IN THE SUPREME COURT OF IOWA
AMICUS CURIAE APPLICATION
JOHN COCKERHAM
For and in support of:
MICHAEL FOUST, TIMBERLINE BUILDERS, INC.
CASE NO. 0-304/09-0168
Submitted: December 20, 2010
PETITION FOR ACCEPTANCE OF AMICUS CURIAE
This complex matter of constitutional law is of great public importance of which the outcome of the court’s decision will affect the administration of justice throughout the United States. I petition this court to accept my Amicus Curiae brief for the benefit of my research and plain spoken truth in support of Michael Foust, and the innumerable small businesses that have or may well suffer the same injustice… denial of justice.
John M. Cockerham
1326 SW 22nd Terrace
Fort Lauderdale, FL 33312
954-963-4025
Fax: 954-587-1105
Email: allproelectric@bellsouth.net
Page 2. - 5.
TABLE OF CONTENTS
DIVISIONS / PAGES
PETITION FOR ACCEPTANCE OF AMICUS CURIAE /...... 1
TABLE OF AUTHORITIES / ......3
PREFACE /...... 6
A. IDENTITY AND INTEREST OF AMICUS CURIAE / ...... 7
B. SUMMARY OF ARGUMENT AND CONCLUSIONS / ...... 8 - 10
C. INTRODUCTION – The Law / ...... 10 - 12
D. ARGUMENT 1 (Hypothesis) / ...... 12 - 16
Justices Marshall’s and Scalia’s Opinions are NOT Contradictory
E. ARGUMENT 2 (Hypothesis) / ...... 17 - 22
Corporations as artificial entities is a fallacious premise to deny self representation.
F. EQUITY LAW ARGUMENT (Hypothesis) / ...... 22 - 25
The benefits to society are greater and more equitable for corporations to have the right of self representation
(1.) Discussion Of Unlawful Practice Of Law / ...... 25 - 28
(2.) Discussion On Disenfranchisement Of Public Rights / ...... 28 - 30
(3.) Injustice of the Large v. Small / ...... 30 - 31
(4.) Protection of the Public Interest / ...... 31 - 33
J. CONCLUSION / ...... 33 - 35
TABLE OF AUTHORITIES
Pre-Constitution
United States Constitution
1st Amendment / ...... 9, 21
|
|
14th Amendment / ...... 9,20
|
|
United States Supreme Court Decisions
Citizens United v Federal Election Commission, 558 U.S. 50 (2010)
|
….. 21
|
|
|
|
|
Trustees of Dartmouth Coll. V. Woodward, 17 U.S. 4 Wheat. 518 ,636 (1819)
|
…..9, 17, 22
|
|
|
|
|
Osborn V. Bank of The United States, 22 U.S. 738 (1824)
|
8, 11, 15, 16, 28, 33
|
|
|
|
|
Santa Clara County V. Southern Pacific R. Co., 118 U.S. 394 (1886)
|
…..20
|
|
|
|
|
|
|
…..28
|
|
|
|
|
Other Supreme Court Cases
Florida Bar v. York, 689 So. 2d 1037, 1039 (Fla. 1996)
|
…..10, 14
|
|
|
|
|
Florida Bar v. Gordon, 661 So. 2d 295, 296 (Fla. 1995)
|
…..10
|
|
|
|
|
Szteinbaum v. Kaes Inversiones y Valores, C.A., 476 So. 2d 247, 248 (Fla. 3d DCA 1985)
|
…..11
|
|
|
|
|
Eckles d/b/a Atlanta Technology Group v. Atlanta Technology Group, Inc., 267 Ga. 801, 485 S.E.2.d 22 (1997)
|
…..15
|
|
|
|
|
|
|
|
Other States’ Appellant Court Cases
Richter v. Higdon Homes, Inc., 544 So. 2d 300, 300 (Fla. 1st DCA 1989)
|
…..11
|
|
|
|
|
|
|
|
|
|
|
|
Iowa Statutes
Chapter 51, Iowa Code of Judicial Conduct
|
…..20
|
|
Other State Statutes
Florida Statues, Title I. Chapter 1., 1.01, Definitions
|
…..19
|
|
|
|
|
Florida Statues, Title XXXI, Section 440.02 Definitions. (23)
|
…..18
|
|
|
|
|
Florida Statues, Title XXXVI , 607.1401
|
…..19
|
|
|
|
|
Florida Statues, Title XXXVI, Florida Statues, 607.0302
|
…..19
|
|
|
|
|
|
|
|
Reference Books
|
|
…..12
|
|
|
|
…..12
|
|
Bar Admission Publishing, Evan Van Gutman JD, CPA, “History Of Bar Admission And The Attorney Licensing Process,”
|
…..14
|
|
|
|
|
|
The Free Dictionary, <(http://www.thefreedictionary.com/attorney)>
|
…..16
|
|
|
|
|
Articles & Other Authorities
“A corporation must be represented by an attorney in Georgia,” Atlanta Business Attorney Blog, Published by Meriwether & Tharp, LLC, March 27, 2009
|
…..15, 33
|
|
|
|
…..24
|
|
ABA Website
|
…..14, 24
|
|
|
|
|
|
|
|
|
|
|
|
|
PREFACE
I have read the Amicus Curiae Application from Mr. Jeff Kirby, Puget Sound Security Patrol, Inc. and find it to be a masterfully presented argument for corporate pro se representation. The research for my brief is similar but addresses different facets of this complex matter. It is presented to illuminate and stimulate discussion on certain issues that will aid the court in its understanding and deliberations. May the court render a fair and just decision.
Page 7.
A. IDENTITY AND INTEREST OF AMICUS CURIAE
1. John Cockerham is the President of All Pro Electric Services, Inc., a Florida corporation that claims to have been financially destroyed by the actions of a large corporation. Facing a law suit from the same company, All Pro Electric desires to deny the charges, and file a countersuit for damages.
Case No. 4D10-2660, John Cockerham v. American Express Bank, FSB
2. All Pro Electric has no money to employ an attorney and seeks access to the Florida judicial system via its President and pro se representative… believing that if the truth can be heard, the truth will prevail.
3. John Cockerham’s Motion for Pro se Representation was denied by the 17th Circuit Court of Broward County; no reason disclosed. The 4th District Appellant Court refused to hear my Writ of Certiorari (Case # 4D10-2660). On November 19, 2010 the case was submitted to the Florida Supreme Court (Case # SC10-2235). Currently a jurisdiction brief is pending.
4. This is the second time in my life that I have lost everything, my business, my home; my credit and this time my retirement, my children’s college education and
Page 8.
my health. I submit this Amicus Curiae Brief for Michael Foust, Timberline Builders, Inc. and every other small business in this nation that wishes to defend itself against wrongful acts and claims of the powerful; that wishes for the chance for the truth to be heard; and to know that for every wrong a remedy really does exist.
B. SUMMARY OF ARGUMENT AND CONCLUSIONS
5. The issue before this court is one of historical significance and complexity. The judicial interpretations, motivations of people and groups, power struggles between the judicial and legislative branches of government and mysterious U.S. Supreme Court writings are inextricably intertwined in the case law precedents concerning the acceptance of corporate personhood, imaginary entities and the right of self-representation… all of which is discussed and argued herein, first in case law and secondly in equity law.
6. In case law there are two arguments set forth against the “cornerstone” precedents that are the basis for upholding the current law in all states.
7. The conclusion of argument #1 is,
Chief Justice Marshall’s 1824 ruling in Osborn v. President, Directors & Co. of the Bank of the United States should not be used to deny the corporate entity its right of self-representation.
and is based upon the accepted word meaning of the time and era; and that the implied
Page 9.
reference to a “state licensed” attorney is inappropriate since that did not occur until some 100 years later. The conclusion of argument #2 is,
Chief Justice Marshall’s ruling in Trustees of Dartmouth Coll. V. Woodward, 17 U.S. 4 Wheat. 518 ,636 (1819), should not be used to deny the corporate entity its right of self-representation
and is based upon the writings of Chief Justice Marshall in 1819 as taken completely out of context and hijacked for the distinctly separate purpose of those that contend corporate self-representation is an attempt to practice law.
8. The equity law argument divides the public is into the major groups of society that may be interested or affected by the matter of corporate self-representation. It is a complex subject, not easily separated into its core issues of equity. Nevertheless the argument speaks plainly to the court as to the principles beneficiaries of the law and to the grave injustice of those disenfranchised of their rights guaranteed by the First and Fourteenth Amendments of the U. S. Constitution and all state constitutions that guarantee the same rights to the public and recognize a corporation as a person.
_______________________________________
“A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it either expressly or as incidental to its very existence.”
Page 10.
9. The conclusion of the equity argument is that justice should not be bought and sold or denied for any reason of protectionism of the legal profession. To the contrary the legal profession is safe from corporate laypeople, practicing law in the back alleys. We only wish to defend ourselves in a court of law for a last chance that the truth will prevail for us to simply survive to return to our businesses and livelihoods.
C. INTRODUCTION - The Law
10. Throughout the United States, a longstanding and widely practiced rule prohibits corporations from being represented by non-attorneys; consistent with the existence of a corporation as a "person" separate and distinct from its officers and employees. This presumes that the “officers and employees” are an “artificial entity”… a person in the abstract… and therefore the corporate appointment of a non-lawyer for legal representation is an illegal act of practicing law without a license. (Florida precedent cases are cited as representative of most states)
_____________________________________
Florida Case Law Precedents (Unlicensed Practice of Law):
Florida Bar v. York, 689 So. 2d 1037, 1039 (Fla. 1996) (finding that it constitutes the unlicensed practice of law for a non-attorney to threaten suit on behalf of another); Florida Bar v. Gordon, 661 So. 2d 295, 296 (Fla. 1995) (enjoining non-attorney from "[a]ppearing in any Florida court or offering to appear in any Florida
court, either expressly or impliedly, as a spokesperson or representative for litigants in any court proceeding"); Szteinbaum v. Kaes Inversiones y Valores, C.A., 476 So. 2d 247, 248 (Fla. 3d DCA 1985) (holding that "a corporation, unlike a natural person, cannot represent itself and cannot appear in a court of law without an attorney"); Richter v. Higdon Homes, Inc., 544 So. 2d 300, 300 (Fla. 1st DCA 1989) (finding that a corporation "may not represent itself through non-lawyer employees . . . even where the non-lawyer purporting to represent the corporation is the sole shareholder of the corporation").
Page. 11
11. This traditional rule was established very early (1824) in American jurisprudence (Osborn v. President, Directors & Co. of the Bank of the United States) where Chief Justice Marshall seemingly rejects corporate “personhood” and writes in dictum,
“It is admitted, that a corporation can only appear by attorney.”
12. To the contrary, in 2010 Citizen United v Federal Election Commission, January 21, 2010, Chief Justice Scalia supports corporate “personhood” and writes,
“The dissent says that “ ‘speech’ " refers to oral communications of human beings, and since corporations are not human beings they cannot speak. Post, at 37, n. 55. This is sophistry. The authorized spokesman of a corporation is a human being, who speaks on behalf of the human beings who have formed that association--just as the spokesman of an unincorporated association speaks on behalf of its members.”
JUSTICE SCALIA, with whom JUSTICE ALITO joins, and with whom JUSTICE THOMAS joins in part, concurring.
_________________________________
Page 12.
D. ARGUMENT 1 (Hypothesis)
Justices Marshall’s and Scalia’s Opinions are NOT Contradictory
13. In Justice’s Scalia’s 2010 reference to the corporate “spokesperson,” it is clear that he refers to the person with the authority of the corporation which is delegated, as in all matters of corporate of authority, by corporate resolution. Thus in speaking for the corporation, the spokesperson is the corporation speaking.
14. In 1824 Chief Justice Marshall’s reference to “attorney” carried a different meaning than today. As defined by Samuel Johnson’s Dictionary of the English Language, the absolute authority of word meaning in 1824:
(a.) “Attorney, n. one who is deputed to act and be responsible for another, particularly in affairs of law.”
(b.) “Depute, v. a. to empower to act, to appoint”
______________________________
Page 13.
15. Using the language “meaning” of the day in 1824, Chief Justice Marshall’s ruling would read:
It is admitted, that a corporation can only appear by one who is empowered to act for another. (i.e. “power of attorney” or in corporate parlance… “Corporate Resolution”)
16. Could Chief Justice Marshall have really been referring to a “state licensed” attorney? This is impossible since there was no system of state legislated licensing at the time. Chief Justice Marshall would have had to use a definition for “attorney” that did not exist until over 100 years after his ruling. “Licensing” (admission to the bar) was a privilege granted by voluntary bar associations… a haphazard process, varying from state to state, and largely based on who the applicant knew.
“Patrick Henry’s primary source of "law school" training consisted of listening attentively to conversations of members of the Bar at Shelton’s Tavern, which he frequented regularly to drink. Purportedly, he set off to take the bar examination which was an oral exam, having
studied for less than two months. …Perhaps the most famous U.S. Supreme Court Justice ever, John Marshall enrolled in William and Mary law school on May 1, 1780 and had his law license just a few months later. …It does not take a genius to recognize that licensure during those times was predicated most simply on who you knew, and not what you knew.”
"The legal profession as we know it today barely existed at that time. Lawyers were generally sole practitioners who trained under a system of apprenticeship.”
18. The statement above applies to the legal profession in 1878, not 1824 when Chief Justice Marshall made his ruling on corporate representation. With reverse extrapolation to 1824, one can reasonably conclude the status of the legal profession was something less than “barely existed.”
Page 15.
19. Still, all states now uphold the The Law based in whole or in part on Chief Justice Marshall’s ruling in 1824. The last state to eliminate this right of the people was in 1997 by the State of Georgia. The Georgia Supreme Court stated:
“… For this reason, it has long been recognized by the courts of other jurisdictions that "[a] corporation ... can appear only by attorney, while a natural person may appear for himself." Osborn v. United States Bank, 22 U.S. 738, 830 (6 L. Ed. 204) (1824). Not only has this principle long been recognized, it [***6] has been almost universally accepted.”
20. Evidenced here by the Supreme Court of the State of Georgia, the states’ supreme courts continue to use the 1824 Ruling of Chief Justice Marshall, but with the today’s (2010) meaning of “attorney” (requiring one to be legally appointed; synonymous with being licensed by the state)
Definition: “n. pl. at·tor·neys Abbr. Att. or Atty. A person legally appointed by another to act as his or her agent in the transaction of business, specifically one qualified and licensed to act for plaintiffs and defendants in legal proceedings.
________________________________
Page 16.
21. Chief Justice Marshall’s ruling clearly requires the proper appointment of a person but not a “licensed” attorney. Power-of-attorney in a corporation is properly and legally authorized and designated to a person by “Corporate Resolution”. That person then speaks as the corporation within the authority granted by the Corporate Resolution (i.e. power of attorney).
CONCLUSIONS DRAWN - ARGUMENT 1.
22. Based upon the evidence and the irrefutable logic, only one conclusion is appropriate and undeniable;
Chief Justice Marshall’s 1824 ruling in Osborn v. President, Directors & Co. of the Bank of the United States should not be used to deny the corporate entity its right of self-representation.
Page 17.
E. ARGUMENT 2 (Hypothesis)
Corporations as artificial entities is a fallacious premise to deny self-representation.
23. An often used premise by the courts in all states to deny corporate self-representation is the assertion that a corporation is artificial, unnatural in being and cannot speak for itself, thus requiring representation and that legal representation must be a licensed attorney.
24. The genesis of this argument is from Dartmouth College v Woodward in the writings of Chief Justice Marshall in 1819 where he states the following:
“A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it either expressly or as incidental to its very existence.”
25. The Dartmouth College v Woodward had nothing to do with self-representation. This was a case concerning contract law after the American Revolution and whether or not existing contractual entities and contracts would be deemed valid after the Revolution.
_________________________________________
Page 18.
26. Chief Justice Marshall’s writings simply explained that the corporation and its rights are created by law and its principle purpose:
“It is chiefly for the purpose of clothing bodies of men, in succession, with these qualities and capacities that corporations were invented, and are in use. By these means, a perpetual succession of individuals are capable of acting for the promotion of the particular object like one immortal being.”
27. Certainly Chief Justice Marshall’s reference to corporations “existing only in contemplation of law” was not an epiphany to the attorneys in 1819 or hence. Does not the Congress, the President, all courts of law, states, counties, municipalities, and even citizens “existing only in contemplation of law;” possessing only the rights granted by law?
28. Federal and states’ constitutions and statues through respective “contemplations of law,” each have similarity created the provision for a corporation to have the same rights as a person for the purpose of commerce and protection of property.
29. The Florida Statutes, Title XXXI, Section 440.02 Definitions. (23), defines a Corporation as a Person:
Page 19.
"Person" means individual, partnership, association, or corporation, including any public service corporation. And again in Title I. Chapter 1., 1.01, Definitions (2010).
“The word “person” includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations.”
30. Florida Statues, Title XXXVI, 607.1401, Business Organizations/Corporations Definitions.--As used in this act, unless the context otherwise requires, the term:
(19.) "Person" includes individual and entity.
(11) "Entity" includes corporation and foreign corporation; unincorporated association; business trust, estate, partnership, trust, and two or more persons having a joint or common economic interest; and state, United States, and foreign governments.
31. A “person” is defined as an entity and an “entity” is defined as two or more persons (i.e. a collection of people) having a joint or common economic interest.
32. Title XXXVI, Florida Statues, 607.0302, Business Organizations/ Corporations/ “General powers.--Unless its articles of incorporation provide otherwise, every corporation has perpetual duration and succession in its corporate name and has the same powers as an individual to do all things necessary or convenient to carry out its business and affairs, including without limitation power: (1) To sue and be sued, complain, and defend in its corporate name; (2)…”
Page 20.
33. The rights of a person or “collection of people” in the corporate form are not denied by Florida Statues are therefore presumed to exist. However, in Florida and most states the Bar Associations vigorously argue that the corporate person is not a collection of people, but instead a paper, imaginary or abstract entity. For this to be true every reference in State and Federal law would have to be bifurcated in its meaning and application to either the imaginary entity or the collection of people.
34. The Iowa Code is consistent with this understanding in the terminology section for Judicial Conduct (Chapter 51, Terminology) stating;
“Person means any natural or juridical person, including without limitation any corporation, limited liability company, partnership, trust, union, or other labor organization… or any other organization or group of persons.”
35. The genesis of corporate personhood is from the U.S. Supreme Court in 1886, Santa Clara County v. Southern Pacific Railroad Company, with these words of the court reporter appearing in the headnote of the case.
______________________________________
"The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.”
36. Chief Justice Morrison Waite confirmed this wording to be accurate but since it was not technically part of the decision it is argued by the detractors of corporate personhood that the wording was the Court Reporter’s doing and is not enforceable.
37. On the other hand the meaning is clear, it was confirmed by Chief Justice Waite as accurate and the wording was thereafter never corrected or modified.
38. Now it seems obvious that the reference to the corporate being is always to the collection of people as reinforced by the US Supreme Court, Citizens United v Federal Election Commission, 558 U.S. 50 (2010), ruling that recognizes a collection of people in the corporate form to be protected by the First Amendment. As referenced in Paragraph 8., above and reiterated here, Justice Scalica with concurring Justices Alito and Thomas states in regard to the argument against a corporate being not being able to speak through a spokesperson…
“This is sophistry.”
Page 22.
39. This now a fact recognized by the U.S. Supreme Court… a corporation as a collection of people has the 1st Amendment right of expression to speak as one through its own authorized spokesperson.
40. This begs the question… “How is it possible to have the freedom of expression everywhere but in a Court of Law?” And how can this “contemplation of law” that a corporation is a person, “able to speak through a spokesperson,” be waved off and ignored?
41. The use of Chief Justice Marshall’s 1819 ruling to justify the denial of a corporation’s right of self-representation is an obfuscation of the issues, facts and logic by those skilled in contorting the English language to their purpose… “This is sophistry.”
CONCLUSIONS DRAWN - ARGUMENT 2.
42. Based upon the evidence and irrefutable logic, only one conclusion is appropriate and undeniable;
Chief Justice Marshall’s ruling in Trustees of Dartmouth Coll. V. Woodward, 17 U.S. 4 Wheat. 518 ,636 (1819), should not be used to deny the corporate entity its right of self-representation.
F. EQUITY LAW ARGUMENT (Hypothesis)
The benefits to society are greater and more equitable for corporations to have the right of self-representation
Page 23.
43. For the court’s consideration and ultimate decision, I have attempted to unravel this historically complex matter into its core issues of equity, with open and necessary argument of sensitive issues to include judicial prejudices, historical disenfranchisements, the parties affected and possible motives.
44. At the turn of the 19th century, there were only 335 corporations. Corporations were large and powerful, monopolistic, generally disliked, not trusted and viewed by many as a threat to the society at large. As our nation and laws were developing, corporations were severely restricted in their charter, operational life and freedoms that we now know and take for granted.
45. Of the sectors in our society having an interest in corporate rights and “personhood,” there are still those people that fear the commercial and political power of corporations and are against all “personhood” type rights as a threat to society.
46. Secondly, larger corporations in excess of 100 people would have little to no interest in self-representation because these companies would most always have the resources and good sense to employ learned legal counsel.
Page 24.
47. Without the problem of affordability, it would be the rarest of situations where a layperson of a large operating company would choose the aggravation, personal sacrifice and misery of pro se representation of their corporate enterprise and be able to get the approval to do so (i.e. corporate resolution) from the corporation’s Board of Directors.
48. Small corporations and partnerships, in opposition to the current law, comprise the only group significantly, directly and adversely affected by the general rule that prevents corporate self-representation. This is a large sector of our society. Small business, under 100 employees with less than $5M total year receipts are estimated from the 2002 U.S. Census to be 5,405,781 firms; 94.8% of all the firms in the United States. With a conservative estimate of 10 employees per firm the group represents approximately 17.6% of the entire population of the United States. The point is that this small business sector of the population is substantial and likely in the range of 50,000,000 – 75,000,000 people.
49. The only known opposition to corporate self-representation is the legal community of lawyers. Otherwise, who is there to oppose and argue against a small group of people, a family or a few friends under a corporate banner, a “Mom and Pop” type business that cannot afford a lawyer’s retainer and $400/ hour fees, to make an appearance in court to deny the false claims and damages sought by a large and powerful adversary? By the current interpretation of the law, a powerful Plaintiff’s claims would be presumed by the court to be true and accurate; damages and remedies awarded to the Plaintiff; and “Mom and Pop” would be prosecuted for the felony for practicing law, jailed and fined.
______________________________________
Page 25.
50. By comparison to the 50,000,000 plus people comprising the sector of small business in 2002, according to the American Bar Association, there were 1,128,729 resident and active attorneys in the United States in 2006 and 1,143,358 in 2007.
51. As such, this petitioner asks the court to decide the greater good to society. On balance… is it more equitable for the small business sector to be allowed to defend itself and its property by making an appearance in court to deny false charges and claims… or instead protect the legal profession’s claim that the corporate being is practicing law.
(1.) Discussion Of Unlawful Practice Of Law
52. The legislatively controlled licensing of attorneys, along with criminal penalties for offenders, was instituted in the 1930’s depression era. These were the toughest of times and historically viewed that state licensing of lawyers was largely a move to protect the commerce and livelihood of existing lawyers. Notwithstanding its illegitimate birth, since then the state licensed practice of law has been put forth and generally accepted as a necessary protection of the public.
____________________________________
Page 26.
53. Nevertheless, commonsense and some knowledge of human nature demands recognition that there is a strong human motivation to protect one’s livelihood and that this could be a possible factor in the lawyer community’s continuing argument against allowing non-lawyers equal access and status in a court room… especially when it affects 94.8% of all the firms in America.
54. A second and significant motivation against corporate self-representation is to keep unlearned (in law) people out of the courtroom and from clogging up the judicial system.
55. It is blindly assumed that a person without legal practice and limited knowledge of legal processes adds a burden to the court in maintaining the flow of work while insuring that neither side is given an unfair advantage. I contend the opposite to be true, since pro se representatives know nothing of the common “lawyering tricks” of economic warfare (i.e. to encumber and delay the discovery process ad nauseum). I suggest to the court that with corporate self representation the workflow of the court would actually improve, but in any event should not be considered as a factor in the question of extending or denying a constitutional right.
Page 27.
56. The small business pro se litigant is typically unlearned, financially limited and is desperately trying to saving their corporation, livelihood, loss of employees, loss of family home and property (there is no shield for wealth in small companies… everything is personally guaranteed).
57. How can the courts even consider not allowing access to justice; and for the superficial reasons that it may be irritating and more difficult to adjudicate than having a licensed lawyer in the courtroom… never thinking that the cost of hiring a lawyer at today rates makes it economically impossible for a small, financially distressed business to hire an attorney.
58. That aside, it seems that the extreme penalty for the unlicensed practice of law suggests professional protectionism. To threaten a law suit for the collection of a debt or to give any manner of casual legal advice, even to your own grandmother, is a felony offense in most states.
59. Consider that the corporate spokesperson is allowed to conduct every manner of legal contracting, agreement and civil action, except for the defense of their actions. Both in logic and equity, this seems unsound, arbitrary and draconian.
60. Nevertheless, all state laws require the corporation to pay for justice in the form of a lawyer for defense of its actions... except in one situation. The corporate person may represent itself pro se in the Small Claims Court.
61. This begs the question, if corporate self-representation is acceptable for Small Claims Court, then why not a higher court? Either the corporate person is engaging in the felonious act of practicing law without a license or not. It seems, however, that the law is arbitrary. When the law suit is of “little value”, then the corporate person may practice a “little law,” but when the stakes are higher in value the corporate person may not practice law, lest experience jail time. It seems that this bifurcated interpretation of “practicing law” exist principally for the enrichment of the legal profession.
Page 28.
62. How is it possible to conclude that in the case where a corporate being cannot afford an attorney and cannot even make an appearance to deny false accusations; that this could be in the best “public” interest… to give a judgment to the accuser without any defense by the corporation… a collection of people, indeed the “public” by definition. Where is the equity in this?
63. The law should stand on principle instead of profit. Self-representation by a corporate person is either practicing law in all courts or it is not.
(2.) Discussion On Disenfranchisement Of Public Rights
64. Petitioner contends that the right of any person or collection of people to defend themselves is an inherent right of a free society. The early history of the United States confirms that certain sectors of the public were disenfranchised for reasons believed at the time to be just and good for society.
65. There are two examples, and perhaps more, of where people living in the United States have been barred from the courts. In 1824, it was interpreted by the legal fraternity that the US Supreme Court in Osborn v. President, Directors & Co. of the Bank of the United States ruled that a corporation
Page 29.
could not represent itself pro se in a Court of Law. Then thirty three (33) years later there was the Dred Scott decision (1857), ruling that slaves were not citizens but chattel and that they could not sue in court.
66. The first point is that in the early 1800’s, the rights of people and corporations were viewed differently than now. For those that held the power, people’s rights were secondary to what could be deemed, as they viewed it, good for commerce and the protection of property (e.g. the political franchise of women’s suffrage was not recognized in the United States until 1920.)
67. No attempt is made to describe the relative miseries of the groups disenfranchised from the courts, but there are pungent similarities in the characteristics of the groups and in treatment by the courts. Most notably is the preconceived perpetuity of the injustice.
68. Ironically the U.S. Supreme Court, our trusted purveyor and protector of civil rights; the final arbiter and ultimate trustee of justice… made the adverse rulings to disenfranchise large groups of people of a basic right and then denied these same people access to the courts forever! The states have blindly followed the U.S. Supreme Court’s disenfranchisement standard.
__________________________________
Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)
Page. 30
69. In the two examples (corporate pro se representatives and slaves), the people affected in both groups were largely ignorant of the law, financially distressed, unskilled in legal debate and deemed unworthy to approach the court. Moreover, the groups were weak, without leadership, consumed with their daily labor and most of the people did not even know of or understand their disenfranchisement and what it meant.
70. As for the people in small business, I bear testimony that in the 20 years since I learned of this injustice in the loss of my first business… I have never spoken with any small business person hence that is aware of their disenfranchisement to our judicial system… that they cannot even deny false charges brought against their businesses; seemingly, because attorneys don’t want you to practice law (by their definition of what Justice Marshall “meant to say” 186 years ago). Instead, the courts have deemed it more equitable for you to quietly go out of business, lose your income, lose your home, lose your credit, lose your sleep, have your children withdraw from college, lose your retirement, lose your health insurance, experience anxiety attacks, and suffer all types of stress related maladies. Where is the equity in this?
71. I beg of the court to comprehend the gravity of this matter. When people that have worked hard all their lives, learn of this injustice, it is too late… they often lose everything and nobody knows or cares. It happens all the time.
Page 31.
(3.) Injustice of the Large v. Small
72. Whenever a very large entity (e.g. company, corporation, bank, government agency, etc.) severely damages a very small company financially, the small company’s cash flow can be decimated in vendor bills and payroll in a one month’s business cycle (e.g. liquidity can drop from $20,000 - $30,000 down to $1,000 - $2,000). As illustration, at the end of a construction job when a general contractor does not pay the final month’s bill and the 10% job retainer rightfully owed to a small subcontractor… with only $1,000 or so in the bank, the subcontract cannot pay an attorney $400 an hour to sue the general contractor. The subcontractor often just goes out of business, ruined. Worse yet the general contractor all too often sues the subcontract for some “trumped up” damages of the job site and since the subcontractor cannot make an appearance in court, the general contractor will get damages awarded and never pay any of the subcontractor’s final bill or retention.
73. It happens all of the time… where the large corporate entities and the government agencies crush small businesses; no less an ugly blood sport of our free enterprise system where the courts are the weapon of choice for the coup de grace.
Page 32.
(4.) Protection of the Public Interest
74. It would be unthinkable and unspeakable for the legal profession to admit that it really is the money and denying corporate self-representation is for the enrichment and protection of their profession. Likewise it would seem difficult to admit that corporate self-representation is denied because unlearned litigants are not welcome in the court.
75. The only plausible reason or defense is that a licensed attorney must be used for the protection of the public (i.e. the “modern” reason for having a state licensing system). Since this is a civil matter, “protection of the public” would necessarily mean protection of the property of the public.
76. In the balance are some 50,000,000 plus people, in subgroup collections of people that potentially need access to the courts in their corporate being but cannot afford an attorney. Affordability is the overarching characteristic that identifies this sector of society’s need for pro se representation.
77. In the best interest of the public for the “protection of property,” the only question under the current law —
“Is it better to lose your property because you have no access to the court?
or
Is it better to hire an attorney for $400/hour and lose your property 3 hours later?”
Page 33.
78. “Where is the equity in this?” On one hand there is much suffering, financial destruction, loss of jobs and health… and on the other hand… nothing. Absolutely nothing…, except a rule to keep business people from so called… practicing law (i.e. self representation); something we would never attempt unless in a desperate financial situation that offers no other option. Indeed, the legal profession is safe from us corporate laypeople, practicing law in the back alleys. We only wish to defend ourselves in a court of law for a last chance that the truth will prevail and we survive to return to our businesses and livelihoods.
79. Surely the legal profession cannot believe any harm would come to their commerce by allowing corporate self-representation; would not they be employed by the large adversary on the other side; would they not have the advantage of legal process (i.e. case law research, gathering testimony, production of records, motions, defenses and prosecution) weigh heavily to their favor?
80. What harm could come to this nation by allowing public access to the courts.
G. CONCLUSION
81. No meaningful harm can befall anyone (not even attorneys) in our society by allowing a collection of people to protect their property. This injustice has been perpetuated since 1824; and that unto itself is now the spurious basis and mantra for any challenge to the rule… a quick citation to Osborn v. United States Bank, 22 U.S. 738, 830 (6 L. Ed. 204) (1824), and the time worn cliché… “Not only has this principle long been recognized, it has been almost universally accepted.” This could have been the watchword for those supporting slavery or those against women’s suffrage or any disenfranchisement of liberty.
Page 34.
82. Passing time, even 186 years, cannot bring honor to an injustice... instead it magnifies the injustice. We are speaking here of a basic right to defend our property, where access to the courts is being denied, bought and sold.
83. The Constitution of the State of Florida states, Art. I, Section 21. Access to courts:
“The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”
84. This right is derived directly from the Magna Charta.
“No right shall be sold, delayed or denied.” - Magna Carta, XXX (1215)
“To none will we sell, to none will we deny, to none will we delay right or justice.” - Magna Carta, XXIV (1215)
85. The Statues of Florida do not diminish the rights of a corporation from those of a natural person. The rights of a person are guaranteed unless certain and specific rights have been denied by statute.
____________________________________
Page 35.
86. As to legal authority and representation, the corporate person must perform all of it functions and activities via authorized representation, performing all manner of legal acts in personnel matters, contracts, leases, product sales, stock sales, stockholder matters, banking and tax matters. All of these legal acts may be performed by laypersons that have been duly authorized to act on behalf of the corporation. Like the natural person, the corporate person is not considered to be practicing law because these services are being performed where the corporation has a proprietary interest. This is no different than any other licensed service that the corporate person may perform for itself but not for others.
87. I beg the court to look beyond the time worn clichés and decide in favor of Michael Foust, Timberline Builders, Inc. on the merits of the arguments… that case law does not support this law and equity law would not allow this law.
88. WHEREAS, Petitioner begs the Court to uplift the people's right to defend themselves and their property, individually and corporately, against wrongful prosecution; and to insure that the basic right of access to the courts will never again be denied to anyone in the State of Iowa.
Respectfully submitted this the 20th day of December, 2010.
John M. Cockerham, pro se Phone: (954) 963-4025
5641 Atlanta Street Fax: (954) 587-1105
Hollywood, FL 33021 Email: allproelectric6445@att.net
