No. 86-678

WILLIAM THOMAS, et al.,
Appellants,

v.

WASHINGTON TIMES, INC.,
Appellee.

On Appeal From The Superior Court (Civil Division)

OPPOSITION TO APPELLEE'S MOTION TO
STRIKE AND ACCOMPANYING POINTS
AND AUTHORITIES

W. Edward Morgan
Bar No. 280800
Supervising Attorney
Timothy Gresback
L. S. No. 4712
Student Counsel for Appellants
Antioch School of Law
2633 16^th Street, N.W.
Washington, D.C. 20009
202-265-9500

Come now appellants, through counsel, and respectfully request the Court to deny appellee's Motion To Strike Appellants' Motion To Stay The Mandate And Reargue The Case. In support of this opposition, appellants state the following:

1. This case was argued before the division on January 28, 1987. William Thomas, the pro se indigent plaintiff below, was assisted on rebuttal argument by student counsel. Until that time appellants proceeded in both the trial court and this court without the aid of counsel. Prior to oral argument the indigent pro se litigants filed all briefs on this appeal without the aid of counsel.

2. The pro se indigent litigants proceeded without the aid of counsel in both the trial court and this court until two days before oral argument. Moreover, student counsel's preparation for oral argument was further hindered because appellants continually maintain a 24-hour vigil in Lafayette Park and because a snow storm closed the Antioch School of Law and its library on Monday, January 26, 1987. As a result, student counsel had only one day in which to research the legal issues presented by this appeal. At oral argument, therefore, only those issues raised pro se by appellant Thomas in his brief were addressed.

3. On February 18, 1987, the case was affirmed in an Unpublished Memorandum Opinion and Judgment.

4. On February 24, 1987, appellants filed a Motion To Stay The Mandate And Reargue The Case, contending that appellants' constitutional right of access to the courts was abridged when the trial court, without holding a hearing in open court, issued an ambigious order dismissing the case without taking any measures whatsoever to protect the rights of the indigent pro se plaintiffs. It was also noted that such argument was not developed in the trial court -- nor in oral argument in this case -- due to appellants' pro se status.

5. On March 3, 1987, appellants filed a Motion To Stay The Schedule For Petition For Rehearing And/Or Rehearing En Banc in order to preserve the right to petition for rehearing or rehearing en bane.

6. On March 9, 1987, appellee filed a Motion To Strike, arguing that because the two motions filed by appellants did not comply with Court rules, the "pleadings" should be striken.1/

The Motion To Strike should be denied. First, appellee erroneously contends that a Motion To Stay The Mandate "may be filed only if appellant has applied to the Supreme Court for a writ of certiorari." (Appellee's Motion To Strike at 1) (emphasis added). However, D.C. App. R. 41 states in relevant part:

(a) DATE OF ISSUANCE. The mandate of the Court shall issue twenty-one days after the entry of judgment, unless the time is shortened or extended by order.

(emphasis added). Thus, as the language of rule 41(a) makes clear, the Court may extend the issue of the mandate by order in any appropriate case.

Appellee also contends that the Motion To Stay The Schedule For Petition For Rehearing And/Or Rehearing En Banc Pending Resolution Of Appellants' Motion To Stay The Mandate And Reargue The Case "does not comply with this Court's rules." (Appellee's Motion To Strike at 1). Conspicuously absent is any citation to the court rule with which the motion does not comply.

Appellants submit that the unique and compelling nature of this appeal makes it similar to other instances where the Court has heard reargument, such as A & G. Limited Partnership v. Joint Committee on Landmarks of the National

__________________________

1/ Five times in the Motion To Strike appellee refers to appellants' motions as "pleadings. " Motions, of course, are not pleadings. See Super. Ct. Civ.R.7.

Capital, 449 A.2d 291 (D.C. 1982) (reargument where one judge on original panel retired) and O'Connell v.. Maryland Steel Erectors, Inc., 495 A. 2d 1134, 1139 (D.C. 1985) (Appellant's Motion For Reargument granted where counsel called Court's attention to new statute enacted by Congress). Sometimes cases are reargued without any reasons stated therefor. See, e.g., District of Columbia v. McConnell, 464 A.2d 126 (D.C. 1983).

Reargument is especially warranted here because otherwise the issues raised concerning the rights of indigent pro se litigants will incessantly evade review. Indigent pro se litigants will continue to have their cases dismissed -- and their causes of action forever buried -unless the Court recognizes the unique status of the indigent pro se litigant. A pro se litigant unversed in the law does not understand the importance of making a record for appeal. The Court cannot expect from the indigent pro se litigant that which it demands from lawyers.2/ If appellants' Motion To Stay The Mandate And Reargue The Case is denied, this Court will loose a rare and valuable opportunity to set forth standards protecting the indigent pro se litigants' right of access to the courts.

2/ Appellee also argues that the Motion to Strike should be granted because the Motion To Stay The Mandate And Reargue The Case is excessive in length. Detailed argument is necessitated by the fundamental issues this case presents concerning the administration of justice in this jurisdiction. Nothing in the Court rules prohibits a motion thirteen pages in length.

WHEREFORE, appellants respectfully request the Court to deny Appellees' Motion To Stike; and, that the Court grant Appellants' Motion To Stay The Mandate and Reargue The Case.

Respectfully Submitted,

Timothy Gresback

L.S. No. 4712

Student Counsel for

Appellants

Antioch School of Law

2633 16^th Street, N.W.

Washington, D.C. 20009

(202) 265-9500

/s/W. Edward Morgan
W. Edward Morgan
Bar No. 280800
Supervising Attorney