Memo To the Chief Justice.

Memo to Hon. Margaret H. Marshall, Chief Justice of the Massachusetts Supreme Judicial Court:



"Wake up Maggie, I think I got something to say to you," sang Rod Stewart some years ago. The hoi poloi who experience the court system from the OTHER side of the bench from you, see things spinning out of control. They want your attention, and have something to say, because they are the ones getting hurt by it.

Every year, it is your duty to give a report to the governor and both houses of the state legislature, about how the system is delivering justice. But that justice looks a lot different from the perspective of the masses who sit behind the bar in the courtrooms and pay the salaries of all those expensive public servants whom you are reassuring.

In brief, many judges run amok, imposing their vision of positivist law and their humanistic biases upon their decisions, while ignoring the weightier matters of the law, and real morality and procedure.  Many clerks couldn't be bothered to serve the public, and project annoyance when asked for help.  Agents of the system continue to pile more and more strict, complex, and inexplicable procedures on the backs of the honest, simple litigant, while depriving him or her of justice in return for the trouble of bearing those burdens.

A visitor from another place would conclude that justice is not being delivered effectively or efficiently. And sometimes not at all.

Justice is Not Happening According To Our Declaration of Rights

Article XI of our Massachusetts Declaration of Rights states:

Every subject of the Commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries and wrongs which he may receive in his person, property or character.  He ought to obtain right and justice freely, and without being obliged to purchase it, completely and without any denial;  promptly without any delay; and conformably to the laws.

Honestly, can you not see the numerous ways that the system fails to deliver the kind of basic justice referenced in that provision of our constitution?  

So many predations of government now have no remedy in court whatsoever.  Since agencies have taken over much of government, the system simply defers to the "expertise of the agency", when many, if not most, have no provable expertise.  Cases involving restraining orders, family matters and parental rights in juvenile court seem to have almost no remedy at all, when rogue litigants, social workers, and therapists are allowed to have primacy over parents.

How many "injuries and wrongs which he may receive in his person, property or character" have any means of redress?  Far fewer than anyone will admit.  When social workers take children and allow harm to befall them, we interpose immunity.  When GALs make harmful decisions or DAs maliciously prosecute one who is innocent, the immediate refuge is immunity.

When agencies trample on property rights, the system validates those intrusions with the artificial excuse that government may do so as long as it has a rational reason for it.  By lowering protection for property rights, we insure that "injuries and wrongs" to property will find no recourse in the courts of the Commonwealth.

Each court charges huge fees merely to file a lawsuit, thus negating the requirement that justice be free and that those who vindication of their personal or property rights should not have to purchase justice.  The incredibly complex rules for all but the tiniest civil matters require litigants to purchase justice by hiring a member of the bar, a lawyer. Even to appeal a driving violation to a clerk now requires a fee, and yet another additional and larger fee to have a judge review it.  Freely, indeed.

Opportunities for redress of government action against citizens are being progressively closed, and even using the common law means of suits for abuse of process and malicious prosecution have now been eliminated by your court's interpretation of the anti-SLAPP laws.  The window of potential redress has become exceedingly small and is nearly shut.

Structural Problems in the System Go Deep.

Families are being ruined routinely by the family court, as children are kept from perfectly fit fathers for long periods.  Restraining orders are issued to the best liar in District Court.  The juvenile courts terminate parental rights, without clear standards.  Court rules in all the departments are now so complex that pro se litigants are virtually doomed without a lawyer.

Despite these modern accretions of complexity, the system operates in most ways like it was in the 19th century.  Everyone is summonsed to court at the same time, oblivious to the fact that many persons must then wait all day for their one-minute hearing in front of the judge.

Minor procedural hearings are multiplied, requiring hundreds of dollars of lawyer-time, when a simple phone or video conference would do.  One cannot generally even change a hearing date by phone, so surly and maladjusted are the clerks.  A request to send an order by fax to the other end of the state will be met by incredulity, and a demand to drive hours to come and get it.

The long-promised court computer system is not even close to working in a coordinated fashion (tens of millions of dollars later), so lawyers are double and triple booked in overlapping hearings at different courts all the time, and cannot even get simple case information from most courts on-line.

Courts are not managed by administrators and managers, but by judges who are trained to think about case matters, not about paper clip inventories, hiring of clerks, and hearing times.  So, we get things like having to pay $50.00 for a CD containing a one-minute hearing, which they won't even mail to the other end of the state.  This place runs like it never heard of the internet, and like it still uses quill pens.

You've seen the recent report from March of 2010 on the management of the court.  An excerpt:

The lack of meaningful authority is evident throughout the courts.  Each layer of management has little ability to direct the next and little accountability to the one above. Reporting lines are vague and do not reflect natural working units. Basic tools of authority are undermined or absent; consequences cannot be tied to performance; resources cannot be removed or redirected; even the selection of those in key positions is often outside of a manager's control. 

But the worst thing is what your system does to children.  Family, Juvenile, and District Courts are destroying thousands of families a year in the Commonwealth of Massachusetts.  It is rotten to steal time, money, property and justice from tens of thousands of people each year.  It is unforgivable to do that to their families, yet that is what is happening.

Family Courts

Your family courts, charged with the extraordinarily difficult task of finding an orderly dissolution to families, more often harm or even destroy them instead, by making an already bad situation worse.

They allow manipulative litigants to go to District Court for a restraining order, and then come there and file their complaint for divorce or paternity.  By then, the conniving party is fully in charge of the children, with the argument all over and done. The percentage of woman who start a divorce by getting a restraining order, rather than by a complaint for divorce, is staggering.  No one says a thing, or stands athwart this common practice and says, "Enough."

The custody and parenting orders issued by the family court remove fit fathers, disregarding the sad eyes of children crying for their daddies, who don't understand why they can't see them.  Parties endure endless waits for hearings, which ensures that these little innocents are harmed for long periods.  Your judges give cronies the license to charge tens of thousands for GAL reports and more thousands for therapy, evaluations and more.  The system guts most families's finances, and gives most of it to lawyers, therapists, GALs, and many other parasites.

Bias is rampant.  Rather than insure that children get to have the maximum possible relationship with both parents, except in cases of actual unfitness, primary custody is almost always awarded to a woman.  The rhetoric of equality gives way to the reality of feminist dominance.

Juvenile Court

Equally ruinous are your juvenile courts.  You keep them secret from the press and the public, so that no one can see what is happening there, as many fit parents are wrongly and permanently kept from their children.

These courts operate without rules of civil procedure or the rules of evidence (!), and thus the proceedings are often a mockery of justice.  There is no disinfecting sunlight of public scrutiny.  Your judges conduct 72-hour hearings after removal of a child from a home, which become permanent orders of adoption at the whim of a judge without any legal standard upon which to judge such a weighty matter. Oh, it is in the case law that it requires a preponderance of evidence, but that matters little.

There are no juries, no reasonable standard of proof, no requirement to even inform the parents that waiving the initial custody hearing means they may never see their children again in their lifetimes.  Thousands of parents would be cursing your name right now if they knew who was to blame here.

Restraining Orders

And what about 209A abuse restraining orders?  This spawn of some Soviet socialist regime cannot be redeemed, changed, reformed, or given any gloss to improve its looks.

Restraining orders are the singular greatest mockery of due process ever perpetrated upon our system.  Operating essentially on a probable cause standard (I know, it's officially "preponderance of the evidence"), they are given out for any reason by almost all of the judges. Fear of backlash is the ACTUAL standard by which they are issued, rather than whether the defendant abused the plaintiff.

A restraining order hearing is usually a free-for-all.  There are no rules of evidence, no due process, no juries, no recourse when it is discovered that a plaintiff testified falsely.  It is widely known that a mere claim of fear will usually be sufficient to obtain an order, whether true or false.  Your system will not prosecute gross perjurers or expunge the records of those who are the victim of such easy, unaccountable perjury.

Because there is no accountability, restraining orders have become the method of choice to evict a boyfriend, to get custody of children, to start a divorce, to punish a straying lover, to assert control over the object of jealousy, or effectuate any number of other malign abuses of process.

In a series of decisions interpreting the anti-SLAPP act, your court has all but eliminated the opportunity to obtain redress when an order is used for an improper motive, or just plain maliciously.

So, Justice Marshall, Where to From Here?

My apologies for being so direct.  When the dreams, finances, property and children of so many families have been negatively affected by court action, the need for delicacy is perhaps lessened.

Thousands of families wanted truth, and all they got was lies.  Thousands of families counted on the court for justice, and instead received empty, hollow choruses, without honesty.  Some were simply destroyed, by any reasonable definition of that word, without any possible accusation of hyperbole in that description.   Thousands of families thought that if they just came before the court and told their story, that it would recognized as such, and their precious children would be returned, or their property restored, or their reputation vindicated.

But it never happened.  It rarely happens.  These families left their court experience ruined, many of them forever.  So, please remember that these things are how the system and its operation really looks to us rabble who sit behind the bar, the ones the system is supposedly meant to serve.  It doesn't.  Most persons who walk into one of your courtrooms or clerks offices almost immediately figure out that something else is actually happening - that the system really serves itself, not the ones forced to be there by life's exigencies.

All of this can be fixed if you want to fix it.  All the heartbreaks of the past cannot be redeemed, but your judges need not crush the hopes and dreams of any more children and families.

Simple measures would suffice, if you had the political will:  Stop the abuse of restraining orders, the abuse of secret juvenile courts, the abuse of biased family courts which use children as props and pawns.  Change procedures so that they are fast and efficient.  Use the internet, video, phone and other modern tools.  Ditch the quill pens, the surly clerks, the hacks, the users and abusers inside the system. Punish perjurers, not those who tell the truth.

If these matters are as important as the soaring language in your report to the governor asserts, then the people in your system should be held to a higher standard, not the lower one you have allowed them to adopt.  Immunity is an absurdity, a mockery of our system.  Article XI mandates a system which demands accountability and redress, not excuses its absence because government agents should be above such legal scrutiny.

If you do these things, you will really have something to tell the governor and the legislature in your next annual report.  It could be titled, "Massachusetts Finally Gets Justice System".

Family Court- Harmful to Children and Other Living Things

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Divorce ruins children.  Failing to marry your partner ruins children.  Family Court often makes a bad situation worse.

I have practiced law in the family court in Massachusetts since 1993.  Other than state child protective services agencies (DCF, CPS, DYS, etc.) and the IRS, no government entity causes more problems to families than family court. Whether intentional or not, their chief function appears to be to keep children from fit fathers, and to vacuum as much wealth out of the family as possible and give it to lawyers, guardians, mothers and to the system itself.

No cynicism here, eh?

The court can't take all the blame.  How about all of us who had children without getting married?  How about all those of us who can't get along and go to court to ask it to divide up our families somehow?  The court is left to pick up the pieces of all those messed up relationships, and it cannot reasonably do it.  However, if the court is going to take responsibility for that duty, it should do it right.  For a little levity on the subject, look at the great Delbert McClinton singing, "You're the Reason Our Kids Are Ugly".

Kacey Jones and Delbert McClinton - You're the Reason Our Kids are Ugly - watch more funny videos

It Couldn't Get Much Worse.

The system is structurally rotten, and needs to be changed from the ground up - its rules, its practices, its hours, its methods, its judges, its clerks, and especially its biases.  I'll give you some examples from the Massachusetts version, which is, with certainty, just like your family court wherever you may be.
 
Nothing about family court makes much sense.  In Massachusetts, there are 7 different sets of procedural rules used by the Court, rather than one unified family code, and who can keep all that straight?

There are almost no objective criteria for deciding issues of custody, alimony, parenting time, property division, and other ultra-critical matters.  It is all just left to the whim and discretion of a judge or a court employee.  Incredible, child-destroying decisions are put into the hands of people like our former Judge Beverly Boorstein, who was caught shopping when she was supposed to be judging.

   The system is so old and creaking, it cannot even function.  In Middlesex County in Massachusetts, files are kept in some belfry somewhere, and they have to literally walkie-talkie up to some unseen guy (probably named Igor) in the tower to fetch them, and they are fed down a chute and land on a desk.  Half the time they are missing.  I now have to bring duplicates of everything at hearings, because the files are more often not there.

A Nineteenth Century System for a Twentieth Century World.

   The system is set up for the 19th century.  They summon hundreds of people to show up at the same time, knowing they don't have the personnel to process them, and just make everyone waste all day, as though there is no cost to people for missing work.  The truth is, the court wastes millions of dollars a week of the productive time of its victims.
 
   The worst problem is that children are harmed the most.  Hearings have to wait until the assigned judge gets back from vacation, and no one gives a darn if a kid can't see her daddy for a month or two. Changing a hearing date is like getting an appointment with the U.N. Secretary General.

The court acts as though it is a contest, rather than a means to ensure that children see both parents. When the court does make a decision, it is usually to perform a "father-ectomy" on a perfectly fit father, and reduce the child's opportunity to have a lifetime of love and care of his or her father.  Plus, the court will usually tack on a massive carrying charge to the man, to pay the woman for deciding to end the marriage.

  I couldn't finish writing today if I had to list all the substantial problems with family court.  It needs a serious re-boot.  It needs to start all over from the ground up and act like it is actually dealing with issues which harm kids, and stop being a third rate hackarama, in thrall to the radical elements of the feminist movement.

Until family courts are run with efficiency, and with the child's needs in mind, there will be no justice.  The overarching principle must be:  Children Need Both Parents.  That leads to the corollary that both parents must provide for their children, not just the father.  May that day arrive with haste, before any more families and children are ruined by so-called "family" courts.

Domestic Abuse Restraining Orders/Orders For Protection - Divorce First-Strike Weapon of Choice.

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Of all the modern and illegitimate additions to the valid moral core of the law, restraining orders/orders for protection are perhaps the most offensive.  They transgress every notion which the law has always proclaimed to hold dear:  No due process, no fairness, no rules of evidence, no juries, and no objective standard in the law.


Every State Has One


Every state has had a law establishing these domestic abuse protection orders since the 1970s.  Different states call them variously restraining orders (RO), orders for protection (OFP), protection from abuse orders (PFA), domestic violence protective orders, or other names.  Whatever the label on the bottle, it is full of poison for the unsuspecting victim.  That victim is usually the defendant, the person against whom the order is issued, rather than the person pretending to need protection from abuse.


Every state has blogs and web sites attesting to the horrible abuse of these orders, which are supposed to stop abuse, but often only serve to harm the one accused.  See one in California, and Massachusetts.  How do we know that these orders do not work?  The statistics of alleged abuse are the same as thirty years ago.  If they stopped real abuse, that is, assault and battery, then the statistics would reflect that success.


What are these monstrosities, and why are they so unfair?


Restraining order laws are one of the most unconstitutional acts ever passed by state legislatures. Under them, a court can issue an order that boots you out of your house, never lets you see your children again, confiscates your guns, and takes your money, all without you even knowing that a hearing took place! Then, when you do finally get to talk to a judge, if your accuser merely whines about feeling afraid, the order will usually stay in place, and your life may be ruined - forever.



How Orders Work In Practice


Even though the burden of proof is supposedly upon the person seeking the order, it rarely is in practice.  In a contest that comes down to "he said - she said", she will almost always win.  Only when a person can bring undeniable, insurmountable proof that the allegations of abuse are false, does a court deny an order.  In other words, the best liar usually wins. 





For example, if the plaintiff or petitioner (the person seeking the order) claims you called her and threatened to kill her, and you have no proof otherwise, you are likely to be the unhappy recipient of a shiny new order that throws you out of your house and keeps you from your children.  


Only if you come in with phone records, and with a priest, a minister and a rabbi, plus 17 alibi witnesses saying you were in church praying at the time she alleged you made the call, will a judge maybe not issue the order. Even then, it could be iffy. 


No Due Process

In a criminal trial, defendants have rights protected by the state and Federal constitutions. Defendants are presumed innocent. They have a right to a trial by jury. They have the right to face their accusers and have evidence presented, and cross examine any witnesses. They may not be deprived of property or liberty without due process of law. The state must prove guilt beyond a reasonable doubt. The law has to be clearly defined. Defendants have a right to a lawyer, and to be provided one if they cannot afford one.

The abuse protection laws throw out all of those protections, and turns our system of justice on its head. With mere allegations, no proof, and virtually no opportunity to respond, a defendant can be deprived of family, property, guns, money, children, job, future employment, and reputation, all in a matter of seconds, without having a clue what just happened.

A person who commits the most trivial "normal" crime - even speeding - has all his or her rights preserved and carefully guarded when before a court, even when the penalty, if found guilty, is only a few dollars. Never is the loss of that person's family, liberty, guns, home, job or children at issue, and yet the court is careful to explain and watch over every constitutional right of that defendant. Not so with restraining order hearings, where a defendant may lose all those things, with NO due process at all.

As bad as this is, it is only half of the story! A Violation of one of these orders is a criminal offense, and you don't have to even have known or intended to violate it. The ‘victim' could have even asked you to do it! All a ‘victim' has to do is allege a violation, and the defendant is arrested, and prosecuted, regardless of the merits of the case.  Many district attorneys around the country have a "no-drop" policy on violations of restraining orders, to satisfy the clamoring abuse victim lobby.

Many of these prosecutions are pure political lynchings, rather than prosecutions of crimes. Because of the stupidity of this policy, it allows unscrupulous ‘victims' who know how to manipulate the system to get the state to prosecute you as a free method of harassment, which costs them nothing. No wonder it is done so much!

So What Can Be Done

Frankly, there is no plan that will improve these laws.  They are so evil and against the spirit of everything the legal system claims to stand for, that mere tinkering is not going to help much.  They need to be totally eliminated, and we should fairly and vigorously enforce real criminal law.  If someone assaults another person, we have a system to prosecute that crime. If someone threatens to assault another, that too is a crime, and can be prosecuted in due course.

Most laws passed within the last thirty to forty years have been layered on top of perfectly OK existing laws, rather than simply enforcing the laws which are there and which would work to combat the evil targeted by the new redundant law. 

Let's just dump these restraining order laws for good.  For more information, see www.massoutrage.com, and click the links on restraining orders.

Thirty Days in the Hole - You Can't Take On the Regime Directly.

So you think you can beat the system, the legal system. They've done you wrong, and you are going to sue the agency and show them a thing or two.  You know what they did was unjust, and you are right on the law and the facts. All you need to do is get in front of the judge and tell the truth.  The judge will have to see the correctness of your argument and rule in your favor.  

Well, it does not work that way.  Clients think I am exaggerating when I warn them, "Suffer any wrong to be done to you, rather than go there."  (Dickens, Bleak House)  Then, when they come out of court, battered and beaten, shaken to the core, they often say that I didn't tell them the half of how bad it would be.  They forget that the judge is on the same team as the rest of the gummint, and they don't know about the barriers to accountability which they have built such as a gem called "sovereign immunity", meaning, "the king can do no wrong."

There was a time near America's founding when few persons ever dealt with the legal system in their entire lifetimes. Now, the system has made everything a matter of law:  a couple kids fighting on the playground, divorce, owning a gun, possessing an herb, driving a car, owning a toilet, or just about anything else.  In fact, you cannot likely name one thing that the law does not regulate in America right now.  

The reality is that we live in a police state.  Defy it, and you get 30 days in the Hole.  You can't fight SWAT teams with guns, judges, and prisons, and a willingness to use them. ("The Hole" is slang for solitary confinement in jail, usually along with nasty mistreatment by the guards.)  And when the system messes up, they don't pay for it - you do. 

A French bureaucrat named Etienne de la Boetie, (1530-1563, pronounced Ay-TIEN de La Bwet-tie), came up with a theory about involuntary servitude.  He stated that: 

It is therefore the inhabitants themselves who permit, or, rather, bring about, their own subjection, since by ceasing to submit they would put an end to their servitude. A people enslaves itself, cuts its own throat, when, having a choice between being vassals and being free men, it deserts its liberties and takes on the yoke, gives consent to its own misery, or, rather, apparently welcomes it.

We have enslaved ourselves, and a large portion of our populace ridicules any attempt to cut the size and scope of government.  If you don't believe me, check out the Huffington Post sometime.  In the preceding link, a bunch of smug statists ridicule some Maine Republicans for voting to adhere to the written limits in our constitution, without ever explaining why they despise such behavior.  I'll explain for them.  Their unstated premise is:  "Expand government, and don't take my goodies away.  Those who want freedom are the enemy."

The reality is that most people at most times in history have chosen slavery and servitude over liberty and individual responsibility.  HuffPo dolts are just doing what Greeks, Romans, Slavs, Europeans, and many others have done throughout recorded time.  They willingly took the yoke of tyrants upon themselves.  And they actually felt pain when the yoke was broken and lifted.  Rome mourned Nero. Many Russians still mourn the death of Josef Stalin, the most monstrous mass murderer of all time after China's Mao Tse Tung.  The U.S. mourned FDR.

Our permanent parasite class, in choosing a yoke for themselves, have also fixed it around the necks of those of us who have to pay for their barbarism and indolence.  Our leaders have much to gain from encouraging this dependence, and so they pander and get elected by promising to give everyone two shirts off your back. It works well for demagogues like Ted Kennedy, Robert Byrd, and Strom Thurmond, who each stayed in the U.S. Senate for over 50 years, using that tactic, and disguising it as "compassion".

The enemies of liberty are now militant in every way against the friends of liberty.  They demand we pay for their free lunch or else.  We must license our every possession, or else.  We must bow to the gods of government, or else.  Or else, what?  Thirty days in the hole.

How do we then throw off tyranny?  That is the theme of this blog - Free the Law.  We will clearly trumpet  the answers to that question in great length in future posts. It involves finding ways to withdraw our consent to be placed in involuntary servitude.

As a practical matter, we will have to implement massive education of the citizens on the subject of how to start to think about liberty, since all such thoughts seem long lost.  Once we begin to start thinking about the unthinkable, we need a mass-movement of non-violent resistance to tyranny which begins to toss out every politician and popinjay who continues to grow, rather than to shrink government.  Finally, we must explore the political secession of a chunk of the U.S. as a viable option.

In the meantime, just don't try to take on the government head on.  You will lose big, and end up doing your thirty days or more in the hole.