Talk:Pro se legal representation in the United States/AIA

(moved from Talk:Pro se legal representation in the United States for page size management purposes, as most of this is off topic-discussion. The first section is left in the page)

My perception is that Risker is biased. For instance she posted on my talk page "The information you add to the article must be specifically relevant to the article; it must actually mention pro se representation, not just allude to representation in general. " even though many legal references such as the U.S. Code Title 28 Section 1654 (which authorizes self-representation) ',,)" style="background-image: none; background-repeat: initial; background-attachment: initial; -webkit-background-clip: initial; -webkit-background-origin: initial; background-color: initial; color: rgb(112, 112, 255); text-decoration: none; background-position: initial initial; "> do not use the words "pro se" and without discussion on the talk page Risker "erased" quotations taken from articles in which the term "pro se" was used in the title. I want to be clear with you that I am not at all convinced that I should allow my name to be further associated with this article because of the "erased" references, blockages, insults, and stated biases of the other editors.

My perception is that Risker is biased. For instance she posted on my talk page "The information you add to the article must be specifically relevant to the article; it must actually mention pro se representation, not just allude to representation in general. " even though many legal references such as the U.S. Code Title 28 Section 1654 (which authorizes self-representation) do not use the words "pro se" and without discussion on the talk page Risker "erased" quotations taken from articles in which the term "pro se" was used in the title. I want to be clear with you that I am not at all convinced that I should allow my name to be further associated with this article because of the "erased" references, blockages, insults, and stated biases of the other editors.

Lex, as I stated to you previously, I have had both good and bad experiences with lawyers. I was prosecuted without probable cause and I was repeatedly jailed without citation of an Act of Congress or an evidentiary hearing. I was fined $102,000 without a rule 11 or a rule 38 order and without a criminal trial. So that was "bad". However, my husband got 5 patents and we made over $1 million on them, so that was "good". When I was in grad school, I dated a law student. His father spent 5 years in Auschwitz. That greatly influenced my thinking about law. kay sieverding (talk) 17:02, 9 October 2008 (UTC)

Everyone thinks everyone who disagrees with them is biased. Bias is not relevant. Only pre-existing bias is relevant. Do you have any evidence of that?

Rule 11 and Rule 38 are not the only means by which you can be sanctioned by a court. The anti-injunction act also has never been a limit on the contempt power of the court, only it's jurisdiction to intervene equitably in certain matters reserved for state and local authorities. You're not entitled to a criminal trial on a direct contempt. Sorry. Next time, don't piss off the judge. Non Curat Lex (talk) 18:08, 9 October 2008 (UTC)

Lex, you deleted my comments. The Anti-Injunction Act is a limit on the contempt powers of the court. What else would it be? It's called the Anti injunction act not the pro injunction act. As I stated, you are not entitled to a jury trial if you commit contempt in the presence of the court. The Court is required in its order to state what the summary contempt was. The judge does not have a "right" to put you in jail for making him angry. "The distinction between in-court and out-of-court contempts has been drawn not to define when a court has or has not the authority to initiate prosecution for contempt, but for the purpose of prescribing what procedures must attend the exercise of that authority. As we said in Bloom v. Illinois, 391 U.S. 194, 204 (1968), "before the 19th century was out, a distinction had been carefully drawn between contempts occurring within the view of the court, for which a hearing and formal presentation of evidence were dispensed with, and all other contempts where more normal adversary procedures were required.... Congress also has regulated the manner in which courts exercise their power to prosecute contempts, narrowing the class of contempts subject to summary punishment, Act of Mar. 2, 1831, 4 Stat. 487....The manner in which the court's prosecution of contempt is exercised therefore may be regulated by Congress, Michaelson, 266 U.S., at 65-66, and by this Court through constitutional review....Our insistence on the criminal character of contempt prosecutions has been intended to rebut earlier characterizations of such actions as undeserving of the protections normally provided in criminal proceedings....While a court has the authority to initiate a prosecution for criminal contempt, its exercise of that authority must be restrained by the principle that "only 'the least possible power adequate to the end proposed' should be used in contempt cases." United States v. Wilson, 421 U.S. 309, 319 (1975) (quoting Anderson v. Dunn, 6 Wheat., at 231)....a court ordinarily should first request the appropriate prosecuting authority to prosecute contempt actions, and should appoint a private prosecutor only if that request is denied... the court erred in appointing as prosecutors counsel for an interested party in the underlying civil litigation....A private attorney appointed to prosecute a criminal contempt therefore certainly should be as disinterested as a public prosecutor who undertakes such a prosecution....If a Justice Department attorney pursued a contempt prosecution for violation of an injunction benefiting any client of that attorney involved in the underlying civil litigation, that attorney would be open to a charge of committing a felony under ? 208(a). Furthermore, such conduct would violate the ABA ethical provisions, since the attorney could not discharge the obligation of undivided loyalty to both clients where both have a direct interest...As we said in Bloom, "In modern times, procedures in criminal contempt cases have come to mirror those used in ordinary criminal cases." 391 U.S., at 207. The requirement of a disinterested prosecutor is consistent with that trend...counsel for a party that is the beneficiary of a court order may not be appointed as prosecutor in a contempt action alleging a violation of that order....We have held that some errors "are so fundamental and pervasive that they require reversal without regard to the facts or circumstances of the particular case." Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986). We find that the appointment of an interested prosecutor is such an error...Between the private life of the citizen and the public glare of criminal accusation stands the prosecutor. That state official has the power to employ the full machinery of the state in scrutinizing any given individual. Even if a defendant is ultimately acquitted, forced immersion in criminal investigation and adjudication is a wrenching disruption of everyday life. For this reason, we must have assurance that those who would wield this power will be guided solely by their sense of public responsibility for the attainment of justice. A prosecutor of a contempt action who represents the private beneficiary of the court order allegedly violated cannot provide such assurance, for such an attorney is required by the very standards of the profession to serve two masters. Young v. U.S. ex rel. Vuitton et Fils, 481 U.S. 787 (1987) So if a judge is angry because you did something he didn't want, or didn't do what he wanted, he still has to allow formal procedure starting with requesting a U.S. Attorney to prosecute unless you actually disrupted a court room. I was never even accused of disrupting a court room nor or perjury nor of any criminal contempt. I was never in the same room as a government or independent prosecutor who was prosecuting me and in my whole life have never received a criminal complaint with my name on it. No judge that I know of ever requested a government prosecutor to prosecute me. kay sieverding (talk) 20:09, 9 October 2008 (UTC)

Above, Kay Sieverding wrote: "The Anti-Injunction Act is a limit on the contempt powers of the court. What else would it be? It's called the Anti injunction act not the pro injunction act." (emphasis added).

Kay, this discussion is getting difficult to follow, but this quoted passage in particular is difficult to follow. With all due respect, I think this verbiage may indicate confusion about the legal concepts of injunction, contempt, and jurisdiction.

The term "Anti-Injunction Act" is often used to describe statutes such as 28 U.S.C. 2283 and 26 U.S.C. 7421. Neither of these provisions is, strictly speaking, merely a limitation on the "contempt" powers of a court. These are basically jurisdictional statutes -- specifically, limitations on subject-matter jurisdiction of courts. These are limitations on the kinds of cases certain courts can hear and decide.

Now, obviously it's true that in some broad sense, a limitation on the subject-matter jurisdiction of a court limits a court's powers to do "things" in the kinds of cases excluded from the court's jurisdiction by the Act -- by definition! But that limitation would apply to lots of things. Obviously, if the court cannot hear and decide a particular kind of case, the court cannot exercise most of the judicial powers that the court would be able exercise IF the Anti-Injunction Act were not on the books. So, saying that the Anti-Injunction Act is a limitation on the "contempt" powers of a court seems to misleadingly and incorrectly imply that limiting the contempt power is the purpose of the Act. I do not think that this the purpose of the Act (and I know for sure that it's definitely not the purpose in the specific example of 26 U.S.C. 7421.)

Again, Kay, I'm not sure but I think maybe you have been trying to do your own original research on this whole subject. I again suggest that you avoid that, at least for purposes of Wikipedia. Just my opinion.

By the way, where the court is prohibited by the Act from hearing a case, the court probably still has jurisdiction to do at least one thing with respect to that case. Can you guess what that one thing is? (This is off the subject, I know.) Famspear (talk) 21:59, 9 October 2008 (UTC)

Famspear is correct. You do not understand what the A.I.A. does. Let me put it another way: your basic mistake seems to be that you have confused contempt with injunctions. They are related but not interchangeable. Contempt is how a court ENFORCES an injunction, but it is not the same thing as an injunction. You can have contempt w/o injunction - you don't have to violate an injunction; there are other ways to be in contempt of court. Now, an injunction w/o the power of contempt is unenforceable.

So what the Anti-injunction act actually does is make a number of cases off-limits to federal judges by depriving them of subject-matter jurisdiction (it is a virtually unlimited power of Congress to control the subject matter jurisdiction federal courts). So of course, if Congress has said that a court cannot hear a kind of case, it should not issue an injunction in that kind of case. In that sense, it does limit contempts, but it's not limiting the power, only where it will be used. However, the AIA places no limit on the power of Courts to issue injunctions in any and all cases where they do have jurisdiction.

It probably won't, but this little exercise SHOULD point up the dangers of original research into law, esp. by non-attorneys. Non Curat Lex (talk) 00:16, 10 October 2008 (UTC)

Ah, since I've been overwhelmed (insert applicable sound effects here) with thousands of requests (uh, I might be exaggerating) for the answer to my trivia question, I'll go ahead and answer it myself! I'll phrase the question as follows: "What is it that a court generally does have the power to do with respect to a particular case, even if that court lacks subject matter jurisdiction over that case?" Answer: In general, the court still has the jurisdiction to determine whether the court has jurisdiction. Sounds kinda circular, but if you think about it, it makes sense.

OK, enough off-topic stuff. I'll go back to my room now..... Yours, Famspear (talk) 14:47, 10 October 2008 (UTC)

I love that phrase... "a court has jurisdiction to determine whether it has jurisdiction." At the beginning of many rational systems, there is an initial "circular" statement from which the rest is built. For example, the Cartestian "Cogito," which in most interpretations, is deemed a circular inference. Without that founding circular inference, the rest of Cartesian epistemology makes no sense and becomes paradoxical. (Cartesian epistemology is flawed for many other reasons, but at least it is not, thanks the Cogito, paradoxical). Without the fundamental circularity of jurisdiction, you could have a jurisdictional paradox. If a court otherwise finding itself lacking jurisdiciton to adjudicate a case lacks minimal jurisdiction to determine its own jurisdiction, then its finding that it has no jurisdiction is void for want of jurisdiction; from this absurdity, it would follow that the court upon finding itself not thave jurisdiction, could then hear the case, and at the same time, its determination that it had no jurisdiction would not be entitled to full faith and credit or have any binding effect upon any other court!!!! In short, jurisdiction relies upon this first and initial assumption. Non Curat Lex (talk) 00:16, 11 October 2008 (UTC)

"The Anti-Injunction Act, 28 U.S.C. § 2283, is a United States federal statute that prohibits any federal court from issuing an injunction against proceedings in any state court, except within three specifically defined exceptions." None of the exceptions are related to the identity of the filer or their pro se status. I believe that that also applies to litigation in a federal court acting as a state court in diversity. The Anti Injunction Act is also common law. Basically, a court has jurisdiction over cases and controversies. An injunction can be issued under Rule 65 when the requesting party deposits a bond and states a legal authority (a statute or rule). Rule 65d prohibits an injunction from being issued unless it states a reason that does not involve reference to another document. Rule 54a prohibits a judgment from including a recitation of proceedings before another judge, the judgment must state the reasons and law separately. There are 3 kinds of contempt: 1.) disrupting a court room (summary contempt) 2.) disobeying a "lawful" order 3.) committing a crime that obstructs justice such as perjury or threatening a judge, witness, or jury member. A federal court has jurisdiction over cases and controversies brought by citizens of one state against another, if the claimed damages are over $75,000 and they have jurisdiction over federal claims. If a federal court has jurisdiction because it is an interstate claim over $75,000 any injunctions that it issues, which are enforced thru the contempt of court powers, must be based on law. If a judge dismisses a case, then his involvement ends because he doesn't have jurisdiction over a person only over a case. The judge can't issue an injunction without a statute to back it up. The federal government can't legally detain a U.S. citizen except pursuant to An Act of Congress. Judges don't get to create their own laws. Injunctions are enforced by jail and jailing requires a law. A judge doesn't get to put a person in jail just because he doesn't like them. The jurisdiction of federal courts is limited by Article III not by the Anti Injunction Act. If a complaint was inadvertently brought in federal court and should have been in state court, then it would be removed to state court. It it is too old, then the defense has to file an answer and the plaintiff can argue for "equitable tolling". If something comes up, such as a new publication of a defamatory article, or a new argument or new evidence, then the plaintiff can file a new case. The new court has original jurisdiction over the new case. This is not original research. I can reference every statement. The U.S. code has a word search facility in it showing when contempt powers can be used. kay sieverding (talk) 20:07, 10 October 2008 (UTC)

Kay, in this long discussion, I'm not sure what you're driving at here. This is all very nice, but what does this have to do with improving the article on pro se representation?

And Kay, I'll just respond to one of your statements. Contrary to what you stated, the jurisdiction of federal courts is limited not merely by Article III, but also by statutes -- such as the Anti-Injunction Act. The Act is a limitation on the subject matter jurisdiction of federal courts. Famspear (talk) 20:34, 10 October 2008 (UTC)

The Anti-injunction Act limits the use of the court's equity powers (i.e. powers to issue an order enforceable by jail). It does not limit the power of the federal courts to hear a claim for damages. Any claim valid under TITLE 28 PART IV CHAPTER 85 § 1332 Diversity of citizenship; amount in controversy; costs is a claim that the federal court is required to "hear" if the plaintiff presents it in federal court. Federal courts are also required to hear claims presented under 42 U.S.C. section 1983 and other federal claims such as employment discrimination (42 U.S.C. Section 1985), Bivens, or any claim authorized by federal statute. kay sieverding (talk) 21:42, 10 October 2008 (UTC)

Kay, you're confusing one thing for another. All injunctions are orders enforceable by contempt; not all contempts are injunctions. There are other kinds of equitable relief, and there are other bases for contempt besides injunction. An injunction is merely a broad category of court orders to do, or not do, something, under certain circumstances. However, there are more specific kinds of court orders also enforceable by contempt, namely WRITS, PROTECTIVE ORDERS, and RESTRAINING ORDERS.

The anti-injunction act, as you say, only prohinits a "federal court from issuing an injunction against proceedings in any state court. What this means, plainly, is that it prohibits someone who is interested in a PENDING ACTION IN A STATE COURT from going to federal court for an injunction AGAINST THE STATE COURT ITSELF ( which the Federal court would otherwise (theoretically) have equitable power to do).

You are wrong about subject matter jurisdiction being exclusively Constitutional. Art. III merely sets the outer limits of subject matter jurisdiction. By the terms of Art. III, s. 2 itself, it is up to Congress to determine the actual operative subject matter of any and all Federal Courts. See Osborn v. U.S. (defining "arising under" as used in Art III); Acc. Louisville & Nashville R. Co. v. Mottley (defining "arising under" as used by Congress); Cf. Marbury v. Madison (unconstitutional for Congress to attempt, by statute, to create original jurisdiction in Supreme Court for a matter not stated to be within the original jurisdciton thereof by Art. III, s. 2); Cf. Hayburn's Case (Congress lacked authority to force Art. III court to issue advisory opinion). The AIA was part of the first judiciary act, and has survived, in some form, ever since. It is universally known to be jurisdictional and it is prohibition is limited to the class of cases described above. It has nothing to do with a court's inherent power to hold people in contempt except in thoses cases which it expressly forbids the federal courts to hear. Non Curat Lex (talk) 00:09, 11 October 2008 (UTC)