8th Circuit Judicial Complaint

Don Hamrick 5860 Wilburn Road Wilburn, Arkansas 72179 (501) 728-4235 Direct Email: [email protected]

Judge George Howard U.S. District Court for the Eastern District of Arkansas, Little Rock

XX

SEE ATTACHED LETTER. U.S. District Court for the Eastern District of Arkansas, Little Rock

No. 1:06-cv-0044 XX

Unrepresented Civil Plaintiff (pro se) SEE ATTACHED LETTER.

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But, I am very tempted.

In the event that I do file a lawsuit against Judge George Howard it will be a Civil RICO Act Complaint (18 U.S.C. 1964(c)) Extortion of Filing Fee (18 U.S.C. § 872) In Violation of Seaman’s Exemption (28 U.S.C. § 1916), as a Predicate Act of Racketeering under 18 U.S.C. § 1961(1)(A)

SEE ATTACHED LETTER.

XX

Don Hamrick

Thursday, January 25, 2007

5860 W ilburn Road, Wilburn, Arkansas 72179; cell phone: (757) 472-1776; Email: 4donhamrick@ gmail.com

Complaint of Extortion Against Judge George Howard U.S. District Court for the Eastern District of Arkansas in Hamrick -v- United Nations, Case No. 1:06-cv-0044 Judicial Council of the Eighth Circuit. U.S. Court of Appeals for the 8th Circuit 111 S. 10th Street, Room 24.329 St. Louis, MO 63102

This Unrepresented civil Plaintiff with a potential case of first impression is treated as a second class citizen with no First Amendment right to petitition the government for redress of grievances.

TO THE CHIEF JUDGE: If it is true that I am in the position to act as a PRIVATE ATTORNEY GENERAL 1 simply because I am an unrepresented civil plaintiff with a Civil RICO Act case against the U.S. Government (and now against the United Nations) then the federal judicial system and the agencies of the U.S. Government should be treating my case with dignity and respect to the rule of law than what I have suffered this past four years. I am submitting my complaint against Judge George Howard of the U.S. District Court for the Eastern District of Arkansas for engaging in conduct prejudicial to the effective and expeditious administration of the business of the court on allegation of unlawfully extorting2 the Court’s $350 filing fee from me, a fully documented U.S. Merchant Seaman in violation of the Seamen’s Suit law,3 on September 11, 2006 at the U.S. District Court for the Eastern District of Arkansas, Little Rock. Claim No. 8 in Volume 4 Amended Complaint of my Civil RICO Act Complaint will force Judge Howard to recuse himself because Claim No. 8 includes him as an extortionist of exempted filing fees in violation of 28 U.S.C. § 1916. It was a case of using a righteous dirty trick as a PRIVATE ATTORNEY GENERAL to counter a malicious dirty trick by an unconscionable judge.

1

CASE LAW: “The object of civil RICO is thus not merely to compensate victims but to turn them into prosecutors, ‘private attorneys general,’ dedicated to eliminating racketeering activity.” Rotella -v- Wood, 528 U.S. 549, 557 (2000); Cited in David F. Herr, A NNO TA TED M A NU A L FO R C O M P L EX L ITIG A TIO N , Fourth Ed., 2006, Chapter 35.1, p. 792, pub. Thomson-West. 2

18 U.S.C. § 872. Extortion by Officers or Employees of the United States

“Whoever, being an officer, or employee of the United States or any department or agency thereof, or representing himself to be or assuming to act as such, under color or pretense of office or employment commits or attempts an act of extortion, shall be fined under this title or imprisoned not more than three years, or both; but if the amount so extorted or demanded does not exceed $1,000, he shall be fined under this title or imprisoned not more than one year, or both.” 3

28 U.S.C. § 1916. Seamen’s Suits

“In all courts of the United States, seamen may institute and prosecute suits and appeals in their own names and for their own benefit for wages or salvage or the enforcement of laws enacted for their health or safety without prepaying fees or costs or furnishing security therefor.”

1

Excerpted from Volume 4 Amended Complaint of my Case No. 1:06-cv-0044 at the U.S. District Court in Little Rock is my CLAIM NO . 8. S ELECTED U.S. F EDERAL C OURTS E XTORTED

(18 U.S.C. § 872) E XEMPTED F ILING F EES (28 U.S.C. § 1916) TO THE A MOUNT OF $1,615 S TANDING IN V IOLATION OF A RTICLES 11, 19, 30, AND 34 OF THE U.N. C ONVENTION A GAINST C ORRUPTION:

Even though my case fits the safety requirements stipulated under 28 U.S.C. § 1916, Judge George Howard of this Court wrongfully denied my statutory right as a seaman to file my Civil RICO Act Complaint without pre-paying the Court’s filing fee as a seaman under 28 U.S.C. § 1916 compelling me to pay the Court’s $350 filing fee. Compounding the Court’s misconduct the Court Clerk violated my right as a seaman under 28 U.S.C. § 1916 and under Rule 4(c)(2) of the FEDERAL RULES OF CIVIL PROCEDURE to have the U.S. Marshals Service perform the Service of Summons and Complaint on my behalf as a seaman Plaintiff on the pretext that the Court did not have the storage capacity for the defendants’ copies of the Plaintiff’s 3-volume plus one addendum Complaint. The Court Clerk instead required me to take the copies of the complaint (4 large boxes) home (60 miles North of Little Rock) and then return to the Court when Judge Howard would grant the Plaintiff’s Rule 4(c)(2) Motion. Finding that procedure inexcusable I took the copies of the Complaint (all 4 boxes) home and mailed them to the defendants by certified U.S. Mail. The Plaintiff cites as comparative evidence that the seamen’s statutory right under 28 U.S.C. § 1916 are not given the same respectful regard in every Court of the United States, up to and including the U.S. Supreme Court: (1) the U.S. District Court for the Eastern District of Arkansas extorted the Court’s filing fee from the Plaintiff in the amount of $350. (2) the U.S. Court of Appeals for the DC Circuit extorted its filing fee from the Plaintiff on several appeals in the amount of $465. (3) the U.S. Supreme Court twice extorted its filing fee from the Plaintiff in the amount of $600. (4) PACER Monthly Fees in the amount of $348. (5) the total amount of the above extorted filing fees in violation of 28 U.S.C. § 1916 = $1,763.4 (6) the U.S. District Court for the Western District of North Carolina, Charlotte Division, and the U.S. District Court for the District of Columbia DID NOT EXTORT their filing fees from the Plaintiff because they OBEY THE FEDERAL LAW UNDER 28 U.S.C. § 1916 and allowed me to file my cases without paying their filing fee.

4

Corrected amount from that shown in Claim No. 8 in Volume 4 Amended Complaint.

2

I have tried every means available to get the extorted filing fees returned but to no avail. The FBI won’t even respond to my criminal complaint or inquiries into this matter. I construe the above incidences as a predictive propensity of this [District] Court for judicial bias against the Plaintiff’s case. And because I construe the [District] Court to be a corrupt court in league with the federal courts in Washington, DC, I filed my PETITION 1142-06 alleging human rights violations against the United States with the INTER AMERICAN COMMISSION ON HUMAN RIGHTS located in Washington, DC. They oversee the INTER -AMERICAN COURT ON HUMAN RIGH TS located in Costa Rica. This action is compliant with Article 33.1 of the United Nations Charter. United Nations Charter, Article 33.1: The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. United Nations Charter, Article 52.1: Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security5 as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations. However, as a non-state actor, (a term used by the United Nations), I find that the purpose of my federal litigation is not consistent with the Purposes and Principles of the United Nations under Article 52 of the U.N. Charter in regard to the United Nations PROGRAMME OF ACTION TO PREVENT , COMBAT AND ERADICATE TH E ILLICIT TRADE IN SMALL ARMS AND LIGHT WEAPONS IN ALL ITS ASPECTS (UN Document A/CONF.192/15) Because I do not have trust in Judge Howard [to] properly adjudicate this case I initiated a human rights case against the United States Government in accordance with Article 33.1 of the U.N. Charter and under Article 8 of the Genocide Convention for violation of Article 3(e), Complicity in Genocide, of the Genocide Convention by filing Petition No. 1142-06 with the INTER -AMERICAN COMMISSION ON HUMAN RIGH TS in Washington, DC. The central point of my PETITION 1142-06 which has now become the central point in this case before the U.S. District Court in Little Rock, Arkansas, puts the Second Amendment of the Bill of Rights to the United States Constitution on international judicial review for its proper role in the prevention of genocide within the United States.

5

Plaintiff’s emphasis questioning which has greater importance to the People of not only the United States but to the People of the other 191 Foreign States of the United Nations. “International peace and security” or American style “international freedom and liberty?”

3

I am curious to know what are the guidelines for a PRIVATE ATTORNEY GENERAL that an unrepresented civil plaintiff can use so that his case will be taken seriously by the bench and bar of the federal judicial system. The remaining pages are supporting evidence under Rule 406, HABIT, ROUTINE PRACTICE, of the Federal Rules of Evidence of a corrupt federal judicial system. Sincerely,

Don Hamrick

Courtesy Copy delivered to the FBI, Washington, DC and Little Rock, Arkansas as a "PRIVATE ATTORNEY GENERAL" Complaint. I want to see if the FBI considers extortion by a judge, 18 U.S.C. § 872, of an exempted filing fee from an American merchant seaman, 28 U.S.C. § 1916, and if withholding evidence vital to my RICO Act case in Washington, DC, by the U.S. Department of Justice as serious crimes worth investigating and prosecuting -or- if they will ignore my complaint because I am an unrepresented civil plaintiff with a Civil RICO Act case against the U.S. Government. I want to learn whether the FBI places greater value in institutional protectionism than in constitutional protectionism. I want to see if a "Private Attorney General has any real power under the Tenth Amendment's separation of powers (i.e., power reserved to the People). I want my hard earned $1,763 back!!

4

United States District Court for the Eastern District of Arkansas, Northern Division 1, Batesville, Arkansas Don Hamrick 5860 Wilburn Road Wilburn, AR 72179 PLAINTIFF v. President George W. Bush White House 1600 Pennsylvania Ave. Washington, DC 20500 Michael Chertoff, Secretary Department of Homeland Security Washington, DC Secretary U.S. Transportation Security Administration Washington, DC Commandant (G-C) U.S. Coast Guard Washington, DC

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Is there any interest in justice? Or does corruption and judicial activism govern the rule of law? 28 U.S.C. § 1402(a)(1) 28 U.S.C.§ 1404(a) 18 U.S.C. § 1964(c) 42 U.S.C. § 1983; § 1985; § 1986; § 1988

1:06-cv-0044 Civil Action No. _______________ Jury Trial Demanded Damages Sought: $9 million

) ) ) ) ) ) Dennis Barghaan ) U.S. Attorney’s Office ) 2100 Jamieson Ave. ) Washington, DC 22314 ) ) Anthony Campos, Dep. Marshal ) U.S. Marshals Service ) 333 Constitution Ave., NW ) Washington, DC ) ) )

Nine Justices U.S. Supreme Court 1 First St., NE Washington, DC 20543

(1) Judge Reggie B. Walton (2) Judge Ellen Segal Huvelle (3) Calendar Committee U.S. District Court for DC 333 Constitution Ave., NW Washington, DC Chief Judge U.S. Court of Appeals for the DC Circuit 333 Constitution Ave., NW Washington, DC DEFENDANTS

JUDICIAL N OTICE OF A DJUDICATIVE FACTS S EAMEN’S S UIT LAW 28 U.S.C. § 1916 THE PLAINTIFF IS EXEMPT FROM FILING FEES, COURT COSTS, AND PACER FEES BECAUSE HE IS A U.S. SEAMAN

SEAMAN ’S SUIT UNDER 28 U.S.C. § 1916: PLAINTIFF IS EXEMPT FROM FILING FEE , COURT COSTS , & PACER FEES 28 U.S.C. § 1916 states: “In all courts of the United States, seamen may institute and prosecute suits and appeals in their own names and for their own benefit for wages or salvage or the enforcement of laws enacted for their health or safety without prepaying fees or costs or furnishing security therefor.” The Plaintiff is a U.S. Seaman as indicated by Figure 1 agove. The Plaintiff’s case is undeniably about safety for the U.S. Merchant Seaman in the maritime environment and in open society in the United States. The legislative history of the Seamen’s Suit Law does not subject itself to arbitrary imposition of en forma pauperis filing to qualify for the statutory exemption. To imposes such conditions is an unconstitutional act of prior restraint of a statutory right. It cannot be sustained that Congress giveth a statutory right and the Courts taketh it away by judicial fiat. That fiat invokes the Doctrine of Unconstitutional Conditions. HISTORICAL AND REVISION NOTES ON THE SEAMAN ’S SUIT LAW June 12, 1917, ch. 27, Sec. 1, 40 Stat. 157 (H.R. 11; Pub.L.No. 21: An Act Making appropriations for sundry civil expenses of the Government for the fiscal year ending June thirtieth, nineteen hundred and eighteen, and for other purposes.) — Provided further, That courts of the United States shall be open to seamen, without furnishing bonds or prepayment of or making deposits to secure fees or costs, for the purpose of entering and prosecuting suit or suits in their own name and for the own benefit for wages or salvage and to enforce laws made for their health and safety. July 1, 1918, ch. 113, Sec. 1, 40 Stat. 683 (H.R. 12441; Pub.L.No. 181: An Act Making appropriations for sundry civil expenses of the Government for the fiscal year ending June thirteenth, nineteen hundred and nineteen, and for other purposes.) — Provided, 6

That courts of the United States, including appellate courts, hereafter shall be open to seamen, without furnishing bonds or prepayment of or making deposit to secure fees or costs, for the purpose of entering and prosecuting suit or suits in their own name and for their own benefit for wages or salvage and to enforce laws made for their health and safety. June 25, 1948, ch. 646, 62 Stat. 955 (H.R. 3214; Pub.L.No. 773: An Act: To revise, codify, and enact into law title 28 of the United States Code entitled “Judicial Code and Judiciary”) — 28 U.S. 1916: In all courts of the United Stats, seamen may institute and prosecute suits and appeals in their own names and for their own benefit for wages or salvage or the enforcement of laws enacted for their health or safety without prepaying fees or costs or furnishing security therefor. Case Law “The due process clause forbids arbitrary deprivations of liberty; where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, the minimal requirements of the clause must be satisfied.” Goss v. Lopez, 419 US 565, 95 S.Ct. 729, 42 L.Ed. 725. “When those fundamental rights which are recognized and declared, but not granted or created, by the Constitution, are thereby guaranteed only against violation or abridgment by the United States or by the states, and cannot therefore be affirmatively enforced by Congress against unlawful acts of individuals, yet every right created by, arising under, or dependent upon, the Constitution of the United States, may be protected and enforced by Congress by such means and in such manner as it may deem best.” Logan v. United States 144 US 263, 12 S.Ct. 617, 36 L.Ed. 429. “If not warranted by any just occasion, the least imposition is oppressive.” Mountain Timber Co. v. Washington, 243 US 219, 37 S.Ct. 260, 61 L.Ed. 685. “The constitutional guaranty of rights and immunities to the citizen insures to him the privilege of having those rights and immunities judicially declared and protected.” Lawrence v. State Tax Commission, 286 US 276, 52 S.Ct. 556, 87 ALR 374, 76 L.Ed. 1102.

Respectfully submitted,

Don Hamrick

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Case 4:06-mc-00026-GH

Document 4

Filed 08/15/2006

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

DON HAMRICK

v.

PLAINTIFF

No. 4:06MC00026 GH

PRESIDENT GEORGE W. BUSH, ET AL.

DEFENDANTS

ORDER On August 11th, plaintiff filed a motion for leave to file a 2000-page civil Rico Act complaint in book form,1 a motion to expedite case, and a judicial notice of adjudicative facts exempting him from filing fees, court costs, and PACER fees because he is a United States seaman under 28 U.S.C. §1916. In support of his notice of exemption, he has submitted a photocopy of his U.S. Merchant Mariner’s Document reflecting his name, address, and picture and his argument that his case is about safety for a seaman in the maritime environment and in open society in the United States. Plaintiff continues that the legislative history of this act does not subject itself to arbitrary imposition of in forma pauperis filing to qualify for the statutory exemption. 28 U.S.C.A. § 1916 provides: In all courts of the United States, seamen may institute and prosecute suits and appeals in their own names and for their own benefit for wages or salvage or the enforcement of laws

1

At the demand of plaintiff, two miscellaneous actions were filed. This one is his “Petition for Writ of Mandamus (or Court order), Writ of Prohibition, Declaratory Judgment, and Injunctive Relief for the ‘National Open Carry Handgun’ Endorsement on Plaintiff’s Merchant Mariner’s Document, and Demanding the Same Second, Ninth, Thirteenth and Fourteenth Amendment Rights and Tenth Amendment Power Reserved to the People as a U.S. Citizen for Intrastate and Interstate Travel.” -1-

Case 4:06-mc-00026-GH

Document 4

Filed 08/15/2006

Page 2 of 2

enacted for their health or safety without prepaying fees or costs or furnishing security therefor. Nothing that the plaintiff has submitted supports that this proposed action is for the “enforcement of laws enacted for [seamen’s] ... safety.” Moreover, the Court notes that the United States Supreme Court – in other litigation2 – on February 28, 2005, denied plaintiff’s motion for leave to proceed as a seaman and, by order filed on March 11, 2005, the United States Court of Appeals for the District of Columbia Circuit in Hamrick v. Bush, No. 04-5316, held that plaintiff there was not exempt under 28 U.S.C. §1916 from payment of the appellate filing fee. Accordingly, plaintiff is directed, within 30 days of the file-date of this order, to either pay the $350 filing fee or file an application to proceed in forma pauperis which the Clerk’s office is to send to plaintiff along with a copy of this order. Plaintiff is placed on notice that failure to comply with the directives in this order will result in dismissal of this miscellaneous action for lack of prosecution. The Court will take no further action regarding the motions for leave to file (#1) and to expedite (#2) until plaintiff has either paid the required $350 filing fee or has timely filed a completed in forma pauperis application. IT IS SO ORDERED this 15th day of August, 2006.

________________________________ UNITED STATES DISTRICT JUDGE

2

Hamrick v. Bush, 543 U.S. 1185, 125 S.Ct. 1412, 161 L.Ed2d 187 (2005). -2-

T ITLE 28 - J UDICIARY AND J UDICIAL P ROCEDURE P ART V - P ROCEDURE C HAPTER 123 - F EES AND C OSTS

26 U.S.C. § 1916. Seamen’s Suits “In all courts of the United States, seamen may institute and prosecute suits and appeals in their own names and for their own benefit for wages or salvage or the enforcement of laws enacted for their health or safety without prepaying fees or costs or furnishing security therefor.” Clarifications: (1) “In all courts of the United States” = includes the DC Circuit and the U.S. Supreme Court. (2) “the enforcement of laws enacted for their . . . safety” = includes civil lawsuits for Second Amendment rights of the American seafarer at sea aboard U.S. flag vessels and ashore in the United States in intrastate and interstate travel. (3) “without prepaying fees or costs or furnishing security therefor.” = means not to pay the filing fees of the DC Circuit or the U.S. Supreme Court AND the billing fees of PACER for access to the Docket Report. Extorted Fees The DC Circuit and the U.S. Supreme Court extorted from the Appellant a combined about of $1,065 in filing fees in violation of the above noted federal law from 2002 to the present. DC Circuit, Case No. 02-5334 DC Circuit, Case No. 03-5021 DC Circuit, Case No. 04-5316 U.S. Supreme Court, Case No. 03-145, U.S. Supreme Court, (DC Circuit Case No. 04-5316) U.S. District Court, Little Rock, Arkansas Extorted Payment of PACER Fees Paid to Date TOTAL:

$105.00 105.00 255.00 300.00 300.00 350.00 348.00 ---------$1,763.006

H ISTORICAL AND R EVISION N OTES O N T HE S EAMAN ’S S UIT L AW June 12, 1917, ch. 27, Sec. 1, 40 Stat. 157 (H.R. 11; Pub.L.No. 21: An Act Making appropriations for sundry civil expenses of the Government for the fiscal year ending June thirtieth, nineteen hundred and eighteen, and for other purposes.) — Provided further, That courts of the United States shall be open to seamen, without furnishing bonds or prepayment of or making deposits to secure fees or costs, for the purpose of entering and prosecuting suit or suits in their own name and for the own benefit for wages or salvage and to enforce laws made for their health and safety.

6

Updated for current totals 8

July 1, 1918, ch. 113, Sec. 1, 40 Stat. 683 (H.R. 12441; Pub.L.No. 181: An Act Making appropriations for sundry civil expenses of the Government for the fiscal year ending June thirteenth, nineteen hundred and nineteen, and for other purposes.) — Provided, That courts of the United States, including appellate courts, hereafter shall be open to seamen, without furnishing bonds or prepayment of or making deposit to secure fees or costs, for the purpose of entering and prosecuting suit or suits in their own name and for their own benefit for wages or salvage and to enforce laws made for their health and safety. June 25, 1948, ch. 646, 62 Stat. 955 (H.R. 3214; Pub.L.No. 773: An Act: To revise, codify, and enact into law title 28 of the United States Code entitled “Judicial Code and Judiciary”) — 28 U.S. 1916: In all courts of the United Stats, seamen may institute and prosecute suits and appeals in their own names and for their own benefit for wages or salvage or the enforcement of laws enacted for their health or safety without prepaying fees or costs or furnishing security therefor.

COMPLAINANT’S OTHER CASES In all of the following cases and appeals the Federal Courts have obstructed justice for the Plaintiff/Appellant because of his pro se status. This level of obstruction implies corruption and bias in the federal judicial system and in the Justice Department simply because of the Second Amendment subject matter of the cases. CASE NO . 1: Hamrick v. Adm. Thomas H. Collins, et al, U.S. District Court for DC, No. 02-1434 filed July 18, 2002, COMPLAINT FOR DEFAMATION & DAMAGES , LIBEL AS A MATTER OF PRIVATE CONCERN , INJURY TO REPUTATION , UNLAWFUL INTERFERENCE WITH THE LAWFUL OPERATION OF A U.S. MERCHANT VESSEL , UNLAWFUL INTERFERENCE W ITH A SEAMAN ’S EMPLOYMENT ABOARD A U.S. MERCHANT VESSEL , WRONGFUL DETENTION /FALSE IMPRISONMENT OF A U.S. MERCHANT SEAMAN IN A FOREIGN COUNTRY , HARASSMENT , EMOTIONAL DISTRESS , AND SUBJECTION TO A MALICIOUS CRIMINAL INVESTIGATION EXTENDING FROM PETITIONER ’S EXERCISE OF FIRST AMENDM ENT RIGHTS TO FREE SPEECH AND TO PETITION THE GOVERNMENT FOR REDRESS OF GRIEVANCES PURSUING SECOND AMENDM ENT RIGH TS ; Dismised with Prejudice. CASE NO . 2: Hamrick v. President Bush, et al, U.S. District Court for DC, No. 02-1435 filed July 18, 2002, PETITION FOR A WRIT OF MANDAMUS , A WRIT OF PROHIBITION , DECLARATORY JUDGM ENT , AND INJUNCTIVE RELIEF ; Dismised with Prejudice; Affirmed District Court’s Dismissal with Prejudice on October 10, 2002. Appeal filed with DC Circuit, October 28, 2002. DC Circuit affirmed Dismissal with Prejudice. Appealed to U.S. Supreme Court. Petition for Writ of Certiorari, No. 03-145, Denied. CASE NO . 3: Hamrick v. President Bush, et al, U.S. District Court for DC, No. 03-2160, October 21, 2003, AMENDED COM PLAINT CRIMINAL & CIVIL RIGHTS COMPLAINT OF RACKETEERING AND FRAUD UNDER THE RICO ACT FOR AN UNCONSTITUTIONAL PROTECTION SCHEME UNDER COLOR OF LAW OVER THE SECOND AMENDM ENT VIOLATING PLAINTIFF ’S RIGHT TO PETITION AND RIGH T TO DUE PROCESS AND FOR WRIT OF MANDAMUS , WRIT OF PROHIBITION , DECLARATORY AND INJUNCTIVE RELIEF & FOR DAMAGES ; Dismissed with Prejudice. Appealed to DC Circuit, Case No. 04-5316. Appealed to U.S. Supreme Court on Rule 11 (Before Judgment of the DC Circuit); Petition for Writ of Certiorari, No. 04-1150, Denied. O Hamrick filed own Motion to Dismiss Without Prejudice in order to refile in proper venue, Little Rock, Arkansas. CASE NO . 4: Hamrick, pro se v. United States, U.S. District Court for DC, No. 1:04MS00422, filed September 1, 2004; MOTION FOR THE COURT TO SUMMON A SPECIAL GRAND JURY , 9

IN RE : HAMRICK , (pro se) V . PRESIDENT GEORGE W. BUSH , ET AL : A SECOND AMENDM ENT CASE ; TO INVESTIGATE ALLEGATIONS OF CORRUPTION AND RACKETEERING IN TH E FEDERAL JUDICIARY AND IN THE U.S. DEPARTMENT OF JUSTICE , This case seeks a criminal review of Cases 1 through 3 above. Case is pending. O The federal judge continues to sit on this case, doing nothing. Case No. 5: Hamrick v. George, et al, U.S. District Court for the Western District of North Carolina, Charlotte Division, filed July 20, 2004; SEAMAN ’S COM PLAINT OF WRONG FUL , MALICIOUS TERMINATION , HARASSMENT , DISCRIMINATION , AND RETALIATION FOR EXERCISING PROTECTED RIGHTS AND OPPOSING UNLAWFUL EMPLOYMENT PRACTICES IN VIOLATION OF FEDERAL CIVIL RIGHTS LAWS UNDER 42 U.S.C. § 1981(a) & (b); 42 U.S.C. § 2000e-2, et seq.; 42 U.S.C. § 2000E -3(a); AND UNDER 46 U.S.C. § 2114 PROTECTION OF SEAM EN AGAINST DISCRIMINATION ; AND FOR OBSTRUCTION OF JUSTICE UNDER 18 U.S.C. § 1512(b)(1) & (b)(2)(A). O Case dismissed without prejudice after nearly 2 years inexcusable delays by the Courts. Case No. 6: Hamrick v. Adm. Thomas H. Collins, Commandant USCG, et al, U.S. District Court for New Jersey, Camden Division, No. 05-4427, filed September 12, 2005; SEAMAN ’S COMPLAINT OF RECKLESS ENDANGERMENT , HARASSMENT , AND DEFAMATION , AND DERELICTION OF DUTY (AGAINST THE U.S. COAST GUARD AND THE DEPT . OF HOMELAND SECURITY ); SEAMAN ’S COMPLAINT OF HARASSMENT , DEFAMATION , AND RETALIATION (AGAINST REM AINING RESPONDENTS ) IN VIOLATION OF FEDERAL CIVIL RIGHTS LAW S UNDER 42 U.S.C. § 1981(a) & (b); 42 U.S.C. § 2000e-2, et seq.; 42 U.S.C. § 2000e-3(a); 18 U.S.C. § 241, 242; 245(b)(1)(B); AND UNDER 46 U.S.C. § 2114 PROTECTION OF SEAMEN AGAINST DISCRIM INATIO N ; IN VIOLATION OF RULE 2 OF THE INTERNATIONAL RULES OF NAVIGATION AND INTERNATIONAL LAW S & TREATIES WITH THE UNITED STATES . O Dismissed without prejudice for lack of prosecution (could not keep up on this case) Case No. 7: Hamrick v. Vice Admiral David L. Brewer III, USN, Military Sealift Command, et al, U.S. District Court for DC, No. 05-1993; filed October 7, 2005; COM PLAINT (1) OF BREACH OF CONTRACT ; COM PLAINT (2) OF AGE DISCRIMINATION IN VIOLATION OF THE AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA); COM PLAINT (3) OF SOLICITATION TO COMMIT MEDICAL FRAUD , HARASSMENT /BULLYING , DEFAMATION /RITUAL DEFAMATION IN VIOLATION OF THE LABOR -MANAGEMENT AGREEMENT BETWEEN AMSEA AND THE SEAFARERS INTERNATIONAL UNION ; COM PLAINT (4) OF RELIGIOUS DISCRIMINATION IN VIOLATION OF THE RELIGIOUS FREEDOM RESTORATION ACT (RFRA); COM PLIANT (5) OF NEGLIGENCE IN THE ENFORCEM ENT OF FEDERAL LAW S AGAINST INTERNET CHILD PORNOGRAPHY ; COM PLAINT (6) OF WRONGFUL /MALICIOUS DISCHARGE /FIRING IN VIOLATION OF TITLE VII RETALIATION FOR REPORTING THE 5-YEAR EXISTENCE OF A CHILD PORN PHOTOGRAPH ON THE CREW ’S EMAIL COMPUTER ABOARD THE USNS FISHER TO THE U.S. COAST GUARD IN ACCORDANCE WITH 46 U.S.C. § 2114, PROTECTION OF SEAMEN AGAINST DISCRIMINATION (ALSO KNOW N AS THE WHISTLE BLOW ER ’S LAW FOR SEAM EN ) AS REQUIRED BY FEDERAL LAW , 18 U.S.C. § 4, MISPRISION OF FELONY ; COM PLAINT (7) OF HUMILIATION (DEFAMATION /RITUAL DEFAMATION ) AND FALSE /WRONG FUL DETENTION AND /OR FALSE IMPRISONM ENT BY CONFINEMENT TO QUARTERS UNDER CONTINUOUS MILITARY GUARD WHILE ABOARD SHIP PRIOR TO DISCHARGE BY ORDER OF THE MASTER IN TITLE VII RETALIATION FOR MAKING SUCH LAWFUL REPORT TO AUTHORITIES . O Dismissed without prejudice on October 20, 2005. Case No. 8: Hamrick v. United Nations, U.S. District Court, Eastern District of Arkansas, Northern Division, Filed September 11, 2006 as Hamrick v President Bush, et al. Amended as Hamrick v. United Nations, January 2007.

10

112A Unanimously Approved by ABA House of Delegates August 7, 2006

AMERICAN BAR ASSOCIATION TASK FORCE ON ACCESS TO CIVIL JUSTICE SECTION OF BUSINESS LAW COMMISSION ON INTEREST ON LAWYERS’ TRUST ACCOUNTS COMMISSION ON LAW AND AGING SECTION OF LITIGATION STEERING COMMITTEE ON THE UNMET LEGAL NEEDS OF CHILDREN SPECIAL COMMITTEE ON DEATH PENALTY REPRESENTATION STANDING COMMITTEE ON LEGAL AID AND INDIGENT DEFENDANTS COMMISSION ON IMMIGRATION ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK KING COUNTY BAR ASSOCIATION (WASHINGTON) MAINE STATE BAR ASSOCIATION NEW YORK COUNTY LAWYERS’ ASSOCIATION THE PHILADELPHIA BAR ASSOCIATION NATIONAL LEGAL AID AND DEFENDER ASSOCIATION SECTION OF ADMINISTRATIVE LAW AND REGULATORY PRACTICE WASHINGTON STATE BAR ASSOCIATION BOSTON BAR ASSOCIATION COLORADO BAR ASSOCIATION NEW YORK STATE BAR ASSOCIATION CONNECTICUT BAR ASSOCIATION MINNESOTA STATE BAR ASSOCIATION LOS ANGELES COUNTY BAR ASSOCIATION THE BAR ASSOCIATION OF THE DISTRICT OF COLUMBIA SECTION OF LABOR AND EMPLOYMENT LAW SECTION OF INDIVIDUAL RIGHTS AND RESPONSIBILITIES

REPORT TO THE HOUSE OF DELEGATES RECOMMENDATION 1 2 3 4 5

RESOLVED, That the American Bar Association urges federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody, as determined by each jurisdiction.

112A ABA House of Delegates - August 2006

REPORT This Resolution is the Logical Next Step in the ABA’s Long History of Support for Achieving Equal Justice in the United States The ABA has long held as a core value the principle that society must provide equal access to justice, to give meaning to the words inscribed above the entrance to the United States Supreme Court – “Equal Justice Under Law.” As one of the Association’s most distinguished former Presidents, Justice Lewis Powell, once observed: “Equal justice under law is not just a caption on the facade of the Supreme Court building. It is perhaps the most inspiring ideal of our society . . . It is fundamental that justice should be the same, in substance and availability, without regard to economic status.” The ABA also has long recognized that the nation’s legal profession has a special obligation to advance the national commitment to provide equal justice. The Association’s efforts to promote civil legal aid and access to appointed counsel for indigent litigants are quintessential expressions of these principles. In 1920, the Association created its first standing committee, “The Standing Committee on Legal Aid and Indigent Defendants,” with Charles Evans Hughes as its first chair. With this action, the ABA pledged itself to foster the expansion of legal aid throughout the country. Then, in 1965, under the leadership of Lewis Powell, the ABA House of Delegates endorsed federal funding of legal services for the poor because it was clear that charitable funding would never begin to meet the need. In the early 1970s, the ABA played a prominent role in the creation of the federal Legal Services Corporation to assume responsibility for the legal services program created by the federal Office of Economic Opportunity. Beginning in the 1980s and continuing to the present, the ABA has been a powerful and persuasive voice in the fight to maintain federal funding for civil legal services. These actions are consistent with and further several of the ABA’s key goals including: GOAL II

To promote meaningful access to legal representation and the American system of justice for all persons regardless of their economic or social condition.

When the ABA adopted this Goal, the following objectives for achieving it were listed: 1. 2. 3. 4.

Increase funding for legal services to the poor in civil and criminal cases. Communicate the availability of affordable legal services and information to moderate-income persons. Provide effective representation for the full range of legal needs of low and middle income persons. Encourage the development of systems and procedures that make the justice system easier for all persons to understand and use.

The ABA Has Adopted Policy Positions Favoring a Right to Counsel The ABA has on several occasions articulated its support for appointing counsel when necessary to ensure meaningful access to the justice system. In its amicus brief in Lassiter v. Dept of Social 2

112A ABA House of Delegates - August 2006 Services of Durham County, 425 U.S. 18 (1981), the ABA urged the U.S. Supreme Court to rule that counsel must be appointed for indigent parents in civil proceedings that could terminate their parental rights, “[I]n order to minimize [the risk of error] and ensure a fair hearing, procedural due process demands that counsel be made available to parents, and that if the parents are indigent, it be at public expense. Id. at 3-4. The ABA noted that “skilled counsel is needed to execute basic advocacy functions: to delineate the issues, investigate and conduct discovery, present factual contentions in an orderly manner, cross-examine witnesses, make objections and preserve a record for appeal. . . . Pro se litigants cannot adequately perform any of these tasks.” In 1979 the House of Delegates adopted Standards Relating to Counsel for Private Parties, as part of the Juvenile Justice Standards. The Standards state “the participation of counsel on behalf of all parties subject to juvenile and family court proceedings is essential to the administration of justice and to the fair and accurate resolution of issues at all stages of those proceedings.” These standards were quoted in the Lassiter amicus brief. Also, in 1987, the House of Delegates adopted policy calling for appointment of counsel in guardianship/conservatorship cases.1 The ABA stated these positions some years ago, but its continuing commitment to the principles behind the positions was recently restated when it championed the right to meaningful access to the courts by the disabled in its amicus brief in Tennessee v. Lane, 541 U.S. 509 (2004). The case concerned a litigant who could not physically access the courthouse in order to defend himself. In terms that could also apply to appointment of counsel, the brief states, “the right of equal and effective access to the courts is a core aspect of constitutional guarantees and is essential to ensuring the proper administration of justice.” ABA Amicus Brief in Tennessee v. Lane at 16. Echoing the Association’s stance in Lassiter, the brief continued “the right of access to the courts . . . is founded in the Due Process Clause and assures that no person will be denied the opportunity to present to the judiciary allegations concerning violations of fundamental constitutional rights . . . [W]hen important interests are at stake in judicial proceedings, the Due Process Clause requires more than a theoretical right of access to the courts; it requires meaningful access. . . To ensure meaningful access, particularly when an individual faces the prospect of coercive State deprivation through the judicial process of life, liberty, or property, due process often requires the State to give a litigant affirmative assistance so that he may participate in the proceedings if he effectively would be unable to participate otherwise.” Id. at 17-18 (internal citations omitted). Despite 130 Years of Legal Aid in the United States, Existing Resources Have Proven Inadequate to Fulfill the Promise of Equal Justice for All. The right to representation for indigents in civil proceedings goes back to the earliest days of the common law when indigent litigants had a right to appointment of counsel so they could have access to the civil courts. Most European and Commonwealth countries have had a right to counsel in civil cases for decades or even centuries, entitling all poor people to legal assistance 1

See House of Delegates Resolution adopted in August, 1987 offered by the Special Committee on Legal Problems of the Elderly: “BE IT RESOLVED, That the American Bar Association supports efforts to improve judicial practices concerning guardianship, and adopts the following Recommended Judicial Practices and urges their implementation for the elderly at the state level: … I. Procedure: Ensuring Due Process Protections … C. Representation of the Alleged Incompetent … 1. Counsel as advocate for the respondent should be appointed in every case…”

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112A ABA House of Delegates - August 2006 when needed. The United States, in contrast, has relied principally on supplying a fixed number of lawyers and providing representation only to however many poor people this limited resource is able to serve. As of today, the level of resource does not approach the level of need2 and only a fortunate few of those unable to afford counsel enjoy effective access to justice when facing serious legal problems For the first 90 years of legal aid in this country, the only financial support for civil legal aid came from private charity. It started in 1876 with a single legal aid society serving GermanAmerican immigrants in New York City. Bar associations and social service organizations later established legal aid programs in a few cities elsewhere in the country. Starting in 1920, prompted by the publication of Reginald Heber Smith’s landmark expose of injustice in America, JUSTICE AND THE POOR, and under the leadership of Charles Evans Hughes, the ABA, as noted above, sought to nurture development of such programs and managed to foster legal aid societies in most major cities and many smaller communities around the nation. But those societies were grossly underfunded and understaffed. It was not until 1965 that government funding first became available for civil legal aid as part of the War on Poverty. In 1974, the federal Legal Services Corporation was established as the central funding entity for legal aid programs nationwide. During the early years the federal government expanded legal aid funding considerably. But the expansion of federal appropriations soon stalled, when LSC proved vulnerable to political attack. Thus, local legal aid agencies began to more aggressively seek diversified funding from other sources including Interest on Lawyers Trust Accounts (IOLTA), state and local governments and private sources.3 Despite these innovative and often heroic efforts, however, taking account of inflation and the growth in numbers of poor people civil legal aid funding is no higher today in real terms than it was a quarter century ago.4 Given this persistent shortage of legal aid resources, it is not surprising to find a vast and continuing unmet need for the services of lawyers among those unable to afford counsel. While the nationwide Legal Services Corporation-funded system for providing legal services assists as many as one million poor people with critical legal problems each year, a recent survey shows that the legal aid programs within that system have to turn away another million people who come to their offices5. Millions more are discouraged and don’t bother seeking legal aid because 2

See Documenting the Justice Gap in America, A Report of the Legal Services Corporation (2005) documenting the percentage of eligible persons that LSC funded-programs are unable to serve due to lack of sufficient resources.

3

Some of these funding sources also have come under attack. See, e.g., Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003); Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998); Wieland v. Lawyers Trust Fund of Illinois, Docket # 5-03-0419, App. Ct. of Ill, 5th Jud Dist. (2003). 4

Expenditures of public resources to address the legal needs of the poor in the United States compare poorly with funding in many other industrialized nations. At the lower end, Germany and Finland invest over three times as much of their gross domestic product as the United States in serving the civil legal needs of lower income populations. At the upper end, England spends 12 times as much of its GDP as the U.S. does to provide civil legal aid to its citizens. In between, New Zealand spends five times more than the U.S and the Netherlands over seven times as much. Even Hong Kong, now a part of the People’s Republic of China, invests more than six times as much as the U.S. 5

See n. 1, Documenting t he Justice Gap at p. 5. It also should be noted that many of the cases in which local programs reported they provided services were ones where limited resources meant they only were able to supply

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112A ABA House of Delegates - August 2006 they know help is not available. Despite all the efforts of legal aid programs and pro bono lawyers, an ABA nationwide legal needs study in 1993 showed that legal help was not obtained for over 70% of the serious legal problems encountered by poor people. More than ten years have passed since that ABA research, and matters have only gotten worse. Poverty has not significantly abated and indeed has increased since the 2000 census. Similarly, the civil legal needs of the poor remain substantially unfulfilled. For example, a September 2003 report by the District of Columbia Bar Foundation estimates that less than 10% of the need for civil legal assistance is being met in that jurisdiction. A similar study in Washington State, also released in September 2003, found that 87% of the state's low-income households encounter a civil legal problem each year, and that only 12% of these households are able to obtain assistance from a lawyer. In Massachusetts - a state with significant legal services resources - the occurrence of civil legal problems among the poor increased significantly in the period 19932002. By 2002 at least 53% of the poor households in the state had at least one unmet civil legal need and only 13% of those households were able to resolve all the problems they experienced.6 Both Constitutional Principles and Public Policy Support A Legally Enforceable Right to Counsel to Achieve Effective Access to Justice in Many Civil Cases In Gideon v. Wainwright, 372 U.S. 335, 344 (1963) the U.S. Supreme Court held: [R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. . . . That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries....From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. It appears just as difficult to argue a civil litigant can stand “equal before the law . . . without a lawyer to assist him.” Indeed just a year after Gideon, the Supreme Court made a similar observation about civil litigants. “Laymen cannot be expected to know how to protect their rights when dealing with practiced and carefully counseled adversaries....” Brotherhood of R.R. Trainmen v. Virginia, 377 U.S. 1, 7 (1964). Yet, in 1981, the Supreme Court, in a civil matter, said that there is no absolute right to court appointed counsel for an indigent litigant in a case brought by the state to terminate parental rights. Lassiter v. Department of Social Services, 425

self-help assistance, but believed full representation would have led to a better outcome for the clients. (Id. at p. 6, fn 8.) 6

Seven additional states have recently examined the kinds of legal problems experienced by low-income residents of the state and what they do about them: Oregon (2000), Vermont (2001), New Jersey (2002), Connecticut (2003), Tennessee (2004), Illinois (2005) and Montana (2005). These studies, too, demonstrate that only a very small percentage of the legal problems experienced by low-income people (typically one in five or less) is addressed with the assistance of a private or legal aid lawyer.

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112A ABA House of Delegates - August 2006 U.S. 18 (1981). While the Court recognized that the complexity of a termination of parental rights proceeding might “overwhelm an uncounseled parent,” the Court found--by a 5-4 vote-that the appointment of counsel was not required in every case. Id. at 30. Instead, trial courts were instructed to balance three factors to determine whether due process requires that a parent be given a lawyer: “the private interest at stake, the government’s interest and the risk that the procedures used will lead to erroneous decisions.” Id. at 27. The court went on to apply the standard in such a way that it virtually excluded the appointment of counsel except in the most extraordinary circumstances, in particular by overlaying on the three-part due process test an additional presumption against appointed counsel where there is no risk of loss of physical liberty. It is to be hoped that the U.S. Supreme Court will eventually reconsider the cumbersome Lassiter balancing test and the unreasonable presumption that renders that test irrelevant for almost all civil litigants. There would be precedent for such a reversal, as seen in the evolution of the criminal right to counsel from Betts v Brady, 316 U.S. 455 (1942) to Gideon in 1963. In Betts, the Court said the appointment of counsel was required in criminal cases only where, after a case-by-case analysis, the trial court determined that counsel is necessary to ensure that trial is not “offensive to the common and fundamental ideas of fairness and right.” Id. at 473. But by 1963, the Court realized that the Betts approach was unworkable, and overturned it in Gideon. Powerful common law, constitutional, and policy arguments support a governmental obligation to ensure low income people are provided the means, including lawyers, to have effective access to the civil courts. These arguments have equal and sometimes greater application at the state level than they do at the federal level. Common Law Antecedents Support a Right to Counsel in Civil Matters The common law has a long history of granting indigent litigants a right to counsel in civil cases. As early as the 13th and 14th centuries English courts were appointing attorneys for such litigants, a right that Parliament codified in 1495.7 Several American colonies imported this statute and its right to counsel as part of the common law they adopted from the mother country and, it has been argued, this nascent right continues to the current day.8 But at a minimum the venerable age and persistence of this right9 in the common law tradition suggests the fundamental importance 7

The critical language from the Statute of Henry VII, which also relieved indigent civil litigants from the obligation to pay fees and costs, reads as follows: “[T]he Justices…shall assign to the same poor person or persons counsel,…which shall give their counsel, nothing taking for the same;…and likewise the Justices shall appoint attorney and attorneys for the same poor person or persons….” II Hen VII, c. 12 (1495), An Act to Admit Such Persons as Are Poor to Sue in Forma Pauperis, reprinted in 2 Statutes of the Realm 578 (1993). .

8

See, e.g., Brief for Appellant, Frase v. Barnhart, 379 Md. 1000 (2003) at pp. 33-42, arguing the Statute of Henry VII is part of the English common law the colony and later the state of Maryland adopted as its own and this right to counsel remains part of Maryland law in the current day. Nor is this common law argument limited to the original 13 states. Many if not most other states expressly incorporated the English common law as it existed at the moment of their statehood as the common law of those states. See Johnson, Beyond Payne: The Case for A Legally Enforceable Right to Representation in Civil Cases for Indigent California Litigants, 11 LOYOLA OF LOS ANGELES L. REV. 249, 251-259 (1978) for an explanation why the Statute of Henry VII the California Supreme Court used as the basis for finding a common law right to waiver of fees and costs also appears to justify the provision of free counsel to those same indigent litigants. 9

The Statute of Henry VII was not replaced until 1883, when it was succeeded by a law designed to make the right more effective. In 1914 the English Parliament passed another reform of legal aid. Then in 1950 it enacted a

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112A ABA House of Delegates - August 2006 that tradition, which is the basis of American law, accords guaranteeing poor people equality before the law and furnishing them the lawyers required to make that guarantee a reality. Other European and commonwealth countries also have come to recognize a statutory right to counsel in civil cases. France created such a statutory right in 1852, Italy did so when Garibaldi unified the country in 1865, and Germany followed suit when it became a nation in 1877. Most of the remaining European countries enacted right to counsel provisions in the late 19th and early 20th century. Several Canadian provinces, New Zealand and some Australian states have provided attorneys to the poor as a matter of statutory right for decades, although the scope of the right has changed in response to legislative funding and priorities.10 As of this time, no American jurisdiction has enacted a statutory right to counsel at public expense nearly as broad as these other countries. But many states have passed laws conferring a right to counsel in certain narrow areas of the law. The most common are those guaranteeing counsel to parents – and sometimes children -- in dependency (often called neglect) proceedings, and to prospective wards in guardianship and similar proceedings in which interference with personal liberties are at stake. A handful of states also have extended a statutory right to counsel in other situations. It is encouraging that state legislatures have recognized the truth that poor people cannot have a fair hearing in these particular adversarial proceedings. Yet many other proceedings that threaten loss of basic human needs are equally adversarial and often more complex. In those cases, just like dependency proceedings, no civil litigant can be “equal before the law…without a lawyer.” Courts perhaps more than legislatures are familiar with the truth of this principle embodied in the common law right to counsel and implemented, to a limited degree in many state statutes in the U.S., and to a broader extent, in the laws of many other countries. On a regular basis, the judiciary witnesses the helplessness of unrepresented parties appearing in their courtrooms and the unequal contest when those litigants confront well-counseled opponents. Judges deeply committed to reaching just decisions too often must worry whether they delivered injustice instead of justice in such cases because what they heard in court was a one-sided version of the law and facts. Nearly a decade ago, one trial judge, U.S. District Court Judge Robert Sweet, gave voice to this concern in a speech to the Association of the Bar of New York, and also tendered a solution. “What then needs doing to help the courts maintain the confidence of the society and to perform the task of insuring that we are a just society under a rule of law? . . . To shorthand it, we need a civil Gideon, that is, an expanded constitutional right to counsel in civil matters. Lawyers, and lawyers for all, are essential to the functioning of an effective justice system.”11 State and Federal Constitutional Principles Support a Civil Right to Counsel

sophisticated civil legal aid program that remains the most comprehensive and generously funded legal aid system in the world. 10

These developments in other countries are surveyed in Johnson, The Right to Counsel in Civil Cases: An International Perspective, 19 Loyola of Los Angeles Law Review 341 (1985). Several of the foreign statutes are translated in Cappelletti, Gordley and Johnson, TOWARD EQUAL JUSTICE: A COMPARATIVE STUDY OF LEGAL AID IN MODERN SOCIETIES (Milan/Dobbs Ferry: Giuffre/Oceana, 1975, 1981). 11

Sweet, Civil “Gideon” and Justice in the Trial Court (The Rabbi’s Beard), 42 THE RECORD 915, 924 (Dec. 1997).

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112A ABA House of Delegates - August 2006 In the years between Gideon and Lassiter, a few state supreme courts took some promising steps toward a constitutional right to counsel in civil cases. The Maine and Oregon Supreme Courts declared the constitutional right to due process required that their state governments provide free counsel to parents in dependency/neglect cases.12 The Alaska Supreme Court ruled that counsel must be appointed at public expense to an indigent party in a child custody proceeding if the other party was provided free representation.13 The California Supreme Court found a due process right to counsel for defendants in paternity cases14 and an equal protection right for prisoners involved in civil litigation.15 The New York Court of Appeal fell only one vote short of declaring a constitutional right to free counsel for poor people in divorce cases.16 During that era, between Gideon and Lassiter, academic articles also frequently appeared discussing the many legal theories which would support a constitutional right to counsel in civil cases.17 In common with the state supreme court decisions mentioned above, these articles usually articulated arguments based on the due process clauses found in the federal and state constitutions and their implicit guarantees of a fair hearing in civil proceedings. But they carried the argument beyond the narrow categories of cases covered by the then existing state court decisions to embrace a far broader range of civil litigation. They emphasized the serious consequences losing litigants face in many other civil cases poor people commonly experience – and the empirical and other evidence suggesting the lack of counsel virtually guarantees these people in fact would lose those cases. Some of these articles likewise found strong support for a right to counsel in the equal protection clauses common to the federal and most state constitutions. Some pointed to the fundamental interest all citizens have in enjoying “like access to the courts” for the protection of their rights – as the essential handmaiden of the right to vote without which laws enacted to give them substantive rights cannot be enforced. As a fundamental interest, it warrants the “close scrutiny” to which the courts are to subject any policies denying that access. It also was observed that some states have made “poverty” a “suspect class.” This again would mandate close scrutiny of a state’s denial of counsel to poor people in judicial proceedings structured in a way that requires a lawyer if one is to have effective access to those courts. Over the years after Gideon, lawyers continued to pursue litigation seeking to establish the right to counsel in civil cases, with considerable success, initially on traditional notions of due 12

Danforth v. State Dept. of Health and Welfare, 303 A.2d 794 (Me. 1973); State v. Jamison, 444 P.2d 15 (Ore. 1968).

13

Flores v. Flores, 598 P. 2d 893 (Ak, 1979).

14

Salas v. Cortez, 24 Cal.3d 22, 593 P.2d 226 cert. den. 444 U.S. 900 (1979).

15

Payne v. Superior Court, 17 Cal.3d 908 (1976).

16

In re Smiley, 369 N.Y.S.2d 87, 90 (N.Y. 1975).

17

See, e.g., Note, The Right to Counsel in Civil Litigation, 66 Colum.L.Rev. 1322 (1966); O’Brien, Why Not Appointed Counsel in Civil Cases? The Swiss Approach, 28 Ohio St. L.J. 5 (1967); Note, The Indigent’s Right to Counsel in Civil Cases, 76 Yale L.J. 545 (1967); Note, The Indigent’s Right ot Counsel in Civil Cases, 43 Fordham L. Rev. 989 (1975), Note, The Emerging Right of Legal Assistance for the Indigent in Civil Proceedings, 9 U.Mich.J.L. Ref. 554 (1976), Comment, Current Prospects for an Indigent’s Right to Appointed Counsel and Free Transcript in Civil Litigation, 7 Pac. L.J. 149 (1976), Johnson, Beyond Payne: The Case for a Legally Enforceable Right to Representation for Indigent California Litigants, 11 Loyola of Los Angeles L..Rev. 249 (1978).

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112A ABA House of Delegates - August 2006 process. In Michigan and other states, a detailed blueprint was developed to take a series of cases through the appellate courts to establish the right to counsel in various circumstances. After several victories, the initiative was set aside in part because of the Lassiter decision. After Lassiter and its narrow construction of due process, most of the possible constitutional theories remain untested in either the federal or state courts. But they have been reinforced by constitutional decisions abroad. As early as 1937, a quarter century before Gideon and over four decades before Lassiter, the Swiss Supreme Court found the analog of our constitution’s equal protection clause, the “equality before the law” provision of that nation’s Constitution, mandated appointment of free counsel for indigent civil litigants.18 Then in 1979 the European Court of Human Rights issued a historic decision, Airey v. Ireland19, based on an analog of due process--a provision in the European Convention on Human Rights and Fundamental Freedoms which guarantees civil litigants a “fair hearing.”20 In a decision that now applies to 41 nations and over 400 million people, the court held indigents cannot have a “fair hearing” unless represented by lawyers21 and required member states to provide counsel at public expense to indigents in cases heard in the regular civil courts.22 As a direct result of this decision, the Irish legislature created that nation’s first legal aid program which is now funded at three times the level of America’s. The Airey decision and its progeny also have influenced the scope of legal aid legislation in several other European countries.23 Policy Considerations Support Recognition of a Civil Right to Counsel Underlying all the constitutional theories are several undeniable truths. The American system of justice is inherently and perhaps inevitably adversarial and complex. It assigns to the parties the primary and costly responsibilities of finding the controlling legal principles and uncovering the relevant facts, following complex rules of evidence and procedure and presenting the case in a cogent fashion to the judge or jury. Discharging these responsibilities ordinarily requires the expertise lawyers spend three years of graduate education and more years of training and practice acquiring. With rare exceptions, non-lawyers lack the knowledge, specialized expertise and skills to perform these tasks and are destined to have limited success no matter how valid their position 18

Judgment of Oct. 8, 1937, Arrets du Tribunal Federal (ATF) 63, I, 209 (1937), discussed in O’Brien, Why Not Appointed Counsel in Civil Cases? The Swiss Approach, 28 Ohio St. L.J. 5 (1967). 19

Airey v Ireland, 2 Eur. Ct. H.R. (ser.A) 305 (1979).

20

“In the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time.” Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, art. 6, para.1, 213 U.N.T.S. 222. 21

As the court explained: “The Convention was intended to guarantee rights that were practical and effective, particularly in respect of the right of access to the courts, in view of its prominent place in a democratic society….The possibility of appearing in person before the [trial court] did not provide an effective right of access. . . [I]t is not realistic,…to suppose that,…the applicant could effectively conduct her own case, despite the assistance which,…the judge affords to parties acting in person….” (Id. at p. 315, emphasis supplied.) . 22

A constitutional “fair hearing” guarantee likewise formed the basis for the Canadian Supreme Court’s recent declaration of a right to counsel at public expense for indigent litigants, in this instance parents involved in dependency/neglect cases. New Brunswick v J.G. 177 D.L.R. (4th) 124 (1999). 23

See, e.g., Steel and Morris v. The United Kingdom, Eur.Ct.H.R. (Judgment of Feb. 15, 2005) which found England’s legal aid statute denying counsel to indigent defendants in defamation cases violated the right to counsel required to satisfy the European Convention’s guarantee of a “fair hearing.”.

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112A ABA House of Delegates - August 2006 may be, especially if opposed by a lawyer. Not surprisingly, studies consistently show that legal representation makes a major difference in whether a party wins in cases decided in the courts.24 There are other problems, too, when parties lack counsel in civil proceedings. In seeking to insure that justice is done in cases involving pro se litigants, courts must struggle with issues of preserving judicial neutrality (where one side is represented and the other is not), balancing competing demands for court time, and achieving an outcome that is understood by pro se participants and does not lead to further proceedings before finality is reached. Meantime large numbers of pro se litigants lose their families, their housing, their livelihood, and like fundamental interests, losses many of them would not have sustained if represented by counsel. Furthermore, the perception the courts do not treat poor people fairly has consequences for the system itself. As California Chief Justice Ronald George recently observed, “[E]very day the administration of justice is threatened…by the erosion of public confidence caused by lack of access.”25 Whether cast as a constitutional imperative or a policy finding compelling a legislative remedy, when litigants cannot effectively navigate the legal system, they are denied access to fair and impartial dispute resolution, the adversarial process itself breaks down and the courts cannot properly perform their role of delivering a just result. Absent a systemic response, access to the courts will continue to be denied to many solely because they are unable to afford counsel. Considerations of cost and convenience alone cannot justify a State's failure to provide individuals with a right of meaningful access to the courts. Current Efforts to Establish a Civil Right to Counsel For over two decades, the Lassiter decision appeared to paralyze serious consideration of a right to counsel in civil cases. But in the last few years advocates around the country have taken up the challenge with renewed vigor and strategic thinking.26 Some are exploring state law common law 24

See, e.g., Barbara Bezdek, Silence in the Court: Participation and Subordination of Poor Tenants' Voices in the Legal Process, 20 Hofstra L.Rev. 533 (1992); Seron et al, The Impact of Legal Counsel on Outcomes for Poor Tenants in New York City's Housing Court: Results of A Randomized Experiment, 35 Law & Soc'y Rev. 419 (2001).

25

Chief Justice Ronald George, State of Judiciary Speech to California Legislature, 2001.

26

This renewed interest also is reflected in the academic literature. Marvy, Paul and Gardner, Debra, A Civil Right To Counsel For the Poor, 32 Human Rights 8 (Summer 2005); Boyer, Bruce, Justice, Access to the Courts, and the Right to Free Counsel For Indigent Parents: The Continuing Scourge of Lassiter v. Department of Social Services of Durham, 36 Loy. U. Chi. L.J. 363 (2005); Nethercut, John, 'This Issue Will Not Go Away…': Continuing to Seek the Right to Counsel in Civil Cases, 38 Clearinghouse Review 481 (2004); Smith, Jonathan, Civil Gideon, 18 MIE Journal 4:3 (2004); Perluss, Deborah, Washington’s Constitutional Right to Counsel in Civil Cases: Access to Justice v. Fundamental Interest, 2 Seattle J. for Soc. Just. 571 (2004); Klienman, Rachel, Housing Gideon: The Right to Counsel in Eviction Cases, 31 Fordham Urb. L.J. 1507 (2004); Johnson, Earl, Will Gideon's Trumpet Sound a New Melody? The Globalization of Constitutional Values and Its Implications for a Right to Equal Justice in Civil Cases, 2 Seattle J. for Soc. Just. 201 (2003); Johnson, Earl, Equal Access to Justice: Comparing Access to Justice in the United States and Other Industrial Democracies, 24 Fordham Int’l L.J. 83 (2000); Sweet, Robert, Civil Gideon and Confidence in a Just Society, 17 Yale L. & Pol’y Rev. 503 (1998); Sweet, Robert, Civil Gideon and Justice in the Trial Court (the Rabbi's Beard), 52 The Record of the Ass'n of the Bar of the City of N.Y. 915 (1997); Young, Rosalie, The Right to Appointed Counsel In Termination Of Parental Rights: The States' Response to Lassiter, 14 Touro L. Rev. 247 (1997); Scherer, Andrew, Gideon's Shelter: The Need to Recognize a Right to Counsel for Indigent Defendants in Eviction Proceedings, 23 Harv. C.R.-C.L. L. Rev. 557 (1988); Werner, F. Toward a Right to Counsel for Indigent Tenants in Eviction Proceedings, 17 Housing L. Bull. 65 (1987). Estrelle, Mark, Gideon's Trumpet Revisited: Providing Rights of Indigent Defendants in Paternity Actions, 29 J. Fam. L. 1, 9 (1985);

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112A ABA House of Delegates - August 2006 rights and constitutional guarantees of open courts and access to the courts as well as due process and equal protection, through appellate advocacy and litigation. Others are pursuing a range of legislative approaches. In each of what is already a significant number of states, a local broadbased team of advocates has determined the route they believe is most likely to achieve success. Many of those advocates have come together as the National Coalition for a Civil Right to Counsel (NCCRC). The coalition provides information-sharing, training, networking, coordination, research assistance, and other support to advocates pursuing, or considering pursuing, a civil right to counsel. It includes well over a hundred advocates from legal services programs, private law firms, state bar associations, law schools, national strategic centers and state access to justice commissions, representing over 30 states. At present, there are active civil right to counsel projects underway in at least eight jurisdictions and discussions are taking place in a number of others. Courts are also now being asked to revisit the issue. For example, a nonprofit poverty and civil rights program and two major private firms in Maryland are actively pursuing recognition of the civil right to counsel through an appellate strategy raising claims under the state’s constitution as well as the common law this state imported from the mother country. In 2003, in the case of Frase v. Barnhart, 379 Md. 1000 (2003), they brought the question whether a poor person has the right to appointed counsel in a civil case before Maryland’s highest appellate court. As part of a coordinated effort, the state bar association and legal services programs filed amicus briefs in support of the appellant’s right to counsel. The court avoided ruling on the issue by a 4-to-3 vote, finding in favor of the unrepresented litigant without reaching the issue. But an impassioned 3-judge concurrence would have declared a civil right to counsel for the indigent mother who faced a contested custody dispute without the assistance of counsel. In Washington, advocates from the private bar, legal services, the state's three law schools, and others have joined together to pursue judicial recognition of the civil right to counsel under the state's constitution. To date, the group has litigated two cases. One involved a local city seeking to remove a 77-year old disabled man from the home he built nearly 50 years earlier for alleged building code violations. The other case involved an abusive husband asserting false allegations through his attorney in order to obtain sole custody of his children. Both cases were ultimately resolved in the appellate courts in ways that did not result in rulings on the right to counsel issue. In Wisconsin advocates have filed appeals on behalf of indigent mothers seeking to retain custody of their children from their abusive estranged husbands, contending the Wisconsin state constitution guarantees them the right to counsel to defend their custodial rights. In Georgia, the federal District Court, relying in part on the Georgia state constitution’s due process clause, recently held that foster children have a right to counsel in all deprivation cases (elsewhere known as dependency cases, abuse and neglect proceedings, etc.).27 And, in a recently filed test case the Canadian Bar Association is seeking to establish a national right under their Constitution to obtain civil legal aid in certain types of cases and challenging British Columbia’s current legal aid plan as inconsistent with required standards for legal aid delivery for low-income Canadians.

Besharov, Douglas, Terminating Parental Rights: The Indigent Parent’s Right to Counsel After Lassiter v. North Carolina, 15 Fam. L. W. 205, 219, 221 (1981). 27

Kenny A. v. Perdue, 356 F. Supp. 2d 1353 (D. Ga. 2005).

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112A ABA House of Delegates - August 2006 In other states, new focus on legislative recognition of a right to counsel has emerged. In California an effort is underway to draft a “model” statute, with alternative provisions regarding certain key issues, which creates and defines the scope of a statutory entitlement to equal justice including a right to counsel in appropriate circumstances. Recently, the State Bar of Texas sought legislation providing a civil right to counsel for low income tenants in certain eviction appeals cases. In New York this past June, the City Council appropriated $86,000 for a study of the need for counsel in eviction proceedings and the costs and benefits of providing counsel to tenants facing eviction. In addition, the New York State Equal Justice Commission has made advocacy for a civil right to counsel a prominent part of its agenda. The effort to establish a right to court appointed counsel is a part of the struggle to make justice a matter of substance over form. More than 50 million people have incomes so low that they are eligible for legal services from Legal Services Corporation-funded programs28 and millions more survive on incomes so low they cannot afford lawyers when in serious legal jeopardy. Many also have physical or mental disabilities or experience other barriers to navigating the legal system without a lawyer. Yet over the past quarter century the federal government has reduced its commitment to legal services by over 50%. There is a crisis in equal justice, as documented above, and advocates are pursuing litigation and legislative strategies that might force a change in prevailing practices. The resolution voices the ABA’s support for these primarily state-law-based approaches. While it remains important to look for the right in federal due process and equal protection law as the ultimate objective, the resolution seeks to foster the evolution of a civil right to counsel on a state-by-state basis, rooted in the unique provisions of each state’s constitution and laws. This approach is likely to achieve significant results and provide doctrinal support for a future reconsideration of the right to civil counsel under the federal constitution. The Proposed Resolution Offers a Careful, Incremental Approach to Making Effective Access to Justice a Matter of Right, Starting with Representation by Counsel in those Categories of Matters in which Basic Human Needs Are at Stake. The right proposed in this resolution is long overdue and deeply embedded in the nation’s promise of justice for all. But it also represents an incremental approach, limited to those cases where the most basic of human needs are at stake. The categories contained in this resolution are considered to involve interests so fundamental and critical as to require governments to supply lawyers to low income persons who otherwise cannot obtain counsel. The resolution does not suggest that jurisdictions should limit their provision of counsel and other law-related services to these high-priority categories. Rather it indicates that in these categories they should guarantee no low income person is ever denied a fair hearing because of their economic status. In other categories of legal matters, it is expected that each jurisdiction will continue to supply legal services on the same basis as they have in the past. This includes jurisdictions where courts have the constitutional, statutory, or inherent power to appoint counsel in other categories of cases or for individuals who suffer impairments or unique barriers which

28

“CPS Annual Demographic Survey, March Supplement,” http://pubdb3.census.gov/macro/032005/pov/new01_125_01.htm

12

112A ABA House of Delegates - August 2006 make it impossible for them to obtain a fair hearing in any cases unless they are represented by lawyers. The right defined in this resolution focuses on representation in adversarial proceedings; it does not propose a generalized right to legal advice or to legal assistance unrelated to litigation in such forums. “Adversarial proceedings” as defined in the resolution are intended to include both judicial and some quasi-judicial tribunals, because many of the disputes involving the basic human needs described below are, in one jurisdiction or another, allocated to administrative agencies or tribunals. Indeed the label is often arbitrary. Cases a forum labeled a court would hear in one jurisdiction will be heard by a tribunal labeled an administrative agency or hearing officer or something else in other jurisdictions. The emphasis of the right articulated here is on the adversarial nature of the process, not what the tribunal is called. Some courts as well as some tribunals bearing another name function in an inquisitorial manner and without legal counsel. (In many states, for instance, parties in the small claims court are not allowed to be represented by lawyers and judges are expected to take an active role in developing the relevant facts. Similarly, some states have created pro se processes through which litigants can quickly and effectively access legal rights and protections without the need for representation by an attorney, for example in simple uncontested divorces.) The basic human needs identified in this resolution as most critical for low income persons and families include at least the following: shelter, sustenance, safety, health and child custody. •

“Shelter” includes a person or family’s access to or ability to remain in an apartment or house, and the habitability of that shelter.

•

“Sustenance” includes a person or family’s sources of income whether derived from employment, government monetary payments or “in kind” benefits (e.g., food stamps). Typical legal proceedings involving this basic human need include denials of or termination of government payments or benefits, or low-wage workers' wage or employment disputes where counsel is not realistically available through market forces.

•

“Safety” includes protection from physical harm, such as proceedings to obtain or enforce restraining orders because of alleged actual or threatened violence whether in the domestic context or otherwise.

•

“Health” includes access to appropriate health care for treatment of significant health problems whether that health care is financed by government (e.g., Medicare, Medicaid, VA, etc.) or as an employee benefit, through private insurance, or otherwise.

•

“Child custody” embraces proceedings where the custody of a child is determined or the termination of parental rights is threatened.29

The above categories are considered to involve interests so fundamental and important as to require governments to supply low income persons with effective access to justice as a matter of right. There is a strong presumption this mandates provision of lawyers in all such cases. Trivial threats, however, even to a basic human need would not warrant such an investment of legal 29

See generally, ABA Standards of Practice for Lawyers Representing Children in Custody Cases (2003) which includes suggested criteria to decide when counsel should be appointed for children in custody cases.

13

112A ABA House of Delegates - August 2006 resources. Nor need counsel be supplied at public expense in cases where a lawyer is available to the litigant on a contingent fee basis. Furthermore, in some instances, there are informal proceedings, such as welfare fair hearings, in which government expressly permits trained and supervised non-lawyer advocates to represent both sides and where providing such representation is often sufficient. In still other instances, jurisdictions have redesigned a few select proceedings so they are not adversarial and also furnish self-help assistance sufficient to permit a litigant to have a fair hearing without any form of representation before the court. In such proceedings, the test is whether it can be honestly said the litigant can obtain a fair hearing without being represented by a lawyer. With rare exceptions, this will be true only when certain conditions are met: the substantive law and procedures are simple; both parties are unrepresented; both parties are individuals and neither is an institutional party; both parties have the intellectual, English language, and other skills required to participate effectively; and, the proceedings are not adversarial, but rather the judge assumes responsibility for and takes an active role in identifying the applicable legal standards and developing the facts. This resolution focuses the right on “low income persons,” but leaves to each individual jurisdiction the flexibility to determine who should be considered to fit within that category. Rather than being bound by the current national LSC eligibility guidelines (which are widely considered to be under-inclusive), it is anticipated jurisdictions will create their own criteria taking account of the applicant’s income, net assets (if any), the cost of living and cost of legal services in the state or locality, and other relevant factors in defining the population to which this right attaches. Because a civil right to counsel is likely to evolve in different ways in different jurisdictions, and also because states presently invest at very different levels, it is difficult to estimate how much a given jurisdiction will have to spend in additional public resources in order to implement such a right. It is possible to estimate the maximum possible exposure at the national level, however, from two sources – legal needs studies in the U.S. and the experience in other countries which have implemented a right to counsel in civil cases. Although there are major disparities among states, the United States is estimated to provide on average less than $20 of civil legal aid per eligible poor person. Most needs studies conclude the U.S. is already meeting roughly 20 percent of the need. This suggests the full need could be met if the U.S. raised the average to $100 per eligible person. But the right advocated in this resolution is substantially narrower and thus could be funded for substantially less than that. This conclusion is reinforced by the experience in England which has a much broader right to counsel than proposed in this resolution and the most generously funded legal aid program in the world, and furthermore uses a more costly delivery system than the U.S.30 Yet it only spends in the neighborhood of $100 per eligible poor person. Thus, it is reasonable to anticipate the narrower right advocated in this resolution at the worst would result in a tripling of a jurisdiction’s current investment in civil legal aid – although it might require somewhat more for states well below the national average and somewhat less for those presently above that average.

30

England provides partially-subsidized counsel to those above its poverty line. But completely free civil legal aid is available for the approximately 26 percent of the population below its poverty line, which amounts to approximately 13.5 million people. The English legal aid program currently spends about 1.36 billion dollars providing civil legal services to those in this lowest income stratum who are entitled to free legal services. That amounts to slightly more than $100 per eligible person in this income category.

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112A ABA House of Delegates - August 2006 In any event, put in perspective the increase would be a comparatively minor budgetary item in most states. Compared to Medicaid, for example, which nationally costs over $200 billion a year and spends nearly $4,200 per eligible person,31 devoting even as much as $60 to $100 per eligible poor person in order to give them meaningful access to justice in their most urgent cases appears to be a minimal and justifiable investment. Funding this right also would only bring the total civil legal aid investment to about 1.5 percent of what American society currently spends on lawyers in this country, about the same share as they had in 1980.32 It is often difficult to obtain clear public understanding of the needs of the justice system. The third branch has historically struggled to obtain sufficient resources to fulfill its constitutional mandates.33 Yet a peaceful and orderly society depends upon the effective functioning of the justice system. Within the sphere of justice system funding, there is a hierarchy of poor and poorer agencies. The courts are frequently under-funded. Even more resource starved are systems for providing constitutionally-mandated services to indigent persons accused of crimes. Last on the list are programs supplying civil legal aid. Implementation of a civil right to counsel as proposed herein is not intended to set up a struggle for the crumbs of finite resources between deserving, but oft-ignored constituencies. The result should not be a diminution of current or future funds allocated for public defense, which is an area that has all too often been inadequately supported by states and counties. Rather, it will be necessary for bar and judicial leaders to assist in educating the public and policy-makers about the critical functions of these parts of the justice system, and the need for our society to guarantee true access to justice for all. Conclusion In a speech at the 1941 meeting of the American Bar Association, U.S. Supreme Court Justice Wiley Rutledge observed: “Equality before the law in a true democracy is a matter of right. It cannot be a matter of charity or of favor or of grace or of discretion.” If Justice Rutledge’s self-evident statement required proof, the past 130 years of legal aid history have demonstrated its truth. Not only has equality before the law remained merely a matter of charity in the United States, but that charity has proved woefully inadequate. The lesson from the past 130 years is that justice for the poor as a matter of charity or discretion has not delivered on

31

2006 Statistical Abstract of the United States, Table 136, reflecting Medicaid alone provided $213 billion in health care to low income people. (This does not include the Medicare funds devoted to elderly poor in addition to their Medicaid benefits. Nor does it include other public funds used for health clinics and other special health care programs for low income patients. In 2003, a total of $279 billion was spent on the combination of Medicaid and other health care for the nation’s low income residents. Table 122. This figure still did not include Medicare payments for the elderly poor, however.) 32

According to the Statistical Abstract of the United States, Table 1263, individuals and institutions spent $194 billion on the services of lawyers in 2002. $3 billion would represent only 1.5 percent of that total societal expenditure on lawyers. This 1.5 percent would be about the same share of total legal resources as low income Americans had in FY 1980. That year the LSC budget was $321million with other public and private resources supplying several million more in civil legal aid, while the total societal investment in lawyer services was $23 billion. This gave civil legal aid roughly 1.5 percent of the nation’s legal resources in that year. 33

See Funding the Justice System, A Report by the American Bar Association Special Committee on Funding the Justice System (August, 1992).

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112A ABA House of Delegates - August 2006 the promises of “justice for all” and “equal justice under law” that form the foundation of America’s social contract with all its citizens, whether rich, poor, or something in between. The Task Force and other proponents of this resolution are convinced it is time for this nation to guarantee its low income people equality before the law as a matter of right, including the legal resources required for such equality, beginning with those cases where basic human needs are at stake. We are likewise convinced this will not happen unless the bench and bar take a leadership role in educating the general public and policymakers about the critical importance of this step and the impossibility of delivering justice rather than injustice in many cases unless both sides, not just those who can afford it, are represented by lawyers.

Respectfully submitted, Howard H. Dana, Jr., Chair Task Force on Access to Civil Justice August 2006

16

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS NORTHERN DIVISION Don Hamrick 5860 Wilburn Road Wilburn, Arkansas 72179 CLEBURNE COUNTY Plaintiff v. President George W. Bush, et al. Defendants

) ) ) ) ) ) ) ) ) )

No. 4:06MC00025 WRW No. 4:06MC00026 GH

"CIVIL GIDEON" MOTION FOR A COURT APPOINTED ATTORNEY COMPETENT & PROFICIENT WITH THE RICO ACT AND WITH SECOND AMENDMENT JURISPRUDENCE AND CONSTITUTIONAL LAW AS A MATTER OF RIGHT I hereby proffer my Civil Gideon motion for a court-appointed attorney competent and proficient with the RICO Act and with Second Amendment jurisprudence and Constitutional Law. If no attorney competent and proficient in both areas of law is available then I hereby motion for two court-appointed attorneys, one attorney competent and proficient with the RICO Act and the other attorney competent and proficient with Second Amendment jurisprudence and Constitutional Law because my case is for the enforcement of laws enacted for the safety of seafarers under 28 U.S.C. § 1916 to which it falls under the American Bar Association's new "Civil Gideon" standard for civil justice for the unrepresented civil plaintiff. My case is intrinsically complex and as such I will be relying on David F. Herr's, Annotated Manual for Complex Litigation, 4th Ed., 2006, $77.00, published by West Group; and Paul A. Batista, Civil RICO Practice Manual, 2nd Edition, $220, by Aspen Publishers with automatic supplementation and many other sources. I will also be filing a Motion for Case Management due to the complexity of my case. It will be not only in my best interest but there is a governmental interest that I be appointed competent representation because my case could be considered as a case of first impression on the distribution of power under the Tenth Amendment as an integral part of the checks and balance of our system of government and as an integrated system for the Common Defence through the Second Amendment rights of the People, especially under the American Bar Associations new standard for "Civil Gideon" representation when State of Federal government actions are contrary to the Bill of Rights and to the Common Defence. On August 7, 2006 the American Bar Association's Task Force on Access to Civil

Justice, et al, unanimously urged, "federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody, as determined by each jurisdiction." Conclusion In a speech at the 1941 meeting of the American Bar Association, U.S. Supreme Court Justice Wiley Rutledge observed: "Equality before the law in a true democracy is a matter of right. It cannot be a matter of charity or of favor or of grace or of discretion." If Justice Rutledge's self-evident statement required proof, the past 130 years of legal aid history have demonstrated its truth. Not only has equality before the law remained merely a matter of charity in the United States, but that charity has proved woefully inadequate. The lesson from the past 130 years is that justice for the poor as a matter of charity or discretion has not delivered on the promises of "justice for all" and "equal justice under law" that form the foundation of America's social contract with all its citizens, whether rich, poor, or something in between. The Task Force and other proponents of this resolution are convinced it is time for this nation to guarantee its low income people equality before the law as a matter of right, including the legal resources required for such equality, beginning with those cases where basic human needs are at stake. We are likewise convinced this will not happen unless the bench and bar take a leadership role in educating the general public and policymakers about the critical importance of this step and the impossibility of delivering justice rather than injustice in many cases unless both sides, not just those who can afford it, are represented by lawyers. Respectfully submitted, Howard H. Dana, Jr., Chair Task Force on Access to Civil Justice August 2006 It is now the new legal standard that pro se civil plaintiffs do, in fact and law, have a right to counsel on equal standing with criminal defendants. The August 7, 2006, ABA Resolution countermands the August 1, 2006 letter from James McCormark, Deputy clerk of the U.S. District Court for the Eastern Distri ct of Arkansas, Office of the Clerk, Little Rock, Arkansas stating: "Pro se litigants are not entitled to have counsel appointed to represent them in a civil action. A judge has the authority to appoint counsel in exceptional circumstances. If yhou want a judge to consider appointing counsel to represent you, you may file a motion for appointment of lcounsel. In the motion, you should explain why you think you need an attorney and any efforts you have made to obtain counsel." The significance of the ABA Resolution means that the federal judges will be less likely to jerk me around the Federal Rules of Civil Procedure as was done to me in the

U.S. District Court for the District of Columbia with the anti-gun Judge Reggie B. Walton when I have a court appointed attorney as a matter of right. The full 16 page ABA Report to the House of Delegates is appended to this Civil Gideon Motion for the courts education on Equal Rights Under the Law and the Right to Substantial and Procedural Due Process. Also appended are other documents of equal import to this subject matter. Even if the ABA did not unanimously approve the Civil Gideon Resolution my case is chock full of exceptional circumstancdes: 1. My case employes the RICO Act against the U.S. Government to allege racketeering an unlawful and an unconstitutional protection scheme over the Second Amendment. Had it not been for judicial bigotry/bias and misconduct against my case because of its subject matter, and the fact that the DC Circuit, in Case No. 04-5316, remanded my case for further proceedings on Second Amendment grounds my case has constitutional merit not only on Second Amendment grounds but also on RICO Act grounds, that is if I had a virtuous judge not biased by personal ideologies and political influences. 2. My case has a lengthy series of Federal Questions under 28 U.S.C. § 1331 such as what role are U.S. seafarers supposed to have in homeland security when the U.S. Department of Homeland Security has general superintendence over the U.S. merchant marine under 46 U.S.C. § 2103 in regard to the Second Amendment and the Common Defence clause of the Preamble to the U.S. Constitution? 3. Continuing retaliation and harassment of me by the U.S. Government for exercising First Amendment rights to free speech, to petition, and freedom of assembly for posting on the Internet an article criticising the U.S. Coast Guard for actions taken against me regarding a criminal investigation of me by by U.S. Naval Criminal Investigative Service at the request of the U.S. Coast Guard over a First Amendment "free speech" and "freedom of the press" Second Amendment article on what innocent murder victims see just before they are murdered by a criminal with a gun. 4. My Second Amendment case from a merchant seaman's point of view takes the Second Amendment and views it through the Common Defence clause (Defence is the original spelling as used) in the Preamble to the U.S. Constitution, and through the Ninth, Tenth, Thirteenth, and Fourteenth Amendments such that it could be consider a case of first impression. 5. Because I have been an unrepresented civil plaintiff in the U.S. District Court for the District of Columbia (one of the most anti-Second Amendment locations in the United States) and becuase my case was assigned to an anti-Second Amendment judge, Reggie B. Walton who ruled that the Second Amendment does not apply to the District of Columbia, the judge jerked me around the Federal Rules of Civil Procedure unecessarily delaying my case and causing me greater expense apparently hoping to bust me financially and thereby unconstitutionally denying my right to substantial due process. 6. The list of judicial irregularities are too numerous to list here even though they are worthy of a criminal investigation by the FBI and the Inspector General of the U.S.

Department of Justice. I deserve fair treatment from the U.S. District Court for the Eastern District of Arkansas, Northern Division, if for no other reason than because I was treated as a second class citizen with no First Amendment right to petition the government for redress of grievances. Respectfully submitted

Don Hamrick

United States District Court for the Eastern District of Arkansas, Northern Division 1, Batesville, Arkansas Don Hamrick 5860 Wilburn Road Wilburn, AR 72179 PLAINTIFF v. President George W. Bush White House 1600 Pennsylvania Ave. Washington, DC 20500 Michael Chertoff, Secretary Department of Homeland Security Washington, DC Secretary U.S. Transportation Security Administration Washington, DC Commandant (G-C) U.S. Coast Guard Washington, DC (1) Judge Reggie B. Walton (2) Judge Ellen Segal Huvelle (3) Calendar Committee U.S. District Court for DC 333 Constitution Ave., NW Washington, DC Chief Judge U.S. Court of Appeals for the DC Circuit 333 Constitution Ave., NW Washington, DC DEFENDANTS

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Is there any interest in justice? Or does corruption and judicial activism govern the rule of law? 28 U.S.C. § 1402(a)(1) 28 U.S.C.§ 1404(a) 18 U.S.C. § 1964(c) 42 U.S.C. § 1983; § 1985; § 1986; § 1988 Civil Action No. _______________ Jury Trial Demanded Damages Sought: $9 million

) Nine Justices ) U.S. Supreme Court ) 1 First St., NE ) Washington, DC 20543 ) ) Dennis Barghaan ) U.S. Attorney’s Office ) 2100 Jamieson Ave. ) Washington, DC 22314 ) ) Anthony Campos, Dep. Marshal ) U.S. Marshals Service ) 333 Constitution Ave., NW ) Washington, DC ) ) )

PLAINTIFF’S MOTION FOR PERMANENT INJUNCTION A GAINST THE U.S. D EPARTMENT OF T RANSPORTATION (D O T), THE U.S. D EPARTMENT OF H OMELAND S ECURITY , THE U.S. C OAST G UARD , THE FAA, AND THE CSM I/WSS, L TD . P ERMANENTLY P ROHIBITING THE E NFORCEMENT OF THE D O T’S “ACTION: DO NOT ADMIT” (B AR N OTICE) A GAINST THE P LAINTIFF D ON H AMRICK A ND FOR A P ERMANENT INJUNCTION A GAINST A NY O THER F EDERAL A GENCY WITH S IMILAR A CTIONS (IF A NY ) On Thursday, August 10, 2006 I visited to U.S. Coast Guard Headquarters at 2100 2nd Street SW, in the District of Colum bia as the unrepresented civil plaintiff and as a docum ented U.S. merchant seaman unsuspecting that their was a U.S. Department of Transportation Bar Notice (ACTION: DO NOT ADM IT

DONALD HAM RICK File Number #04008 issued by Michael Prendergast, Associate Director of Security Operations. As a result my luggage was searched and a pair of scissors were confiscated without a giving me a receipt on the basis that the scissors were a weapon. This constitutes theft of private property under color of law. There was no reason to confiscate the scissors because the Plaintiff’s entrance into the Coast Guard Headquarters was prohibited by the DoT. In addition to the confiscation of the scissors, a crowd of lookyloos gathered around to watch the spectacle. This constitutes public humiliation and defamation. That Bar Notice is attached herein. The notice does not detail any offense that would cause such a notice to be issue. The only clue is the photo that is included in the Bar Notice. This photo is shows the plaintiff Don Hamrick sitting in front of a computer. That photo is of poor reproduction quality from a copy machine such that the face cannot be seen. There is no clue as to when or where that photograph was taken. The Plaintiff had himself photographed at an Internet Café in Klapeida, Lithuania in 2002 after the Capt. J. P. Brusseau of the U.S. Coast Guard in Washington, DC had the Plaintiff taken off the U.S. Government vessel anchored off the coast of Lithuania in an ignorant and misguided act of retaliation over the Plaintiff’s emailing of a publishable article and what innocent murder victims see the split moment they are killed by a crim inal with a gun. The article was intended to be a Second Amendment article in support of the Plaintiff’s application for “National Open Carry Handgun” endorsement on his Merchant M ariner’s Document. The Capt. Brusseau dispatched two civilian special agents of the European Branch of the U.S. Naval Criminal Investigative Service to conduct a criminal interview with the Plaintiff. The duration of the interview was 2 hours and was held the Plaintiff’s hotel room in Klapeida, Lithuania. The NCIS special agents were satisfied that the Plaintiff intended no harm toward Capt. Brusseau or anyone in the U.S. Coast Guard so the Plaintiff was led to believe. Now comes this DoT Bar Notice that is now 2 years old. The Plaintiff was never inform ed of this action against him. He was given no opportunity to respond to any allegations causing the issuance of the Bar Notice.

Retaliating Against the Plaintiff for Exercising His First Amendment Right to Petition This Bar Notice violates the Plaintiff’s First Amendment right to petition the government for redress of grievances. It violates my right to travel. It violates my duty to visit the Coast Guard on merchant marine business. It is retaliatory in nature for criticisms against the U.S. Coast Guard and the U.S. Government over the Second Amendment. The Plaintiff was instructed that he would be arrested if he again attem pt to enter the U.S. Coast Guard Headquarters, the DoT, the FAA facilities in the District of Columbia without approval from OST Security Operations. That alone in conjunction with the photograph in the Bar Notice establishes a tortuous retaliatory action relating to his lawsuit for defamation and damages against the U.S. Coast Guard ii

in 2002. 42 U.S.C. § 1981. Equal rights under the law. (a) Statem ent of equal rights. (b) ''M ake and enforce contracts'' defined. (c) Protection against impairment. 42 U.S.C. § 1983. Civil action for deprivation of rights. 42 U.S.C. § 1985. Conspiracy to interfere with civil rights. (2) Obstructing justice; intimidating party, witness, or juror. (3) Depriving persons of rights or privileges. 42 U.S.C. § 1986. Action for neglect to prevent. 42 U.S.C. § 1987. Prosecution of violation of certain laws. 42 U.S.C. § 1988. Proceedings in vindication of civil rights.

The Plaintiff had a First Amendment right to petition incursion with the U.S. Marshals Service and was told not to enter the District of Columbia. Presuming there may be a connection with the DoT’s retaliatory Bar Notice the Plaintiff requests the Permanent Injunction to include any and all federal agencies prohibiting any enforcement orders prohibiting the Plaintiff from free and unfettered access to federal buildings and agencies. This incident will be included as evidence of an ongoing conspiracy to harass the Plainiff over his Second Amendment case. I will soon be filing my amended Civil RICO Act Complaint with the U.S. District Court for the Eastern District of Arkansas, Northern Division. The amended complaint is now more than 2,000 pages.

iii

The Original Photo! The Plaintiff’s location here was at an Internet café in Klapeida, Lithuania wrongfully detained for 12 days because Capt. Brusseau had the Plaintiff above taken from his employed ship for questioning aboard the attached Second Amendment article. The very next day after being taken from the ship the Plaintiff’s ship departed for a 10-day U.S. naval exercise. The Plaintiff nearly lost his employment over this incident but he persuaded his employment company (managing the U.S. Government pre-position ship) to allow him to return to the ship because the incident occurred due to no fault or wrongdoing by the Plaintiff. The Capt. Brusseau’s vivid imagination perceived a threat where none existed. Common sense and reasoning are the the casualties of war against terrorism. An innocent Second Amendment article is snowballing into an national U.S. Government retaliation against the Plaintiff for simply criticizing Capt. Brusseau specifically and the U.S. Government generally. The the rate of escalation of this snowball effect the Plaintiff fears that he may be facing arrest on some trumped up charges sometime in the future. Is Plaintiff’s Second Amendment case for National Open Carry Handgun somehow the real source of the U.S. Government’s retaliation? The Plaintiff seeks a cease and desist order from the Court prohibiting the U.S. Government from harassing the Plaintiff when there is no probable cause for any stop & search or any arrest resulting therefrom. The only way the Department of Transportation could have gotten this photo was from the Internet. The

iv

The Plaintiff hereby m otions for the Perm anent Injunction and for such other relief the Court my deem necessary. Respectfully submitted.

Don Hamrick 5860 W ilburn Road W ilburn, Arkansas 72179 Em ail: ki5ss@ yahoo.com Em ail: 4donhamrick@ gmail.com

CERTIFICATE OF SERVICE On August 10, 2006, I, Don Hamrick, hereby certify that I delivered a copy of the above by Federal Express Ground to:

M Paul D. Clement, Solicitor General Room 5614; U.S. Department of Justice 950 Pennsylvania Ave. NW ; W ashington, DC 20530-0001

M M ichael Chertoff, Secretary Department of Homeland Security W ashington, DC

M Executive Secretary M arine Safety, Security, and Environmental Protection Comm andant (G-LRA) U.S. Coast Guard 2100 Second St. W ashington, DC 20593

M M ichael Prendergast Associate Director of Security Operations Department of Transportation

Don Hamrick, Petitioner, Pro Se 5860 W ilburn Road W ilburn, Arkansas 72179 (501) 728-4235 4donhamrick@ gmail.com

v

PLAINTIFF' DISCLAIMER: I did not commit any offense to which this DOT Bar Notice falsely alleges. This DOT Bar Notice is pure and simple harassment in retaliation for my lawsuit that includes the U.S. Coast Guard. Motion for Permanent Injunction pending, but the judge is sitting on it.

PLAINTIFF' DISCLAIMER: I did not commit any offense to which this DOT Bar Notice falsely alleges. This DOT Bar Notice is pure and simple harassment in retaliation for my lawsuit that includes the U.S. Coast Guard. Motion for Permanent Injunction pending, but the judge is sitting on it.

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS NORTHERN DIVISION (BATESVILLE) Don Hamrick 5860 Wilburn Road Wilburn, Arkansas 72179 CLEBURNE COUNTY Plaintiff v. President George W. Bush, et al. Defendants

) ) ) ) ) ) ) ) ) )

No. 4:06MC00025 WRW No. 4:06MC00026 GH

MOTION FOR TEMPARY/PERMANENT INJUNCTION MOTION FOR SUBPOENA OF EVIDENCE FOLLOW UP I previously submitted a Motion for a Permanent Injunction to this Court that I had earlier submitted to the U.S. District Court for the District of Columbia. The DC Court has yet to rule on the motion but I suspect the motion will be denied as the DC Court has continuously shown a hostile bias against my Second Amendment case. Even if the DC Court denies or even grants my motion, the DC Court does not have jurisdiction and the case in that court is VOID even though Judge Reggie B. Walton is now acting in defiance of 28 U.S.C. § 1402(a)(1) since he has denied my motion to transfer my case to the U.S. District Court for the Eastern District of Arkansas, Northern Division. Last week or so I visited the U.S. Coast Guard on intended maritime business for the purpose of inquiry into public documents that could be used as evidence supporting my case. I do not have an attorney and must to the work of an attorney myself. I was unaware of any 2004 Bar Notice against me prohibiting me from entering any DOT, FAA, or U.S. Coast Guasrd buildings in Washington, DC. I was never notified. I was given a faxed copy of that 2004 Bar Notice by security personnel at the U.S. Coast Guard Headquarters in Washington, DC. Now comes Michael Prendergast, Associate Director, Security Operations, U.S. Department of Transportation again issuing another Bar Notice on August 11, 2006 citing 41 C.F.R. 102-74.390 What is the Policy Concerning Disturbances? and the District of Columbia code IV DC Code § 22-3302. Unlawful Entry on Property. I attach herein a copy of Mr. Prendergast's letter dated August 11, 2006. In that letter as with his letter from 2004 he does not state any offense that I am alleged to have committed under the cited laws. He does not offer instructions for any appeals procedure or any rights to appeal that I may have to refute the Bar Notice. The 2004 Bar Notice used a photograph of me that was only available on the Internet as part of a "news bulletin" criticizing the U.S. Coast Guard for actions taken against me over an emailed article on the Second Amendment on what innocent

murdered victims see just before they are shot to death because they did not have a handgun for personal protection under the Second Amendment. On August 11, 2006, Mr. Prendergrast issues another Bar Notice against me because I had peaceably visited the U.S. Coast Guard Headquarters in Washington, DC as the unrepresented civil plaintiff pursuing my case for evidence from available public documents in addition to maritime business related to my occupation as a merchant seaman. At no time did I conduct myself in a disorderly fashion. The security personnel conducted themselves in the imaginary belief that I as causing a disturbance and in fact confiscation my scissors on the preposterous accusation that the scissors wear a weapon. The security personnel clearly over reacted to whatever was in their database under my name. ---------------------------CODE OF FEDERAL REGULATIONS Title 41 -- Public Contracts and Property Management Chapter 102 -- Federal Management Regulation Part 102-74 -- Facility Management -- Table of Contents Subpart C -- Conduct on Federal Property 41 C.F.R. § 102-74.390 What is the policy concerning disturbances? All persons entering in or on Federal property are prohibited from loitering, exhibiting disorderly conduct or exhibiting other conduct on property which: • (a) Creates loud or unusual noise or a nuisance; • (b) Unreasonably obstructs the usual use of entrances, foyers, lobbies, corridors, offices, elevators, stairways, or parking lots; • (c) Otherwise impedes or disrupts the performance of official duties by Government employees; or • (d) Prevents the general public from obtaining the administrative services provided on the property in a timely manner. ---------------------------DISTRICT OF COLUMBIA CODE Division IV. Criminal Law and Procedure and Prisoners. Title 22. Criminal Offenses and Penalties. (Refs & Annos) Subtitle I. Criminal Offenses. Chapter 33. Trespass; Injuries to Property. IV DC Code § 22-3302. Unlawful entry on property. Any person who, without lawful authority, shall enter, or attempt to enter, any public or private dwelling, building, or other property, or part of such dwelling, building, or other property, against the will of the lawful occupant or of the person lawfully in charge thereof, or being therein or thereon, without lawful authority to remain therein or thereon shall refuse to quit the same on the demand of the lawful occupant, or of the person lawfully in charge thereof, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $100 or imprisonment in

the Jail for not more than 6 months, or both, in the discretion of the court. ---------------------------Mr. Prendergast's citing from the U.S. Code and from the DC Code does not make for allegations supportive for any Bar Nodes. That is no different than me citing the law on Fraud and False Statements, 18 U.S.C. § 1001 as an allegation against Mr. Prendergast without providing any evidence to support the crime. Hence my motion for a subpoena so that I can gather the evidence to defend myself against the Mr. Prendergast's Bar Notice and reclaim my reputation. Since I initiated my lawsuits in 2002 I have made it a personal goal to conduct myself in a professional, cordial, respectful, and a dignified manner as an unrepresented plaintiff with a potential landmark Second Amendment case. It is because my Second Amendment case has the potential to be a landmark case that I would be doing everything, from filing pleadings to visiting federal agencies, in a lawful, respectfull, and dignified manner. If there was any perceived disturbances as presumed to be the basis of Mr. Prendergast's Bar Notices the would have had to be frabricated out of whole cloth in order to subvert my efforts at proving my civil case against the U.S. Coast Guard. What better way that to concoct false allegations of a disturbance at the U.S. Coast Guard building? Who is to know the real truth if such a Bar Notice contested in front of a federal judge? Compounding the direct relationship between the U.S. Coast Guard and I the U.S. Department of Justice through Assistance U.S. Attorney Dennis Barghaan, U.S. Attorney's Office in Alexandria have done much to employ every dirty trick in the book to prevent my case from proceeding past their Motion to Dismiss. Then when I win my Second Amendment part of my case on appeal at the DC Circuit and my case is remanded to the U.S. District Court for DC (even though I did not know I had filed my case in the wrong U.S. District Court under 28 U.S.C. § 1402(a)(1)) for further proceedings the the District Court Judge Reggie B. Walton pulled a "Let's redo Rule 7" with his deceptive "Scheduling Order" instead of issuing a proper "Scheduling Order" under Rule 16 and Rule 26 of the Federal Rules of Civil Procedure. The U.S. District Court for DC and the U.S. Department of Justice have been jerking me around the Federal Rules of Civil Procedure as if I am too ignorant as an unrepresented civil plaintiff to know what is going on. Now, the U.S. Department of Transporation, the U.S. Coast Guard are exacerbating the situation with false allegation such that the Department of Transportation is interjecting itself as gatekeeper on when and where I can exercise my First Amendment right to petition as an unrepresented civil plaintiff with a federal civil rights case. The Department of Transportation is violating my right to due process under the Fourteenth Amendment and my Fifth Amendment right by issuing their Bar Notice without any opportunity for me to attend a hearing to defend myself against any allegations (if any allegation ever existed). The U.S. Coast Guard is clearly acting in retaliation over my exercising my First Amendment rights to free speech in publicizing my criticism of the U.S. Coast Guard and my right to petition in filing a civil case for mandamus, for damages, and in subsequently filing a civil RICO Act case against the U.S. Coast Guard and against other parties.

This is why the federal courts are supposed to be fair tribunals guarding against any transgressions from the Federal and State Governments against the rights of the People. It is the degree and the repetition of the Federal Courts deferring to the Executive Branch that determines whether or not the Judicial Branch is truly independent from the whims of the Executive Branch. As an unrepresented civil plaintiff I pray that the U.S. District Court for the Eastern District of Arkansas, Northern Division will remain fair and impartial in my RICO Act case against the United States Government over the Second Amendment. I hereby motion for the Court to issue a temporary injunction and subsequently if there is determined to be no basis in fact and law for Mr. Prendergast's Bar Notices against me that the temporary injunction becomes a permanent injunction. I further motion for the Court to issue a subpoena to the Department of Transportation and the U.S. Coast Guard for any and all evidence alleged to have been used as the basis for Mr. Prendergast's Bar Notices. Respectfully submitted

Don Hamrick

United States District Court For the District of Columbia DON HAM RICK , U.S. MERCHANT SEAMAN 5860 Wilburn Road Wilburn, AR 72179 PLAINTIFF, pro se v. PRESIDENT GEORGE W. BUSH White House 1600 Pennsylvania Ave. Washington, DC 20500 ALBERTO GONZALES , ATTORNEY GENERAL U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530-0001 MICHAEL CHERTOFF , SECRETARY Department of Homeland Security Washington, DC 20528 ADM . THOM AS H. COLLINS Commandant (G-C) U.S. Coast Guard Washington, DC 20593-0001 CAPT . SALERNO , DIRECTOR , Field Activities, Marine Safety, Sec, & Environmental Protection Commandant (G-MO) U.S. Coast Guard Washington, DC 20593-0001 REP . FRANK LO BIONDO (R-NJ) House Subcommittee on Coast Guard and Maritime Transportation Washington, DC RESPONDENTS

) ) Should have read "Wrong Venue" ) ) CIVIL RIGHTS COMPLAINT ) ) 42 U.S.C. § 1981, 1983, 1985, 1986, 1988 ) ) CIVIL ACTION #: 03-2160 RBW ) ) ) ) ) ) ) ) ) UNITED STATES AS DEFENDANT ) Any civil action in a district court against the ) United States under subsection (a) of section ) 1346 of this title may be prosecuted only: ) (1) Except as provided in paragraph (2), in the ) judicial district where the plaintiff resides; ) ) ) ) ) ) ) ) See also 28 U.S.C. § 1404(a) ) CHANGE OF VENUE ) ) ) ) )

This Case Is Void for Lack of Jurisdiction

28 U.S.C. § 1402(a)(1)

The Plaintiff Resides in Arkansas!

PLAINTIFF’S NOTICE OF ADJUDICATIVE FACTS BECAUSE THE PLAINTIFF IS A RESIDENT OF ARKANSAS THE U.S. DISTRICT COURT FOR DC DOES NOT HAVE JURISDICTION

Plaintiff’s Cases Nos. 02-1434, 02-1435, 03-2160, and all Subsequent Appeals are Void for Lack of Jurisdiction P LAINTIFF’S M OTION FOR C URE U NDER 28 U.S.C. § 1406(a), IN THE INTEREST OF JUSTICE T HE P LAINTIFF D EMANDS T HAT H IS C ASE B E IMMEDIATELY T RANSFERRED T O T HE U.S. D ISTRICT C OURT FOR THE E ASTERN D ISTRICT OF A RKANSAS , N ORTHERN D IVISION 1

NOTICE! The Plaintiff will immediately re-file his updated (new) Mandamus & Civil RICO Act cases with the U.S. District Court for the Eastern District of Arkansas, Northern Division (Little Rock/Batesville, Arkansas) whether or not Judge Reggie B. Walton recognizes that this case (No. 03-2160) is VOID FOR LACK OF JURISDICTION under 28 U.S.C. § 1402(a)(1). “In the interest of justice,” Judge Walton, among others, will be named as co-defendants in Plaintiff’s new Civil RICO Act case. CASE LAW FOR THIS MOTION “It is said that absolute judicial immunity is favored as public policy, so that judges may fearlessly, and safe from retribution, adjudicate matters before them. True. But equally important, is the public expectation that judicial authority will only be wielded by those lawfully vested with such authority.” MY CASE IS VOID FOR LACK OF JURISDICTION

judicial immunity of judicial acts. See: Forrester v. White, 484 U.S. 219, 98 L.Ed.2d 555, 108 S.Ct. 538 (1988); Atkinson-Baker & Assoc. v. Kolts, 7 F.3d 1452 at 1454, (9th Cir. 1993).

Under federal Law, which is applicable to all states, the U.S. Supreme Court stated that “if a court is without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification and all persons concerned in executing such judgments or sentences are considered, in law, as trespassers.” Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828)

JUDICIAL ACTION WITHOUT JURISDICTION IS LAW LESS VIOLENCE “No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence.” Ableman v. Booth, 21 Howard 506 (1859).

JUDGE WALTON HAS NO JUDICIAL IM M UNITY FROM RICO ACT CIVIL LAW SUIT

JUDGE WALTON IS NOT ABOVE THE LAW

When a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes expressly depriving him of jurisdiction, judicial immunity is lost. Rankin v. Howard, (1980) 633 F.2d 844, cert den. Zeller v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326. Zeller v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326

“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance, with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law are bound to obey it. It is the only supreme power in our system of government, and every man who, by accepting office participates in its functions, is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes on the exercise of the authority which it gives.” United States v. Lee,

Administrative-capacity torts by a judge do not involve the “performance of the function of resolving disputes between parties, or of authoritatively adjudicating private rights,” and therefore do not have the 12

106 U.S. 196, 220 1 S. Ct. 240, 261, 27 L. Ed 171 (1882)

Federal Courts and ultimately, disrespect for the law.” Roadway Express v. Pipe, 447 U.S. 752 at 757 (1982)

THE CORRUPT U.S. DEPARTM ENT OF JUSTICE

PLEADING FOR PROPER JUSTICE

“It is deeply distressing that the Department of Justice, whose mission is to protect the constitutional liberties of the people of the United States, should even appear to be seeking to subvert them by extreme and dubious legal argument.” United States v. Chadwick, 433 U.S. I at 16 (1976)

“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.” Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938)

“I do not understand the government to contend that it is any less bound by the obligation than a private individual would be...” “It is not the function of our government to keep the citizen from falling into error; it is the function of the citizen to keep the government from falling into error.” Perry v. United States, 204 U.S. 330, 358

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

“Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” Olmstad v. United States, (1928) 277 U.S. 438

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. Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233

“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

“Even where the shoot ‘em up TV News is concerned, any highjacked plane whatsoever is considered big news, but when a ship is taken forever, and its crew murdered — no one seems to care.” Eric Ellen

Society’s commitment to institutional justice requires that judges be solicitous of the rights of persons who come before the court. Geiler v. Commission on Judicial Qualifications, (1973) 10 Cal.3d 270, 286

13

T HE B IAS OF JUDGE R EGGIE B. W ALTON ! Written directly to Judge Reggie B. Walton in the first person: To use an analogy from the old western cowboy movies there is presently a litigious bar room brawl going on in the federal courts over the Second Amendment and I am in the midst of it fighting for the American merchant seamen’s perspective. But while everyone else, judges and lawyers, are volleying their legal arguments point blank like civil war canon fire I am ignored, left with no one to engage with my own legal artillery simply because I am an unrepresented plaintiff. This is judicial bigotry of the most egregious kind. Your SCHEDULING ORDER , Judge Walton, whether written by you or your clerk, displays an incorrect date of August 16, 2006, for the Court’s dismissal of the Plaintiff’s case with prejudice. The correct date is August 26, 2004. Because August 16, 2006 is more than a month into the future the lack of attention to accuracy this exemplifies is more than a simple typo. This Freudian slip indicates, you have a general bias against Second Amendment cases and/or against unrepresented plaintiffs. You have allowed an simple chronological error to be entered into the record of my case. This error is evidence of a sloppiness with which my present case and my original cases under Judge Edith Segal Huvelle have been handled. Judge Edith Segal Huvelle dismissed my original cases with prejudice in 2002. But the Docket Report for my case No. 02-1435, shows that the case was dismissed “without” prejudice. Just how sloppy is the U.S. District Court for DC? On January 26, 2006 the U.S. Court of Appeals for the DC Circuit issued their order affirming the lower Court’s dismissal of my RICO Act claims but “remanded for further proceediongs” on Second Amendment grounds. The following is excerpted from the DC Circuit’s FURTHER ORDERED, on the court’s own motion, that appellant’s Second Amendment claims against the non-judicial defendants, challenging federal firearms statutes and the denial of his “National Open Carry Handgun” endorsement be remanded for further7 proceedings. Compare United States v. Miller, 307 U.S. 174 (1939), and United States v. Haney, 264 F.3d 1161 (10th Cir. 2001), with U.S. v. Emerson, 270 F.3d 203, 227, 260-61 (5th Cir. 2001). The evidence suggests appellant filed an opposition to appellees’ motion to dismiss. See, e.g., Case No. 03cv2160, Docket No. 64, Appellees’ Reply to Opposition to Motion to Dismiss. Furthermore, these Second Amendment claims are not barred by res judicata. See Hoffman v. Blaski, 363 U.S. 335, 340 n.9 (1960); United States v. Dean, 752 F.2d 535, 541 (11th

7

My emphasis.

14

Cir. 1985); see also SEC v. Bilzerian, 378 F.3d 1100, 1102 n.1 (D.C. Cir. 2004). It is

Definition of “Further” Oxford Diction defines “further” to be: used as comparative of far.

>adverb (also farther) 1 at, to, or by a greater distance. 2 over a greater expanse of space or time. 3 beyond the point already reached. 4 at or to a more advanced or desirable stage. 5 in addition; also.

>adjective 1 (also farther) more distant in space.

**2 additional.** >verb help the progress or development of.

The DC Circuit used the phrase “remanded for further proceedings” in their order. The word “proceedings” is a noun. That makes the word “further” an adjective synonymous with the word “additional.” Therefore, my case is “remanded for additional proceedings.”

To my understanding I beat the Government’s Motion to Dismiss on Second Amendment grounds. And to my understanding “further proceedings” (additional proceedings) means that my case moves forward to the Discovery Phase if the U.S. District Court for DC had jurisdiction. Your SCHEDULING ORDER clearly subjects me to REPEATING RULE 7 PROCEEDINGS as the following excerpt from your Scheduling Order undeniably proves: ORDERED that the defendants shall file an answer or otherwise respond to the plaintiff’s complaint by August 4, 2006. The plaintiff shall file an opposition to any motion filed by the defendants by September 1, 2006 and the defendants reply shall by filed by September 15, 2006. You are violating not only my right to due process but the Canons of ethics as a judge. How corrupt can you get jerking around an unrepresented civil plaintiff

preventing me from

proceeding to the Discovery Phase by giving the United States another chance to file a Motion to Dismiss? 15

You are corruptively using Rule 7(a) Pleadings when you should be using Rule 16 Pretrial Conferences; Scheduling; Management and Rule 26 Discovery. You are bending over backwards to let the defendant United States have its way. You are pulling another dirty trick in a long chronology of dirty tricks between the bench and bar in the belief that the Plaintiff is too ignorant with the Federal Rules of Civil Procedure to know what is going on. The sentiments that I have just expressed above falls under Canon 1. All this if you had jurisdiction! CANON 1 A JUDGE SHALL UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY A. An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code are to be construed and applied to further that objective. Commentary: Deference to the judgments and rulings of courts depends upon public confidence8 in the integrity and independence of judges. The integrity and independence of judges depends in turn upon their acting without fear or favor. A judiciary of integrity9 is one in which judges are known for their probity, fairness, honesty, uprightness, and sound-ness of character. An independent judiciary is one free of inappropriate outside influences. Although judges should be independent, they must comply with the law, including the provisions of this Code. Public confidence in the impartiality of the judiciary is maintained by the adherence of each judge to this responsibility. Conversely, violation of this Code diminishes public confidence in the judiciary and thereby does injury to the system of government under law. The evidence I have shows that you have no integrity. You were selected or you got yourself select to preside over my case by questionable methods. Because my opinion and lack of confidence in you are reasonably based on the record contained in my Docket Report you are obligated by law and ethics to recuse yourself. I vehemently demand that you immediately recuse yourself without hesitation or at least grant my MOTION

FOR

CHANGE OF VENUE in the interest of

justice to the Eastern District of Arkansas, Northern Division 1, Batesville, Arkansas, in accordance with the following federal laws: 28 U.S.C. § 1402(a)(1), UNITED STATES AS DEFENDANT : Any civil action in a district court against the United States under subsection (a) of section 1346 of this title may be prosecuted only:

8

My em phasis.

9

My em phasis.

16

(1) Except as provided in paragraph (2), in the judicial district where the plaintiff resides; 28 U.S.C. § 1404(a), CHANGE OF VENUE : For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. 28 U.S.C. § 1406(a), CURE OR W AIVER OF DEFECTS : The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought. M The Plaintiff resides in the State of Arkansas. M The Plaintiff’s case names the United States as Defendant. M The “interest of justice” has priority over “convenience of parties and witnesses” under 28 U.S.C. § 1404(a). On January 13, 2004, Judge Richard W. Reynolds, the original judge, granted my Motion for Recusal with his “ORDER OF RECUSAL .” On January 14, 2004, Judge Walton issued his Order dismissing Seegars v. Ashcroft, Case No. 03-834, a Second Amendment case challenging gun control laws of the District of Columbia, in which he ruled that “the Second Amendment does not apply to the District of Columbia.” On January 20, 2004, just one week later, Judge Reynolds revised his “ORDER OF RECUSAL ” by denying my Motion for Recusal but magnanimously recusing himself sua sponte as if to save face procedurally for the record at the expense of my right to due process.

17

JUDGE R EYNOLDS’ O RDER OF R ECUSAL

JUDGE R EYNOLDS’ R EVISED O RDER OF R ECUSAL

January 13, 2004

January 20, 2004

Plaintiff Don Hamrick has filed an action against United States Attorney General John Ashcroft and others, and the action was randomly assigned to me. Plaintiff has filed a motion for recusal, alleging that an appearance of impropriety exists because I was appointed by former President Clinton. Plaintiff offers no evidence that could reasonably call into question my impartiality in these proceedings on the basis of my status as a Clinton appointee.

Plaintiff Don Hamrick has filed an action against United States Attorney General John Ashcroft and others, and the action was randomly assigned to me. Plaintiff has filed a motion for recusal, alleging that an appearance of impropriety exists because I was appointed by former President Clinton. Plaintiff offers no evidence that could reasonably call into question my impartiality in these proceedings on the basis of my status as a Clinton appointee. Accordingly, his motion will be denied.

However, there is now pending in the United States Court of Federal Claims a class action lawsuit filed by a class of present and former Department of Justice attorneys seeking damages against the United States for alleged violations of the Federal Employees Pay Act, 5 U.S.C. §§ 5541-97 (1994). See John Doe, et al., on behalf of themselves and all other similarly situated v. United States, Civil Action No. 98-896C. I am currently a member of that class. Since Canon 3C(1) of the Code of Conduct for United States Judges requires a judge to “disqualify himself . . . in a proceeding in which the judge’s impartiality might reasonably be questioned,” the Committee on Codes of Conduct of the Judicial Conference of the United States has opined that recusal is required from any proceeding in which the Attorney General appears as a real party in interest, unless a waiver of such disqualification pursuant to Canon 3D1 is submitted by all parties involved in the suit.

However, there is now pending in the United States Court of Federal Claims a class action lawsuit filed by a class of present and former Department of Justice attorneys seeking damages against the United States for alleged violations of the Federal Employees Pay Act, 5 U.S.C. §§ 5541-97 (1994). See John Doe, et al., on behalf of themselves and all other similarly situated v. United States, Civil Action No. 98-896C. I am currently a member of that class. Since Canon 3C(1) of the Code of Conduct for United States Judges requires a judge to “disqualify himself . . . in a proceeding in which the judge’s impartiality might reasonably be questioned,” the Committee on Codes of Conduct of the Judicial Conference of the United States has opined that recusal is required from any proceeding in which the Attorney General appears as a real party in interest, unless a waiver of such disqualification pursuant to Canon 3D 1 is submitted by all parties involved in the suit.

Plaintiff’s motion for recusal makes plain that he would not waive my disqualification under Canon 3C(1). Thus, my recusal from this case is now appropriate. For the reasons stated above, it is therefore

Plaintiff’s motion for recusal makes plain that he would not waive my disqualification under Canon 3C(1). Thus, my recusal from this case is now appropriate. For the reasons stated above, it is therefore

ORDERED that plaintiff’s motion for recusal [4] be, and hereby is, GRANTED. The Clerk of the Court is directed to reassign this matter to the Calendar Committee. Because United States District Judge Ellen Segal Huvelle of this Court is also a named defendant in this suit, I recommend to the Calendar Committee that it seek to have a judge from another district assigned to this matter.

ORDERED that plaintiff’s motion for recusal [4] be, and hereby is, DENIED. However, I am recusing myself sua sponte. The Clerk of the Court is directed to reassign this matter to the Calendar Committee. Because United States District Judge Ellen Segal Huvelle of this Court is also a named defendant in this suit, I recommend to the Calendar Committee that it seek to have a judge from another district assigned to this matter.

1.

1.

When the general provisions of Canon 3C(1) serve as the basis for disqualification, Canon 3D permits a judge to continue to participate in a proceeding if all of the parties and lawyers, after notice of the basis for the disqualification, agree in writing to waive the disqualification under a procedure independent of the judge’s participation.

When the general provisions of Canon 3C(1) serve as the basis for disqualification, Canon 3D permits a judge to continue to participate in a proceeding if all of the parties and lawyers, after notice of the basis for the disqualification, agree in writing to waive the disqualification under a procedure independent of the judge’s participation.

18

EVIDENCE OF CORRUPTION WITH JUDGE REGGIE B. WALTON The Plaintiff notes that Judge Roberts recommended to the Calendar Committee that they “seek to have a judge from another district assigned to this matter.” This recommendation is in compliance with 28 U.S.C. § 1402(a)(1), UNITED STA TES

AS

DEFENDANT ; 28 U.S.C. § 1404(a),

CHANGE OF VENUE ; and 28 U.S.C. § 1406(a), CURE OR W AIVER OF DEFECTS . However it happened that you got yourself assigned to my case in defiance of Judge Roberts’ recommendation to the Calendar Committee and in defiance of my questioning your suitability to preside over my case because federal laws were broken and this criminal conduct deserves an investigation by the Inspector General of the U.S. Department of Justice. On February 27, 2004, in denying my Motion for Recusal you patently lied (perjured yourself) about the facts for recusal in your Order. Excerpted from your Order: . . . In addition, the Court notes that it appears that the plaintiff is seeking for this judge to recuse himself from this case because of an opinion that this judge issued in Seegars v. Ashcroft, 297 F. Supp. 2d 201 (D.D.C. 2004), involving a challenge pursuant to the Second Amendment to the United States Constitution.1 The plaintiff apparently seeks for this judge to recuse himself because his claims either involve or are related to the Second Amendment. Because such a request has no merit, the Court would also deny this request. Accordingly, it is hereby this 27th day of February 2004

You noted the existence of my November 10, 2003 Motion for Recusal against Judge Roberts containing my apprehension about your impartiality because of the Seegars case in footnote 1 on page 1 of your Order denying recusal. The truth isthat Judge Reynolds recommended “to the Calendar Committee that it seek to have a judge from another district assigned to this matter” and this recommendation is in compliance with federal law, 28 U.S.C. § 1402(a)(1), UN ITED STATES AS DEFENDANT . How you got assigned to my case is cause enough for change of venue to Arkansas!

1

The Court notes that in a November 10, 2003 motion, the plaintiff requested that Judge Richard Roberts of this Court recuse himself from this case and that this case not be assigned to this judge because of the Seegars case.

19

CANON 3 A JUDGE SHALL PERFORM DILIGENTLY

THE

DUTIES

OF JUDICIAL

OFFICE IM PARTIALLY

AND

B. Adjudicative Responsibilities. (1) A judge shall hear and decide matters assigned to the judge except those in which disqualification is required. (2) A judge shall be faithful to the law* and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor or fear of criticism. (3) A judge shall require* order and decorum in proceedings before the judge.

CONTEMPTUOUS DENIAL OF STATUTORY RIGHT UNDER 28 U.S.C § 1916. You, and every other judge of the U.S. District Court for DC and the DC Circuit have refused to rule on my Motions concerning the statutory right of the Seamen’s Suit law, 28 U.S.C. § 1916 and whether or not Docket Report fees of PACER Service, Inc. are including in that statutory right. This too is judicially criminal behavior when viewed with all the other dirty tricks pulled by the bench and bar to keep my case from proceeding to trial. My statutory right as a seaman to file cases without prepaying filing fees or court costs under the Seamen’s Suit law, 28 U.S.C. § 1916, has been denied by the DC Circuit and the U.S. Supreme Court on more than one occasion. I have taken every conceivable recourse to correct this injustice. I have filed motions with the U.S. District Court/DC, the U.S. District Court in Charlotte, NC, the DC Circuit, and the U.S. Supreme Court for a determination on whether compulsory payment of filing fees at the time of filing at the DC Circuit and the U.S. Supreme Court is extortion under 18 U.S.C. § 872. Every motion filed is either denied, ignored or ruled moot upon dismissal. I have pursued this matter by filing complaints with the FBI, U.S. Marshals Service, House and Senate Judiciary Committees all without success of governmental action. The U.S. Government has taken and continues to take full advantage of the my extremely limited finances to the extent that I have gone broke from time to time having to ship out again and again earning wages solely for the purpose of continuing my case. Apparently the U.S. Department of Justice’s agenda is to win by out-spending a financially strapped unrepresented civil plaintiff. This is not the way justice is suppose to work.

20

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE PART V - PROCEDURE CHAPTER 123 - FEES AND COSTS

26 U.S.C. § 1916. Seamen’s Suits “In all courts of the United States, seamen may institute and prosecute suits and appeals in their own names and for their own benefit for wages or salvage or the enforcement of laws enacted for their health or safety without prepaying fees or costs or furnishing security therefor.”

Clarifications: (1) “In all courts of the United States” = includes the DC Circuit and the U.S. Supreme Court. (2) “the enforcement of laws enacted for their . . . safety” = includes civil lawsuits for Second Amendment rights of the American seafarer at sea aboard U.S. flag vessels and ashore in the United States in intrastate and interstate travel. (3) “without prepaying fees or costs or furnishing security therefor.” = means not to pay the filing fees of the DC Circuit or the U.S. Supreme Court AND the billing fees of PACER for access to the Docket Report. Extorted Fees The DC Circuit and the U.S. Supreme Court extorted from the Appellant a combined about of $1,065 in filing fees in violation of the above noted federal law from 2002 to the present. DC Circuit, Case No. 02-5334 DC Circuit, Case No. 03-5021 DC Circuit, Case No. 04-5316 U.S. Supreme Court, Case No. 03-145, U.S. Supreme Court, (DC Circuit Case No. 04-5316) U.S. District Court, Little Rock, Arkansas Extorted Payment of PACER Fees Paid to Date

$105.00 105.00 255.00 300.00 300.00 350.00 348.00 ---------TOTAL: $1,763.00 2

2

Updated for current totals

21

Case Law Hobbs Act Extortion under Color Of Official Right (DC Circuit & U.S. Supreme Court Re: Filing Fees & 28 U.S.C. § 1916) “In order to prove Hobbs Act extortion ‘under color of official right,’ the [plaintiff / prosecutor] need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.” United States v. Urban, 404 F.3d 754, 768 (3d Cir. 2005) (quoting Evans v. United States, 504 U.S. 255, 268 (1992)). Federal tort law: judges cannot invoke judicial immunity for acts that violate litigants civil rights; Robert Craig Waters. TORT & INSURANCE LAW JOURNAL, Spr. 1986 21 n3, p509-516 A Judge is not immune for tortious acts committed in a purely Administrative, non-judicial capacity. Forrester v. White, 484 U.S. at 227-229, 108 S.Ct. at 544-545; Stump v. Sparkman, 435 U.S. at 380, 98 S.Ct. at 1106. Mireles v. Waco, 112 S.Ct. 286 at 288 (1991). Administrative-capacity torts by a judge do not involve the “performance of the function of resolving disputes between parties, or of authoritatively adjudicating private rights,” and therefore do not have the judicial immunity of judicial acts. See: Forrester v. White, 484 U.S. 219, 98 L.Ed.2d 555, 108 S.Ct. 538 (1988); Atkinson-Baker & Assoc. v. Kolts, 7 F.3d 1452 at 1454, (9th Cir. 1993).

PREDICATE ACTS OF RACKETEERING ACTIVITIES UNDER 18 U.S.C. § 1961(1)(B): (1) 18 U.S.C. § 1028 Fraud and Related Activity in Connection with Identification Documents (2) 18 U.S.C. § 1512 OBSTRUCTION OF JUSTICE: Tampering with a Victim. See 18 U.S.C. § 1512(b)(1), (b)(2)(A), and (b)(3). (3) 18 U.S.C. § 872 Extortion by officers or employees of the United States. See 28 U.S.C. § 1916 (4) 18 U.S.C. § 1951(a) W hoever in any way or degree obstructs, delays, or affects commerce . . . by . . . extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both. (5) 18 U.S.C. § 1961(4) “enterprise” includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity; (6) 18 U.S.C. § 1961(5) “pattern of racketeering activity” requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity;

22

STATUTORY WAIVER OF SOVEREIGN IMMUNITY TITLE 46--SHIPPING CHAPTER I: COAST GUARD , DEPARTM ENT OF HOM ELAND SECURITY PART 1: ORGANIZATION , GENERAL COURSE AND METHODS GOVERNING MARINE SAFETY FUNCTIONS SUBPART 1.01 ORGANIZATION AND GENERAL FLOW OF FUNCTIONS

46 CFR § 1.01-30 JUDICIAL REVIEW . (a) Nothing in this chapter shall be construed to prohibit any party from seeking judicial review of any Commandant’s decision or action taken pursuant to the regulations in this part ...

RESPECTFULLY SUBMITTED,

Don Hamrick 5860 Wilburn Road Wilburn, Arkansas 72179 Email: [email protected] Email: [email protected]

C ERTIFICATE OF S ERVICE I, Don Hamrick, unrepresented Plaintiff, hereby certify that on Thursday, July 26, 2006, I FedEx’d the above to Alberto Gonzales, Attorney General of the United States, to Dennis Barghaan, Assistant U. S. Attorney.

___________________________________ Don Hamrick 5860 Wilburn Road Wilburn, Arkansas 72179 Email: [email protected] Email: [email protected]

23

JUSTICE DEPARTMENT WITHHELD EVIDENCE FROM MY CASE AT THE DISTRICT COURT, WASHINGTN, DC THE CHRONOLOGY OCTOBER 21, 2003. I filed my RICO Act case for the Second Amendment at the U.S. District Court for DC (No. 03-2160). Alan Burch, Assistant U.S. Attorney from the U.S. Attorney’s Office in Washington, DC (555 4TH ST., NW). JUNE 2, 2004. Almost 7.5 months since I filed my case Alan Burch is “Terminated” (word used in the Docket Report) and was replaced by Dennis Barghaan, “Special Attorney” from the U.S. Attorney’s Office for the Western District of Virginia in Alexandria under 28 U.S.C. 515 (out of jurisdiction U.S. Attorney). The Plaintiff alleges that the switch of defense attorneys has a direct bearing on the impending internal release of the Justice Department’s MEMORANDUM OPINION TITLED , WHETHER THE SECOND AMENDM ENT SECURES AN INDIVIDUAL RIGHT ON AUGUST 24, 2004, just 83 days away. Something had to be done to prevent the Plaintiff from using that Memorandum Opinion as evidence in the District Court. So, the Justice Department brounght in a hatchet man to expedite the dismissal of Plaintiff’s case before the expected release date of the Memorandum Opinion. This implies a conspiracy against the due process rights of the Plaintiff in violation of 18 U.S.C. § 241. Plaintiff alleges that the sole purpose for the switch in defense attorneys is to effectively deny the Plaintiff his right to use the Justice Department’s upcoming Memorandum Opinion on the Second Amendment as evidence supporting his case. JUNE 21, 2004. Dennis Barghaan filed the Motion to Dismiss just 19 days after replacing Alan Burch. Plaintiff observes that the Department of Justice was going to internally release their Memorandum Opinion on August 24, 2004 which is just 64 days from June 21. Plaintiff has 60 days to respond to the Motion to Dismiss. If Dennis Barghaan had prior knowledge of the Department of Justice’s Memorandum Opinion it is the Appellant’s belief that he had a duty to inform the court of the impended release of this Memorandum Opinion because it had a direct impact upon the case at hand. If Dennis Barghaan did not have prior knowledge then the duty fell upon the Department of Justice to inform Dennis Barghaan of the impending release of the Memorandum Opinion because it was and is admissible evidence affecting the integrity of the governments argument against the Plaintiff/Appellant. The fact that the existence of the Memorandum Opinion was never made known to the District Court or to the DC Circuit or even to the Plaintiff, that the Plaintiff learned of the Memorandum Opinion through his Internet news links implies a deliberate attempt to subvert justice. The Appellant alleges that the timing of Dennis Barghaan’s Motion to Dismiss occurring jut 64 days before the internal release o the Memorandum implies prior knowledge calculated to unjustly defeat Appellant’s case at the District Court. The Appellant further alleges that Dennis Barghaan’s obstructive tactics are meant to harass or to cause unnecessary delay or needless increase in the cost of litigation and Dennis Barghaan’s denials of factual contentions are not warranted on the evidence or, if specifically so identified, are not reasonably based on a lack of information or belief because the Appellant has now identified the Memorandum Opinion as admissible evidence and there can be no lack of information on the Second Amendment as an individual right because it was the duty of the Justice Department to inform Dennis Barghaan of the Memorandum Opinion. That fact that this was not done implies an intentional violation of Rule 11(b)(1) and Rule 11(b)(4) of the Federal Rules of Evidence. JULY 12, 2004. The Justice Department issues a press release stating that Paul D. Clement was will serve as acting Solicitor General. 24

JULY 15, 2004. The judge, Reggie B. Walton, denies my Motion for Change of Venue. AUGUST 10, 2004. My Objection to Motion to Dismiss filed out of time (because Kinkos lost my emailed Objection due to a virus attack. But Dennis Barghaan in a footnote in his rebuttal did not oppose my filing out of time). AUGUST 16, 2004. Dennis Barghaan files his rebuttal to my objection. AUGUST 16, 2004. Wasting no time Judge Reggie B. Walton grants Motion to Dismiss just 8 days before the internal release of the Justice Department’s Memorandum Opinion. A job well done by Dennis Barghaan. Does Judge Walton actually read these motions? AUGUST 24, 2004. RELEVANT EVIDENCE CONCEALED FROM THE COURT & PLAINTIFF .3 U.S. Department of Justice internally published their Memorandum Opinion for the Attorney General John Ashcroft titled, Whether the Second Amendment Secures an Individual Right. The Department of Justice did not release the Memorandum Opinion to the public until mid-December 2004, for obvious political gain until well after the presidential election in November. That Memorandum Opinion is documentary evidence, a government record under 28 U.S.C. § 1733 and is admissible as evidence because under Rule 704 of the Federal Rules of Evidence the Memorandum Opinion becomes an Opinion on an Ultimate Issue because it embraces an ultimate issue to be decided by the trier of fact. [Rule 406 Habit/Routine Practice] AUGUST 27, 2004. Plaintiff filed Notice of Appeal. AUGUST 27, 2004. On this date President Bush issues Executive Order 13353 ESTABLISHING THE PRESIDENT ’S BOARD ON SAFEGUAR DIN G AMERICANS ’ CIVIL LIBERTIES . The Deputy Attorney General James Comey is appointed as Chairman. However, there may exist a conflict of interest with this appointment. In the May 21, 2001 edition of U.S. News & World Report then U.S. Attorney James Comey is reported to have said “To us gun possession itself is a crime of violence” in discussing Virginia’s Project Exile program. James Comey’s position against the Second Amendment as an individual right back then does not exactly square with his appointment to the President’s Board on Safeguarding American Civil Liberties. At best it compares more accurately to a Trojan Horse tactic for an undisclosed agenda. SEPTEMBER 9, 2004. Appellant filed his Appellant’s Brief at the DC Circuit. SEPTEMBER 14, 2004. Appellant filed MOTION FOR PERMISSIVE INTERVENTION BY THE PRESIDENT ’S BOARD ON SAFEGUARDING AMERICANS ’ CIVIL LIBERTIES AND OTHER THIRD PARTIES & MOTION FOR APPEAL CON FERENCE . The DC Circuit has not yet ruled on this motion or any motion for judicial notice of adjudicative facts or presumptions in general that the Plaintiff has filed. Copy of this motion was FedEx’d to the Deputy Attorney General James Comey as Chairman of that civil liberties board. No response has yet been received. This is not a very good track record for the Government on protecting the civil liberties of the American people when the federal courts and the Executive Branch treats a pro se Plaintiff in such a manner.4

3

Plaintiff’s Em phasis. “T H E S M ALL C APS ” segment was not part of the email but was included herein for clarification of its importance to Plaintiff’s allegation of misconduct. 4

Plaintiff’s Note: This entry was not in the original email. It is provided herein for clarification on the apparent reluctance on the DC Circuit to rule on motions by the Plaintiff when the judicial history of Plaintiff’s cases continues the pattern of the federal courts favor granting motions from the Government by deny motions from the Plaintiff. This implies a judicial bias against the Plaintiff.

25

OBSERVATION FROM TIMELINE: Alan Burch was almost 7.5 months (225 days) as defense counsel and hadn’t filed the Motion to Dismiss. He was under Ted Olson as Solicitor General. Dennis Barghaan took a fast 2 months, 3 weeks, 4 days (75 days total) to get Judge Reggie B. Walton to dismissed the Plaintiff’s case with prejudice. It is the Appellant’s understanding that if evidence does not get admitted into the record at the District Court then that evidence cannot be submitted at the Appellant level. However, the ethical conduct of Dennis Barghaan and the Justice Department can be submitted as evidence of a conspiracy to subvert justice and for other allegations which can lead the DC Circuit in overturning the District Courts dismissal with prejudice.

26

Evidence of U.S. Supreme Court Bias Against Second Amendment Cases and Against Pro Se Plaintiffs with a Second Amendment Case Silveira, et al v. Lockyer, No. 03-51

Hamrick v. President Bush, et al, No. 03-145

AUGUST 7, 2003 Waiver of right of respondent Bill Lockyer, Attorney General of California to respond filed.

AUGUST 19, 2003 Waiver of right of respondent George W. Bush, President of the United States, et al. to respond filed. AUGUST 20, 2003 DISTRIBUTED for Conference of September 29, 2003.

AUGUST 20, 2003 DISTRIBUTED Conference of September 29, 2003.

SEPTEM BER 22, 2003 Response Requested . (Due October 22, 2003) OCTOBER 6, 2003 Petition DENIED O C T O B E R 22, 2003 Brief of respondents Bill Lockyer, Attorney General of California, and Gray Davis, Governor in opposition filed. O C T O B E R 27, 2003 Reply of petitioners Sean Silveira, et al. filed.

NOVEMBER 5, 2003 DISTRIBUTED for Conference of November 26, 2003. DECEMBER 1, 2003 Petition DENIED.

27

for

JUSTICE RUTH BADER GINSBURG HAILING FROM THE TOWER OF BABEL ©2005 Don Hamrick On April 1, 2005 Justice Ruth Bader Ginsburg gave a speech at the 99th Annual Meeting of The American Society of International Law on V ALUE OF A C OM PARATIVE P ERSPECTIVE IN C ONSTITUTIONAL A DJUDICATION . 1 Her first words cited Deuteronomy 16:20 that is not from the King James Bible. April 1, 2005 is the same day the U.S. Supreme Court denied Hamrick, (pro se) v. President Bush, et al, No. 04-1150 (DC Circuit, No. 04-5316), a Second Amendm ent case em ploying the RICO Act against the U.S. Government for not hearing a Second Amendment case sine 1939’s United States v. Miller. In light of her political activism I wrote this poem in defiance of her goals to bastardize our Constitution with foreign court opinions in matters having no jurisdiction to foreign courts.

Ruth Bader Ginsburg chanting from an uncommon Writ

“Justice, justice shall you pursue, that you may thrive!” “Where, o’ where may our justice be found?” Says the twit, “But in the security of foreign lands to contrive!” O’ what Bible does this Supreme Court Justice follow? Her read is certainly not from the King James! She will have us pursue justice as some elusive swallow Always beyond our reach, to spite her claims. THE BASIS FOR THE COD E OF JUDICIAL CONDUCT

“We can ignore our Constitution,” she implies, “Because it no longer controls our authority. Comparative analysis, will protect us,” she belies “Against all threats in the global fratority.”

“The Canons of Ethics”

The King James Bible Deuteronomy 16:18-20,

“O’ contraire!” We, the People say, “Our Constitution is altogether just! We shall follow the Constitution for our sake! We say what it means, as we must!” From Deuteronomy to Genesis, my comparative analysis The Supreme Court today is our Tower of Babel. We are held in this awkward state of paralysis, Because there is no sense to Ginsburg’s rabble. Defiant lines are drawn! Is civil war sensed? Our highest court split by globalists’ sophistry. Judicial review in league to conspire against, Popular constitutionalism finding its place in history.

19: Thou shalt not wrest judgment; thou shalt not respect persons, neither take a gift; for a gift doth blind the eyes of the wise, and pervert the words of the righteous. 20: That which is altogether just shalt thou follow, that thou mayest live, and inherit the land which the L ORD thy God giveth thee.

Oh! Dear God, I pray to thou! For answers in these troubled days. Why hast thou judges forsaken thou? With no force of arms we are as slaves. Amen.

1

18: Judges and officers shalt thou make thee in all thy gates, which the L ORD thy God giveth thee, throughout thy tribes; and they shall judge the people with just judgment.

http://www.asil.org/events/AM05/ginsburg050401.html 5

A MERICAN L EGAL S YSTEM IS C ORRUPT B EYOND R ECOGNITION, J UDGE T ELLS H ARVARD L AW S CHOOL By Geraldine Hawkins March 7, 2003

“The Question of What Is Morally Right Is Routinely Sacrificed to What Is Politically Expedient. The Change Has Come Because Legal Philosophy Has Descended to Nihilism.” The American legal system has been corrupted almost beyond recognition, Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit, told the Federalist Society of Harvard Law School on February 28. She said that the question of what is morally right is routinely sacrificed to what is politically expedient. The change has come because legal philosophy has descended to nihilism. Judge Edith H. Jones of the U.S. Court of Appeals for the Fifth Circuit talks to members of Harvard Law School’s Fed-eralist Society. Jones said that the question of what is mor-ally right is routinely sacrificed to what is politically expedient. “The integrity of law, its religious roots, its transcendent quality are disappearing. I saw the movie ‘Chicago’ with Richard Gere the other day. That’s the way the public thinks about lawyers,” she told the students. “The first 100 years of American lawyers were trained on Blackstone, who wrote that: ‘The law of nature … dictated by God himself … is binding … in all counties and at all times; no human laws are of any validity if contrary to this; and such of them as are valid derive all force and all their authority … from

this original.’ The Framers created a government of limited pow er with th is understanding of the rule of law - that it was dependent on transcendent religious obl i g a t i o n , ” s a i d Jones. She said that the business about all of the Founding Fathers being deists is “just wrong,” or “way overblown.” She says they believed in “faith and reason,” and this did not lead to intolerance. “This is not a prescription for intolerance or narrow sectarianism,” she continued, “for unalienable rights were given by God to all our fellow citizens. Having lost sight of the moral and religious foundations of the rule of law, we are vulnerable to the destruction of our freedom, our equality before the law and our self-respect. It is my fervent hope that this new century will experience a revival of the original understanding of the rule of law and its roots. “The answer is a recovery of moral principle, the sine qua non of an orderly society. Post 9/11, many events have been

clarified. It is hard to remain a moral relativist when your own people are being killed.” According to the judge, the first contemporary threat to the rule of law comes from within the legal system itself. Alexis de Tocqueville, author of Democracy in America and one of the first writers to observe the United States from the outside looking-in, “described lawyers as a natural aristocracy in America,” Jones told the students. “The intellectual basis of their profession and the study of law based on venerable precedents bred in them habits of order and a taste for formalities and predictability.” As Tocqueville saw it, “These qualities enabled attorneys to stand apart from the passions of the majority. Lawyers were respected by the citizens and able to guide them and moderate the public’s whims. Lawyers were essential to tempering the potential tyranny of the majority. “Some lawyers may still perceive our profession in this flattering light, but to judge from polls and the tenor of lawyer jokes, I doubt the public shares Tocqueville’s view anymore, and it is hard for us to do so. “The legal aristocracy have shed their professional independence for the temptations and materialism associated with becoming businessmen. Because law has become a self-avowed business, pressure mounts to give clients the advice they want to hear, to pander to the clients’ goal through deft manipulation of the law. … While the business mentality produces certain benefits, like occasional competition to charge clients lower fees, other adverse effects include advertising and shameless self-promotion. The legal system has also been wounded by lawyers who themselves no longer respect the rule of law,” The judge quoted Kenneth Starr as saying, “It is decidedly unchristian to win at any cost,” and added that most lawyers agree with him. However, “An increasingly visible and vocal number apparently believe that the strategic use of anger and incivility will achieve their aims.

Others seem uninhibited about making misstatements to the court or their opponents or destroying or falsifying evidence,” she claimed. “When lawyers cannot be trusted to observe the fair processes essential to maintaining the rule of law, how can we expect the public to respect the process?” Lawsuits Do Not Bring ‘Social Justice’ Another pernicious development within the legal system is the misuse of lawsuits, according to her. “We see lawsuits wielded as weapons of revenge,” she says. “Lawsuits are brought that ultimately line the pockets of lawyers rather than their clients. … The lawsuit is not the best way to achieve social justice, and to think it is, is a seriously flawed hypothesis. There are better ways to achieve social goals than by going into court.” Jones said that employment litigation is a particularly fertile field for this kind of abuse. “Seldom are employment discrimination suits in our court supported by direct evidence of race or sex-based animosity. Instead, the courts are asked to revisit petty interoffice disputes and to infer invidious motives from trivial comments or work-performance criticism. Recrimination, second-guessing and suspicion plague the workplace when tenuous discrimination suits are filed … creating an atmosphere in which many corporate defendants are forced into costly settlements because they simply cannot afford to vindicate their positions. “While the historical purpose of the common law was to compensate for individual injuries, this new litigation instead purports to achieve redistributive social justice. Scratch the surface of the attorneys’ self-serving press releases, however, and one finds how enormously profitable social redistribution is for those lawyers who call themselves ‘agents of change.’” Jones wonders, “What social goal is achieved by transferring millions of dollars to the lawyers, while their clients obtain coupons or token rebates.”

The judge quoted George Washington who asked in his Farewell Address, “Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths … in courts of justice?” Similarly, asked Jones, how can a system founded on law survive if the administrators of the law daily display their contempt for it? “Lawyers’ private morality has definite public consequences,” she said. “Their misbehavior feeds on itself, encouraging disrespect and debasement of the rule of law as the public become encouraged to press their own advantage in a system they perceive as manipulatable.” The second threat to the rule of law comes from government, which is encumbered with agencies that have made the law so complicated that it is difficult to decipher and often contradicts itself. “Agencies have an inherent tendency to expand their mandate,” says Jones. “At the same time, their decision-making often becomes parochial and short-sighted. They may be captured by the entities that are ostensibly being regulated, or they may pursue agency self-interest at the expense of the public welfare. Citizens left at the mercy of selective and unpredictable agency action have little recourse.” Jones recommends three books by Philip Howard: The Death of Common Sense, The Collapse of the Common Good and The Lost Art of Drawing the Line, which further delineate this problem. The third and most comprehensive threat to the rule of law arises from contemporary legal philosophy. “Throughout my professional life, American legal education has been ruled by theories like positivism, the residue of legal realism, critical legal studies, post-modernism and other philosophical fashions,” said Jones. “Each of these theories has a lot to say about the ‘is’ of law, but none of them addresses the ‘ought,’ the moral foundation or direction of law.”

Jones quoted Roger C. Cramton, a law professor at Cornell University, who wrote in the 1970s that “the ordinary religion of the law school classroom” is “a moral relativism tending toward nihilism, a pragmatism tending toward an amoral instrumentalism, a realism tending toward cynicism, an individualism tending toward atomism, and a faith in reason and democratic processes tending toward mere credulity and idolatry.” No ‘Great Awakening’ In Law School Classrooms The judge said ruefully, “There has been no Great Awakening in the law school classroom since those words were written.” She maintained that now it is even worse because faith and democratic processes are breaking down. “The problem with legal philosophy today is that it reflects all too well the broader post-Enlightenment problem of philosophy,” Jones said. She quoted Ernest Fortin, who wrote in Crisis magazine: “The whole of modern thought … has been a series of heroic attempts to reconstruct a world of human meaning and value on the basis of … our purely mechanistic understanding of the universe.” Jones said that all of these threats to the rule of law have a common thread running through them, and she quoted Professor Harold Berman to identify it: “The traditional Western beliefs in the structural integrity of law, its ongoingness, its religious roots, its transcendent qualities, are disappearing not only from the minds of law teachers and law students but also from the consciousness of the vast majority of citizens, the people as a whole; and more than that, they are disappearing from the law itself. The law itself is becoming more fragmented, more subjective, geared more to expediency and less to morality. … The historical soil of the Western legal tradition is being washed away … and the tradition itself is threatened with collapse.” Judge Jones concluded with another thought from George Washington: “Of all the dispositions and habits which lead to prosperity, religion and morality are indispensable supports. In vain

would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness - these firmest props of the duties of men and citizens.” Upon taking questions from students, Judge Jones recommended Michael Novak’s book, On Two Wings: Humble Faith and Common Sense. “Natural law is not a prescriptive way to solve problems,” Jones said. “It is a way to look at life starting with the Ten Commandments.” Natural law provides “a framework for government that permits human freedom,” Jones said. “If you take that away, what are you left with? Bodily senses? The will of the majority? The communist view? What is it - ‘from each according to his ability, to each according to his need?’ I don’t even remember it, thank the Lord,” she said to the amusement of the students. “I am an unabashed patriot - I think the United States is the healthiest society in the world at this point in time,” Jones said, although she did concede that there were other ways to accommodate the rule of law, such as constitutional monarchy. “Our legal system is way out of kilter,” she said. “The tort litigating system is wreaking havoc. Look at any trials that have been conducted on TV. These lawyers are willing to say anything.” Potential Nominee to Supreme Court Judge Edith Jones has been mentioned as a potential nominee to the Supreme Court in the Bush administration, but does not relish the idea. “Have you looked at what people have to go through who are nominated for federal appointments? They have to answer questions like, ‘Did you pay your nanny taxes?’ ‘Is your

yard man illegal?’ “In those circumstances, who is going to go out to be a federal judge?” Judge Edith H. Jones has a B.A. from Cornell University and a J.D. from the University of Texas School of Law. She was appointed to the Fifth Circuit by President Ronald Reagan in 1985. Her office is in the U.S. Courthouse in Houston. The Federalist Society was founded in 1982 when a group of law students from Harvard, Stanford, the University of Chicago and Yale organized a symposium on federalism at Yale Law School. These students were unhappy with the academic climate on their campuses for some of the reasons outlined by Judge Jones. The Federalist Society was created to be a forum for a wider range of legal viewpoints than they were hearing in the course of their studies. From the four schools mentioned above, the Society has grown to include over 150 law school chapters. The Harvard chapter, with over 250 members, is one of the nation’s largest and most active. They seek to contribute to civilized dialogue at the Law School by providing a libertarian and conservative voice on campus and by sponsoring speeches and debates on a wide range of legal and policy issues. The Federalist Society consists of libertarians and conservatives interested in the current state of the legal profession. It is founded on three principles: 1) the state exists to preserve freedom, 2) the separation of governmental powers is central to our Constitution and 3) it is emphatically the province and duty of the judiciary to state what the law is, not what it should be.

The news report on Judge Edith Jones of the Fifth Circuit Court of Appeals (now Chief Judge) lecture, "American Judicial System is Corrupt Beyond Recognition" inspired me to write the political poem above.

C OMMENTS ON THE N INTH C IRCUIT PRO SE T ASK F ORCE R EPORT , Charles W. Heckman, Dr. Sci., A Matter of Justice Coalition (AMOJ) Committee for the Ninth Circuit

I. BASIC SUM M ARY

OF THE

TASK FORCE ’S REPORT

The report of the Task Force summarizes the many problems faced by the United States courts when persons not educated or trained as attorneys attempt to present their own legal arguments in various kinds of proceedings. It then introduces a variety of proposals to reduce the problems identified by the Task Force members, ranging from simplifying procedures to enlisting the assistance of pro bono attorneys or law students to minimize procedural errors, present arguments in an objective way without introducing the emotional responses typically elicited when a person discusses personal conflicts, and give litigants a better understanding of legal and practical limitations to the actions of a court. It takes note of the fact that prior discussions of legal aspects of a lawsuit with an attorney often disabuse a litigant of misunderstandings of the law before the court is required to instruct the litigant about erroneous principles on which a lawsuit is based. The recommendations of the task force are practical and include suggested improvements that would alleviate many of the problems addressed. Most of these suggestions can be accepted, and it is hoped that resources can be found to effect the improvements. What must be faulted in this report is not the solutions proposed for the problems presented but rather the failure to address the most frequent complaints of pro se litigants, which are similar to complaints frequently voiced by litigants represented by attorneys with average or less than average capabilities. II. FUNDAM ENTAL ROLE

OF THE

JUDICIARY

In 1947, Justice William O Douglas wrote that the basic function of any court is to judge the case on the merits. That means that two factors and only two should influence the decision: the law and the facts. If all is functioning as it should, then any case in which the facts indicate that one party must prevail under the law should have only one outcome. This is true regardless of whether or not the party whose case is supported by the law and the facts is represented by counsel. Justice should not depend upon whether or not a person can afford a lawyer. While it is true that a litigant acting pro se might be less likely to present a clear case than an experienced lawyer and might not be able to cite all of the laws that might support his case, if the facts support any claim he makes under any law, he should prevail. If a litigant arguing his own case lets his emotions show, thereby provoking a negative reaction, or if the litigant lacks skill in expressing himself, it is understandable that he may suffer disadvantage where the facts are not altogether clear. However, it is the function of a court, especially the jury, to sort through the evidence presented and provide a decision in accord with the law and facts, even if some extra effort has to be exerted. Any court that permits factors other than the law and the facts to influence the outcome of any proceeding has failed in its fundamental duty. III. PRO BLEM S NOT ADDRESSED A. THE ROLE

OF

IN THE

REPORT

BIAS

One of the many serious complaints often voiced by litigants but not seriously addressed in the report of the Task Force is bias by the judge. However, the report clearly expresses a common attitude toward pro se litigants, starting of p. 6 of the report: 28

“Some judges and lawyers are convinced, for example, that pro se litigants as a class generally bring meritless claims, and that any program designed to educate or assist them would only increase the number of meritless claims in the court system. This point of view is doubtless influenced by those pro se cases that are brought by individuals suffering from a mental disability or for purposes of harassment. Closely related to that thought is the belief that appointing attorneys for pro se clients is a waste of resources and in the long run simply complicates efforts to keep the system clear of meritless cases.” The Task Force fails to identify who holds this opinion, but both lawyers and judges have frequently expressed it or opinions very much like it. The main focus of this task force should not be with methods by which unbiased judges can make the submissions of pro se litigants easier for the court to deal with but rather with developing methods to assist a pro se litigant who has been the victim of a judge with the preconception that whatever he submits to the court is without merit, and his lawsuit must be dismissed before any unnecessary time of the court is wasted. If all judges were perfect human beings, we could assume that the private opinion of a lawyer or a judge would not be reflected the judge’s rulings. However, we know that few people approach perfection, and prejudice by decision-makers against members of certain groups has been the cause of continuous, bitter conflict since the civil rights movement first brought the effects of biases of many kinds to public view. Prejudices often have a greater impact on the outcome of administrative hearings and lawsuits than parties with an obligation to be impartial like to admit. Whether the prejudice is deliberate and malicious or entirely unintended, decisions colored by personal biases can be just as devastating to the victims of the resulting injustice. An even more enlightening articulation of the prejudice litigants often face appeared in numerous discussions on the decision of a Washington State appeals court in Hill v. BCTI Income Fund, 97 Wn. App. 657 (1999), later upheld by the Washington State Supreme Court. Although it is the decision of a state court, it draws on the en banc opinion of the U. S. Court of Appeals for the Second Circuit in Fisher v. Vassar College, 70 F.3d 1420, 1437 (2d Cir.). The opinion in Hill v. BCTI defends a school of thought within the legal profession, which has been having a revolutionary effect on American jurisprudence. It parallels the controversial theory of a “living constitution,” which condones the “updating” of the United States Constitution by the courts to conform to the personal opinion of judges concerning what the public wants and will accept. On a more mundane level, this revolution in judicial theory is interpreted by many judges as a mandate to quickly dismiss any lawsuit that can be dismissed without causing a public outcry, regardless of the merits of the case. One of the main innovations introduced by the decision in Fisher v. Vassar is the acceptability and utility of lying to the court. This was discussed at length in a dissenting opinion by the Chief Judge of the Court of Appeals of the Second Circuit, who pointed out the implications of the decision reached by his colleagues. Briefly stated, a jury of the trial court had determined that the spokesmen for Vassar had lied about the reason Fisher was denied tenure. It therefore concluded that the prima facie case Fisher had established had not been rebutted, and the relief she had demanded was granted. The Second Circuit, en banc, reversed the decision of the trial court by a single vote, ruling that the non-discriminatory reason given for not granting Fisher tenure had eliminated her prima facie case, even though the reason was shown unequivocally to be a lie. With the case in favor of Fisher eliminated, the court opined that she was required to meet a higher level of proof, which was not defined by the court and was apparently not humanly possible to meet, at least without the services of a certified mind-reader. Expanding on this legal opinion, the Washington State courts in Hill v. BCTI set an unattainable burden of proof on a plaintiff who has alleged discrimination as soon as the defendant lies to the court and alleges that the motivation was not to discriminate against the plaintiff. According to the opinion of the Washington courts, proving conclusively that the defendant’s allegation was a lie is not enough for a plaintiff to prevail. He must prove that the motive of the plaintiff was to discriminate against him for 29

the reason alleged in the complaint. Hence, if age discrimination is alleged, the plaintiff must prove that the real reason for the discriminatory action and the subsequent lie by the defendant was actually the age of the plaintiff and not, for example, his religion, race, or gender. The judges of the Washington State Court of Appeals were well aware of the fact that the opposite decision had been reached by the United States Supreme Court, but they reasoned that the Supreme Court was wrong and the State of Washington was free to decide contrary to the highest Federal court because the State of Washington has its own constitution and its courts are therefore not bound by the United States Constitution, as interpreted by the Federal judiciary. What is interesting about this case in the context of pro se litigation is not the decision itself but rather the opinion of an author who defended the decision as vital to preserve the integrity of the judicial system. He stated clearly in his article that if one person came to a court with a discrimination complaint and obtained relief, this would encourage other litigants to file similar lawsuits, and there are already too many lawsuits being filed. There is a strong undercurrent within the legal profession, as well as among corporations that are frequently sued, propagating the opinion that filing civil lawsuits is somehow sinister and un-American. They wish to discourage most lawsuits by denying justice to litigants and thereby discouraging other litigants from seeking justice in a court. While there is a tradition from the Old West that a man settles his disputes by shooting it out with his adversary or settles lesser disputes with his fists, it was long thought that this was a less desirable alternative to letting a jury decide which party should prevail. Apparently, some members of the legal profession think otherwise and wish to close off the courts to ordinary citizens, returning dispute resolution to the means available in the “Wild West.” It would be well to determine how closely the decrease in justice provided in civil suits has paralleled the increase in crimes of violence between people with no civilized means available to settle their dispute. How many of the civil disputes wrongfully dismissed or inequitably settled come back to the court as a criminal case? The treatment of pro se litigants reflects the desire expressed by many politicians and judges that the number of lawsuits be reduced. Showing litigants who lack strong financial resources, the services of a first-class law firm, backing by an influential organization, or attention in the press that they have no chance of prevailing in a lawsuit or even of presenting their cases to a jury might well discourage other litigants from seeking redress in the courts but it also encourages persons in positions of authority to deliberately break the law, knowing that there is almost no chance that the victim would be able to obtain redress in a court of law. It seems obvious to me that the flood of lawsuits is the result of a massive increase in white collar crime in the United States, most of which is ignored by law enforcement authorities on the excuse that their time is needed to combat crimes of violence. The victims are therefore forced to attempt to obtain redress in a civil lawsuit, and most are unable to obtain legal counsel. A recent estimate made by a group in Iowa suggested that 70% of the population of that state did not have enough money to retain the services of an attorney. Because most white collar criminals have learned the applicable law very well before embarking on their criminal careers and many seem to have the active assistance of local civil servants or even judges, attorneys do not see much chance of immediate success before a court and will therefore refuse to represent an indigent litigant on a contingency basis. Furthermore, many attorneys working out of small offices without a major law firm behind them hardly do better in court than pro se litigants. Therefore, as the white collar criminals, deliberate abusers of civil rights, unscrupulous business firms, and corrupt public officials become bolder, the victims have no way of protecting their property and livelihoods other than by representing themselves in a lawsuit. Even though an increasing number of pro se litigants see the courts as hostile to them and their needs for redress under the law, the flood of lawsuits grows because of the massive increase in the crimes that the current attitude of the courts has engendered.

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Missing from the report by the Task Force is any adequate remedy for the actions of judges who adhere to the belief that pro se litigants do not deserve full consideration by the court. This can be justified by the self-fulfilling prophesy that pro se litigants never win. As a result, many judges believe that any time given to a lawsuit in which a litigant represents himself is wasted. Therefore, pro se litigants really do not win simply because the prophesy that they will lose is self-fulfilling. B. REMEDIES THAT FAIL If a district judge summarily dismisses the civil lawsuit of a pro se plaintiff without reviewing any of the facts and writes a short opinion that fails to address the fundamental complaint, indicating that the judge barely knew what issues the complaint addressed, the plaintiff can appeal the dismissal to the court of appeals. In a great many cases, the plaintiff receives a brief affirmation of the district judge’s opinion, which also fails to address the issues in the complaint and almost always contains the notation that the opinion cannot be cited as a precedent and should not be published. The plaintiff can then file an appeal with the United States Supreme Court with near certainty that certiorari will not be denied. Many litigants lack the money to have their petitions for certiorari correctly printed and bound to the satisfaction of the clerk, and others fail to present the legal issues in an understandable manner. Even if all submissions are perfect, however, the petition will almost certainly be denied in favor of appeals that are given considerable publicity in the press, are promoted by major organizations, or are otherwise likely to bring fame and praise to the justices. The problems of ordinary citizens, no matter how devastating to them and their families, are ignored, and they find that they would have little more chance of success in getting a justified complaint before a jury than they would have of winning a lottery. For example, after the courts in several circuits had summarily dismissed hundreds and perhaps thousands of lawsuits alleging employment discrimination at the complaint stage because the plaintiff had failed to provide enough hard evidence to establish a prima facie case when the complaint was submitted, the United States Supreme Court agreed to hear one of the appeals from the Second Circuit. In Swierkiewicz v. Sorema N.A., 534 U.S. (2002), it decided unanimously that it is a gross violation of procedures to dismiss a lawsuit at this stage of the proceedings. Among the points the justices made were that a plaintiff can prevail without establishing a prima facie case at all, that a judge’s opinion of whether or not a litigant will prevail before a jury is irrelevant to decision to dismiss a lawsuit, and that it is fundamentally unfair to dismiss a lawsuit before the whole body of facts can be revealed through discovery. While this decision provided the plaintiff with a chance to have his lawsuit heard by a jury on the merits, it affirmed that thousands of litigants whose lawsuits had been improperly dismissed over the many years during which the appeals courts had been violating procedures had been left without any access to justice. Still more perverse was the continued dismissal of lawsuits at the complaint stage, even after the Supreme Court had denounced this practice. It was well known to the judges guilty of this practice that any subsequent petitions for certiorari citing this issue would be denied on the grounds that the Supreme Court had already decided the issue and would not agree to decide it again. This would leave a litigant no way of redressing violations of his civil rights just because he had the bad luck of coming before a judge who is trying to discourage lawsuits by issuing non-precedential dismissals at the complaint stage and appeals court judges who affirm decisions of the lower court with a rubber stamp. Citing the clear opinion of the U.S. Supreme Court in Swiercewicz v. Sorema N.A. would have no effect on the outcome before a judge who assumes that anything filed pro se is without merit. In case of particularly severe violations of the law, procedures, or ethics by a judge, a litigant is limited to filing a complaint with a judicial board established for hearing such complaints. Other avenues of redress are closed off because judicial immunity from civil liability was made absolute during the 1990s, even if corruption or malice motivated the judge’s actions. Experience shows that the boards

31

investigating misconduct by judges move extremely slowly, and a litigant has roughly one chance in a thousand of having a rogue judge censured, even mildly. It can be concluded that a litigant whose lawsuit has been dismissed because of the bias of a judge against him, a class to which he belongs, pro se litigants in general, or the kind of lawsuit he has filed has almost no chance of redress, either on appeal or in complaint proceedings against a judge. Human nature clearly dictates that when members of any group are permitted to perform illegal, immoral, and unjust actions against other persons with complete impunity, many of them will do so, some because of laziness, others because of malice, and still others in anticipation of gratuities from a favored party. A pro se litigant has no recourse against a judge who does not want his complaint heard due to bias of any kind, and the fact that a judge has the power to deny him access to a jury effectively eliminates an important civil right supposedly guaranteed by Amendment VII of the United States Constitution. C. COM MO N EXPERIENCES OF PRO SE LITIGANTS The solutions proposed by the Task Force presume good will by the judges and conformity with the standards of ethics and behavior traditionally held by our society. Unfortunately, in speaking and corresponding with many pro se litigants, I have learned that there are common problems that reflect an erosion of human values and are often accompanied by abusive behavior by judges. These problems are less likely to arise when a litigant is represented by a lawyer, whose status as an “insider” in the legal profession might tend to restrain the opposing attorney and presiding judge from improper conduct. Such conduct is difficult for pro se litigants to cope with, but it is readily recognized when it occur. Eventually, pro se litigants make their opinions of the court public, and the increasing criticism leads to a general loss of faith in courts. The growing dissatisfaction of the public with the judicial system is rooted in the negative opinions developed by many litigants who know they have been improperly or illegally treated. Losing a lawsuit is fundamentally different from being denied due process and a fair hearing, and even pro se litigants without formal education in a law school can immediately tell the difference. The most common complaints by litigants of misconduct by the courts include the following: 1. Perjury is tolerated by the judge This complaint has been made by the great majority of pro se litigants with whom I have spoken. Very often, the false testimony is given by one or more government employees. Even when parts of the testimony are shown to be false, judges continue to give full credence to the witness in the remaining parts of the testimony. The judge then dismisses the lawsuit of a pro se litigant citing the perjured testimony as evidence that the lawsuit has no merit. Usually there are documents in the file clearly showing that the testimony was false, but these are simply disregarded by the judge. Prosecutions for perjury have become rare to non-existent. Government employees have been given complete immunity for perjury they commit “in the line of duty,” even if it is given with malice. Government prosecutors may suborn witnesses to perjury by promising them immunity for crimes they have been accused of. It has even been alleged that government employees can be fired for refusing to give false testimony at the behest of their supervisors. Many cases are known where civil servants have advanced their own careers by deliberately misleading courts, administrative boards, and even Congress to advance a political agenda espoused by the their supervisors. 2. Records submitted to the court disappear from the files This complaint has frequently been made. Some litigants note that the entries of the documents are still in the court records but the documents themselves have disappeared.

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Even if copies of the records are retained by the litigant, they usually cannot be added to a record on appeal unless they are still in the file of the lower court. 3. Judges’ opinions fail to address the issues of the lawsuit Many litigants complain that orders for dismissal address issues that were never raised in the lawsuit and fail to address the issues that were. In light of the fact that most judges have earned a law degree, some decisions have convinced the litigants that the legal issues were deliberately misconstrued by the judge. For example, if a plaintiff seeks injunctive relief pursuant to the Administrative Procedures Act and monetary relief citing the Federal Tort Claim Act, a judge may deny the injunctive relief on the grounds that there are no provisions for such relief in the Federal Tort Claim Act and that the Administrative Procedures Act does not authorize monetary relief. Similarly, a lawsuit alleging failure of the Department of Labor to investigate a discrimination complaint against a private university was dismissed on the grounds that the plaintiff was seeking Federal employment through the courts. Even a law professor from Hofstra University complained in a speech that he was tired of reading decisions that did not address the issues of the case. At best, this means that the law professor was able to understand the issues of the lawsuit from the submissions, while the judge allegedly was not. At worst, this indicates that the judge was deliberately falsifying the issues in order to justify an obviously faulty decision. According to the law professor, after he finished his speech, a judge leaned over to him and said, “You don’t know the half of it.” 4. Certain litigants must always win One of the most harmful practices of the courts becomes most evident when statistical surveys of the outcomes of litigation are conducted. Some judges have apparently developed strong biases for or against certain kinds of lawsuit or litigant and lose sight of the fact that each case deserves a separate analysis. The outcomes of these lawsuits most frequently favor government agencies as defendants and major special interest groups, such as the American Civil Liberties Union, as representatives of a plaintiff. Decisions are reached without jury trial to assure that the favored litigant wins. The trend to summarily dismiss lawsuits without trials is reflected in surveys showing that more than 11% of all civil lawsuits were decided by juries in the early 1960s, while less than 2% reach a jury now. It is not only the courts that are guilty of denying due process to protect favored litigants. Congress has also established special means of adjudication to remove the proceedings against certain agencies from the normal judicial channels. Some of the agencies established for administrative adjudication have earned a reputation for extreme bias in favor of the government agencies they are supposed to treat impartially. For example, the Merit System Protection Board (MSPB), which adjudicates complaints filed by veterans because their preference rights in the civil service have been violated, has never decided in favor of a veteran in any appeal. The United States Court of Appeals for the Federal Circuit, which is the only court with jurisdiction over appeals from the MSPB, has never decided in favor of a whistleblower, after hearing 71 appeals citing the Whistleblowers’ Protection Act. It is also doubtful whether it has ever decided in favor of a veteran, although I have yet to find records on this point. It is noteworthy that under the law, the burden of proof is on the agency, and in the case of appeals filed by whistleblowers, clear and convincing evidence is required, giving whistleblowers a clear benefit of the doubt. Nevertheless, the agency always wins in such appeals, as well as those brought under veterans’ laws.

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The Veterans’ Employment and Training Service (VETS) accepts employment discrimination complaints from veterans. All complaints it receives are not maintained in the agency files, but of 1029 complaints it did place in its records in 2001, five were brought to the courts, but only one was adjudicated as a civil lawsuit. Any lawsuits brought by a plaintiff pro per fall into the category of “thousand to one shots,” but so do discrimination lawsuits brought against government agencies with the assistance of “B” or “C-class” lawyers. Similarly, civil rights and employment discrimination lawsuits routinely fail, unless a major special interest group supports one of the parties. Any time lawsuits that depend on an individual interpretation of the facts are decided so preponderantly in favor of one party without the assistance of a jury, suspicion of bias is justified. In conflicts between human beings, rank, job title, or affiliation do not determine which party has followed the law and which party has broken it. If the supervisor prevails one thousand times in whistleblower appeals for every time the whistleblower prevails, it is clear that the adjudication has not been impartial. This conclusion is given great support by the findings of Congress that reprisal against whistleblowers is a problem of massive proportions in the civil service, requiring several amendments to make the Whistleblowers’ Protection Act considerably stronger. That the efforts of Congress have been consistently undermined by the judges on the United States Court of Appeals for the Federal Circuit reflects an imbalance that has been developing between the powers of the legislative and judicial branches in recent years. 5. Different standards are applied to different litigants Powerful plaintiffs seek to delay litigation until the opponent dies or is forced to end the litigation for financial reasons. Some well-represented litigants do not respond to the summons until a motion for default has been entered, and judges routinely excuse the failure and refuse to enter a default judgment. The same judges are quick to dismiss lawsuits because a pro se plaintiff has missed a deadline by one or two days, even when the cause of the delay was beyond the control of the litigant. The lack of impartiality is plainly evident when one party is permitted unlimited delays, in spite of the fact that the United States Department of Justice or a major law firm with a large staff of lawyers is representing that party, while a pro se litigant forced to act alone is held to the strictest standards stipulated in the FRCP and local rules. Allowing one litigant unlimited delays while the other is facing severe financial difficulties as long as the lawsuit remains unsettled is a tactic that clearly violates judicial fairness and at least the spirit of the United States Constitution, which demands a speedy trial in criminal matters and, by implication, reasonable speed in settling civil disputes, as well. 6. Recent handling of civil lawsuits by the courts have instigated a white collar crime wave Many successful white collar criminals have obtained the cooperation of local courts to defraud private citizens out of large sums of money, often leaving the victim destitute. A few of the methods frequently used include abuse of bankruptcy procedures to loot estates, illegal foreclosures on real estate, seizure of cash or property without due process, and fraud during divorce proceedings. Federal courts should have jurisdiction over obvious frauds perpetrated by state courts under the RICO statute and civil rights laws. However, failure of effective action by Federal judges to stop obvious fraud perpetrated by colleagues employed by state and local government encourages larcenous state officials, including judges, to conclude that 34

their positions allow them to illegally enrich themselves at the expense of selected victims with complete impunity. Litigants who have sought protection from state and local criminal gangs in Federal courts have encountered many years of delays, denial of jury trials, and refusals to issue decisions justified by the facts of the case. Many abuses have come to public attention in recent years, but the crime wave has grown so rapidly, many of the practices have not received sufficient publicity to warn potential victims. Crimes like identity theft, fraudulent foreclosure, fraud in stating fees and interest charges, and abuses of eminent domain have become epidemic throughout the United States. They can financially ruin victims, who have not found effective protection through either criminal or civil procedures. 7. Court orders go unheeded Failure of courts to enforce their own orders granting relief to litigants may eventually result in more difficulties than adjudicating the initial petition for relief. Plaintiffs may prevail but gain no redress from the decision because judges refuse to issue effective orders mandating the remedies demanded by a jury. This is a problem that often arises when the delinquent party is a government agency. Common examples of deliberate resistance to court orders include ignoring orders to produce documents requested under the Freedom of Information or Privacy Act and failure of public officials to obey orders to return money or property unlawfully taken from citizens by law enforcement agencies. 8. Judges give orders contrary to law and accepted standards of behavior Opposite the failure to enforce just orders for relief is issuing orders demanding illegal or obviously impractical relief from litigants. Examples of practices that have become common during the past few years include demands for support payments from one party to divorce proceedings that exceed the total earnings of the person ordered to pay, jailing of indigent litigants who cannot pay what the court has demanded of them for other reasons, removal of children from their natural parents without due process, and imposition of medical treatment on minor children without informing their parents. 9. Judges refuse to take actions required by law Many routine actions required of judges have created barriers to the enforcement of laws as intended by Congress. An excellent example of this is the action usually taken after a litigant complaints that he cannot obtain documents requested pursuant to the Freedom of Information Act. This law was passed by Congress because of the great resistance shown by Federal civil servants to making their unclassified documents available to the general public. Records created through the use of tax money should belong to the public and be made available on request. Congress obviously intended that documents formally requested be made available immediately. It therefore specified a waiting period of no more than ten working days and permitted a person who requested the records to file a lawsuit to obtain the documents if the agency is not forthcoming. It requires agencies to assist people making requests to identify the documents and to provide the documents after charging only minimal copying fees. Obviously, to uphold this law as Congress intended, a judge must order immediate release of the records to the court for distribution to the plaintiff after the court has ruled on any objections the agency has made to their release. Because obtaining records as quickly as possible is often necessary for a litigant to obtain some benefit to which he is 35

entitled, complete an article for publication in a newspaper or periodical, or protect himself of a relative from the consequences of false information about him being distributed with official records, the rapid availability of records is vital. Instead of upholding the high standards demanded by the Freedom of Information Act, judges have consistently permitted lawsuits to obtain public information to drag on for several years, often making the intended use of the documents impossible. Judges seem to attempt to avoid issuing orders to government agencies, even when the law mandates this. They fail to review contested records in camera, as provided for in the law, and simply hope the plaintiff will eventually withdraw his demand for the documents. Although obtaining documents often costs plaintiffs excessive amounts of money for the litigation, judges seldom offer the monetary relief specified in the law. They also fail to impose the requirement of the law that photocopy fees be reasonable. While private shops provide photocopies for 5 cents or less, agencies may charge exorbitant amounts to copy their documents. For example, about two years ago, one agency demanded 31 cents for each copy, or more than 6 times the price on the private market. The failure of the courts to impose sanctions on civil servants who make it a sport to defy the Freedom of Information Act has led to the development of procedures to keep public documents out of the hands of citizens who want to obtain them. 10. Courts have become inconsistent and arbitrary Courts have recently begun to establish very confusing precedents, reverse their own decisions, and ignore real issues rather than settling them. In recent years, different Courts of Appeals have issued opposite interpretations of the same law, making one action legal under the jurisdiction of one circuit and illegal under the jurisdiction of another. Because the United States Supreme Court denied certiorari each time a litigant attempted to obtain a definitive decision on some of these matters, Federal law can mean one thing in one circuit and the opposite in another. For example, whether or not Federal law permits factory workers to speak with each other in a language other than English depends upon the area of the country in which the factory is located. Changing public opinion or even an unusual personal opinion held by the judge to whom the case has been assigned may result in a lawsuit being decided in a manner contrary to other recent decisions in nearly identical cases. When judicial opinions on the interpretation of a law are continually fluctuating because one judge approves of the law while another does not, whichever litigant loses will feel cheated by the court because other litigants in exactly in the same position won their lawsuits. This situation causes more litigants to risk a lawsuit rather than settling the dispute out of court because winning or losing depends only on the whim of the judge hearing the case rather than on a consistent and unambiguous interpretation of the law. An advantage of being represented by counsel is often the knowledge he brings concerning which judges will be sympathetic to the litigant’s case and which will favor the other party. In an impartial system, such considerations would not be a factor. The founding fathers hoped to eliminate this problem by insisting that decisions be rendered by juries, but by increasingly usurping the duties of the jurors, judges have permitted their own beliefs on the wisdom of individual laws to override the stated intentions of Congress. Because all judges do not hold the same opinions, an increasing inconsistency in decisions is becoming an increasing problem for pro se litigants and lawyers, alike. 11. Federalism theory interferes with practical justice

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In recent history, Federal courts have intervened in many disputes between citizens and individual states, where the state court system was clearly violating or assisting in the violation of civil rights. Since the first Civil Rights statutes were passed in 1871, Congress has shown a clear intent to place the guarantees in Amendments XIII, XIV, and XV above the limitations on suits against states in Amendment XI. Federal courts belatedly struck down state laws deliberately passed to bar Americans of African descent from voting, attending schools with white children, and using public facilities. These rulings have clearly focused the attention of the nation on the fact that states are prone to commit actions against their citizens that violate Federal guarantees defined as civil and human rights by our Constitution. Recently, the theory of federalism has been revived, and Federal courts have become less willing to interfere with the actions of state courts, no matter how unjust and reprehensible. One of the most important reasons for Federal courts to exist is to provide citizens with a final recourse against clearly illegal actions committed by state and local government, which are much more likely to fall under the influence of criminal conspirators than the much more diverse Federal system. If the Federal courts disqualify themselves from settling disputes between citizens and state governments, they have clearly left the citizens vulnerable to losing their civil rights through clearly illegal actions by small, corrupt political machines. IV. REMEDIES What is the court supposed to do? The basic reason for establishing a judicial system is to settle disputes that are addressed by existing laws. It has been repeatedly stated by experts on matters judicial in the United States that the ultimate goal is to decide all matters on the merits. That means to most reasonable persons that the court should concern itself with two factors and only two factors: the law and the material facts. The blindfold on the statue of Justice is there to keep attention on the scales and not on the race, color, national origin, age, gender, appearance, financial condition, social position, or friends of the litigants. It stands to reason that a pro se litigant has as much chance of being entitled to relief according to the law and the facts as the litigant with enough money to afford the services of the best law firm in the country. The reason everyone who can afford it will seek the services of a class A law firm is that the presentation of the law and facts of the case in the arguments is reputed to sway judges and juries toward the side of one client where the issues are not entirely clear. However, if skill in arguing becomes the sole criterion for determining who prevails in a lawsuit, then the courts have failed in their duty to provide a fully impartial forum for presenting the facts. The Task Force must address one primary problem: a failure of the court to be impartial. This failure is usually apparent from the outcome of lawsuits. If pro se litigants always or almost always lose, then the courts have failed. No class of litigants is right or wrong 100% of the time. If one person comes to the court for revenge after being fired for poor performance, the court cannot conclude that the next person raising the same claim was not fired for failing to become an accomplice to illegal actions his boss is engaged in, for belonging to a race that the boss does not like, or for being too old when the boss wants only youthful employees. If a father must be kept away from children he is abusing, that does not mean that the next father who seeks custody of his children is abusing them as well. If personal property was seized from one person because of his refusal to pay taxes, it cannot be concluded that there is no merit in the lawsuit of the next person who complains that his property was illegally confiscated by corrupt public officials. As already discussed, pro se lawsuits are increasing for several reasons, which have nothing to do with the law or the facts in each individual case. These include: 37

1) a white collar crime wave encouraged by the failure of prosecutors and judges to focus on anything but violent crime; 2) a breakdown in government accountability resulting in civil servants wasting funds on a massive scale and abusing the rights of citizens; 3) an increasing resistance by large corporations to being held accountable for the harm they do to ordinary citizens; 4) the continual erosion of traditional values, which formerly placed limits on the excesses society would tolerate; and 5) the combination of lower earnings by the average American and the increasing fees demanded by competent lawyers. A strict enforcement of the law and increasing penalties for wrongdoing would do much to eliminate all of these reasons. Misconduct will increase as long as most perpetrators escape all consequences for their actions and penalties remain inconsequential. Supply and demand regulate what lawyers charge and will result in lower fees when the causes for the increasing number of lawsuits are eliminated. If the courts were functioning fairly and efficiently, the outcome of a lawsuit would be relatively easy to predict according the circumstances and not dependent on non-merit factors. That means that a pro se litigant showing that his rights under any law had been violated and that he had suffered some kind of harm because of the violation would face no reduction in his chances of success because he was not represented by a lawyer. Only the law, which he would not necessarily have to cite correctly, and the facts of the case would determine the outcome. Any reduction in the chances of his success with a meritorious claim would indicate that the court has not fulfilled its function. The Task Force need only focus on a pro se litigant’s chance of success with a meritorious claim to have performed its duties to the complete satisfaction of all. If a pro se litigant fails to prevail in spite of the fact that his claim is meritorious, the system has failed. The Task Force should seek remedies assuring that each meritorious claim results in the relief prescribed by law regardless of whether or not the litigant is represented by counsel. It should seek a review process by which sufficient attention is given to each lawsuit to assure that the prejudice of one judge cannot perpetrate a miscarriage of justice for any reason. This may well require an increase in the personnel assigned to review each appeal and an increased recruitment of jurors. If so, then Congress should be forcefully informed that increased funding will be required. It should not be the concern of the Task Force that baseless claims, lawsuits filed to harass, or esoteric challenges to established institutions are not given an appreciable amount of legal aid. It should also not concern the Task Force that jury decisions are challenged by the litigants who do not prevail. However, if almost every lawsuit filed pro se is dismissed without a trial, it should be clear that due process is not being provided by the courts. V. THE SOLUTION

IN THE

UNITED STATES CONSTITUTION

The Constitution of the United States includes all necessary ingredients for making the courts function fairly and efficiently. In clear and concise English, it is demanded that every person accused of a crime and every litigant in a lawsuit involving more than $20 has a right to a trial by jury. It does not provide for judges substituting their opinions for the decision of a jury of peers. It requires speedy trial of persons indicted for crimes and assures that the common law rights enjoyed by the English colonists at the time the United States declared its independence are respected. Later amendments guaranteed every citizen equal treatment under the law. Determining whether any claim is meritorious after the facts have been presented belongs to a jury. It is a basic right of every litigant to have a jury decide whether or not he prevails based on the evidence presented. A judge may rig the outcome of a jury trial by refusing to let a litigant present 38

material evidence or by giving false instructions to the jury. However, most complaints by pro se litigants result from their being denied any trial by jury at all. Any litigant, with or without counsel, must provide a complaint alleging that a specific law was violated causing him some form of damage or denying him some right. As an example, we can take the typical outcome of what should be an open and shut case to see whether the Constitution is being followed. The Privacy Act requires correction of false records concerning any citizen, and a citizen files a complaint that an agency is maintaining records about him that he alleges are false. The Court is empowered to review the record and the evidence that the person presents and order correction or removal of the record. It also authorizes damages to the person who demanded the change and reasonable legal costs. Congress expressed the demand that agency responses be prompt. In a typical case, the agency would respond to the complaint by claiming various immunities and file a motion for dismissal based on irrelevant claims of privilege and sovereign immunity. The matter would remain on the docket for more than a year without any action being taken, and finally the judge would dismiss the lawsuit. There would be no review of the records by either a judge or a jury, no review of the evidence, no discovery to reveal other relevant matters, and no consideration of the material facts. The judge would simply have assumed that the case would have no merit because it was filed pro se and any attention given to it would be a waste of time. In such a case, there would be no question that the plaintiff alleged a violation of a law and that the law specifically waived sovereign immunity and authorized specific relief. That records existed would not be challenged, and neither would the existence of evidence calling the accuracy of the records into question. What was lacking is a review of the challenged records, a review of the evidence, and an impartial hearing to determine whether the preponderance of evidence indicates that the records are false. Such a decision would naturally be unpublished, keeping it from the scrutiny of the legal profession, and the judge would enjoy absolute immunity whether or not the decision was in accord with the letter and spirit of the law. It should be obvious that the simple demands made of the judiciary by the Constitution were not followed. There was no due process, no fact-finding, no review by a jury, and different treatment given to the plaintiff than he would have received if he had been represented by a major law firm or an influential organization. The remedy in this case would be simply for a judge to follow the procedures outlined in the Constitution. The improvement of the treatment of pro se litigants would simply entail following the procedures spelled out in the Constitution and in the wording of the Privacy Act, itself. By not doing this, the judge was deliberately producing a chilling effect to keep other citizens from filing lawsuits under the Privacy Act. If any government agent maliciously creates a false record after a dispute with a citizen, the record must remain to mislead anyone who reads in the future. The Privacy Act has therefore been repealed at the whim of one judge without any allegation that the statute violates the Constitution in any way, and it is made clear that the repeal by judicial fiat applies only in the case of the one plaintiff and may be reversed in the next decision if the plaintiff is deemed worthier by the judge. Equal treatment under the law therefore becomes another casualty of the court. Another example of a failure to meet the Constitutional mandates would be a lawsuit involving employment discrimination based on age. It is evident from the wording of the law and earlier decisions of the Supreme Court that proof of motive is irrelevant in such cases because motive can be implied from circumstances. If a government agency passes over the 50-year-old plaintiff in spite of his 25 years of relevant experience and high examination score in favor of a 30-year-old applicant with three years of experience and a low examination score, the decision should provide relief for the plaintiff unless the agency can show that there was a valid reason for the choice. However, judges routinely dismiss such cases without a jury trial on the defense of a simple denial by the agency, even though any ordinary person would consider the denial to be without merit and contrary to the fact presented in the documents filed with the court. Again, the decision is unpublished, and appeal results in a rubber-stamped 39

affirmation. With absolute immunity, the judge has nothing to fear even though a clear issue of fact remained to be decided by a jury under the Constitutional formula, and he illegally usurped the functions of the jury to create a chilling effect on the public and thereby discourage other people from filing what he regards as litigation that is too time-consuming. In the examples given here, no problem exists with the laws cited, the issues are clear, and the relief is spelled out in the statutes. All submissions are timely, and no requirements for further fact-finding are recognized by the judge. The problem for the pro se litigants in such cases could not be remedied by better instruction on preparing submissions, assistance of law school students, or more helpful clerks. The problem is the failure of a judge to proceed according to common law and recognize the Constitutional rights of one of the litigants. It could only be remedied by making the judges follow established procedures without allowing their own personal opinions or prejudices to interfere with due process. VI. THE SEARCH

FOR

REMEDIES

BY THE

TASK FORCE

The remedies to the problems not addressed by the Task Force involve changing the attitudes of judges toward litigants. While there are people who attempt to convince the court to make fundamental changes rightfully belonging to the legislative branch and others who use litigation for revenge or to vex an enemy, most people seeking the assistance of a court to settle a dispute do so because necessity demands it. Some people are forced to file several lawsuits because unscrupulous office holders are able to create multiple problems for them, motivated by personal dislike, political disputes, or a desire to obtain a coveted piece of property. The civil rights movement clearly revealed the extent to which officers of state and local government, including judges, are willing to go to violate the rights of individuals because of their political activities or because they belong to certain minorities. Federal courts are the last resort of many people who find themselves robbed of their fundamental rights. The remedies suggested by the Task Force might be sufficient if all judges and court officials were competent, honest, and incorruptible. If one judge does not live up to the high standards demanded of him, there must be some kind of machinery established to undo the damage he does. However, a litigant soon finds that if he is unfortunate enough to have his case assigned to a less than competent, opinionated, or dishonest judge, his chances for redress of his grievances have been eliminated even before the proceedings start. The eclipse of the jury trial as the main means of settling lawsuits has brought about a preponderance of “fast track” summary judgements, rubber stamped by inattentive appeals court judges, and deemed unworthy of consideration by the Supreme Court. Judges have made themselves impervious to complaints of misconduct and have even provided immunity to anyone employed by any government agency. The pro se plaintiff is therefore left without legal, civil, or human rights for wont of a means of having those rights recognized and upheld. Short of setting up an entirely new system of courts to pass judgement on the ones we already have, remedies will have to entail a more impartial treatment of lawsuits by judges. A person’s social standing must no longer have an impact on a court’s decision. The best way of preventing lawsuits from being rigged in favor of an influential or political powerful litigant is to leave decisions to a jury. If individual jurors are biased, there should hopefully be other jurors on the same jury who will hold different opinions. It is also much more difficult to influence 12 randomly selected citizens than it is to improperly influence one judge. Jury trials are made mandatory by the Constitution in most cases, so there is no reason for them to be denied short of a litigant’s obvious failure to demonstrate any law that might authorize relief of any kind. The overriding factor that will eliminate almost all genuine problems faced by pro se litigants is a restoration of strict ethics and impartiality to members of the court. If a person’s legal rights have been violated, it is an absolute duty of the judge to provide him with a fair hearing and every opportunity to present the evidence that he has. If the judge does this, allows the issues of fact to be decided by an impartial jury, and provides equitable relief to the prevailing party, the recommendations of the Task 40

Force would be sufficient to provide fairness to pro se litigants. If, however, any judge fails to live up to his responsibilities, there must be another means of redress provided to correct the injustice created by the court when it denies due process. An oversight body would have to be sufficiently independent, unbiased, and competent to determine not only the merits of the original lawsuit but also the fairness of the presiding judge. A special grand jury composed of ordinary citizens might be established to pre-sort all lawsuits in order to recommend those that lack merit for early dismissal and refer all others to the judge for trial by jury. It might also be given oversight of the actions of judges that may be prejudicial to one of the parties. An alternative to this would be to remove all civil immunity from judges. This might result in a flood of lawsuits against judges, but it would be a deterrent to unjustified dismissal of lawsuits prior to jury trial. Aside from obviously doctoring the evidence or giving the jury false information about the laws under which the lawsuit was brought, no failure by the judge could result in his being found liable for misconduct as long as he permitted the decision to be made by a jury. Other effective remedies might also be found, but it is suggested here that the Task Force should consider the worst case scenario, in which all judges handling the initial proceedings and the appeals fail to perform their duties in the prescribed way. It should then consider the best methods to 1) uphold the litigant’s legal rights by overturning the initial decision against him; 2) take action against the judge who rendered the decision to prevent the incident from repeating itself during actions brought by other litigants; 3) hold a trial by jury unless waived by all litigants; 4) provide suitable relief, and 5) see to it that the orders of the court are promptly carried out. VII. CLOSING WORDS No demands are made here other than that the courts function as close to the system foreseen by the founding fathers as humanly possible. A decision for a lawsuit on the merits with consideration given only to the law and the material facts has become an unattainable dream for the majority of American citizens. Errors cannot be avoided, but it is the duty of all judges sitting on a court to minimize errors to the point that they become extremely rare. Many of the cases tossed out of the courts based on flimsy technicalities involve the life savings, health, or even the survival of one of the litigants. The Task Force is in an excellent position to insist on a review of the court’s actions, and it should do so. If bias for or against members of any one group is found, swift action should be taken to correct the injustice. In the long run, it will depend upon the court itself to determine whether or not it wants to bring justice under the law to all people who seek relief from it. If the court takes effective action, the improvement will surely quiet all criticism. If it does not, public indignation is sure to increase to the point that Congress will be required to take some decisive action.

Prepared by Charles W. Heckman, Dr. Sci. Submitted in behalf of: A Matter of Justice Coalition Formatted and uploaded to American Family Rights Association website on January 3, 2005

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