DISTRICT OF COLUMBIA

COURT OF APPEALS

REC’D FEB 24, 1987

Appeal No. 8 6-678

IN THE
DISTRICT OF COLUMBIA COURT OF APPEALS

WILLIAM THOMAS, ET AL, Appellants,

v.

WASHINGTON TIMES , ET AL, Appellees.

Appeal From the Superior Court
of the District of Columbia
Civil Division

MOTION TO STAY
THE MANDATE AND REARGUE THE CASE

W. Edward Morgan

Bar No. 280800

Supervising Attorney

Timothy Gresback

L.S. No. 4712

Student Counsel for

Appellants

Antioch School of Law

2633 16th Street, NW

Washington, DC 20009

(202) 265-9500

For the following reasons, counsel for appellants requests that the Court enter an order to stay the mandate, allow the parties to file supplemental briefs and set this appeal for further oral argument. 1/

The constitutional right of access to the courts was effectively denied by:

1. The trial court's failure to inform a pro se litigant of his right to amend his complaint by correctly identifying the corporate entity, where the defendant and its agent were described and clearly identified in the pro se litigant's one page complaint.

2. The trial court's ambiguous ruling -- it is impossible to discern if the pro se complaint was dismissed for failure to identify the corporate entity, improper service, failure to state a cause of action, or some other reason.

 

3. The arbitrary and capricious handling of this case as described above in 1. and 2.; this resulted in part from this Court's failure to establish rules or guidelines, with specific reference to the Superior Court Rules of Civil Procedure, to instruct trial judges in their responsibility to protect the rights of indigent pro se civil litigants.

________________________________

1/ On February 18, 1987, this case was affirmed in an unpublished Memorandum Opinion and Judgment. Reargument in this Court by no means unprecedented. See e.g., O'Connell v. Maryland Steel Erectors, Inc., 495 A.2d 1134 (D.C. 1985); Nelson v. United States, 479 A.2d 340 (D.C. 1984); District of Columbia v. McConnell, 464 A.2d 127 (D.C. 1983). Reargument is appropriate, as we demonstrate below because due to his indigent pro se status, Mr. Thomas was not capable of developing the important constitutional issues set forth here.

I. STATEMENT OF THE CASE

A. Factual Background

William Thomas, since 1981, has been exercising First Amendment rights near the White House by participating in an around-the-clock vigil. The purpose of the vigil is to alert the President and passers-by to the dangers of a nuclear holocaust. Proceeding in forma pauperis, appellant Thomas 2/ filed a one page pro se complaint in Superior Court on February 6, 1986, alleging that in the early morning of July 4, 1985, individuals from a group known as Young Americans for Freedom, together with an "agent" of the Washington Times, one Steve Masty, carried out a "raid" on plaintiffs and their property.3/ The complaint specifically alleged intentional infliction of emotional distress and civil conspiracy.

B. Procedural Background

Appellee filed a motion to dismiss and to quash service, contending that service was improper and that the pro se complaint failed to state a cause of action. Without the

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2/In this motion the plaintiffs below are generally referred to collectively as "appellant" or "Thomas."

3/The pro se complaint further alleged that the Washington Times sent Masty to participate in, and report on, the "raid" against plaintiffs in order to make good "copy" for an article subsequently printed in the Washington Times.

assistance of counsel,4/ Thomas filed a motion in opposition, arguing that service was proper, the complaint stated a cause of action, and that he was ready and willing to amend his complaint if required. No affidavits or other evidence were adduced. No hearing was held. Judge Hannon dismissed the case on April 3, 1985.5/ Thus, without addressing the parties in open court, the trial judge dismissed a complaint drafted by a pro se indigent litigant proceeding in forma pauperis.

II. ARGUMENT

A. THE TRIAL COURT DISMISSED THE PRO SE COMPLAINT IN VIOLATION OF EQUAL PROTECTION.

Equal protection requires that a governmental classification which impinges on a fundamental right will be subjected to strict scrutiny and invalidated unless it is "necessary to promote a compelling state interest." Shapiro v. Thompson, 394 U.S. 618, 634 (1969) (emphasis in original).

According to D.C. Code § 11-946 (1981), the Superior Court has the power to promulgate its own rules of court.

4/After unsuccessful attempts to obtain free legal assistance both in the trial court and this Court, Thomas was forced to proceed without the aid of counsel. Thomas sought help from the undersigned only two (2) days prior to oral argument.

5/Judge Hannon's order simply states:

Upon consideration of the Defendant's Motion to Dismiss, and the Memorandum in support thereof and Plaintiff's opposition thereto, it is, this 3rd day of April, 1986, ORDERED, that the complaint against the Washington Times, Inc. be and hereby is, dismissed in its entirety.

That section further provides that if such rules modify the Federal Rules of Civil Procedure, they will not take effect until approved by this Court.

The Superior Court Rules of Civil Procedure, implicitly, permit indigents to proceed pro se.6/ Consequently, there are two classes of litigants: those who proceed with the aid of counsel and the indigent pro se litigant who cannot do so.

Unless other safeguards are provided, this classification impinges on the ability of the pro se litigant to vindicate his or her rights. The Superior Court Rules of Civil Procedure were promulgated and adopted by and for those trained in the law; the rules were not written for use by the layperson, but the lawyer. For example, it cannot be expected that the indigent should understand the technicalities of service of process pursuant to Super. Ct. R. 4. To a pro se indigent like Thomas, the difference between serving the newspaper itself rather than its corporate owner is not apparent. The appreciation of such a legal technicality should not be demanded from indigents.

One alternative to the present system -- which discriminates against indigent litigants -- would be to appoint counsel in civil cases. Such is the practice in

6/The rules are silent as to whether an indigent must proceed with a lawyer. If such were the case, the rules would clearly violate the constitution. Requiring all indigent plaintiffs to be represented, without making counsel available as of right, would violate the fundamental right of access to the court. See Boddie v. Connecticut, 401 U.S. 371 (1971).

England, dating back to the ninth century.7/ Another solution would be to promulgate an alternative set of rules of civil procedure written in laypersons language for pro se indigents. Perhaps the most pragmatic answer in cases such as the present is to require the trial judge to: (1) inform a pro se litigant of the right to amend the complaint or how to perfect service; (2) inform a pro se indigent at a hearing why dismissal would otherwise follow; and (3) take any appropriate additional measures to protect a pro se litigant's rights. Without such protections, discrimination will continue. Equal protection does not permit access to the courts to be had only by those fortunate enough to afford a lawyer.

B. THE TRIAL COURT DISMISSED THE PRO SE COMPLAINT IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.

The due process clause provides that "no person shall be deprived of life, liberty, or property, without due process of law." U.S. Const. Amend. V. If government action threatens a protected interest the issue then becomes: what process is due? A due process analysis requires the balancing of three factors articulated in

7/ See Judge Swygert's article, Should Indigent Civil Litigants in the Federal Courts Have a Right to Counsel?, 39 Washington & Lee L. Rev. 1267, 1270 (1982).

Matthews v. Eldridge, 424 U.S. 319 (1976).8/ An application of Matthews to the instant case illustrates the constitutional infirmity of the trial court's dismissal of the complaint.

First, the "private interest" affected is, among others, the vindication of Thomas' First Amendment rights. Second, risk of an erroneous deprivation of such interest is great where, in cases such as the one at bar, the indigent pro se litigant is not versed in the law. Moreover, the probable value of additional safeguards, such as requiring the trial court to inform the indigent as to the reasons for dismissal, is great. Finally, the administrative burden to the government necessitated by informing an indigent pro se civil litigant that a complaint can be amended is not overwhelming. This Court has already enunciated workable procedural standards governing guilty pleas,9/ the internal

8/ The Matthews test involves:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. [424 U.S. at 335].

9/ E.g., Gooding v. United States, 513 A.2d 1320 (D.C. 1986) (procedures to be followed by trial court on entry and withdrawal of guilty plea).

workings of the Court,10/ and disciplinary matters.11/ Additional standards to protect pro se indigents would not be unduly cumbersome, especially in light of the rights such safeguards would protect.

In Boddie v. Connecticut, 401 U.S. 371 (1971), welfare recipients challenged a requirement that they pay a filing fee in order to institute divorce actions. The Court invalidated the fee requirement on due process grounds, noting that the judicial process of divorce is "not only the paramount dispute-settlement technique, but, in fact, the only available one." 401 U.S. at 375. (emphasis added).

Likewise, Thomas' access to the judicial process is the only available means for him to vindicate his First Amendment rights. Thomas alleged, inter alia, that the Washington Times and members of the Young Americans for Freedom conspired to, and did, carry out a "raid" on Thomas to force him to abandon his lawfully conducted vigil in Lafayette Park. In conducting such a vigil, Thomas was unquestionably exercising First Amendment rights to express his views. Assuming the truth of these allegations, the judicial process is the only way in which he can vindicate his First Amendment rights. Our system of civil law is premised on the notion that people resort to the courts

10/ M.A.P. V. Ryan, 385 A.2d 310 (D.C. 1971) (en banc)(policy decision to ensure the orderly administration of justice, holding that one division of the court cannot overrule another).

11/ In re Kersey, No. 84-739 (D.C. Jan. 28, 1987) (setting standards governing discipline of alcoholic attorneys).

rather than fisticuffs when they have been wronged. Thus, similar to petitioners in Boddie who were forced into the judicial arena in order to get a divorce, Thomas was denied due process when the trial court dismissed his lone chance at vindicating his First Amendment rights without providing him with a meaningful opportunity to prove his allegations.

C. THE TRIAL COURT DISMISSED THE PRO SE COMPLAINT IN VIOLATION OF THE FIRST AMENDMENT RIGHT TO PETITION.

The First Amendment prohibits laws which abridge the "... right of the people ... to petition the Government for a redress of grievances." U.S. Const. Amend. I. Thomas stated in his complaint, at paragraph 7, that the action was instituted to "redress what they perceived to be a continuing menace to their lives and well-being in pursuit of their lawfully permitted [First Amendment] activities in Lafayette Park."

The judicial branch of our tripartite system of government, according to the Supreme Court, is part of the "Government" which the First Amendment guarantees citizens they can petition for grievances. As the Court stated in NAACP v. Button: "under the conditions of modern government, litigation may well be the sole practical avenue open to a minority to petition for a redress of grievances."12/

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12/ NAACP v. Button, 371 U.S. 415, 429-30 (1963) (upholding the right of the NAACP to refer individuals to an attorney). (footnote continued on next page)

Thomas' right to petition was abridged in two ways. First, the Superior Court Civil Rules were adopted when it was known or should have been known that they were written for use by lawyers, not laypersons. No guidelines have been established by the Superior Court or this Court to aid the pro se litigant. Accordingly, as administered, the rules, which hold an indigent litigant to the same standard as a trained lawyer, prevent a pro se litigant from obtaining meaningful access to the judicial process, thereby violating the right to petition.

Second, the right to petition was abridged by the trial court's dismissal of the pro se complaint without taking any measures to protect Thomas' rights. Prior to dismissal the trial court failed to inform Thomas of reasons for its impending action. Also, the complaint was dismissed in an ambiguous order which precludes any determination as to whether the complaint was dismissed for improper service, failure to state a claim, or some other reason. As a result, Thomas, a non-lawyer proceeding in forma pauperis, was denied his right to petition the judiciary for redress of his

grievances against the Washington Times.

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(footnote continued from previous page)

See also Note, A First Amendment Right of Access to the Courts for

Indigents, 82 Yale L.J. 1055, where the author argues, relying on Button,

that the First Amendment guarantees indigents a constitutional right of

access to the courts.

D. EVEN IF THE TRIAL COURT'S DISMISSAL OF THE COMPLAINT WAS NOT CONSTITUTIONALLY INFIRM, THE CASELAW DEMANDS REVERSAL.

Assuming this Court finds no constitutional infirmity in the dismissal of the pro se complaint, reversal is nevertheless warranted. The law in this jurisdiction requires trial judges to protect pro se indigents' rights by relaxing the civil rules,13/ construing pro se pleadings liberally,14/ and advising pro se indigents of their rights.15/

Accordingly, the dismissal of the pro se complaint was improper for any and all of the following reasons:

1. Assuming the complaint was dismissed for failure to state a cause of action, the trial court did not construe the pro se pleading liberally, nor did the trial court invite Thomas to exercise his pertinent rights by amending his complaint to state a cause of action.

2. Assuming the complaint was dismissed for improper service, the trial court failed to inform Thomas of the technical requirements of Super. Ct. Civ. R. 4 so that he could properly serve appellee.

13/ Cosgrove v. United States, 411 A.2d 57, 58 (D.C. 1980) (because petition presented pro se, more relaxed view of pleadings required).

14/ Bettis v. United States, 325 A.2d 190, 193, n.1 (D.C. 1974) (standards applicable to pro se motions are considerably more lax than standards applied where counsel is involved).

15/ Hudson v. Hardy, 412 F.2d 1091, 1094 (D.C. Cir. 1968) (trial court, prior to granting summary judgment against pro se litigant, should have, at a "bare minimum," advised appellant of requirements of summary judgment rule).

3. No alternative measures were taken by the trial court to ensure that the pro se indigent's rights were protected.

E. THE FOREGOING ARGUMENTS WERE MADE IN THE COURT BELOW; EVEN IF THEY WERE NOT, AFFIRMANCE OF THE DISMISSAL WOULD RESULT IN MANIFEST INJUSTICE.

The constitutional issues developed above were raised in the trial court and therefore this Court should now address them.

Appellant argued in his "Opposition to Defendant's Motion to Dismiss" that his indigency should not preclude him from "meaningful access to the courts." In support of this proposition appellant cited Haines v. Kerner, 404 U.S. 519 (1972), where it was noted that the Supreme Court holds pro se complaints "to less stringent standards than formal pleadings drafted by lawyers." 404 Id. at 520. Thus, although Thomas did not make the argument in precise constitutional terms, he did alert the trial court to his indigency and that such status should not deny him meaningful access to the judicial process.

Even assuming the Court finds that the constitutional arguments were not raised in the court below, they should nevertheless be addressed here because affirmance of the dismissal would result in manifest injustice. That is, affirmance in this case would most likely prevent indigent litigants from ever raising access to the court arguments before this Court. Without being versed in both procedural and substantive law, an indigent layperson could not possibly understand the importance of establishing a record for appeal. Moreover, few, if any, indigent pro se litigants will raise these issues on appeal. Consequently, the issues now raised incessantly evade review by this Court.

Therefore, assuming the Court finds that the constitutional arguments were not raised below -- even though Thomas raised them as well as he knew how -affirmance of the dismissal of the complaint would result in manifest injustice, not only for Thomas, but also for similarly situated plaintiffs too poor to afford representation.16/

III. CONCLUSION

The trial court's dismissal of the pro se complaint violated the First and Fifth Amendments. Even if this Court

16/ It also could be argued that because Thomas is now represented by counsel, he can simply return to the trial court and amend his complaint. This reasoning, however, precludes indigent pro se litigants from ever raising the access to the court arguments made above. Simply put, an indigent is incapable of protecting his or her rights. While Thomas may be able to return to the trial court, similarly situated pro se indigents unable to receive free representation on appeal will continue to have their cases dismissed -- and their causes of action forever buried. Therefore, the question of access to the courts is not moot, but one in that narrow and important category which is "capable of repetition, yet evading review." Cf. Roe v. Wade, 410 U.S. 113, 125 (1973) (abortion issue not moot even though pregnancy complete before judicial process). Moreover, although committed to representing Thomas on this appeal, Antioch School of Law is not able to provide trial court representation to all indigent litigants in Thomas' position.

finds no constitutional error, reversal is nonetheless warranted. The trial courts need clear guidance to fully assist indigent pro se litigants to have meaningful access to the courts. As a matter of good housekeeping, this case presents the Court of Appeals with a rare and valuable opportunity to set concrete standards for the trial courts in an exceptionally important area which constantly evades review.

Given the fundamental importance of the issues raised in this motion to the administration of justice in the District of Columbia, student counsel respectfully requests that the Court enter an order to stay the mandate. It is further requested that Thomas be allowed to file supplemental briefs within twenty (20) days, the Washington Times be allowed to respond, and reargument be granted thereafter.

Respectfully submitted,

/s/Tim Gresback

W. Edward Morgan Timothy Gresback

Bar No. 280800 L.S. No. 4712

Supervising Attorney Student Counsel for

Appellants

Antioch School of Law

2633 16th Street, NW

Washington, DC 20009

(202) 265-9500

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 86-678

WILLIAM THOMAS, et. al.,
Appellants,

v.

WASHINGTON TIMES, INC.,
Appellee.

POINTS AND AUTHORITIES IN SUPPORT OF APPELLANTS' MOTION TO STAY THE MANDATE AND REARGUE THE CASE

The record above, the cases cited in the accompanying Motion, D.C. App. R. 27, and the inherent power of the Court.

Respectfully submitted,

/s/Tim Gresback
W. Edward Morgan Timothy Gresback
Bar No. 280800 L.S. No. 4712
Supervising Attorney Student Counsel for
Appellants
Antioch School of Law
2633 16th Street, NW
Washington, DC 20009
APPEALS 202 APPEALS 265-9500

DISTRICT OF COLUMBIA COURT OF APPEALS
No. 86-678

WILLIAM THOMAS, et al. Appellants,

v. CA 1125-86

WASHINGTON TIMES, INC., Appellee.

BEFORE: Newman and Steadman, Associate Judges, and Pair, Senior Judge.

O R D E R

On consideration of the motion of appellants to stay the mandate, file a supplemental brief and to request reargument in this case, the opposition of appellee and the response of appellants thereto, it is

ORDERED that the motion and request are granted and appellants' supplemental brief shall be filed within 20 days from the date of this order. Appellee may file a responsive brief within 15 days from the date appellants' supplemental brief is filed with this court. It is

FURTHER ORDERED that the Clerk is directed to schedule this case for reargument as soon thereafter as the business of the court permits.

PER CURIAM

Copies to: W. Edward Morgan, Esquire
Timothy Gresback, Student Counsel
Antioch School of Law
2633 16th Street, NW
Washington, DC 20009
Allen V, Farber, Esquire
Lucinda J. Bach, Esquire
Schwalb, Donnenfeld, Bray & Silber, P.C.
Suite 300 East
1025 Thomas Jefferson Street, NW
Washington, DC 20007

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Appellants' Motion to Stay the Mandate and Reargue the Case, and all attachments thereto, was mailed, postage prepaid, this ___day of February, 1987, to Allen V. Farber, Esquire, and Lucinda J. Bach, Esquire; Schwalb, Donnenfeld, Bray & Silbert, P.C.; Suite 300 East, 1025 Thomas Jefferson Street, NW Washington, DC 20007.

/s/Timothy Gresback
Timothy Gresback

Listing of Cases

Proposition One

Peace Park | People