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CITATIONS 120811
P A R T - II
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. RIGHTS - LICENSEE
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. RIGHTS - LICENSEE: Once licenses are issued, as in petitioner's case, their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. See Bell v. Burson, 402 U.S. 535 (1971) 402 U.S. 535. See also ); Goldberg v. Kelly, 397 U.S. 254 (1970); Sniadach v. Family Finance Corp., 395 U.S. 337 (1969).
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. RIGHTS - MALICIOUS INTENT
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. RIGHTS - MALICIOUS INTENT: Last Term in Wood v. Strickland, 420 U.S. 308 (1975), we held that school officials, in the context of imposing disciplinary penalties, were not liable so long as they could not reasonably have known that their action violated students' clearly established constitutional rights, and provided they did not act with malicious intention to cause constitutional or other injury. Imbler v. Pachtman, 424 U.S. 409 (1976) quoting Scheuer v. Rhodes, 416 U.S. 247 (1974), see also O'Connor v. Donaldson, 422 U.S. 563, 577 (1975).
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. RIGHTS - STRIPPING DOCTRINE
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. RIGHTS, STRIPPING DOCTRINE: In Ex Parte Young, 209 U.S. 123 (1908), the Supreme Court provided an important exception to the 11th Amendment sovereign immunity States enjoy: the Stripping Doctrine.
The Stripping Doctrine is a legal fiction which allows injunctive relief against what are essentially state actions. While the 11th Amendment immunizes States from actions by private parties, the Stripping Doctrine argues that when a state officer takes an unconstitutional action, she acts beyond the scope of her authority, as no State could have authorized her to act unconstitutionally. When acting outside such authority the officer was "stripped" of her official power and cannot invoke the State's immunity, although she remains subject to the consequences of her official conduct.
The doctrine is a legal fiction because the officer, in acting unconstitutionally, was outside her official duties, but the citizen can now sue her for injunctive relief in her official capacity. Unless a citizen can enjoin the action the officer took in her official capacity, no remedy could be provided for an otherwise unconstitutional action (as the State itself is immune from prosecution).
. RIGHTS, STRIPPING DOCTRINE, SUITS NAMING STATE OFFICERS: While actions brought by private parties cannot name States as defendants, they can name State officers as defendants. The Stripping Doctrine provides that since a State could not authorize its agent to act unconstitutionally, the agent was acting outside her authority and cannot invoke the State's sovereign immunity, even though they remain responsible for their official conduct.
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. ACTIONS NAMING STATES
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. ACTIONS NAMING STATE: Our federal government is one of enumerated powers, and those powers not given to it either by the Constitution or the by nature of federal sovereign power are retained by the states. As such, states are virtual quasi-sovereigns in our system. While tension exists between state and federal government due to the nature of our dual-sovereign system, the 11th amendment resolves a part of that conflict in favor of the states.
While the Framers disagreed on whether Article III abrogated state sovereignty, framers such as James Madison and Alexander Hamilton argued that states could not, in certain circumstances, be hailed into federal court. In the wake of Chisholm v. Georgia, 2 U.S (2 Dall.) 419, 1 L.Ed. 440 (1793), where the Supreme Court found it had jurisdiction over a State in an action brought by a non-citizen, the 11th amendment was enacted to prevent such future results.
Unless abrogated by an action brought under the 14th Amendment, the 11th Amendment provides these quasi-sovereigns with sovereign immunity: private parties cannot bring actions, in law or equity, against States without the State's consent.
. INJUNCTIVE RELIEF: The Supreme Court's decisions in Ex Parte Young, 209 U.S. 123 (1908), and Edelman v. Jordan, 415 U.S. 651 (1974), hold that federal courts may grant injunctions against unconstitutional actions taken by State officers. Since the officers were acting outside the scope of what a State could authorize them to do they were stripped of their power, and their official actions are as such void. Such relief is necessary to protect the Constitution's Supremacy Clause; otherwise, immune states could take unconstitutional actions with impunity, invalidating the supremacy of our Constitution.
. DAMAGES: The Supreme Court's decision in Edelman v. Jordan, 415 U.S. 651 (1974) held that when private parties sue State officers in their official capacity, federal courts could not award retroactive monetary relief (ie.money damages). Courts refuse to extend the legal fiction of the Stripping Doctrine to monetary relief since awarding damages would eliminate the constitutional immunity States have under the 11th Amendment. The damages would be coming from the coffers of the State Treasury. Injunctive relief against future conduct provides effective protection of the Supremacy Clause, and courts see money damages as prohibited by the 11th Amendment.
. FEDERAL QUESTION CLAIM: While the Supreme Court has recognized that states have a degree of sovereign immunity, the Court continues to uphold the supremacy of federal law. The Court has held that States cannot be sued in federal court even on federal question claims without their consent. But while the 11th Amendment may shield the state from suits in federal court, the amendment cannot bar review of state court judgments in a federal question context. The Supremacy Clause by its nature requires that the Supreme Court be capable of reviewing federal questions, and the 11th Amendment cannot immunize a state from such review.
. PENDANT STATE CLAIM: The Supreme Court held in Penhurst State School & Hospital v. Halderman, 456 U.S. 89, 104 S.Ct. 900, 79 L.Ed. 2d 67 (1984) that supplemental state claims that States have violated State law cannot be heard by federal courts. The basis for the Stripping Doctrine was that it was necessary to protect the supremacy of the Constitution. "A federal court's grant of relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate the supreme authority of federal law". The Court concluded that the Stripping Doctrine is inapplicable in an action against a state or a state officer based on state law; as such, states are immune from prosecution in federal court in such actions.
. RIGHTS, STRIPPING DOCTRINE, OFFICER NAMED IN INDIVIDUAL CAPACITY: While the Supreme Court has held that only injunctive relief can be awarded against a state officer sued in his official capacity, retroactive monetary relief can be granted against an officer sued in his individual capacity. Bringing an action against an officer in his individual capacity does not implicate state sovereignty.
. OFFICER NAMED IN OFFICIAL CAPACITY: The 11th Amendment grants states sovereign immunity, but the Stripping Doctrine allows State officers to be sued in their official capacities. When an officer acts unconstitutionally, he acts outside what a state could have authorized him to do, and has been "stripped" of his power.
To effectuate the Supremacy Clause, state officers can be sued in their official capacity over their official conduct (even though at the time stripped of their power), so long as the plaintiffs seek only injunctive relief. Where state officers are sued in their official capacities, federal courts cannot award monetary relief, since doing so would strip the states of their sovereign immunity (the money is coming from their treasuries).
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. EXPLICIT STATE WAIVER: While the 11th Amendment provides States with sovereign immunity to prosecution by private parties in federal courts, States can choose to waive their immunity. In certain circumstances such a waiver must be unequivocally expressed, while in others mere litigation waiver will suffice (ie.the State chooses to remove the action from a state court to a federal court).
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. EXPLICIT § 5 OVERIDE: The original Constitution allowed States to be hauled into federal courts by private parties. But that constitution was amended with the consensus of three-fourths of the states in 1798, when the 11th Amendment was adopted. The 11th Amendment specifically removed such authority from federal courts.
But the Constitution was amended again in 1868 to protect various civil rights, and § 5 of that Amendment granted Congress the power to enforce, by appropriate legislation, the provisions of that amendment. The courts have recognized that this new amendment, again a consensus of the people, abrogates the immunity provided by the 11th amendment. When Congress enacts legislation under the auspices of §5 of the 14th Amendment they can specifically abrogate 11th amendment immunity, and states can under such federal statutes be prosecuted in federal courts.
However, in Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985), the Supreme Court said that while Congress can use its 14th Amendment power to override a State's 11th Amendment protection, it must speak clearly. "General authorization for suit in a federal court is not the kind of unequivocal statutory language sufficient to abrogate the 11th Amendment. When Congress chooses to subject the states to federal jurisdiction it must do so specifically."
Note that those powers given to Congress in the original Constitution cannot be used to abrogate 11th Amendment immunity. The people chose to amend that Constitution to limit federal power, and, for example, Congress cannot use its power to regulate interstate commerce to abrogate 11th Amendment immunity, as that power was amended in 1798.
. PERMITTED: When an action brought by private parties names a state officer in her official capacity as a defendant, federal courts have the jurisdiction to hear it and grant injunctive relief. Courts permit such actions and such relief to protect the supremacy of the federal Constitution.
. BARRED: The 11th Amendment recognizes that states are quasi-sovereigns who possess a degree of sovereign immunity, and that they cannot be hauled into federal court by private parties. When an action names a State as a defendant, or seeks monetary relief from a State officer in her official capacity, federal courts are barred by the 11th Amendment from hearing such an action.
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. DEMURRER
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. DEMURRER: "In ruling on preliminary objections in the nature of a demurrer, this court must accept as true all well-pleaded facts and all inferences reasonably deducible therefrom." Eldride v. Vaughn et al No 1195 M.D. 1996
. DEMURRER: "In ruling on a preliminary objection in the nature of a demurrer, this Court must accept as true all well-pleaded facts and all inferences reasonably deducible therefrom." Hugie v. Horn et al No. 972 M.D. 1997; see also Stone and Edwards Insurance Agency v PADOI, 616 A.2d 1060 (Pa. Cmwlth. 1992)
. DEMURRER: "The question presented by a demurer is whether, on the facts averred, the law says with certainty that no recovery is possible." Hugie v. Horn et al No. 972 M.D. 1997; Jackson v. Garland, 622 A.2d 969 (P. Super. 1993)
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. DUE PROCESS
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. DUE PROCESS: "The duration of any potentially wrongful deprivation of a property interest is an important factor in assessing the impact of official action on the private interest involved." Telang v. PABPOA No. 1992 C.D. 1997 (Filed 1998)
. DUE PROCESS: "Due process is a flexible notion, and its requirements depend on the circumstances of each case; however, its essential requirements are notice and a meaningful opportunity to be heard." Telang v. PABPOA No. 1992 C.D. 1997 (Filed 1998); see also PADOT v. Clayton, 546, Pa. 342, 684 A.2d 1060 (1996)
. DUE PROCESS, ESSENTIAL ELEMENTS: "The essential elements of due process are notice and opportunity to be heard and to defend oneself in an orderly proceeding adapted to the nature of the case before a tribunal having jurisdiction over the matter." Starr v PA State Board of Medicine No. 3146 C.D. 1997; see also Soja v. PA State Police, 500 Pa. 188, 193, 455 A.2d 613, 615 (1989)
. DUE PROCESS: The United States Supreme Court has held that "an essential principle of due process is that a deprivation of life, liberty or property be preceded by notice and an opportunity for a hearing appropriate to the nature of the case." Eldride v. Vaughn et al No 1195 M.D. 1996
. DUE PROCESS: "We have described 'the root requirement' of the Due Process Clause as being 'that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.'" Eldride v. Vaughn et al No 1195 M.D. 1996
. DUE PROCESS: "This principal require 'some kind of a hearing' prior to the discharge of an employee who has a constitutionally protected property interest in his employment" Eldride v. Vaughn et al No 1195 M.D. 1996
. DUE PROCESS: "The constitutional minimum may be satisfied where the licensee has access to the material upon which the charge is based and the opportunity to respond to the charge ..." Eldride v. Vaughn et al No 1195 M.D. 1996
. DUE PROCESS: In Matthew's v. Eldgride, 424 U.S. at 335, the United States Supreme Court set forth three (3) factors to be considered when determining whether a particular procedure satisfies due process:
. [First] The United States Supreme Court has recognized the 'severity of depriving a person of the means of a livelihood." Brock v Roadway Express, 481 U.S. 252, 263 (1987)
. [Second] the risk of erroneous deprivation of such interest through the procedures used, and the probably value, if any, of additional substitute procedural safeguards;
. [Third] the government's interest, including the function involved, and the fiscal and administrative burdens that the additional or substitute procedural requirement will entail."
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. FORUM SELECTION
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. FORUM SELECTION: "The Okkerse court stated that the plaintiff should not be deprived of his original choice of forum." Cheeseman v. Lethal Exterminator Inc 701 A.2d 156 (1997)
" FORUM SELECTION: Unless the defendant clearly adduces facts that "either (1) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiff's convenience, or (2) make trial in the chosen forum inappropriate because of considerations affecting the court's own private and public interest factors [but] unless the balance is bly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Cheeseman v. Lethal Exterminator Inc 701 A.2d 156 (1997)
see PA Dulaney v. Consoliated Rail Corporation No. 4572 Philadelphia 1997
. FORUM SELECTION: "The standard of review in cases of forum non conveniens is abuse of discretion." Dulaney v. Consoliated Rail Corporation No. 4572 Philadelphia 1997
. FORMUM SELECTION: Pa RCP 1006(d)(1) "A petition to transfer venue should not be granted unless the defendant meets its burden of demonstrating, with detailed information on the record, that the plaintiff's chosen forum is oppressive or vexatious to the defendant." Dulaney v. Consoliated Rail Corporation No. 4572 Philadelphia 1997
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. IMMUNITY
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. IMMUNITY: "No man [or woman] in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government from the highest to the lowest, are creatures of the law, and are bound to obey it." Butz v. Economou, 98 S. Ct. 2894 (1978); United States v. Lee, 106 U.S. at 220, 1 S. Ct. at 261 (1882)
. IMMUNITY: The U.S. Supreme Court has stated that "no state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it". Cooper v. Aaron 358 U.S. 1, 78 S. Ct. 1401 (1958) See also Sawyer 124 U.S. 200 (188); U.S. v. Will 449 U.S. 200, 216, 101 S. Ct. 471, 66 L. Ed. 2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L. Ed 257 (1821).
. IMMUNITY: “The courts are not bound by an officer's interpretation of the law under which he presumes to act." Hoffsomer v. Hayes/, 92 Okla 32, 227 F. 417
. IMMUNITY: “The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity.” Mitchell v Forsyth, 472 U.S. 523(1985)
. IMMUNITY: In Harlow, the Court made clear that “a reasonably competent public official should know the law governing his conduct.” Harlow, 457 U.S. 819.
. IMMUNITY: Thus, “[p]rosecutors whose out-of-court acts cause injury only to the extent a case proceeds will be brought to heel adequately by the court,” 919 F2d at 1243-44.
. IMMUNITY: “It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies” Monroe v Pape, 365 U.S. 167, 81 S Ct 473, 480 (1960)
. IMMUNITY: Although the Court held that the City of Chicago was not liable on a respondeat superior theory [later expressly overturned in Monell et al v Dept Soc Serv City of New York, 436 U.S. 658 (1977)], the Court specifically held that the police officers were not entitled to immunity and instructed that suits brought with these civil rights claims : “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Pape, 365 U.S. 167, 81 S Ct 473, 484.
. IMMUNITY: In Howerton v Garcia, 708 F 2d 380 (9th Cir. 1983) the Federal Court of Appeals for the Ninth Circuit ruled that landlords who evicted a plaintiff without proper eviction procedures could make no legitimate claim to immunity: “...there is no good faith immunity under section 1983 for private parties who act under color of state law to deprive an individual of his or her constitutional rights” 708 F 2d 380, 381.
. IMMUNITY: Indeed, in Scheuer v Rhodes, 416 US 232 (1974) the Supreme Court turned aside arguments for immunity as it applied to governors.
. IMMUNITY: In Wood v Strickland, 420 US 308 (1975) the Supreme Court refused to give immunity to members of school boards,
. IMMUNITY: in Hazo v Geltz, 537 F2d 747 (3d Cir. 1976) the federal court insisted that court personnel performing many of their functions were entitled to only "good faith immunity".
. IMMUNITY: In recent years, the court has refused to expand the concept of immunity to prison directors, Procunier v Navarette, 434 US 555 (1978) and to cabinet officers as well as their principle subordinates Butz v Economou, 98 S.Ct. 2894 (1978).
. IMMUNITY: In Board of Educ. of A.A. Co. v. Barbano 45 Md App 27 [19 "No man in this country," this court has said, "is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the Government, from the highest to the lowest, are creatures of the law, and are bound to obey it." United States v. Lee 106 U.S. 196, 220.'. Burton v. United States 202 U.S. 344 [1906].
. IMMUNITY: As stated by the highest court in Maryland, "Where a limited tribunal goes beyond its jurisdiction, its decision amounts to nothing and does not create the necessity for an appeal." Mayor of Baltimore v. Porter 18 Md. 284:
. IMMUNITY: `As Mr. Justice Brandeis once observed: "Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipotent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious, If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means ... would bring terrible retribution. Against that pernicious doctrine, this Court should resolutely set its face." Miranda v. Arizona 384 U.S. 436 [1966], see also Olmstead v. United States, 277 U.S. 479 (1928)(dissenting opinion)
. IMMUNITY: Plaintiff sued under Section 1983 for $50 million in damages against state officials in their individual capacity for violation of due process. Not barred by the Eleventh Amendment by virtue of impracticability of expecting officials sued in their individual capacity, as opposed to the State, to pay $50 million in claimed damages. A state's voluntary decision to indemnify state officials sued in their individual capacity does not convert the case to one against the state. Huang v. Johnson 251 F. 3d 65 (2dCir.2001)
. IMMUNITY: Claims for negligence in the course of employment cannot be brought against state employees in federal court because Maryland would pay the judgment under state law. However, intentional torts and claims not arising from employment (sexual harassment) may be brought in federal court. Maidy v. Guerzon 2001 WL 830579 ((D. Md. July 23, 2001)
. IMMUNITY:
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. IMMUNITY WAIVED
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. IMMUNITY WAIVED: State waives 11th Amendment immunity by removing case to federal court. Sanders v. State of Utah 2001 WL 90914 (10th Cir. Aug. 13, 2001) (Unpublished Opinion)
. IMMUNITY WAIVED: Suit by Medicaid recipients under Medicaid statute for a portion of tobacco settlement money. The settlement agreement acknowledges the jurisdiction of the federal court, that the court retains jurisdiction to implement and enforce the agreement and the parties agree to present a any disputes under the settlement agreement to the federal district court. These provisions constitute a waiver of 11th Amendment immunity. Watson v. Texas 2001 WL 883533 (5th Cir. Aug. 7, 2001)
. IMMUNITY WAIVED: Removal from state to federal court by state of claims barred by the 11th Amendment is not waiver of 11th Amendment. Barred claims are dismissed without prejudice. Cuno v. DaimlerChrysler, Inc. 154 F. Supp.2d 1196 (N.D. Oh. 2001)
. IMMUNITY WAIVED: Waiver of Immunity: State constitutional provision that suits "may be brought against the State in such manner and in such courts as shall be directed by law" does not waive 11th Amendment immunity because no reference to suit in federal court. Demshki v. Monteith 255 F. 3d 986 (9th Cir. 2001)
. IMMUNITY WAIVED:
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. MANDAMUS
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. MANDAMUS: "Mandamus is based upon a duty by an agency to follow a law and is available only when, under a correct interpretation of that law, the agency has an absolute ministerial duty - NO CHOICE - to act in a certain way..." Eldride v. Vaughn et al No 1195 M.D. 1996
. MANDAMUS: "Mandamus is a relief sought to cure a statutory or extraordinary harm, which cannot be cured through any mechanism other than an order that the statute be followed or that extraordinary harm be corrected." Burns v. Uniontown Area School District (yyyy)?
. MANDAMUS: "Mandamus will lie only where the petitioning party demonstrates his clear right to relief, a correspondingly clear duty on the part of the party against whom mandamus is sought, and the want of any other adequate remedy." Hugie v. Horn et al No. 972 M.D. 1997; see also Francis v. Carleto, 418 Pa. 417, 211 A.2d 503 (1965)
. MANDAMUS: Mandamus is an action at law, which requires filing a complaint that sets forth the following:
.1. the plaintiff and all party defendants;
.2. the facts upon which the plaintiff relies for the relief sought;
.3. the act or duty the defendant is required to perform and the refusal to perform it;
.4. the interest of the plaintiff in the result;
.5. the damages if any;
.6. the want of any other adequate remedy at law;
Burns v. Board Dir. Uniontown Area School Dist. (No. 1250 C.D. 2000)
. MANDAMUS:
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. MISBEHAVIOR
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. MISBEHAVIOR - JUDICIAL: Any judge who does not comply with his oath to the Constitution of the United States wars against that Constitution and engages in acts in violation of the supreme law of the land. The judge is engaged in acts of treason.
. MISBEHAVIOR - JUDICIAL: "An abuse of discretion occurs when the judge misapplies the law or exercises his judgment in a manner that is manifestly unreasonable or the result of bias, prejudice or ill will." Dulaney v. Consoliated Rail Corporation No. 4572 Philadelphia 1997
. MISBEHAVIOR - NEGLIGENCE: "If he alleges gross negligence and can establish even ordinary negligence on the part of the hospital, then it is for the jury to decide." Albright v. Abington / 548 Pa. 268, 696 A.nd 1159
. MISBEHAVIOR -NEGLIGENCE: "... We hold that the legislature intended the term gross negligence to mean a form of negligence where the facts support substantially more than ordinary carelessness, inadvertence, laxity or indifference.. The behavior of the defendant must be flagrant, grossly deviating from the ordinary standard of care." Albright v. Abington / 548 Pa. 268, 696 A.nd 1159
. MISBEHAVIOR -NEGLIGENCE: "The Bloom Court stated whether an act or failure to act constitutes negligence, of any degree, when viewing all the evidence is a determination for the jury and may be decided as a matter of law ONLY when the case is entirely free from doubt, with no possibility that a reasonable jury could find negligence." Albright v. Abington / 548 Pa. 268, 696 A.nd 1159
. MISBEHAVIOR -NEGLIGENCE: "The definition of flagrant is extremely or deliberately conspicuous; notorious; shocking. The American Heritage Dictionary of the English Language (Second Printing 1969) Albright v. Abington / 548 Pa. 268, 696 A.nd 1159
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. PREEMPTIONS
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. STATE LAWS PREEMPTED: "State Law is preempted to the extent is actually conflicts with federal law. English v. General Electric, 496 U.S. 72 (1990)
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. PLEADINGS
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. PLEADINGS: "Additionally, the record is devoid of any reference to Petitioner as a dangerous offender and sexual predator, and, because this Court is required to accept all well pled allegations as true, we are compelled to address Petitioner's assertion on this issue." Hugie v. Horn et al No. 972 M.D. 1997
PA Myers v. Riedge et al 712 A.2d 791
. PLEADINGS: "The test is whether it is clear from all of the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his or her right to relief." Myers v. Riedge et al 712 A.2d 791; see also Firing v. Kephart, 466 Pa. 560, 563, 353 A.2d 833, 835 (1976)
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. RIGHTS - PROPERTY INTEREST
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. RIGHTS, PROPERTY INTEREST: "Once obtained, a (medical professional) has a property interest in his or her medical license." Eldride v. Vaughn et al No 1195 M.D. 1996
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. CONSTITUTIONAL VIOLATIONS
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. CONSTITUTIONAL VIOLATION: "In order to determine that a constitutional violation has occurred, this court must first determine whether a protected liberty
interest exists." Myers v. Riedge et al 712 A.2d 791; see also Wilder v. PADOC 673 A.2d 30 (Pa. Cmwlth. 1996)
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. POLICY STATEMENT
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. POLICY STATEMENT: "A general statement of policy, on the other hand, does not establish a 'binding norm' ... A policy statement announces the Agency's tentative intentions for the future. When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued." Starr v PA State Board of Medicine No. 3146 C.D. 1997; see also Pacific Gas & Electric Co v. Federal Power Commission, 506 F.2d 33, 38 (D.C. Cir 1974)
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. PRO SE (FOUND AT JUDICIAL IMMUNITY WEBSITE)
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. PRO SE: Pro se pleadings are to be considered without regard to technicality; pro se litigants' pleadings are not to be held to the same high standards of perfection as lawyers. Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); see also Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; see also Pucket v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA), 456 2nd 233; see also Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA); see also Conley v. Gibson (Justice Black); Haines v. Kerner, 404 U.S. 520 (1971)
. PRO SE: "Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end. Proper pleading is important, but its importance consists in its effectiveness as a means to accomplish the end of a just judgment." Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938)
. PRO SE: It was held that a pro se complaint requires a less stringent reading than one drafted by a lawyer. Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA); see also Conley v. Gibson and Justice Black.
. PRO SE: The plaintiff's civil rights pleading was 150 pages and described by a federal judge as "inept". Nevertheless, it was held "Where a plaintiff pleads pro se in a suit for protection of civil rights, the Court should endeavor to construe Plaintiff's Pleadings without regard to technicalities." Picking v. Pennsylvania Railway, 151 F.2d. 240, (3rd Cir.) (19___)
. PRO SE: "Due to sloth, inattention or desire to seize tactical advantage, lawyers have long engaged in dilatory practices... the glacial pace of much litigation breeds frustration with the Federal Courts and ultimately, disrespect for the law." Roadway Express v. Pipe, 447 U.S. 752 at 757 (1982)
. PRO SE: "There can be no sanction or penalty imposed upon one because of his exercise of Constitutional Rights." Sherar v. Cullen, 481 F. 2d 946 (1973)
. PRO SE: "The practice of law cannot be licensed by any state/State." Schware v. Board of Examiners, United State Reports 353 U.S. pages 238, 239. :
. PRO SE: "The practice of law is an occupation of common right." Sims v. Aherns, 271 SW 720 (1925)
. PRO SE: "... the right to file a lawsuit pro se is one of the most important rights under the constitution and laws." Elmore v. McCammon (1986) 640 F. Supp. 905
. PRO SE: Pro se petitioner who asserted complete ignorance of the law subsequently presented a brief that was manifestly written by a person with legal knowledge. Court held that a brief prepared in any substantial part by a member of the bar must be signed by that member. Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir. 1971)
. PRO SE: Plaintiff who consulted defendants' law firms regarding workers' compensation claim was not advised of potential for additional third party claim before statue of limitations expired. Defendants argued that plaintiff's representation was limited only to filing workers' compensation claim and no duty existed to advise plaintiff in any other matter. Court found that representation was not limited solely to workers compensation claim, and defendants should have advised plaintiff regarding third party claim. Nichols v. Keller, 19 Cal.Rptr.2d 601 (1993)
. PRO SE: Former sheriff department workers bring sexual harassment suit against county sheriff in his individual and official capacities. Attorney representing sheriff enters limited appearance on behalf of his official capacity. Court finds that attorney cannot enter limited appearance on behalf of sheriff's official capacity. Attorney representing sheriff must act for the entire person, including individual and official capacities. Entering such limited appearance is not competent and zealous representation as required by ethical rules as it leaves officer undefended on individual capacity claims. Court further finds that ghostwriting of documents for pro se litigants may subject lawyers to contempt of court. Ghostwriting gives litigants unfair advantage in that pro se pleadings are construed liberally and pro se litigants are granted greater latitude in hearings and trials. Ghostwriting also results in evasion of obligations imposed on attorneys by statute, code, and rule, and involves lawyers in
litigants' misrepresentation of pro se status in violation of ethical rules.
Johnson v. Board of County Comm'rs, 868 F.Supp. 1226 (D. Colo. 1994)
. PRO SE: Over a period of time, pro se plaintiffs submitted pleadings that had been written by attorneys pursuant to discrete-task representation contracts. The attorneys did not sign the pleadings, and in most cases did not appear as counsel of record. When ordered to show cause by the court as to why they should not be held in contempt of court, attorneys argued that the professional relationships created with the litigants ended once they had drafted the pleadings. Court held that there was insufficient evidence to show that the attorneys knowingly misled the court or intentionally violated ethical or procedural rules and declined to impose sanctions. However, court stated that the practice of ghostwriting pleadings without acknowledging authorship and without asking court approval to withdraw from representation was inconsistent with Fed. R. Civ. P. 11 and Rule 83.1(G) of the Local Rules for the United States District Court for the Eastern District of Virginia. Court stated that allowing attorneys to
ghostwrite pleadings for pro se plaintiffs abused additional leeway given
to pro se filings. Laremont-Lopez v. Southeastern Tidewater Opportunity Ctr., 968 F.Supp. 1075 (E.D. Va. 1997)
. PRO SE: Court finds that ghostwriting by attorney for a pro se litigant implicates an attorney's duty of candor to the court, interferes with the court's ability to supervise the litigation, and misrepresents the litigant's right to more liberal construction as a pro se litigant.
U.S. v. Eleven Vehicles, 966 F.Supp. 361 (E.D.Pa. 1997)
. PRO SE: In suit brought by pro se plaintiff, defendants sought order requiring plaintiff to disclose whether she was an attorney or received the assistance of a lawyer. In expressing legal and ethical concerns regarding the ghostwriting of pleadings by attorneys, the court held the defendants were entitled to the order. Wesley v. Don Stein Buick, Inc., 987 F.Supp. 884 (D.Kan. 1997)
. PRO SE: Attorney licensed in the State of California did not violate procedural, substantive, and professional rules of a federal court by lending some assistance to friends, family members, and others with whom she shared specialized knowledge. Attorney performed research and prepared rough drafts of portions of pro se litigant's pleadings in an action against various official defendants, but did not sign the documents. Because attorney did not gather and anonymously present legal arguments with the actual or constructive knowledge that plaintiff would use them in court, and because attorney did not engage in extensive, undisclosed participation that permitted plaintiff to falsely appear as being without professional assistance, attorney had not violated any rules. Ricotta v. California, 4 F.Supp.2d 961 (S.D. Cal. 1998)
. PRO SE: Paralegal who helped a business draft and file bankruptcy papers was found to be engaged in the unauthorized practice of law. Court notes that if an attorney acted in the same manner as paralegal, that person would be guilty of "ghost writing," which is described as the act of undisclosed attorney who assists a self-represented litigant by drafting his or her pleadings as part of "unbundled" or limited legal services. Court also notes that ghostwriting violates court rules, particularly Fed.R.Civ.P. 11, as well as ABA Standing Committee Opinion 1414 in Ethics and Professional Responsibility. Ostrovsky v. Monroe (In re Ellingson), 230 B.R. 426 (Bankr.D.Mont. 1999)
. PRO SE: Defendant was an attorney hired by plaintiff in the midst of plaintiff’s bankruptcy proceedings. The plaintiff had already obtained counsel of record, and hired defendant solely for the purpose of securing an accounting in the bankruptcy proceeding. The defendant alerted plaintiff of limited scope of his representation, advising plaintiff that problems may arise outside the scope of his representation. Plaintiff commenced a legal malpractice suit against his attorney of record stating negligence, and included the defendant in the claim. The court found that since the defendant distinctly limited the scope of his representation and urged the plaintiff to hire separate counsel for other matters, the defendant had no legal duty to investigate or advise plaintiff on existence of malpractice by attorney of record. Jones v. Bresset, 2000 W: 3311607 (47 Pa. D. & C 4th 60)
. PRO SE: Respondent argues that the Petition should be stricken pursuant to Fed.R.Civ.P. 11 because, although allegedly filed pro se, petitioner clearly received substantial assistance from counsel in the preparation and filing of the Petition. Court finds that if a pleading is prepared in any substantial part by a member of the bar, it must be signed by that attorney to avoid misrepresentation. Ostevoll v. Ostevoll, 2000 WL 1611123 (S.D. Ohio)
. PRO SE: In a lawsuit, plaintiff’s counsel of record requested that another firm make a "special appearance" at a summary judgment motion, appearing on behalf of counsel of record. Plaintiff filed a legal malpractice suit after a summary judgment was entered against her, arguing that the special appearance created an attorney-client relationship. The appellate court found that an attorney making a special appearance represents the client’s interests and has a professional attorney-client relationship with the client. Further, the voluntary appearance created a limited representation status and not a true "special appearance". Streit v. Covington & Crowe, 82 Cal.App. 4th 441 (2000)
. PRO SE: Appellants brought legal malpractice suit against local attorney retained by Ohio lawyer in products liability case. Appellants claimed that West Virginia lawyer who acted as local counsel was liable for malpractice of Ohio lawyer. Court found that, while it was difficult to clearly define the role of local counsel according to West Virginia rules, the local attorney had effectively entered a limited representation agreement and was therefore not responsible for all aspects of the case or for the Ohio lawyer’s conduct. Armor v. Lantz, 207 W. VA 672, 535 S.E.2d 737 (2000)
. PRO SE: Lawyer participated in ghostwriting appellate brief for a pro se litigant. Court holds that participation by an attorney in drafting otherwise pro se appellate brief is per se substantial legal assistance, and must be acknowledged by signature. An attorney must refuse to provide ghostwriting assistance unless purported pro se client specifically commits to disclose attorney's assistance to the court upon filing. Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001)
. PRO SE: Attorney, with matrimonial client's consent after consultation, limited the scope of his representation to a review of the terms of a mediated agreement without going outside its four corners. Court holds that it is not a breach of the standard of care for an attorney under a signed precisely drafted consent agreement to limit the scope of representation to not perform such services in the course of representing a matrimonial client that he or she might otherwise perform absent such a consent. Lynne v. Laufer, No. A-2079-01T2, (N.J. Super. App. Div. Apr. 8, 2003)
. PRO SE: Defendant retained an attorney on a limited basis, following an action filed by the plaintiff to recover costs on a defaulted loan. Limited representation attorney agreed to file responsive pleadings and negotiate a settlement agreement, and filed a notice of limited appearance. While the defendant received notice of a scheduled hearing and forwarded it to his limited representation attorney, neither defendant nor attorney appeared at the hearing and, consequently, an arbitration award was entered for the plaintiff. Defendant filed a motion to set aside judgment, which was denied. On appeal, the defendant claimed the limited representation attorney’s failure to appear at the hearing amounted to excusable neglect and that the judgment should be set aside. The court found that since the defendant received notice of the hearing and had retained the attorney on a limited basis, that the limited representation attorney’s conduct did not constitute excusable neglect. The lower court decision was affirmed.
Melvin Finance, Inc. v. Artis, 157 N.C. App. 716, 2003 WL 21153426 (N.C.
App.)
. PRO SE: Complainant and respondent were co-tenants of real estate property. The respondent appeared pro se during a hearing before the commissioner in chancery, but then hired an attorney who appeared in a limited capacity at several other hearings. On appeal, the court sought to determine whether or not the attorney could appear in a limited capacity and whether the attorney’s appearance qualified him as official "attorney of record". The court found that it was not bound by agreements made between client and attorney and that a court may "require more of an attorney than mere compliance with the ethical constraints of the Rules of Professional Conduct". The court found that the attorney could make a motion to withdraw once he completed the tasks agreed upon, but that the court had ultimate discretion in granting the withdrawal. Sharp v. Sharp, 2006 WL 3088067 (Va.Cir.Court)
. PRO SE: In a dispute over a bank card balance, cardholders chose to represent themselves after card issuer filed suit. The self-represented litigants mailed a response to court but then failed to appear at the hearing, which prompted the court to grant a default judgment to the card issuer. During the appeals process, the self represented filed papers not known within the jurisdiction. When the case reached the appellate court, the Court found that it did not have subject matter jurisdiction because the self represented litigants failed to file a court recognized notice. The court found that while it appreciated the difficulties encountered by self-represented litigants, it could not "abdicate its role as an impartial, neutral arbiter and become an advocate for the self-represented litigant". Discover Bank v. McCullough, 2008 W: 248975 (Tenn. Ct. App.)
. PRO SE: In a legal dispute that surfaced over an alleged invasion of personal property, the plaintiff resided in North Carolina and the defendant resided in California. The defendant filed papers with the assistance of a California attorney but, on record, represented herself. The plaintiff sought recourse, arguing that assistance from counsel amounted to the unauthorized practice of law since the attorney was not licensed in North Carolina. As the Rules of Professional Conduct do not require an attorney who has provided drafting assistance to make an appearance as counsel of record, the court found that it had no authority to sanction the California attorney. It did, however, require that the defendant file an affidavit that she intended to proceed pro se and not seek legal assistance unless the attorney is licensed to practice in North Carolina. Burgess v. Vitola, 2008 WL 821539 (N.C.Super.)
. PRO SE: Attorney was hired by appellant to handle a legal malpractice claim. The attorney was referred by appellant’s general counsel, to act in a in a matter concerning the handling of an environmental report in a real estate transaction several years prior. A settlement was reached in the matter and around the same time, general counsel was replaced. Following a dispute regarding unpaid legal fees, appellants were sued by former general counsel. Appellants responded with a separate suit, alleging counsel had committed malpractice. They implicated the limited representation attorney, suggesting the attorney had an obligation to advise them of issues surrounding claims of general counsel’s malpractice. The court found that representation by attorney was expressly limited to the original malpractice claim, and that no requirement existed for client consultation before limited the scope of representation. The attorney had no duty to investigate actions of general counsel.
Future Lawn, Inc v. Steinberg, 2008 Ohio 4127
. PRO SE: Pro se pleadings are to be considered without regard to technicality; pro se litigants' pleadings are not to be held to the same high standards of perfection as lawyers. Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); see also Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; see also Pucket v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA), 456 2nd 233; see also Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA); see also Conley v. Gibson (Justice Black); Haines v. Kerner, 404 U.S. 520 (1971)
. PRO SE: "Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end. Proper pleading is important, but its importance consists in its effectiveness as a means to accomplish the end of a just judgment." Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938)
. PRO SE: It was held that a pro se complaint requires a less stringent reading than one drafted by a lawyer. Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA); see also Conley v. Gibson and Justice Black.
. PRO SE: The plaintiff's civil rights pleading was 150 pages and described by a federal judge as "inept". Nevertheless, it was held "Where a plaintiff pleads pro se in a suit for protection of civil rights, the Court should endeavor to construe Plaintiff's Pleadings without regard to technicalities." Picking v. Pennsylvania Railway, 151 F.2d. 240, (3rd Cir.) (19___)
. PRO SE: "Due to sloth, inattention or desire to seize tactical advantage, lawyers have long engaged in dilatory practices... the glacial pace of much litigation breeds frustration with the Federal Courts and ultimately, disrespect for the law." Roadway Express v. Pipe, 447 U.S. 752 at 757 (1982)
. PRO SE: "There can be no sanction or penalty imposed upon one because of his exercise of Constitutional Rights." Sherar v. Cullen, 481 F. 2d 946 (1973)
. PRO SE: "The practice of law cannot be licensed by any state/State." Schware v. Board of Examiners, United State Reports 353 U.S. pages 238, 239. :
. PRO SE: "The practice of law is an occupation of common right." Sims v. Aherns, 271 SW 720 (1925)
. PRO SE: "... the right to file a lawsuit pro se is one of the most important rights under the constitution and laws." Elmore v. McCammon (1986) 640 F. Supp. 905
. PRO SE: Pro se petitioner who asserted complete ignorance of the law subsequently presented a brief that was manifestly written by a person with legal knowledge. Court held that a brief prepared in any substantial part by a member of the bar must be signed by that member. Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir. 1971)
. PRO SE: Plaintiff who consulted defendants' law firms regarding workers' compensation claim was not advised of potential for additional third party claim before statue of limitations expired. Defendants argued that plaintiff's representation was limited only to filing workers' compensation claim and no duty existed to advise plaintiff in any other matter. Court found that representation was not limited solely to workers compensation claim, and defendants should have advised plaintiff regarding third party claim. Nichols v. Keller, 19 Cal.Rptr.2d 601 (1993)
. PRO SE: Former sheriff department workers bring sexual harassment suit against county sheriff in his individual and official capacities. Attorney representing sheriff enters limited appearance on behalf of his official capacity. Court finds that attorney cannot enter limited appearance on behalf of sheriff's official capacity. Attorney representing sheriff must act for the entire person, including individual and official capacities. Entering such limited appearance is not competent and zealous representation as required by ethical rules as it leaves officer undefended on individual capacity claims. Court further finds that ghostwriting of documents for pro se litigants may subject lawyers to contempt of court. Ghostwriting gives litigants unfair advantage in that pro se pleadings are construed liberally and pro se litigants are granted greater latitude in hearings and trials. Ghostwriting also results in evasion of obligations imposed on attorneys by statute, code, and rule, and involves lawyers in
litigants' misrepresentation of pro se status in violation of ethical rules.
Johnson v. Board of County Comm'rs, 868 F.Supp. 1226 (D. Colo. 1994)
. PRO SE: Over a period of time, pro se plaintiffs submitted pleadings that had been written by attorneys pursuant to discrete-task representation contracts. The attorneys did not sign the pleadings, and in most cases did not appear as counsel of record. When ordered to show cause by the court as to why they should not be held in contempt of court, attorneys argued that the professional relationships created with the litigants ended once they had drafted the pleadings. Court held that there was insufficient evidence to show that the attorneys knowingly misled the court or intentionally violated ethical or procedural rules and declined to impose sanctions. However, court stated that the practice of ghostwriting pleadings without acknowledging authorship and without asking court approval to withdraw from representation was inconsistent with Fed. R. Civ. P. 11 and Rule 83.1(G) of the Local Rules for the United States District Court for the Eastern District of Virginia. Court stated that allowing attorneys to
ghostwrite pleadings for pro se plaintiffs abused additional leeway given
to pro se
filings. Laremont-Lopez v. Southeastern Tidewater Opportunity Ctr., 968 F.Supp. 1075 (E.D. Va. 1997)
. PRO SE: Court finds that ghostwriting by attorney for a pro se litigant implicates an attorney's duty of candor to the court, interferes with the court's ability to supervise the litigation, and misrepresents the litigant's right to more liberal construction as a pro se litigant.
U.S. v. Eleven Vehicles, 966 F.Supp. 361 (E.D.Pa. 1997)
. PRO SE: In suit brought by pro se plaintiff, defendants sought order requiring plaintiff to disclose whether she was an attorney or received the assistance of a lawyer. In expressing legal and ethical concerns regarding the ghostwriting of pleadings by attorneys, the court held the defendants were entitled to the order. Wesley v. Don Stein Buick, Inc., 987 F.Supp. 884 (D.Kan. 1997)
. PRO SE: Attorney licensed in the State of California did not violate procedural, substantive, and professional rules of a federal court by lending some assistance to friends, family members, and others with whom she shared specialized knowledge. Attorney performed research and prepared rough drafts of portions of pro se litigant's pleadings in an action against various official defendants, but did not sign the documents. Because attorney did not gather and anonymously present legal arguments with the actual or constructive knowledge that plaintiff would use them in court, and because attorney did not engage in extensive, undisclosed participation that permitted plaintiff to falsely appear as being without professional assistance, attorney had not violated any rules. Ricotta v. California, 4 F.Supp.2d 961 (S.D. Cal. 1998)
. PRO SE: Paralegal who helped a business draft and file bankruptcy papers was found to be engaged in the unauthorized practice of law. Court notes that if an attorney acted in the same manner as paralegal, that person would be guilty of "ghost writing," which is described as the act of undisclosed attorney who assists a self-represented litigant by drafting his or her pleadings as part of "unbundled" or limited legal services. Court also notes that ghostwriting violates court rules, particularly Fed.R.Civ.P. 11, as well as ABA Standing Committee Opinion 1414 in Ethics and Professional Responsibility. Ostrovsky v. Monroe (In re Ellingson), 230 B.R. 426 (Bankr.D.Mont. 1999)
. PRO SE: Defendant was an attorney hired by plaintiff in the midst of plaintiff’s bankruptcy proceedings. The plaintiff had already obtained counsel of record, and hired defendant solely for the purpose of securing an accounting in the bankruptcy proceeding. The defendant alerted plaintiff of limited scope of his representation, advising plaintiff that problems may arise outside the scope of his representation. Plaintiff commenced a legal malpractice suit against his attorney of record stating negligence, and included the defendant in the claim. The court found that since the defendant distinctly limited the scope of his representation and urged the plaintiff to hire separate counsel for other matters, the defendant had no legal duty to investigate or advise plaintiff on existence of malpractice by attorney of record. Jones v. Bresset, 2000 W: 3311607 (47 Pa. D. & C 4th 60)
. PRO SE: Respondent argues that the Petition should be stricken pursuant to Fed.R.Civ.P. 11 because, although allegedly filed pro se, petitioner clearly received substantial assistance from counsel in the preparation and filing of the Petition. Court finds that if a pleading is prepared in any substantial part by a member of the bar, it must be signed by that attorney to avoid misrepresentation. Ostevoll v. Ostevoll, 2000 WL 1611123 (S.D. Ohio)
. PRO SE: In a lawsuit, plaintiff’s counsel of record requested that another firm make a "special appearance" at a summary judgment motion, appearing on behalf of counsel of record. Plaintiff filed a legal malpractice suit after a summary judgment was entered against her, arguing that the special appearance created an attorney-client relationship. The appellate court found that an attorney making a special appearance represents the client’s interests and has a professional attorney-client relationship with the client. Further, the voluntary appearance created a limited representation status and not a true "special appearance". Streit v. Covington & Crowe, 82 Cal.App. 4th 441 (2000)
. PRO SE: Appellants brought legal malpractice suit against local attorney retained by Ohio lawyer in products liability case. Appellants claimed that West Virginia lawyer who acted as local counsel was liable for malpractice of Ohio lawyer. Court found that, while it was difficult to clearly define the role of local counsel according to West Virginia rules, the local attorney had effectively entered a limited representation agreement and was therefore not responsible for all aspects of the case or for the Ohio lawyer’s conduct. Armor v. Lantz, 207 W. VA 672, 535 S.E.2d 737 (2000)
. PRO SE: Lawyer participated in ghostwriting appellate brief for a pro se litigant. Court holds that participation by an attorney in drafting otherwise pro se appellate brief is per se substantial legal assistance, and must be acknowledged by signature. An attorney must refuse to provide ghostwriting assistance unless purported pro se client specifically commits to disclose attorney's assistance to the court upon filing. Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001)
. PRO SE: Attorney, with matrimonial client's consent after consultation, limited the scope of his representation to a review of the terms of a mediated agreement without going outside its four corners. Court holds that it is not a breach of the standard of care for an attorney under a signed precisely drafted consent agreement to limit the scope of representation to not perform such services in the course of representing a matrimonial client that he or she might otherwise perform absent such a consent. Lynne v. Laufer, No. A-2079-01T2, (N.J. Super. App. Div. Apr. 8, 2003)
. PRO SE: Defendant retained an attorney on a limited basis, following an action filed by the plaintiff to recover costs on a defaulted loan. Limited representation attorney agreed to file responsive pleadings and negotiate a settlement agreement, and filed a notice of limited appearance. While the defendant received notice of a scheduled hearing and forwarded it to his limited representation attorney, neither defendant nor attorney appeared at the hearing and, consequently, an arbitration award was entered for the plaintiff. Defendant filed a motion to set aside judgment, which was denied. On appeal, the defendant claimed the limited representation attorney’s failure to appear at the hearing amounted to excusable neglect and that the judgment should be set aside. The court found that since the defendant received notice of the hearing and had retained the attorney on a limited basis, that the limited representation attorney’s conduct did not constitute excusable neglect. The lower court decision was affirmed.
Melvin Finance, Inc. v. Artis, 157 N.C. App. 716, 2003 WL 21153426 (N.C.
App.)
. PRO SE: Complainant and respondent were co-tenants of real estate property. The respondent appeared pro se during a hearing before the commissioner in chancery, but then hired an attorney who appeared in a limited capacity at several other hearings. On appeal, the court sought to determine whether or not the attorney could appear in a limited capacity and whether the attorney’s appearance qualified him as official "attorney of record". The court found that it was not bound by agreements made between client and attorney and that a court may "require more of an attorney than mere compliance with the ethical constraints of the Rules of Professional Conduct". The court found that the attorney could make a motion to withdraw once he completed the tasks agreed upon, but that the court had ultimate discretion in granting the withdrawal. Sharp v. Sharp, 2006 WL 3088067 (Va.Cir.Court)
. PRO SE: In a dispute over a bank card balance, cardholders chose to represent themselves after card issuer filed suit. The self-represented litigants mailed a response to court but then failed to appear at the hearing, which prompted the court to grant a default judgment to the card issuer. During the appeals process, the self represented filed papers not known within the jurisdiction. When the case reached the appellate court, the Court found that it did not have subject matter jurisdiction because the self represented litigants failed to file a court recognized notice. The court found that while it appreciated the difficulties encountered by self-represented litigants, it could not "abdicate its role as an impartial, neutral arbiter and become an advocate for the self-represented litigant". Discover Bank v. McCullough, 2008 W: 248975 (Tenn. Ct. App.)
. PRO SE: In a legal dispute that surfaced over an alleged invasion of personal property, the plaintiff resided in North Carolina and the defendant resided in California. The defendant filed papers with the assistance of a California attorney but, on record, represented herself. The plaintiff sought recourse, arguing that assistance from counsel amounted to the unauthorized practice of law since the attorney was not licensed in North Carolina. As the Rules of Professional Conduct do not require an attorney who has provided drafting assistance to make an appearance as counsel of record, the court found that it had no authority to sanction the California attorney. It did, however, require that the defendant file an affidavit that she intended to proceed pro se and not seek legal assistance unless the attorney is licensed to practice in North Carolina. Burgess v. Vitola, 2008 WL 821539 (N.C.Super.)
. PRO SE: Attorney was hired by appellant to handle a legal malpractice claim. The attorney was referred by appellant’s general counsel, to act in a in a matter concerning the handling of an environmental report in a real estate transaction several years prior. A settlement was reached in the matter and around the same time, general counsel was replaced. Following a dispute regarding unpaid legal fees, appellants were sued by former general counsel. Appellants responded with a separate suit, alleging counsel had committed malpractice. They implicated the limited representation attorney, suggesting the attorney had an obligation to advise them of issues surrounding claims of general counsel’s malpractice. The court found that representation by attorney was expressly limited to the original malpractice claim, and that no requirement existed for client consultation before limited the scope of representation. The attorney had no duty to investigate actions of general counsel.
Future Lawn, Inc v. Steinberg, 2008 Ohio 4127
. PRO SE: In regards to compliance with evidentiary rules, per se, one supreme court has commended a trial judge for his conduct in "relax[ing] the rules of evidence and mak[ing] a special effort to facilitate the [pro se] plaintiff’s presentation of his case." Austin v. Ellis, 119 N.H. 741, 743 (1979). The court in Austin followed a recommendation of an ABA committee in declining to set any firm parameters regarding how far a judge should go to assist a pro se litigant:
. PRO SE: The court is confronted by an especially difficult task when one of the litigants chooses to represent himself. The court’s essential function to serve as an impartial referee comes into direct conflict with the concomitant necessity that the pro se litigant’s case be fully and completely presented.
. PRO SE: The proper scope of the court’s responsibility [to a pro se litigant] is necessarily an expression of careful exercise of judicial discretion and cannot be fully described by a specific formula [citing ABA Standards, Comm. On Standards of Judicial Administration, Sec. 2.23, at 45-47 (1976)]
. PRO SE: For example, the court may substitute the appropriate statute for an omitted or incorrect statute if the facts arguably support a claim under the law. Foster v. Murphy 686 F.Supp.471,474 (1988); O'Connor v. United States (1987) 669 F. Supp. 317,324.
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. RIGHT TO KNOW
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. RIGHT TO KNOW: "The Right to Know Law does NOT bar a party in a civil action from discovering relevant information from the files of a government agency." Starr v PA State Board of Medicine No. 3146 C.D. 1997; see also Kauffman, 605 A.2d at 1243
. RIGHT TO KNOW: Section 1 defines "public record" as ... [a[ny account, voucher or contract dealing with the receipt or disbursement of funds by an agency or its acquisition, use or disposal or services or of supplies, materials, equipment or other property and any minute, order or decision by an agency fixing the personal property rights, privileges, immunities, duties or obligations of any person or group of persons: Provided, that the term "public records" shall not men any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties ... ; it shall not include any record, document, material, exhibit, pleading, report, memorandum or other paper, access to or the publication of which is prohibited, restricted or forbidden by statute law or order or decree of Court, or which would operate to the prejudice or impairment of person's reputation or personal security ..."
Starr v PA State Board of Medicine No. 3146 C.D. 1997
. RIGHT TO KNOW: "The right to know law provides that every public record of an agency shall be open to examination and inspection by any citizen of the Commonwealth." Starr v PA State Board of Medicine No. 3146 C.D. 1997
. RIGHT TO KNOW: "in Hendrickson v. State Board of Medicine, 529 A.2d 78 (Pa. Cmwlth. 1987), we recognized that we would modify a Board's order if the penalty was unduly harsh." Starr v PA State Board of Medicine No. 3146 C.D. 1997
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. OFFICIAL RECORDS
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. OFFICIAL RECORDS: "Official records as certified by the legal custodian of the records do not constitute inadmissible hearsay." Telang v. PABPOA No. 1992 C.D. 1997 (Filed 1998); see also Commonwealth v. Smith 563 A.2d 905 (Pa. Super. 1989) af'd, 528 Pa. 380, 598 A.2d 268 (1991)
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. RIGHTS, PROPERTY, LICENSE
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. RIGHTS, PROPERTY, LICENSE: Has or is Plaintiff "Acting in such manner as to present an immediate and clear danger to pubic health or safety."? Starr v PA State Board of Medicine No. 3146 C.D. 1997
. RIGHTS, PROPERTY, LICENSE: PA BPOA argues that notice and an opportunity to be hard are required ONLY when the Board takes an action against a licensee. It concedes that the act of suspending or revoking a license infringes upon a legitimate protected property right thereby requiring notice and a hearing." Wolfe v. PA State Board of Osteopathic Medicine No. 1248 C.D. 1999; see also Lee v. PAREV Bureau of State Lotteries, 492 a.2D 451 (Pa. Cmwlth. 1985)
. RIGHTS, PROPERTY, LICENSE: It (PA BPOA) contends however, that the root requirement of due process requires ONLY that an individual be given an opportunity for a hearing before he is deprived of any significant property interest." Wolfe v. PA State Board of Osteopathic Medicine No. 1248 C.D. 1999; see also Firman v. PADOS, State Board of Medicine, 697 A.2d 291 (Pa. Cmwlth. 1997)
. RIGHTS, PROPERTY, LICENSE: "Unless a legitimate property interest is infringed, the lack of notice and a hearing are of no constitutional moment." Wolfe v. PA State Board of Osteopathic Medicine No. 1248 C.D. 1999
. RIGHTS, PROPERTY, LICENSE: BPOA argues that, since the constitutional obligation to serve notice and hold a hearing is only triggered by the taking of an action which results in the infringement of a legitimate, protected right the Board was not required to hold a hearing ..." Wolfe v. PA State Board of Osteopathic Medicine No. 1248 C.D. 1999
. RIGHTS, PROPERTY, LICENSE: "We do not base our determination on BPOA's argument that a holding by this Court requiring a hearing would open the floodgates to numerous requests an unduly burden the Board's resources. Wolfe v. PA State Board of Osteopathic Medicine No. 1248 C.D. 1999
. RIGHTS, PROPERTY, LICENSE: If we determined that the Board had to afford hearings in cases such as the one at bar, the Board would have to comply. Wolfe v. PA State Board of Osteopathic Medicine No. 1248 C.D. 1999
. RIGHTS, PROPERTY, LICENSE: Due process is never cheap and the finances involved in affording it should not be considered. Process is either due or it is not." Wolfe v. PA State Board of Osteopathic Medicine No. 1248 C.D. 1999
. RIGHTS, CONSTITUTIONAL: "Constitutional 'rights' would be of little value if they could be indirectly denied." Gomillion v. Lightfoot/, 364 U.S. 155 (1966) See also Smith v. Allwright, 321 U.S. 644
. RIGHTS, CONSTITUTIONAL: "An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed." Norton v. Shelby County, 118 U.S. 425 p. 442
. RIGHTS, INJUNCTION: First, it is a bedrock principle[] of equity that [o]ne does not have to await the consummation of threatened injury to obtain preventive relief. Mosley v. Secret Catalogue, Inc. et al., No. 01-1015 USSC (2002) Farmer v. Brennan, 511 U.S. 825, 845 (1994) (quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923)).
. RIGHTS, INJUNCTION: Requiring Proof of Actual Harm as a Condition to Injunctive Relief Misconceives the Purpose of, and Is Contrary to the Equitable Nature of, an Injunction. Mosley v. Secret Catalogue, Inc. et al., No. 01-1015 USSC (2002)
. RIGHTS - INJUNCTION: For example, 42 U.S.C. 1983 does not explicitly refer to the "likelihood" of deprivation of federal rights, but rather imposes liability on any person who "subjects, or causes to be subjected" any other person "to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." Mosley v. Secret Catalogue, Inc. et al., No. 01-1015 USSC (2002) (Emphasis added).
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. MOTION TO DISMISS
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. MOTION TO DISMISS: "... in a "motion to dismiss, the material allegations of the complaint are taken as admitted". From this vantage point, courts are reluctant to dismiss complaints unless it appears the plaintiff can prove no set of facts in support of his claim which would entitle him to relief (see /Conley v. Gibson/, 355 U.S. 41 (1957)). Walter Process Equipment v. Food Machinery/, 382 U.S. 172 (1965)
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. SOVEREIGNTY
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. SOVEREIGNTY: Supreme Court Justice Field, "There is no such thing as a power of inherent sovereignty in the government of the United States... In this country, sovereignty resides in the people, and Congress can exercise power which they have not, by their Constitution, entrusted to it. All else is withheld." Juliard v. Greeman/, 110 U.S. 421 (1884)
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. TRO (TEMPORARY RESTRAINING ORDER) CASE LAW
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A. Standards for Granting a TRO or Preliminary Injunction
. TRO: "The grant of emergency relief, whether in the form of a temporary restraining order or a preliminary injunction, is "a drastic and unusual judicial measure." Turner et al v. Whittington Civil Action No. 98-2634 (1998); see also Marine Transport Lines, Inc. v. Lehman, 623 F. Supp. 330, 334 (D.D.C. 1985).
. TRO: To obtain such "extraordinary" relief a party must always "prove that
(1) it has a substantial likelihood of succeeding on the merits;
(2) it will suffer irreparable harm if the injunction is not granted;
(3) other interested parties will not suffer substantial harm if the injunction is granted; and
(4) the public interest will be furthered by the injunction."
Turner et al v. Whittington Civil Action No. 98-2634 (1998); see also (Public Citizen v. Nat'l Advisory Comm. on Microbiological Criteria for Foods, 708 F. Supp. 359, 362 (D.D.C. 1988); National Treasury Employees Union v. United States, 927 F.2d 1253, 1254 (D.C. Cir. 1991), quoting in part Sea Containers Ltd. v. Stena AB, 890 F.2d 1205, 1208 (D.C. Cir. 1989).
. TRO: Even in a First Amendment case, "[a] significant failure of proof with respect to any element may warrant the refusal of pendente lite relief . . . ."
Time Warner Entertainment Co., L.P. v. FCC, 810 F. Supp. 1302, 1304 (D.D.C. 1992).
. TRO: The purpose of a TRO or preliminary injunction is to preserve the status quo until a court can rule on the merits of a claim. Turner et al v. Whittington Civil Action No. 98-2634 (1998); See also University of Texas v. Camenisch, 451 U.S. 390, 395 (1981).
. TRO: Plaintiffs must overcome the extreme reluctance of federal courts to interfere with the operation of an Act of Congress -- even one said to violate the First Amendment -- while litigation is pending. (Public Citizen v. Nat'l Advisory Comm. on Microbiological Criteria for Foods, 708 F. Supp. 359, 362 (D.D.C. 1988)) See Turner Broadcasting System, Inc. v. FCC, , 113 S. Ct. 1806, 1807 (1993) (Rehnquist, C.J., in chambers) (citations omitted); (the "judicial power to stay an act of Congress, like judicial power to hold that act unconstitutional, is an awesome responsibility calling for the utmost circumspection in its exercise"); Katzenbach v. McClung, 85 S. Ct. 6, 7 (1964) (Black, J., in chambers); (it is "an established rule that courts of equity will not exercise their power to enjoin the enforcement of an act of Congress except under the most impressive or exigent circumstances").
The Supreme Court has consistently recognized that because Acts of Congress are presumptively constitutional, they "should remain in effect pending a final decision on the merits by [the] Court." (Public Citizen v. Nat'l Advisory Comm. on Microbiological Criteria for Foods, 708 F. Supp. 359, 362 (D.D.C. 1988)); Turner Broadcasting, 113 S. Ct. at 1807; see also Rostker v. Goldberg, 448 U.S. 1306, 1310 n. 3 (1980) (Brennan, J., in chambers); Northeastern Florida Chapter, Ass'n of Gen. Contractors v. City of Jacksonville, 896 F.2d 1283, 1285 (11h Cir. 1990);
. TRO: (preliminary injunctions of legislative enactments must be granted reluctantly and only upon clear showing that injunction before trial is definitely demanded by the Constitution and other strict legal and equitable principles that restrain courts). Turner et al v. Whittington Civil Action No. 98-2634 (1998
B. Plaintiffs Will Not Suffer Immediate Irreparable Harm
. TRO: Apparent diversity case against county. If preliminary injunction is not issued, plaintiff would suffer irreparable harm because damages could not be recovered against county under state law. Synagro-WWT, Inc. v. Louisa County 2001 WL 868638 (W.D. Va. July 17, 2001)
TYC
