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May 2015 - God Save the Queen

by Richard W. Millar, Jr.

Sometimes I think that the people who make the rules allowing people to represent themselves have never had to litigate against a pro per or a “self-represented litigant,” which I gather is the phrase du jour. They aren’t allowed in operating rooms, which tells me that the doctors are ahead of us in this case. But they abound in courtrooms, which are our operating theatres, and the mischief they can cause is never-ending.

The first time I came across a pro per was in law school. I worked in the San Francisco Law Library, which was a dream job for a law student. It was then located in the City Hall on the same floor as many of the civil courts. During slack times (which were frequent—it is not as if a law library suffered a rush hour), we were allowed to watch pieces of trials in progress. A local lawyer named Abe Setzer, who is no longer with us, was facing a female pro per. She was on the stand telling her side of the case when I snuck in. The court had, apparently, already ruled that she could not give a narrative, so she was required to ask herself questions and then answer them. It was quickly obvious that this was not her first rodeo because she asked herself questions in such a way that it was never clear where the question stopped and the answer began. Mr. Setzer, whose bald head flushed crimson, could never get the timing right with his objections, and she would quickly riposte “asked and answered, Mr. Setzer.” The judge would inevitably reply, “I think she’s got you there, Mr. Setzer.” 

I knew immediately that a pro per was worse than a root canal.

For some reason, over the years, I have drawn more than my share of pro pers. (One would be more than my share, but I digress.) As I write this, I have two pending: one about to go to trial and another on appeal—and not appealed by me, I should add. 

Thus, I think it is only fair that an appellate justice get back in the fray with a pro per. I mean, how bad can it be with a pro per appeal? Sure, you get a crazy brief, but that’s what research attorneys are for and, at worst, you have to put up with a five-or-ten-minute oral argument. A trial judge has to suffer through pleadings, law and motion, never-ending discovery disputes, an unfortunately unsuccessful summary judgment motion, and then trial.

Richard Posner, a well known appellate jurist from the Seventh Circuit likes (or maybe liked would be better) to volunteer for trials. He recently drew Hakeem El Bey, a pro per, who was indicted by the feds for defrauding the IRS. 

Judge Posner became so concerned about “affidavits” and other pretrial filings by Mr. El Bey that he entered a pretrial order barring a number of arguments, including that the court lacked jurisdiction over him because “he is ‘a sovereign citizen’ or citizen of the Cherokee Nation.” (I don’t know about you, but I would have had at least 134 bad guesses before I tumbled the idea that someone named Hakeem was a Cherokee, but again, I digress.) Nor would the judge allow him to argue that the government was a corporation, or was insolvent, or that the IRS had been dismantled. 

What do you do with someone whose best (and I use that word advisedly) argument is that the “Queen of England, entered into a Treaty with the Federal Government For the Taxing of Alcoholic beverages and cigarettes sold in America. The Treaty is called The Stamp Act and in this Act, the Queen ordained that her Subjects, the American people, are Exonerated of all other Federal Taxes. So the Federal Income Tax and the State Income Taxes Levied against all Americans is Contrary to an International Treaty and against the Sovereign Orders of the Queen?”

Judge Posner, in his order, actually replied that the Stamp Act was enacted by Parliament, not the Queen, it didn’t relieve anyone from taxes—it imposed them on the use of paper, it was not a treaty, there were no federal taxes that could have been relieved, and the British sovereign, at the time, was a King not a Queen. So there!

The judge also would not allow Mr. El Bey to invoke the Uniform Commercial Code, the Foreign Sovereign Immunities Act, and claim that the proper court was the Court of International Trade. He also previewed that Mr. El Bey was not going to recover $367,500 in “redemption of damages.” 
And Mr. Setzer thought he had it bad.

Richard W. Millar, Jr. is a member of the firm of Millar, Hodges & Bemis in Newport Beach. He can be reached at millar@mhblaw.net.


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