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 (Change.org removed formatting when I posted it).
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TATIANA
NERONI
ASSOCIATION
OF INDEPENDENT HUMAN RIGHTS DEFENDERS
P.O.
Box 3937
Pawleys
Island, SC 29585
To: U.S. Congress (Senate and House) Committees for
the
Judiciary
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 Pacer.gov
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:
- non-standard format;
- non-standard weight (60 pound);
- the font is only of "Century" family that is not usually used for pleadings, decisions or transcripts in other courts;
- non-standard binding as opposed to how pleadings are filed in paper format in other courts (saddle stitch or "perfect binding);
- printed on paper without gloss;
- printed on a laser quality printer or better quality;
- printed double-sided;
- presented as a typographic booklet;
- presented in 40 copies;
- presented with certain color covers for different documents; and where
- 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.
CONCLUSION
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.
