Friday, August 7, 2009

Supreme court guts U.S. System of Justice

I'm going to begin with something I don't normally do... a link and a full quote of another web blog. I believe this constitutes fair use under the digital millenium copyright act as a commentary.
The New York Times is providing important coverage of the U.S. Supreme Court's May 18, 2009 decision in the case known as Ashcroft v. Iqbal:

The lower courts have certainly understood the significance of the decision, Ashcroft v. Iqbal, which makes it much easier for judges to dismiss civil lawsuits right after they are filed. They have cited it more than 500 times in just the last two months.

“Iqbal is the most significant Supreme Court decision in a decade for day-to-day litigation in the federal courts,” said Thomas C. Goldstein, an appellate lawyer with Akin Gump Strauss Hauer & Feld in Washington.

Why is Iqbal such an important case?

As the Times notes:

For more than half a century, it has been clear that all a plaintiff had to do to start a lawsuit was to file what the rules call “a short and plain statement of the claim” in a document called a complaint. Having filed such a bare-bones complaint, plaintiffs were entitled to force defendants to open their files and submit to questioning under oath.

This approach, particularly when coupled with the American requirement that each side pay its own lawyers no matter who wins, gave plaintiffs settlement leverage. Just by filing a lawsuit, a plaintiff could subject a defendant to great cost and inconvenience in the pre-trial fact-finding process called discovery...

Information about wrongdoing is often secret. Plaintiffs claiming they were the victims of employment discrimination, a defective product, an antitrust conspiracy or a policy of harsh treatment in detention may not know exactly who harmed them and how before filing suit. But plaintiffs can learn valuable information during discovery.

The Iqbal decision now requires plaintiffs to come forward with concrete facts at the outset, and it instructs lower court judges to dismiss lawsuits that strike them as implausible.

“Determining whether a complaint states a plausible claim for relief,” Justice Anthony M. Kennedy wrote for the five-justice majority, “requires the reviewing court to draw on its judicial experience and common sense.”

Note those words: Plausible. Common sense.

So what is the real world effect of the Supreme Court's decision?

The Times provides some hints:

“It obviously licenses highly subjective judgments,” said Stephen B. Burbank, an authority on civil procedure at the University of Pennsylvania Law School. “This is a blank check for federal judges to get rid of cases they disfavor.”

Courts applying Iqbal have been busy. A federal judge in Connecticut dismissed a disability discrimination suit this month, saying that Iqbal required her to treat the plaintiff’s assertions as implausible. A few days later, the federal appeals court in New York dismissed a breach of contract and securities fraud suit after concluding that its account of the defendants’ asserted wrongdoing was too speculative.

Indeed, the Plaintiff in Iqbal himself, was a Pakistani Muslim working and living in Long Island, who claims he was arrested 2 months after 9/11 and then beaten and tortured. But the court didn't want to hear about it:

Justice Kennedy said Mr. Iqbal’s suit against two officials had not cleared the plausibility bar. All Mr. Iqbal’s complaint plausibly suggested, Justice Kennedy wrote, “is that the nation’s top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available.”

In other words, the Court found the allegation that an innocent person was tortured as "implausible". It has become apparent to everyone, however, that many innocent people were tortured.

The Iqbal decision is - literally - an assault by the Supreme Court on the American system of justice. For it prevents plaintiffs from having their day in court if either:

1. The judge doesn't want to hear the case; or

2. The defendant has hidden the evidence of wrongdoing, so that the plaintiff cannot provide the details of defendant's wrongdoing without the use of the formal discovery process which only starts once litigation has commenced

People may ask "the Supreme Court interprets and enforces the American justice system, so how can it gut that system?

Well, Congress members and the President are supposed to represent the interests of the American people. Have they always done so?

Judges - like people in the White House and Congress - are human beings with political and personal viewpoints. Some stick to the case precedent while others - no matter how high and mighty - abandon it for political or personal reasons. That is the dirty little secret that those who work inside the justice system know.

In rendering the Iqbal decision, the Supreme Court abandoned some of the fundamental principals of justice, leaving a system which only pays lip service to that word.

Several Supreme Court justices dissented with the majority's opinion in Iqbal. As Raw Story writes:

Departing Justice David H. Souter sided with the minority in this case, expressing dismay in his dissent and suggesting the decision could “upend,” said the Times, the federal civil litigation system. He argued that complaints should be accepted “no matter how skeptical the court may be,” so long as the accusations are not “sufficiently fantastic to defy reality as we know it.”

“[Claims] about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel,” he said, should be the bar for disqualification.

Justice Ruth Bader Ginsburg agreed, suggesting the court had “messed up the federal rules” for civil suits.

Now, let us consider this for just a moment. I believe in all things, reason, rationality, and law should avail itself.

This is nothing less than yet another act of war and arbitrary government. War, you might ask? War indeed.

It is an old maxim of the common law, as spoken of by John Locke, that wild-haired, crazy man upon whom our entire system of government is founded.

By necessity, attempts to tear down our methods of recourse would be considered as acts of war. There's an old aspect of the Common Law, as written by John Locke that discussed this very thing.

[F]or nothing is to be accounted hostile force, but where it leaves not the remedy of such an appeal; and it is such force alone, that puts him that uses it into a state of war, and makes it lawful to resist him. A man with a sword in his hand demands my purse in the high-way, when perhaps I have not twelve pence in my pocket: this man I may lawfully kill. To another I deliver 100 pounds to hold only whilst I alight, which he refuses to restore me, when I am got up again, but draws his sword to defend the possession of it by force, if I endeavour to retake it. The mischief this man does me is a hundred, or possibly a thousand times more than the other perhaps intended me (whom I killed before he really did me any); and yet I might lawfully kill the one, and cannot so much as hurt the other lawfully. The reason whereof is plain; because the one using force, which threatened my life, I could not have time to appeal to the law to secure it: and when it was gone, it was too late to appeal. The law could not restore life to my dead carcass: the loss was irreparable; which to prevent, the law of nature gave me a right to destroy him, who had put himself into a state of war with me, and threatened my destruction. But in the other case, my life not being in danger, I may have the benefit of appealing to the law, and have reparation for my 100 pounds that way.

– John Locke

But how much more dangerous is it when there is still no right to appeal? When, by accident or malice, the courts, or others claim the right to your life, and you cannot appeal? When your property is taken from you, and all the ordinary means and avocations of life cease to be possible?

Outlawry and attainder become fairly simple at that point. It is a destruction of the rule of law.

This, too, had remedy under the old common law.

"To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore A MORE DANGEROUS ENGINE of arbitrary government.

– William Blackstone

"It is not only permitted, but it is also equitable and just to slay tyrants. For he who receives the sword deserves to perish by the sword.But 'receives' is to be understood to pertain to he who has rashly usurped that which is not his, now he who receives what he uses from the power of God. He who receives power from God serves the laws and is the slave of justice and right. He who usurps power suppresses justice and places the laws beneath his will. Therefore, justice is deservedly armed against those who disarm the law, and the public power treats harshly those who endeavour to put aside the public hand. And, although there are many forms of high treason, none is of them is so serious as that which is executed against the body of justice itself. Tyranny is, therefore, not only a public crime, but if this can happen, it is more than public. For if all prosecutors may be allowed in the case of high treason, how much more are they allowed when there is oppression of laws which should themselves command emperors? Surely no one will avenge a public enemy, and whoever does not prosecute him transgresses against himself and against the whole body of the earthly republic."

-- John of Salisbury: Policratus

"If the king ceases to govern the kingdom, and begins to act as a tyrant, to destroy justice, to overthrow peace, and to break his faith, the man who has taken the oath is free from it, and the people are entitled to depose the king and to set up another, inasmuch as he has broken the principle upon which their mutual obligation depended."

-- Manegold

Without that means of appeal, with the simple venue of calling your suit 'silly', and the potential of doing so even in the most extreme, the most critical of suits, those involving personal rights, including personal rights infringed by that government, have they not placed themselves in a condition of war? How might we appeal their actions, after all? If we are placed within a suit of law by someone better connected and funded, and the appeal is denied, in spite of the value, veracity, and accuracy of the suit, how are we to maintain our property, in which we have invested value?

Indeed, the rights to property are the basis of all such suits, and there is equal property in rights as in real property. Can you appeal the loss of your rights to self-protection, to life, to liberty, should the court choose to deem your appeal 'silly' and dismiss it with prejudice?

Is this not the very definition of tyranny? Allowing the law to run roughshod over the individual, denying them appeal, denying them their day in court? In this society where 'Extraordinary Rendition' and things like this occur, where the defense cannot see the evidence, cannot prepare for the case, and in some cases even the charges are sealed, is that the rule of law for which our forefathers fought so bravely, bled, and died?

Consider this: Can you appeal the law when you have no right to recourse, no right to a court, no right to the evidence or even the charges, and then on top of it, your appeal at law can be... dismissed as 'silly'?

Was it not the purpose of our government to have the rule of law be paramount, that justice and liberty be secured for all, even from that government itself?

Have we any means of calling our mis-managers to account?

Do we still have control over the vote?

Is it still a 'secret vote'?

If there is a personal identifier, and they mail out the ballots then have them mailed back... that seems like a very personal identifier to me. Who is to say they do not use the (very easily) collected data to determine who votes, and how... and thereby determine consequences for those that vote 'wrongly'?

That was the purpose of the secret ballot, after all, to help prevent tyranny, and prevent others from using your vote against you.

Are we still so free? Are you free to appeal your way out of another country where you're being tortured for a confession? Free to leave a prison where the judges can ignore your every appeal? Are you free to challenge the law itself, when the law is wrong?

Yet I still go to do it. I cannot turn my back on the harm being done to this nation.

Even knowing that it is unlikely that I can win.

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