Make a Federal Case out of it.

By Attorney David Grossack
Post Office Box 90, Hull, Massachusetts 02045
Telephone: (617) 925-5253
Facsimile: (617) 925-3906
E-Mail: dcg3@ix.netcom.com:

All too often a victim of a civil rights violations gets no justice in the State court system and wishes to somehow have an opportunity to have the merits of the case heard before a federal judge.

More often than not, the state forum was probably part of the problem.

It may have been that the state court was biased, that one lawyer was friendly with the clerk or the judge and that you never had a meaningful hearing before the state system.

It may have been that constitutional issues were never decided in the state forum, even though other aspects of the case were.

There may have been institutional or political biases against you or your lawyer, or perhaps your lawyer was inarticulate or unprepared.

In any event, you were shafted in state court, somewhere along the lines your constitutional rights were violated and now you want to make a federal case.

Many cases have followed the path of Rooker v. Fidelity Trust, 263 US 413 (1923) which has been interpreted as "foreclosing federal suit on any Section 1983 claim which could have been raised in a previous state action." This reference Title 42 USC ? 1983, a federal civil rights statute.

All kinds of fancy defenses, such as res judicata ( the thing has already been decided), collateral estoppel and the doctrine of issue preclusion are going to be raised in federal court to send you home.

Wayne McCormack?s text entitled Federal Courts (Matthew Bender, NY 1984) contains some valuable insight on the ways to circumvent these defenses. It is difficult, but not impossible.

An important part of the strategy may be to claim that the state court judgment was somehow
"constitutionally infirm" and hence need not be given full recognition by the federal court.

McCormack mentions that: It has been suggested that relitigation should take place whenever one or more of the following factors is present to a degree that preclusion would be likely to compromise the federal court?s own role in articulating and implementing constitutional principles;

1. The state court or agency had an institutional interest in deciding as it did.

2. The constitutional claim relates to the manner of the state decision rather than to the point of original dispute between the parties.

3. The issue relates more to a person?s relationship with the state than with another person.

4. The state decision was made without a full and fair hearing of the facts.

5. There is a special need for federal court fact finding.

6. The plaintiff initially had or reasonably believed that he had no choice of forum.

7. The remedies sought in federal court differ significantly from those available in state proceedings.

Naturally, you want to characterize your federal lawsuit as an action based in many of these situations as you arguably can.

The dissenting opinion in Brown v. Chastain 416 F2d 1012 (5th Cir. 1969) clearly indicates that some options are available if you have the right facts in your case.

The dissent in Brown argued that rather than the issue of relitigating the same facts twice, more importantly a solicitous regard for fundamental rights made cases in which constitutional claims were being asserted, likely exceptions to res judicata.

Unfortunately this is a minority view. See also Tribune Review Publishing Co. v. Thomas, 150 F. Supp. 362.

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SOME FEDERAL CASES ON PROPERTY RIGHTS
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A review of federal digests pertaining to lawsuits over property zoning and land use turned up some references you may want to check.

Failure to exhaust state remedies cited in a Federal Court ruling dismissing a 42 U.S.C. Sect. 1983 suit ?builder sought and was denied permit to build a single family geodesic dome) Eaton v. City of Solon, (598 F. Supp. 1505).

An allegation that township conducted foreclosure without giving mortgagee proper notice was sufficient to state civil rights claim under 42 U.S.C. ? 1983, Craig v. Ewing Township, (678 F. Supp. 1106).

Court could find beyond doubt that landowner could prove no set of facts which would entitle him to relief for deprivation of substantive process in connection with rezoning of his land. Carroll v. City of Prattville, (635 F. Supp. 933).

Property owners? allegation that water moratorium had been arbitrarily and capriciously enacted and prolonged and discriminatorily enforced, made out claims for denial of substantive due process and equal protection, Lockary v. Kayfetz, (587 F. Supp. 631).

Real estate owner ?failed to state? ? 1983 cause of action arising out of Town officials? alleged frustration of his efforts to obtain building permit, use and occupancy permits, and water connections, since owner could have availed himself to state remedies, Clark v. Bissonnette, (604 F. Supp. 710).

Ed. Note - If the state system is viewed as sufficient, why have federal civil rights laws at all. We?re getting screwed - our rights are being stolen from us by intellectually dishonest courts.

Property owner failed to state ? 1983 civil rights claims against town as a result of demolition of fire damaged property; owner failed to allege that her injuries were result of custom, or policy of town, or that certain elected and appointed town officials, who were name defendants, were policy makers. Roberts v. Town of Cierco, (689 F. Supp. 850).

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THE CITIZENS? JUSTICE STORY
By Attorney David Grossack
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November of 1993 was a month of decision in my life. I had been practicing law for 12 years and had very little respect for what had become of the institutions that were responsible for the administration of justice in Massachusetts as well as nationally.

I did not particularly enjoy the practice of law, did not like charging money to clients for helping them get justice and did not particularly care for a lot of the people who inhabit the " justice system" around me. I had been familiar with the pro-se concept since my days as a law student when on a summer job I worked for a chemical company that was employing constitutional consultants to deal with the IRS and EPA.

I believed that the best law firm that could be devised would be a firm that would teach legal methods to clients and coach them to fight their own battles. That month I made the decision to start Citizens? Justice Programs.

The advantages of pro se litigation include :

1. Lawyers overcharge, are often unreliable and often do not listen to clients or take them seriously.

2. Clients know their case best. Lawyers rarely take the time to learn about important details of the client's case.

3. Many lawyers will not take cases that challenge the System too deeply.

If you sue the IRS or try to get an injunction in federal court against a state judge, your legal career will have problems.

4. At trial, communication between lawyer and client is difficult, and no on the stand coaching is possible. Therefore, a pro se litigant can tell his story best.

Instead of making clients dependent on lawyers, find a way to teach empowerment.

Instead of making money off of the misery that the System was inflicting on people, teach people to give some misery back to the System.

The program started slowly, but steadily.

My first project was to teach anti-federal activists about Bivens actions, lawsuits based in violations of the Bill of Rights.

Then I did a pamphlet entitled How To Sue A Judge, and prisoners across the country started sending money orders for it.

An essay on Citizens Arrests went over big out west, and soon a member of the Texas militia arranged for the work to get posted on the Internet.

I started doing a monthly newsletter about constitutional issues and pro-se litigation, and the Patriot Movement discovered us as a resource.

I wrote two books and started getting published in magazine such as AntiShyster, Perceptions and Media ByPass.

I got an invitation to speak at a Rally for The Bill of Rights in Washington, media appearances and launched a shortwave program.

The Southern Poverty Law Center decided that we should be listed along with a lot of hate groups and mentioned us on a Klanwatch web site.

I have made a claim on their insurance policy for defamation.

In February of 1997, in Chicago, Citizens Against Repressive Zoning allowed me to put on a day long program to train members in legal skills, and further seminars were held in Boca Raton, Florida and Los Angeles.

The major project now is to launch a national community access cable TV program about pro-se litigation and to simultaneously broadcast it on the Internet.

Seminars will be held in Boston shortly and new and innovative programs to help make the public aware of the Constitution and to make bureaucrats respect it are on the way.

Finally, I want to point out that when you can find a lawyer you can afford and count on to do the job, hire him or her.

When you can't, learn how to do the job yourself. Go to the law library.

Go into court files, and see how other lawyers have handled problems similar to yours. Copy their pleadings and adapt them to your case. Be polite but assertive in court, and use lawyers as coaches.

Know your constitutional rights in depth, and don't keep this knowledge to yourself.

Together we will bring this message to millions of Americans and launch a peaceful Second American Revolution to clean up the justice system and restore the liberties our Founding Father's fought for.