plaintiffs who most depend on discovery from the government.

Moreover, 7th Amendment of the U.S. Constitution requires a trial by jury of all cases where claimed damages exceed $20.00, and most civil rights actions exceed that amount, where the filing fees are close to or exceed in various federal district court 20 times that amount ($400.00).

If the jury is to hear trial of civil rights cases, it is reasonable to expect that the jury should have access to full amount of information, to be obtained through discovery, to make their determination.

Under such circumstances, allowing judges, through the new rules, wide discretion to control discovery and thus, introduction of evidence to the jury, further affects civil rights' plaintiffs right to ever have a fair jury trial.

It is clear that rules are introduced to more "effectively" and more cheaply - dispose of civil rights cases, because of "crushing caseloads":

It is also apparent from the fact that new rules even had to be introduced that not all federal judges were in agreement that their aggressive management of discovery is needed.

In fact, aggressive management of discovery takes MORE judicial resources, not less, since discovery left between lawyers most often does not require any judicial intervention and any judicial resources at all.

So, the claim that federal judges need to more aggressively manage discovery to help their "crushing dockets", is a false claim.  Allowing discovery to proceed, like it does in state court, without assignment of a judge, often for years, will actually save a lot of judicial resources.  On the other hand, the increase in aggressive management of discovery by the court indicates that courts increasingly want to get rid of civil rights cases - and that tendency is contrary to the court's designated role of an impartial adjudicator, not an advocate for a certain mission (such as caseload control and saving money for the government).

Given all of the above restrictions designed to affect civil rights litigation directly or disproportionately, as described above, the doors of federal courthouses are close to be completely shut for civil rights plaintiffs, and the Civil Rights Act increasingly becomes legal fiction which exists and claims providing remedies for violations of constitutional rights by the government, yet, in practice does not do so.  

Failure to provide effective legal remedies to redress fundamental injuries to people can rapidly lead to growing corruption (because the only realistic way to at least somehow escape the effect of corruption is to join the corrupt organization and participate in the corrupt bounty) and to growing social unrest (for those who cannot or would not participate in corruption).

Neither of such tendencies are good for the U.S.

Let's remember that the overwhelming "immunities", court-created restrictions on civil rights litigation and court sanctions against civil rights litigants that are at the core of chilling civil rights litigation in the U.S. date back to the increase of that same civil rights litigation in the 1960s and 1970s and did not exist before that time.

While courts continue to fight civil rights litigation, now with "new" rules, the only way to fight those efforts is to speak out and to actively demand from our representatives in U.S. Congress to take a more active role to control judicial corruption and unlawful judicially created restrictions to civil rights litigation.  


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