UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
ROSS E. MITCHELL,
Plaintiff - Appellant,
ROBERT A. MULLIGAN,
in his Official Capacity as Chief Justice
of the Massachusetts Superior Courts,
Defendant - Appellee
ON APPEAL FROM AN ORDER OF DISMISSAL OF THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
Brief of Plaintiff - Appellant.
Ross E. Mitchell, pro se
Table of Contents
I. Statement of Subject Matter and Appellate
II. Statement of Issues
III. Statement of the Case
IV. Summary of Argument
V. Statement of Standard of Review
- Burden of Denial of Remote Access Is Not "De
- The Denial of Remote Access to Pro Se
Litigants Is Not Rationally Related to the Advancement of a
Legitimate State Interest
- The Denial of Remote Access Privileges
Places Plaintiff on an Unequal Footing With His Opponent in State
- The Right of Self-Representation in a Civil
Case is a Fundamental Right Under the U.S. Constitution
VII. Conclusion And Prayer For Relief
Tables of Authority
Table of Cases
Andrews v. Bechtel Power Corp., 780 F.2d 124, 137 (1st
Baxtrom v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760
Bounds v. Smith, 430 U.S. 817, 825 (1977)
Bowers v. Hardwick, 478 U.S. 186, 201 (1986)
City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S.
432, 105 S.Ct. 3249 (1985).
Conley v. Gibson, 355 U.S. 41
Dugar v. Coughlin, 613 F.Supp. 849 (S.D.N.Y. 1985)
Eitel v. Holland, 787 F.2d 995,998 (5th Cir. 1986)
Ex parte Virginia, 100 U.S. 339
Faretta v. California,(422 U.S. 806)
Foman v. Davis, 371 U.S. 178
Haines v. Kerner et al., 404 U.S. 519
Johnson v. Atkins, 999 F.2d 99
Los Angeles Country Bar Association v. Eu, 979 F.2d 697,
706-707 (9th Cir. 1992)
Mathews v. Lucas, 427 U.S. 495, 510, 96 S.Ct. 2755
Murphy v. Com'r of Dept. of Indus. Acc., 612 N.E. 2d 1149
O'Reilly v. New York Times Co., 692 F.2d 863, 867 (2d Cir.
Oliver v. Marks, 587 F.Supp. 884 (E.D. Pa. 1984)
Richard v. Hinson, 70 F.3d 415 (5th Cir. 1995)
Rinaldi v. Yeager, 384 U.S. 305, 36 S.Ct. 1497
Sanner v. Chicago Bd. of Trade, 62 F.3d 918 (7th Cir.
Scheuer v. Rhodes, 416 U.S. 232
Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836
Singer v. United States, 380 U.S. 24
Tassian v People, 696 P.2d 825 (Colo-App. 1984).
Tassian v. People, 731 P.2d 672 (Colo.1987)
Taylor v. Coughlin, 29 F.3d 39 (2d Cir. 1994)
Toll v. Carroll Touch, Inc., 977 F.2d 1129, 1134 (7th
Vartanian v. Monsanto Co., 14 F.3d 697, 700 (1st Cir.
Virginia v. Rives, 100 U.S. 313 14
28 U.S.C. § 1291
28 U.S.C. § 1331
28 U.S.C. § 1654
42 U.S.C. § 1983
Judiciary Act of 1789
M.G.L. c 152 § 11A
F.R.A.P. Rule 3(a)
Local Rule 45.2 (1st Cir)
Massachusetts Body of Liberties (1641)
U.S. Constitution, Amendment I
U.S. Constitution, Amendment VI 2, 6,
U.S. Constitution, Amendment XIV
Massachusetts Constitution, Article XII
Thomas Paine on a Bill of Rights, 1777
P. Kauper, The Higher Law and the Rights of Man in a Revolutionary
Society, a Lecture in the American Enterprise Institute for Public
Policy Research Series on the American Revolution, Nov. 7, 1973,
extracted in 18 U. of Mich. Law School Law Quadrangle Notes, No. 2,
This case raises federal questions under 28 U.S.C. § 1331
and 42 U.S.C. § 1983. Specifically, this case deals with
official actions of the Chief Justice of the Massachusetts Superior
Court. Plaintiff-Appellant Ross Mitchell contends that, as a result
of these actions, he has been deprived, inter alia, of his rights
under the fourteenth amendment of the U.S. Constitution.
This appeal was filed pursuant to F.R.A.P. Rule 3(a) within 30
days after entry of the district court's entry of its order
dismissing the Action. This court, therefore, has appellate
jurisdiction under 28 U.S.C. § 1291.
- Whether the District Court erred in dismissing the Complaint
for failure to state a claim upon which relief can be granted.
- Whether the District Court erred in denying Mitchell's Motion
for Reconsideration of its Order Dismissing the Complaint or, in
the Alternative, for Leave to Amend the Complaint.
- Whether the Chief Justice's actions in denying Mitchell remote
access to the Superior Court's computer system while permitting
such access to any attorney requesting it creates more than a "de
minimus" burden on Mitchell's ability to prosecute his state court
- Whether the Chief Justice's aforementioned actions are
rationally related to the advancement of a legitimate state
- Whether the Chief Justice's aforementioned actions place
Mitchell on an unequal footing with his opponent in his state court
- Whether, contrary to previous dicta of this Court, the right of
self-representation in a civil case is a fundamental right under
the U.S. Constitution.
The case on which this appeal is taken is an action for
declaratory and injunctive relief relating to defendant Chief
Justice Robert A. Mulligan's actions in denying plaintiff Ross
Mitchell remote dial-up access to Massachusetts Superior Court
records, where said records are available by dial-up to any
attorney requesting such access. Mitchell contends that this denial
constitutes a violation of his civil rights by, inter alia,
impeding his right of due process under the Fourteenth Amendment of
the United States Constitution.
On the same day as he filed his Complaint, Mitchell also filed a
Motion for Preliminary Injunction to compel the Chief Justice to
grant him dial-up access to the court's online docket system
pending adjudication of the case on the merits, wherein Mitchell
additionally requested that oral arguments be heard.
The Chief Justice responded by filing a Motion to Dismiss the
Complaint and an Opposition to Mitchell's Motion for Preliminary
Injunction. The affidavit of Court Administrator, James Klein , was
included in support of the Opposition to Mitchell's Motion for
The District Court then denied Mitchell's Motion for Preliminary
Injunction, without oral argument, indicating that "[Mitchell] has
failed to show either a likelihood of success on the merits or
Mitchell next filed his Opposition to the Motion to Dismiss.
The District Court subsequently granted the Chief Justice's
Motion to Dismiss, without oral argument, without opinion, and
without leave to amend.
An Order dismissing the Action was then entered on May 12,
Mitchell next filed a "Motion for Reconsideration of the Order
Dismissing the Complaint or, in the Alternative, for Leave to Amend
the Complaint." This Motion was denied by the District Court on May
Appeal was taken from the Order of Dismissal entered in this
case on May 12, 1997, and from the Order Denying Plaintiff's Motion
for Reconsideration of the Order of Dismissal or in the
Alternative, for Leave to Amend the Complaint, entered on May 28,
Statement of Facts
The plaintiff, Ross E. Mitchell, is a resident of Newton,
Massachusetts and a pro se defendant in a civil contract case
pending in Middlesex Superior Court in Cambridge,
In November of 1996, Mitchell read in the October 21, 1996 issue
of Massachusetts Lawyers Weekly of a free dial-up system for
accessing Superior Court dockets and calendars known as SCRIB
(Superior Court Remote Inquiry for the Bar), which provides remote
access to the Court's Forecourt system.
The article stated that the "main function of the SCRIB system
is to give practitioners access to docketing information as if they
were using computer terminals located at the courts."
The article further stated that "[a]ny Massachusetts lawyer with
a computer and a modem can access the service free of charge,
establishing a direct link to all docketing information available
at the courts." The article gave the name of a court official whom
attorneys wishing to use SCRIB should contact to be connected to
Mitchell, who had been making extensive use of the computer
terminals at the courthouse in prosecuting his case, decided to
request remote access to the system to facilitate the conduct of
his litigation. He contacted the court official and asked to be
hooked up to SCRIB. Mitchell asserted that although he was not an
attorney his "ability to prosecute litigation in the Massachusetts
courts would be prejudiced against [him] should [he] be denied
access to the SCRIB system by dial-in while [his] opponent's
counsel is permitted such access without needing to travel to the
courthouse." Mitchell's request was denied on the ground that, by
order of the Chief Justice, remote dial-up access was available
only to attorneys.
At the court official's suggestion, Mitchell next contacted
James Klein, Administrator of the Superior Court. In a telephone
conversation, Mr. Klein confirmed that dial-up access to the system
was only available to attorneys and that pro se litigants were
required to use the terminals provided at the courthouse. He
suggested that Mitchell should write to the Chief Justice if he
wished to pursue the matter further.
On February 22, 1997 Mitchell wrote the Chief Justice to request
that the policy of denying dial-up access to non-attorneys be
changed and that he be granted immediate access to the system.
Mitchell gave numerous reasons as to why he should be accorded
access, including his need to check his case's status, to consult
the court's calendar and to research case dockets to assist him in
the prosecution of his case.
Mitchell stated that he recognized that system resources might
be insufficient to permit unrestricted access to any member of the
public; however, he suggested that "people involved in adversarial
proceedings must be offered access on an equal basis with their
opponents. Consequently, a requirement that an individual be
presently engaged in litigation or contemplating litigation would
not be unreasonable. Access by libraries, journalists, etc. could
remain restricted since they would not meet this criteria."
The Chief Justice replied that the Superior Court's computer
system was not designed for broad public dial-up access to court
records. Rather, he wrote, "The Forecourt system was designed
expressly for the purpose of enabling attorneys with heavy
caseloads before the Superior Court to synchronize, from their
offices and without burdening the Court's staff, their own
appearance calendars with the Court's calendars. Such efficient
communication between the Court and those attorneys who appear
regularly before it decreases the frequency of missed appearance
dates and disruptions in the Court's calendar, thereby allowing
judges to better manage their caseloads."
"Forecourt was not developed to enable research of the kind
described in your letter. While it may have that secondary benefit
for some persons, they may freely take advantage of such potential
through public terminals in the courthouses. To permit persons to
dial-up for research would interfere with attorneys who dial up
Forecourt for its intended purpose."
"Finally, there is no evidence that not giving you dial-up
access to Forecourt in any way prejudices your ability to prosecute
your case. The other parties in your case, and their attorneys, are
not subscribers to Forecourt and, therefore, stand with you on an
equal footing before the Court."
Mitchell then filed this suit, alleging that the Superior
Court's remote dial-up access policy violated his Fourteenth
Amendment rights of, inter alia, due process and "equal
I respectfully submit that the District Court erred when it
dismissed my Section 1983 Action for failure to state a claim upon
which relief can be granted. I will argue herein that the Chief
Justice's denial to me of remote access to the Superior Court's
docket and calendar system (while this access is available to any
attorney who requests it) violates my right to equal protection of
the laws and due process under the Fourteenth Amendment of the U.S.
I will show that this denial of access represents a substantial
burden to me in the prosecution of my case in state court, where I
am currently a defendant in a civil contract dispute.
The Chief Justice's policy of denying access to pro se litigants
such as myself does not even rationally relate to the advancement
of a legitimate state interest in that it is arbitrary and does not
further the stated goal of reducing the burden on Court staff; in
fact, it has precisely the opposite effect.
Further, this policy places me before the court on an unequal
footing with my opponent, a due process violation. My opponent has
the benefits of the availability of remote access because he is
represented by counsel. I do not because I am representing
I will also argue that the right of self-representation in a
civil case is a fundamental right under the Constitution. I
recognize that this argument is contrary to dicta of this circuit;
however, I respectfully submit that, upon careful analysis of
Faretta v. California,(422 U.S. 806) and the history on
which that decision is based, it will become apparent that the
fundamental right of self-representation extends to all matters,
civil as well as criminal. I will demonstrate that this right is
substantially burdened by the court's policy.
Finally, I will argue that, while I believe the Complaint fairly
states a cause of action, if it is deficient in any curable
fashion, the District Court erred in denying me leave to amend the
The appropriate standard of review over a district court's
dismissal of a claim under Rule 12(b)(6) is de novo or plenary.
Vartanian v. Monsanto Co., 14 F.3d 697, 700 (1st Cir.
1994). This standard also applies to the district court's denial to
grant leave to amend the complaint.
The allegations of the complaint are to be taken as true, and
the court is to determine whether, under any theory, the
allegations are sufficient to state a cause of action in accordance
with the law. Conversely, the court may also affirm the district
court's dismissal order under any independently sufficient grounds.
The Complaint that is the subject of this appeal was dismissed
by the District Court pursuant to Rule 12(b)(6) for failure to
state a claim upon which relief can be granted.
In addition to dismissing the complaint, which it did without
granting the opportunity for oral argument and without stating its
reasons, the District Court also denied, without comment, a motion
for reconsideration of its order dismissing the Complaint, and
further, refused to grant leave to amend.
Under Rule 12(b)(6), the "complaint should not be dismissed
merely because a plaintiff's allegations do not support the
particular legal theory he advances, for the court is
under a duty to examine the complaint to determine if the
allegations provide for relief on any possible theory." Bowers
v. Hardwick, 478 U.S. 186, 201 (1986) (emphasis supplied)
It is not even necessary that a plaintiff request appropriate
relief, properly categorize legal theories, or point to any legal
theory at all. Toll v. Carroll Touch, Inc., 977 F.2d 1129,
1134 (7th Cir., 1992) (complaint need not point to appropriate
status or law to raise a claim for relief; complaint sufficiently
states a claim even if it points to no legal theory or even if it
points to wrong legal theory, as long as "relief is possible under
any set of facts that could be established consistent with
the allegations") (emphasis supplied)
The party moving for dismissal must show "beyond doubt
that the plaintiff can prove no set of facts in support of his
claim [that] would entitle him to relief." Conley v.
Gibson, 355 U.S. 41, 45-46. (emphasis supplied)
Moreover, the likelihood that a plaintiff will ultimately
prevail on his claims has no place in determining whether or not to
grant a motion to dismiss. Scheuer v. Rhodes, 416 U.S.
232, 236 (1974) (issue is not whether plaintiff will prevail but
whether claimant is entitled to offer evidence to support
Additionally, when making a determination as to the sufficiency
of a complaint, initial pleadings must be construed liberally.
United States v. Uvalde Consol. Indep. Sch. Dist., 625
F.2d 547, 549 (5th Cir. 1890). This is especially true for a pro se
Complaint under Haines v. Kerner et al., 404 U.S. 519.
With respect to this Action, I contend that the District Court
erred in determining that there is no theory of law under which
relief can be granted. I ask this court to review the Complaint, de
novo, to perform again the examination referred to in Bowers, and
to reverse the District Court's Order dismissing the Complaint.
The arguments advanced herein constitute my reasons for
contenting that my Complaint ought not to have been dismissed;
however, if this court finds other reasons as a result of its
examination, it should use its authority to reverse the dismissal
on those grounds.
Burden Of Denial Of Remote
Access Is Not "De Minimus"
I am a self-employed computer systems and management consultant.
After being named as a co-defendant in a lawsuit brought by a
former salesman of one of my clients, I elected to represent myself
in Massachusetts Superior Court. I did this, knowing that it would
take substantial time from my consulting practice but believing
that the importance of fully defending against a frivolous attack
was worth the effort.
When I became aware of the availability of remote access to the
court's computer system, I immediately sought to be validated for
it because I knew it would lessen the burden on me as I prosecute
my case in state court. I was indeed surprised when that access was
There are a number of reasons why I need remote access to the
court's system and a number of reasons why denial of that access
substantially burdens my ability to prosecute and manage my case.
- The terminals at the court are only available during business
hours, while dial-up systems are usually available at most hours of
the day and night. Requiring me to conduct my litigation-related
access only during the court's business hours places an unnecessary
burden on me.
- The Court charges 50 cents per page to print documents. There
is no charge to attorneys, either for access, or for printing on
their own computers.
- Remote access permits downloading of docket information into my
computer, thereby enabling me to electronically forward information
to others with whom I am working on my case, as well as to
incorporate information into letters and other case-related
documents. This is not possible when accessing the system using the
terminals at the courthouse.
- Remote access to the Court's calendar would permit me to verify
scheduled events concerning my own case. It also would enable me to
see when motion hearings and trials for analogous cases to my own
might be taking place. I could then plan my time to permit me to
attend these hearings.
- I travel frequently for business yet desire to keep track of my
case's status on a frequent basis. (Where a response is often due
within just 10 days, having even one day's advantage can be
significant.) I require remote access in order to be able to view
my own case's status and docket information regarding papers
recently filed by other parties. Respect for the limited time of
courthouse clerks prevents me from calling for status updates as
often as I would if I were able to do it myself, at any time, and
from any location.
In addition to burdening the management of my case, denial of
remote access has already hindered me in the actual prosecution of
On May 22, 1997, my co-defendant's counsel and I were deposing
the plaintiff in the state civil Action. Based on the responses of
the plaintiff in that deposition, it immediately became apparent
that having access to the docket from a prior Superior Court case
would be useful in continuing the questioning.
My co-defendant's counsel is not adept at using computer
technology, and, as such, does not take advantage of his right to
remote access. Had I been authorized, I would have dialed into the
system and immediately downloaded the desired data. Instead, the
line of questioning that would have been pursued had to be
The utility of access to the kinds of information provided by
the Superior Court's Forecourt system is well known in the federal
judiciary. There, the PACER system provides case information to all
persons on an equal basis.
The PACER News describes the service as follows:
"Now you can have access to an electronic history of a case of
interest, without having to even leave your office. This service is
offered virtually around the clock."
"All recent cases are yours for the asking, without having to
make repeated trips to the court to review paper records."
"You can search for a case by participant name or case number.
Once you find the case you want, you can have the case and docket
information transmitted to you, ready to print on your own
"If you are tracking the progress of a case, the PACER system
allows you to quickly check if there have been any updates. This
means that you can get the latest docket entries and case
information when something happens; if there have been no updates,
you can confirm this fact in seconds."
The Superior Court's remote access system provides all of the
above features. In addition, it provides the court's calendar,
which even PACER does not provide. And it does this at no cost
whatsoever to its attorney subscribers.
As to the usefulness of the system, one need only consult the
Massachusetts Lawyers Weekly article that first alerted me to its
"It's tremendously useful," noted Boston lawyer Thomas P.
Billings. "For anything from figuring out the status of my
case...to marketing efforts to find out where clients are sending
their litigation business."
Catherine Deyo, a litigation paralegal at the Boston law firm of
Bingham, Dana & Gould, said that the system is "extremely
"It's widely used here," she remarked. "It's something that the
entire firm uses. And I love the fact that it's free." Deyo
Similar services connecting to federal courts can be accessed
only through paying a fee, Deyo noted.
Deyo said that "an enormous amount of time" is saved because she
uses the system lieu of making a trip to clerks' offices, where
computer terminals are often tied up, anyway.
25 M.L.W. 329. The Chief Justice has argued that his denial of
remote access to me constitutes a "slight inconvenience." I
respectfully disagree. Requiring me to interrupt my other business
to travel to the courthouse in order to review docket information
places a substantial burden on me by unnecessarily preventing me
from engaging in my normal business. The time lost from
income-producing activities has been and continues to be
As users of the remote access feature of the system have
indicated above, the remote access capability of the court's
computer system is "tremendously" useful and an "enormous" time
saver. The denial to me of access represents far more than the "de
minimus" burden that the Chief Justice has alleged. The state must,
therefore, justify denying access to me as a pro se litigant under
the appropriate standard of review, whichever one that might
The Denial of Remote Access to Pro
se Litigants is not Rationally Related to the Advancement of a
Legitimate State Interest
As I argued to the District Court , I contend that the Chief
Justice's denial of remote access to me burdens a fundamental right
under the U.S. Constitution. However, I will first endeavor to show
that this policy cannot even survive the minimal "rational basis"
standard of review.
As the court is well aware, when evaluating an equal protection
claim where no fundamental right is infringed and where the
claimant is not a member of a suspect (or quasi-suspect) class, the
legislation or policy challenged must only be rationally related to
a legitimate state interest. City of Cleburne, Tex. v. Cleburne
Living Center, 473 U.S. 432, 105 S.Ct. 3249 (1985). While an
equal protection challenge generally arises in the context of
statutory enactments, it applies equally to judicial action. E.g.
Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836; Virginia
v. Rives, 100 U.S. 313; Ex parte Virginia, 100 U.S.
As a pro se litigant, I am neither a member of a suspect nor
quasi-suspect class. Absent infringement of a fundamental right,
which I have yet to demonstrate in this brief, the Chief Justice's
unequal treatment of me is to be subjected only to a rational basis
This standard, however, is not a "toothless" one. Mathews v.
Lucas, 427 U.S. 495, 510, 96 S.Ct. 2755.
For example, in Tassian v. People, 731 P.2d 672
(Colo.1987) the petitioner challenged the state court Chief
Justice's directive prohibiting only pro se litigants from paying
filing fees by personal checks after the Colorado appellate court
had upheld the policy under a rational basis equal protection
review. The appeals court had previously ruled that:
"the lawyer/pro se litigant classification bears a rational
relationship to a legitimate governmental interest--that of
collecting the full fee required by statute for filing documents
with the court. If the court limits payment by check to those over
whom it has the most control and who, in its judgment, are less
likely to issue bad checks, i.e., lawyers, it will decrease the
risk of accepting bad checks and concomitantly lessen the
administrative burden inherent in attempts to collect such
Tassian v People, 696 P.2d 825 (Colo-App. 1984). The
Supreme Court of Colorado, however, found a constitutional flaw in
the directive. It ruled that there was:
the lack of a rational foundation for prohibiting pro
se litigants from paying the filing fee by personal check and
simultaneously not prohibiting a litigant represented by counsel
from paying the same filing fee by personal check. While we
acknowledge that the state's interest in collecting the full
statutory filing fee is certainly a legitimate one, we are
convinced beyond a reasonable doubt that, with respect to the
payment of a filing fee by personal check, the differences between
pro se litigants and litigants represented by attorneys are so
attenuated and illusory as to render the classification created by
the chief judge's directive arbitrary and irrational.
Tassian v. People, 731 P.2d 672, supra. The Court
further stated that:
When the rational basis standard has not been met, the
classification must be stricken even if the invalidation results in
an additional administrative inconvenience to the governmental
body. Administrative convenience, by itself, does not constitute a
valid basis for the imposition of disparate treatment upon persons
who, with respect to the activity in question, are basically in the
same position as others who are not singled out for different
treatment. E.g. Rinaldi v. Yeager, 384 U.S. 305, 36 S.Ct.
1497; Baxtrom v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760,
Unconstitutional discrimination between pro se and represented
litigants is not always prejudicial to the pro se litigant. In
Murphy v. Com'r of Dept. of Indus. Acc., 612 N.E. 2d 1149
(Mass. 1993), the Massachusetts Supreme Court, also applying a
rational basis standard, invalidated a provision of a law requiring
Workers' Compensation claimants who were represented by counsel to
submit a fee at the time of the appeal. No such fee was required of
pro se claimants.
The department of Industrial Accidents had argued that the
challenged classification merely "regulates economic activity" and
does not infringe upon a fundamental right. They further claimed
that imposing the fee only on claimants proceeding with the
assistance of counsel was rationally related to the State's
interest in deterring frivolous appeals, in defraying the cost of
the impartial medical examination, and in exempting pro se
claimants from the filing fee requirements.
The court could find no rational basis to conclude that imposing
an additional financial hurdle on claimants proceeding with the
assistance of counsel might deter frivolous appeals. Nor could the
court find a rational basis to conclude that only represented
claimants should be held responsible for the costs of the impartial
medical examination. Murphy, supra, at 1156.
Turning now to my situation, the Chief Justice argues that the
policy of denying access to pro se litigants "serves the valid
governmental interest of preserving limited computer resources to
allow attorneys with substantial business before the Superior Court
to coordinate their court schedules without burdening court
personnel." He argues that the extent of the burden on me is
minimal. And finally, he argues that "there is no reasonable
alternative for the Superior Court to achieve the same ends by less
While the Chief Justice claims that the system is only for use
by attorneys with "heavy caseloads" the Mass. Lawyers Weekly
article and the Court Administrator's affidavit suggest
In the Lawyer's Weekly article, Court Administrator James Klein
is quoted as saying, "we actually have tapped into the core of most
lawyers who are actually doing business in the Superior Court on a
volume basis." He is further quoted as saying, "What always
surprises me is the number of smaller law firms that are not
In fact, there is no requirement that an attorney have even one
case pending before the Superior Court in order to be accorded
access. And no controls are in place to ensure that the system is
used by its attorney subscribers for its stated purpose.
The Chief Justice claims that the system was designed "expressly
for the purpose of enabling attorneys with heavy caseloads to
synchronize, from their offices and without burdening the Court's
staff, their own appearance calendars with the Court's
However, according to the Lawyers Weekly article, "[the] main
function of the SCRIB system is to give practitioners access to
docketing information as if they were using the computer terminals
located at the courts."
Also, in his Affidavit, Mr. Klein indicates that in addition to
attorneys, many other people having business with the court are
permitted to dial into its computer. "These include approximately
seventy-two Superior Court judges as well as their law clerks
(seeking access to model jury instructions, research memos, the
latest appellate opinions, and other legal material); thirty
judicial secretaries (who maintain certain personnel records
on-line and also use the remote dial-up system to send drafts of
decisions to judges who may have moved to other sessions in other
locations); and legal publishers."
Since this lawsuit was filed, Mr. Klein has also acknowledged to
the media that remote access to the court's computer system is also
provided to reporters from various press outlets, including the
It appears that the only class of individual having business
with the court that is not permitted remote access is the pro se
The question here is whether, for the purpose of allowing remote
access, distinguishing between a pro se litigant and a litigant
represented by counsel furthers a legitimate state interest. The
artificial classification of attorneys and non-attorneys advanced
by the Chief Justice does not apply since it is the pro se litigant
with a case before the court who is burdened by the court's policy
in a manner requiring scrutiny under an equal protection claim.
That other classes who have no need of access are also excluded is
simply not relevant.
While a classification need not function perfectly in order to
be rational, "the state may not rely on a classification whose
relationship to an asserted goal is so attenuated as to render the
distinction arbitrary or irrational." Cleburne supra.
The fact is that when I need information about my case or other
cases, I call the court on the telephone. The clerks assist me by
looking up the information I need, be it the status of a motion,
the last paper filed by a party, the date and time of a hearing or
conference, or other information relevant to my case.
Since I contact the court frequently for information available
in Forecourt, permitting me remote access to the system would
significantly assist the court in achieving its stated goal of
reducing the burden on court personnel. Denying me remote access
works against the court's own purpose by forcing me to contact and
occupy the time of court personnel.
The fact that I also can find other uses for the system should
not disqualify me from the right of remote access to it any more
than attorneys who use the system for "marketing efforts" are
disqualified for that reason.
Since the actual result of the court's policy of denying remote
access to pro se litigants is to increase rather than decrease the
workload on court personnel, the policy is irrational and arbitrary
and, consequently, does not advance a legitimate state
The Chief Justice has characterized my Complaint as alleging a
violation of my First Amendment right of Access to the Courts. A
major portion of his argument then is devoted to demonstrating that
this right has not been violated. As I argued to the District
Court, when considering a Motion to Dismiss, it is not for the
defendant to refute the complaint or to present a different set of
allegations. Sanner v. Chicago Bd. of Trade, 62 F.3d 918
(7th Cir. 1995) (court must draw all reasonable inferences in
plaintiff's favor, and defendant cannot...attempt to refute the
complaint or to present a different set of allegations").
The right of access to the courts provides citizens with "a
reasonably adequate opportunity to present claimed violations of
fundamental constitutional rights to the courts." Bounds v.
Smith, 430 U.S. 817, 825 (1977).
I am not claiming a Bounds violation. In fact, I contend that
Bounds is wholly inapplicable to my situation.
My claim is that I have been placed before the court on an
unequal footing with my opponent, and that this, in itself, is
Most decisions relating to challenges to the right of access to
the courts concern prisoners contending that restrictions placed on
them by prison authorities have interfered with their ability to
access the court. Other challenges to the right of access have been
made by non-incarcerated litigants. For example, in Richard v.
Hinson, 70 F.3d 415 (5th Cir. 1995), the petitioner was denied
recovery of attorney fees and expenses under the Equal Access to
Justice Act because his net worth exceeded two million dollars. The
appeals court ruled that "petitioner was not denied access to
court; he is merely required to pay for that access. The actual
'right' petitioner seeks to enforce is reimbursement of attorney's
fees and expenses for which there is no constitutional basis." Id.
In Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993),
the court ruled that the right of access to courts is not burdened
by requiring a non-indigent plaintiff to pay filing fees; though
plaintiff complained fees were "too high," he was able to pay them.
And in Los Angeles Country Bar Association v. Eu, 979 F.2d
697, 706-707 (9th Cir. 1992), the court found that the right of
access to the courts is not impaired by a statute limiting the
number of judges and thus causing delays in civil cases; there was
no showing that delays led to inaccurate decisions, ineffective
relief, or deprivation of any litigant's opportunity to vindicate
The common thread in all of these cases is that what is involved
is access to the court, not unequal treatment of the parties, once
in court, in the conduct of their litigation.
In my case, however, I find that the state court is favoring my
opponent by offering to facilitate, for his counsel, the conduct of
the litigation through remote access to the court's computer
system. The court is not impartial if it makes (or offers to make)
litigation easier for one party in a dispute.
This is why, in my letter to the Chief Justice, I stated that
"people involved in adversarial proceedings must be offered access
on an equal basis with their opponents."
It is no more relevant whether my opponent's counsel takes
advantage of his right of remote access than is my opponent's
counsel's propensity to perform legal research relevant to my right
to perform research.
This Court of Appeals recognizes and respects this principle
when, in its rule concerning access to the court's library it
"The law library of this court shall be open to members of the
Bar, to the United States Attorneys of the Circuit and their
assistants, to other law officers of the government, and persons
having a case in this court..."
Is providing access to pro se litigants at the Appeals Court
Libraries simply a courtesy or is it a constitutional imperative? I
respectfully submit that the Court of Appeals' policy allowing
library access to any person with a "case in this court" reflects
its awareness of the need to treat parties before the court
equally. It is this equal treatment that is absent in the Chief
The Federal Judicial Conference, in creating the PACER system,
has ensured that access is available to all persons on an equal
basis. It is hard to imagine the fallout that would occur were
PACER suddenly to be made an "attorney-only" system, but it surely
wouldn't be a pretty sight. Nonetheless, using the Chief Justice's
rationale, such a change presumably would be perfectly fine if he
perceived it to facilitate the operation of his court.
Finally, the Chief Justice contends that "there is no evidence
that not giving [me] dial-up access to Forecourt in any way
prejudices [my] ability to prosecute [my] case. The other parties
in [my] case, and their attorneys, are not subscribers to Forecourt
and, therefore, stand with [me] on an equal footing before the
Implied in this statement is an acknowledgment by the Chief
Justice that, were my opponent's counsel a subscriber to Forecourt,
I would indeed not be on an equal footing before the Court. The
Chief Justice's logic, by extension, would further imply that if my
opponent chooses not to do legal research, it would, therefore, be
acceptable to deny me the right to perform research since we would
then be on an "equal footing" before the Court.
The Chief Justice simply misses the point. It is the equality of
opportunity that is lacking. Whether my opponent chooses to avail
himself of the services of the court is of no relevance to my right
to have the same opportunity to manage my case. Because of the
court's policy concerning remote access, that opportunity is being
denied me and that is the reason why I do not stand on an equal
footing with my opponent in state court.
The Right of Self-Representation
in a Civil Case is a Fundamental Right Under the U.S.
It is well known that defendants in a criminal case enjoy a
fundamental right of self-representation. Faretta v.
California, 422 U.S. 806, 95 S.Ct. 2525. However, the Supreme
Court has not ruled as to whether this right extends to litigants
in civil cases.
In Andrews v. Bechtel Power Corp., 780 F.2d 124, 137
(1st Cir. 1985), this Circuit has stated in dicta that there is no
constitutional right to self-representation in civil cases. And in
Eitel v. Holland, 787 F.2d 995,998 (5th Cir. 1986), the
Fifth Circuit considered and disposed of the question as
In Faretta v. California, the Supreme Court held that a criminal
defendant in state court has a federal constitutional right, under
the sixth and fourteenth amendments, to represent himself. This
does not, however, translate into a constitutional right to appear
pro se in a civil case. Thus, in O'Reilly v. New York Times
Co., 692 F.2d 863, 867 (2d Cir. 1982), the Second Circuit
noted that the right to self-representation in civil cases was
conferred by Section 35 of the Judiciary Act of 1789, "although not
enjoying the constitutional protection subsequently afforded to the
right of self-representation in criminal cases." More recently, in
Andrews v. Bechtel, the First Circuit stated, "there is no
constitutional right to self-representation in civil cases."
This conclusion is supported by dicta in the Faretta opinion,
for the Court there held that the right to represent oneself in a
criminal case is derived from the sixth amendment, which embodies
the personal right to make a defense to criminal charges. The sixth
amendment applies only in "criminal prosecutions," and it,
therefore, cannot be the source of the parallel right to
self-representation in civil cases.
Based on these authorities, we conclude that the right to
represent oneself in a civil case is not one of the fundamental
rights protected by the due process clauses of the Fourteenth
I respectfully submit that the fundamental right of
self-representation applies to all matters, civil as well as
criminal, and that the rationale used by the Supreme Court in
deciding Faretta leads us inexorably to that conclusion. In
addition, I will herein address the valid concern of the dissenters
in Faretta: if a constitutional right to self-representation exists
at all, why then is the right of self-representation granted by
statute rather than by explicit constitutional construction?
To begin with, unlike numerous state constitutions , the Sixth
Amendment does not explicitly confer any right of
self-representation in a criminal trial, merely a right to counsel.
In Faretta, note 15, the Supreme Court wrote:
The inference of rights is not, of course, a mechanical
exercise. In Singer v. United States, 380 U.S. 24, the
Court held that an accused has no right to a bench trial, despite
his capacity to waive his right to a jury trial. In so holding, the
Court stated that "[t]he ability to waive a constitutional right
does not ordinarily carry with it the right to insist upon the
opposite of that right." Id. at 34-35. But that statement was made
only after the Court had concluded that the constitution does not
affirmatively protect any right to be tried by a judge, and
concluded that these were "clear departures from the common law."
We follow the approach of Singer here. Our concern is with an
independent right of self-representation. We do not suggest that
this right arises mechanically from a defendant's power to waive
the right to the assistance of counsel. See supra, at 814-815. On
the contrary, the right must be independently found in the
structure and history of the constitutional text.
What the Court found in that history was a society where lawyers
were mistrusted and where self-representation was the norm:
The colonists brought with them an appreciation of the virtues
of self-reliance and a traditional distrust of lawyers. When the
Colonies were first settled, "the lawyer was synonymous with the
cringing Attorneys-General and Solicitors-General of the Crown and
the arbitrary Justices of the King's Court, all bent on the
conviction of those who opposed the King's prerogatives, and
twisting the law to secure convictions." This prejudice gained
strength in the Colonies where "distrust of lawyers became an
institution." Several Colonies prohibited pleading for hire in the
17th century. The prejudice persisted into the 18th century as "the
lower classes came to identify lawyers with the upper class." The
years of Revolution and Confederation saw an upsurge of antilawyer
sentiment, a "sudden revival, after the War of the Revolution, of
the old dislike and distrust of lawyers as a class." In the heat of
these sentiments the Constitution was forged.
Faretta, at 827 (citations omitted). The right of
self-representation in all matters was guaranteed, indeed assumed,
in many colonial charters and declarations of rights. It was the
right to counsel that needed to be granted. And where it was, the
engagement of paid counsel was sometimes forbidden. For example,
the Massachusetts Body of Liberties (1641) in Art. 26 provided:
"Every man that findeth himselfe unfit to plead his owne cause
in any Court shall have Libertie to imploy any man against whom the
Court doth not except, to helpe him, Provided he give him noe fee
or reward for his paines..."
The right to counsel was supplemental to the primary right of
self-representation. Again, in Faretta, the Court wrote:
The Founders believed that self-representation was a basic right
of a free people. Underlying this belief was not only the
anti-lawyer sentiment of the populace, but also the "natural law"
thinking that characterized the Revolution's spokesmen. See P.
Kauper, The Higher Law and the Rights of Man in a Revolutionary
Society, a Lecture in the American Enterprise Institute for Public
Policy Research Series on the American Revolution, Nov. 7, 1973,
extracted in 18 U. of Mich. Law School Law Quadrangle Notes, No. 2,
p.9 (1974). For example, Thomas Paine, arguing in support of the
1776 Pennsylvania Declaration of Rights, said:
"Either party...has a natural right to plead his own cause; this
right is consistent with safety, therefore it is retained; but the
parties may not be able,...therefore the civil right of pleading by
proxy, that is, by a council, is an appendage to the natural right
[of self-representation]...." Thomas Paine on a Bill of Rights,
1777, reprinted in 1 Schwartz 316.
Faretta, note 39. (emphasis supplied). The Supreme Court's
recognition of this basic or "natural law" right of
self-representation is what permits it to look at the Sixth
Amendment and to find therein, in addition to a right to counsel, a
fundamental right of self-representation. The Court's own words
make the connection:
An unwanted counsel "represents" the defendant only through a
tenuous and unacceptable legal fiction. Unless the accused has
acquiesced in such representation, the defense presented is not the
defense guaranteed him by the constitution, for, in a very real
sense, it is not his defense.
The Sixth Amendment, when naturally read, thus implies a right
Faretta, at 821 (emphasis supplied). Were the "natural law"
right of self-representation not to exist, under Singer, the Court
would have been compelled to find that no affirmative right to
self-representation exists in the Sixth Amendment since there is no
explicit wording creating it. The fundamental right to
self-representation is not "found" in the Sixth Amendment; it is
exposed under the Sixth Amendment. As with the right to travel, the
right to plead one's own cause need not be explicitly stated; it is
as natural as the right to breathe the air.
It is part of the fabric of the Constitution because it was part
of the fabric of the society that crafted the Constitution.
This right applies as much to civil litigants as to criminal
defendants. Surely, the civil litigant (especially, the civil
defendant) "will bear the personal consequences" of a defeat, and
therefore, "must be free personally to decide whether in his
particular case counsel is to his advantage." Were this not so,
then the historical foundation on which Faretta is built would
Which leads us to the pertinent question raised by the
dissenters in Faretta. If the right of self-representation is
fundamental, why then is it provided for in § 35 of the
Judiciary Act of 1789 yet omitted from the Sixth Amendment? Chief
Justice Burger wrote:
The text of the Sixth Amendment, which expressly provides only
for a right to counsel, was proposed the day after the Judiciary
Act was signed. It can hardly be suggested that the Members of the
Congress of 1789, then few in number, were unfamiliar with the
Amendment's carefully structured language, which had been under
discussion since the 1787 Constitutional Convention. And it would
be most remarkable to suggest, had the right to conduct one's own
defense been considered so critical as to require constitutional
protection, that it would have been left to implication. Rather,
under traditional canons of construction, inclusion of the right in
the Judiciary Act and its omission from the constitutional
amendment drafted at the same time by many of the same men,
supports the conclusion that the omission was intentional.
There is no way to reconcile the idea that the Sixth Amendment
impliedly guaranteed the right of an accused to conduct his own
defense with the contemporaneous action of the Congress in passing
a statute explicitly giving that right.
Faretta, Burger Dissent, at 844. There is, indeed, a way to
reconcile this apparent contradiction. But, it requires a paradigm
The reason Section 35 of the Judiciary Act of 1789 cannot be
reconciled to the implicit right of self-representation is because,
contrary to previous interpretation, Section 35 was not enacted to
grant a statutory right of self-representation at all. Instead,
Section 35 was enacted to grant a statutory right to counsel; it
made it clear that parties in Federal Court would have the right to
be represented. People already had the right to appear personally;
that was the norm. They didn't need the statute to accord them that
right. As Thomas Paine had expressed, "Either party...has a natural
right to plead his own cause." And further, "the civil right of
pleading by proxy, that is, by a council, is an appendage to the
natural right [of self-representation]...." Just as a statute
regulating some aspect of a fundamental right does not alter the
fundamental nature of that right, neither does the affirmation of
such a right in a statute alter its fundamental nature.
Had there been no Section 35, it would have been unclear as to
whether counsel could appear on behalf of parties, but certainly
not as to whether parties could appear on their own behalf.
With a statutory right to counsel in place, the Framers
determined that more than statutory protection was needed for the
criminal defendant's right to counsel. They created a
constitutional right to counsel in criminal prosecutions to
supplement the statute and to complement the implicit natural right
of self-representation, the same implicit right that the Court has
relied on in Faretta.
I concur with Justice Blackmun's contention that the "[Sixth]
Amendment's silence as to the right of self-representation
indicates that the Framers simply did not have the subject in mind
when they drafted the language." There was no reason to have it in
mind, as it was such an obvious and basic right. As the Court
wrote, "If anyone had thought that the Sixth Amendment, as drafted,
failed to protect the long-respected right of self-representation,
there would undoubtedly have been some debate or comment on the
issue. But there was none. In sum, there is no evidence that the
colonists and the Framers ever doubted the right to
self-representation, or imagined that this right might be
considered inferior to the right of assistance of counsel."
Faretta, at 832.
Thus, I respectfully submit that the right to
self-representation in all matters, civil and criminal, is a
fundamental right under our Constitution. As such, policies that
burden that right must be subjected to analysis under the doctrine
of strict scrutiny.
This District Court erred when it dismissed the Complaint. The
Chief Justice's directive barring pro se litigants from remotely
accessing the court's computer system is an arbitrary and
irrational policy that fails to advance a legitimate government
interest. Additionally, the policy burdens a fundamental right, the
right of self-representation.
The Complaint sufficiently states a cause of action, but if it
is deficient in any way, the District Court erred in not allowing
my Motion for Leave to Amend. Foman v. Davis, 371 U.S. 178
(leave to amend shall be given freely when justice so
Consequently, I respectfully request that this Court reverse the
ruling of the District Court and remand this case for further
proceedings, including the right to perform reasonable discovery. I
further request that this Court instruct the District Court to
consider a renewed Motion for Temporary Injunction so that, during
the pendancy of this case, I may be permitted to have remote access
to the Superior court's computer system.
Finally, as a pro se litigant, inexperienced in the art of
drafting pleadings, I would appreciate the opportunity to offer
oral argument in support of this brief.
- Respectfully submitted,
- Ross E. Mitchell, pro se
Dated and Filed: July 22, 1997
The items contained in this addendum also are included in the
appendix to the brief.
- Plaintiff's Motion for Interlocutory Injunction to Compel
Defendant to Grant to Plaintiff Dial-Up Access to Online Docket
System Pending Adjudication of This Case on the Merits
- Defendant's Motion to Dismiss Complaint
- Order of Dismissal
- Plaintiff's Motion for Reconsideration of Order Dismissing the
Complaint or, in the Alternative, for Leave to Amend the