Pro Se Litigation in Colorado

What really happens to the ordinary person, who files a case of great importance to him/her or of great importance to society from a civil rights perspective¹ and, who does so because of his or her faith in the rule of law and the belief that the purpose of the civil law is to provide for redress as the only alternative to inappropriate self help?  As with all of my posts, my contentions are supported by real documents and statements –this time, from the judges, themselves.

Some Polsters may recall that I’ve mentioned that I work in the legal profession. Yet, at the same time, I am a court reform advocate, a member/contributor to H.A.L.T. and it may have become apparent that I have been or am a champion of the right to prosecute one’s own case in court, especially when the resources to underwrite a major litigation initiative (against “towne hall” or well-heeled corporate interests) are unavailable, because one is not independently wealthy.²

My observations, which cause consternation among both lawyers and jurists alike (who would rather not acknowledge a problem or promote any change to their lucrative industry), should not be taboo: I note that many of these jurists pay sanctimonious lipservice to the importance of, “the Rule of Law [as] probably the single greatest achievement of our society. It is our bulwark against both mob rule and the overweening power of the modern state.” ³ They give annual state of the judiciary addresses discussing the importance of “access to justice” and the need for well-reasoned judicial opinions and professional responsibility in order to maintain public confidence in the judiciary.  At CLEs (training for attorneys), there is less emphasis on such lofty platitudes (for public consumption) and there is more candor about their pragmatic concerns.

However, the truth is where the rubber meets the road –what happens in real cases with real people.

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I make a comfortable living doing nothing more strenuous than thinking about things people ask me to think about. There is no heavy lifting; no shift work. I’m not required to drive through snow and I don’t come home smelling of fish. When I’m done thinking about these things, I give my “opinion” about them and start thinking about some-thing else. Anyone churlish enough to complain about such a job, any-one who asked so little would fail to give every case, regardless of whether it’s handled by a successful attorney or a prison inmate, full consideration, is an ungrateful lout.

-Justice Wlm. W. Bedsworth, IMPROPER PERSONA, 45-Nov. O.C.LAW 40 (Nov. 2003)

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Pro se, also termed pro per, originates from Latin and is today defined by Black’s Law Dictionary simply as, “One, who represents oneself in a court proceeding without the assistance of a lawyer.”

In the United States, litigants in civil cases do not have a constitutional right to self-representation.  That constitutional right applies only to criminal cases.⁴  Civil litigants do, however, have a long-standing statutory right to self-representation under Title 28  of the U.S. Code,  § 1654, which provides:

In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.

A violation of this right to self-representation –at least in criminal cases– is a “structural defect” in the proceedings. So-called “structural defects” are among the few irregularities that warrant a new trial.⁵

In many earlier threads over the last few months, including another diary, I have obstreperously pointed out that pro se litigants are systemically denied their day in court in Colorado and, especially, in the federal court. However, at least one of our attorney Polsters, Oh-Willike, with a profession to defend,⁶ has denied this is so. (“They aren’t systematically discriminated against.” –click here)  In support of his contention, he cited to examples, like Kay Sieverding.  If all pro se cases were like hers, how could anyone argue?  So, the question is: Are all pro se litigants like Kay Sieverding?  What are the odds?  What are the numbers?

In a comment several weeks ago, I revealed that another pro se litigant, Suzanne Shell, testified in her affidavit that Magistrate Michael J. Watanabe (formerly a Colorado District Judge) told her that, “Pro se litigants NEVER win in this court.” Id. at ¶ 22 (on p. 20 of 22).

Oh-Willike  said, “With all due respect, Shell is not a very credible source. Also, pushing for more respect for pro se litigants, who often do, in good faith, do ill advised things in litigation, isn’t a good path to solutions.  A fair shake from a judge isn’t worth much when you still don’t know what you’re doing.”

While his comment seems to tacitly acknowledge that some or all pro se litigants aren’t getting a fair shake (but that it would be pointless to give them one), we really don’t need to take Suzanne Shell’s word for anything, because  I came into possession, just today, of an Aug. 8, 2004 order from Steiner v. Concentra by U.S. magistrate judge Edward Schlatter (a former Colorado district judge in Salida and Cañon City). I think I’ll go ahead and take his word for it –unless Andrew thinks he’s not a very credible source, either?

In cases where plaintiffs are proceeding without a lawyer, district judges typically will refer such cases to a magistrate judge for case management, for settlement conferences and for “recommendations” on motions to dismiss or for summary judgment

If a party objects to one of my recommendations, Judge Nottingham must reconsider any motion to dismiss or for summary judgment the same as if I made no recommendation at all, and he is free to reach any conclusion on the motion that he deems appropriate

Approximately 2,500 to 3,000 cases are filed here each year.  That is the number of cases that are divided up among the district judges. Of that total number of cases that are filed, approximately 600 each year are cases that are filed by litigants without counsel.

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I then informed plaintiff that she would be well-advised to obtain a lawyer to assist her in this matter, because my magistrate judge colleagues and I cannot recall a single case in which a pro se litigant has proceeded all the way through a case, obtained a jury trial and received a favorable verdict.  Our memories may be inaccurate, but, if so, they are inaccurate only by a very, very few individuals, and, if such exceptions exist, we have not heard of them.

As Magistrate Schlatter acknowledged, all such cases are swatted aside and deferred  by an article III judge to a magistrate, creating a double standard of justice. See Bloom & Hershkoff, Federal Courts, Magistrate Judges and the Pro Se Plaintiff, 16 Notre Dame J.L. Ethics & Pub. Pol’y 475, 477, 503 (2002) (describing general reference to magistrates as, “a way to funnel unimportant matters that society regards as annoying away from Article III judges to magistrate judges without life tenure, and so raise concerns about second class justice for unrepresented litigants. . . Some commentators warn that the use of magistrate judges for pro se cases will lead to the ‘ghettoization’ of indigent persons’ claims: the possibility of creating a two-track system of justice– district judges for wealthy litigants and magistrates for [less wealthy] litigants”). See also Manual for Complex Litigation, Third § 20.14 (Federal Judicial Center, 1995) (Article III Judges often defer pretrial supervision to magistrates to enable those judges “to devote time to more urgent matters”).

A district judge almost never overturns any magistrate judge’s recommendations (just ask any “decent” appellate attorney in Colorado (e.g.,Walter Sargent, Blain Myhre, Dean Neuworth, Paul Grant, etc.)).  Article III judges merely rubber stamp whatever recommendations the magistrate has cobbled together, especially on those pro se cases that were perceived as not worth the Article III judge’s time.

Article III judges don’t perform the de novo review of the portion of the recommendations that had been objected to, as Schlatter most disingenuously misrepresented. For example, in the Harrington v. Wilson case, Judge Nottingham simply struck the objections, because he didn’t want to perform de novo review.  In fact, he was in such a rush to not have to deal with the merits of the case that, prior to that, he had already dismissed the case before the time for filing the objections had run.  This error was, of course, not addressed by the Tenth Circuit in its decision regarding that case.  Moreover, the Tenth Circuit has provided an “out” for judges to rubber stamp magistrate recommendations by permitting them to simply state, in a one-sentence order, that they had, in fact, performed the de novo review.⁸   It’s also worth mentioning here that Magistrate Wantanabe has been a speaker for one of the Harrington defendant’s lobbying group. (click here).

“[J]udges desperately want to avoid trials. This is a poorly kept secret among judges and their law clerks, and sometimes it even spills out into public statements like this one, uttered by a judge as an explanation for why he opposed reforms that would have combated collusive class settlements: ‘[F]rom the court’s perspective, it would be terrible if a case went to trial.’ ” ⁹

Adding insult to injury, the Tenth Circuit has, for years, been selling a false bill of goods to the public and legal community by misrepresenting that pro se litigants are actually treated more leniently than attorneys. For example, in Russell v. Sherman & Howard, et al., (10^th Cir. 2007) (another Magistrate Watanabe-intercepted case) the Tenth Circuit claimed:

Although we construe pro se filings liberally, Mr. Russell’s pro se status does not excuse him from “comply[ing] with the fundamental requirements of the Federal Rules of Civil and Appellate Procedure.” Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994). Among these requirements is a directive for the appellant to set forth his or her arguments in the opening brief, with supporting authority and citations to the record. Fed. R. App. P. 28(a)(9)(A). “Under Rule 28, which applies equally to pro se litigants, a brief must contain more than a generalized assertion of error, with citations to supporting authority. When a pro se litigant fails to comply with that rule, we cannot fill the void by crafting arguments and performing the necessary legal research.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005) (alteration, citation, and quotation omitted); see also Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (stating that this “court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues”). In short, “[a]rguments inadequately briefed in the opening brief are waived.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998). Mr. Russell’s failure to raise any arguments in his opening brief regarding the underlying district court decision necessarily results in a waiver on appeal.

Frankly, this is especially offensive because, when an appellant does make cogent, specific arguments in his Opening Brief, as in Harrington, supra, the Tenth Circuit waives them by choosing not to acknowledge or address the arguments in any manner. Ibid.

In conclusion, a reasonable, objective reading of Magistrate Schlatter’s admission combined with our independent real-world analysis reveals that, in fact, pro se litigants are systemically denied their day in court and that magistrate judges are used as goalies, rather than referees in the litigation.

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¹  Rob’t L. Tsai , Conceptualizing Constitutional Litigation as Anti-Government Expression: A Speech-Centered Theory of Court Access, American University Law Review, Vol. 51, Pg. 835, June 2002

²  See, e.g., Amy Robertson, The Pro Se Project: A Dissenting View (1999) (“defendants who decide to fight you will fight hard and they generally have lots of money to spend to defeat you. Without a lawyer you face the possibility of incurring enormous expense”)

³  Quote attributed to Professor Michael Mullane during his June 5, 2006 interview with NPR.

⁴  Andrews v. Bechtel Power Corp., 780 F.2d 124 (1^st Cir. 1985); O’Reilly v. New York Times Co., 692 F.2d 863 (2^nd Cir. 1982).

⁵  See  Faretta v. California, 422 U.S. 806 (1975), Arizona v Fulminante, 499 US 279 (1990); McKaskle v Wiggins, 465 US 168 (1984); and Sullivan v Louisiana, 508 US 275 (1993).

⁶  See Robertson, supra (“I must start with background and a disclaimer: I’m a [Denver] lawyer who practices disability rights law, so I have a natural bias in favor of hiring an attorney”).

⁷  I mention that this pro se plaintiff was a doctor, to demonstrate that not all such plaintiffs are like Kay Sieverding.  For examples of how pro se parties are treated in Colorado state courts, see Yale grad / Denver doctor Bryan Spofford’s story (click here) and his affidavit (click here).

⁸  Northington v. Marin, 102 F.3d 1564, 1570 (10^th Cir. 1996).