Circuit Agrees With Judge Posner On Treating Pro Se Litigants Better... By Benchslapping Judge Posner

Famed judge earns benchslap just in time for retirement.

Judge Richard Posner (screenshot via Public Affairs TV / YouTube)

When Judge Richard Posner announced his sudden retirement over Labor Day weekend, the legal world flew into a wild speculative frenzy. Why would one of the titans of the American judiciary step down without warning like that, and more importantly, is he starting a crime-fighting duo with his cat?

So many questions.

In the aftermath of his announcement, he told David Lat of Above the Law that his real motivation to leave the bench was much more straightforward: he wanted to help pro se litigants and he feels that his colleagues on the Seventh Circuit bench aren’t treating pro se litigants with the fairness they deserve. And he’s already acting on this conviction, seeking to help pro se litigant William Bond in the latter’s Fourth Circuit case and forming a national pro bono group to assist pro se litigants. Pros for Pros?

But does anyone else remember Hakeem El-Bey? El-Bey was the pro se “sovereign citizen” whose trial Judge Posner adjudicated by designation a few years back, and it’s safe to say that Judge Posner did not appreciate El-Bey’s pro se stylings:

The defendant once again asks the Court to dismiss the case for want of jurisdiction, invokes the Uniform Commercial Code and the Foreign Sovereign Immunities Act, and claims that the proper court to hear this case is the Court of International Trade. This filing borders on incoherence, as where it states “This Case Reference to 28 USC-2461, since all Tax Revenue case are done ‘within the Admiralty.’ Court of International Trade is the proper Jurisdiction.

This “Admiralty” garbage really has to stop. Thankfully, Judge Posner was taking one for the team by listening to these incoherent ramblings and, in my estimation, doing pro se litigants a favor by setting forth in crystal clear detail why they should not be taken in by the people telling them they can trick the court with stunts like this maritime argument. There is an actual industry charging pro se litigants money for this advice.

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So while El-Bey and his sovereign citizen cohort should not be lumped together with the typical pro se litigants that Judge Posner is fighting to protect just because both happen to not have representation, it’s worth a coy chuckle to remember Judge Posner’s tough treatment of this guy in light of the passion he’s pursuing in his judicial retirement.

But his now-former colleagues on the Seventh Circuit have gone a little beyond recognizing some light irony and decided to show Judge Posner just how much they really care about pro se litigants by issuing a stern benchslap vacating and remanding the El-Bey case:

Here, the district court’s “deprecatory and often antagonistic attitude toward the defen[dant] is evident in the record from the very beginning. It appears both in the presence and absence of the jury.” Dellinger, 472 U.S. at 386.1 “Most significant, however, were remarks in the presence of the jury, deprecatory of [El-Bey] and [his] case.” Id. at 387. These statements implied that El-Bey “was inept, bumptious, or untrustworthy, or that his case lacked merit.” Id. Cumulatively, the comments “telegraphed to the jury the judge’s contempt for the defen[dant,]” id., and seriously prejudiced El-Bey.

If the Seventh Circuit felt rankled by Judge Posner’s admonishment that they don’t care about pro se litigants, well, they’ve found the perfect revenge. Still, even if Judge Posner was a little hard on the guy, this decision shouldn’t erase Posner’s work below for systematically ripping up the sovereign citizen myth. Unfortunately, this will probably only embolden those forces.

But for Judge Posner, who never served as a district judge before joining the Seventh Circuit, he gets to move on from this stage of his career with the wisdom every trial judge learns with time: always blame the appellate court!

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Posner asks court to let him help ‘determinedly involved’ pro se litigant with beef against 3 judges [ABA Journal]

Earlier: Judge Posner Lights Into Pro Se ‘Sovereign Citizen’
Richard Posner Is Retiring
The Backstory Behind Judge Richard Posner’s Retirement
Pixie For President: Why Judge Posner’s Cat Deserves Your Vote
The Stupid Pro Se Legal ‘Theory’ Making the Rounds
Pro Se Litigant Starts Yelling At A Judge And It’s All On Video


HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.