Judicial Conduct - More Transparency
One judge sexually harassed an employee. Another pleaded guilty to drinking and driving. And a part-time judge heard a case involving a client of his firm. Those are some of the examples of misconduct cited by Colorado's Commission on Judicial Discipline. But the commission won't reveal the identity of judges accused of misconduct or what happens to complaints against them unless they reach the most serious level - a recommendation to the state Supreme Court to discipline a judge. That hasn't happened in Colorado since 1986, when William L. Jones, a district judge, was publicly reprimanded for delaying a decision on a case. The cloak of secrecy under which the disciplinary system operates puts Colorado in the minority - along with just 14 other states and the District of Columbia. "There is a 'trust me and stop asking questions' attitude," said John Andrews, former president of the Colorado Senate and one of the most outspoken critics of the state's judicial system. "Trust me and shut up. That's sort of the message that lawyers and judges send to the public." Colorado's Commission on Judicial Discipline was set up in 1966 to police the district court level of the judiciary and below. Citizens, judges and attorneys sit on the 10-member panel.
Rocky Mountain News
3 comments:
Those of us who are still trying to do something about this problem would like your input. Visit http://home.earthlink.net/~19ranger57/initiative3.pdf for a precis on the soon-to-be-proposed Judicial Accountability Act of 2008, and http://www.knowyourcourts.com for a thorough examination of the problems with our current system.
What really happens to the ordinary person, who files a case of great importance to him/her or of great importance to society from a civil rights perspective[n.1] and, who does so because of his or her faith in the rule of law and the belief that the purpose of the civil law is to provide for redress as the only alternative to inappropriate self help? As with all of my posts, my contentions are supported by real documents and statements --this time, from the judges, themselves.
This post is about the right to prosecute one's own case in court, especially when the resources to underwrite a major litigation initiative (against "towne hall" or well-heeled corporate interests) are unavailable, because one is not independently wealthy.[n.2]
These observations, which cause consternation among both lawyers and jurists alike (who would rather not acknowledge a problem or promote any change to their lucrative industry), should not be taboo: I note that many of these jurists pay sanctimonious lipservice 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." [n.3] They give annual state of the judiciary addresses 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. At CLEs (training for attorneys), there is less emphasis on such lofty platitudes (for public consumption) and there is more candor about their pragmatic concerns.
However, the truth is where the rubber meets the road --what happens in real cases with real people.
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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 some-thing else. Anyone churlish enough to complain about such a job, any-one who —asked so little— would fail to give every case, regardless of whether it's handled by a successful attorney or a prison inmate, full consideration, is an ungrateful lout.
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—Justice Wlm. W. Bedsworth, IMPROPER PERSONA, 45-Nov. O.C.LAW 40 (Nov. 2003) [emphasis added].
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 he assistance of a lawyer."
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.[n.4] Civil 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.
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.[n.5]
In another blog, I 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 attorney Polster, Oh-Wilike, with a profession to defend,[n.6] has denied this is so. ("They aren't systematically discriminated against." --click here) In support of his contention, he cited to examples, like Kay Sieverding. If all pro se cases were like hers, how could anyone argue? So, the question is: Are all pro se litigants like Kay Sieverding? What are the odds? What are the numbers?
In a comment several weeks ago, 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-Wilike said, "With all due respect, 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 his comment 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 to take Suzanne Shell's word for anything, because I came into possession, just today, of an Aug. 8, 2004 order from Steiner v. Concentra by U.S. magistrate judge Edward Schlatter. I think I'll go ahead and take his word for it --unless someone suggests he's not a very credible source, either?
"In cases where plaintiffs are proceeding without a lawyer, district judges typically will refer such cases to a magistrate judge for case management, for settlement conferences and for "recommendations" on motions to dismiss or for summary judgmentIf a party objects to one of my recommendations, Judge Nottingham must reconsider any motion to dismiss or for summary judgment the same as if I made no recommendation at all, and he is free to reach any conclusion on the motion that he deems appropriate.
"Approximately 2,500 to 3,000 cases are filed here each year. That is the number of cases that are divided up among the district judges. Of that total number of cases that are filed, approximately 600 each year are cases that are filed by litigants without counsel.
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"I then informed plaintiff that she would be well-advised to obtain a lawyer to assist her in this matter, because my magistrFate judge colleagues and I cannot recall a single case in which a pro se litigant has proceeded all the way through a case, obtained a jury trial and received a favorable verdict. Our memories may be inaccurate, but, if so, they are inaccurate only by a very, very few individuals, and, if such exceptions exist, we 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.),[n.7] let's 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 conduct themselves like Kay Sieverding. Rather, they never make it that far, because:
>>As Magistrate Schlatter acknowledged, all such cases are swatted aside and deferred 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”).
>>A district judge almost never overturns any magistrate judge's recommendations (just ask any "decent" appellate attorney in Colorado (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 on those pro se cases that weren't worth the Article III judge's attention, to begin with.
>> Article III judges don't perform the de novo review of the portion of the recommendations that had been objected to, as Schlatter most disingenuously misrepresented. For example, in the Harrington v. Wilson case, Judge Nottingham simply struck the objections, because he didn't want to perform de novo review. In fact, he was in such a rush to not have to deal with the merits of the case that, prior to that, he had already dismissed the case before the time for filing the objections had run. This error was, of course, not addressed by the Tenth Circuit in its decision regarding that case. 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.[n.8] It's also worth mentioning here that Magistrate Wantanabe has been a speaker for one of the Harrington defendant's lobbying group. (click here).
>>"[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.' " [n.9]
In conclusion, a reasonable, objective reading of the 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.
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[n.1] Rob't L. Tsai , Conceptualizing Constitutional Litigation as Anti-Government Expression: A Speech-Centered Theory of Court Access, American University Law Review, Vol. 51, Pg. 835, June 2002
[n.2] See, e.g., Amy Robertson, The Pro Se Project: A Dissenting View (1999) ("defendants who decide to fight you will fight hard and they generally have lots of money to spend to defeat you. Without a lawyer you face the possibility of incurring enormous expense")
[n.3] Quote attributed to Professor Michael Mullane during his June 5, 2006 interview with NPR.
[n.4] Andrews v. Bechtel Power Corp., 780 F.2d 124 (1st Cir. 1985); O'Reilly v. New York Times Co., 692 F.2d 863 (2nd Cir. 1982).
[n.5] See Faretta v. California, 422 U.S. 806 (1975), Arizona v Fulminante, 499 US 279 (1990); McKaskle v Wiggins, 465 US 168 (1984); and Sullivan v Louisiana, 508 US 275 (1993).
[n.6] See Robertson, supra ("I must start with background and a disclaimer: I'm a [Denver] lawyer who practices disability rights law, so I have a natural bias in favor of hiring an attorney").
[n.7] I mention that this pro se plaintiff was a doctor, to demonstrate that not all such plaintiffs are like Kay Sieverding. For examples of how pro se parties are treated in Colorado state courts, see Yale grad / Denver doctor Bryan Spofford's story (click here) and his affidavit (click here).
[n.8] Northington v. Marin, 102 F.3d 1564, 1570 (10th Cir. 1996).
[n.9] John Bronsteen, Against Summary Judgment, Geo. Washington L. Rev. (2007) (quoting Class Action Lawyers Doubt Provisions in Legislation Aimed at Curbing Abuses, 72 U.S.L.W. (BNA) 2593 (Apr. 6, 2004) (quoting Judge Frederick Motz of the District of Maryland).
My legal problems started with former Colorado judge Joel Thompson and James Garrecht. Joel Thompson lost his office after the DEA investigated him for living witih a cocaine dealer. I think he was blackmailed to hurt me by parties who knew that he was living with a cocaine dealer.
Judge James Garrecht ruled in a low process domestic abuse hearing that I had molested my former neighbor Jane Bennett. However, I was not accused of molesting Jane Bennett and had no opportunity to defend on those charges. Jane Bennett testified under oath that there was no offensive touching, that I hadn't followed her around town, and that I hadn't called her in years. On the day that I supposedly molested her, we were either in separate cars or we were 30 feet apart while she was with her husband and two construction workers.
I alleged in my federal court case, 2-1950, that the purpose of her lawyer Randall Klauzer claiming that I molested her was to cover up the fact that she and her husband were building in violation of the development code, that Mr.Klauzer had subordened perjury, that her husband had been convicted of possession of cocaine with intent to sell (D of N Cal), and that her husband threatened to shoot the family of someone who wanted to buy my former property. The lawyer for both Klauzer and Jane Bennett, Traci Van Pelt, and the lawyer for Kevin Bennett, David Brougham, did not deny any of those allegations. Their only defense was "immunity" and res judicata based on a rule 41 dismissal. Their only legal authority for attorney immunity was former Magistrate Schlatter and they billed for a three way ex parte conference with Magistrate Schlatter, David Brougham, and Anthony Lettunich. The Supreme Court ruled in Semteck v. Lockheed Martin that rule 41 dismissals do not cause claims preclusion. The defendants sent me bills for over 25 ex parte conferences. If you email me at kay.sieverding@gmail.com I will email you scans of bills for defense conferences. They can also be downloaded at D of Colorado 02-1950 docket entry 4/12/07. I also have a scan of a letter written to Judge Nottingham by a defense attorney asking him not to have summary judgment hearings and to have his clerk call her at her private number. Also, Magistrate Schlatter issued an order on 1/9/07 saying that he had discussed the case with defense attorney David Brougham.
The last time I looked at the Routt County tax assessors data base for Kevin and Jane Bennett at 701 Princeton Ave in Steamboat Springs, it said that the property had a house built in 1956 and described no other buildings. But if you go to the property it clearly has 4 buildings and the Routt County Building department shows that the "guest house" has a bathroom and kitchen. There is another building that is 2009 square feet, central heating, a bathroom and is two stories that was built in 2000-2001. Neither of these buildings nor the 4th were on the tax rolls the last time I looked. Doesn't that also support my assertion that the Bennetts were building in violation of the zoning and were allowed to do so because Kevin Bennett was president of the city council? In Colorado, citizens supposedly have standing to stop their neighbors from building in violation of the zoning and development code. But when I complained that the Bennetts were building in violation of the development code, Randall Klauzer claimed I didn't have standing. That's when he said I molested Jane Bennett.
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