Thursday, September 27, 2012

12-09-27 Human Error or Mal Intent in the electronic record systems of the US courts (PACER and CM/ECF)

The same logic holds for the electronic record systems of the courts of the State of Israel. jz
Via online discussion group
Joseph Zernik
A. Joseph Zernik, Human Rights Alert (NGO) wrote:

Dear Mr W:

  • What you call "irregularities" was accepted, following rigorous peer-review by Data Analytics experts as conduct related to Mal Intent, or fraud.  It appeared to me that at least one of the five reviewers on my paper on PACER and CM/ECF was an American.  After all the other technical comments of the reviewers were squared away, he posed the following comment for me to answer:  It is truly Mal Intent, or simply Human Error?  As a legal scholar, surely you know that it is the question that is often most difficult to answer.  And the cover letter by the administrator of the review said that I must address all comments of the reviewers (kinda not the typical language in academic peer review, which is trying not to be an adversarial process). Therefore, I added a special sub-section to the paper, to address the issue.  It was accepted. [1,2] This comment is not related to your issue with the filing fee, but to the more serious false and deliberately misleading features of the systems.
  • What happened to you has been described by others (not here) in the past.  It is the smallest part of the problem.

  • Since you are filing electronically (first experience?), I would be grateful if you share couple of the NEFs (Notices of Electronic Filing) on a) Your complaint, b) Your summonses, c) the first minutes/order in the case.   No need for the records themselves, only the NEFs.  The NEFs are received by your secretary by email.  So it is as simple as forwarding the email notes to this group.
Obviously,  you should ask your secretary to show the NEFs to you first. You would realize that there is no "private" information there.  Once you see the NEFs, you may start wondering, why the US courts from Coast to Coast insist on hiding them from the public and from pro se litigants in their own cases, when the NEFs are public records by law.

Your help in this matter would be greatly appreciated.


[1] 12-09-04 J. Zernik, "Design and Operation of the Electronic Record Systems of the US Courts are Linked to Failing Banking Regulation", Data Analytics 1:83-93 (2012) 
[2] Zernik, J, “Large-scale fraud in US court records is linked to failing banking regulation” _ OpEdNews

B. W wrote:

Speaking of corrupt electronic case management systems, as you always do Jose, and seldom understanding the practical import of your speaking of the irregularity of such systems,I am becoming a little more of a believer

I filed a federal action on August 21, but my secretary goofed thinking that the court would ask for the filing fee, so she didn't pay it electronically until asked.  They didn't ask, they just unfiled or deleted the case and gave notice why it was deleted, for failure to pay the filing fee.  We paid and it was "refiled" with a new filing date of August 28.  Well, of course, the filing fee is not really a filing fee at all, but a litigation fee to be earned by the court over the length of the litigation and as a filing fee it is an advance payment requirement that blocks access to the courts without hearing. So we filed an exparte motion to set aside the "unfiling" and reset to the original filing date, and for attorney fees and to declare the "unfiling" system unconstitutional.  The judge denied it because not supported by an affidavit.  I supplied an affidavit laying out the criminal aspects of violating the First, fifth and thirteenth amendments and saying that no affidavit was necessary because the facts were all a matter of record and this was not an exparte motion in any ordinary sense involving any usual aspect of litigation but that I was simply performing my duty to let a judge know about felonies being committed by his administrators in his name.  The clerk blocked or delayed it twice , more, then the judge ordered it for hearing next week, October 2.

Our constitutional contention is that neither the court nor its administration can obstruct filing, or "unfile" a case filed, as a matter of the right to petition, nor in any event, without a pre-unfiling hearing because filing and unfiling involve important rights, like the running or tolling of statutes of limitations and state claims statutes.  The thirteenth amendment issue is that the court treats the people like slaves where the "unfiling" is like punishing a person by twenty lashes for a non criminal offense against the whims of the master.  A "due process" warning is not sufficient because the "master" has no right to punish by whipping for violation of whims at all and the First Amendment requires strict scrutiny as to whether the court can interfere with filing at all, let alone as a means of collecting fees which are not even yet earned and the normal interest of which is a mere seven cents a day on money not yet earned.  It is noted, by the way, that general tax support for the courts is provided by Article I, Sec. 8, as an enumerated power and Article III grants no taxing or filing fee power to the courts at all.

I've asked you over and over to provide a practical effect of the looseness of the electronic case management system, noting generally that the adversarial nature of the system prevents arbitrary action by clerks or judges.  But now I'm not so sure.  In this case, if they had called it "unfiling", they would know immediately that they can't do that.  But they simply say they will "delete" it if the filing fee is not paid within 48 hours.  Soooo, I now too have to wonder just how far this absence of electronic certification can go.  The filing number which is issued chronologically, is the same, except that for a "temporary" filing in advance of payment, the case number carries a letter indication that it is only temporarily filed which is changed to a permanent "cv" when paid.  So, theoretically, the new number is in the order of numbers issued on August 21, albeit, a filing date of August 28.  They didn't really "delete" it either, but simply "unpublished" it so that the public aspect of filing is taken away...that is, it was published, then unpublished, something like unringing a previously rung bell.

The judge hearing the case is a senior black judge kind of in the mold of conservative Justice Clarence Thomas; not generally my favorite kind of judge.  However, I have noticed that even Justice Thomas can get civil rights conscious and philosophical, as he did in McDonald v Chicago.

The underlying case also involves the eighth and thirteenth amendment: A man jailed on a petty offense is refused medical attention as a means of punishing him and kept in jail longer than ordered and that caused a medical condition requiring amputation of his right leg.  It gets worse from there. But what I'm developing is a concept out of the peonage cases which views government treating people with the contempt of masters toward peons and slaves and causeing thereby systematic involuntary servitudes without a relevant conviction of crime.


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