On Appeal From the
Superior Court (Civil Division)

W. Edward Morgan
Bar No. 280800
Supervising Attorney

Timothy Gresback, L.S. 04712
Student Counsel for Appellants

Antioch School of Law
2633 16th Street, N.W.
Washington, D.C. 20009


Come now appellants, William Thomas, et. Al., by and through student counsel, Timothy Gresback, and respectfully move this Court under Rule 27 of the Rules of the District of Columbia Court of Appeals to allow additional oral argument and supplemental briefing in this case. 1/ This request is made in order to bring to the Court's attention the fundamental issue of the indigent civil pro se litigant's right of access to the courts, which, because of Mr. Thomas' pro se status below, was not properly developed on the trial court nor at the initial oral argument.

A. Factual Background

The record indicates that William Thomas, since 1981, has been exercising his First Amendment rights near the White House by participating in an around-the-clock vigil. The purpose of the vigil is to alert the President and passers-by to the dangers of nuclear holocaust. Appellant. 2/ plaintiff in the trial court, instituted an action against appellee/defendant by filing a one page pro se complaint in the District of Columbia Superior Court on February 6, l986. The pro se complaint alleged that in the pre-dawn hours of July 4, 1985, a group of individuals from a group calling itself Young Americans For Freedom, together with an agent of the Washington Times, one Steve Masty, carried out a "raid' on plaintiffs and their property.

1/Reargument in this Court prior to a decision by the panel is by no means unprecedented. See. e.g.. District of Columbia Hospital Association v. Barry, 498 A.2d 216 (D.C. 1985); O'Connell v. Maryland Steel Erectors. Inc., 495 A.2d 1134 (D.C. 1985); Nelson v. United States, 479 A.2d 340 D.C. 1984); District of Columbia v. McConnell, 464 A.2d 126 (D.C. 1983); Floyd Davis Mortgage Corp. v. District of Columbia(D.C. 1983); People's Counsel v. Public Service Commission, 455 A.2d 402 (D.C. 1982); A&G Limited Partnership v. Joint Committee, 449 A.2d 291 (D.C.1982); Brooks v. United States, 263 A.2d 45 (D.C. 1970);United States v. NcClough, 263 A.2d 48 (D.C. 1970).

2/In this motion, the plaintiffs below are generally referred to collectively as appellant or "Thomas".


The purpose of the "raid" was to force the plaintiffs to abandon their lawfully conducted vigil in Lafayette Park. The complaint further alleged that the Washington Times sent Masty to participate in, and report on, the "raid" carried out against plaintiffs, and, that the Washington Times "cooked up" a story about the "raid" subsequently printed in the Washington Times in order to make good 'copy" for its Fourth of July weekend editions. The complaint specifically alleged intentional infliction of emotional distress and civil conspiracy.

B. Procedural Background

Without holding a hearing or accepting affidavits into the record, Judge Hannon dismissed the case on April 3, 1986.3/ Thus, without addressing the parties in open court, the trial judge dismissed the complaint drafted by Thomas, a pro se, indigent litigant proceeding in forma pauperis.

C. The Appeal

On January 26, 1987, Mr. Thomas showed student counsel a letter from this Court indicating that oral argument was scheduled only two days later on January 28, 1987. At that time Mr. Thomas did not understand that his motion for oral argument had been granted; he thought the parties would meet informally before a "merits division". Once he understood



that he would be presenting his case before this Court he requested assistance from the Antioch School of Law in preparing for oral arugment and making his rebuttal argument. 4/

The short time in which to prepare for oral argument and the snow storm which closed law libraries precluded student counsel from fully articulating the issue of fundamental importance this case presents for the administration of justice in the District of Columbia: whether as a matter of constitutional necessity, the trial court had an affirmative duty to: (l) inform the pro se indigent plaintiff that he could amend his complaint, (2) inform the pro se indigent as to why the case was dismissed, (3) hold a hearing in open court prior to dismissing the case and (4) otherwise take measures to protect his rights.

As will be shown below, the trial courts dismissal of the complaint violated appellant's First, Fifth, and Fourthteenth Amendment rights guaranteed by the United States Constitution.

_4/At oral argument the panel focused in part on the issue of whether service was sufficient. Specificallly, the court asked student counsel whether he knew that the Washington Times, Inc., is in fact a non-existant legal entity. Student counsel replied that, as an officer of the court, he did not know. He had no opportunity to investigate the internal corporate structure by the

Washington Times newspaper prior to oral argument, being especially hampered by (1) inadequate consultation facilities with his client in a snow-covered Lafayette Park (2) a snow-storm wind severly disrupted government offices, and (3) the absence of either affidavits or certified copy documents in the record.




It may be argued that the constitutional issues, developed more fully infra, were not raised in the trial court and therefore this Court should not address them.

However, appellant did argue in his opposition to defendant's motion to dismiss" that his indigency should not preclude him from "meaningful access to the courts." In support of this proposition appellant cited Haines v. Kerner, 404 U.S. 519 (1972) where it was noted that the Supreme Court holds pro se complaints 'to less stringent standards than formal pleadings drafted by lawyers." 404

Id. at 520. Thus, although Mr. Thomas did not make the argument in precise constitutional terms, he did alert the trial court to his indigency and that such status should not deny him meaningful access to the judicial process. Assuming the Court finds that the constitutional arguments were not raised in the court below, they should nevertheless be addressed because affirmance of the dismissal would result in manifest injustice. That is, affirmance in this case would most likely prevent indigent litigants from ever raising access to the court arguments before this Court. Without being well-versed in both procedural and substantive law, the indigent layperson could not possibly understand the importance of establishing a record for appeal. Consequently, the issues now raised incessantly evade review by this court.

Therefore, assuming the court finds that the constitutional arguments were not raised below -- even though Mr. Thomas raised them as well as he knew how --


affirmance of the dismissal of the complaint would result in manifest injustice, not only for Mr. Thomas, but also for similarly situated plaintiffs too poor to afford representation.


The due process clause provides that "no person shall be deprived of life, liberty, or property, without due process of law." U.S. Const. Amend. V. If the government implicates a protected interest the issue then becomes: what process is due? A due process analysis requires the balancing of three factors articulated in Matthews's v. Eldridge, 424 U.S. 319 (1976).5/

An application of Mathews to the instant case illustrates the constitutional infirmity of the trial court's dismissal of the complaint. First the "private interest" affected is among others the vindication of Mr. Thomas' First Amendment rights. Second risk of an erroneous deprivation of such interest is great where, in cases such as the one at bar, the indigent pro se litigant is not well versed in the law. Moreover, the probable value of additional safeguards, such as requiring the trial court to inform the indigent in open court as to the reasons for dismissal, are great. Finally, the administrative burden to the government necessitated by informing an indigent pro se civil litigant that a


complaint can be amended is not overwhelming. This Court has already articulated workable procedural standards in many areas of the law, for example, in sentencing, accepting guilty pleas and instructing juries. Additional standards which protect pro se indigents would not be unduly cumbersome, especially in light of the rights such safeguards would protect.

In Boddie v. Connecticut, 401 U.S. 371 (1971), welfare recipients challenged a requirement that they pay a filing fee in order to institute divorce actions. The Court invalidated the fee requirement on due process grounds, noting that the judicial process of divorce is "not only the paramount dispute-settlement technique, but, in fact, the only available one." 401 U.S. at 375. (emphasis added).

Likewise, Mr. Thomas' access to the judicial process is the only available means for him to vindicate his First Amendment rights. Mr. Thomas alleged, inter alia, that the Washington Times and members of the Young Americans for Freedom conspired to, and did, carry out a 'raid" on Mr. Thomas to force him to abandon his lawfully conducted vigil in Lafayette Park. In conducting such vigil, Thomas was unquestionably exercising First Amendment rights to express his views. Assuming these facts are true, the judicial process is the only way in which he can vindicate his First Amendment rights. Our system of civil law is premised on the notion that people resort to the courts rather to fisticuffs when they have been wronged. Thus, similar to the petitioners in Boddie who were forced into the judicial arena in order to get a divorce, Mr. Thomas was denied due process when the trial court dimissed his lone chance at vindicating his First Amendment rights without providing him with a meaningful opportunity to prove his allegations.


Government for a redress of grievances." U S. Const.Amend. Thomas stated in his complaint, at paragraph 7~ that the action was instituted to "redress what they perceived to be a continuing menace to their lives and well-being in pursuit of their lawfully permitted [First Amendment] activities in Lafayette Park."

The judicial branch of our tripartite system of government, according to the Supreme Court, is part of the "Government" which the First Amendment guarantees citizens they can petition for grievences. As the Court stated in NAACP v. Button: "under the conditions of modern government, litigation may well be the sole practical avenue open to a minority to petition for a redress of grievances." 7/

In this case, Mr. Thomas attempted to petition the government in Superior Court for the redress of several grievances, the factual basis for which were alleged in his pro se complaint. However, because he is ignorant as to the nuances of the rules of civil procedure, his right to petition was abridged when the trial court, acting through power from court rules, dismissed the complaint without holding a hearing in open court, informing him that he could amend his complaint, stating the reasons for dismissal, or otherwise attempting to protect his rights. Therefore, as applied to the facts of this case, the Superior Court Rules of Civil Procedure violate the First Amendment because they fail to vindicate Mr. Thomas' First Amendment right, as an indigent pro se litigant, to petition the Government for redress of grievances.

7/NAACP v. Button, 371 U.S. 415, 429-30 (l963) (upholding the right of the NAACP to refer individuals to an attorney). see also Note, A First Amendment Right of Access to the Courts for Indigents, 82 Yale L.J. l055, where the author argues, relying on Button, that the First Amendment guarantees indigents a constitutional right of access to the courts.

Listing of Cases

Proposition One

Peace Park | People