‘Don’t Ask Don’t Tell’: Motion to Intervene, Requesting the US Court of Appeals to Dismiss Appeals from an Uncertified Judgment, was Posted in the Docket
Los Angeles, January 8 – Human Rights Alert (NGO) founder, Dr Joseph Zernik’s [i] Motion to Intervene in the appeals in Log Cabin Republicans v USA et al has been posted in the dockets of the US Court of Appeals, 9th Circuit, [ii] and is now pending before the Court.
The Motion and concomitantly filed papers have not addressed the controversial ‘Don’t Ask, Don’t Tell’ policy itself, and have not sided with either of the parties in the case – the Log Cabin Republicans, or the US Department of Justice. Instead, the Motion has limited itself to arguments regarding the validity, or lack thereof, of the uncertified October 2010 Judgment, from which the appeals were taken. The motion has also addressed the validity, or lack thereof of the docket of the US District Court, Central District of California in the case, as a whole, and the implementation of the US District Court’s online public access and case management systems (PACER and CM/ECF).
Outline of Dr Zernik’s papers, filed under the Appeals in Log Cabin Republicans v USA et al
1) The Motion to Intervene – provides the legal foundation for Dr Zernik’s right to intervene. The main arguments are that neither Log Cabin Republicans, nor the USA raised the issues entered by Dr Zernik. In addition, Dr Zernik, and all who are similarly situated under the 9th Circuit, have vital interest in the rulings by the US Court of Appeals, 9th Circuit, regarding the matters. In particular, Dr Zernik’s interest originates in another uncertified judgment, issued by the US District Court in 2009. The 2009 Judgment purports to dismiss his Civil Rights complaint, which alleged racketeering by Bank of America, its senior executives, and others, in the State of California Courts.
2) The Request for Lenience for Pro Se – points out that the filer is not an attorney. As such, he is entitled to lenience pursuant to the law of the United States, and is not required to elaborate on relevant legal theories. Instead, the Motion to Intervene focuses on the facts in the underlying matters.
3) The Motion for Declaratory Mandate in re: Joseph Zernik v Jacqueline Connor et al (2:08-cv-01550) – The uncertified April 24, 2009 Judgment in Zernik v Connor et al was, is, and always will be void, not voidable – provides evidence that in the litigation of Zernik v Connor et al all judicial and clerical records are invalid. All such records, without exception, from the commencement of the litigation to its purported dismissal were issued with invalid certificates of authentication/attestation by the Clerk of the Court (NEFs – Notices of Electronic Filing). Absent valid such certifications, the records should be deemed null and void.
During the litigation itself Dr Zernik was denied access to the NEFs, and it took many months and repeated requests before he was permitted access to the records in his own litigation – to discover that it was invalid from start to end.
4) The Motion for an Order to Show Cause in re: Log Cabin Republicans v USA et al (2:04-cv-08425) and the uncertified October 12, 2010 Judgment on USA and Log Cabin Republicans – Why instant Appeals should not be dismissed for lack of jurisdiction and/or mootness – provides evidence that the Clerk of the US District Court has refused to certify the docket of the litigation in Log Cabin Republicans v USA et al (2:04-cv-08425), and also refused to permit access to the certification of the purported October 2010 Judgment, in apparent violation of First Amendment rights. The US Court of Appeals holds jurisdiction to conduct appeals only from valid and effectual, certified judgments, not from void ones. The parties, Log Cabin Republicans and the USA, should not have any interest in running an appeal from a null and void judgment either. Therefore, the motion called upon the US Court of Appeals to order the parties to explain why the appeals should not be dismissed.
Although no access has been permitted to the certification records, the Motion claims that sufficient evidence is found in the PACER docket to conclude that none of the judicial and clerical records posted in it are valid and effectual: US Judges George Schiavelli and Virginia Phillips appeared as Presiding Judges in the case, both with no Assignment Orders. Absent Assignment Order in a specific case, a US judge has no authority to adjudicate in the matter.
In 2004 Judge Schiavelli issued a judgment in the case, in favor of the United States. The judgment was listed in the PACER docket as “entered”, and was listed in the Judgment Index of the Court. Consequently, the case was deemed “closed” by court staff. However, access to the certification of the 2004 judgment is denied.
The 2004 Judge Schiavelli “Judgment” was never overturned through an appeal, or any other judicial procedure.
In 2010 Judge Phillips appeared in the case and issued the opposing judgment, in favor of the Log Cabin Republicans. The 2010 judgment was again listed in the PACER docket as “entered”, but was not listed in the Judgment Index of the Court. Access to the certification of the 2004 judgment is denied as well.
5) The Motion for a Declaratory Mandate: The NEFs are court records subject to the First Amendment rights – addresses the ongoing denial of public access to the certification records (NEFs) in the US District Court in Log Cabin Republicans v USA et al (2:04-cv-08425), and in other cases of interest as well. The Motion seeks the US Court of Appeals’s help, in declaring that the NEFs, as court records, are subject to the First Amendment rights. Therefore, the public must be permitted to inspect and to copy the records. Absent access to the NEFs, there is no way that the public can ascertain, which of the papers, posted in the PACER dockets, are valid and effectual, and which ones are null and void.
6) The Motion for Declaratory Mandate: The NEFs, as currently drafted, are invalid as electronic certificates of authentication/attestation by the Clerk; the US District Court shall immediately draft valid electronic certificates of authentication/ attestation by the Clerk – compares the language of the NEFs to the language of Certificates of Service, which were previously used by the clerks of the US courts, prior to implementation of CM/ECF. The NEFs are found invalid as certification records, for failing to include the statement “I certify…”, and for failing to include the name and signature of the individual, who issues the purported certifications, and his/her authority as a Deputy Clerk.
7) The Motion for Declaratory Mandate: Establishment of CM/ECF in the US District Court through the General Order 08-02 amounts to Deprivation of Rights – addresses the validity, or lack thereof, of the key order of the US District Court, which implemented CM/ECF. The Order was published with no name and no signature of an authorized US Judge, and with no certification by the Clerk. The Clerk of the US District Court has refused to provide a signed and certified copy of the Order, and it was likely that no such copy exists. The Motion also claims that establishment of CM/ECF should have been established through Local Rules of Court, pursuant to the Rulemaking Enabling Act, and not through a General Order. Moreover, the Motion states that in the General Order 08-02, the US District Court established two separate and unequal classes: Authorized attorneys are permitted access to the certification records (NEFs), while the public and pro se filers are not. Therefore, the public and pro se filers are denied the right to distinguish between valid and effectual court records, and ones which are null and void.
8) The Request for Incorporation by Reference – brings to the US Court of Appeals’ attention records from other cases in the US district courts, which support the claims in Dr Zernik’s filing, including, but not limited to, cases from the US District Court, central District of California, where invalid NEFs were discovered.
9) The Request for permission to obtain CM/ECF password – asks the US Court of Appeals to permit pro se filer, Dr Zernik, to access CM/ECF, similar to that is permitted to the other parties – Log Cabin Republicans and the USA.
Remaining doubts regarding validity of the filing and docketing of Dr Zernik’s papers
Upon examination of the papers, as posted online in the PACER dockets of the US Court of Appeals, it was noted that none of the papers, which have been filed by Dr Zernik, were signed by the Clerk of the US Court of Appeals, in the designated spaces, to certify filing and docketing of the papers. Therefore, even in the Appeals themselves, there is no way for the pro se filer to ascertain that the online publication of the papers was indeed deemed by the US Court of Appeals as valid and effectual filing and docketing of the papers.
While waiting for the Court’s ruling on his request for permission to access CM/ECF, Dr Zernik requested that the Clerk of the US Court of Appeals, 9th Circuit, provide paper or email copies of the certification records (NDAs – Notices of Docket Activity). [iii] The NDAs are deemed by the US Court of Appeals as the certifications of authentication/attestation by the Clerk, similar to the NEFs in the US District Court.
PACER and CM/ECF fail to meet basic standards of validation and authentication in electronic government systems.
As part of the transition to electronic administration of government, the US Congress passed the E-Government Act (2002) [iv] and the E-sign Act (2000). [v] The US Department of Homeland Security’s Presidential Directive – 12 (2004) further established policies for validation and authentication of electronic systems and electronic records of the executive branch agencies, [vi] and standards were accordingly promulgated. [vii,viii]
Dr Zernik’s Motion points out that the US courts’ records fail to meet such basic standards for electronic government systems and electronic government records, as implemented both in the US and abroad. [ix, x,xi,xii] As a result, the electronic records of the US court are rendered vague and ambig
As noted in his biography, [xiii] Dr Zernik has gained substantial experience in examination of large-scale corporate and government electronic systems. His opinions in these matters are supported by notable experts in the relevant fields. Two reports on similar matters, authored by Dr Zernik, have also been published in peer-reviewed international computer science journal, with editorial board listing computer science scholars from six European nations and Canada. [xiv, xv] Human Rights Alert’s submission to the United Nations Human Rights Council (HRC), on related matters, was also reviewed and incorporated into the official Staff Report of the HRC, as part of the first-ever UPR (Universal Periodic Review) of Human Rights in the United States. [xvi]
Proposed Corrective Actions
Human Rights Alert and Dr Zernik have sought corrective measures regarding the US courts’ online public access and case management systems through both the US courts and the US Congress:
1) US Court of Appeals, 9th Circuit
Dr Zernik claims in his filing, that any ruling by the US Court of Appeals, 9th Circuit, on the matters raised in his papers, is likely to exert profound impact on the integrity of US court records under the 9th Circuit and beyond.
2) US Congress
Human Rights Alert proposes that the following measure, enacted by US Congress as federal rules of electronic court records or equivalent, can also address the integrity of US court records:
a) The clerks of the US courts should be placed under the direct authority of the US Attorney General.
Similar provisions were introduced in the Salary Act (1919), and were credited with restoring the integrity of the offices of the US clerks.
b) Procedures inherent to the operation of case management and online public access systems of the courts should be established by law.
Implementation of the online public access and case management systems of the US courts amounted to establishing of new court procedures. The new court procedures should be established by law, as required by Due Process. Validation of the systems must be undertaken prior to their installation, in a manner that is both legally and publicly accountable – e.g. through agencies under control of the legislative branch.
c) Certification and authentication of judicial records should be clear and unambiguous.
Records, which the clerks of the US courts are required to enter in the PACER dockets should be clearly defined. The entry of such records should include the name, authority, and digital signature of the person, who entered the records, in a publicly accessible manner. Calendars, Docket Activity, Reports, Related Transactions Reports, and entries in the Judgment Index should be treated in the same manner.
d) Public access to judicial records to inspect and to copy should be restored.
All court records should be publicly accessible, pursuant to First Amendment, Due Process, and Public Trial rights, including, but not limited to all authentication records, unless such access is lawfully denied.
e) Valid and effectual authentication records (NEFs) should be re-drafted.
The certificates of authentication of the US District Courts (NEF – Notices of Electronic Filing) should be re-drafted, to form valid authentication records. Valid digital signatures should be affixed on the certificates by individuals, when issued, including visible names and authorities, as symbols of intention to take responsibility.
f) Counsel and pro se litigants should be permitted equal access to the US courts.
Counsel should not be permitted to enter court records in the dockets with no prior review under the authority of the clerks. Pro se litigants and counsel should be given equal standing in access to the US courts.
g) Counsel who engaged in fraud through unauthorized court appearances should be prosecuted to the full extent of the law
It is suggested that appearances by unauthorized counsel, as documented in the Motion, are likely to decrease, or even disappear, once all counsel appearances are subjected to pre-approval by the clerks. Regardless, the law should be enforced on counsel, who engage in Fraud on the Court.
h) Similar provisions should be applied to the courts of the several states
Key provisions of legislation pertaining to the online public access and case management systems of the US courts should also apply to the courts of the several states.
Notice of the Motion was forwarded to the Chairs of the Senate and House Committees on the Judiciary, Banking, and Armed Services, since matters, which were outlined in the Motion pertained to undermined integrity of the US court records, undermined banking regulation, and management of the armed forces.
3) The people
The people and computing professionals, in particular, must assume their civic duties in ongoing monitoring of the integrity of electronic court records.
The First Amendment right to inspect and to copy judicial records was reaffirmed by the US Supreme Court in Nixon v Warner Communications, Inc (1978) as inherent to the First Amendment. In doing so, the US Supreme Court said that the right was necessary for the public “to keep a watchful eye on government”. Today, the public must keep a watchful eye particularly on electronic court records. No other measures could substitute for public scrutiny of court records in safeguarding the integrity of the courts.
i 11-01-06 Joseph Zernik, PhD, Biography
ii 11-01-07 Log Cabin Republicans v USA et al (10-56634) at the US Court of Appeals, 9th Circuit – Motion to Intervene and concomitantly riled papers, as published in the online PACER dockets
iii See [i], above.
iv 03-01-07 E-Government Act (2002) HR2458 Final – USA
v E-sign Act (2000) – USA
11-01-08 NIST-CSRC-Guidance on E-Sign Implementation in Federal Agencies – USA
vi 04-08-28 DHS _ Homeland Security Presidential Directive 12_ Policy for a Common Identification Standard for Federal Employees and Contractors – USA
vii 05-08-05 m05-24- Office of Management and Budget: Memorandum for the Heads of All Departments and Agencies in re: Homeland Security Presidential Directive 12 – USA
viii 10-09-28 Innovative Uses of SCAP-Developing a Government-Funded SCAP-Validated Application/ Internal Revenue Service /National Security Agency – USA
ix 04-08-26 Design of Finance Service Platform of E-government – China
x 11-01-06 Government Information System of Veneto Region _ ePractice – Italy
xi 07-06-02 Yi-Shun Wang Assessing eGovernment Systems Success a Validation of the DeLone and McLean Model of Information Systems Success – Taiwan
xii 10-01-22 El Kadhi, N. Karoui, S. Ghedira, K. El Kadhi, N. Karoui, S. Ghedira, K. Certificates Chain Construction and Validation in E-Government System – Bahrain
xiii See [i], above.
xiv Zernik, J: Data Mining of Online Judicial Records of the Networked US Federal Courts, International Journal on Social Media: Monitoring, Measurement, Mining 1:69-83 (2010)
xv Zernik, J: Data Mining as a Civic Duty – Online Public Prisoners’ Registration Systems, International Journal on Social Media: Monitoring, Measurement, Mining 1: 84-96 (2010)
xvi 10-04-19 Human Rights Alert (NG0) submission to the United Nations Human Rights Council for the 2010 UPR of Human Rights in the United States, as incorporated into the UPR Staff Report:
Human Rights Alert is dedicated to discovering, archiving, and disseminating evidence of Human Rights violations by the justice systems of the State of California and the United States in Los Angeles County, California, and beyond. Human Rights Alert focuses on the unique role of computerized case management systems in the precipitous deterioration of the integrity of the justice system in the United States.