11-01-23 ‘Don’t Ask, Don’t Tell’ in the US Court of Appeals, 9th Circuit: Verification of Validity of the Dockets by Clerk Molly C Dwyer, US Court of Appeals, 9th Circuit, is Requested

Press Release 
'Don't Ask, Don't Tell' in the US Court of Appeals, 9th Circuit:  Verification of Validity of the Dockets by Clerk Molly C Dwyer is Requested

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, January 23  Log Cabin Republicans v USA was initiated as appeals by both Log Cabin Republicans and the US Department of Justice, from litigation of the 'Don't Ask, Don't Tell' policy of the US Armed Forces in the US District Court, Central District of California.

As part of his Motion to Intervene, Joseph Zernik, PhD, of Human Rights Alert (NGO), has filed request for Molly C Dwyer, Clerk of the US Court of Appeal, 9^th Circuit, to verify the validity of the dockets in the appeals. [1] The dockets of the appeals were published online in PACER, the Court's online public access system.  In his request, Dr Zernik noted 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 claimed that some ambiguity remained regarding the PACER docket of the appeals.  Ambiguity in court records was claimed as violation of Due Process rights.

Dr Zernik asked that Clerk Molly 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 of the Court, 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 of the US Court of Appeals prior to opening the dockets for the appeals.

*       Validity of orders by the Court of Appeals, 9^th Circuit, which were published in the online docket unsigned.

Dr Zernik's Motion to Intervene, now listed in the docket as pending, [3] challenged the appeals by both Log Cabin Republicans and the USA, since the US District Court Judgment, which was the subject of the appeals, was uncertified.  Dr Zernik asked the US Court of Appeals to dismiss both appeals on that basis.

The Log Cabin Republicans opposed the motion to intervene and the call for the dismissal of the appeals. [4]  Surprisingly, The US Department of Justice, which filed its own appeal in the matter, did not oppose the motion the intervene.

The Clerk of the US District Court, Central District of California, continues all along to refuse to produce a certificate of the October 2010 Judgment, and also continues to refuse to certify the PACER docket of the litigation in the US District Court.

The request, which was filed today with the Clerk of the US Court of Appeals, 9^th Circuit, in fact amounts to request for certification of the PACER docket of the appeals, now listed as pending, in Log Cabin Republicans v USA et al.

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 courts and called upon the US Congress and the public at large to perform its duties and initiate corrective actions:

*    Restoring key provisions of the Salary Act of 1919   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 replaced 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 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 of both the case management systems of the courts and the online public access systems.  The systems were implemented over the past two-three decades in both state and federal 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 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 electronic case management systems in alleged violation of First Amendment rights. Therefore, the US Congress should perform its duties and establish the systems by law.  Implicit in such law should be the requirement for publicly and legally accountable validation (certified, functional logic verification) of such systems prior to their implementation.

* The public at large and computing professionals, in particular, must assume their civic duties in ongoing monitoring the integrity of electronic court records.
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.
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LINKS:
[1] 11-01-23 Log Cabin Republicans v USA (10-56634, 10-56813): a) Zernik's Request for Statement on the Record by Clerk Molly C Dwyer in re: Dockets of the Appeals, b) copies of the docket, and c) copies of orders (Dkt #05, 52) in the appeals.
http://www.scribd.com/doc/47400826/
[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)
http://www.scribd.com/doc/38328585/
[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
http://www.scribd.com/doc/46528428/
[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�.
http://www.scribd.com/doc/47402283/
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LINKS:
[1] 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
http://www.scribd.com/doc/46528428/
[2] 11-01-21 Press Release: Log Cabin Republicans Oppose Challenge to Validity of the Judgment in the �Don�t Ask, Don�t Tell� Litigation
http://www.scribd.com/doc/47323956/
[3] 11-01-23 Log Cabin Republicans v USA (10-56634, 10-56813) Zernik�s Reply in Support of Motion to Intervene as filed and served
http://www.scribd.com/doc/47400611/
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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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