Endnotes
3
See e.g., Adam Liptak,
A Judge at the Plaintiff's Table Tips the Scales,
New York Times editorial, June 25, 2007 (quoting
attorney Joseph A. Power, Jr. "This is the type of case
that a mentally challenged pro se plaintiff
would file"); and see
People v. Cohn,
___p.3d___ (Colo. App. March 8, 2007) in which an unruly
defendant was removed from the courtroom and examined to
determine his competency to stand trial. The examiner determined
defendant was competent to proceed, although he
diagnosed defendant with a “persecutory delusional
disorder,” a personality disorder with paranoid and
schizoid features, and several psychosocial stressors,
including chronic mental illness. See also Weihofen, Testimonial Competence and Credibility, 34 Geo.Wash.L.Rev. 53, 82 (1965):
[T]he
delusions of the litigious paranoiac make him believe he
has grievances, which he feels can be corrected only
through the courts. His career as a litigant is
frequently touched off by a lawsuit or legal controversy
whose outcome left him dissatisfied. Often he will
insist on conducting his own case, quoting voluminously
from the cases and statutes. Because he is likely to be
of better-than-average intelligence, he may mislead a
jury that is uninformed about his paranoiac career and
actually convince them that his cause is just. Trivial
incidents and casual remarks may be interpreted in a
markedly biased way, as eloquent proof of conspiracy or
injustice. In his telling them, these trivial incidents
may be retrospective falsification to be given a grossly
distorted and sinister significance. Even incidents of a
decade or more ago may now suddenly be remembered as
supporting his suspicions, and narrated in minute
detail. On the other hand, so far as the power of
observation is concerned, the paranoid witness may be
quite as competent as anyone, and perhaps more than
most; his suspiciousness may make him more alert and
keen-eyed in watching what goes on. Delusions of
persecution may evoke intense hatred. This may lead to
counter-accusations resting on false memory, which may
be very real to the accuser and be narrated by him with
strong and convincing feeling. And indeed they may have
a kernel of truth; because of his personality and his
behavior, many people probably do dislike him. As Freud
said, a paranoid does not project into a vacuum. Such a
person not infrequently feels the need for vengeance.
See also September 22, 2006 transcript of hearing, where
public defender in contempt hearing against pro
se litigant (who has been ordered to dismiss all
of her allegedly abusive lawsuits) suggests that his client is mentally ill:
Edward Harris:
There is one other thing,
and I would simply advise everyone as a heads up on
it, which I'm not sure will actually occur. But I
have some concerns about her mental health and
whether or not she is willfully violating court
orders or whether this is some compulsion of hers,
driven by whatever sort of triggers such things. So
I may at some point either have her shrunk or seek
some court intervention for that . . . But it may also be that she chooses not to proceed in that direction, despite my best advice. That wouldn't be a first.
Judge Nottingham:
My guess is that if you talked to counsel on the other side, they would tell you that they've long since concluded that there are [mental health] issues here; but that's a conversation we don't need to have".
E.g.,
from: Harrington v. Wilson (click
here);
Helstrom v. State Farm (click
here);
Mann v. Colorado (click
here);
Shell v. Devries (click
here);
Smith v. Bender (click
here);
and Yates v. Arkin (click
here).
10
Ashby v. White, 92 Eng.Rep. 126, 136 (1703)
11
Chambers v. Baltimore & O. R. Co., 207 U.S. 142, 148 (1907);
see also Nordgren v. Milliken, 762 F.2d 851, 853 (10th Cir. 1985).
12
Accordingly, the five standards grouped under Access to Justice require a trial court to eliminate unnecessary barriers to its services, which barriers may be geographic, economic and procedural and, which can be caused by deficiencies in both language and knowledge of individuals participating in court proceedings. Additionally, psychological barriers can be created by mysterious, remote, unduly complicated and intimidating court procedures. Id.
13
See Swekel v. City of River Rouge, 119 F.3d 1259, 1262 (6th Cir. 1997) (citing
Bell v. City of Milwaukee, 746 F.2d 1205, 1261 (7th Cir. 1984) (“To deny such access defendants need not literally bar the courthouse door or attack plaintiffs' witnesses”)).
One
recent case, where this issue was central, is
Harrington v. Wilson. (The Tenth Circuit view of this
issue is
here).
14
See, e.g., In Re Marriage of Harrington, Colo.App.
No. 07CA0739, describing situation where judge refused to rule on recusal motion for two-and-one-half years in order to indefinitely suspend the proceedings under the applicable Rule 97.
16
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").
17
See, e.g., Joseph M.
McLaughlin, An Extension of the Right of Access: The
Pro Se Litigant’s Right to Notification of the
Requirements of the Summary Judgment Rule, 55
Fordham L. Rev.
1109, 1132-33 (1987) (noting that litigants who can
afford counsel rarely proceed without it and that, “The inability of a large portion of American society to afford attorney assistance has been deemed one of the glaring failures of our system, straining the principle of equal justice under the law”).
21 Andrews v. Bechtel Power
Corp., 780 F.2d 124 (1st Cir. 1985); O'Reilly v.
New York Times Co., 692 F.2d 863 (2nd
Cir. 1982).
25
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 (here.)
26
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 avoid the merits of that case that, prior
to that attempted to dismiss the case before the time for filing the objections had run. This violation of the Rule was, of course, not addressed by the Tenth Circuit in its decision regarding that case.
It's also worth mentioning here that the magistrate (Mike Watanabe)
is a speaker for one of the Harrington defendant's
lobbying group. (Click
here).
27 Northington
v. Marin, 102 F.3d 1564, 1570 (10th Cir. 1996).
28
John Bronsteen,
Against Summary
Judgment,
Geo. Washington L. Rev. (2007) (quoting Class Action
Lawyers Doubt Provisions in Legislation Aimed at Curbing
Abuses, 72 U.S.L.W. (BNA) 2593 (Apr. 6, 2004) (quoting
Judge Frederick Motz of the District of Maryland).
29
Steven L. Bernard, The Role of the Colorado Court of Appeals, 36 Colo.Law. 7, p. 105 (July 2007) (citing Hon. Bruce M. Selya, Publish and Perish: The Fate of the Federal Appeals Judge in the Information Age, 55 Ohio St. L.J. 405 (1994))
32 R. A. Posner, ‘What do Judges Maximize?’ in R. A. Posner, Overcoming Law, Cambridge:
Harvard. University Press, 1995, Chap 3. (Only a "handful of judges . . . today still write their own
opinions . . . most judges . . .are happy to cede opinion-writing to eager law clerks, believing that
the core judicial function is deciding, that is, voting, rather than articulating the grounds of decision").
33 Robert A. Mead, "Unpublished" Opinions as the Bulk of the
Iceberg: Publication Patterns in the Eighth and Tenth
Circuits of the United States Courts of Appeals,
93 Law Libr.J.
589, 596-97 (2001) (citing William Glaberson,
Caseload Forcing Two-Level
System for U.S. Appeals, N.Y. Times, Mar. 14, 1999, at A1. (quoting William Reynolds,
law prof., Univ. of Maryland)).
34 Glaberson, supra, note 33.
35
Benard, supra, note 29.
36
See, e.g., In re Legislative Reapportionment, 150 Colo.
380, 374 P.2d 66 (1962) (If one misconceives his remedy,
the court will not be deprived of jurisdiction. If the
allegations of the petition are such as to invoke both
the jurisdiction of the court and to entitle the
petitioner, on the face thereof, to some relief, the
mere fact that one misconceives his remedy will not
deprive the court of jurisdiction to act); Regennitter
v. Fowler, 132 Colo. 489, 290 P.2d 223 (1955) (The
question, therefore, is not whether a party has asked
for the proper remedy, but whether under his pleadings
he is entitled to any remedy); Colo.R.Civ.P. Rule 11(f)
(“All pleadings shall be so construed as to do
substantial justice.”); Gillespie v. District Court, 119
Colo. 242, 202 P.2d 151 (1949) (Just because a formal
court order is not sought and entered, petitioner may
not be despoiled of any rights in a matter; otherwise,
such a holding would be highly technical and essentially
unjust).
37 Moore v. Price, 914 S.W.2d 318, 323 (Ark. 1996) (Mayfield, J., dissenting).
last updated:
04/13/2008
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