Topic: Justice
American Statement of Grievance on Government & Judiciary (Part 2 of 4) Thomas Jefferson could see the future.by Gary Trieste
(libertarian)
Wednesday, April 29, 2009
Once the rights of the individual were treated as almost sovereign and respected above all else, as it was written into our Constitution.
But now, after decades of individual liberty erosion, the rights of the collective are now considered superior, and are ceded a deference above those of any one person. This tendency, repeated many times over the years in controlling legal precedent, has slowly teased our society into a socialist mindset, spirit and practice. This quiescent tendency of belief is now normal and accepted, and it is the presumption and acceptance that all individual rights are only provisional, and are only granted solely at the discretion and benevolence of our governmental leaders. 3
We assert that without correction, this trend will lend itself to a slippery slope. As one set of injustices wrought becomes convention, it will become implicit foundation for the next set.
Without review and effective critique, as time goes on, these inequities will only become more entrenched and a part of the standard fare, a systemic cancer that will not budge, and we as a society will be left with nothing more than a changeling of what the American standards of justice once were. It will be a burden of unimaginable proportions and injustice to the people, and a bee-line toward tyranny.
The Particulars
Our observations and complaints as detailed above are not the results of guesses or supposition.
These grievances come about from our collective, arduous interaction and direct experience with the court systems, a culmination of many years of legal engagement with the various courts and adversarial entities ranging from individuals to corporations to governmental bodies; in controversies involving everything from tort law, civil rights, immigration, bankruptcies, and criminal proceedings.
Perspective has been gleaned in these matters in the crossing of the lines of administrative, small claims, bankruptcy, civil, and criminal cases, and noticing the various character and tone of the courts, depending on the issues and forum. We submit that occasionally justice is actually done when the judge is independent,4true to the law and attentive, but invariably the proceedings and case resolution suffer from the systemic problems outlined herein.
Throughout all the pleadings, motions, appearances, and interactions with the courts, we have noticed a series of disturbing and recurring symptoms surface in the course of the proceedings, which after review lead us to conclude they are expressive of the underlying systemic illness about which we complain.
Most probably not an exhaustive list, we consider these to be the worst offenses of the judiciary, that most insults our sense of due process and trust in the integrity of the judiciary.
Court Issuances Violative of Due Process:
1. Decisions with no deciding cause or justification
"Leave them guessing" orders:
Orders that have no finding of facts or law; orders, often summary and dispositive of the case, leaving a would-be appellant in the position of not knowing what or why he is appealing the case other than the sheer dismissal or denial. Sometimes these orders have a boilerplate language: "Upon consideration of the record it is so ordered", or a citing of the statute's standard of proof which is asserted to be unmet, or equivalent.
In the case of appellate courts, orders of affirmance (or even sometimes remand) without opinion, or with summary point assertions and no analysis.
It should be noted that all these types of decisions are in fact in violation of the federal statute Rule 52(a) F.R.Cv.P., which mandates that any decision issued by a judge be justified by an accompanying finding of fact and law. However this law is widely and systematically ignored by the courts.
2. "Hidden" or sealed decisions
Justice for one, not for all:
Particularized memorandum decisions, where the court issues a ruling with the caveat that the findings, analysis and applicable law cannot be used as legal precedent in any other case, nor to be cited or referred to in any other case.
This practice undermines the whole intent of equal protection, as well as public trial/proceedings mandates. It permits another court in the same jurisdiction, in another case, the ability to rule differently on the exact same facts and circumstances.
3. "Pending" decisions, and case resolution
Justice delayed is justice denied:
Where an interlocutory or dispositive decision is awaiting issuance from the court before the case can proceed, and does not get handed down for long periods of time, e.g., 9 months, 18 months, or even years.
It is this tendency of the courts, more than anything else, that causes cases to drag on for years, clogging our case dockets and causing a conjugation of further delays; instead of the quick resolution that would normally occur if the court responded within a reasonable time for review (30 days at most) 5 on motions, the courts take their own sweet time, limited by no fixed duration or self-discipline.
4. "Ghost" written decisions
Delegated Justice:
Although vehemently denied as happening, as would be expected, the issuances of decisions and memorandums crafted and authored by judge's underlings - chamber's clerks, assistant staff attorneys, etc. - with only the judge signing off on it.
Such decisions are delegated to staff when the judge already has his mind made up as to the prevailing party, and either is too busy to analyze the case or too lazy to do so himself, so he gives the case file to the subject ghost writer and directs him to compose a memorandum justifying the given denial or granting of the order.
5. Copy cat decisions
Transliteration is the sincerest form of slothery:
Decision memorandums that so closely follows the argument, logic and text of the prevailing party so as to be considered a literal transcription of that party's brief. This begs the question, if the court thought the party was that correct, then why wasn't the case resolved on summary motion?
Such a ruling shows no independent decision or thought on the part of the court, and probably reveals an instance of Point 4 above.
6. Default Judgment refusal
The unattainable judgment:
Peculiar to the federal judiciary (although common to some other jurisdictions as well) is the sheer allergy of the courts to the issuance of default judgments (or findings) on points of controversy, or of case disposition.
The statutes provide simply that if a party fails to respond to an assertion on motion or a summons & complaint, the court is to rule in favor of the moving or summoning party; see Rule 55 and Rule 8(d) F.R.Cv.P.
It appears however, from case law and from experience, that no matter how violative an adversarial party is of answering summonses and complaints, no matter how egregiously the party disregards the summons and time constraints therein, despite uncontroverted proper service of a lawsuit or motion, the courts simply refuse to issue a default judgment to the moving party, preferring to give the defaulting party far more than the benefit of the doubt, accepting any excuse, and denying any motion for default judgment.
This practice extends to intra-case dynamics where a responding party simply refuses to defend or address a point raised or asserted on motion, and the court, instead of automatically granting that point of controversy to the moving party, still considers it unresolved.
Such neglect as to the precepts and mandate of the applicable statutes, only serve to delay, extend, draw out the proceedings and case duration, and reward non-responsive answers or replies in the pleadings; see Point 3 above.
Court Trends Transgressive of Equal Protection and Due Process:
1. The Eradication of Brightline Rules of Law
The reliability of written law, in meaning what it says and saying what it means, has suffered to the detriment of all.
Modern court jurisprudence treats plainly written law as if it were a mystical tongue, unreadable on its face, requiring predigestion of each component term and of needing reassessment as a whole. Alternatively, it is treated as a rhetorical suggestion, as if the text only provides a generalized guide as to what is actually stated.
There was a time when the law was comfortably replete with definite on-point directives and succinct elements of proof or touchstone. Therefrom, the courts respected it as such, relying on the statute as it was put down - not double-guessing the intent, nor attempting to generalize its meaning beyond what was written.
Such laws as effected and interpreted, gave actual and substantive notice to civil and criminal parties that an applicable law would reliably lead to a point of decision, and could be depended upon as a pivotal point in legal argument and case dynamics.
Since then however, through a complicit combination of lazy (or noncommittal) legislators, and precedent case law utilizing creative leaps of judicial interpretation,6 the trend has been inexorably drifting towards the effectuation of polymorphic laws and rules of procedure-- laws, that although written one way, could mean just about anything depending on fickleness of the circumstance.
Newly enacted laws, as of late, are rarely finished or complete, and by design give such great "wiggle room" that judges are compelled to fill in the blanks and substitute their own individualized interpretations, depending on the arbitrary circumstances, so as to make sense of what exactly the subject law means. 7 Unfortunately this usually results in law of the worst kind, legislated at the bench, where considerations of facts and circumstance unrelated to the case at bar become controlling. 8
The other side of the same coin occurs where the courts of precedential authority have combined to reinterpret obvious (and even historically treated) brightline rules of law into much more muted and unmoored facsimiles of their former incarnations.
Both sources of this trend have served to permit the judiciary to reinterpret the law in virtually any way it feels like at the time, introducing unwritten exceptions to the rule, guided only slightly by the written law, regardless of what the actual text of the subject law may explicitly state.
This leads once again to the qualitative degradation of judicial decisions, the lack of dependability of those decisions for all similar circumstances, and renders suspect our courts as animpartial forum for conflict resolution.
As aforementioned, when brought to its logical conclusion, such treatment of the law results in a system not dissimilar to the Chinese judiciary, where there are no codified laws, and the courts find the law based upon the issuances of current authoritative sentiment or proclamation.
2. Pro Se Prejudice
Although it has been recognized by the U.S. Supreme Court that a litigant has an absolute right to prosecute or defend his own case in civil and criminal matters,9 and that such a litigant must be given latitude in the technical form of the court submissions (i.e. the court should not hold pro se litigants to the same standards as to court procedure and forms not related to the substance of the claim),10 on the average, the courts still let the status of the litigant affect their substantive rulings on the matters before them.
The courts treat these litigants like an unruly son, worthy of one who breaches the rule "any one who represents himself has a fool for an attorney/client", and one who would be taught a lesson not to play with forces he does not understand.
There is a not-so-subtle presumption that not only is the pro se litigant ignorant of what he is doing procedurally, but that the litigant neither knows the law well enough to have a real claim beneath the surface of the pleadings. His submissions are read with a dismissive demeanor and not taken seriously or with any acute responsiveness.
3. Erosion of the vitality and plain language of the U.S. Bill of Rights
With the notable exception of the First Amendment to the U.S. Constitution (and perhaps the Third), almost to the word, every amendment to the U.S. Constitution has been re-interpreted and effectively emasculated from the powers and inherent rights it grants to the People, and from what it plainly states.
Like an old grandparent one is obligated to honour but who is actually considered dated and infirm, the courts treat the Constitution with a jaundiced respect, recognizing its authority in theory, but dismissing any direct conclusions stemming from its mandates as too impractical to entertain. Instead, statutory law is given de facto precedence over it, and wherever there is a conflict between them, statutory law usually prevails.
Footnotes:
[3.Like many prior civilizations, while the government keeps the public trust, or at least respect, it thrives with the full verve and participation of the populace; as it begins its systemic decay and decline, serving the oligarchy ever so much more obviously at the expense of the populace, its public respect is replaced with resentment and disdain. Consequently, in order to maintain an illusion of cohesiveness, such regimes commence the descent of all failed societies, replacing popular voluntary participation in the society with forcible coercion of the people to conform with intolerable conditions. These regimes last an average of 30 years before collapsing on their own hypocrisies.]
[4.We say this with admiration for such judges, even when we lose the case. If the judiciary were populated with such independent judges the system would not be in the sorry state it is headed. Final resolution of the cases are often reliant on juries. Juries, although theoretically independent, are heavily influenced by the judge's persona and demeanor, as are what they are permitted to know, legally and factually, by the judge.]
5.This penchant for taking its own time is compounded by the unreasonable patience and tolerance of the courts for frivolous requests for time extensions, and the permitting of the parties to play back and forth on the same issue that either was already resolved once on previous motion, or should have been by a defaulted response.
6.Or perhaps it is simply the trend to make the law mean whatever is convenient for it to mean, regardless of what is actually codified. Another instance of leaders maintaining flexibility in their court system; see 2 supra.
7.It might be noted that even in the rare instance where a brightline rule of law still exists, the appellate courts are still loathe to remand a district court's erroneous breach of its mandates.
8.Such as which litigant is socio-politically more powerful, what the political fallout will be if the decision is criticized, what pragmatic effect the decision will have on other cases or social causes external to the case at hand.
The views expressed in this
article are those of Gary Trieste only and do not represent
the views of Nolan Chart, LLC or its affiliates. Gary Trieste is
solely responsible for the contents of this article and is not an
employee or otherwise affiliated with Nolan Chart, LLC in his/her role as a columnist.
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Once the rights of the individual were treated as almost sovereign and respected above all else, as it was written into our Constitution.