Yesterday, on Friday, June 26th, 2009, myself and one of my best and most respected friends and colleagues, R.J. Partington III, represented ourselves in the Second Circuit Court of Appeals in Lower Manhattan. The only higher court in the United States Court system is the U.S. Supreme Court.
The entire experience was one of the most intense, trying, and in some ways, rewarding of my life so far.
If you want some background on the case, which is significant both in fact and in legal precedent, please check out a documentary and website about it at http://www.campuscoup.org.
To (very) briefly recap the question before this court:
We were appealing an order from a federal district court that granted immunity (called “qualified immunity”) to four officials at SUNY New Paltz whom, we allege, violated our rights by retaliating against us for protected speech. The district court order held, in essence, that we had not alleged conduct on the part of these officials that the law allowed us to hold them liable for.
In our opinion, if the district court order is allowed to stand, then college officials at public universities will have very wide, almost all-encompassing immunity from free speech lawsuits.
The reason we represented ourselves instead of retaining an attorney was that the main litigation tactic on the part of the SUNY Administration was to paint a picture of us personally as disruptive students and all around terrible people. We wanted to show the judges very directly not only that we are gentle, caring, passionate people, but that we have a solid understanding of the legal framework in which the questions of this case must be answered.
Also, we’re poor. Broke in fact. Hiring an attorney for this argument was definitely not an option. Consider making a donation to the student free speech legal action fund.
So the oral argument on our appeal was to be heard by a panel of three judges.
On Monday of this week, we found out who the three judges were:
- Judge Richard C. Wesley, whom a friend of mine who watches the Second Circuit described as “the most conservative judge on the entire circuit,”
- Judge Rosemary S. Pooler, the most senior active judge on our panel and whom my same friend described as “perhaps the most liberal judge on the second circuit,” and
- Judge Joseph M. McLaughlin, a judge in Senior status who is something of a moderate conservative.
We spent the week hanging around the neighborhood of the court and observing many sessions. We wanted to understand how these judges operated: How many and what sort of questions they asked, what kinds of arguments they found compelling, even their senses of humor.
I quickly fell in love with Judge Wesley. I have always liked conservative jurists. I don’t identify completely with either “major” political party, although I am a registered Republican – a move I proudly made to vote for Ron Paul in the primary. In some areas, like journalism, I like “left” thinking better; but in the court system, I seem to identify with conservative judges more.
Wesley asked sharp, pointed, unearthing questions and had absolutely no patience for contrivances or obfuscation on the part of arguing counsel. Best of all, he genuinely seemed to want to make the correct decision vis a vis the law in every case that we observed.
Judge Pooler, the only Woman on our panel, seemed diplomatic and compassionate. Unlike her two colleagues, she made eye contact with the arguing counsel for nearly the entire argument. Her questioning seemed to focus on facts more than laws, and it was obviously a priority for her to wrap her head around a situation during oral argument.
Judge McLaughlin was certainly the hardest to read. He rarely spoke or even showed any expressive reaction at all. He scowled or frowned most of the time, although occasionally he broke a very genuine smile or even a small laugh.
In preparing for our argument, R.J. and I decided that I’d try to engage Judge Wesley and show that we were taking the case seriously and understood the law we were pleading while R.J. would try, as best we could in five minutes, to make sure that Judge Pooler understood the gravity of the, er, bullshit we had been put through. We hoped to win both of them over – we thought of Judge McLaughlin as a wild card, who might side with us if the other two did.
We, researched, prepared, drilled, and rehearsed all day every day this week.
The research was very exciting for me, strange as that may sound. If you ever decide to represent yourself in court, give yourself a lot of time to do research and try to do it in many different places and states of mind. Our research for this oral argument was mostly already done because we wrote our own brief, which we submitted nearly a year ago now.
For preparation, we basically just made an outline of the strongest points of our brief, and then color coded it: R.J.’s points were blue and mine were red. We also anticipated what the SUNY Administration might think were there strongest arguments (although, in our view, their case is miserably weak overall) and prepared rebuttals for these.
When the calendar came out (the same document that told us which judges had been assigned to our panel) it also told us how much time we had to argue: 5 minutes. So obviously with every single point in our argument we had to ask ourselves, “how can we make this point stronger in less time?”
We practiced again and again in the courtyard of an NYU Law School building on Wednesday and Thursday. We had a stopwatch and we just went through our argument, trying to keep it to 5-minutes. After 5 or 6 times, we had it pretty much down, so we starting interrupting each other, pretending to be the judges asking questions that we thought they might ask.
This was a trying time. We both got frustrated at times, but we kept drilling until the evening before our session.
On the day of the argument, I woke up around 6:20AM. I was unable to sleep much at all. I was achy and tense. The stress and anticipation were overwhelming.
At around 7:45AM, I awoke my co-plaintiff. We had decided the night before which documents we wanted in front of us during the arguments and put them on my USB drive: Our outline, our brief, and the district court order that we were appealing. I didn’t want SUNY’s brief on the podium because I had already read it literally three dozen times and it was full of bad energy and faulty logic. I didn’t want to risk that stuff seeping into my brain.
I was wearing sweatpants. I gathered my wallet, my cell phone, my USB drive, and a lucky glass sculpture and went for a walk to Staples on 86th and Lexington. The printer at Staples was down so I walked down Lexington to Kinkos on 78th St. Fortunately, this route caused me to pass an AMAZING bakery on the way back home so I got myself a super fresh red raspberry muffin. It was still hot from the oven. Absolutely amazing. If not for court, this might have been the highlight of my day.
I arrived back at the house at about 9:00AM. It was time to change. I had showered and shaved the night before, so I just wet my hair down a little and brushed it to one side. Then I put on my suit and tied the tie I had purchased the day before from a Chinatown street vendor ($5 for two) in a double windsor knot.
I had our documents. I looked mad professional. I was ready. to. go.
We got in a taxi at 9:30AM and got to the court house (all the way downtown, near the Brooklyn Bridge) at about 9:45AM. A small crowd (about 15) greeted us – they were all students, faculty, or alumni of SUNY New Paltz.
At this point, let me impart another piece of advice to other aspiring pro se litigants: Get to know the courthouse before you go in. We had already gone through security 8 times in the past 4 days and knew every step to the courtroom. If we hadn’t, I have no doubt we would have gotten very lost, as in fact we did the first time. The courtroom was on the 9th floor, accessible only by a single bank of elevators.
I hugged R.J. in front of the large wooden doors to the court. As we walked into the court room, which was (1) pretty huge but not overwhelming and (2) filled with a aura of luster but still somehow spartan, I don’t remember feeling at all nervous. We walked to the front of the court room and signed in with the deputy.
At this point, we found out that if we wanted to have time for rebuttal, we had to take it out of our initial argument time. This was a major bummer, because we had prepared a 5 minute argument. I reluctantly told the court deputy that we’d reserve 1 minute for rebuttal use and use 4 minutes for our initial argument. He told us we were last on the court docket, which we already knew from the calendar.
We sat down on the left (Appellants side), comfortably in front of the group of supporters who came to observe. A friend advised me – “deep breaths.” This was great advice, but I was so nervous I had trouble following it.
Within 120 seconds of my sitting down, we heard the door to the judges’ chambers open and in came three black robes with jurists in them. We all stood up. The court deputy stood up, pounded his gavel, and cried,
Hear ye! Hear ye! This is the United States Court of Appeals for the Second Circuit. All those having business before this court, draw near and ye shall be heard.
Beautiful words. We sat.
As each case before ours was called, we got to absorb one last sense about who our judges were and how they did their jobs.
Judge Wesley was in an a particularly energetic way. He yelled and cracked jokes right out of the gate – at one point he had the entire court room laughing at loud during the very first case. Of course in doing so he absolutely and shamelessly humiliated arguing counsel, who deserved it on account of his ridiculous argument.
As each case went on, we got more and more nervous.
I remember my stomach feeling like a brick after the third case because I wasn’t sure if ours was next. I listened with fear and anxiety as Judge Pooler called out the name of the fourth case – it was not ours.
In the subsequent five minutes, R.J. And I whispered to each other and made some last minute
changes improvements to our argument.
The world took on a character it never had before – the smells, tastes, sounds, and sights that surrounded me were so sharp and crisp, I knew I was about to do something very important that very few are privileged to do. I was terrified, but I was ready.
“The court will now hear Holmes v. Poskanzer.”
July 1st, 2009 at 7:35 am
As Judge Pooler called the abbreviated name of our case (and thus my own name) aloud into the courtroom, I remember a small shock of lighting down my spine.
I looked at R.J., who was seated to my right. I said something like, “OK, let’s do it.”
We got up, as casually as we were able to, and tried to look like this was something normal and natural for us. I approached the podium to his right, as we had practiced.
As I approached and tried to begin speaking, I choked. I had no air. The very first words of my argument were “I’m sorry, your honor, I need to take a deep breath.”
Judge McLaughlin, in what were his first bench comments of the day as far as I can recall, asked, “A deep breath?!!”
I don’t recall exactly how I responded – I think I just admitted that I was nervous. Then I stepped back, took a deep breath, and prepared to begin.
Before we began our argument, I was to say approximately this:
“Your honors, before we begin, we want to express to the court that although we are pro se litigants, we view this experience as an exciting opportunity and we hope that you’ll question us as aggressively as you would a professional attorney.”
Andy Kossover, a major mentor of mine who has been one of the top-shelf heroes of this entire fight, including donating thousands of dollars worth of his time and his office space pro bono, had wondered aloud a while back whether the judges might “take it easy” on us since we were pro se. Another friend of mine confirmed that this is often the case.
Of course this would be a problem, since the complexity of the case and the hyper-legal decision we were appealing made it difficult to know exactly what the judges were thinking – we needed their questions to clue us in.
Andy (showing his typical confidence in me :-)) suggested that we invite the judges up front to really grill us.
Although I don’t think I delivered it anywhere near as eloquently as I have written it above, the invitation was graciously accepted, to say the least. I was stunned at how quickly and frequently the judges interrupted us to engage our arguments. But I’m getting ahead of myself.
So, just as I was about to deliver this pre-argument invitation, Judge Pooler interrupted and said something like, “So, you are both pro se and both arguing, is that correct?” I think R.J. answered in the affirmative. Then she asked which of us was which.
This was a major bummer, because we had planned to introduce ourselves about 10 seconds into our argument. We were WAY too nervous to pivot and divert course at this point. So we answered her question, introducing ourselves.
Then I said, “May it please the court,” and we introduced ourselves again. That’s how we practiced it, and at this point we thought sure we’d be lost if we deviated from our rehearsed argument, even if it was awkward and embarrassing to keep to our script.
However, another 30 seconds later or so, Judge Wesley began interrogating us and didn’t stop for the rest of the argument – we hardly returned to our rehearsed argument at all after that. At first, both he and Judge Pooler seemed very unhappy with us.
“This is not recreation – this is costing the state a lot of money,” Judge Wesley said approximately, scolding and scowling at us. I didn’t get the least bit frustrated or scared – I just settled in and got down to the argument. In fact I remember the first real rush of exuberance at about this time. I thought to myself that as long as we could keep Wesley talking and interested, our case would prove compelling enough to him and the others.
And we did.
Our first argument dealt with the district court order’s use of Crawford-El v. Britton, a case that we thought was highly favorable and encouraging for ours. We had the facts handy, the law straight, and most importantly, we looked and sounded sharp and prepared.
About 2 minutes (seriously) after Judge Wesley had scolded us, in an amazing reversal of his demeanor, he turned to Judge Pooler, and said, “Give them more time!”
And they did. Our initial argument was supposed to be 4 minutes and it lasted, as I recall, about 16. The judges kept asking questions, adding time, analyzing – even engaging each other about our arguments.
Judge Wesley asked most of the tough questions, at one point surmising that we couldn’t rely on the facts that we pled to carry us past a motion to dismiss, citing (dun dun dun) Ashcroft v. Iqball.
Ashcroft v. Iqball was decided long after our brief was written. My assumption was that his assumption was that we hadn’t studied the case.
au contraire, Judge Wesley! I had personally studied every single “Qualified Immunity” case during the current Supreme Court session, including the one he asked about and even the Reading case which was decided literally two days before our argument.
As I drew the distinction between our case and Iqball, he started asking questions leading up to my conclusion, and I paused and said to him something like, “Judge Wesley, you are anticipating my argument, and that makes me happy.” The court room laughed. I suddenly thought of my own Constitutional Law and Seminar Professor, Nancy Kassop – her spirit was strong in the Second Circuit!
At one point, Judge Wesley asked if we had abandoned the argument that we were due representation by counsel at the campus hearing. My response was something like, “I don’t think we have abandoned the argument, Judge Wesley, but we do believe that in this limited set of circumstances that Qualified Immunity is warranted on that issue.” I’m sure I didn’t say it that well, but the idea is sound.
Judge Wesley gave the most flattering response of the day: “Well, that’s a reasonable and admirable concession.
We were glowing. I felt so content and proud in this moment to be representing the students of the information age. The torch of freedom burnt brightly for a few moments under my care.
I can’t overstate the power of having so many supporters behind us – it really gave us the confidence we needed. Thank you again to those who attended.
Eventually, Judge Pooler, after asking when I intended to apply for law school, told us we had made a good and interesting argument and asked us to have a seat while she and her colleagues heard from SUNY’s lawyer.
I’m not going to go into the performance of our adversary except to say that she had a really bad case to argue and, all things considered, she did well with it.
Judge Pooler grilled her a little, but not as much as we would have liked, given how substantially her statements (which were directly from SUNY’s brief) deviated from the record.
As we sat at the appellants table listening to this go on, we realized we had once last and final chance to make an impression.
R.J. turned to me and asked if he could have one minute to himself to talk directly to the judges. He initially wanted to bring up the “document discrepancy,” but I suggested it was too short a time to explain the significance of it. He then asked for 45 seconds. I told him I wanted 15 seconds up front to dispute SUNY’s fact pattern and then I’d turn it over.
In what seemed like 3 beats of my racing heart, we were back at the podium.
I started to list parts of our adversary’s factual narrative that were incorrect, and less than 10 seconds into our rebuttal Judge Wesley engaged me again.
We went for several minutes, and before I knew what happened, our argument was over. I felt horrible. I wanted – I needed – for R.J. to tell his story.
In a move of momentous bravery, R.J. cleared his throat as the judges were standing to leave and asked Judge Pooler, “Your Honor can I please have 20 seconds?”
“20 seconds, yes,” she responded.
At this point, R.J. put it all out there. He told about his years of working for the SUNY Administration as an RA and an orientation leader. He told about how sick he felt when the headlines of the paper read “Harassment” and had his name attached. He told about being publicly brought up on phony charges. “I have never harassed anyone in my life,” he truthfully told her.
At this point, I almost lost it. I fought back tears. Later, our supporters in the back told us that they did too.
The passion was so strong in the room that I smelled it. I tasted it! Rarely have I had such a rush of emotion and sensitivity. R.J. turned 20 seconds into 3 minutes and answered several more questions from the judges.
The judges had given us a total of 17 extra minutes – far, far more than had been given in any other case we had observed all week.
Judge Pooler repeated her compliments as the judges again started to get up and leave. “Very interesting argument – and you did a good job making it.”
In one last chance to reach out, I said, “And, your honor, we’ll do a good job conducting a limited and respectful discovery with the court’s indulgence.”
She gave me one last look that I couldn’t quite understand. I read something like, “I just don’t know how I can decide in favor of two radical college students over a state government, but I want to and I’ll try.”
I am generally a skeptic of government. Quite fervently so. Yet, throughout this experience, I got the distinct sense that, at least sometimes, justice is truly done in that room.
This is a case about academic liberty. It’s about the rapidly changing roles of those having knowledge to impart, those thirsty to receive it, and those who moderate the exchange.
For three years, R.J. and I have been using words like “Qualified Immunity” and “facts that actively and plausibly show our allegations to have merit” instead of talking about our vision for the future of higher education. It was that vision that got us elected, and our right to develop and express that vision that must be allowed to prevail here.
So, if I may, let me end this post with a one-paragraph summary of the basis of that vision. This is the heart of the message that I want to get back to delivering to all of our supporters in New Paltz and beyond:
The information age is here, and that means a radical change in the way we understand knowledge and power. Knowledge can no longer be contained in the way it has been in the period from the beginning of time until now. No institution stands to benefit more from this development than the relationship between teacher and student. It seems to me inevitable that the importance of the state, and indeed the role of any person trying to position themselves in the middle of this relationship, will be diminished. Those seeking (rather childishly I think we’ll see in retrospect) to maintain the hierarchical, credentialistic, closed-source systems of knowledge exchange as the exclusive educational model can only succeed at doing so if they can stifle the speech, press, and assembly of those who are willing to point out – and become exited by – the wonderful world that lies ahead of us.