I'm not going to argue the point that Nancy Pelosi and Harry Reid are conclusive proof that humans can exist without benefit of a spine. I'm continually reminded that it could be worse.
But he who lives in a glass house should not get into the habit of throwing stones. And in the ACLU's own words, "Failing to protect the First Amendment is BAAAAAAAAAAD."
Don't get me wrong. When it comes to performing cheap parlor tricks designed to get you in the public eye -- like defending Drugs Limburger's medical records from criminal investigators -- the ACLU is the best in the business. But when it comes to juridicial practices shredding the First Amendment and affecting real people, they are quite often AWOL.
By way of example, in a letter submitted to the federal Committee on Rules of Practice and Procedure on January 28, 1994, the ACLU Foundation of SoCal observed that "ensuring a fair opportunity for pro se litigants, as well as poor litigants and their lawyers, to present their cases to the federal judiciary is an essential component of a just society." Yet, in a blatant and tawdry attempt to curry favor with influential Republican Ninth Circuit Judge Alex Kozinski, the Foundation performed a regular Divine Brown, advocating continuance of a pernicious policy that makes it virtually impossible for pro se and poor litigants to get a fair hearing in federal court.
Nonpublication: Creating a Legal Ghetto, One Decision At a Time...
As I commented on the practice of issuing unpublished opinions in Reclaiming the Constitution: Our Broken Courts, I'll only explain the problem in threadbare fashion. Whenever a judge is confronted by a set of facts in a case (In re Brown) that is materially identical to a case that was decided before (In re Smith), s/he is supposed to follow what the court did before (in In re Smith) -- a practice mandated by the equal protection component of the Fifth Amendment. As Justice Cardozo observed, "[i]t will' not do to decide the same question one way between one set of litigants and the opposite way between another." Cardozo, The Nature of the Judicial Process, 33 (1921).
A nonpublication regime enables a court to decide In re Brown differently than In re Smith, even where the facts are identical. It releases judges from the corset of stare decisis (the requirement that judges follow precedent), and liberates them from the discipline of having to write a coherent and persuasive decision that will stand the test of time. At the end of the day, the rationale behind a judge's decision is reduced to one of "Because I said so, that's why!" This is the oppressive and tyrannical regime the ACLU has openly championed.
This freedom to do whatever they damn well please is what Republican judges want.
...And How This Practice Denies Access to the Courts
The fundamental purpose of the Bill of Rights is to protect individual citizens from the depredations of government; if you can't enforce your rights in a court of law as a matter of right, they no longer exist. And to be brutally honest, in America, you only get as much justice as you can afford.
Recognizing that for the man of modest means, having a lawyer is often a luxury, Congress created a federal right to self-representation under 28 U.S.C. § 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.
What the statute doesn't require is that judges actually adjudicate those cases in a manner consistent with the rule of law. That is supposed to be covered by the Constitution itself.
Litigants in the United States District Court for the District of Colorado -- headed by a Republican chief judge, whose current claim to fame is for becoming so drunk in a titty-bar that he couldn't remember how he spent $3,000 -- who have tried to represent themselves have been systematically deprived of it by the conscious and coordinated actions of the Court. Indeed, they even openly admit it. By way of example, Magistrate Judge O. Edward Schlatter admitted, "since I've been here, in 12 years nobody who does not have a lawyer has ever proceeded to a trial and won. And that's out of 600 cases filed per year." Order Denying Pl’s Mot. To Recuse, Steiner v. Concentra, Inc., No. 03-N-2293 (Colo. Dist. Ct. Aug. 6, 2004) at 3.
When you do the math, it becomes readily apparent that something is seriously wrong. Roughly 10% of the District’s business is comprised of non-prisoner pro se cases. Administrative Office of the United States Courts, 2006 Annual Report of the Director: Judicial Business of the United States Courts. Washington, D.C.: U.S. Government Printing Office, 2007, at 99. That translates to roughly 3,500 pro se civil cases filed during Magistrate Schlatter’s career -- his "600 case" figure may well be accurate, if one counts pro se prisoner petitions (which are usually frivolous) -- and one is hard-pressed to find a civil case that even made it to trial.
According to the Department of Justice, [t]he percentage of tort cases concluded by trial in U.S. district courts has also declined from 10 percent in the early 1970s to 2 percent in 2003." Number of Federal Tort Trials Fell By Almost 80 Percent From 1985 Through 2003, United States Dept. of Justice, Aug. 17, 2005, at 1. As we are informed that plaintiffs prevailed in 48% of tort cases during the study period, id., and the overwhelming majority of pro se actions are in tort, the odds of this occurring by random chance are (1 - (.02*.52)) ^ 3500, or roughly one in 2,174,000,000,000,000. Moreover, as availability of alternative dispute resolution was cited as a contributing factor to the decline of jury trials, and this feature of the judicial system is unavailable to pro se litigants, the chances of a case going to the jury would be somewhat higher; in which case, the odds cited above would be understated (quite possibly, in the range of one in a quintillion or higher).
This shocking state of affairs could not have happened by random chance. To put this figure (one in two quadrillion) in perspective, the odds of a DNA match being in error are roughly one in a billion).
One factor we can safely rule out is ostensible pro se incompetence. Barristers' turf-protecting bluster to the contrary aside, pro se tort litigation is not the exclusive province of incarcerated inmates with entirely too much time on their hands. Complaints are routinely filed in propria persona by physicians, paralegals, law students, experienced lawyers, and even judges (e.g., Keohane v. Stewart, 882 P.2d 1293 (Colo. 1994)): people who possess intelligence and ability to read the law sufficient to recognize that their rights as citizens have been violated, and that the law exists to provide them with a remedy. Federal law is not so abstruse as to foreclose the possibility of a Ivy League-educated physician such as Dr. Steiner, law school graduates, and experienced attorneys like Beverly Mann, Mann v. Boatright, 477 F.3d 1140 (10th Cir. 2007), from representing their interests in court. For instance, all that need be demonstrated in a garden-variety civil rights case under 42 U.S.C. § 1983 is that plaintiff (1) had a federal right and (2) was knowingly deprived of that right by (3) a public official (4) acting in his or her official capacity.
The most plausible (and readily-documented) explanation for this state of affairs -- far too extreme to be dismissed as a statistical oddity -- is that judges in this Circuit have been committing felonies on an industrial scale, placing their fingers on the scales of justice for the purpose of disenfranchising pro se litigants. Professor Karl Llewellyn explains that judges routinely
manhandl[e] ... the facts of the pending case, or of the precedent, so as to make it falsely appear that the case in hand falls under a rule which in fact it does not fit, or especially that it falls outside of a rule which would lead in the instant case to a conclusion the court cannot stomach.
Karl Llewellyn, The Common Law Tradition: Deciding Appeals (1960) at 133.
Nonpublication makes the corrupt judge's job easier, by several orders of magnitude. They don't have to bother with pesky precedents, because they know that appellate courts are even sloppier than they are! As Judge Murnaghan of the Fourth Circuit openly admits, the second-class status of unpublished decisions invariably leads to third-rate decisions, adding that
...it is well known that judges may put considerably less effort into opinions that they do not intend to publish. Because these opinions will not be binding precedent in any court, a judge may be less careful about his legal analysis, especially when dealing with a novel issue of law.
Wilson v. Layne, 141 F.3d 111, 124 n.6 (4th Cir. 1998) (Murnaghan, J., dissenting).
The evidence shows only that Judge Murnaghan has a gift for understatement. Professors Merritt and Brudney demonstrate qualitatively that a non-publication regime inexorably results in judges deciding cases in accordance with the crooked cord of discretion. They found that, in effect, the most important factor in the success of an appeal of a labor law decision in the Eighth Circuit was the political leaning of the judge. Deborah J. Merritt and James J. Brudney, Stalking Secret Law: What Predicts Publication in the United States Courts of Appeals, 54 Vand.L.Rev. 71 (2001). As such, those consigned to the legal ghetto of non-publication are beyond the protection of the law, left at the tender mercies of martini-besotted judicial caprice. To the pro se litigant, the Bill of Rights isn’t even useful as toilet paper.
The ACLU's Me-Opia
Pro se litigants routinely raise legitimate and even cutting-edge issues that die an ignominious death, murdered by such dishonest phrases as "Appellant’s arguments are unavailing" and "It is impossible to make sense of this heap." Even when a written opinion is issued, it was written by a fresh-faced kid in law school, and is often unfit to line a birdcage. Judge Kozinski once described unpublished opinions as "inedible sausage" which is unfit for human consumption, but yet, litigants are forced to swallow them. Attorney Philip Mann asks what the ACLU doesn't have the cojones to:
In [Judge Kozinzki’s] words, "When the people making the sausage tell you it's not safe for human consumption, it seems strange indeed to have a committee in Washington tell people to go ahead and eat it anyway." True. But the real problem lies not with the committee but with the faulty sausage itself. If future litigants shouldn't have to consume the "sausage" of an ill-considered decision, why should the parties to that particular case have to eat it either?
Philip Mann, Citation To "Non-Precedential" Opinions To Be Permitted. It's About Time, IP Litigation Blog, Apr. 14, 2006, available at http://www.iplitigationblog.com (visited Dec. 31, 2006).
Taken together, our courts’ odious practices have eroded the rule of law to the point that our statutes only mean what a judge wants them to mean on a given day, and the average citizen has no reliable guide as to what the law is or what his rights thereunder are. Cf., The Federalist No. 62 (Alexander Hamilton). As Judge Robert Bork asserts, America is no longer a constitutional republic; it has become a regime, governed by a judicial oligarchy. Robert H. Bork, "Our Judicial Oligarchy," First Things 67 (Nov. 1996) at 21.
Robert Bork gets it. Even Robert-freakin-Bork gets it! But with felonies flying all around them, and an opportunity to take a principled stand, the ACLU chose to perform political fellatio on a Republican judge!
While there are people who have standing to criticize Reid and Pelosi, the ACLU is not among them.
To learn more about the problems with selective publication of appellate decisions, visit http://www.nonpublication.com.
To learn more about the crisis in the Tenth Circuit (and Colorado courts in general), visit http://www.knowyourcourts.com.