JUDICIAL PROCEDURES
Reducing costs and abuse
Two issues, (See the addenda, below, for more detailed explanations.)
If a person of moderate means petitions the Supreme Court for certiorari in a civil rights case, their printing costs could be drastically reduced by several reasonable changes in the Court’s Rule 33, such as the requirements of small size paper and many copies.
Secondly, a court’s opinion is unlikely to ignore the main point of a prominent corporate attorney’s brief or drastically misquote a case, because the attorney is likely to make that abuse widely known. However, in a case I had argued before the Second Circuit, its opinion starts off by quoting Felix Frankfurter, but leaving out six words, giving the quotation the exact opposite meaning of what Frankfurter said. This was an example of judicial abuse that is clear if you check the quotation made by the court, which you’re unlikely to do, unless the misquote is brought to your attention.
The old reporters for the Supreme Court include the arguments of both sides. Any court that had to have included in their official reports summaries of opposing arguments would be more likely to follow the law and accurately state the facts. Of course the litigants would write the summaries and the limits on their lengths would be stated in advance. If the courts started such a practice again, either by Internet or hard copy, it would aid the general bar in its research and also deter the occasional abuse. Certainly this practice might have prevented what happened to me, an unknown sole practitioner, and prevent it happening to poorer litigants. Until the courts instituted such a practice a cooperating firm or institution could start its own web site based on submissions by the bar.
ADDENDA
ADDENDUM ON PRINTING COSTS
In 1994, in a pro se case arising in a New York state court, I submitted a motion to the United States Supreme Court to be relieved of some of the formatrequirement of Rule 33 based on my modest means and the issue being one of civil rights. My unsuccessful petition, a copy of which follows these addenda, explains the relaxations that could benefit the petitioner without unduly burdening the Court. (That petition became moot because an application for a stay was filed simultaneously. Supporting the application for a stay, I submitted a few copies of a petition for certiorari. Based on those papers my petition for certiorari was denied. I suspect the eight justices other than Justice Thomas never saw my motion concerning the format.) Such a rule could apply to individual petitioners defending any constitutional issue, also.
If the issue is properly presented to the Supreme Court it might follow the spirit of The Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. 1988 (which provides for such compensation to be paid by a party who has been determined to have violated any of several provisions of U. S. civil rights legislation) in making it easier for people of modest means to defend their civil liberties.
PUBLISHING LITIGANTS’ ARGUMENTS
Publishing litigants’ arguments should also apply to motions for rehearings and petitions to the Supreme Court to hear appeals.
Note that arguments of opposing counsel, in summary form, appeared as part of U.S. Supreme Court cases as recently as 1956. (For instance, see the United Gas Pipe Line case, 350 U.S. 332, 100 L.Ed. 375. In 101 L.Ed., arguments appeared only in the supplemental section of the volume.)
Many law firms have regularly scheduled staff meetings to discuss changes in the law and issues their members have researched, a library of memoranda and briefs, or both, so that each member need not reinvent the wheel when an issue is repeated. (If the field of law is business related, such as taxes, a lawyer can be doubly assisted: the many commercially published research services that blanket the field plus the sharing of memoranda and briefs on points not specifically covered by the services.) This type of research sharing would be particularly helpful to lawyers who do public service work since they may do it on an occasional basis only. However, such lawyers are unlikely to be in a large law firm with many lawyers doing public service work much of the time. The publishing of litigants’ main arguments would be another benefit to these lawyers.
In Bershatsky v. Levin, 99 F.3d 555, The Second Circuit quotes Frankfurter, in Thiel v. Southern Pacific Co., 328 U.S. 217, 231 (1946) but omits six words, “it is easy to say that”, which in that case had almost the same effect as leaving out “not.” The Second Circuit, quoting the lower court, with neither saying “it is easy to say that”, said:
“ ‘jury duty should be regarded as a patriotic service[;] . . . all public-spirited persons should willingly sacrifice pecuniary rewards in the performance of an obligation of citizenship,’ ” id . at 39 (quoting Thiel v. Southern Pacific Co., 328 U.S. 217, 231 (1946) (Frankfurter, J., dissenting) (internal quotation marks omitted)). We affirm substantially for the reasons stated in the district court’s opinion.
In Thiel, Frankfurter (dissenting) said:
With respect to the item last-mentioned, it is easy to say that jury duty should be regarded as a patriotic service, and that all public-spirited persons should willingly sacrifice pecuniary rewards in the performance of an obligation of citizenship. (Emphasis added to show words omitted by the Court of Appeals.)
He continues:
With that statement I am in full accord, but it does not solve the difficulty. Adequate provision for one's family is the first consideration of most men.
His opinion goes on to say it is proper to exempt day laborers from jury duty so that they should not have to make a great sacrifice.
More significantly, though perhaps less clearly faulty, the Bershatsky opinion fails to cite a key case that I cited, Shelton v. Tucker, 364 U.S. 479 (1960), and, while it cited Harper v. Virginia Board of Elections, 383 U.S. 663 (1966), it does so in a way that ignores the main point, which I quoted, namely, “We conclude that a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of a fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax.” (This is relevant because jury duty creates more of a financial burden for poor people than for others.) (This case declared the poll tax unconstitutional.)
These faults of the decision were not mere make-weights in an otherwise correct decision. (The matter arose when Abbe Bershatsky received a notice from the Kings County Commissioner of Jurors summoning her to report for jury duty. She was told her name had been selected at random from three lists, one of which is the Board of Elections Voter Registration List. She brought a federal action to void that call.)
Many states, such as New York, use voter lists to choose people to serve jury duty. This practice is an illegal abridgement of the fundamental right of voting, although no court has yet ruled that to be the case. However, since some people can better afford to take time off for jury duty than can poor working people, there is an equal protection issue. See Harper v. Virginia Board of Elections, 383 U.S. 663 (1966), supra.
New York (like other states, such as Pennsylvania) calls prospective jurors from voter lists and other lists, which reduces the probability that a person will be called due to voting. While better than some systems it is inferior in all ways to a system that also eliminates duplications to create a master list, such as the Texas system. In New York, any list you are on increases your likelihood of being called. In Texas, if you are on one of the other lists, because you are a licensed driver or for some other reason, you do not increase that likelihood by voting. That system eliminates the voting penalty for some voters, reduces it for others, and provides a broader base for selecting jurors than does the South Carolina system, which uses voter lists only. (In Oklahoma, as well as Florida, and Michigan, voting lists aren’t used to call people for jury duty.) By not eliminating duplications, the New York system cannot excuse its penalizing of voters with the excuse of being part of the system that gives people trial by jury. Shelton v. Tucker, 364 U.S. 479 (1960), supra, said that “ . . . even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” It seems to be a no-brainer that the New York system is illegal, since the Texas system could be used instead. However, the Second Circuit has held otherwise. (In Thiel, the prospective voters had not been selected from voters’ lists, so its holding is relevant in Bershatsky only to the issue of separability.)
ANY QUESTIONS?
To get a fuller memorandum on this by e-mail or regular mail, or for answers to any questions on these matters, please write or phone me.
