Petition — Graham v. Wilson

Su. sem Court, U. x .

} l i. it D Lee

APR 26 1916

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1975

No. 75-1560

JOHN F. GRAHAM,

Petitioner,

v.

JOHN J. WILSON,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

JOHN F. GRAHAM, pro se

2022 Columbia Road, N.W.

Washington, D.C.

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QUESTION PRESENTED .........+.+.+-. 2

CONSTITUTIONAL PROVISION AND

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Cases:

Baltimore & Carolina Line v. Redman,

i ae a a a a

Callan v. Wilson,

OS aor er a a a

Capital Traction Co. v. Hof,

6 ea a a ae

Dimick v. Schiedt,

ES a a ee a ee ee a

Graham v. American Psychiatric Ass’n, et. al.,

D.C.D.C. 74-1765;

aN RS ae ee ee ee

(ii) “

_ Page

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Graham v. Webster,

Graham v. Blazek, et al., | ee ee Oe tea eae

i ert ere a |

In re Ballay,

Graham v. Boruchow, eee. gs uw 6 ok ee

“ Sr ee ese ca

ackson v. Indiana,

Graham v. Cameron, ’ poe ror ; eas 10

at woe - eee a en ae ee

Graham v. Greene, ct al., | weg ieee 7

D.CDC. 1279-67, S. ee eee ee ee ee

4 Tene ar Perr | Oklahoma Contracting Co. v. Magnolia

Graham v. Hoover, i SS.

DCDC. 951-71 i195 F.2d 391;

LDL. 791° 5 5 Se Se eee ee | a eee Gee

arr "eaeee 4 | Thomgeon v. Utah,

ent EP Pt ee a! Oe ie ee : OS earner ee ee es

oo “— ' ‘ | Walker v. Southern Pacific Railroad,

—e ye ee. ig. ee aaa aera eee ee

Graham v. Meltzer ;

, Webster v. Reid,

D.C.DC. 1278-67 ° ° e ° ° ° ° ° ° ° ° ° ° ° 4 | 11 How (52 U.S.) 437 ; : ’ P A . . , F , : . 27

Graham v. Moore ; .

; Wise v. Withers,

DC.DC. 1283-67 ° e ° . ° ° ° ° ° ° e ° ° ° 4 3 Cr. (7 US.) 330 P : ; . : ‘ : 2 ? ’ : ‘ : : 28

Graham v. Ryan, United States Constitution:

DCDC. 128167... - ee ee ee es 4 unas fometees . ww 1

Graham v. United States (1), | Statutes:

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Graham v. United States (2), eens . sks 6 4 OS Oe Pee

Ct. Cl. 207-72,

410US.963 2 2 2 ee ee ee ew ee ee G Beet. Os os as BOs Fea se

(iv)

Page

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42 USC.81983 .... ..- 51+ +s. s s+ 3,4, 16

42US£L.090S ... + + es we we veo eo e & 12 16

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18 E. 3, Stat. 2,c.2. Ot”. eee ee

Rules:

Federal Rules of Criminal Procedure, Rule 5... . . . 5

Supreme Court Rules, Rule 19 .....2.2.2.+%8-. 2

Miscellaneous:

American Bar Assn. Journal, Vol. 58 ........ 24

American Law Review. 0 Ea oe ee a

Code of Professional ——

American Bar Assn. .. . “ae Gr ke ree er 12

Commentories, Book 3, William Blackstone ...... 14

Commentories on the Constitution, Joseph Story .... 14

Eirenarcha, William Lambard .......... . 26

House Report No. 692, 72d Congress, Ist Session . . . . 7

Journal of Consulting and Clinical Psychology, Vol. 35 . 9, 10

(v)

Justice and the Poor, Reginald H. Smith

North American Review, Vol. 192

Preside..cial and State Papers, Theodore Roosevelt .

Proceedings, Assi. of American Law Schools, 31

Science, Vol. 179

Senate Report No. 498, 72d Congress, Ist Session

Unequal Justice, Jerald S. Auerbach .

Washington Post, January 22, 1976 .

WETA-TV, June 17, 1975

Who’s Who in America, 1950-1951, Vol. 26 .

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1975

No.

JOHN F. GRAHAM,

Petitioner,

v.

JOHN J. WILSON,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

To the Honorable, The Chief Justice, and The Associate

Justices of The Supreme Court of the United States.

The petitioner, pro se, respectfully petitions this Honor-

able Court to issue a writ of certiorari to review the judg-

ment of the United States Court of Appeals for the District

of Columbia Circuit which upheid the decree in favor of

respondent and dismissed petitioner’s action for deprivation

of petitioner’s civil rights, and in support of his petition

does show:

2

1. The opinion of the United States Court

of Appeals for the District of Columbia Circuit

is not reported as of this date and the judgment

is appended hereto on page A-1, infra.

2. The judgment of the United States Court

of Appeals for the District of Columbia Circuit

upholding the judgment of the United States

District Court for the District of Colurrmbia and

remanding for entry of a judgment of dismissal

is dated January 26, 1976.

JURISDICTION

The jurisdiction of the Honorable Court to review by

way of certiorari is based on United States Code, Title

28, Sections 1254(1) and 2101(a), and Supreme Court

Rules, Rule 19, Subsection 1(b).

QUESTION PRESENTED

Is a lawyer liable for depriving a plaintiff of his civil

rights in instances where the lawyer knows the plaintiff

will not be afforded his Seventh Amendment right to trial

by jury unless he is represented by counsel and the law-

yer nevertheless declines the plaintiff's proffered employ-~

ment?

CONSTITUTIONAL PROVISION

AND RULE INVOLVED

United States Constitution, Seventh Amendment:

In suits at common law, where the value in con-

troversy shall exceed twenty dollars, the right of

trial by jury shall be preserved, and no fact tried

by a jury shall be otherwise reexamined in any

court of the United States than according to the

rules of common law. [Italics added.]

Rule 38, Federal Rules of Civil Procedure:

(a) The right of trial by jury as declared by

the Seventh Amendment to the Constitution or

was given by a statute of the United States shail

be preserved to the parties inviolate. [Italics

added. |

STATEMENT

On March 17, 1975, respondent, a highly respected

corporation lawyer in the District of Columbia, was prof-

fered employment by petitioner who desired respondent

to represent petitioner in a case then pending in the

United States Court of Appeals for the District of Colum-

bia Circuit. This case (Graham v. American Psychiatric

Association, et al., C.A.D.C. No. 75-1329) was one of

several petitioner had initiated in the U.S. District Court

for the District of Columbia. Although all the cases had

been filed pursuant to 42 U.S.C. § 1983 or 42 U.S.C.

§ 1985 the cases were dismissed by the U.S. District

Court and, where the cases had been appealed, the dis-

missals were upheld by the U.S. Court of Appeals. Be-

cause of petitioner’s inability to retain counsel, petitioner

filed his cases pro se, and the courts’ dismissals leads

petitioner to believe that non-lawyers who attempt liti-

gation without legal counsei will invariably be denied

4

their Seventh Amendment right to trial by jury.'

Petitioner’s cases arose from the fact that, after peti-

tioner had been arrested pursuant to 18 U.S.C. § 876 by

an agent of the Federal Bureau of Investigation for mail-

ing a threatening letter, petitioner had been ordered com-

mitted to St. Elizabeths Hospital (a federal mental insti-

tution) by a judge of the District of Columbia Court of

General Sessions, which court had no jurisdiction of fed-

eral offenses. Petitioner contended he was falsely im-

prisoned in St. Elizabeths Hospital and based his com-

plaints on the following series of events which resulted in

petitioner’s imprisonment:

On November 10, 1965, petitioner mailed a letter

threatening injury to a resident of California who had

From 1967 to 1974, inclusive, petitioner filed thirteen civil ac-

tions, pro se, pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985,

with the U.S. District Court, all of which civil actions arose from

petitioner’s commitment to St. Elizabeths Hospital and all of which

were dismissed on the ground that petitioner had failed to state a

claim upon which relief could be granted. Civil actions filed with

the U.S. District Court by petitioner include Graham v. Meltzer,

No. 1278-67; Graham v. Greene, Kelly and Murphy, No. 1279-67;

Graham v. Cameron, No. 1280-67; Graham v. Ryan, No. 1281-67;

Graham v. Boruchow, No. 1282-67; Graham v. United States, No.

1283-67; Graham v. Moore, No. 2948-67; Graham v. Webster, No.

721-68; Graham v. Blazek and Miller, No. 1381-69; Graham y.

Klinger, No. 1382-69; Graham v. Hoover, No. 951-71; Graham v.

Jacob, No. 1567-73; Graham v. American Psychiatric Association,

Freedman and Gibson, No. 74-1765. In 1972 petitioner filed an

action with the U.S. Court of Claims against the United States for

breach of contract implied in fact (Graham v. United States, No.

207-72), which action was also dismissed. Certiorari was denied by

this court in Graham v. Greene, Judge, et al., 393 U.S. 848 (1968),

and Graham v. United States, 410 U.S. 983 (1973).

5

abducted petitioner’s daughter (see California Penal Code,

§ 265). On November 30, 1965, petitioner was arrested

by one John Blazek, a Special Agent of the FBI. Agent

Blazek did not, however, take petitioner before a U.S.

Commissioner; instead he took petitioner before one Harold

H. Greene, a judge of the D.C. Court of General Sessions,

who was ostensibly sitting as a committing magistrave.

In violation of Rule 5, Federal Rules of Criminal Pro-

cedure, Judge Greene, without affording petitioner a pre-

liminary hearing, invoked 24 D.C. Code § 301(a) to order

petitioner committed to the District of Columbia General

Hospital for a 30-day period of mental observation. Since

24 D.C. Code § 301(a) authorizes only a court to order

such commitments it would appear that Judge Greene

was sitting as a court and not as a comittting magistrate.

If Judge Greene was sitting as a committing magistrate he

denied petitioner a right to a speedy trial by failing, pur-

suant to Rule 5, F.R.Cr. P., to bind petitioner over to

the U.S. District Court; if Judge Greene was sitting as a

court he exceeded the court’s jurisdiction, inasmuch as the

D.C. Court of General Sessions had no jurisdiction of of-

fenses against the United States.

After a 30-day period of confinement in the D.C.

General Hospital petitioner was taken before one

Catherine B. Kelly, also a judge of the D.C. Court of

General Sessions. At a so-called competency hearing in

Judge Kelly’s courtroom one Luke F. Grande, M.D., a

D.C. General Hospital psychiatrist, testified that petition r

was “‘psychotic.” This testimony was patently false since

the D.C. General Hospital clinical records pertaining to

petitioner reflected no aberrant behavior.

On the basis of Dr. Grande’s testimony and on the

motion of the Government, Judge Kelly ordered petitioner

6

committed pursuant to 24 D.C. Code 30l1(a), to St.

Elizabeths Hospital on January 4, 1966. Petitioner

was not, however, indicted until February 24, 1966,

and he was not arraigned until May 23, 1966. On

May 23, 1966, petitioner was arraigned in the U.S. Dis-

trict Court and ordered released from St. Elizabeths Hos-

pital on his own recognizance. On October 19, 1966, the

Government moved for a dismissal of the indictment.

In moving for dismissal of the indictment the Govern-

ment had no alternative. When 18 U.S.C. § 876 was

enacted the Congress made it clear that 18 U.S.C. § 876

was designed to punish kidnapers who wrote extortion

letters. The statute was not enacted to penalize those

who threatened a daughter’s abductors. Since petitioner

was never charged with committing an offense against the

District of Columbia it would appear that, in invoking 24

D.C. Code § 301(a) to effect petitioner’s imprisonment,

Judge Greene and Judge Kelly either committed a cnm-

inal offense (see 18 U.S.C. § 241) or were intermeddlers

and tortfeasors.2 That Judge Greene and Judge Kelly did

not know the jurisdiction of their own court is incredibie

and it must therefore be presumed that they succumbed to

pressure from petitioner’s adversaries in California (or their

agents) to make certain that petitioner was “put away.””?

>The maxim is: With him who meddles lies the blame when

matters don’t to him pertain. (Culpa est immiscere se rei ad se

non pertinenti.) Since petitioner had committed no offense against

the District of Columbia the intermeddling of Judge Greene and

Judge Kelly was an unwarranted exercise in parens patriae.

While Judge Greene and Judge Kelly might deny that they

ordered the imprisonment of petitioner for what he might do

rather than for what he had done (preventive detentica) they ac-

complished the same objective by effecting a change of petitioner's

‘continued)

7

By no stretch of the imagination could mailing a

threatening letter be interpreted as an offense against the

laws of the District of Columbia. Indeed, mailing a

threatening letter is in itself not a criminal offense unless

the threat is directed against the President of the United

States or it is directed against a person from whom a

kidnaper is attempting to extort money. Inasmuch as

3

(continued) status from a sane to an insane person. The precedent

for punishing people because of their status was established by this

Honorable Court in 1944. During World War II 100,000 Japanese-

Americans were evicted from their homes because of their status

by Executive Order 9066; the constitutionality of the Executive

Order was upheld in Korematsuv. United States, 319 U.S. 432.

“For the intent of Congress in enacting 18 U.S.C. § 876 see

Senate Report No. 498, Committee on Post Offices and Post Roads,

72d Congress, Ist Session:

The Senate Committee on Post Offices and Post Roads,

having had under consideration H.R. 96, to punish the

sending through the mails of certain threatening com-

munications, reports the bill with a recommendation

that it do pass. Similar bills were introduced in the

Senate and the House of Representatives to curb the

growing practice of using the mails for sending to in-

tended victims [of kidnaping] demands for money and

dire threats of confinement or death for members of

[the victim’s] family unless the demands were promptly

met. ;

See also House Report No. 692, Committee on the Post Office and

Post Roads, 72d Congress, Ist Session:

Hearings were held by your committee on measures re-

ferred to it providing punishment for depositing extor-

tion communications in the mails, and at these hearings

the need for such legislation was forcibly brovght out by

the proponents of the bills. Since these hearings, a new

outrage has been perpetrated in the kidnaping of the son

(continued)

8

petitioner was not a kidnaper it would appear that, in

mailing a letter threatening injury to a resident of Cali-

fornia, petitioner had committed no crime. For a judge

to order a law-abiding citizen committed to a public men-

tal hospital is an act of unspeakable cruelty; as every

judge is bound to know, it is a foregone conclusion that

any person committed to a mental hospital will be labeled

“schizophrenic,” “psychotic,” “paranoid” or “mentally

ill” (i.e., insane). Speaking for the court Judge Tamm

of the U.S. Court of Appeals for the District of Columbia

Circuit said in Jn re Ballay, 482 F.2d 648 (1973) at 668-

669:

> «466

Besides the social ostracism involved in a find-

ing of mental illness, the very livelihood of the

individual may be at stake * * *. The situa-

tion is aggravated since the discharged person

not only must cope with the stigma of having

once been hospitalized, but he must often con-

tinue to cope with the “mental illness” label

itself. Of the 384 patients hospitalized at St.

Elizabeths in 1969 who were subsequently dis-

missed, only 3 were discharged as “recovered.”

The bulk of the remainder were discharged with

labels such as “improved” or “mentally ill —

not a danger.”

In 1973 Science magazine published an article relating

4 continued) of the famous aviator, Charles A. Lindbergh,

and our mail system used to convey the threats and de-

mands of the kidnapers. *** The crime of kidnaping,

which seems to be on the increase, is more injurious in

its effect on both the victim and the families involved

than any other crime on the calendar of offenses, and

our action is both timely 4nd imperative.

9

the experience of eight persons (a psychology graduate

student, three psychologists, a pediatrician, a psychiatrist,

a painter and a housewife) who were admitted to mental

hospitals when they asserted they were “hearing voices.” .

Although, after admission, they acted normally, each was

discharged with a diagnosis of “schizophrenic — in remis-

sion.” The article said at 254:

{I]t is doubtful that people really regard the

mentally in the same way that they view the

physically ill. A broken leg is something one

recovers from, but mental illness allegedly en-

dures forever. A broken leg does not threaten

the observer, but a crazy schizophrenic? There

is by now a host of evidence that attitudes

toward the mentally ill are characterized by

fear, hostility, aloofness, suspicion, and dread.

The mentally ill are society’s lepers.‘

While psychiatrists assert that there is no more stigma

attached to mental illness than to physical illness, there

is an enormous difference between the psychiatrist’s rela-

tionship to the mentally ill person and the physician’s

relationship to the physically ill person. The psychiatrist

who sticks the “mental illness” label on a mental hospital

inmate becomes the inmate’s de facto guardian ad litem,

whereas the physician treating a patient for physical ill-

ness does not consider this justification for intervening

in his patient’s personal affairs. A 1970 article in the

Journal of Consulting and Clinical Psychology stated at

172:

°D. L. Rosenhan, “On Being Insane in Sane Places,” 179 Science

250 (1973).

10

Despite professional protestations to the contrary,

the prevailing academic view of mental illness is

implicitly a negative one. The development of a

professional lexicon (psychosis, mental illness,

patients, etc.) only temporarily ameliorates this

strongly negative evaluation. The euphemistic

component of such labels fails to conceal the

underlying reference: nonperson. The nonper-

son cannot. manage his own affairs; he cannot

deal with “‘reality,” he must be “treated and

cured.” Other people must decide when he is

well enough to face a bar of justice, and this is

all done “‘for the good of the patient,” who is

obviously not capable of self-determination. To

work toward public acceptance of the professional

definition of mental illness, with its attendant de-

graded status, is to be oblivious to a bare fact:

To call any item of behavior a manifestation of

mental illness means that the behaving person is

then regarded as being incapable of personally

bringing about a change in that behavior.®

©rheodore R. Sarbin and James C. Mancusco, “Failure of a Moral En-

terprise: Attitudes of the Public Toward Mental Illness,” 35 J. Consult.

and Clinic. Psychol. 159 (1970). Although it is an epidemiological im-

possibility for more than SO persons per 100,000 population to be af-

flicted with insanity, annual admissions to public mental hospitals ex-

ceed 200 per 100,000 population. In Jackson v. Indiana, 406 U.S. 715

(1971) Mr. Justice Blackmun, speaking for the Court, said at 736-737.

The States have traditionally exercised broad power to

commit persons found to be mentally ill. The substansive

limitations in the exercise of this power and the procedures

for invoking it vary drastically among the States. * * * The

bases [for commitment] that have been articulated include

(continued)

1]

When petitioner met with respondent on March 17, 1975,

petitioner anticipated that, as an officer of the court,

respondent might wish to investigate the circumstances of

pétitioner’s commitment to St. Elizabeths Hospital. Re-

spondent, however, displayed no such curiosity. Respon-

dent readily acknowledged that, because the D.C. Court

of General Sessions had no jurisdiction of federal offenses,

petitioner’s commitment to St. Elizabeths Hospital was

unlawful, but he declined petitioner’s proffered employ-

ment for what appeared to be frivolous reasons. Although

respondent has since claimed he had no obligation to

© (continued) dangerousness to self, dangerousness to others,

and the need for care or treatment or training. Consider-

ing the number of persons affected, it is perhaps remark-

able that the substantive constitutional limitations on

this power have not been more frequently litigated.

What is even more remarkable is this Honorable Court’s innocence. Ex-

cept in very rare instances no person who has been unjustly or unlaw-

fully committed to a mental hospital has been awarded damages;

usually the person injured cannot even get his day in court. As the

law now exists a psychiatrist is regarded by the courts as a competent

witness but a person who has been labled “‘mentally ill” by the self-

same psychiatrist is regarded as incompetent. There may have been

instances where a court has questioned the qualifications and motives

of a psychiatrist sued by a person the psychiatrist had labeled “mentally

ill” but petitioner does not know of any. A possible explanation for

the high rate of admissions to public mental hospitals is the fact that

appropriations to public mental hospitals exceed $2 billion a year

(according to the Washington Post, January 22, 1976, President

Ford has proposed that the 1977 appropriation for St. Elizabeths

be raised from $66 million to $133 million) and the fact that the

number of public mental hospital employees is greater than the

number of persons employed by, for example, Standard Oil of New

Jersey. If psychiatrists were not prodigal in their diagnoses of

mental illness the stability of this gigantic bureaucracy would be

seriously jeopardized.

12

accept petitioner as a client his position is not supported

by the American Bar Association’s Code of Professional

Responsibility.’ When it became apparent that respon-

dent had acted contrary to the letter and the spirit of the

ABA’s Code petitioner filed a civil action against respon-

dent in the U.S. District Court pursuant to 28 U.S.C. §

1343 and 42 U.S.C. 8 1985. This action was dismissed

by the District Court on August 27, 1975, and the U.S.

Court of Appeals granted respondent’s motion for sum-

mary affirmance on January 26, 1976.

T The Code of Professional Responsibility includes the following

paragraphs:

EC 2-26: A lawyer is under no obligation to act as ad-

viser or advocate for every person who may wish to be-

come his client; but in furtherance of the objective of

the bar to make services fully available, a lawyer should

not lightly decline proffered employment. The fulfillment

of this objective requires acceptance by a lawyer of his

share of tendered employment which may be unattractive

both to him and to the bar generally.

EC 2-28: The personal preference of a lawyer to avoid

adversary alignment against judges, other lawyers, public

officials, or influential members of the community does

not justify his rejection of tendered employment.

It is understandable (though not excusable) that Jawyers are reluc-

tant to antagonize psychiatrists, since psychiatrists can do lawyers

a lot of favors. Ezra Pound spent more than twelve years in St.

Elizabeths Hospital, during which time his estate was administered

by Covington & Burling. In 1958 Arnold, Fortas & Porter arranged

to have Pound discharged from St. Elizabeths as “‘incurably insane”

and thereby became eligible to share legal fees with Covington &

Burling as Pound’s estate administrators.

13

ARGUMENT

Although the right of trial by jury in civil cases has

been questioned by persons seeking to reform the courts

such questioning is academic as long as the Constitution

includes the Seventh Amendment. Despite the desire of

some persons to abolish the Seventh Amendment the fact

remains that without the protection of the Seventh Amend-

ment every plaintiff in a law suit would be subjected to

the caprice of a possibly venal judge. If the judge favors

the defendant the judge can, without knowing any of the

facts, throw the case to the defendant by dismissing the

complaint. Needless to say, if this were the absolute

prerogative of judges the opportunities for judicial tyranny

would be limitless, and it was to prevent this sort of

tyranny that the Seventh Amendment was included in the

Constitution by the Framers. This was emphasized in the

Opinion of the Court by Mr. Justice Brewer in Walker vy.

Southern Pacific Railroad, 165 U.S. 593 (1897) at 596:

The Seventh Amendment, indeed, does not at-

tempt to regulate matters of pleading or prac-

tice, or to determine in what way issues shall

be framed by which questions of fact are to

be submitted to a jury. Its aim is not to pre-

serve mere matters of form and procedure but

substance of right. This requires that questions

of fact in common law actions shall be settled

by a jury, and that the court shall not assume

directly or indirectly to take from the jury or

to itself such prerogative. [Italics added.]

The right of trial by jury in civil cases is not a moder

invention. As Mr. Justice Sutherland said for the Court

in Dimick v. Schiedt, 293 U.S. 474 (1934) at 485-486:

14

The right of trial by jury is of ancient origin,

characterized by Blackstone as “the glory of ‘

the English law” and “the most transcendent

15

>

mined by the jury under appropriate instructions

by the court. [Italics added.]

This opinion was reiterated by the United States Court

privilege which any subject can enjoy” (Bk. 3, y . es .

p. 379); and, as Justice Story said (2 Story on of Appeals for the Fifth Circuit where, in Oklahoma Con-

the Constitution, § 1779), “ . . . the Constitu- tracting Co. he Magnolia Pipe Line Co., 195 F.2d 391

tion would have been justly obnoxious to the (1952), certsorart denied, 344 U.S. 921 (1953), Judge

; ca Russel! said at 396:

most conclusive objection if it had not recog-

nized and confirmed it in the most solemn Any party asserting rights in an action at com-

terms.” With, perhaps, some exceptions, trial mon law, whether affirmatively or defensively,

by jury has always been, and still is, generally whether by complaint or counterclaim, in a

regarded as the normal and preferable mode of declaratory judgment action or other proceed-

disposing of issues of fact in civil cases at law ing, is entitled, upon demand, to have a jury

as well as in criminal cases. Maintenance of pass upon any issue triable of right by a jury.

the jury as a fact-finding body is of such im- Proper regard for the importance of this right

portance and occupies so firm a place in our discloses the danger of any retrospective weigh-

history and jurisprudence that any seeming ing of injury resulting from the improper denial

curtailment of the right to a jury trial should of trial by a jury. Where rights are asserted in

be scrutinized with the utmost care. actions at common law within the constitutional

A few months later Mr. Justice Van Devanter, speaking provisions the proper course is for the Court to

for the Court, said of the Seventh Amendment in Balti- Place the case — the jetta docket as provided

more & Carolina Line v. Redman, 295 U.S. 654 (1934) by the Federal Kules of Civil Procedure, 28 U.S.

at 657: C.A. [Italics added.]

The aim of the [Seventh] Amendment, as this

Court has held, is to preserve the substance of

the common-law right of trial by jury as dis-

tinguished from mere matters of form or pro-

cedure, and particularly to retain the common-

law distinction between the province of the ‘

court and that of the jury, whereby, in the ;

absence of express or implied consent to the

contrary, issues of law are to be resolved by

the court and issues of fact are to be deter-

Although the right to trial by jury in civil cases is well

established the federal judiciary has not been bound by

the Seventh Amendment in cases where petitioner has

been the plaintiff. Not only have petitioner’s cases been

regularly dismissed by the Unitedy§tates District Court

but the dismissals have with equal regularity been upheld

by the United States Court of Appeals. In his cases peti-

tioner alleged false-imprisonment and since the circum-

stances of the false imprisonment were such that peti-

tioner could maintain an action pursuant to 42 U.S.C.

16

$1983 and/or 42 U.S.C. 81985, it would appear that petitioner

was denied his right to trial by jury because he was not repre-

sented by an attorney. It is therefore petitioner’s position

that, where a lawyer knows his refusal to accept a plaintiff as

a client will result in the plaintiff being denied the pro-

tection of the Seventh Amendment, the lawyer is liable

for the deprivation of the plaintiff's civil rights.

Respondent has attempted to argue that petitioner

thinks a lawyer should accept proffered employment

from anyone whe drifts into his office. This is, of

course, nonsensical. Corporation lawyers usually have

no expertise in negligence or criminal matters nor are

negligence and criminal lawyers generally expert in cor-

porate law. Indeed, a lawyer does his client a disservice

where he represents the client in a case beyond his prof-

fessional competence. Petitioner avers, however, that a

lawyer has an obligation to the courts, to his prcfession

and to the public to make certain that every person who

solicits his services is given the opportunity to obtain

counsel without having to engage in a door-to-door

canvass of the community’s legal talent. Lawyers know

other lawyers; the telephone has facilitated communica-

tions, and there seems to be little excuse for any lawyer

to turn a prospective client away empty-handed.

In his opposition to respondent’s motion in the Circuit

Court for summary affirmance petitioner said:

Appellee has filed a motion for summary affirm-

ance. The thrust of appellee’s motion is that (a)

appellant believes appellant “is entitled to be

represented by any attorney he may choose, or

any case, no matter how lacking in merit” and (b)

there is nothing in the Constitution or the United

17

States statutes to support such a theory.

This is not appeliant’s position. It is appellant’s

position that if a lawyer declines, for personal

reasons, to accept proffered employment, he

nonetheless has a professional responsibility to

make certain that the person soliciting his serv-

ices finds legal counsel elsewhere. Appellant

contends that (a) the courts are not receptive

to civil actions where the plaintiff is not repre-

sented by an attorney and (b) where a plain-

tiff in a civil action cannot obtain legal counsel

the plaintiff is deprived of the right to trial by

jury which is guaranteed by the Seventh Amend-

ment.

In fairness to appellee it should be noted that

the Bar Association of the District of Colum-

bia does not look with favor on appellant’s

case. On January 2, 1976, appellant wrote a

letter to one David N. Webster, president of

the Bar Association of the District of Colum-

bia, which letter said in part:

The gravamen of my court litigation is

very simple: I aver that I was unlaw-

fully committed to St. Elizabeths Hos-

pita! in 1966. ‘Either I was or I was not

and it should not take ten years to ob-

tain a judicial answer to that question.

I thercfore desire you to consider this

letter as a formal request that the Bar

Association of the District of Columbia

inake an exhaustive inquiry into the cir-

cumstances of my commitment to St.

18

Elizabeths Hospital and to file its findings

in the form of an amicus brief with the

U.S. Court of Appeals. I particularly de-

sire the Bar Association of the District of

Columbia to discover what person or per-

sons originated the idea to secure my com-

mitment to St. Elizabeths Hospital rather

than to bring me to trial in accordance

with due process of law. In making this

inquiry the Bar Association of the District

of Columbia can obtain assistance from

Judge Hannon of the District of Columbia

Superior Court and E. Grey Lewis, general

counsel of the Department of the Navy, both

19

On February 21, 1966, Assistant United States

Attorney (AUSA) Washington, D.C., advised

that Graham is contesting his commitment on the

grounds that DCCGS [District .f Columbia Court

of General Sessions] does not have jurisdiction

to commit him on a felony charge. ad-

vised that although this commitment was arranged

by the United States Attomey's Office, it is recog-

nized that a legal question does in fact exist as to the

legality of the commitment.

Appellant was not indicted util February 24, 1966, and

he was not arraigned until May 23, 1966, when he was

released by the U.S. District Court on his own recogni-

zance. On October 19, 1966, the Government moved

for dismissal of the indictment.

While appellant respects Mr. Webster’s opinion

of whom became familiar with my case when

they were Assistant U.S. Attorneys. appellant relies heavily on a well-publicized state-

ment of Mr. Justice Stewart of the United States

Mr. Webster’s reply, under date of January 5, Supreme Court, to wit:

1976, stated: | If “Equal Justice Under Law” is to be any-

I have your letter of January 2, 1976, and | oe on tg ee

I have received a copy of your brief. I | tive legal representation and services. But

do not anticipate that the Bar Association there is a wide gap, it seems to ne between

will undertake an investigation of these the growing needs of many Americans for

charges but I will discuss it with the Ex- legal assistance, and the response of the

ecutive Committee.” , legal profession.

* It would appear that the Bar Association’s reluctance, as Reforms can be generated from within the

expressed by Mr. Webster, to investigate the charges made by profession, or they can be forced upon us

appellant was prompted by the Bar Association’s desire to by Congress and the Courts, But they

avoid embarrassment. If an investigation had been made by will surely come.

the Bar Association it would have quickly become evident ;

that, when appellant was committed to St. Elizabeths Hospital, For ultimately, we are not talking about

the Government had reason to believe the commitment was the right of a group of businessmen to

unlawful. Appellant was confined to St. Elizabeths Hospital make a profit or to regulate themselves; a

from January 4, 1966, to May 23, 1966. An FBI memorandum, license to practice law is more than a li-

dated February 21, 1966, which is included in the FBI files per- cense to charge for services rencered. It

taining to appellant, stated in part:

20

| 21

is a public trust; the law is a public profes-

sion. And it is the obligation of ail of us

engaged in that profession to see to it that

adequate legal representation is provided for |

everyone who needs it. [Broadcast by

WETA-TV, June 17, 1975.]

In the same year (1905) Mr. Brandeis, a future Justice

of this Honorable Court, told a meeting of the Harvard

Ethical Society:

Instead of holding a position of independence,

between the wealthy and the people, prepared

to curb the excesses of either, able lawyers have,

On the grounds that every American citizen is en- to a great extent, allowed themselves to become

titled to the constitutional right of trial by jury

in civil cases and that this right is unavailable to

plaintiffs who are not represented by an attorney,

appellant opposes appellee’s motion for summary

adjuncts of great corporations and have neglected

their obligation to use their powers fur the pro-

tection of the people. We hear much of the

“corporation lawyer,” and far too little of the

affirmance. “people’s lawyer.” * * * Lawyers who would

Mr. Justice Stewart is not the first to comment on the indignantly retire from a court case in the jus-

extent to which lawyers are derelict in serving the public. tice of which they believed, if they had reason

In 1905, in an address at Harvard University, President | to think that a juror had been bribed or a wit-

Roosevelt said: | ness had been suborned by their client, are con-

[M]any of the most influential and most highly

remunerated members of the bar in every centre

of wealth make it their special task to work out

bold and ingenious schemes by which their very

wealthy clients, individual or corporate, can evade

the laws which are made to regulate in the inter-

est of the public the use of great wealth. Now,

the great lawyer who employs his talent and his

learning in the highly remunerative task of ena-

bling a very wealthy client to override or circum-

vent the law is doing al! that in him lies to en-

courage the growth in this country of a spirit of

dumb anger against ail laws and of disbelief in

their efficacy.®

tent to serve their client by honest arguments

before a legislative committee although they have

as great reason to think that their client has

bribed members of the legislature or corrupted

public opinion. * * * The people are beginning

to doubt whether in the long run democracy

and absolutism can co-exist in the same com-

munity; beginning to doubt whether there is

justification for the great inequalities in the

distribution of wealth, for the rapid creation

of fortunes, more mysterious than the deeds

of Aladdin’s lamp. The people have begun to

think; and they show evidences on all sides of

a tendency to act.?

| 9 Louis D. Brandeis, “The Opportunity in the Law,” American

8 |

Theodore Roosevelt, Presidential and State Papers (New York: | Law Review (1905), 559 and 562.

1910), Vol. 4, 419-420.

22 23

Speaking to the American Bar Association in 1910 Dr. , the means of extortion. * * * The effects of

Wilson, who two years later was to be elected President | this denial of justice are far reaching. Nothing

of the United States, said: | rankles more in the human heart than the feel-

ing of injustice. It produces a sense of helplessness,

then bitterness. It is brooded over. It leads

directly to contempt for law, disloyalty to the

government, and plants the seeds of anarchy.

The conviction grows that law is not justice

A new type of lawyers had been created; and

that new type has come to be the prevailing

type. Lawyers have been sucked into the mael- |

strom of the new business system of the coun-

try. * * * They do not practice law. They do , Pre

not handle the general, miscellaneous interests | and challenges the belief that justice is best se-

of society. They are not general counsellors | cured when administered according to law. The

of right and obligation. * * * They do not poor come to think of American justice as con-

taining only laws that punish and never laws

that help. They are against the law because

they consider the Jaw against them. A persua-

sion spreads that there is one law for the rich

and another for the poor. !!

Even when the United States was in the depths of the

Depression the nation’s lawyers, many of whom were

themselves making a scanty living, did little to assist the

| dispossessed. In 1933, at the 3lst annual meeting of the

Denial of justice is not merely negative in effect; | Association of American Law Schools, Professor Llewellyn

it actively encourages fraud and dishonesty. * * * | of the Columbia University School of Law, said:

Everywhere it abets the unscrupulous, the crafty,

and the vicious in their ceaseless plans for ex-

ploiting their less intelligent arc less fortunate

fellows. The system not only robs the poor of

their only protection, but it places in the hands

of their oppressors the most powerful and ruth-

less weapon ever invented. The law itself becomes

concern themselves with the universal aspects

of society. * * * Lawyers are not now regarded

as mediators of progress. Society was always

ready to be prejudiced against them; now it

finds its prejudice confirmed. '°

In 1919 Mr. Reginald H. Smith, a partner in the Boston

law firm of Hale & Dorr, observed in a study commissioned

by the Carnegie Corporation: '

[T]he bar is a monopoly. It is the only wholly

irresponsible rionopoly in America. * * * There

isn’t anybody that is resPonsible. Nevertheless,

the monopuly is perfect. You either get your

lawyer, or you don’t get your rights. !?

\l Reginald Heber Smith, Justice and the Poor (New York: 1971),

9-10.

10

Woodrow Wilson, “The Lawyer and the Community,” 192 12

North American Review (1910), 609-610.

Karl Llewellyn, “The Bar Specializes,” 31 AALS Proceedings

(1933), 65.

oe

24

Professor Llewellyn’s harsh appraisal of the bar did not

diminish with the passage of time. Nearly four decades

later Dean Ehrlich of the Stanford Law School stated:

I am disturbed by how many law students picture

the legal profession as not simply amoral but posi-

tively immoral. In the past the public’s opinion

of the profession often has not been an attractive

one. Since colonial times there never has been

unqualified public respect for the legal profession.

But it has rarely been viewed with as much disdain

by as many who are about to become its mem-

bers. 13

It is true that, in the nineteenth century, eminent mem-

bers of the bar, fearful of revolution precipitated by the

public’s discontent with one-sided justice, organized Legal

Aid Societies to help the needy obtain legal counsel.

Theoretically Legal Aid was supposed to receive financial

support from affluent lawyers; in fact, Legal Aid received

such penurious support from the bar that it became, in

the words of Professor Auerbach, “‘the fig leaf that covered

the modesty of professional efforts to remedy injustice

inherent in service-for-a-fee professionalism [and] enabled

lawyers to disregard the unmet legal needs of a vast lower-

and middle-income populace.” '* There have been recent

Suggestions that legal insurance, comparable to health in-

surance, be made available to the public, but if the na-

tion’s experience with racketeering doctors is indicative,

'3-Thomas Ehrlich, “Manners, Morals and Legal Education,” 58

A.B.A.J. (1972), 1176.

I4yerold S. Auerbach, Unequal Justice (New York: 1976), 204.

no =

25

legal insurance will merely encourage barratry and champ-

erty.

Aspirants to public office have discovered that it is a

sure-fire rabble-rouser to deplore the spiraling incidence

of crime in the United States. But they carefully avoid

mentioning that the one factor which contributes most

to crime is the public’s lack of access to the courts.

Courts were established in ancient times as an alternative

to the personal vendetta, it having been reasoned that

punishment imposed by the State for felonies and mis-

demeanors in criminal matters and the payment of money

to persons injured by torts in civil matters were more

conducive to domestic tranquillity than the spilling of

blood. Thus, to provide the means of settling neighbor-

hood disputes with the speediest possible dispatch, Edward

the Third created justices of the peace. '5 In his defini-

tive book on justices of the peace Lambard said:

It is good counsel *** that *** in the making of

the laws and the commission of the peace (fol-

lowing that advice) doth leave little (or nothing)

to the discretion of justices of the peace, but

bindeth them fast with the chains of the laws,

customs, ordinance and statutes.*** And truly it

is to be wished that justices of the peace would

154g E. 3, Stat. 2, c. 2: Item. That two or three of the best

of reputation in the counties shall be assigned keepers of the peace

by the King’s commission, (2) and at the same time need shall be,

the same, with other wise and learned in the law, shall be assigned

by the King’s commission to hear and determine felonies and tres-

passes done against the peace in the same counties, and to inflict

punishment reasonable according to law and reason, and the man-

ner of the deed.

26

not * * * arrogate unto themselves authority to

use their discretion, or to play (as it were) the

Chancellors in every cause that cometh before

them. For no way better shall the discretion of

the justice of the peace appear than if he (remem-

bering that he is /ex loquens) do contain himself

with the lists of law, and (being soberly wise) do

not use his own discretion, but only where both

the law permitteth, and the present case requireth

it.'6

Despite the fact that justices of the peace have proved

their value through the centuries there has been a recent

tendency to make the people’s access to the courts even

more difficult. With an eye io bigger salaries, marble

courtrooms and the arrogation of power, judges have en-

couraged legislators to abolish inferior courts; in the

District of Columbia, for example, the Court Reform and

Criminal Procedure Act of 1970 transformed the D.C.

Court of General Sessions into the D.C. Superior Court

(a district court). The D.C. Superior Court did not,

however, relinquish its jurisdiction of small ciaims and

misdemeanors. As a consequence the D.C. Superior Court

is sO clogged with supplicants that it is small wonder the

Street-wise who have been cheated by their neighbors and

exploited by the System resort to theft and violence in

their quest for justice.

SWittiam Lambard, Eirenarcha; or, Of the Office of the Justices

of the Peace (London: 1581; New York: 1970), 63-65.

ee ee

27

If the judiciary and the bar had a sincere desire to pro-

vide everyone with the protection of the law they would

insist that justices of the peace be as numerous and ac-

cessible as drug stores. Where neighbors know that, with-

in a five-minute walk, they can find a judge who will

listen to their grievances they will be less tempted to rely

on self-help. Some starry-eyed members of the bar have

attempted to relieve the pressure on the poor by opening

storefront offices but what the people need are not store-

front lawyers but storefront judges. In every city there

are undoubtedly scores of lawyers who would be willing

to sit for a couple of hours a day as neighborhood jus-

tices of the peace. Having the confidence (and, hopefully,

the affection) of the neighborhood such justices of the

peace could administer the law with maximum informality,

and where jury trials were demanded, plaintiffs and de-

fendants alike would know that the merits of their cases

were being judged by those who were truly their peers.

There is well-established precedent for the preservation of

jury trials in justice of the peace courts in the District of

Columbia. In Capital Traction Co. v. Hof, 174 U.S. 1

(1898) Mr. Justice Gray, speaking for the Court, said at

5, 13 and 17:

It is beyond doubt, at the present day, that the

provisions of the Constitution of the United

Stetes securing the right of trial by jury, whether

in civil or in criminal cases, are applicable to the

District of Columbia. Webster v. Reid, (1850) 11

How. 437, 460; Callan v. Wilson, (1888) 127

U.S. 540, 550; Thompson v. Utah (1898) 170

U.S. 343.

28

It must therefore be taken as established, by

virtue of the Seventh Amendment of the Con-

stitution, that either party to an action at law

(as distinguished from suits of equity or in ad-

mirality) in a court of the United States, where

the value in controversy exceeds twenty dollars,

has the right to a trial by jury.

* * *

Justices of the peace in the District of Columbia,

in the exercise of the jurisdiction conferred upon

them by Congress to try and determine cases,

criminal or civil, are doubtless, in some sense,

judicial officers. Wise v. Withers, 3 Cranch, 330,

336. But they are not inferior courts of the

United States, for the Constitution requires judges

of all such courts to be appointed during good be-

havior.

CONCLUSION

While the maladministration of justice in the United

States should be the concern of both the bench and the

bar the ultimate responsibility for correcting the evils of

the system lies with this Honorable Court. The unmiti-

gated fact of the matter is that neither the bar nor the

courts are serving the needs of the public, and they will

continue in their failure to serve the public as long as the

courts are under the domination of the corporation law-

yers. Corporation lawyers, who often make $200,000 or

more a year, regard salaried judges with genteel scorn,

and judges, ever mindful of the financial power that cor-

poration lawyers represent, respond with appropriate

———

29

deference.'? As long as the courts are the private pre-

serve of the rich it does not suffice for Mr. Justice

Stewart and his brethren to indulge in felicitous rhetoric;

the reforms necessary to restore the courts to the people

are long overdue.

Petitioner contends (1) that, like all American citizens,

he is entitled to the protection of the Seventh Amendment

and (2) that respondent deprived petitioner of his civil

rights when, for personal reasons, he declined petitioner’s

proffered employment. (“You either get your lawyer, or

you don’t get your rights.”) Petitioner suggests that, in

granting respondent’s motion for summary affirmance, the

District of Columbia Circuit placed no credence in Mr.

Justice Stewart’s views pertaining to professional responsi-

bility, on which views petitioner heavily relied. In short,

it would appear that, in the eyes of the Circuit Court,

Mr. Justice Stewart is a clown.

It is, of course, not only Mr. Justice Stewart whom

the Circuit Court has made to look like a clown. Associ-

ated with him are Theodore Roosevelt, Woodrow Wilson

and generations of thoughtful critics of the nation’s judi-

cial system. Petitioner does not mean to imply that the

17 Petitioner's father, Arthur Butler Graham, was among the

most able Wall Street lawyers of his generation. (Who's Who in

America, 1950-1951, Vol. 26, 1039). When petitioner suggested

that petitioner’s father spend his twilight years on the bench peti-

tioner’s father was deeply offended. The quality that distinguished

petitioner’s father from corporation lawyers such as respondent

and from most judges can best be described as noblesse oblige.

30

learned judges of the District of Columbia Circuit have a

disrespect for this Honorable Court, or that all corpora-

tion lawyers are wicked. Petitioner suggests that, like the

lowliest criminal defendant, judges and lawyers are trapped

by a system from which they cannot escape.

Democracy is not the natural state of man; men the

world over tend to gravitate to elitism and authoritarianism.

To escape enslavement they embrace the system that prom-

ises them the oppertunity to be the enslavers and discover,

too late, that the system itself has become the enslaver.

This is the trap in which the bar and the judiciary have

been caught, a trap that only a spectacular act of violence

can destroy. Petitioner therefore proposes to procure

respondent’s assassination as an object lesson to all lawyers.

Whether petitioner consummates the deed depends upon

respondent’s reaction to petitioner’s proposal. If respon-

dent has an abiding faith in the system as it now exists

respondent will stand firm and, if need be, sacrifice his

life to insure the system’s preservation. If, however,

respondent’s faith in the system as it now exists is not

complete he will join petitioner in an effort to rejuvenate

it. Petitioner is consciously risking his own life in order

to secure the return of the courts to the people, and if

petitioner is willing to face death to uphold a principle it

is reasonable to expect respondent to do the same.

Respectfully submitted,

JOHN F. GRAHAM, pro se

2022 Columbia Road, N.W.

Washington, D. C.

APPENDIX

[Filed January 26, 1976]

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 75-2068 September Term, 1975

Civil Action #75-1095

John F. Graham,

Appellant

v.

John J. Wilson,

Appellee

Before: Wright and MacKinnon, Circuit Judges

ORDER

On consideration of appellee’s motion for summary af-

firmance, and of the response thereto, it is

ORDERED by the Court that appellee’s aforesaid mo-

tion for summary affirmance is granted.

The Clerk is directed to transmit a certified copy of

this order to the Clerk of the District Court as promptly

as the business of his office permits.

Per Curiam