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Human Rights Alert

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Tuesday, February 1, 2011

Press Release
'Don't Ask, Don't Tell' in the US Court of Appeals, 9th Circuit: Request for Verification of
the Dockets Validity by Clerk Molly Dwyer is Posted by the Court
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, February 1 - Log Cabin Republicans v USA – appeals pertaining to the 'Don't Ask, Don't Tell' policy of the
US Armed Forces – are now before the US Court of Appeals after litigation in the US District Court, Central District of
California.
As part of his Motion to Intervene in the appeals, Dr Joseph Zernik of Human Rights Alert (NGO) questioned the validity
of the two opposing Judgments, which were listed in the online docket of the US District court. Clerk Terry Nafisi of the
US District Court refuses to certify the online docket and the October 2010 Judgment, from which the appeals were
taken.
The Log Cabin Republicans opposed the Motion to Intervene and the request for the dismissal of the appeals, based on
invalidity of the October 2010 Judgment. [4] However, even in their opposition to the Motion to Intervene, the Log Cabin
Republicans have failed to produce the certificate of the October 2010 Judgment from the US District Court.
Now, a request by Dr Zernik has been posted in the online docket for Clerk of the US Court of Appeals Molly Dwyer to
verify the validity of the dockets in the appeals. [1]
In his request, Dr Zernik notes 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 claims that the online dockets of the US Court of Appeals remain vague and ambiguous. Ambiguity in court
records should be seen as violation of Due Process rights.
Dr Zernik asks that Clerk 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 Dwyer, 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 Dwyer, as a prerequisite for opening the dockets
of the appeals.
• Validity of unsigned orders by the Court of Appeals, 9th Circuit, which were published in the online dockets of the
appeals.
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 US courts and called for initiation of corrective actions:
• Restoring by the US Congress of key provisions of the Salary Act of 1919, which placed the clerks of the US courts
under the authority of the US Attorney General
z Page 2/3 February 1, 2011

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 restored the role of 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 by US Congress 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 that are published in the online dockets. The online system was implemented over the past
decade in the US 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 US 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 new electronic system in alleged
violation of First Amendment rights. Therefore, the US Congress should perform its duties and establish the system by
law. Implicit in such law should be the requirement for publicly and legally accountable validation (certified, functional
logic verification) of the system.
• “A watchful eye” on the US courts by the public at large and computing professionals, in particular
Implementation of the electronic system of the US courts affected a sea change in court procedures. Nevertheless, no
rules clarifying the new electronic court procedures have been enacted by the US Congress, and no rules have been
published by the US courts either. Based on his review of the system, [2] Dr Zernik claimed that the system failed to
meet basic standards of validity and integrity, which are expected in electronic government systems in general, and in an
electronic court system, in particular.
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.
____
LINKS:
[1] 11-01-27 Log Cabin Republicans v USA et al (10-(10-56634) - Dkt 054-056: Zernik's a) Reply in support of Motion to Intervene, b)
Request for Statement by Clerk Dwyer, as posted in the PACER docket
http://www.scribd.com/doc/47983546/
[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/
________

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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