The Battle Lines are Drawn: J.A.I.L. versus The Foreign Power
A Power Foreign to Our Constitution
Summary Judgment is Unconstitutional
By Barbie, ACIC, National J.A.I.L.
This is a sequel to our J.A.I.L. News Journal 5/19/07: Jury Trials Becoming Extinct-
Yet the American jury system is dying. It is dying faster in the federal courts than in the state courts. It is dying faster on the civil side than that on the criminal side, but it is dying. It will never go entirely, but it is already marginalized.
Only because juries may decide most cases may we tolerate the reality that judges decide some. However highly we view the integrity and quality of our judges, the jury—the judges' colleague in the administration of justice—is the true source of the courts' glory and influence.
For some time now, circumstantial and anecdotal evidence has been mounting that jury trials are, with surprising rapidity, becoming a thing of the past. Institutionally, federal courts today seem unconcerned with jury trials. ... Echoing this reality, Judge Patricia Wald started her tribute to Professor Charles Alan Wright with this striking sentence: "[f]ederal jurisprudence is largely the product of summary judgment . . . ." Judge Wald is right—and note the compelling inference—that today we are more concerned intellectually with the procedural mechanism that blocks jury trials than we are with the trials themselves.
It is incumbent upon me to first state the true intent of the word "blocking" when I wrote the Amendment (see my experience below), which had no thought whatsoever of "summary judgments." Summary judgments may well be covered under paragraph 2, to wit, "No immunity shall extend to any judge of this State for ... intentional violation of due process of law...." for it has been my experience that summary judgment has been used as a tool to refuse to address the merits of my case(s) in violation of due process of law-- just arbitrarily throw the case out of court --a clear abuse of power which Amendment E is designed to correct.
Summary judgment is a valid legal procedure, providing that the procedural rules are followed. Simply arbitrarily calling a document "frivolous" without addressing its contents (facts and evidence according to law) is not such a procedure. Yet, that is what happens in the majority of pro se plaintiff cases-- it's the "norm" --SOP (standard operating procedure). It is presumed by the legal fraternity that no pro se plaintiff knows what he is doing, and therefore it isn't necessary to take the time to read his legal document(s). As one judge said to me in open court "Mr. Branson, I haven't wasted my time to read one piece of paper you have ever filed in this court." (This was after I had made several appearances in the case). One thing Amendment E will do, among other things, is provide a plaintiff a means of having determined from the court record whether a document was actually found to be "frivolous" in fact, based on evidence, and not just arbitrarily thrown out of court without findings.
In an article titled ''Why Summary Judgment Is Unconstitutional,'' published last month in the Virginia Law Review, Suja A. Thomas, a law professor at the University of Cincinnati, makes the perfectly plausible argument that the procedure violates the Seventh Amendment, which reserves the job of determining the facts in civil cases to juries.
When judges decide summary judgment motions, Professor Thomas wrote, they intrude on that job. The theory of summary judgment is that judges may rule for one side or the other only after finding that no ''genuine'' issues of ''material'' fact are in dispute. They must determine, as the Supreme Court has put it, whether ''a reasonable jury could return a verdict'' for the party defending against a motion for summary judgment.
Under summary judgment, a court decides whether a "genuine issue as to any material fact" exists or, in other words, whether "a reasonable jury could return a verdict for the nonmoving party." Under this standard, in contrast to under the common law, the court decides whether factual inferences from the evidence are reasonable, applies the law to any "reasonable" factual inferences, and as a result makes the determination as to whether a claim could exist. In other words, the court decides whether the case should be dismissed before a jury hears the case.
"Under summary judgment, a court decides whether a 'genuine issue as to any material fact' exists." To make that determination, the court must consider the material facts, along with any evidence presented supporting those facts. It has been Mr. Branson's experience that his material facts and supporting evidence have NOT been considered by the courts in several cases, and at all levels. If they had been considered and taken as true, based on the evidence provided, his cases would have put the system to shame as shown by his documented evidence.
The foreign power can't tolerate being put to shame, especially by an "unprofessional" pro-se plaintiff. A pro-se plaintiff who has the "temerity" to legally challenge the system must be "put in his place" and arbitrarily thrown out of court by summary judgment on the quick and easy password of "frivolous" -- case ended! Now, isn't that professional? The legal fraternity simply attaches the word "frivolous" to Mr. Branson's lawsuits, (even though they realize that they are well based on merit but don't want to deal with the issues and the shame they would bring to the system), merely because they CAN, with impunity!
Imagine a boxing match in which the referee, prior to the bell sounding for the first round, walks over to one of the contestants and raises his hand in the air and declares him the winner of the fight, based on the referee's arbitrary assumption, without any knowledge or evidence, that the opponent didn't know how to fight.
Now even if the court did consider the factual issues, by doing so, the judges intrude on the province of the jury under the Seventh Amendment, as Professor Thomas states. So the legal fraternity should rethink their strategy of "summary judgment - a procedural exercise that is used every day to rid our court system of frivolous lawsuits." Thus, their argument would be: Why do we need juries when we can just let the judges swiftly and expeditiously dispose of cases without considering its facts and evidence. Can one describe the taste of something he has never tasted?
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