Judge Richard Posner (screenshot via Public Affairs TV / YouTube)
When Judge Richard Posner left the Seventh Circuit to advocate for better treatment of pro se litigants, we didn’t expect to see the legendary jurist penning his own appellate briefs. At the time, Judge Posner planned to write and speak on the subject from afar while setting up an organization to lend an informal hand to pro se litigants that he feels are increasingly denied justice by federal courts so hung up on arcane rules that pro se litigants never receive a fair hearing.
But then the Fourth Circuit went and stupidly proved Posner’s point by deciding on a technicality that he couldn’t serve as a mere advisor to pro se litigant William Bond. That just made Posner hulk out and dust off his advocacy skills — with assistance from Matthew J. Dowd — to deliver an incisive, 54-page opening brief taking Bond’s trial judge, and by proxy the federal judiciary writ large, to task for its cavalier and dismissive treatment of the pro se world.
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In his initial complaint, William Bond raised a number of constitutional claims, alleging a campaign of law enforcement surveillance and intimidation in response to his long-term protests against government corruption. As is often the case when a civilian tries to file a lawsuit, Bond’s complaint failed to state a claim and the trial judge dismissed it, laying out the reasons for his decision. Since then, Bond has tried twice to refile based on his efforts to cure the deficiencies spelled out in the order. His most recent complaints include multiple specific factual allegations to back up his claims. The court has kicked him to the curb without explanation both times. As Judge Posner points out, the Supreme Court has been pretty clear that “outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.”
But more broadly, this case strikes at the heart of Judge Posner’s concern with the federal judiciary today — that it’s more concerned with dispensing of pro se litigants than ensuring that they get heard:
More broadly, the present appeal illustrates the errors a trial court too frequently commits when adjudicating a pro se litigant’s claims. The Supreme Court and this Court have repeatedly cautioned that “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” [citations omitted] The trial court did not heed this requirement. It instead set the bar too high for a non-lawyer litigant. Rather than “liberally construing” Bond’s second amended complaint, the district court judge accused Bond of having an “intent on draining the Federal Judiciary of our limited resources.” [citation omitted] The district court judge also thought Bond’s “repeatedly unmeritorious supplications are squandering the Third Branch’s limited resources.”
Pro se litigants can be crazy, hostile, or sad souls easily duped by opportunistic hustlers. Posner himself famously shot down a pro se defendant in a foray sitting as a trial judge. But they can also be honestly aggrieved citizens without the resources to hire counsel in the country’s increasing costly pay-to-play interpretation of justice. The point is, whether a litigant is vexatious or legitimately wronged isn’t for the trial judge to decide at this stage.
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It is, of course, premature to know whether the allegations will be proven true. But, at this procedural juncture, the trial court must accept Bond’s allegations as true. When the second amended pro se complaint is viewed under the correct liberal standard, Bond has advanced plausible constitutional violations that warrant adjudication through discovery.
In Judge Posner’s evisceration of a defendant in a tax law case who asserted a “sovereign citizen” defense, it’s not that Posner didn’t allow the defendant to raise his argument. He heard his argument, ruled on it with ample explanation, and then grew increasingly frustrated when the guy wouldn’t let it go. What Posner’s concerned about are the judges taking the easy way out and making a blanket refusal to engage with pro se litigants rather than risk having to do the hard and sometimes confounding work of understanding and responding to a lay person’s grievance.
As James Sandman, president of the Legal Services Corporation has pointed out, even the name presents an obstacle to the average citizen seeking redress — what layperson uses “pro,” “se,” or “litigant” in their daily lives or would have any idea why that would be the area of the courthouse they need to visit. There’s no sound reason for judges to add to those hurdles by taking a lax approach to pro se cases.
(Check out the full brief on the next page.)
Earlier: Judge Posner Taking On Pro Se Case After Fourth Circuit Did Something Incredibly Stupid
Circuit Agrees With Judge Posner On Treating Pro Se Litigants Better… By Benchslapping Judge Posner
The Seventh Circuit Responds To Judge Richard Posner
Judge Posner Lights Into Pro Se ‘Sovereign Citizen’
God Sues Homosexuals In Nebraska. God Has Terrible Grammar.
The Stupid Pro Se Legal ‘Theory’ Making the Rounds
Pro Se Litigant Starts Yelling At A Judge And It’s All On Video
Joe 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.