Even with the Freedom of Information Act (FOIA) and establishment of the state Right To Know offices, government reform advocates often battle for years to obtain information which should be publicly available. In America today, millions of your tax dollars are paid to contracted law firms that file endless objections, at both the national and state levels for information requests. Without a doubt, the most difficult nut to crack is the Judicial Branch, which has built a wall to conceal potentially revealing data.
One judicial reform advocate attempted to investigate the Pennsylvania Eastern District Courts and the Third Circuit Court of Appeals. The inquiry was made directly to the U.S. Administration of Courts (AOC) in Washington, DC. Cases were requested of civil rights cases with the correlating names of federal judges, in their decisions involving self-represented litigants (pro se is the legal term). That information could reveal patterns of judicial bias or other violations of due process. Civil rights cases can involve such complaints as abuse by state court judges or discrimination law suits.
The answer from the AOC (below the email thread can be viewed), was a refusal with a justification that “judge-specific information cannot be released unless required to do so by law.” The ambiguity of this statement is only overshadowed by the absurdity of it. One would think that such data would be regularly reviewed and published, for effective oversight of judges, to ensure the integrity of the U.S. federal courts. However, since the entire Judiciary is self-policing, no one really knows just how many citizens have been denied due process, by specific judges, with the concealment of such information.
It has long been suspected that citizens who either cannot afford, or are attempting to circumvent outrageous legal fees, are faced with judicial prejudice when they represent themselves in court. The largest area of pre-trial dismissal of cases has statistically been in civil rights claims- most specifically employment discrimination law suits, an area where litigants often represent themselves, and petition for a waiver of filing fees. Approximately 77% of all employment discrimination law suits are dismissed before trial, by a single judge.
This control of case outcomes is accomplished predominantly by use of the “motion for summary judgment” (MSJ) ( F.R.C.P. 56). Do not be fooled by the fancy title -it is really quite simple. It has replaced jury trials with the power of one judge to dismiss any case. Its abuse began in the 1980’s, with the rule originally intended to reduce frivolous filings, predominantly by incarcerated criminals. After the discovery process, which allows for the demands for evidence between both parties, the use of an MSJ allows individual judges to dismiss cases instead of granting a trial, based on how they think a jury might find the facts of a case.
This MSJ is a “rule” – not a law- instituted by lawyers themselves, and not by the elected legislators. It is supposedly necessary for economic purposes to reduce meritless law suits. But its potential for abuse has become more than obvious in civil litigation, with only 1.1% of cases now allowed to proceed to jury trial. The U.S. Constitution’s Seventh Amendment (Amendment VII) states “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved…. ” Obviously, something got lost in the translation to the court rules committees. The banality of this rule has resulted in a massive decline in jury trials, and its abuse in the lower courts appears heavily supported by the appellate courts.
Another federal rule is being used against pro se litigants, who also often file “informa pauperis,” allowing them a waiver of filing fees, which have risen to upwards of $400 in federal courts. The Fourteenth Amendment (Amendment XIV) to the United States Constitution adopted in 1868, which addresses citizenship rights and equal protection of the laws, surely intended to provide justice and protect for those that cannot afford legal counsel or filing fees. However, this federal rule intended to be used toward prisoners, is now being used to allow a single judge to dismiss any civil case if it is filed informa pauperis, before the opposing party is even required to respond, under 28 U.S. Code Chapter 123- Fees and Costs at Section 1915.
There is a plethora of acadmic scholarly research articles regarding the constitutionality of MSJ use, which has been buried in the vaults of law schools. Most agree that it has changed the legal system dramatically in a most undemocratic manner. While they do not use the term “abuse, ” these scholars more politely cite other possible reasons for so many pre-trial dismissals – and they decline to focus on pro se litigants. They attribute it to perceived ineptness at court procedures, which have become increasingly complex- even for seasoned lawyers. There are also opinions that judges feel that discrimination has become obsolete with all of the agencies in place to address these issues, such as the Equal Opportunity Employment Commission(EEOC).
More compelling agendas stem from the obvious evolution of the justice system into nothing more than a legal industry, focused purely on profit. This collusion between the courts is easily facilitated by the ubiquitous national, federal, appellate, state and county lawyer unions – aka bar associations. The bar associations certainly serve no other legitimate purpose than to provide venues for judges and lawyers to synchronize their control of the courts. The current strong connections between politicians and members of the legal industry, fuel obligations to protect corporate donors against discrimination law suits, which are most commonly instituted by self-represented litigants.
When both parties are represented by lawyers, at the very least, it allows for the inevitable complicating of litigation to maximize their hourly fees. And if a represented party receives an award, between 33% and 50% percent of that award will go to a law firm. This has generated resentment for those who file for free and represent themselves. It is alleged by many court reform advocates that self-represented litigants are treated as pariahs, and are not allowed jury trials which often result in sizeable awards in civil rights cases.
What is the Administration of Courts hiding? The data that was denied by the courts, would give insight into patterns of constitutional violations of due process and judicial bias. The only way to identify such abuse would be to review MSJs granted by specific judicial districts – and even more pointedly- by specific judges within those districts. The criminal courts clearly are overburdened by frivolous inmate filings- however, the rule should never have been extended to civil cases. While the courts claim that MSJs are not unconstitutional, the obstruction of jury trials and prejudice against indigents is another question altogether.
Obstructing jury trials is contrary to every principle of fairness and justice in our now sinking democracy. The solutions are there, but the public just has to speak louder. The problem is that people are not compelled to get involved until it effects them – which is then too late to avoid the catastrophic effects of judicial misconduct.