"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, March 5, 2016

Arrogant "pajama discrimination" against pro se litigants in federal courts

I wrote on this blog and on one of my other blogs about subtle and not-so-subtle ways courts use to shoo pro se parties away see, as an example, here and here.

Court budgets are crumbling.

Judicial salaries are rising.

Caseloads are rising.

Percentage of pro se litigants is rising.

Judges do not like pro se litigants.

So, what is a judge or a whole court to do to "control the docket", to "control the caseload" and to eliminate those pesky pro se litigants.

One thing is - anti-filing injunctions for "frivolous lawsuits" against pro se litigants.  I wrote on this blog about this tool of discrimination against pro se litigants who are often poor and lack in literacy skills.  Such "tools" are very proliferant and aggressive in states where literacy levels are the most problematic.

What constitutes "frivolous conduct" is within "sound discretion" of a judge.  When a judge simply does not want to see pro se parties in his or her courtroom, or when a pro se party's pleadings are not as polished as those of professional attorneys (not surprisingly), or simply because a poor pro se party challenged the status quo of the government or of a well connected defendant - it is very handy to toss his lawsuit as "frivolous", knowing that he or she will not have money for appeal. 

Some courts impose an anti-filing injunction after the first tossed lawsuit of a pro se party.  Some states introduce a "three strikes and you are out" statute.  Federal constitutional right of access to court is not accounted in either of these tools, but who cares - after all, it is for the poor pro se party to contest it, and he or she is "enjoined" from doing it.

The next "tool" is, of course, filing fees.  When a poor pro se litigant is deciding whether to feed his family, buy food, pay for daycare or for clothes for his children, for gas to go to work, for rent, electricity and heat, or to pay a court filing fee in the hundreds of dollars - the "choice" is clear.

Then come little tricks discriminating against pro se litigants.


In New York, if you are represented by an attorney, you do not have to worry how your pleadings are served on the opponent.  Your attorney can serve the pleadings by mail and sign - without notarization - an "affirmation of service".

If you are pro se, you will have to ask somebody else to serve your pleadings, even if also by mail, and you will have to have that person provide you with a notarized affidavit of service - an additional inconvenience in time and effort.

Moreover, if you are located out of state, New York law will add to your worries by requiring you that, unless you serve your pleadings by overnight mail (an extra expense), you have to mail your pleadings from within the State of New York (a violation of privileges and immunities clause and a discrimination against out-of-state litigants, of course, but, unless that pro se litigant sues for civil rights violations, nothing will change, and even if he sues, nothing will change because the civil rights lawsuit will be tossed for frivolous conduct - see above).

As I wrote above, federal court are also participating in discrimination against pro se parties.

If you are pro se and indigent civil rights plaintiff, the federal court can toss your lawsuit and certify to the appellate court that IF you file an appeal, it WILL BE frivolous.

I did not practice in state courts other than the state of New York, but at least in New York - thank God for small blessings - the court whose decisions is being appealed does not have a right to qualify the appeal from their own decision as frivolous.

Federal courts are courts of limited jurisdiction, and pro se litigants are coming there for very limited reasons:

1) they are brought in on a federal indictment - and, if they are poor, the are usually not pro se, with very few exceptions, they are given and accept assigned counsel;

2) they are sued by a person out of another jurisdiction - but, since there is no point suing a person who will be unable to pay the judgment that would result from such a lawsuit, this type would exist only theoretically;

3) they would sue a person or company from another jurisdiction - probably, but then it would be, most likely, not pro se individuals, but class lawsuits represented by counsel;  and

4) they would sue for violation of federal law, regulatory, statutory or constitutional - that is the main source of pro se litigation in federa courts.

So, how do federal courts "control the pro se dockets"?

Well, first of all, by filing fees.

Those who got through that burden, applied for poor person status, and whose lawsuit was not tossed "sua sponte" by the court, will then face the next burden - the cost of service of papers.

Rules of federal court require that all claims against the same defendants must be brought at the same time.  Federal constitutional violations are usually not done by just one person, but by groups of individuals, public officials, who should all be brought into the lawsuit, so that the lawsuit should have any viability.

When a litigant who has money to pay for an attorney and is represented by counsel, has any number of defendants, federal courts provide for him the convenience of e-filing.  

I did e-filing in federal court for several years and know the convenience of it.

First, it is free.  You do not have to go to the post office - during office hours of such post office - with printed out prepared, bound, subscribed pleadings.

You do not have to pay for the paper, printing, copying, binding. 

You do not have to pay for the postage to make sure your pleading arrives on time.

You do not have to cut into your time to prepare the pleading by a certain deadline to ensure delivery of your paper pleading to the court by a certain deadline.

For counseled parties, at the click of a button by the party's attorney who may be sitting in his/her pajamas in front of his laptop 5 seconds before midnight on the date of the deadline, the attorney does several things at the same time:

(1) he sends the paperless pleading to the court;
(2) gets a confirmation that the court received the pleading;
(3) gets a confirmation that the pleading is filed with the court;
(4) files a certificate of service with the court, even if he had to serve one pro se party by mail earlier that day.

All government defendants are usually represented by counsel, and are served electronically, so no additional printing is needed.

A pro se party in the same federal lawsuit, with multiple defendants, must do the following:

1) prepare pleadings much earlier than the deadline, to allow for mailing (so, a party represented by counsel is actually given more time to prepare a pleading than a person who is representing himself or herself, which makes no sense from logical point of view and is certainly not fair);

2) print out his or her pleadings - requires printer, cartridge, paper, copier for the necessary amount of copies;

3) go to the post office during the office hours of the post office;

4) pay for overnight mail because no other type of mail guarantees delivery, and even overnight mail can be "misdirected" (happened to my husband's pro se filings);

5) verify by tracking that the court received the pleading on time;

6) verify by phone that the court actually receives your pleading and is "working" on it, in other words, is scanning it and preparing to file it;

7) verify by any means you can, including by paying extra for a account that the court clerks have actually filed your pleadings, and filed them correctly.

Now, for a counseled party, the act of e-filing produces an instant confirmation of the court's receipt of the pleading, filing of the pleading and service of the pleading upon counseled parties.

For a pro se party, between point 4) and point 7) above (sending the pleading by mail and having it filed electronically by court clerks), many things can happen, such as - the court may issue an order before reading the pleading, the opponent may quickly e-file something before the court clerks file the pleading they received y mail from a pro se party (and they take their sweet time), which will create a disadvantage for the pro se party.

Why the e-filing discrimination rules exist, nobody knows.

There is no justification for such a rule.

There is no logical explanation for such a rule.

Attorneys are not normally more computer literate than an average non-attorney.

Even from the point of view of saving limited judicial resources, it makes no sense to first have a pro se party first jump through hoops, print the pleading, send it by mail, the court will receive it and the clerks will then have to scan it to e-file it on behalf of a pro se party, which the pro se party could perfectly do himself to begin with (and the quality of a scan from a printed version will be poorer than that from a paperless document created by simply printing into a PDF format).

My husband made multiple motions to two federal courts (U.S. District Court for the Northern District of New York and the U.S. Court of Appeals for the 2nd Circuit) for a permission to allow him e-filing.

The 2nd Circuit denied him such motions in several cases without a courtesy of an explanation or reasoning.

His motion in the NDNY court is pending at this time and can be viewed here.

Yet, recently I received a decision from a reader on the reader's motion for a permission to e-file, and finally, after many years of denials without an explanation, I saw SOME explanation as to why pro se litigants are denied permission to e-file in federal courts.

The pro se litigant resides outside of the United States.

The case has multiple parties, not 2 or three, let's say several scores.

The pro se litigant has to pay through his nose to pay postage for international mail to serve those multiple defendants, his time to prepare pleadings is cut to nearly nothing, as compared to the time of counseled parties whose attorneys can e-file, and he made a motion asking permission to - very simply - equalize him in filing convenience and costs with counseled parties.

The court said "no".


Here is why.

The court said:

1) We have a local rule, by which pro se parties MUST file on paper.  That's our rule.  You are pro se, you MUST file on paper.  I would call it a "blunt force explanation".  "We do not have to explain to you why we discriminate, we just do".

2) That rule did not prevent you from filing and serving by mail previously, so there is no reason to change the rule now.


You rode in the back of race-segregated bus before just fine, so why change it?

This type of arrogance is asking for a class lawsuit.

By the way, the federal court that issued the above-described wonder, was not within the 2nd Circuit.  That means to me that such discrimination is pervasive across federal circuits and amounts to a policy of imposing burdensome conditions on pro se civil rights litigants in order to bar or inconvenience them in their efforts to gain access to court and get some relief against governmental misconduct.

Yet, since we are talking about pro se parties, and since the court is pushing the pro se individual to an "easy" solution of hiring an attorney, approved by that court, who will be controllable - and then to have he convenience of e-filing, the likelihood that an attorney will be found to actually file such a lawsuit is about nill.

I will report what, if anything, the federal appellate court (that as te same discriminatory rule) will tell my reader about this discrimination.

And, I will inform you about any developments in challenges of the "pajama discrimination rule".  Some of such challenges are being prepared, as far as I know.

Stay tuned.

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