Tuesday, February 1, 2011

11-02-01 'Don't Ask, Don't Tell' in the US Court of Appeals, 9th Circuit: Request for Verification of the Dockets' Validity by Clerk Molly Dwyer is Posted by the Court // Conducta dudosa de los tribunales de EE.UU. // 可疑的行为,美国法院

The Clerks of the US Courts hold a key position in the safeguard of integrity of courts and Human Rights in the Digital Era.
Los Angeles, February 1 -  Log Cabin Republicans v USA – appeals pertaining to the 'Don't Ask, Don't Tell' policy of the US Armed Forces – are now before the US Court of Appeals after litigation in the US District Court, Central District of California.
As part of his Motion to Intervene in the appeals, Dr Joseph Zernik of Human Rights Alert (NGO) questioned the validity of the two opposing Judgments, which were listed in the online docket of the US District court.  Listing two opposing judgments in one case, with no judicial proceeding to reverse the first judgment is inconsistent with the way litigation is to be conducted pursuant to the law of the United States.

Clerk Terry Nafisi of the US District Court refuses to certify the online docket and the October 2010 Judgment, from which the appeals were taken.
The Log Cabin Republicans opposed the Motion to Intervene and the request for the dismissal of the appeals, based on invalidity of the October 2010 Judgment. [4] However, even in their opposition to the Motion to Intervene, the Log Cabin Republicans have failed to produce the certificate of the October 2010 Judgment from the US District Court.
Now, a request by Dr Zernik has been posted in the online docket for Clerk of the US Court of Appeals Molly Dwyer to verify the validity of the dockets in the appeals. [1]  
In his request, Dr Zernik notes that he has studies the electronic online public access system of the US courts from coast to coast and also published a report on the subject in an international, peer-reviewed, computer science journal, with Editorial Board listing scholars from six European nations and Canada. [2] Regardless of his familiarity with the system, Dr Zernik claims that the online dockets of the US Court of Appeals remain vague and ambiguous.  Ambiguity in court records should be seen as violation of Due Process rights.
Dr Zernik asks that Clerk Dwyer address specific concerns:
·          Validity of the dockets of the appeals in general, as dockets that were published in compliance with US law, under the authority of the Clerk Dwyer, and in compliance with her Oath of Office.
·          Validity of the October 2010 Judgment from the US District Court, as a judgment of 'good faith and credit', and the manner that validity of the Judgment was established by the Clerk Dwyer, as a prerequisite for opening the dockets of the appeals.
·          Validity of unsigned orders by the Court of Appeals, 9th Circuit, which were published in the online dockets of the appeals. 
Human Rights Alert (NGO) has previously identified the offices of the clerks of the US courts as key to conditions that now prevail in the US courts and called for initiation of corrective actions:
·          Restoring by the US Congress of key provisions of the Salary Act of 1919, which placed the clerks of the US courts under the authority of the US Attorney General
At the time, conditions in the US courts were described in the US Congress as "a burlesque", and the Salary Act was credited as a key measure in restoring the US courts integrity.  It restored the role of the clerks as checks and balances vis a vis judicial corruption, which was the reason for existence of the clerks since the late middle ages.  By the mid 20th century the clerks were again placed under the authority of the judiciary.
·          Enactment by US Congress of federal rules for electronic court records
The evidence shows that the clerks of the courts today do not deem themselves accountable for the integrity of electronic court records that are published in the online dockets.  The online system was implemented over the past decade in the US courts. In the process, a sea change was introduced in court procedures, which had been established for centuries, and were the core of Due Process. However, all US courts that were examined, without exception, failed to publish Rules of Courts pertaining to their new electronic procedures, in alleged violation of Due Process rights.  Moreover, all courts that were examined deny public access to various records in the new electronic system in alleged violation of First Amendment rights. Therefore, the US Congress should perform its duties and establish the system by law.  Implicit in such law should be the requirement for publicly and legally accountable validation (certified, functional logic verification) of the system.
·          “A watchful eye” on the US courts by the public at large and computing professionals, in particular
Implementation of the electronic system of the US courts affected a sea change in court procedures.  Nevertheless, no rules clarifying the new electronic court procedures have been enacted by the US Congress, and no rules have been published by the US courts either.   Based on his review of the system, [2] Dr Zernik claimed that the system failed to meet basic standards of validity and integrity, which are expected in electronic government systems in general, and in an electronic court system, in particular.
The common law right to inspect and to copy judicial records was reaffirmed by the US Supreme Court in Nixon v Warner Communications, Inc (1978) as inherent to the First Amendment. In doing so, the US Supreme Court said that the right was necessary for the public "to keep a watchful eye on government". Today, the public must keep a watchful eye particularly on electronic court records. No other measures could substitute for public scrutiny of court records in safeguarding the integrity of the courts and Human Rights in the Digital Era.
Notice was given to the US Congress Committees on the Judiciary, Armed Services, and the House Rules Committee. 
[1] 11-01-27 Log Cabin Republicans v USA et al (10-(10-56634) - Dkt 054-056: Zernik's a) Reply in support of Motion to Intervene, b) Request for Statement by Clerk Dwyer, as posted in the PACER docket
[2] 10-08-18 Zernik, J: Data Mining of Online Judicial Records of the Networked US Federal Courts, International Journal on Social Media: Monitoring, Measurement, Mining, 1:69-83 (2010)
[3] 11-01-08 Press Release: ‘Don’t Ask Don’t Tell' - Motion to Intervene, Requesting the US Court of Appeals to Dismiss the Appeals from an Uncertified Judgment, was Posted in the Docket, is Now Pending before the Court-s
[4] 11-01-23 Press Release: ‘Don’t Ask, Don’t Tell’ Litigation  reply claims Log Cabin Republicans’ opposition to intervention amounted to ‘hand-waving arguments’.

Human Rights Alert is dedicated to discovering, archiving, and disseminating evidence of Human Rights violations by the justice systems of the State of California and the United States in Los Angeles County, California, and beyond. Human Rights Alert focuses on the unique role of computerized case management systems in the precipitous deterioration of the integrity of the justice system in the United States.


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