Friday

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? http://knowyourcourts.com/…/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? KnowYourCOURTS.com 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? http://knowyourcourts.com/…/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? http://knowyourcourts.com/…/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? http://knowyourcourts.com/…/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? http://knowyourcourts.com/…/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? http://knowyourcourts.com/…/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? http://knowyourcourts.com/…/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? http://knowyourcourts.com/…/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? http://knowyourcourts.com/…/Pro_Se_Illu…/Pro_Se_Illusion.htm[3/12/2010 6:00:31 PM] Additional References last updated: 01/26/2010 tipline@KnowYourCOURTS.com 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. 


http://knowyourcourts.com/Archives/Pro_Se_Illusion/Pro_Se_Illusion.htm[3/12/2010 

KNOWYOURCOURTS.COM 


We only support organizations who show an understanding that children need both parents, and that either parent is equally capable of the choice to perpetrate hate or declare peace.


15 comments:

  1. In controversies affecting the custody of an infant, the interest and welfare of the child is the primary and controlling question by which the court must be guided. This rule is based upon the theory that the state must perpetuate itself, and good citizenship is essential to that end. Though nature gives to parents the right to the custody of their own children, and such right is scarcely less sacred than the right to life and liberty, and is manifested in all animal life, yet among mankind the necessity for government has forced the recognition of the rule that the perpetuity of the state is the first consideration, and parental authority itself is subordinate to this supreme power. It is recognized that: ‘The moment a child is born it owes allegiance to the government of the country of its birth, and is entitled to the protection of that government. And such government is obligated by its duty of protection, to consult the welfare, comfort and interest of such child in regulating its custody during the period of its minority.’ Mercein v. People, 25 Wend. (N. Y.) 64, 103, 35 Am. Dec. 653; McKercher v. Green, 13 Colo. App. 271, 58 Pac. 406. But as government should never interfere with the natural rights of man, except only when it is essential for the good of society, the state recognizes, and enforces, the right which nature gives to parents [48 Colo. 466] to the custody of their own children, and only supervenes with its sovereign power when the necessities of the case require it.

    The experience of man has demonstrated that the best development of a young life is within the sacred precincts of a home, the members of which are bound together by ties entwined through ‘bone of their bone and flesh of their flesh’; that it is in such homes and under such influences that the sweetest, purest, noblest, and most attractive qualities of human nature, so essential to good citizenship, are best nurtured and grow to wholesome fruition; that, when a state is based and builded upon such homes, it is strong in patriotism, courage, and all the elements of the best civilization. Accordingly these recurring facts in the experience of man resulted in a presumption establishing prima facie that parents are in every way qualified to have the care, custody, and control of their own offspring, and that their welfare and interests are best subserved under such control. Thus, by natural law, by common law, and, likewise, the statutes of this state, the natural parents are entitled to the custody of their minor children, except when they are unsuitable persons to be intrusted with their care, control, and education, or when some exceptional circumstances appear which render such custody inimicable to the best interests of the child. While the right of a parent to the custody of its infant child is therefore, in a sense, contingent, the right can never be lost or taken away so long as the parent properly nurtures, maintains, and cares for the child.

    Wilson v. Mitchell, 111 P. 21, 25-26, 48 Colo. 454 (Colo. 1910)

    ReplyDelete
    Replies
    1. "Normal parents can put the needs of their children first. They know that demeaning and demonizing their partner harms the children and however they may feel about their they do not want to harm their children. The problem of brainwashing children arises when one or other parent or both put their needs first and use the children as weapons against each other. These are the adults who have personality disorders that go unrecognized in court. There both parents are given an equal hearing the problem occurs when one parent lies and cheats under oath, manipulates the judiciary and everyone in the case while the normal parent looks on in horror. Women will always be given the benefit of the doubt over men especially by men which is why so many men loose their children. The training of so called experts in the universities and in workshops has been in the hands of radical feminists for the last forty years as a result there is no level playing field between parents any longer. All I can say that I have seen children deprived of a loving parent reconnect after years of demonizing that parent. For other parents they have to live with the injustice for the rest of their lives their child or children are to damaged to ever know the truth." ~ Erin Pizzey's comment on: https://www.causes.com/causes/409526/updates/791783
      Website http://erinpizzey.com
      #familycourt #familylaw #familylawattorney #familylawlawyer #familycourtinjustice #pas #alienation #parentalalienation #erinpizzey #childrensrights #fathersrights

      Delete
    2. Review from the late Carl Fredrich, founder of the American Pro Se Association
      2012 ~
      " "How to Win a Lawsuit Without Hiring a Lawyer" is a very informative book -- and for those who find themselves in certain circumstances it can be said to be indispensable. The book might be more appropriately entitled: "Pursuing A Lawsuit Without A Lawyer: Even Against the Authorities." This book, as far as we know, is the only simplified low cost resource addressing an area of increasing need -- where one's rights have been trampled or denied by police or other officials and how you can do something affordable about it. The book actually contains an enormous amount of information and legal theories and specific instructions on how to proceed with respect to a number of issues.
      Considering it is a generic law book written to address both Federal and all 50 states laws, it possesses both the advantages and drawbacks inherent in covering so much territory. The book also addresses this difficult problem and stresses the need to consult specific state statutes and/or the necessary specific information on any administrative law forums should they be applicable. (These are often called 'administrative law court' but they are really central panels of the administrative branch -- not judicial branch of government.)

      Delete
  2. We also have Unalienable Rights – Absolute Rights – Natural Rights

    The absolute rights of individuals may be resolved into the right of personal security, the right of personal liberty, and the right to acquire and enjoy property. These rights are declared to be natural, inherent, and unalienable. Atchison & N. R. Co. v. Baty, 6 Neb. 37, 40, 29 Am. Rep. 356.

    By the “absolute rights” of individuals is meant those which are so in their primary and strictest sense, such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it. The rights of personal security, of personal liberty, and private property do not depend upon the Constitution for their existence. They existed before the Constitution was made, or the government was organized. These are what are termed the “absolute rights” of individuals, which belong to them independently of all government, and which all governments which derive their power from the consent of the governed were instituted to protect. People v. Berberrich (N. Y.) 20 Barb. 224, 229; McCartee v. Orphan Asylum Soc. (N. Y.) 9 Cow. 437, 511, 513, 18 Am. Dec. 516; People v. Toynbee (N. Y.) 2 Parker, Cr. R. 329, 369, 370 (quoting 1 Bl. Comm. 123).

    Constitutional Right to Be a Parent

    Below are excerpts of caselaw from state appellate and federal district courts and up to the U.S. Supreme Court, all of which affirm, from one perspective or another, the absolute Constitutional right of parents to actually BE parents to their children.

    No case authoritative within this circuit, however, had held that the state had a comparable obligation to protect children from their own parents, and we now know that the obligation does not exist in constitutional law.” K.H. Through Murphy v. Morgan, 914 F.2d 846 (C.A.7 (Ill.), 1990.

    “Rights to marry, have children and maintain relationship with children are fundamental rights protected by the Fourteenth Amendment and thus, strict scrutiny is required of any statutes that directly and substantially impair those rights.” P.O.P.S. v. Gardner, 998 F2d 764 (9th Cir. 1993)

    “Parents right to rear children without undue governmental interference is a fundamental component of due process.”
    Nunez by Nunez v. City of San Diego, 114 F3d 935 (9th Cir. 1997)

    The rights of parents to the care, custody and nurture of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by this amendment (First) and Amendments 5, 9, and 14. Doe v. Irwin, 441 F Supp 1247; U.S. D.C. of Michigan, (1985).

    The several states have no greater power to restrain individual freedoms protected by the First Amendment than does the Congress of the United States. Wallace v. Jaffree, 105 S Ct 2479; 472 US 38, (1985).

    The United States Supreme Court has stated: “There is a presumption that fit parents act in their children’s best interests, Parham v. J. R., 442 U. S. 584, 602; there is normally no reason or compelling interest for the State to inject itself into the private realm of the family to further question fit parents’ ability to make the best decisions regarding their children. Reno v. Flores, 507 U. S. 292, 304. The state may not interfere in child rearing decisions when a fit parent is available. Troxel v. Granville, 530 U.S. 57 (2000).

    Loss of First Amendment Freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Though First Amendment rights are not absolute, they may be curtailed only by interests of vital importance, the burden of proving which rests on their government. Elrod v. Burns, 96 S Ct 2673; 427 US 347, (1976).

    Law and court procedures that are “fair on their faces” but administered “with an evil eye or a heavy hand” was discriminatory and violates the equal protection clause of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 US 356, (1886).

    ReplyDelete
    Replies
    1. Even when blood relationships are strained, parents retain vital interest in preventing irretrievable destruction of their family life; if anything, persons faced with forced dissolution of their parental rights have more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. Santosky v. Kramer, 102 S Ct 1388; 455 US 745, (1982).

      Parents have a fundamental constitutionally protected interest in continuity of legal bond with their children. Matter of Delaney, 617 P 2d 886, Oklahoma (1980). .

      The liberty interest of the family encompasses an interest in retaining custody of one’s children and, thus, a state may not interfere with a parent’s custodial rights absent due process protections. Langton v. Maloney, 527 F Supp 538, D.C. Conn. (1981).

      Parent’s right to custody of child is a right encompassed within protection of this amendment which may not be interfered with under guise of protecting public interest by legislative action which is arbitrary or without reasonable relation to some purpose within competency of state to effect. Regenold v. Baby Fold, Inc., 369 NE 2d 858; 68 Ill 2d 419, appeal dismissed 98 S Ct 1598, 435 US 963, IL, (1977).

      Parent’s interest in custody of her children is a liberty interest which has received considerable constitutional protection; a parent who is deprived of custody of his or her child, even though temporarily, suffers thereby grievous loss and such loss deserves extensive due process protection. In the Interest of Cooper, 621 P 2d 437; 5 Kansas App Div 2d 584, (1980).

      The Due Process Clause of the Fourteenth Amendment requires that severance in the parent-child relationship caused by the state occur only with rigorous protections for individual liberty interests at stake. Bell v. City of Milwaukee, 746 F 2d 1205; US Ct App 7th Cir WI, (1984).

      Father enjoys the right to associate with his children which is guaranteed by this amendment (First) as incorporated in Amendment 14, or which is embodied in the concept of “liberty” as that word is used in the Due Process Clause of the 14th Amendment and Equal Protection Clause of the 14th Amendment. Mabra v. Schmidt, 356 F Supp 620; DC, WI (1973).

      “Separated as our issue is from that of the future interests of the children, we have before us the elemental question whether a court of a state, where a mother is neither domiciled, resident nor present, may cut off her immediate right to the care, custody, management and companionship of her minor children without having jurisdiction over her in personam. Rights far more precious to appellant than property rights will be cut off if she is to be bound by the Wisconsin award of custody.” May v. Anderson, 345 US 528, 533; 73 S Ct 840, 843, (1952).

      A parent’s right to care and companionship of his or her children are so fundamental, as to be guaranteed protection under the First, Ninth, and Fourteenth Amendments of the United States Constitution. In re: J.S. and C., 324 A 2d 90; supra 129 NJ Super, at 489.

      The Court stressed, “the parent-child relationship is an important interest that undeniably warrants deference and, absent a powerful countervailing interest, protection.” A parent’s interest in the companionship, care, custody and management of his or her children rises to a constitutionally secured right, given the centrality of family life as the focus for personal meaning and responsibility. Stanley v. Illinois, 405 US 645, 651; 92 S Ct 1208, (1972).

      Parent’s rights have been recognized as being “essential to the orderly pursuit of happiness by free man.” Meyer v. Nebraska, 262 US 390; 43 S Ct 625, (1923).

      The U.S. Supreme Court implied that “a (once) married father who is separated or divorced from a mother and is no longer living with his child” could not constitutionally be treated differently from a currently married father living with his child. Quilloin v. Walcott, 98 S Ct 549; 434 US 246, 255^Q56, (1978).

      Delete
    2. The U.S. Court of Appeals for the 9th Circuit (California) held that the parent-child relationship is a constitutionally protected liberty interest. (See; Declaration of Independence –life, liberty and the pursuit of happiness and the 14th Amendment of the United States Constitution — No state can deprive any person of life, liberty or property without due process of law nor deny any person the equal protection of the laws.) Kelson v. Springfield, 767 F 2d 651; US Ct App 9th Cir, (1985).

      The parent-child relationship is a liberty interest protected by the Due Process Clause of the 14th Amendment. Bell v. City of Milwaukee, 746 f 2d 1205, 1242^Q45; US Ct App 7th Cir WI, (1985).

      No bond is more precious and none should be more zealously protected by the law as the bond between parent and child.” Carson v. Elrod, 411 F Supp 645, 649; DC E.D. VA (1976).

      A parent’s right to the preservation of his relationship with his child derives from the fact that the parent’s achievement of a rich and rewarding life is likely to depend significantly on his ability to participate in the rearing of his children. A child’s corresponding right to protection from interference in the relationship derives from the psychic importance to him of being raised by a loving, responsible, reliable adult. Franz v. U.S., 707 F 2d 582, 595^Q599; US Ct App (1983).

      A parent’s right to the custody of his or her children is an element of “liberty” guaranteed by the 5th Amendment and the 14th Amendment of the United States Constitution. Matter of Gentry, 369 NW 2d 889, MI App Div (1983).

      Reality of private biases and possible injury they might inflict were impermissible considerations under the Equal Protection Clause of the 14th Amendment. Palmore v. Sidoti, 104 S Ct 1879; 466 US 429.

      Legislative classifications which distributes benefits and burdens on the basis of gender carry the inherent risk of reinforcing stereotypes about the proper place of women and their need for special protection; thus, even statutes purportedly designed to compensate for and ameliorate the effects of past discrimination against women must be carefully tailored. the state cannot be permitted to classify on the basis of sex. Orr v. Orr, 99 S Ct 1102; 440 US 268, (1979).

      The United States Supreme Court held that the “old notion” that “generally it is the man’s primary responsibility to provide a home and its essentials” can no longer justify a statute that discriminates on the basis of gender. No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas. Stanton v. Stanton, 421 US 7, 10; 95 S Ct 1373, 1376, (1975).

      Judges must maintain a high standard of judicial performance with particular emphasis upon conducting litigation with scrupulous fairness and impartiality. 28 USCA § 2411; Pfizer v. Lord, 456 F.2d 532; cert denied 92 S Ct 2411; US Ct App MN, (1972).

      State Judges, as well as federal, have the responsibility to respect and protect persons from violations of federal constitutional rights. Gross v. State of Illinois, 312 F 2d 257; (1963).

      The Constitution also protects “the individual interest in avoiding disclosure of personal matters.” Federal Courts (and State Courts), under Griswold can protect, under the “life, liberty and pursuit of happiness” phrase of the Declaration of Independence, the right of a man to enjoy the mutual care, company, love and affection of his children, and this cannot be taken away from him without due process of law. There is a family right to privacy which the state cannot invade or it becomes actionable for civil rights damages. Griswold v. Connecticut, 381 US 479, (1965).

      The right of a parent not to be deprived of parental rights without a showing of fitness, abandonment or substantial neglect is so fundamental and basic as to rank among the rights contained in this Amendment (Ninth) and Utah’s Constitution, Article 1 § 1. In re U.P., 648 P 2d 1364; Utah, (1982).

      Delete
    3. The rights of parents to parent-child relationships are recognized and upheld. Fantony v. Fantony, 122 A 2d 593, (1956); Brennan v. Brennan, 454 A 2d 901, (1982). State’s power to legislate, adjudicate and administer all aspects of family law, including determinations of custodial; and visitation rights, is subject to scrutiny by federal judiciary within reach of due process and/or equal protection clauses of 14th Amendment…Fourteenth Amendment applied to states through specific rights contained in the first eight amendments of the Constitution which declares fundamental personal rights…Fourteenth Amendment encompasses and applied to states those preexisting fundamental rights recognized by the Ninth Amendment. The Ninth Amendment acknowledged the prior existence of fundamental rights with it: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The United States Supreme Court in a long line of decisions, has recognized that matters involving marriage, procreation, and the parent-child relationship are among those fundamental “liberty” interests protected by the Constitution. Thus, the decision in Roe v. Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147, (1973), was recently described by the Supreme Court as founded on the “Constitutional underpinning of … a recognition that the “liberty” protected by the Due Process Clause of the 14th Amendment includes not only the freedoms explicitly mentioned in the Bill of Rights, but also a freedom of personal choice in certain matters of marriage and family life.” The non-custodial divorced parent has no way to implement the constitutionally protected right to maintain a parental relationship with his child except through visitation. To acknowledge the protected status of the relationship as the majority does, and yet deny protection under Title 42 USC § 1983, to visitation, which is the exclusive means of effecting that right, is to negate the right completely. Wise v. Bravo, 666 F.2d 1328, (1981).

      One of the most precious rights possessed by parents is the right to raise their children free of government interference. That right, “more precious than mere property rights,” is a liberty interest, protected by the substantive and procedural Due Process Clauses of the Fourteenth Amendment. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Moreover, the fact that the custodians are grandparents rather than parents is legally insignificant, because families headed by extended family members are entitled to the same constitutional protections as those headed by parents, Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) Even relatives who are licensed as foster parents enjoy the same constitutional rights as other custodial relatives. Rivera v. Marcus, 696 F.2d 1016 (2d Cir. 1982).

      Because of the magnitude of the liberty interests of parents and adult extended family members in the care and companionship of children, the Fourteenth Amendment protects these substantive due process liberty interests by prohibiting the government from depriving fit parents of custody of their children. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Santosky v. Kramer, 455 U.S. 745, 760, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Duchesne v. Sugarman, 566 F.2d 817, 824 (2d Cir. 1977); Hurlman v. Rice, 927 F.2d 74, 79 (2d Cir. 1991). In the United States Supreme Court’s view, the state registers “no gains toward its stated goals [of protecting children] when it separates a fit parent from the custody of his children.” Stanley, 405 U.S. at 652.

      Delete
    4. Grandparents are also entitled to procedural due process. “An essential principle of due process is that a deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed.2d 865 (1950)).

      The grandchildren have a Fourth Amendment right not to be seized by the government for child protective purposes unless it has probable cause to believe that the children have been neglected. Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999), cert. denied, 529 U.S. 1098, 120 S.Ct. 1832, 146 L.Ed.2d 776 (2000). Probable cause exists only if the officials have persuasive evidence of serious ongoing abuse and reason to fear imminent recurrence. Robison v. Via, 821 F.2d 913, 922 (2d Cir. 1987).

      Grandparents cannot be dismissed from the dependency case because the dependency case is the only legal way that the state can interfere with their custody. The state must prove that they are abusive or neglectful and that the children would be at risk of immediate serious harm if returned.

      Delete
    5. I guess you couldn't handle me ha Barry? Sorry you paid so much money for that law degree. Your parents wasted their money son!

      No case authoritative within this circuit, however, had held that the state had a comparable obligation to protect children from their own parents, and we now know that the obligation does not exist in constitutional law.” K.H. Through Murphy v. Morgan, 914 F.2d 846 (C.A.7 (Ill.), 1990.

      “Rights to marry, have children and maintain relationship with children are fundamental rights protected by the Fourteenth Amendment and thus, strict scrutiny is required of any statutes that directly and substantially impair those rights.” P.O.P.S. v. Gardner, 998 F2d 764 (9th Cir. 1993)

      “Parents right to rear children without undue governmental interference is a fundamental component of due process.”
      Nunez by Nunez v. City of San Diego, 114 F3d 935 (9th Cir. 1997)

      The rights of parents to the care, custody and nurture of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by this amendment (First) and Amendments 5, 9, and 14. Doe v. Irwin, 441 F Supp 1247; U.S. D.C. of Michigan, (1985).

      The several states have no greater power to restrain individual freedoms protected by the First Amendment than does the Congress of the United States. Wallace v. Jaffree, 105 S Ct 2479; 472 US 38, (1985).

      The United States Supreme Court has stated: “There is a presumption that fit parents act in their children’s best interests, Parham v. J. R., 442 U. S. 584, 602; there is normally no reason or compelling interest for the State to inject itself into the private realm of the family to further question fit parents’ ability to make the best decisions regarding their children. Reno v. Flores, 507 U. S. 292, 304. The state may not interfere in child rearing decisions when a fit parent is available. Troxel v. Granville, 530 U.S. 57 (2000).

      Loss of First Amendment Freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Though First Amendment rights are not absolute, they may be curtailed only by interests of vital importance, the burden of proving which rests on their government. Elrod v. Burns, 96 S Ct 2673; 427 US 347, (1976).

      Law and court procedures that are “fair on their faces” but administered “with an evil eye or a heavy hand” was discriminatory and violates the equal protection clause of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 US 356, (1886).

      Delete
    6. Dear Dads,
      While the NH BAR ASSOCIATION is raping families, robbing Social Security through TITLE IV-D fraud, concealing the real hidden meaning of the marriage license, violating contract law, violating trust law, committing perjury, perpetrating and coercing fraud, stealing kids from fit moms and dads, refusing to enforce "court orders," and basically sponging off society, on their behalf, I'd like to wish you all a very Happy Father's Day!
      That said, I'd like to nominate Hearing Administrator of the foreign IMF, Edwin Kelly as the ASSHOLE of the CENTURY! Regularly, I witness the creeps in the black robes, serving under him, violate people's rights as they pretend to conduct hearings for legal fictions.
      There is no need for a war! The B.A.R. ASSOCIATION is destroying America from within. Almost EVERY problem we face in life includes some kind of fraud by a B.A.R. attorney.
      Read below, to see just how in the dark they want you to stay! Here is what they DON'T WANT YOU TO KNOW!!!
      December 26, 1933 49 Statute 3097 Treaty Series 881 ( Convention on Rights and Duties of States ) stated CONGRESS replaced STATUTES with international law, placing all STATES under international law.
      December 9, 1945, the International Organization Immunities Act relinquished every public office of United States to United Nations.
      22 CFR 92.12-92.31 FR Heading "Foreign Relationship" states that an oath is required to take office.
      Title 8 USC 1481 states once an oath of office is taken, citizenship is relinquished, thus one becomes a foreign entity, agency, or state. That means every public office is a foreign state, including all political subdivisions. ( i.e. every single court is considered a separate foreign entity ).
      Title 22 USC ( Foreign relations and Intercourse ) Chapter 11 identifies all public officials as foreign agents.
      Title 28 USC 3002 Section 15A states United States is a Federal Corporation and not a government, including the Judicial Procedural Section.
      Federal Rules of Civil Procedure ( FRCP ) 4j states that the Court jurisdiction and immunity fall under a foreign state.
      The 11th Amendment states "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of a Foreign State." ( A foreign entity, agency, or state cannot bring any suit against a United States citizen without abiding the following procedure. )
      Title 22 CFR 93.1-93.2 states that the Department of State has to be notified of any suit, and in turn has to notify the United States citizen of said suit.
      Title 28 USC 1330states that the United States District Court has to grant permission for the suit to be pursued once the court has been supplied sufficient proof that the United States citizen is actually a corporate entity.
      Title 28 USC 1608 One has Absolute Immunity as a Corporation.
      Title 28 USC 1602-1611 ( Foreign Sovereign Immunities Act ) allows the jurisdiction of a court to be challenged, and a demand of proper jurisdiction to be stated.
      July 27, 1868, 15 Statutes at Large Chapter 249 Section 1 "Acts Concerning American Citizens in a Foreign State," expatriation, is what is broken when jurisdiction is demanded, and is not met with an answer.
      Under the Federal Rules of Civil Procedure 12b 6, the prosecution has failed to provide adequate proof that the parties involved in this situation are actually corporate entities. There is ample proof that the prosecution and other agents are actually corporations.

      Delete
    7. In 1950, the 81st Congress investigated the Lawyers Guild and determined that the B.A.R. Association is founded and run by communists under definition. Thus, any elected official that is a member of the B.A.R. will only be loyal to the B.A.R. and not the people.
      In 1933, elected officials and the alleged "country" have been given to the United Nations Government system. Under Senator Barack Hussein Obama's Bill, SB2433, the Poverty Act of 2007, the UN military forces can step on American soil to confiscate weapons from U.S. citizens. Under the Bush Administration, B.A.R. Attorney General Ashcroft and Haliburton established FEMA Concentration Camps for U.S. citizens who refuse the new world order/one world government.
      "That the Pan American treaty of 12-26-1933 (49 STAT 3097) Treaty Series 881 – (Convention on Rights and Duties of States) stated CONGRESS replaced STATUTES with international law, placing all states under international law.
      That the International Organization Immunities Act of 12-9-1945 – - Congress relinquished every public office over to the UN. Local governments up to the president fall under UN jurisdiction. Congress gave the UN the right to dictate what laws will be international & gave them the right to tax the States.
      That the International Reorganization Rescind Act- Congress put this into form but they never took action to rescind the act. Fairly recently an Ohio judge filed suit claiming that Congress did not have the right to relinquish government authority over to the UN (a corporation or foreign country) and that the Congressional act was a constitutional violation because they didn’t put it to the States or the people to agree on it. In 2005 the US Supreme court declined to hear the case therefore all public offices are under UN jurisdiction & they are not American Citizens.
      That the Oath of Office – Title 5 USC 331, 332, 333 backed up by Title 22 CFR Foreign Relations 92.12 – 92.31 and Title 8 USC, section 1481 – the public official relinquishes his national citizenship and are thus foreign agents as stipulated under Title 22 USC, chapter 11, section 611, loss of national citizenship – Public officials are no longer US Citizens, but rather are foreign agents and must register as such.
      That Title 8 USC 1481 stated once an oath of office is taken citizenship is relinquished, thus you become a foreign entity, agency, or state. That means every public office is a foreign state, including all political subdivisions. (i.e. every single court is considered a separate foreign entity).
      That Title 22 USC (Foreign Relations and Intercourse) Chapter 11 identifies all public officials as foreign agents.
      Title 28 USC 3002 Section 15A states that the United States is a Federal Corporation and not a Government, including the Judiciary Procedural Section.
      That the Federal Rules of Civil Procedure (FRCP) 4j states that the Court jurisdiction and immunity fall under a foreign State.
      That 28 USC CHAPTER 176 - FEDERAL DEBT COLLECTION PROCEDURE.
      The Federal Debt Collection Procedure places all courts under equity and commerce and under the International Monetary Fund."
      That in 1950 81st Congress investigated the Lawyers Guild and determined that the B.A.R. Association is founded and run by communists under definition. Thus any elected official that is a member of the B.A.R. will only be loyal to the B.A.R. and not the people.

      Delete
  3. The children's act took away our rights & gave us responsibilities instead.

    ReplyDelete
  4. It's human nature to seek out a partner in life, and to possibly marry and have children. Unfortunately the matrimonial establishment, as we are all aware, is being methodically torn down by a demoralized society. Sadly the divorce rate is still on the rise and the foundation of marriage is being devalued and is crumbling. As adults we learn to adapt and move on when divorce attacks our lives but for children this is another story. They are the real victims of divorce and unfortunately they will suffer dearly from our selfishness and in most cases follow the same path of destruction if not worse.
    As a nation we have been granted certain civil rights by our constitution. Through the years it has been amended to better the lives of many Americans. The two most notable changes have come to Women in the 1920s and with African Americans in the 1960s. These rights were long overdue for both segments of our nation but thankfully we realized our mistakes and corrected them. This was not an easy journey for either of these crusades but through dedication and perseverance the bells of liberty rang loudly and victory was achieved.
    Unfortunately we have reached yet another fork in the road and with that comes another challenge to the American people. "We've worked hard for women's rights, but we have to watch out that the pendulum doesn't swing the other way" says Ruthie J. of the Reach FM. Ironically the pendulum has already swung far to one side and this time the male gender is being demonized by erroneous and fraudulent information. Males are being portrayed as callus, uncaring, and without emotion. We are being taught that men represent 95% of abuse in this nation against women. These and many other false statistics are being recklessly strewn throughout society and none of it is true. Yes, women are being abused by men that is a fact. striking a woman is abhorrent to the highest degree and should be dealt with appropriately but men are abused at an equal rate and they are being ignored. According to a study by the Center for Disease Control men represent 38% of domestic violence related injuries. Compound that with the fact that only 0.9% of men report abuse verses 8.5% of women and I think we have a pretty equal degree of violence between partners.
    The cornerstone of this "abuse" is VAWA the Violence Against Women Act. It was passed into law by Bill Clinton in 1994 and has been extended by every subsequent President. This law funnels Billions of dollars into discriminatory education and propaganda that violates men's civil rights. Many times DVIs or Domestic Violence Injunctions are used as a tool in divorce, child custody or just vengeance against a partner, most often against males. This is because the system of acquiring a DVI is simple and requires no evidence, witnesses or prior police reports. Just the word of an alleged victim making a claim of abuse. The repercussions of these orders are devastating and many times result in a violation, arrest and complete destruction of one's life. Even in cases when they are dismissed, a serious blemish remains on the falsely accused forever; how does that look to potential employers who almost always perform background checks prior to employment? This must be stopped and a better system of protecting all victims of domestic violence should be put in place.
    I hope to help bring awareness to gender discrimination and help provide support for men who are abused. There are programs to help women of abuse but nothing for men. My website will provide more information on the facts, my personal experiences and the stories of those who have been victims of this heinous tactic of relationship vengeance. Men and women should truly have equal rights and currently the scales are unjustly tilted. Let's work together to end domestic violence and not vilify one gender as inherently abusive. "United we stand, divided we fall" A powerful statement that we must never forget.

    Thank you,
    Tom Lemons
    Founder, www.falsedvireports.com

    ReplyDelete
  5. Children's Bill of Rights

    WHEN PARENTS ARE NOT TOGETHER

    Every kid has rights, particularly when mom and dad are splitting up. Below are some things parents shouldn't forget -- and kids shouldn't let them -- when the family is in the midst of a break-up.

    You have the right to love both your parents. You also have the right to be loved by both of them. That means you shouldn't feel guilty about wanting to see your dad or your mom at any time. It's important for you to have both parents in your life, particularly during difficult times such as a break-up of your parents.

    You do not have to choose one parent over the other. If you have an opinion about which parent you want to live with, let it be known. But nobody can force you to make that choice. If your parents can't work it out, a judge may make the decision for them.

    You're entitled to all the feelings you're having. Don't be embarrassed by what you're feeling. It is scary when your parents break up, and you're allowed to be scared. Or angry. Or sad. Or whatever.

    You have the right to be in a safe environment. This means that nobody is allowed to put you in danger, either physically or emotionally. If one of your parents is hurting you, tell someone -- either your other parent or a trusted adult like a teacher.

    You don't belong in the middle of your parents' break-up. Sometimes your parents may get so caught up in their own problems that they forget that you're just a kid, and that you can't handle their adult worries. If they start putting you in the middle of their dispute, remind them that it's their fight, not yours.

    Grandparents, aunts, uncles and cousins are still part of your life. Even if you're living with one parent, you can still see relatives on your other parent's side. You'll always be a part of their lives, even if your parents aren't together anymore.

    You have the right to be a child. Kids shouldn't worry about adult problems. Concentrate on your school work, your friends, activities, etc. Your mom and dad just need your love. They can handle the rest.

    IT IS NOT YOUR FAULT AND DON'T BLAME YOURSELF.
    ----Special Concerns of Children Committee, March, 1998

    "Children's Bill of Rights" is a publication of the American Academy of Matrimonial Lawyers. © 1997 - 2001. All rights reserved. "Children's Bill of Rights" may be reproduced under the following conditions:
    It must be reproduced in its entirety with no additions or deletions, including the AAML copyright notice. It must be distributed free of charge. The AAML reserves the right to limit or deny the right of reproduction in its sole discretion.
    © 2013 AAML Florida. 3046 Hawks Glen Tallahassee, FL 32312 | 850-668-0614
    http://www.aamlflorida.org/index.cfm?fuseaction=pages.tentips

    The hiring of a lawyer is an important decision that should not be based solely on advertisements. Before you decide, ask the attorney to send you free written information about their qualifications and experience. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

    ReplyDelete
    Replies
    1. PRO SE RIGHTS:
      Sims v. Aherns, 271 SW 720 (1925) ~ "The practice of law is an occupation of common right."

      Brotherhood of Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1; v. Wainwright, 372 U.S. 335; Argersinger v. Hamlin, Sheriff 407 U.S. 425 ~ Litigants can be assisted by unlicensed laymen during judicial proceedings.

      Conley v. Gibson, 355 U.S. 41 at 48 (1957) ~ "Following the simple guide of rule 8(f) that all pleadings shall be so construed as to do substantial justice"... "The federal rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." The court also cited Rule 8(f) FRCP, which holds that all pleadings shall be construed to do substantial justice.

      Davis v. Wechler, 263 U.S. 22, 24; Stromberb v. California, 283 U.S. 359; NAACP v. Alabama, 375 U.S. 449 ~ "The assertion of federal rights, when plainly and reasonably made, are not to be defeated under the name of local practice."

      Elmore v. McCammon (1986) 640 F. Supp. 905 ~ "... the right to file a lawsuit pro se is one of the most important rights under the constitution and laws."

      Federal Rules of Civil Procedures, Rule 17, 28 USCA "Next Friend" ~ A next friend is a person who represents someone who is unable to tend to his or her own interest.

      Haines v. Kerner, 404 U.S. 519 (1972) ~ "Allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient"... "which we hold to less stringent standards than formal pleadings drafted by lawyers."

      Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233 ~ Pro se pleadings are to be considered without regard to technicality; pro se litigants' pleadings are not to be held to the same high standards of perfection as lawyers.

      Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938) ~ "Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end. Proper pleading is important, but its importance consists in its effectiveness as a means to accomplish the end of a just judgment."

      NAACP v. Button, 371 U.S. 415); United Mineworkers of America v. Gibbs, 383 U.S. 715; and Johnson v. Avery, 89 S. Ct. 747 (1969) ~ Members of groups who are competent nonlawyers can assist other members of the group achieve the goals of the group in court without being charged with "unauthorized practice of law."

      Picking v. Pennsylvania Railway, 151 F.2d. 240, Third Circuit Court of Appeals ~ The plaintiff's civil rights pleading was 150 pages and described by a federal judge as "inept". Nevertheless, it was held "Where a plaintiff pleads pro se in a suit for protection of civil rights, the Court should endeavor to construe Plaintiff's Pleadings without regard to technicalities."

      Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA) ~ It was held that a pro se complaint requires a less stringent reading than one drafted by a lawyer per Justice Black in Conley v. Gibson (see case listed above, Pro Se Rights Section).

      Roadway Express v. Pipe, 447 U.S. 752 at 757 (1982) ~ "Due to sloth, inattention or desire to seize tactical advantage, lawyers have long engaged in dilatory practices... the glacial pace of much litigation breeds frustration with the Federal Courts and ultimately, disrespect for the law."

      Sherar v. Cullen, 481 F. 2d 946 (1973) ~ "There can be no sanction or penalty imposed upon one because of his exercise of Constitutional Rights."

      Schware v. Board of Examiners, United State Reports 353 U.S. pages 238, 239. ~ "The practice of law cannot be licensed by any state/State."

      Delete

Take Action Now!

Children's Rights Florida

Florida Family Law Reform

Family Law Community

Search This Blog

American Coalition for Fathers and Children

Means we use must be as pure as the ends we seek.

Abuse (7) Abuse of power (1) Abuse of process (5) Admission to practice law (3) Adversarial system (83) Advocacy group (3) African American (1) Alienator (1) Alimony (7) All Pro Dad (1) All rights reserved (1) Allegation (2) Alliance for Justice (2) American Civil Liberties Union (3) American Psychological Association (1) Americans (2) Anecdotal evidence (2) Anti-discrimination law (1) Arrest (1) Bar association (1) Best interests (42) Bill (law) (1) British Psychological Society (1) Broward County (1) Broward County Public Schools (2) Brown University (1) Catholic Church (1) Center for Public Integrity (2) Chief judge (26) Child Abuse (48) Child custody (78) Child development (6) Child neglect (2) Child protection (15) Child Protective Services (19) Child Support (64) Children (3) Children's Rights (83) Christine Lagarde (1) Christmas (3) Circuit court (3) Civil and political rights (14) Civil law (common law) (1) Civil liberties (9) Civil Rights (145) Civil rights movement (1) Class action (1) Communist Party of Cuba (1) Confidentiality (1) Constitutional law (1) Constitutional right (5) Contact (law) (11) Contempt of court (4) Convention on the Rights of Persons with Disabilities (1) Coparenting (28) Copyright (1) Copyright infringement (1) Corruption (1) Court Enabled PAS (92) Court order (2) Cuba (1) Cuban Missile Crisis (1) Cuban Revolution (1) Custodial Parent (1) Declaratory judgment (3) Denial of Reasonable Parent-Child Contact (110) Diagnostic and Statistical Manual of Mental Disorders (2) Divorce (124) Divorce Corp (6) Divorce Court (1) Documentary (25) Domestic Violence (51) Dr. Stephen Baskerville (5) Dred Scott v. Sandford (1) DSM-5 (1) DSM-IV Codes (1) Due Process (45) Due Process Clause (1) Dwyane Wade (1) Easter (1) Equal-time rule (2) Ethics (1) Events (10) Exposé (group) (1) Facebook (19) Fair use (1) False accusation (4) False Accusations (57) Family (1) Family (biology) (2) Family Court (198) Family Law (113) Family Law Reform (119) Family Rights (87) Family therapy (10) Father (12) Father figure (2) Father's Day (1) Father's Rights (12) Fatherhood (106) Fatherlessness Epidemic (4) Fathers 4 Justice (3) Fathers' rights movement (46) Fidel Castro (1) Florida (214) Florida Attorney General (7) Florida Circuit Courts (19) florida lawyers (30) Florida Legislature (6) Florida Senate (11) Foster care (1) Fourteenth Amendment to the United States Constitution (1) Fraud (1) Free Speech (1) Freedom of speech (1) Frivolous litigation (1) Fundamental rights (12) Gainesville (1) Gender equality (1) Government Accountability Project (2) Government interest (2) Grandparent (3) Havana (1) Healthy Children (14) Human Rights (119) Human rights commission (1) I Love My Daughter (56) I Love My Son (8) Injunction (1) Innocence Project (1) Investigative journalism (1) Jason Patric (2) JavaScript (1) Joint custody (8) Joint custody (United States) (16) Judge (5) Judge Judy (7) Judge Manno-Schurr (55) Judicial Accountability (103) Judicial Immunity (7) Judicial misconduct (8) Judicial Reform (3) Judicial Watch (2) Judiciary (3) Jury trial (1) Kids for cash scandal (1) Law (2) Lawsuit (9) Lawyer (8) Legal Abuse (150) Liar Joel Greenberg (16) Linda Gottlieb (1) Litigant in person (1) Little Havana (1) Marriage (6) Matt O'Connor (1) Men's rights movement (1) Mental disorder (1) Mental health (2) Meyer v. Nebraska (1) Miami (44) Miami-Dade County (8) Miami-Dade County Public Schools (1) Miscarriage of justice (42) Mother (4) Motion of no confidence (1) Movie (4) Music (8) Nancy Schaefer (1) National Fatherhood Initiative (1) Natural and legal rights (1) News (89) Nixa Maria Rose (16) Non-governmental organization (1) Noncustodial parent (4) Organizations (60) Palm Beach County (1) Parent (35) Parental Alienation (116) Parental alienation syndrome (15) Parental Rights (36) Parenting (12) Parenting plan (6) Parenting time (7) Parents' rights movement (38) Paternity (law) (1) Personal Story (22) Pierce v. Society of Sisters (1) Pope (1) Posttraumatic stress disorder (27) President of Cuba (1) Pro Se (30) Pro se legal representation in the United States (3) Prosecutor (1) Protest (1) Psychological manipulation (1) Psychologist (1) Public accommodations (1) Public Awareness (108) Raúl Castro (1) Re-Post/Re-Blog (12) Research (1) Restraining order (4) Rick Scott (12) Second-class citizen (1) Self Representation-Pro Se (31) Sexism (1) Sexual abuse (2) Sexual assault (1) Shared Parenting (92) Single parent (6) Skinner v. Oklahoma (1) Social Issues (59) Social Media (1) Spanish (8) Stand Up For Zoraya (47) State school (1) Student (1) Supreme Court of Florida (8) Supreme Court of the United States (5) Tampa (1) Testimony (23) Thanksgiving (2) The Florida Bar (10) The Good Men Project (1) Trauma (4) Troxel v. Granville (2) True Story (21) Turner v. Rogers (1) United States (26) United States Congress (1) United States Constitution (1) United States Department of Justice (4) Videos (51) Violence Against Women Act (1) Whistle-blower (3)