Stories & Grievances
The People's Statement and Petition of Grievance Against the Judiciary by Gary Treistman
This treatise/petition is posted on the website to expose to the world what the People are faced with regarding the corruption of our judicial system throughout the country.
Treatise: Insidious Breach of the Courts' Public Charter
See www.jail4judges.org
Thanks to Gary Treistman (garyonthenet@yahoo.com) for asking J.A.I.L. to post his masterful written composition, with some minor editing with his permission. This exposure of corruption covers all courts at all levels--federal, state, and local.
This treatise/petition is posted on the website to expose to the world what the People are faced with regarding the corruption of our judicial system throughout the country.
The People's Statement and Petition of Grievance
Against The Judiciary© 1
By Gary Treistman, garyonthenet@yahoo.com
(Minor editing by Barbie, ACIC National J.A.I.L.)
The People hereby present a review of the State and condition of our Judiciary, its systemic inequities, constitutional drift and institutional malaise; a call for the betterment and return to the purity of due process, enforcement of caliber in our judicial administration, and official recognition of our demands.
"At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed us in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping little and little, the foundations of the Constitution, before anyone perceived that invisible and helpless worm had been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account." --Thomas Jefferson, 1823.
We, the class of persons aggrieved in the courts, do hereby formally proffer our petition of grievance and demand for redress and amelioration, as is constitutionally guaranteed and provided for by the First Amendment to the U.S. Constitution. It has come to our attention that the federal judiciary, which serves as the role model and exemplar idyllic for all American courts, has gone terribly astray in its practice and administration of the law, and has de facto breached both its Constitutional idealism to unbiased justice and its purport to its public charter, from which its power is derived.
We impute the judiciary's breach of its duty, where its adherence to written procedure and law has degraded to such a degree, that the outcome and resolution of cases in these forums has become probabilistic at best, and oligarchically complicit at its worst.
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1. © Copyright 2001, Gary Treistman garyonthenet@yahoo.com: The People's Statement and Petition of Grievance Against The Judiciary. Mr. Treistman can also be reached @ Lori Sherman & Associates, Legal Advocates and Support, POB 563, Bearsville, NY 12409, Tel: 845-679-7095; email: LoriShermanAsc@hvc.rr.com He is the Editor of FreeNY. This work is copyrighted; no part or parts may be taken or used, nor the text herein changed without written permission of the author; any modifications made to this work that has been authorized by the author shall become the sole property of the author and who thereby retains all rights to any such derivative work.
(Minor editing by J.A.I.L. by permission of the author)
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We, those of us among the public who have had first-hand and informed experience in the court system(s), have taken up indignant notice of the discrepancies between the theory and the practice of the law; have suffered unjustly due to those discrepancies, and hereby articulate these abuses and breaches; we speak for ourselves and for the unknowing laity whose liberties and properties are at jeopardy where the judiciary has abrogated its Constitutional charter.
Preamble and Declaration of Condition
We assert that the current state of the courts' standard modus operandi has devolved into one of caprice and peremptory resolution --a condition where the judges now consistently rule with expedience and favoritism, with a post hoc mentality, geared more toward a synthesized end result than of a resolution wrought by the impartial weighing of the facts as directed to by the law. Whether it be because the issues therein are deemed too disruptive to society or the legal mettle, or because one of the litigants is politically more precedential than the other, or other reason, this is a breach of the public role of the judiciary.
Cognizant of the above, we also note that there appears to be an orchestrated effort by the judiciary to uphold the appearance of intact due process in the public eye. We also observe that, due to the technical nature of these matters, this effort is generally successful, and the very many micro injustices perpetrated as a matter of course in these forums side-step and escape the attention of the uninvolved public at large, who continue to retain a confidence of faith that all is basically well with the system.
As more members of the laity unavoidably get involved in the legal arena, these problems will not be concealable much longer. Although the details of the situation may continue to evade the general public's comprehension, the sentiment will not, as those who have had the misfortune of being subject to these inequities complain loudly to all that would listen.
And in that vein, it can be seen that a plethora of grass roots political action committees and coalitions, highly critical of the state of the various judiciaries and demanding change, have emerged.
Each one of these groups is representative of thousands of people who have deep-set grievances with the judicial system in its current defective incarnation, and have been unjustly affronted by their participation with it. The members don't complain about unfavorable decisions to themselves; they complain about the institutionally corrupt way decisions are arrived at and handed down.
We don't demand favoritism from the courts; we demand impartiality and plain adherence to the rule of written law.
Historical Review and Analysis
It has long been past since the federal courts upheld their rightful roles as guardians of the ideals of the Constitution, a bulwark against greater political and social powers seeking to establish an agenda at the expense of the common man's rights and guarantees.
There was a time when the federal courts did not recoil at the incidental possibility that a decision or ruling might have uncontrolled or unforeseen ramifications, rather they let the facts of the case and the law as written be their guides to just resolution, and let the results go where they may. They were the leaders of law, and set the outer limits to what was right and wrong.
Their decisions issued were pertinent and succinct to each case at hand; legal findings issued righted the wrongs at bar without reserve or fear that such a decision would or could affect other cases. There was a purity of process, compartmentalized, as it should be, within the instant cases being entertained, and beholden only to the applicable law at hand. Pristine in the application of the facts and law to the case at hand, such process was not soiled either by outside influences nor by the socio-political status of either litigant.
However, where there once was a dynamism, an open-mindedness to lead wherever the logic of the law may take it, without reservation to pragmatic forces or eventualities, there has now come a miserly stodginess of thought and forethought, where the results of judicial decision making are feared by those making them, and decisions' scope are artificially constrained, held tightly and reigned in as close as they can, so as to preempt what may come of them.
The fall-out from this change, from the free-form intellectual clarity of purpose and the openhanded idealistic application of the law, to the close fisted and small minded micro-management of the judicial administration (i.e., decision making and application), has been the practical degeneration of the legal system to the point where there is now particularized "justice" for one, not for all. Litigants cannot reliably depend on written law, because it could be "interpreted" to mean anything the courts want it to mean.
Legal truths no longer apply to all people everywhere similarly situated; rather, rulings and order memorandums are crafted to single persons or entities, constrained in scope solely to the instant cases, with judicially stamped captions boldly stating just that.
Such individualized justice systemically inevitably permits an arbitrariness of law; equal protection becomes meaningless as the law is applied fundamentally differently, depending on who you are and what impact your circumstance may have on the status quo.
This sloppiness and lack of legal consistency, and the accompanying loss of quality of decision issuance and analysis, has become a mindset and model for the judiciary at large. No longer are the previous ideals of adherence to the written rule of law held in sacred esteem, as something meant to be inviolate and kept pure. Now the judiciary feels free to "interpret" and reinterpret clearly written laws, unambiguous on their face, in whatever way seems pragmatically suited to the circumstance at bar.2 (It must be noted that in concert with this judicial trend is the contemporary legislative tendency to enact ambiguously written law, often incomplete and by design requiring interpretation by the courts to make any sense. Yet the courts' refusal to readily overturn such laws on the grounds of ambiguity makes them complicit in this dereliction).
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2. Such a legal system, brought to its logical conclusion, is indistinguishable from the Chinese judicial system of "laws" and ruling; there are no codified laws - judges hand down decisions based upon the reigning power structure's sentiment, presumed to be known to all, implicitly and without prior notice. Chinese judges do not publish their decisions or reasons thereof; all decisions are sealed and kept secret from the public. In practice, this is similarly indistinguishable to our judiciary's increasing habit of issuances of orders without opinion, or qualified with some cryptic summary statement, such as "based on the record and pleadings before the court it is so ordered." This is how Chinese leaders thus maintain flexibility in their courts.
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Inevitably, what "seems suited" manifests itself as an overt bias to the socio-politically stronger litigant, and a statist mentality to maintain the existing power structures intact, even at the expense of fundamental rights and liberties.
Where once the rights of the individual were treated as almost sovereign and respected above all else, as it was written into our Constitution, the rights of the collective are now considered superior, and are ceded a deference above those of any one person. This tendency, repeated many times over the years in controlling legal precedent, has slowly teased our society into a socialist mindset, spirit and practice. This quiescent tendency of belief is now normal and accepted, and it is the presumption and acceptance that all individual rights are only provisional, and are only granted solely at the discretion and benevolence of our governmental leaders. 3
We assert that without correction, this trend will lend itself to a slippery slope. As one set of injustices wrought becomes convention, it will become implicit foundation for the next set.
Without review and effective critique, as time goes on, these inequities will only become more entrenched and a part of the standard fare, a systemic cancer that will not budge, and we as a society will be left with nothing more than a changeling of what the American standards of justice once were. It will be a burden of unimaginable proportions and injustice to the people, and a bee-line toward tyranny.
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3. Like many prior civilizations, while the government keeps the public trust, or at least respect, it thrives with the full verve and participation of the populace; as it begins its systemic decay and decline, serving the oligarchy ever so much more obviously at the expense of the populace, its public respect is replaced with resentment and disdain. Consequently, in order to maintain an illusion of cohesiveness, such regimes commence the descent of all failed societies, replacing popular voluntary participation in the society with forcible coercion of the people to conform with intolerable conditions. These regimes last an average of 30 years before collapsing on their own hypocrisies.
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The Particulars
Our observations and complaints as detailed above are not the results of guesses or supposition.
These grievances come about from our collective, arduous interaction and direct experience with the court systems, a culmination of many years of legal engagement with the various courts and adversarial entities ranging from individuals to corporations to governmental bodies; in controversies involving everything from tort law, civil rights, immigration, bankruptcies, and criminal proceedings.
Perspective has been gleaned in these matters in the crossing of the lines of administrative, small claims, bankruptcy, civil, and criminal cases, and noticing the various character and tone of the courts, depending on the issues and forum. We submit that occasionally justice is actually done when the judge is independent, 4 true to the law and attentive, but invariably the proceedings and case resolution suffer from the systemic problems outlined herein.
Throughout all the pleadings, motions, appearances, and interactions with the courts, we have noticed a series of disturbing and recurring symptoms surface in the course of the proceedings, which after review lead us to conclude they are expressive of the underlying systemic illness about which we complain.
Most probably not an exhaustive list, we consider these to be the worst offenses of the judiciary, that most insults our sense of due process and trust in the integrity of the judiciary.
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4. We say this with admiration for such judges, even when we lose the case. If the judiciary were populated with such independent judges the system would not be in the sorry state it is headed. Final resolution of the cases are often reliant on juries. Juries, although theoretically independent, are heavily influenced by the judge's persona and demeanor, as are what they are permitted to know, legally and factually, by the judge.
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Court Issuances Violative of Due Process:
1. Decisions with no deciding cause or justification
"Leave them guessing" orders:
Orders that have no finding of facts or law; orders, often summary and dispositive of the case, leaving a would-be appellant in the position of not knowing what or why he is appealing the case other than the sheer dismissal or denial. Sometimes these orders have a boilerplate language: "Upon consideration of the record it is so ordered", or a citing of the statute's standard of proof which is asserted to be unmet, or equivalent.
In the case of appellate courts, orders of affirmance (or even sometimes remand) without opinion, or with summary point assertions and no analysis.
It should be noted that all these types of decisions are in fact in violation of the federal statute Rule 52(a) F.R.Cv.P., which mandates that any decision issued by a judge be justified by an accompanying finding of fact and law. However this law is widely and systematically ignored by the courts.
2. "Hidden" or sealed decisions
Justice for one, not for all:
Particularized memorandum decisions, where the court issues a ruling with the caveat that the findings, analysis and applicable law cannot be used as legal precedent in any other case, nor to be cited or referred to in any other case.
This practice undermines the whole intent of equal protection, as well as public trial/proceedings mandates. It permits another court in the same jurisdiction, in another case, the ability to rule differently on the exact same facts and circumstances.
3. "Pending" decisions, and case resolution
Justice delayed is justice denied:
Where an interlocutory or dispositive decision is awaiting issuance from the court before the case can proceed, and does not get handed down for long periods of time, e.g., 9 months, 18 months, or even years.
It is this tendency of the courts, more than anything else, that causes cases to drag on for years, clogging our case dockets and causing a conjugation of further delays; instead of the quick resolution that would normally occur if the court responded within a reasonable time for review (30 days at most) 5 on motions, the courts take their own sweet time, limited by no fixed duration or self-discipline.
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5.This penchant for taking its own time is compounded by the unreasonable patience and tolerance of the courts for frivolous requests for time extensions, and the permitting of the parties to play back and forth on the same issue that either was already resolved once on previous motion, or should have been by a defaulted response.
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4. "Ghost" written decisions
Delegated Justice:
Although vehemently denied as happening, as would be expected, the issuances of decisions and memorandums crafted and authored by judge's underlings - chamber's clerks, assistant staff attorneys, etc. - with only the judge signing off on it.
Such decisions are delegated to staff when the judge already has his mind made up as to the prevailing party, and either is too busy to analyze the case or too lazy to do so himself, so he gives the case file to the subject ghost writer and directs him to compose a memorandum justifying the given denial or granting of the order.
5. Copy cat decisions
Transliteration is the sincerest form of slothery:
Decision memorandums that so closely follows the argument, logic and text of the prevailing party so as to be considered a literal transcription of that party's brief. This begs the question, if the court thought the party was that correct, then why wasn't the case resolved on summary motion?
Such a ruling shows no independent decision or thought on the part of the court, and probably reveals an instance of Point 4 above.
6. Default Judgment refusal
The unattainable judgment:
Peculiar to the federal judiciary (although common to some other jurisdictions as well) is the sheer allergy of the courts to the issuance of default judgments (or findings) on points of controversy, or of case disposition.
The statutes provide simply that if a party fails to respond to an assertion on motion or a summons & complaint, the court is to rule in favor of the moving or summoning party; see Rule 55 and Rule 8(d) F.R.Cv.P.
It appears however, from case law and from experience, that no matter how violative an adversarial party is of answering summonses and complaints, no matter how egregiously the party disregards the summons and time constraints therein, despite uncontroverted proper service of a lawsuit or motion, the courts simply refuse to issue a default judgment to the moving party, preferring to give the defaulting party far more than the benefit of the doubt, accepting any excuse, and denying any motion for default judgment.
This practice extends to intra-case dynamics where a responding party simply refuses to defend or address a point raised or asserted on motion, and the court, instead of automatically granting that point of controversy to the moving party, still considers it unresolved.
Such neglect as to the precepts and mandate of the applicable statutes, only serve to delay, extend, draw out the proceedings and case duration, and reward non-responsive answers or replies in the pleadings; see Point 3 above.
Court Trends Transgressive of Equal Protection and Due Process:
1. The Eradication of Brightline Rules of Law
The reliability of written law, in meaning what it says and saying what it means, has suffered to the detriment of all.
Modern court jurisprudence treats plainly written law as if it were a mystical tongue, unreadable on its face, requiring predigestion of each component term and of needing reassessment as a whole. Alternatively, it is treated as a rhetorical suggestion, as if the text only provides a generalized guide as to what is actually stated.
There was a time when the law was comfortably replete with definite on-point directives and succinct elements of proof or touchstone. Therefrom, the courts respected it as such, relying on the statute as it was put down - not double-guessing the intent, nor attempting to generalize its meaning beyond what was written.
Such laws as effected and interpreted, gave actual and substantive notice to civil and criminal parties that an applicable law would reliably lead to a point of decision, and could be depended upon as a pivotal point in legal argument and case dynamics.
Since then however, through a complicit combination of lazy (or noncommittal) legislators, and precedent case law utilizing creative leaps of judicial interpretation,6 the trend has been inexorably drifting towards the effectuation of polymorphic laws and rules of procedure-- laws, that although written one way, could mean just about anything depending on fickleness of the circumstance.
Newly enacted laws, as of late, are rarely finished or complete, and by design give such great "wiggle room" that judges are compelled to fill in the blanks and substitute their own individualized interpretations, depending on the arbitrary circumstances, so as to make sense of what exactly the subject law means. 7 Unfortunately this usually results in law of the worst kind, legislated at the bench, where considerations of facts and circumstance unrelated to the case at bar become controlling. 8
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6. Or perhaps it is simply the trend to make the law mean whatever is convenient for it to mean, regardless of what is actually codified. Another instance of leaders maintaining flexibility in their court system; see 2 supra.
7. It might be noted that even in the rare instance where a brightline rule of law still exists, the appellate courts are still loathe to remand a district court's erroneous breach of its mandates.
8. Such as which litigant is socio-politically more powerful, what the political fallout will be if the decision is criticized, what pragmatic effect the decision will have on other cases or social causes external to the case at hand.
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The other side of the same coin occurs where the courts of precedential authority have combined to reinterpret obvious (and even historically treated) brightline rules of law into much more muted and unmoored facsimiles of their former incarnations.
Both sources of this trend have served to permit the judiciary to reinterpret the law in virtually any way it feels like at the time, introducing unwritten exceptions to the rule, guided only slightly by the written law, regardless of what the actual text of the subject law may explicitly state.
This leads once again to the qualitative degradation of judicial decisions, the lack of dependability of those decisions for all similar circumstances, and renders suspect our courts as an impartial forum for conflict resolution.
As aforementioned, when brought to its logical conclusion, such treatment of the law results in a system not dissimilar to the Chinese judiciary, where there are no codified laws, and the courts find the law based upon the issuances of current authoritative sentiment or proclamation.
2. Pro Se Prejudice
Although it has been recognized by the U.S. Supreme Court that a litigant has an absolute right to prosecute or defend his own case in civil and criminal matters,9 and that such a litigant must be given latitude in the technical form of the court submissions (i.e. the court should not hold pro se litigants to the same standards as to court procedure and forms not related to the substance of the claim),10 on the average, the courts still let the status of the litigant affect their substantive rulings on the matters before them.
The courts treat these litigants like an unruly son, worthy of one who breaches the rule "any one who represents himself has a fool for an attorney/client", and one who would be taught a lesson not to play with forces he does not understand.
There is a not-so-subtle presumption that not only is the pro se litigant ignorant of what he is doing procedurally, but that the litigant neither knows the law well enough to have a real claim beneath the surface of the pleadings. His submissions are read with a dismissive demeanor and not taken seriously or with any acute responsiveness.
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9. Farretta v. California
10. Haines v. Kerner
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3. Erosion of the vitality and plain language of the U.S. Bill of Rights
With the notable exception of the First Amendment to the U.S. Constitution (and perhaps the Third), almost to the word, every amendment to the U.S. Constitution has been re-interpreted and effectively emasculated from the powers and inherent rights it grants to the People, and from what it plainly states.
Like an old grandparent one is obligated to honour but who is actually considered dated and infirm, the courts treat the Constitution with a jaundiced respect, recognizing its authority in theory, but dismissing any direct conclusions stemming from its mandates as too impractical to entertain. Instead, statutory law is given de facto precedence over it, and wherever there is a conflict between them, statutory law usually prevails.
The illegitimate encroachment of federal jurisdiction over purely intrastate activities:
"...the Federal Judiciary; an irresponsible body (for impeachment is scarcely a scarecrow), working like gravity by night and by day, gaining a little to-day and a little tomorrow, and advancing it's noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one. ... when all government ... in little as in great things, shall be drawn to Washington as the centre of all power, it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated." --Thomas Jefferson, 1821
In the system of federal government set up by our Founding Fathers, and in their informed wisdom and justified fear of an uber-power centralized government, the U.S. government was intentionally trifurcated into three equally important parts, neither one of them vested with the sole power to control the land. In this manner the intention was to inter-moderate and buffer each other's possible efforts at supremacy.
In the order of effectuation of federal governing, they created the Legislative, the Executive, and the Judicial branches of our government. And they concurrently created the Constitution which defined and delegated the respective powers, duties and limits of the three branches.
The Legislative was the creator of laws, the Executive was the effectuator of the laws, and the Judicial was to be the ideological enforcer, the policer of the other two branches that kept them in line with the Constitution, and in administration of the laws upon the People.
In this way their respective powers were limited in scope, and neither had enough power to rule solely; the Legislative could make laws but not carry them out; the Executive could only carry out the laws that the Legislative made (or that existed in the Constitution); and the Judicial was constrained to proclaiming whether the Legislative's laws subserved the Constitution and whether the Executive, in carrying them out, had adhered to the laws made by the Legislative (or to the Constitution directly). 11
(In many ways the Judicial was vested with the highest and most noble task: to protect our system of government against Constitutional heresy and keep pure our system of laws, rights and Constitutional precepts.)
11. The Constitution was to be our legal DNA of sorts, the law cardinal, a source law not created by the legislature, but presumed to be a given and inviolate. Within the framework of that base set of precept laws, and consistent wherefrom, the Legislative was permitted to make any appropriate laws needed.
Furthermore, in order to respect the sovereignty the States, who in fact initially chartered the federal government and which was the result of a compact between them, the Constitution mandated that the U.S. government could only control or regulate the commercial trade occurring between the States or their respective citizens. It was explicit that the federal government was to have no other jurisdiction or controlling powers to normal activities internal to the respective States.12
This bar to intrastate activities was long an established and unremarkable fixture in our system of government(s), until about 1942, when the U.S. Government prosecuted an Ohio wheat farmer who had decided to grow an additional 11.9 acres of wheat, on his own land for his own consumption, against Governmental edict.
The controversy was appealed to the Supreme Court 13 on the grounds that what the farmer did on his own property, and for his own intrastate purposes, was outside the federal government's power to penalize.
12. Of course there are other intrastate activities detailed in the Constitution (which embodies the assent that the States entered into with each other and with the federal government), that are regulatable by the federal government, most notably enforcement of the Bill of Rights' guarantees to the People and how State government laws and administrations comport with it.
13. Wickard v Filburn 317 U.S. 111 (1942)
Utilizing a wartime mentality, the legacy of which we are saddled with today, the Supreme Court ruled that the federal government could regulate such intrastate activities because the farmer's consumption of his own wheat somehow ethereally14 affected the total interstate supplies and transport of wheat across the nation. (This was akin to saying that breathing affected interstate commerce, because the air was used up faster and couldn't be used for other interstate activities, thus justifying federal authority over breathing.)
In violation of the clear limits set forth in the Constitution, and based upon this landmark case, this newly minted federal authority to control intrastate life and activities exceeded all bounds, and currently knows no practical limits.15
All that is now required for the federal legislature to control an arbitrary intrastate activity is a publi
See www.jail4judges.org
Thanks to Gary Treistman (garyonthenet@yahoo.com) for asking J.A.I.L. to post his masterful written composition, with some minor editing with his permission. This exposure of corruption covers all courts at all levels--federal, state, and local.
This treatise/petition is posted on the website to expose to the world what the People are faced with regarding the corruption of our judicial system throughout the country.
The People's Statement and Petition of Grievance
Against The Judiciary© 1
By Gary Treistman, garyonthenet@yahoo.com
(Minor editing by Barbie, ACIC National J.A.I.L.)
The People hereby present a review of the State and condition of our Judiciary, its systemic inequities, constitutional drift and institutional malaise; a call for the betterment and return to the purity of due process, enforcement of caliber in our judicial administration, and official recognition of our demands.
"At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed us in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping little and little, the foundations of the Constitution, before anyone perceived that invisible and helpless worm had been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account." --Thomas Jefferson, 1823.
We, the class of persons aggrieved in the courts, do hereby formally proffer our petition of grievance and demand for redress and amelioration, as is constitutionally guaranteed and provided for by the First Amendment to the U.S. Constitution. It has come to our attention that the federal judiciary, which serves as the role model and exemplar idyllic for all American courts, has gone terribly astray in its practice and administration of the law, and has de facto breached both its Constitutional idealism to unbiased justice and its purport to its public charter, from which its power is derived.
We impute the judiciary's breach of its duty, where its adherence to written procedure and law has degraded to such a degree, that the outcome and resolution of cases in these forums has become probabilistic at best, and oligarchically complicit at its worst.
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1. © Copyright 2001, Gary Treistman garyonthenet@yahoo.com: The People's Statement and Petition of Grievance Against The Judiciary. Mr. Treistman can also be reached @ Lori Sherman & Associates, Legal Advocates and Support, POB 563, Bearsville, NY 12409, Tel: 845-679-7095; email: LoriShermanAsc@hvc.rr.com He is the Editor of FreeNY. This work is copyrighted; no part or parts may be taken or used, nor the text herein changed without written permission of the author; any modifications made to this work that has been authorized by the author shall become the sole property of the author and who thereby retains all rights to any such derivative work.
(Minor editing by J.A.I.L. by permission of the author)
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We, those of us among the public who have had first-hand and informed experience in the court system(s), have taken up indignant notice of the discrepancies between the theory and the practice of the law; have suffered unjustly due to those discrepancies, and hereby articulate these abuses and breaches; we speak for ourselves and for the unknowing laity whose liberties and properties are at jeopardy where the judiciary has abrogated its Constitutional charter.
Preamble and Declaration of Condition
We assert that the current state of the courts' standard modus operandi has devolved into one of caprice and peremptory resolution --a condition where the judges now consistently rule with expedience and favoritism, with a post hoc mentality, geared more toward a synthesized end result than of a resolution wrought by the impartial weighing of the facts as directed to by the law. Whether it be because the issues therein are deemed too disruptive to society or the legal mettle, or because one of the litigants is politically more precedential than the other, or other reason, this is a breach of the public role of the judiciary.
Cognizant of the above, we also note that there appears to be an orchestrated effort by the judiciary to uphold the appearance of intact due process in the public eye. We also observe that, due to the technical nature of these matters, this effort is generally successful, and the very many micro injustices perpetrated as a matter of course in these forums side-step and escape the attention of the uninvolved public at large, who continue to retain a confidence of faith that all is basically well with the system.
As more members of the laity unavoidably get involved in the legal arena, these problems will not be concealable much longer. Although the details of the situation may continue to evade the general public's comprehension, the sentiment will not, as those who have had the misfortune of being subject to these inequities complain loudly to all that would listen.
And in that vein, it can be seen that a plethora of grass roots political action committees and coalitions, highly critical of the state of the various judiciaries and demanding change, have emerged.
Each one of these groups is representative of thousands of people who have deep-set grievances with the judicial system in its current defective incarnation, and have been unjustly affronted by their participation with it. The members don't complain about unfavorable decisions to themselves; they complain about the institutionally corrupt way decisions are arrived at and handed down.
We don't demand favoritism from the courts; we demand impartiality and plain adherence to the rule of written law.
Historical Review and Analysis
It has long been past since the federal courts upheld their rightful roles as guardians of the ideals of the Constitution, a bulwark against greater political and social powers seeking to establish an agenda at the expense of the common man's rights and guarantees.
There was a time when the federal courts did not recoil at the incidental possibility that a decision or ruling might have uncontrolled or unforeseen ramifications, rather they let the facts of the case and the law as written be their guides to just resolution, and let the results go where they may. They were the leaders of law, and set the outer limits to what was right and wrong.
Their decisions issued were pertinent and succinct to each case at hand; legal findings issued righted the wrongs at bar without reserve or fear that such a decision would or could affect other cases. There was a purity of process, compartmentalized, as it should be, within the instant cases being entertained, and beholden only to the applicable law at hand. Pristine in the application of the facts and law to the case at hand, such process was not soiled either by outside influences nor by the socio-political status of either litigant.
However, where there once was a dynamism, an open-mindedness to lead wherever the logic of the law may take it, without reservation to pragmatic forces or eventualities, there has now come a miserly stodginess of thought and forethought, where the results of judicial decision making are feared by those making them, and decisions' scope are artificially constrained, held tightly and reigned in as close as they can, so as to preempt what may come of them.
The fall-out from this change, from the free-form intellectual clarity of purpose and the openhanded idealistic application of the law, to the close fisted and small minded micro-management of the judicial administration (i.e., decision making and application), has been the practical degeneration of the legal system to the point where there is now particularized "justice" for one, not for all. Litigants cannot reliably depend on written law, because it could be "interpreted" to mean anything the courts want it to mean.
Legal truths no longer apply to all people everywhere similarly situated; rather, rulings and order memorandums are crafted to single persons or entities, constrained in scope solely to the instant cases, with judicially stamped captions boldly stating just that.
Such individualized justice systemically inevitably permits an arbitrariness of law; equal protection becomes meaningless as the law is applied fundamentally differently, depending on who you are and what impact your circumstance may have on the status quo.
This sloppiness and lack of legal consistency, and the accompanying loss of quality of decision issuance and analysis, has become a mindset and model for the judiciary at large. No longer are the previous ideals of adherence to the written rule of law held in sacred esteem, as something meant to be inviolate and kept pure. Now the judiciary feels free to "interpret" and reinterpret clearly written laws, unambiguous on their face, in whatever way seems pragmatically suited to the circumstance at bar.2 (It must be noted that in concert with this judicial trend is the contemporary legislative tendency to enact ambiguously written law, often incomplete and by design requiring interpretation by the courts to make any sense. Yet the courts' refusal to readily overturn such laws on the grounds of ambiguity makes them complicit in this dereliction).
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2. Such a legal system, brought to its logical conclusion, is indistinguishable from the Chinese judicial system of "laws" and ruling; there are no codified laws - judges hand down decisions based upon the reigning power structure's sentiment, presumed to be known to all, implicitly and without prior notice. Chinese judges do not publish their decisions or reasons thereof; all decisions are sealed and kept secret from the public. In practice, this is similarly indistinguishable to our judiciary's increasing habit of issuances of orders without opinion, or qualified with some cryptic summary statement, such as "based on the record and pleadings before the court it is so ordered." This is how Chinese leaders thus maintain flexibility in their courts.
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Inevitably, what "seems suited" manifests itself as an overt bias to the socio-politically stronger litigant, and a statist mentality to maintain the existing power structures intact, even at the expense of fundamental rights and liberties.
Where once the rights of the individual were treated as almost sovereign and respected above all else, as it was written into our Constitution, the rights of the collective are now considered superior, and are ceded a deference above those of any one person. This tendency, repeated many times over the years in controlling legal precedent, has slowly teased our society into a socialist mindset, spirit and practice. This quiescent tendency of belief is now normal and accepted, and it is the presumption and acceptance that all individual rights are only provisional, and are only granted solely at the discretion and benevolence of our governmental leaders. 3
We assert that without correction, this trend will lend itself to a slippery slope. As one set of injustices wrought becomes convention, it will become implicit foundation for the next set.
Without review and effective critique, as time goes on, these inequities will only become more entrenched and a part of the standard fare, a systemic cancer that will not budge, and we as a society will be left with nothing more than a changeling of what the American standards of justice once were. It will be a burden of unimaginable proportions and injustice to the people, and a bee-line toward tyranny.
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3. Like many prior civilizations, while the government keeps the public trust, or at least respect, it thrives with the full verve and participation of the populace; as it begins its systemic decay and decline, serving the oligarchy ever so much more obviously at the expense of the populace, its public respect is replaced with resentment and disdain. Consequently, in order to maintain an illusion of cohesiveness, such regimes commence the descent of all failed societies, replacing popular voluntary participation in the society with forcible coercion of the people to conform with intolerable conditions. These regimes last an average of 30 years before collapsing on their own hypocrisies.
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The Particulars
Our observations and complaints as detailed above are not the results of guesses or supposition.
These grievances come about from our collective, arduous interaction and direct experience with the court systems, a culmination of many years of legal engagement with the various courts and adversarial entities ranging from individuals to corporations to governmental bodies; in controversies involving everything from tort law, civil rights, immigration, bankruptcies, and criminal proceedings.
Perspective has been gleaned in these matters in the crossing of the lines of administrative, small claims, bankruptcy, civil, and criminal cases, and noticing the various character and tone of the courts, depending on the issues and forum. We submit that occasionally justice is actually done when the judge is independent, 4 true to the law and attentive, but invariably the proceedings and case resolution suffer from the systemic problems outlined herein.
Throughout all the pleadings, motions, appearances, and interactions with the courts, we have noticed a series of disturbing and recurring symptoms surface in the course of the proceedings, which after review lead us to conclude they are expressive of the underlying systemic illness about which we complain.
Most probably not an exhaustive list, we consider these to be the worst offenses of the judiciary, that most insults our sense of due process and trust in the integrity of the judiciary.
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4. We say this with admiration for such judges, even when we lose the case. If the judiciary were populated with such independent judges the system would not be in the sorry state it is headed. Final resolution of the cases are often reliant on juries. Juries, although theoretically independent, are heavily influenced by the judge's persona and demeanor, as are what they are permitted to know, legally and factually, by the judge.
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Court Issuances Violative of Due Process:
1. Decisions with no deciding cause or justification
"Leave them guessing" orders:
Orders that have no finding of facts or law; orders, often summary and dispositive of the case, leaving a would-be appellant in the position of not knowing what or why he is appealing the case other than the sheer dismissal or denial. Sometimes these orders have a boilerplate language: "Upon consideration of the record it is so ordered", or a citing of the statute's standard of proof which is asserted to be unmet, or equivalent.
In the case of appellate courts, orders of affirmance (or even sometimes remand) without opinion, or with summary point assertions and no analysis.
It should be noted that all these types of decisions are in fact in violation of the federal statute Rule 52(a) F.R.Cv.P., which mandates that any decision issued by a judge be justified by an accompanying finding of fact and law. However this law is widely and systematically ignored by the courts.
2. "Hidden" or sealed decisions
Justice for one, not for all:
Particularized memorandum decisions, where the court issues a ruling with the caveat that the findings, analysis and applicable law cannot be used as legal precedent in any other case, nor to be cited or referred to in any other case.
This practice undermines the whole intent of equal protection, as well as public trial/proceedings mandates. It permits another court in the same jurisdiction, in another case, the ability to rule differently on the exact same facts and circumstances.
3. "Pending" decisions, and case resolution
Justice delayed is justice denied:
Where an interlocutory or dispositive decision is awaiting issuance from the court before the case can proceed, and does not get handed down for long periods of time, e.g., 9 months, 18 months, or even years.
It is this tendency of the courts, more than anything else, that causes cases to drag on for years, clogging our case dockets and causing a conjugation of further delays; instead of the quick resolution that would normally occur if the court responded within a reasonable time for review (30 days at most) 5 on motions, the courts take their own sweet time, limited by no fixed duration or self-discipline.
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5.This penchant for taking its own time is compounded by the unreasonable patience and tolerance of the courts for frivolous requests for time extensions, and the permitting of the parties to play back and forth on the same issue that either was already resolved once on previous motion, or should have been by a defaulted response.
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4. "Ghost" written decisions
Delegated Justice:
Although vehemently denied as happening, as would be expected, the issuances of decisions and memorandums crafted and authored by judge's underlings - chamber's clerks, assistant staff attorneys, etc. - with only the judge signing off on it.
Such decisions are delegated to staff when the judge already has his mind made up as to the prevailing party, and either is too busy to analyze the case or too lazy to do so himself, so he gives the case file to the subject ghost writer and directs him to compose a memorandum justifying the given denial or granting of the order.
5. Copy cat decisions
Transliteration is the sincerest form of slothery:
Decision memorandums that so closely follows the argument, logic and text of the prevailing party so as to be considered a literal transcription of that party's brief. This begs the question, if the court thought the party was that correct, then why wasn't the case resolved on summary motion?
Such a ruling shows no independent decision or thought on the part of the court, and probably reveals an instance of Point 4 above.
6. Default Judgment refusal
The unattainable judgment:
Peculiar to the federal judiciary (although common to some other jurisdictions as well) is the sheer allergy of the courts to the issuance of default judgments (or findings) on points of controversy, or of case disposition.
The statutes provide simply that if a party fails to respond to an assertion on motion or a summons & complaint, the court is to rule in favor of the moving or summoning party; see Rule 55 and Rule 8(d) F.R.Cv.P.
It appears however, from case law and from experience, that no matter how violative an adversarial party is of answering summonses and complaints, no matter how egregiously the party disregards the summons and time constraints therein, despite uncontroverted proper service of a lawsuit or motion, the courts simply refuse to issue a default judgment to the moving party, preferring to give the defaulting party far more than the benefit of the doubt, accepting any excuse, and denying any motion for default judgment.
This practice extends to intra-case dynamics where a responding party simply refuses to defend or address a point raised or asserted on motion, and the court, instead of automatically granting that point of controversy to the moving party, still considers it unresolved.
Such neglect as to the precepts and mandate of the applicable statutes, only serve to delay, extend, draw out the proceedings and case duration, and reward non-responsive answers or replies in the pleadings; see Point 3 above.
Court Trends Transgressive of Equal Protection and Due Process:
1. The Eradication of Brightline Rules of Law
The reliability of written law, in meaning what it says and saying what it means, has suffered to the detriment of all.
Modern court jurisprudence treats plainly written law as if it were a mystical tongue, unreadable on its face, requiring predigestion of each component term and of needing reassessment as a whole. Alternatively, it is treated as a rhetorical suggestion, as if the text only provides a generalized guide as to what is actually stated.
There was a time when the law was comfortably replete with definite on-point directives and succinct elements of proof or touchstone. Therefrom, the courts respected it as such, relying on the statute as it was put down - not double-guessing the intent, nor attempting to generalize its meaning beyond what was written.
Such laws as effected and interpreted, gave actual and substantive notice to civil and criminal parties that an applicable law would reliably lead to a point of decision, and could be depended upon as a pivotal point in legal argument and case dynamics.
Since then however, through a complicit combination of lazy (or noncommittal) legislators, and precedent case law utilizing creative leaps of judicial interpretation,6 the trend has been inexorably drifting towards the effectuation of polymorphic laws and rules of procedure-- laws, that although written one way, could mean just about anything depending on fickleness of the circumstance.
Newly enacted laws, as of late, are rarely finished or complete, and by design give such great "wiggle room" that judges are compelled to fill in the blanks and substitute their own individualized interpretations, depending on the arbitrary circumstances, so as to make sense of what exactly the subject law means. 7 Unfortunately this usually results in law of the worst kind, legislated at the bench, where considerations of facts and circumstance unrelated to the case at bar become controlling. 8
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6. Or perhaps it is simply the trend to make the law mean whatever is convenient for it to mean, regardless of what is actually codified. Another instance of leaders maintaining flexibility in their court system; see 2 supra.
7. It might be noted that even in the rare instance where a brightline rule of law still exists, the appellate courts are still loathe to remand a district court's erroneous breach of its mandates.
8. Such as which litigant is socio-politically more powerful, what the political fallout will be if the decision is criticized, what pragmatic effect the decision will have on other cases or social causes external to the case at hand.
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The other side of the same coin occurs where the courts of precedential authority have combined to reinterpret obvious (and even historically treated) brightline rules of law into much more muted and unmoored facsimiles of their former incarnations.
Both sources of this trend have served to permit the judiciary to reinterpret the law in virtually any way it feels like at the time, introducing unwritten exceptions to the rule, guided only slightly by the written law, regardless of what the actual text of the subject law may explicitly state.
This leads once again to the qualitative degradation of judicial decisions, the lack of dependability of those decisions for all similar circumstances, and renders suspect our courts as an impartial forum for conflict resolution.
As aforementioned, when brought to its logical conclusion, such treatment of the law results in a system not dissimilar to the Chinese judiciary, where there are no codified laws, and the courts find the law based upon the issuances of current authoritative sentiment or proclamation.
2. Pro Se Prejudice
Although it has been recognized by the U.S. Supreme Court that a litigant has an absolute right to prosecute or defend his own case in civil and criminal matters,9 and that such a litigant must be given latitude in the technical form of the court submissions (i.e. the court should not hold pro se litigants to the same standards as to court procedure and forms not related to the substance of the claim),10 on the average, the courts still let the status of the litigant affect their substantive rulings on the matters before them.
The courts treat these litigants like an unruly son, worthy of one who breaches the rule "any one who represents himself has a fool for an attorney/client", and one who would be taught a lesson not to play with forces he does not understand.
There is a not-so-subtle presumption that not only is the pro se litigant ignorant of what he is doing procedurally, but that the litigant neither knows the law well enough to have a real claim beneath the surface of the pleadings. His submissions are read with a dismissive demeanor and not taken seriously or with any acute responsiveness.
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9. Farretta v. California
10. Haines v. Kerner
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3. Erosion of the vitality and plain language of the U.S. Bill of Rights
With the notable exception of the First Amendment to the U.S. Constitution (and perhaps the Third), almost to the word, every amendment to the U.S. Constitution has been re-interpreted and effectively emasculated from the powers and inherent rights it grants to the People, and from what it plainly states.
Like an old grandparent one is obligated to honour but who is actually considered dated and infirm, the courts treat the Constitution with a jaundiced respect, recognizing its authority in theory, but dismissing any direct conclusions stemming from its mandates as too impractical to entertain. Instead, statutory law is given de facto precedence over it, and wherever there is a conflict between them, statutory law usually prevails.
The illegitimate encroachment of federal jurisdiction over purely intrastate activities:
"...the Federal Judiciary; an irresponsible body (for impeachment is scarcely a scarecrow), working like gravity by night and by day, gaining a little to-day and a little tomorrow, and advancing it's noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one. ... when all government ... in little as in great things, shall be drawn to Washington as the centre of all power, it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated." --Thomas Jefferson, 1821
In the system of federal government set up by our Founding Fathers, and in their informed wisdom and justified fear of an uber-power centralized government, the U.S. government was intentionally trifurcated into three equally important parts, neither one of them vested with the sole power to control the land. In this manner the intention was to inter-moderate and buffer each other's possible efforts at supremacy.
In the order of effectuation of federal governing, they created the Legislative, the Executive, and the Judicial branches of our government. And they concurrently created the Constitution which defined and delegated the respective powers, duties and limits of the three branches.
The Legislative was the creator of laws, the Executive was the effectuator of the laws, and the Judicial was to be the ideological enforcer, the policer of the other two branches that kept them in line with the Constitution, and in administration of the laws upon the People.
In this way their respective powers were limited in scope, and neither had enough power to rule solely; the Legislative could make laws but not carry them out; the Executive could only carry out the laws that the Legislative made (or that existed in the Constitution); and the Judicial was constrained to proclaiming whether the Legislative's laws subserved the Constitution and whether the Executive, in carrying them out, had adhered to the laws made by the Legislative (or to the Constitution directly). 11
(In many ways the Judicial was vested with the highest and most noble task: to protect our system of government against Constitutional heresy and keep pure our system of laws, rights and Constitutional precepts.)
11. The Constitution was to be our legal DNA of sorts, the law cardinal, a source law not created by the legislature, but presumed to be a given and inviolate. Within the framework of that base set of precept laws, and consistent wherefrom, the Legislative was permitted to make any appropriate laws needed.
Furthermore, in order to respect the sovereignty the States, who in fact initially chartered the federal government and which was the result of a compact between them, the Constitution mandated that the U.S. government could only control or regulate the commercial trade occurring between the States or their respective citizens. It was explicit that the federal government was to have no other jurisdiction or controlling powers to normal activities internal to the respective States.12
This bar to intrastate activities was long an established and unremarkable fixture in our system of government(s), until about 1942, when the U.S. Government prosecuted an Ohio wheat farmer who had decided to grow an additional 11.9 acres of wheat, on his own land for his own consumption, against Governmental edict.
The controversy was appealed to the Supreme Court 13 on the grounds that what the farmer did on his own property, and for his own intrastate purposes, was outside the federal government's power to penalize.
12. Of course there are other intrastate activities detailed in the Constitution (which embodies the assent that the States entered into with each other and with the federal government), that are regulatable by the federal government, most notably enforcement of the Bill of Rights' guarantees to the People and how State government laws and administrations comport with it.
13. Wickard v Filburn 317 U.S. 111 (1942)
Utilizing a wartime mentality, the legacy of which we are saddled with today, the Supreme Court ruled that the federal government could regulate such intrastate activities because the farmer's consumption of his own wheat somehow ethereally14 affected the total interstate supplies and transport of wheat across the nation. (This was akin to saying that breathing affected interstate commerce, because the air was used up faster and couldn't be used for other interstate activities, thus justifying federal authority over breathing.)
In violation of the clear limits set forth in the Constitution, and based upon this landmark case, this newly minted federal authority to control intrastate life and activities exceeded all bounds, and currently knows no practical limits.15
All that is now required for the federal legislature to control an arbitrary intrastate activity is a publi