Disparate Treatment of Pro Se Litigants

Hey, I clicked on the link that I sent awhile ago re "Disparate Treatment of Pro Se Litigants," and it wouldn't pull up...
Posted by Bob Saunders on Saturday, June 29, 2013

Hey, I clicked on the link that I sent awhile ago re "Disparate Treatment of Pro Se Litigants," and it wouldn't pull up...
Posted by Bob Saunders on Saturday, June 29, 2013

Hey, I clicked on the link that I sent awhile ago re "Disparate Treatment of Pro Se Litigants," and it wouldn't pull up the file. Couldn't upload the PDF file either. So here is the information in its entirety. Disregard the link and copy and save the article/information for your own use! Please read it, study it, copy it and use it! Disparate Treatment of Pro Se Civil Litigants: A Justification for Resort to Inappropriate Self-Help?…/Pro_Se_Illu…/Pro_Se_Illusion.htm[3/12/2010 6:00:31 PM] Sidebar: Access to Justice for unrepresented persons in Colorado state courts much better? Disparate Treatment of Pro Se Civil Litigants in Federal Court: A Justification for Resort to Inappropriate Self-Help? by Sean L. Harrington * 

Equality before the law, like universal suffrage, holds a privileged place in our political system, and to deny equality before the law delegitimizes that system. . . . when these rights are denied, the expectation that the affronted parties should continue to respect the political system . . . that they should continue to treat it as a legitimate political system-- has no basis. —David Luban, Lawyers and Justice: An Ethical Study, 251, 264-66 n.12 (Princeton Univ. Press, 1988) INtrOdUctiON In 2003, Professor Chemerinsky reminded us that civil rights vindication in the United States is less achievable than a manned mission to Mars this decade: To be sure, closing the courthouse doors is not a new technique for a conservative court to use to undermine rights. During the early years of the Burger Court, it did this by expanding the scope of abstention doctrines, and by increasing standing as a barrier to civil rights litigation. But the recent decisions are different in an important respect. 

The Burger Court cases were primarily about channeling civil rights litigation from federal to state court. The Rehnquist Court rulings of the last few years are about precluding all judicial forums. 1. While Chemerinsky's article contemplated evolving Supreme Court jurisprudence, this article endeavors to describe unwritten, yet systemic district and circuit court practices to preclude ordinary citizens —regardless of statutory jurisdictional eligibility — from prosecuting civil rights cases. 2. These practices defy the prevalent misconceptions that self-represented litigants have a meaningful and effective right of access to the civil law for redress of grievances and that self-represented litigants are litigious paranoiacs.3 I conclude that these practices constitute a violation of: the fundamental right of access to the court; the statutory right to self-representation in civil cases; and the statutory right of appeal. Consequently, unless there is a state court remedy for the redress of grievances, litigants may resolve that there is no other recourse than to resort to inappropriate self-help. FiliNG thE PRO SE CiVil RiGhts CasE: AN Act Of FUtilitY (BY DEsiGN) Although this article does not concern prisoner pro se litigation, it is worth noting that, in Lewis v. Casey, the Supreme Court held that prisoners do not have “an abstract, freestanding right to a law library” and that an inmate cannot support a federal claim simply by showing that a prison law library is “subpar.” 518 U.S. 343, 351 (1996). 

Rather, the inmate “must go one step further and demonstrate that the alleged shortcomings of the law library . . . hindered his efforts to pursue a legal claim.” Id. As many commentators have noted, this "actual injury” requirement has created an impossible pleading paradox in that the ability to litigate a denial-of-access claim is evidence that the plaintiff has no-denial-of-access claim. For prisoners, filing such a claim is an exercise in futility. Disparate Treatment of Pro Se Civil Litigants: A Justification for Resort to Inappropriate Self-Help?…/Pro_Se_Illu…/Pro_Se_Illusion.htm[3/12/2010 6:00:31 PM] One bankruptcy judge from Texas used humor to deny a defendant's motion as incomprehensible. The judge compared the defendant and his motion "to Adam Sandler's title character in the movie 'Billy Madison,' after Billy Madison had responded to a question with answer that sounded superficially reasonable lacked any substance." Billy Madison, like the defendant in this case, was berated for his stupidity: [W]hat you've just said is one of the most insanely idiotic things I've ever heard. At no point in your rambling, incoherent response was there anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul. Judges are different from everyone else in a courtroom. They should decipher rambling, irrational, incoherent thoughts. They should unearth the buried argument, comprehend the incomprehensible, clarify the opaque. They shouldn't give up easily on a litigant who sounds like Billy Madison. Judges who act disrespectfully to lawyers and litigants will in turn be treated disrespectfully. —Hon. Gerald Lebovits, 

Ethical Judicial Writing - Part II, 79 NYSBA Journal 1 (Jan. 2007) I make a comfortable living doing nothing more strenuous than thinking about things people ask me to think about. There is no heavy lifting; no shift work. I'm not required to drive through snow and I don't come home smelling of fish. When I'm done thinking about these things, I give my "opinion" about them and start thinking about something else. Anyone churlish enough to complain about such a job, any-one who —asked so little— would fail to For the remainder of pro se plaintiffs not subject to Lewis or to the provisions of the Prisoner Litigation Reform Act of 1995, the federal district and appellate courts have perfected a seven-step process to impose the same futility by systemically weeding out an entire class of cases, regardless of merit, whilst maintaining the appearance of accessibility: (1) The pro se party files a Complaint and pays the $300 docket fee. (2) The Article III judge, upon receiving ECF notification of a pro se filed complaint, issues a template "General Order of Reference" 

to the workhorse of the policy, a magistrate judge.4 (3) The magistrate judge, who is often a former state district court judge, will review the Complaint and arrive at a predetermined outcome by actively advocating for the defendants; contriving arguments for the defendants; creating or assuming facts not alleged; ignoring facts that were alleged; misstating facts that were alleged; 5 or misrepresenting precedents and legal holdings that are not applicable or that do not exist.6 The magistrate will axiomatically recommend dismissal of all claims against all defendants. During this time, which may last up to a year, the magistrate will often suspend all discovery, depriving the plaintiffs of the evidence he may need to prove his claims. (4) The plaintiff' may file objections to the magistrate's recommendations, pursuant to Rule 72(b). (5) The article III judge will accept the recommendation to dismiss the case. The order of dismissal may range from a single sentence disingenuously claiming to have performed a de novo review of the magistrate's recommendations to a several-page order summarizing and paraphrasing the magistrate's recommendations. In many cases, the order of dismissal will include an award of defendants costs against plaintiff. (6) The pro se party may file an appeal and pay the $450 docket fee. (7) Although "Granting defendant's motion to dismiss is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice," 7 the Tenth Circuit will issue an unpublished memorandum opinion, which may summarize the magistrate's recommendations and/or the district court's order of dismissal but, make little or no mention of the appellant's dismissed complaint or his appellate arguments. The memorandum order, drafted by a law clerk in only a few hours of time and barely glanced at (if at all) by a circuit judge, will apply a purely deferential standard of review (de novo review of conclusions-of-law is, apparently, withheld), noting that the magistrate's findings require no elaboration. The trial court's judgment will be affirmed and the case will stand as dismissed, purportedly "on the merits." Although most lawyers and all judges would deny that the choreographed scenario hereinabove is accurate, one U.S. magistrate judge in the Colorado district has already admitted that pro se litigants are disallowed their day in court (see infra) and at least one [former] Colorado lawyer has publicly alleged that there is an “ideological conspiracy” politically hostile to civil rights plaintiffs in the Colorado district.8 Notwithstanding these revelations, the summary disposition of all pro se cases in federal court cannot be fairly attributed to the purported ineptness of every plaintiff (including self-represented attorneys. 

Of course, many jurists pay sanctimonious lip service to the importance of, "the Rule of Law [as] probably the single greatest achievement of our society. It is our bulwark against both mob rule and the overweening power of the modern state." 9 They present annual state of the judiciary Disparate Treatment of Pro Se Civil Litigants: A Justification for Resort to Inappropriate Self-Help?…/Pro_Se_Illu…/Pro_Se_Illusion.htm[3/12/2010 6:00:31 PM] give every case, regardless of whether it's handled by a successful attorney or a prison inmate, full consideration, is an ungrateful lout. —Justice Wlm. W. Bedsworth, IMPROPeR PeRsONa, 45-Nov. O.C.Law 40 (Nov. 2003) Sidebar: "Excuse me. This is my court." History of Self Representation speeches, discussing the importance of "access to justice" and the need for well-reasoned judicial opinions and professional responsibility in order to maintain public confidence in the judiciary. 

There is, however, less emphasis on these lofty platitudes (for public consumption) at CLEs (training for attorneys) and, instead, more candor about pragmatic concerns of court administration and convenience. AccEss tO thE COUrts as a "RiGht" If a plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed, it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal.10 Whenever some act, vestment or procedure is characterized as a “right,” it is strictly theoretical because, without a remedy, there is no “right” (ubi jus ibi remedium). More specifically, if a court is inaccessible or does not recognize the right or otherwise does provide an opportunity to vindicate the purported right, the “right” is non-existent. For this reason, as the means of accessing all purported rights, the “right” of access to the courts is a “right conservative of all other rights, and lies at the foundation of orderly government.” 11 According to the Trial Court Performance Standards and Measurement System Implementation Manual (Bureau of Justice Assistance, July, 1997), courts should be open and accessible. Location, physical structure, procedures, and the responsiveness of personnel affect accessibility. Id. 12 Meaningful and effective right of access to the court means more than being able to pay a docket fee or being permitted to file papers with the clerk or being allowed to pass through the courthouse doors.13 Because both state and federal courts are unavailable to vindicate this right, the purported right remains non-existent or beyond reach in Colorado, as individual judges may see fit.14 Judges do, however, make some occasional effort to give the appearance that this right is available. 

For example, in one December 14, 2007 transcript, we read nowdisgraced Judge Edward Nottingham "letting" one litigant have his “say.” (In fact, the litigant wasn’t actually permitted to say much of anything and, further, wasn’t allowed to cross-examine David Brougham, an attorney who appeared to be testifying in violation of Rule 3.7). Id. at 14, lines 18-21). However, Nottingham’s statement simply served as a poignant reminder that the right [to purportedly have a “say”] was an extraordinary and gracious dispensation from His Excellency, as opposed to a constitutional right. SElf REprEsENtatiON as a "RiGht" (aNd OftEN thE sOlE aVENUE) Pro se, also termed pro per, originates from Latin and is today defined by BlacK's Law DictionarY simply as, "One, who represents oneself in a court proceeding without the assistance of a lawyer." The vast majority of those who represent themselves in civil litigation do so only begrudgingly and out of necessity.15 Few are independently wealthy, as is necessary to underwrite a major litigation initiative against "town hall" or well-heeled corporate interests.16 They not only cannot afford an attorney17 but, also may: be unable to find an attorney for a colorable claim;18 be distrustful of attorneys; 19 or, perhaps, simply elect not to invest thirty thousand dollars in the form of a retainer for often incompetent work.20 Whatever the reason, they file in good faith, based on the [apparently mistaken] belief that the purpose of the civil law is to provide for redress as the only alternative to inappropriate self help. In the United States, litigants in civil cases do not have a constitutional right to self representation. That constitutional right applies only to criminal cases.21 Civil Disparate Treatment of Pro Se Civil Litigants: A Justification for Resort to Inappropriate Self-Help?…/Pro_Se_Illu…/Pro_Se_Illusion.htm[3/12/2010 6:00:31 PM] 

in Civil Cases in America litigants do, however, have a long-standing statutory right to self-representation under Title 28 of the U.S. Code, § 1654, which provides: In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein. 28, U.S.C. § 1654. The Supreme Court has elaborated on this right, to say that "the right to self-representation - to make one's own defense personally - is thus necessarily implied by the structure of the [Sixth A]mendment." 22 A violation of this right to self-representation is a "structural defect" in the proceedings. So-called "structural defects" are among the few irregularities that warrant a new trial (with especial certainty in criminal cases).23 In many earlier threads (e.g., another blog post), I have obstreperously pointed out that pro se litigants are systemically denied their day in court in Colorado and, especially, in the federal court. However, at least one Denver attorney, Andrew Oh-Willeke, has denied this is so. ("They aren't systematically discriminated against." --click here). 

U.S. District Senior Judge Kane, however, disagrees. In reviewing an earlier online version of this article, Judge Kane wrote: I agree with [the article's] thrust and would add only that all pro se cases, not just civil rights cases, are treated shabbily and superficially by our courts, both bench and bar. On the bench or in opposition to a pro se litigant, it is very tempting to become annoyed because, quite frankly, it takes more time and effort to deal with the issues as they are presented, there is no implicit rebuttable presumption of trust, as there is with lawyers admitted to practice, that the citations to authority are accurate, on point and unconflicted. Perhaps, more to the point, pro se pleadings — generally speaking— force one to revisit fundamental assumptions and concepts one learned in law school. I don't think this is bad to revisit what we once learned, it's just that it takes a lot more time and time is a very precious commodity. Feb. 3, 2008 email. Of course, Oh-Willeke has a profession to defend and has admitted so in at least one other blog post.24 In support of his position, he cited to Kay Sieverding. So, perhaps, the question is: Are all pro se litigants like Kay Sieverding? In a recent comment, I revealed that another pro se litigant, Suzanne Shell, testified in her affidavit that Magistrate Michael J. Watanabe (formerly a Colorado District Judge) told her that, "Pro se litigants NEVER win in this court." Id. at ¶ 22 (on p. 20 of 22). Oh-Willeke countered, saying, "Shell is not a very credible source. Also, pushing for more respect for pro se litigants, who often do, in good faith, do ill advised things in litigation, isn't a good path to solutions. A fair shake from a judge isn't worth much when you still don't know what you're doing." While Oh-Willeke seems to tacitly acknowledge that some or all pro se litigants aren't getting a fair shake (but that it would be pointless to give them one), we really don't need Shell's testimony to confirm it: Instead, we have an Aug. 8, 2004 order from Steiner v. Concentra by U.S. magistrate judge Edward Schlatter (a former Colorado district judge in Salida and Cañon City):  and for "recommendations" on motions to dismiss  600 each year are cases Disparate Treatment of Pro Se Civil Litigants: A Justification for Resort to Inappropriate Self-Help?…/Pro_Se_Illu…/Pro_Se_Illusion.htm[3/12/2010 6:00:31 PM]

 [P]ro se litigants . . . often encounter bench and bar resistance. They typically receive a hostile reception from overworked court staff who feel put-upon by having to educate them about the system and from agitated judges . . . Most judges, in the face of actual or anticipated objections from counsel, rely on these legal obligations [adversary ideology and legal constraints] and give them greater weight than their concomitant constitutional duties to ensure due process in the form of a "meaningful hearing" and access to justice. One explanation for this . . . is the fact that they are loyal to the legal profession. Most judges were lawyers before they took office, remain lawyers while on the bench, and sometimes return to law practice. Judges in most states also rely on the bar for financial support in the judicial selection process. —Jona Goldschmidt, The Pro Se Litigant's Struggle for Access to Justice: Meeting the Challenge of Bench and Bar Resistance, 40 Fam. Ct. Rev. 36, 37, 44 (2002) * * * Ito tahsesni sitn fohremre di np ltahiinst imfaft ttehra,t bsehcea uwsoeu lmdy bmea gwiesltlr-aatdev ijsueddg et o coobltlaeiangu eas l aanwdye rI ctahnen owta yr etcharlolu gah sai ngclaes e,ca soeb tiani nwehdi cah jau rpyr otrsiea ll itaingda nrte cheaisv epdr oac efeadveodr aabllle ovenlrdyi cbty. a Ovuerr ym,e movreireys fmeawy ibned iviindaucaclusr,at ea,n db,u ti,f isfu csho ,e xtcheepyt iaornes ienxaicsctu,ra twee have not heard of them. Now, that we have half of the truth (supplied to us from this case filed pro se by Yale grad, Elizabeth Steiner, M.D.),25 I will supply the other half: Pro se cases don't make it past dismissal or summary judgment not because each and all of the six hundred plaintiffs (each year) are inept and not because opposing counsel is competent, learned and artful. Rather, they are blockaded by the referee —the so called finder of fact — the court, itself. 

Consider these following five points: 1. As Magistrate Schlatter acknowledged, all such cases are deferred (i.e., swatted aside) by an article III judge to a magistrate, creating a double standard of justice. See Bloom & Hershkoff, Federal Courts, Magistrate Judges and the Pro Se Plaintiff, 16 Notre Dame J.L. Ethics & Pub. Pol'y 475, 477, 503 (2002) (describing general reference to magistrates as, “a way to funnel unimportant matters that society regards as annoying away from Article III judges to magistrate judges without life tenure, and so raise concerns about second class justice for unrepresented litigants. . . Some commentators warn that the use of magistrate judges for pro se cases will lead to the 'ghettoization' of indigent persons' claims: the possibility of creating a two-track system of justice-- district judges for wealthy litigants and magistrates for [less wealthy] litigants”). See also Manual for Complex Litigation, Third § 20.14 (Federal Judicial Center, 1995) (Article III Judges often defer pretrial supervision to magistrates to enable those judges “to devote time to more urgent matters”). 2. A district judge almost never overturns any magistrate's recommendations (just ask any reputable appellate attorney - e.g., Walter Sargent, Blain Myhre, Dean Neuworth, Paul Grant, etc.)). Article III judges merely rubber stamp whatever recommendations the magistrate has cobbled together, especially in pro se cases that these judges don't want to be bothered with. 3. Despite protestations to the contrary, article III judges do not perform de novo review of magistrates' recommendations, as Schlatter, Nottingham and other magistrates and judges disingenuously misrepresent.26 Moreover, the Tenth Circuit has provided an "out" for judges to rubber stamp magistrate recommendations by simply stating in a one sentence order that they had, in fact, performed the de novo review. 27 4. "[J]udges desperately want to avoid trials. This is a poorly kept secret among judges and their law clerks, and sometimes it even spills out into public statements like this one, uttered by a judge as an explanation for why he opposed reforms that would have combated collusive class settlements: '[F]rom the court’s perspective, it would be terrible if a case went to trial.' " 28 5. 

Judges are inclined by either personal caprice or indoctrination (judicial education programs) to hastily dispatch pro se litigants in civil rights cases. For example, The Anti-Government Movement Handbook, (Nat’l Center for State Courts, 1999), instructs judges, in pertinent part: There is a movement afoot in this country today that is made up of disaffected and often dispossessed Americans . . . Regardless of the name attached to the beliefs and the people who follow them, one common denominator exists: a feeling of despair, rooted in personal and pecuniary loss, and manifested in a new, defiant mistrust and spite for the ways of the current Disparate Treatment of Pro Se Civil Litigants: A Justification for Resort to Inappropriate Self-Help?…/Pro_Se_Illu…/Pro_Se_Illusion.htm[3/12/2010 6:00:31 PM] government. This guide focuses on the ways in which followers of these movements impact the operation of our state court systems . . . a key strategy must be to separate the committed leaders and members of the movement from the large body of the primarily curious, and other less committed followers and supporters. AppEllatE REViEW as a PrOcEdUral DUE PrOcEss PrOtEctiON ? Appellate review is almost universally available in the United States, by constitution or statute, both in state and federal courts, for civil as well as criminal matters. Purportedly, independent and meaningful appellate review of magistrates’ recommendations and trial court decisions is a hallmark of the American justice system and a bulwark against personal fiat or arbitrary decision-making. As a fundamental part of our notion of due process, appellate review must become vigorous (even for pro se appellants). Colorado Court of Appeals Judge Steven Benard recently opined that, "in the federal system, the appeal from the district court to the court of appeals has become, regrettably, the best bargain in the supermarket of modern litigation." 29 If so, it's a supermarket selling fermented chum by the ounce for the price of Atlantic lobster by the pound. The Tenth Circuit has been selling a false bill of goods for years by misrepresenting that pro se litigants are actually treated more leniently than attorneys. For example, in Russell v. Sherman & Howard, et al., (10th Cir. 2007) (another Magistrate Watanabe-intercepted case) the Tenth Circuit claimed:  results in a waiver on appeal. (quotations & citations omitted). This typical Tenth Circuit dicta (rhetoric) is disrespectful of the truth because, when appellants do make detailed, cogent arguments in their briefs, circuit judges, like Michael McConnell, purposefully ignore them as if they had not been made. 

Such intellectual dishonesty (a/k/a Judicial Insincerity30 or Judicial Inactivism31) is a denial of the right of access to the court and a denial of the statutory right of appeal and, thus it is both a substantive due process deprivation and also a procedural due process deprivation. Circuit judges, like McConnell, get away with this by issuing the Order and Judgment as a memorandum opinion, which: does not address the substantive appellate issues; is completely deferential (no de novo review even for conclusions-of-law); departs from binding precedent (a/k/a stare decisis); and is written by a law clerk, rather than the judge. 32 "[T]he strongest critique of limited publication is that it is fundamentally unfair both to individual litigants whose opinions are not published, and to broad classes of litigants, who are allegedly more likely to receive only limited review from the courts of appeals. Litigants whose opinions are brief and unpublished have limited insight into the court’s reasoning for purposes of appeal. Additionally, [regarding] the practice of using clerks and staff attorneys to screen cases for likely precedential value, . . . “[m]ost people think if you have an appeal, your lawyer argues the case and a judge decides. That’s not what we have. We have a system where there is often no argument, there is no requirement for a judge to write a decision and the decision making is largely done by people who are not judges." 33 Richard Posner, while Chief Judge of the Seventh Circuit, admitted, "It is sort of a formula for irresponsibility. . . . Most judges, myself included, are not nearly as careful in dealing with unpublished decisions." 34 


The court does not write opinions in every case. The court may dispose of an appeal or petition without written opinion. Disposition without opinion does not mean that the case is unimportant. It means that the case does not require application of new points of law that would make the decision a valuable precedent. —10th Cir. Rule 36.1 Disparate Treatment of Pro Se Civil Litigants: A Justification for Resort to Inappropriate Self-Help?…/Pro_Se_Illu…/Pro_Se_Illusion.htm[3/12/2010 6:00:31 PM] 

Sidebar: The Rule of Law “A government of laws, not men; it is a body of substantive law accompanied by procedural due process. It is a legal system of rules and proscriptions, based on a constitution, and generally reflecting the will of the people. It provides a framework for majority rule, but protects minority rights. The laws and their application are subject to fair judicial interpretation and independent court decisions.” —Hon. Sidney Brooks, Building Blocks for a Rule of Law, 36 The Colorado Lawyer 19 (Dec. 2007) at 20 “A system that abides by the Rule of Law exists in a free and open society. Its laws are fairly adopted and are applied equally to all people by fair and impartial courts. That seems like a simple concept, but it is difficult for many countries to implement. “In the United States, we [purportedly] have a tradition that respects and abides by the Rule of Law. Our system, though not perfect, [purportedly] provides its citizens security, protection, and freedom.” —CBA Pres. Wm. David Lytle, 37 The Colorado Lawyer 1 (Jan. 2008) at 5. "the Rule of Law is not a argument by a Colorado Appeals Court judge that, "the quality of judicial analysis and writing suffers if judges write too many opinions" 35 is not well taken. Because a memorandum opinion is unpublished and, therefore, non-precedential, circuit judges quietly disavow stare decisis and the resulting order and judgment has no practical or persuasive effect on anyone (except the parties to that particular case). Said differently, circuit judges knowingly depart from well-established legal doctrines, principles and precedents to rule in any capricious or pragmatic manner that they choose —in effect— creating designer disposable law applicable only to the parties of a particular case. 

This practice is tantamount to spitting on the so-called Rule of Law: When decisions that are inconsistent with a jurisdiction's formal decisions about what opinions are to count as precedential are not written; where no reasoning at all is given for a court's decision (in the case of so-called "table," "slip," or "memorandum" opinions); or where unpublished opinions are not available except to institutional and other "repeat player" litigants who can assemble collections of this "shadow precedent" for their own use, courts can effectively do whatever they want, protected by their own fiat from the critical gaze of the bar, the media, and citizens. * * * Many criticisms of the practices of private judging deal in various ways with unfair treatment accorded by the courts to already subordinated groups . . . . Unpublication, depublication, and stipulated withdrawal render the law unpredictable . . . This means that what a court will do in a case is differentially predictable by litigants with differential power. The effect is that the law is not responsive to the demands made of the law by citizen litigants because it is forcibly controlled in ways not visible to litigants, lawyers, and other citizens. This control is exercised by repeatplayer litigants and by both actively unethical judges and others insufficiently critical of contemporary institutionalized unpublication, depublication, and stipulated withdrawal. The results are that courts do not--and indeed are not obliged to--treat similar cases equally; the system of precedent structurally subordinates some kinds of litigants and privileges others, and the traces of what the courts do are obscured * * * 

Pro se cases in the federal courts of appeals result in unpublished opinions much more frequently than those filed by counsel. Likewise, in cases where "the briefing is pro se, bad, or non-existent," cases are disproportionately tracked for the nonargument/unpublished opinion/minimal-judicial-involvement-in- decision treatment. Penelope Pether, The ScaNDal Of PRiVate JuDgiNg iN the U.S. COuRts, 56 Stan. L. Rev. 1435, 1499, 1505 (2004). Ken Smith, J.D., recently conducted his own independent research and found that only twelve (12) pro se civil cases in the Tenth Circuit during a fifteen year overturned a Colorado District court's judgment (either in whole or in part), as follows: In re Hopkins, (failure to perform an Ehrenhaus analysis); Bolin v. Chavez (father sued his ex-wife and a law firm under Section 1983 and under an intentional infliction theory for denying him access to his son); Lyons v. Red Roof Inns, Inc., 130 Fed.Appx. 957 (10th Cir. 2005) (age discrimination; partial reversal); Lawton v. Barnhart, 121 Fed.Appx. 364 (10th Cir. 2005) (Social Security disability benefits); Roberson v. Pinnacol Assurance, No. 03-1182 (10th Cir. 2004) (insurance company doctors allegedly falsifying data); Elefant v. Metropolitan State College of Denver, 229 F.3d 1163 (10th Cir. 2000) (age discrimination); Houston v. Norton, 215 F.3d 1172, 215 F.3d 1172 (10th Cir. 2000) (imposition of fees on pro se litigant); Disparate Treatment of Pro Se Civil Litigants: A Justification for Resort to Inappropriate Self-Help?…/Pro_Se_Illu…/Pro_Se_Illusion.htm[3/12/2010 6:00:31 PM] conservative or a liberal value. It is assuredly not a Republican or Democratic value. Rather, it is an American value. Confidence in the Rule of Law rests entirely at any given point in time on the character and the integrity of the individual American judge and on that judge's absolute commitment to fairness and impartiality." —U.S. District Judge John E. Jones III, Feb. 10, 2006 speech to the Anti-Defamation League National Executive Committee Meeting Stjernholm v. Peterson, 83 F.3D 347 (10th Cir. 1996) (tax sale); Sorbo v. United Parcel Service, 432 F.3d 1169 (10th Cir. 2005) (age discrimination; partial reversal); In re Canady, No. 94-1182 (10th Cir. 1994) (bankruptcy); In re Woodcock, No. 94-1101 (10th Cir. 1995) (same); and Jackson v. Continental Cargo, 183 F.3d 1186, 80 Fair Empl.Prac.Cas. (BNA) 564 (10th Cir. 1999) (whistle-blower). The search parameters he employed were "pro se” and (reversed w/10 remanded) and D.Colo (and, alternatively "Appeal from the United States District Court for the District of Colorado"). A more accurate representation of how the Tenth Circuit handles pro se cases is a priceless quote from Tollestrup v. Tel. America Long Distance, 95 Fed. Appx. 290 (10th Cir. 2004): In addition to her challenges to the district court's decision, Ms. Tollestrup . . . who is proceeding pro se . . . argues the district court denied her due process (1) by ignoring her request for a hearing on defendants' summary judgment motion; (2) by ignoring other motions, including motions for appointment of counsel, for discovery and for an extension of time; (3) by not allowing discovery or the right to subpoena documents; and (4) by allowing a law clerk to decide the case. We conclude these procedural arguments have no merit. . . . While the district court did not expressly rule on the motions, based on the court's disposition of the case we deem them denied. Upon review of the record, we conclude the district court did not abuse its discretion in implicitly denying the motions . . . Ms. Tollestrup's argument that the district court's decision was drafted by a law clerk is of no significance . . . Finally, we reject any other arguments made by Ms. Tollestrup not specifically addressed in this order and judgment. In this wang dang doodle of a case, the circuit court scoffs at the pro se litigant's expectation that the district court should have issued a ruling on her motions (to include findings of fact and conclusions of law (necessary for a substantive appellate review)), and decrees that her argument that a clerk decided her case "is of no significance." Indeed, the King —and the minions of his court— can do no wrong! 

CONclUsiON Even if every pro se litigant approached the court with inartful pleadings, judges have a duty to consider them, if not decipher them.36 A dispassionate reading of Magistrate Schlatter's admission combined with our independent real-world analysis reveals that, in fact, pro se litigants are systemically denied their day in court and that magistrate judges are used as goalies, rather than referees in the litigation. As this fact becomes more widely recognized, we must consider the possibility that many potential litigants consider bypassing an exercise in futility and, instead, resort to inappropriate self-help. Lest the citizenry lose faith in the substance of the system and the procedures we use to administer it, we can ill afford to confront them with a government dominated by forms and mysterious rituals and then tell them they lose because they did not know how to play the game or should not have taken us at our word.37 * The author is legal technologist, software engineer, computer forensics examiner, and juris-doctorate candidate. Learn more about Federal Judicial Misconduct Policy & Procedure Endnotes Disparate Treatment of Pro Se Civil Litigants: A Justification for Resort to Inappropriate Self-Help?…/Pro_Se_Illu…/Pro_Se_Illusion.htm[3/12/2010 6:00:31 PM] Additional References last updated: 01/26/2010 Web site design by: Attorney Client Privilege, LLC This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 Unported License. Member: Electronic Frontier Foundation, Public Citizen, and HALT.[3/12/2010 


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