"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.

Thursday, May 19, 2016

My letter testimony to the U.S. Congress requesting enactment of new federal laws against judicial retaliation and discrimination against pro se parties in court

Yesterday I posted a blog about the new petition I started on  The post is a featured post in the top right corner of this blog.

I request support and signatures from my readers.

Since yesterday, I have added an update to the petition, a supporting letter to the U.S. Congress which I provide here with formatting, for easier reading ( removed formatting when I posted it).

P.O. Box 3937
Pawleys Island, SC 29585

To:      U.S. Congress (Senate and House) Committees for the     
            Senator Robert Goodlatte;     
            Representative John Conyers
            Esteemed Ladies and Gentlemen:

Arbitrary and disproportionate application of court-created "rules of frivolous conduct" against parties and attorneys raising constitutional arguments in court, especially, arguments criticizing the government and the judiciary, unreasonably infringe on litigants' right of access to court under Petitions Clause of the 1st Amendment, and federal legislation is needed to protect that right from further chilling

Courts across the country increasingly sanction attorneys and parties for "frivolous" conduct for making constitutional arguments.

"Frivolous conduct" rules are not statutes, they are introduced and arbitrarily applied by courts.

Lawyers and parties who are sanctioned for "frivolous conduct" are often sanctioned for as much as filing motions to recuse judges, by the challenged judges.

Such conduct is prohibited in many states, and is considered judicial misconduct, but is condoned and accepted in other states.

In the State of Texas, judge Christopher Dupuy was criminally charged and convicted for abuse of office for retaliation against attorney Lori Laird for making a motion to recuse on behalf of a client.

In the State of Louisiana, attorney Christine Mire was suspended from the practice of law for making a motion to recuse, even though there was sworn testimony indicating that a court audio recording regarding the judge's disclosure of her conflict of interest was altered, and the disclosure was added into the audio file.

In the State of New York, attorney Tatiana Neroni was suspended from the practice of law for making a motion to recuse a judge who she sued together with her pro bono client, by the challenged and sued judge.

State laws greatly varied as to whether to allow a peremptory challenge to remove a judge or not, whether to allow the judge challenged with a motion to recuse to decide the motion for timeliness, legal sufficiency or on the merits, or whether to stay or not to stay court proceedings while the motion is pending.

In the states where judges challenged with motions to recuse are allowed to decide those motions, retaliation against attorneys and parties often happens, as it also happens in federal courts.

In 1993, Rule 11 (sanctions) was changed because it disproportionately affected civil rights litigants.

On September 17, 2015, the U.S. House of Representatives passed H.R. Bill 758, the so-called Lawsuit Abuse Litigation Act, which was voted against in the Senate by several senators because it will once again affect civil rights plaintiffs and attorneys and will make impossible such cases as Brown v Board of Education.

Even though Rule 11 clearly requires a motion to be made and a 21-day "safe harbor period" allowing the party accused of "frivolous" conduct to withdraw the allegedly frivolous argument, federal courts obviate this requirement and disproportionately punish civil rights plaintiffs and their attorneys for frivolous conduct, for contents of their constitutional arguments, based on the "inherent power of the court" and 28 U.S.C. 1927.

The essence of arguments regarding "frivolous conduct" is that argument of civil rights plaintiffs and their attorneys, or of parties and attorneys in family court litigation where sanctions for frivolous conduct are most often imposed upon attorneys protecting parents' constitutional rights, is not "reasonable".

"Reasonable" in the court's understanding is "mainstream".

Constitutional arguments in civil rights cases are most often novel and not mainstream.

Applying the "unreasonable" standard to constitutional arguments prevents and chills development of constitutional law and deprives victims of constitutional violations from having legal representation in court, because civil rights attorneys are increasingly fearful of sanctions in raising any novel constitutional argument.

The U.S. Supreme Court often reverses what it considered unreasonable years ago.

Rules of frivolous conduct, if they existed at the time, would most likely prohibited argument against slavery, decriminalizing racial and other forms of discrimination, inter-racial marriages, contraception, abortion, same sex relations and same sex marriage.

At this time, in many states it is impossible to find an attorney who would be willing to file a motion to recuse a judge, even if there is proof of misconduct.

Such fear led to situations where public safety was jeopardized to the point that judges who were selling children in return for kickbacks to juvenile incarceration were allowed to be on the bench for years, because attorneys were afraid to turn them in – until federal authorities had to step in, arrest and criminally prosecute those corrupt judges.

Since the judiciary controls licenses to practice law and thus livelihoods of criminal defense, family court and civil rights attorneys, litigants across the country are deprived of independent court representation and exposed to "defensive lawyering" who routinely refuse to make motions to recuse judges for fear of retaliation.

In fact, making a motion to recuse is universally recognized in the American legal profession as a "professional suicide".

At this time, in view of the above circumstances, litigants' constitutional right to impartial judicial review is not protected in this country, and this petition is a request the U.S. Congress to rectify the situation and introduce statutory protections to ensure that people's right to impartial judicial review is truly protected.

The U.S. Supreme Court has a large body of cases prohibiting content-based regulation without strict scrutiny.

Yet, despite that large body of precedents, courts continue to punish litigants and their attorneys for contents of their arguments, mostly for contents of their arguments critical of the government, which is within core protections of the 1st Amendment, as a matter of discretion, without any scrutiny.

Since such routine, and increasing practices by state and federal court undermine access to court of the poorest and most under-served and under-privileged litigants, intervention by a federal statute protecting the right to impartial judicial review from retaliation of the government and specifically of the judiciary is needed.

One-size-fits-all restrictions on page limits in civil rights lawsuits unreasonably burdens civil rights litigants' access to court in violation of the 1st Amendment Petitions Clause, and federal legislation protecting that right is needed

The petition additionally calls for attention to practices of courts to control their caseloads by imposing undue burdens on presenting constitutional arguments to court, and many of those burdens violate the fundamental right of people to access to court under the Petitions Clause of the 1st Amendment by not being narrowly construed to any compelling governmental purpose.

The U.S. Supreme Court and other federal courts routinely issue decisions where complex constitutional questions are decided on tens pages, sometimes reaching well over a hundred pages, small font, single-spaced.

That means that complex and novel constitutional arguments need a lot of space to be properly presented to the public.

Yet, federal courts, including the same U.S. Supreme Court, severely restrict incoming constitutional arguments of litigants by page limits, making litigants to under-develop their important arguments, or drop some important constitutional arguments altogether in order to fit into the prescribed page limit and to have any chance at all for judicial review of federal courts of all levels.

The situation is aggravated by the fact that, at the same time, page limits are "one-size-fits-all" requirement and applies without regard how many plaintiffs with varying claims are in a certain civil rights lawsuit, how many defendants are in that same civil rights lawsuit, and how many claims are in that lawsuit – and when litigants are required to bring varying claims based on the same factual situation against multiple defendants at the same time, or waive (lose) their rights to bring a lawsuit for constitutional violation.

Moreover, in actions for a declaratory judgment inclusion of certain defendants is required by courts in order for the civil rights lawsuit could survive.

Thus, when a civil rights litigant is required to group all of his or her multiple claims against multiple defendants, but at the same time is restricted to a page limit as to constitutional argument in opposition of a practically inevitable pre-answer motion to dismiss to, let's say, 24 pages, and if there are 20 defendants against whom multiple varying claims are asserted based on the same factual situation, the litigant is forced to drop development of certain important arguments and is put into an unequal position with a litigant who sues only one defendant on only one, relatively simple, claim.

This petition asks to eliminate page limits for constitutional arguments as a "one-size-fits-all" unreasonable restriction on access to court in civil rights cases, since caseload control and convenience of judges and clerks is not a compelling interest to justify restriction of issues and the depth of development of those issues that litigants may present to judicial review.

Providing exclusive rights to e-file to counseled litigants unreasonably discriminates against pro se civil rights plaintiffs by burdening or blocking their access to court and causing them to miss deadlines that counseled parties can easily meet by filing electronically, in violation of pro se parties' access to court right guaranteed by Petitions Clause of the 1st Amendment, and federal legislation is needed to eliminate this type of discrimination that courts refuse to eliminate on their own

Yet another barrier to raising constitutional arguments in court by or on behalf of poor litigants is unavailability of e-filing to pro se parties in federal courts and relegation of civil rights lawsuits to a separate review track, where less efforts are dedicated to review of civil rights appeals while the same filing fee is charged for such appeals as those appeals who are reviewed with an opinion.

Federal courts routinely allow or even mandate electronic filing for attorneys and/or represented parties, and routinely prohibit electronic filing, without an explanation, to pro se litigants.

Such practices unreasonably burden and discriminate against pro se litigants as opposed to counseled parties.

A counseled party has the following advantages over a pro se litigant in federal and state courts where e-filing is allowed only to counseled parties.

1) A pro se party is given less time to prepare for the same deadline as a counseled party, and filings by a pro se party require additional costs of travel to court or mailing to court with guaranteed delivery.

A counseled party's pleading is timely electronically filed if it is filed 1 second before midnight on the day of the deadline.

A pro se party must either personally bring his/her pleading to court, during business hours of the court, and make sure the clerks file the pleading in the party's presence, often requiring a confrontation with court personnel that does not want to scan the pleading into immediately.

The alternative is to mail the pleading, where the only guaranteed delivery is by U.S. express mail, which is expensive, and delivery can still be "mis-routed" or delayed, thus missing the deadline.

Thus, where a counseled party's filing does not require additional mailing or travel costs, filings of pro se parties do require additional efforts.

Thus, availability of e-filing to only counseled parties in federal court is unreasonable infringement upon access to court for pro se parties and should be eliminated by statute.

2) An attorney can e-file from anywhere in the world, while a pro se party not only will incur substantial mailing costs, but time required for mailing substantially cuts into his or her time to prepare the pleadings, as opposed to filings of a counseled party.

Such discrimination actually presents a paradox since more time is given to prepare pleadings to attorneys trained in law than to pro se parties who often lack legal training.

3) A pro se party, as opposed to a counseled party, does not have an instant proof of filing, or the advantage of automatic electronic service.

A pro se party must additionally serve parties by mail or by personal service, which incurs extra costs and is subject to claims that parties were not served.

A counseled party does not have such problems, where service of an E-filing is done by electronic notification, sent by e-mail instantly, which also constitutes proof of service.

4) Some courts, such as the U.S. Supreme Court, prohibit electronic filing of initial petitions completely, which blocks meritorious filings on the basis of wealth of litigants, an impermissible consideration under the 14th and 1st Amendment of the U.S. Constitution.
Moreover, the U.S. Supreme Court has a "booklet" filing requirement in accordance with its Rule 33.

Rule 33 requires that all filings should be made on paper of:
  1. non-standard format;
  2. non-standard weight (60 pound);
  3. the font is only of "Century" family that is not usually used for pleadings, decisions or transcripts in other courts;
  4. non-standard binding as opposed to how pleadings are filed in paper format in other courts (saddle stitch or "perfect binding);
  5. printed on paper without gloss;
  6. printed on a laser quality printer or better quality;
  7. printed double-sided;
  8. presented as a typographic booklet;
  9. presented in 40 copies;
  10. presented with certain color covers for different documents; and where
  11. the already made decisions of lower courts, transcripts and pleadings should be re-formatted in accordance to Rule 33 requirements to fonts, margins, spacing etc., requiring hundreds of hours of unnecessary work and thousands of dollars to pay for that work.

None of those requirements are necessary to provide effective judicial review.

In fact, introduction of electronic filing in the U.S. Supreme Court will:
  • save paper;
  • help the environment;
  • eliminate hundreds of hours spent by the U.S. Supreme Court personnel on ensuring compliance with the technicalities of Rule 33;
  • allow pleadings to be word-searchable in electronic format and zoomable in and out to adjust to the reading comfort level of the particular judge or law clerk.

The U.S. Supreme Court appears to be in no hurry to eliminate Rule 33 and introduce universal e-filing in that court, thus relieving the extreme burden created by Rule 33, and thus there is an appearance that Rule 33 exists for dual purpose of reducing the caseload of the court and, likely, providing work for "specialized" businesses that thrive on charging thousands of dollars for booklets satisfying the technicalities of Rule 33.

Neither the business purpose nor the caseload control are legitimate grounds to infringe upon parties' access to court, and especially when issues are constitutional violations, violations of human rights, and when the U.S. Supreme Court is the court of last resort and, unlike in other countries, where review by European Court of Human Rights or by the United States Court of Human Rights is available, such relief is not available for American civil rights litigants.

Additional costs required by compliance with Rule 33 are extreme, discriminatory and block access to the U.S. Supreme Court to all but wealthy individuals.

The U.S. Supreme Court filing fee is $300.

Yet, Rule 33 requirement adds several thousand dollars to the filing fee, causing many potential appellants with meritorious constitutional claims important for resolution in this country to not pursue their claims for lack of funds.

While the U.S. Supreme Court does have applications for a poor person standard, a person can easily be ineligible for a poor person standard, but still not afford several thousand dollars in costs of 40 copies of petitions.

U.S. Supreme Court Rule 33 imposes extreme additional financial burden upon litigants and unreasonably infringes upon their 1st Amendment right of access to court.

Yet, failure to file an appeal with the U.S. Supreme Court is reviewed by other courts as a "waiver" of certain rights and finalizes decisions of lower courts, imposing the so-called Rooker-Feldman bar in civil rights litigation as to violations of constitutional rights, if such violations occurred in state court litigation.

Thus, people are barred from access to federal courts to obtain a remedy for violations of their constitutional rights by state governments simply because they cannot pay the artificially invented costs for review by the U.S. Supreme Court.

Rule 33 is a problem only to those who cannot afford the costs imposed by that rule.  It is not a problem for wealthy individuals and businesses.  Thus, Rule 33 conditions access to the U.S. Supreme Court on the basis of wealth.

Over 85% of federal appellate review and nearly 100% of appellate review in civil rights cases is relegated to a less-than-diligent, separate track, thus discriminating against civil rights litigants.

The majority of civil rights cases are dismissed based on court-invented doctrines of immunity, comity, enhanced pleading requirements, abstentions, deferences and other court-created doctrines.

Thus, appellate review of constitutional cases is extremely important.

Yet, all federal appellate courts employ a double-track system where some cases (about 100% of civil rights appeals) are relegated to be decided by "non-precedential summary orders" where, as Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit admitted, "exponentially" less time is spent for review of cases and preparation of court decisions decided through such summary orders.

The court filing fees for review of cases on "diligent track" and "less than diligent track" are the same.

In the summary orders, federal appellate court usually use "rubber-stamp" templates.

 A summary order usually states that "the court assumes parties' familiarity with facts and procedural history of the case" and that the appellate court "affirms on substantially the same reasons as the thoughtful and well-reasoned decision of the district court".

Such template phrases preclude inclusion of the actual issues raised on such appeals into research and arguments of further litigants and legal scholars, and cause the same issues to be litigated again and again, thus increasing and not reducing the burden on the courts.

Moreover, civil rights cases decided by the "less than diligent" review leading to "summary orders" are mostly litigated by or on behalf of poor and underprivileged people who have to pay the same, quite high, filing fees, as the minority of litigants given the privilege of diligent appellate review and full opinions of the court.

Thus, by deciding 85% of appellate cases and nearly 100% of civil rights appeals by summary orders, federal appellate courts make poor and underprivileged people claiming constitutional violations of their rights by the government, to finance courts' appellate review of wealthier litigants, cases in diversity and cases brought by the government.

That is an impermissible discrimination and burden upon right of access to courts by civil rights litigants, yet, this practice continues for decades and will not change unless prohibited by a federal statute.


All of the above described problems are egregious violations of right of access to courts in the U.S., they continue to exist because of discriminatory court rules and practices, and will not stop unless a federal legislation prohibiting such practices, with an effective mechanism of enforcement, is introduced.

This petition asks to introduce such legislation.
Thank you for your attention.

                                    s/Tatiana Neroni
                                    Association of Independent Human Rights Defenders


Yesterday I received yet another inquiry, one of many I received since my suspension, for representation in federal court in a civil rights lawsuit against Social Services.

The attorney for the parent refused to sue out of fear of social services and fear to lose the attorney's license and livelihood.

It is heart-breaking to say to the person - yes, I am fully capable, knowledgeable, have skills and already brought a federal civil rights case to trial.

But, I am not allowed to help you - even where no other help is available.

Allegedly, for your own protection.

I am dangerous.

Because I am as skilled civil rights attorney who did not give a damn about the status of people I was suing on behalf of clients.

I cannot represent people and I must say "no" to them, otherwise I will be incarcerated - whether I am right or wrong, whether the government doing it to me and to my potential clients, is right or wrong.

But THIS I can do.

I can do petitions for everybody's benefit.

I can use my experience to draft them.

People can sign them.

And, altogether, we can make a change against discrimination in court.

Please, sign the petition.

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