Del Escritorio del Fundador: “Breviario Respondiente del Caso DO55001 ante la 4º División de la Corte de Apelaciones de la Corte de California. Apelación a una decisión de la Corte Superior, División de Familia de San Diego, presidida por la ‘Honorable’ Juez Schall.”
Mi presentación de los detalles de este caso en un foro en el que normalmente me he abstenido de hacerlo no precisa justificación, pero si algo de explicación, o tal vez disculpa previa por estar escrita en un idioma que típicamente no corresponde al resto de los escritos – pero no tengo tiempo de traducirla y muchos de mis alumnos y discípulos son bilingües. Se trata de una pequeña muestra del frente personal que llevo en mi guerra continua contra el sistema jurídico injusto y racista del estado de California, reflejo de una tradición racista de un país tan empapado en su legado esclavista que no puede desatrancarse de él. Confucio dijo que el clavo que sobresale tiene a ser amartillado; declararse como el “Shodai” – “el Primer Grande” – de una tradición como la que me propongo que sea MAMBA-RYU se dispone a sobresalir y arriesgar, tarde o temprano, la correspondiente reacción. No se puede agradar a todos y el que lo intenta acaba no agradando a nadie y lo más importante en temas de consciencia es agradarse a sí mismo.
Pero un proverbio Cherokee dice que no se puede enjuiciar a un hombre sin caminar dos semanas en sus mocasines y con eso me refiero a que los críticos suelen ser individuos pequeños de mente y mezquinos de espíritu que nunca hacen nada y así arriesgan menos.
Con eso dicho, les invito a un asiento de “primera fila” al cuadrilátero de una bronca que lleva ya muchos asaltos pero que promete muchos más y que me dispongo a que acabe en la Corte Suprema de los EE.UU. “Appellant” soy yo y estoy en respondiendo en ‘réplica’ al breviario de la “Respondent” – preparado por el abogado de la madre – que criticó mi breviario inicial con el que se abre la apelación a la decisión de la corte de familia de San Diego que terminó mis derechos de custodia y visitación a petición de la madre el año pasado.
I.
ARGUMENT
1. RESPONDENT’S ARGUMENT: APPELLANT INVALIDLY REFERENCED FC 3111
“Family Code section 3111 speaks to a custody evaluation, not a Family Court Services Report. […] Simply stated, there is no statutory right to a continuance of a hearing if the Family Court Services Report is not available to the parties at least 10 days in advance. […] The only “10 day” reference to a Report from Family Court Services is found in the San Diego County Family Law Local Rules, specifically, at Rule 5.10.2.H. where it states: […] If the FCS recommendation is not available at least 10 calendar days before the hearing, the court will generally grant a continuance upon a party’s request.” [Page 16]
REPLY:
I disagree; my Arguments in this respect are as follows:
ARGUMENT 1:
In the present case at least, the Family Court Services Mediation Report offered, substantively, the very same service and function that a “custody evaluation” would have offered had one been specifically ordered and provided. In fact, trial court relied on the FCS Mediation Report exactly as it would have on a “custody evaluation”. The Report had exactly the same impact on the litigation as a “custody evaluation:” providing ‘expert’ opinion regarding a custody and visitation plan. From contract law: “In a contract when the party involved fulfills all the major obligations which comprises the essence of the contract, such fulfillment of obligation is termed as substantial performance.” The FCS “under contract” with the trial court provided, substantially, a document which fulfilled the requirements of a child custody evaluation. Therefore there is no substantive difference between the FCS Mediation Report and a hypothetical “custody evaluation” should one have been specifically ordered. For all substantive purposes, the FCS Mediation Report was a “custody evaluation.”
Moreover, the Evidence Code for a Custody Evaluation does not make an explicit distinction that would preclude a FCS Report from qualifying as a child custody evaluation given that it serves exactly the same purpose as a “custody evaluation”:
California Evidence Code Section §730 ("730 Child Custody Evaluation"):
When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required. The court may fix the compensation for these services, if any, rendered by any person appointed under this section, in addition to any service as a witness, at the amount as seems reasonable to the court. Nothing in this section shall be construed to permit a person to perform any act for which a license is required unless the person holds the appropriate license to lawfully perform that act. [Emphasis mine.]
Because there was no alternative document specifically designated as a “custody evaluation,” trial court’s ordering, intention, and application of the FCS Mediation Report does substantively fulfill the requirements of California Evidence Code Section 730; FCS substantively fulfilled all the legal requirements to provide “expert evidence” to “investigate” and to “render a report” to assist the trial court in determining custody and visitation. There is no distinction between the manner in which the trial court used the FCS Report and how it would have used some other hypothetical report, at least in the present case.
If two items required by law are providing the very same substantive service in a legal proceeding then they cannot be, if one is in lieu of the other, subject to diverging rules and regulations. Otherwise, this would allow Courts to use substantially equal but alternative methods to bypass certain statutory rights or obligations guaranteed by the laws of the State. This is exactly what, in the present case, trial court has done. The FCS Report was the basis for the trial court’s determination of custody; therefore the FCS Report, at least in the present case, was indeed a “custody evaluation” and should have been treated as such under FC 3111. The trial court, relying illegally on local rules, sought to bypass the Equal Protection under the Law clause in order to expedite the Court’s agenda at the cost of Due Process.[1]
Respondent is however, correct regarding one thing: there is no reference in the Family Code to Family Mediation Services Reports, only to Mandated Mediation via Family Code Section 3170 and to Mediation itself. However, this serves the opposite effect that Respondent wishes to derive from this statement. Given that there is nothing in the Family Code to identify FCS Reports, there is also nothing which explicitly denies them the status of a “custody evaluation.” In other words, there is nothing in the Code that explicitly states the difference between a “custody evaluation” and a “Family Court Mediation Report” in terms of evaluating child custody. That appears to be a local rule distinction made by the San Diego Family Court which cannot override or contradict statutory laws:
A trial court is without authority to adopt local rules or procedures that conflict with statutes or with rules of court adopted by the Judicial Council, or that are inconsistent with the Constitution or case law. (Rutherford, supra, at pp. 967-968; see also Hall v. Superior Court (2005) 133 subdivision (a): “Every court may make rules for its own government and the government of its officers not inconsistent with law or with the rules adopted and prescribed by the Judicial Council.”[2]
Furthermore,
A common theme in the appellate decisions invalidating local rules, and one that also appears in the present case, is that a local court has advanced the goals of efficiency and conservation of judicial resources by adopting procedures that deviated from those established by statute, thereby impairing the countervailing interests of litigants as well as the interest of the public in being afforded access to justice, resolution of a controversy on the merits, and a fair proceeding. [3]
The local rule to which Respondent refers would allow trial courts the discretion to give litigants ZERO time to review a FCS Mediation Report even though said Report fulfills substantially the same purpose as a custody evaluation and functions in lieu of another document of that name. Such a procedure does indeed deviate “from those established by statute.” Hence and therefore, San Diego County Family Law Local Rule 5.10.2.H. is an illegal rule and must be either stricken or modified to be consistent with a 10 day waiting period required by FC 3111 which allows litigants the time to review any Court-ordered Report pertaining to the evaluation of, and recommendations regarding, child custody – for that in essence, is a child custody evaluation. This infringement of the law would make the present standard of review a de novo review.
ARGUMENT 2:
Trial court has, on every occasion I have witnessed, always advised plaintiffs receiving a Family Court Services Mediation Report of their “legal right” – not option, but LEGAL RIGHT – to 10 calendar days in order to review the contents of mentioned Report and if necessary respond to those contents. I am not an attorney, nor am I being counseled by one. Hence, it was based on these direct experiences, including those in Judge Schall’s Court that I learned of such a thing as a 10 day waiting period. Since there is no statutory reference made to FCS Mediation Reports in the Code, I cross referenced “10 days” through the entire Family Code. The only 10 waiting period that applied to a document serving the purpose of a “custody evaluation” is listed under FC 3111 and which pertains to a “custody evaluation” leading to ARGUMENT 1 I made above.
Nevertheless, trial court cannot, as a matter of custom and regular routine offer 10 days as a “legal right” to other litigants and not apply the same ‘discretion’ to me as well. This would constitute a discriminatory practice contrary to the spirit and the letter of the “equal protection under the law” clause of the 14th Amendment. Yick Wo v. Hopkins, 118 U.S. 356 (1886), as the first case where the United States Supreme Court ruled that a law that is in its appearance race-neutral, but is administered in a prejudicial manner, does constitute an infringement of the Equal Protection Clause in the Fourteenth Amendment to the U.S. Constitution.” This would also apply to a trial court’s discriminatory use of ‘discretion’:
Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution. […] The discrimination is, therefore, illegal, and the public administration which enforces it is a denial of the equal protection of the laws and a violation of the Fourteenth Amendment of the Constitution. [Page 118
Trial court, therefore, committed an illegal act of discrimination by violating my rights under the Fourteenth Amendment of the Constitution and said violation would require a de novo standard of review.
2. RESPONDENT’S ARGUMENT: TRIAL COURT CORRECTLY DETERMINED ACCORDING TO THE EVIDENCE.
“The trial court correctly resolved disputes in the evidence and determined the credibility of the parties (who were the only witnesses).” [Page 14, emphasis mine]
“The evidence presented to the trial court by Respondent demonstrated, in detail, the actions of the Appellant that were harmful to the children. […] Respondent’s evidence was based on verifiable actions of Appellant that either harmed the children or put them in harm’s way.” [Page 15]
REPLY:
I disagree. There was no such ‘evidence’ presented by the Respondent that could have possibly been reviewed by the Court as the only material that could constitute evidence – as opposed to ‘hearsay’, Appellant’s word against Respondent’s – that was to be found in the actual audio-visual materials which prompted the Respondent’s litigation at hand. Respondent, who had continuously been using the services of attorneys and not constrained by personal time pressures, conspicuously chose to lodge these materials the very day of the trial and AFTER Mediation wrote and filed her Report; this precluded their use by either in order to avoid incriminating herself providing the contents of the material evidence. Neither the trial court, nor the Mediator were able to review the materials PRIOR to making critical decisions with respect to the same. These audio-visual materials would have in fact constituted evidence had trial court or even the Mediator had the opportunity to review them.
Written declarations do not constitute ‘evidence’ in a disputed divorce hearing when the evidence is material and readily accessible to the trial court or to its representatives, and especially when trial court cannot, as the Respondent herself states “reconcile the evidence from one parent with that of the other.”
Written testimony in the form of a declaration constitutes hearsay and is subject to statutory provisions governing the introduction of such evidence. Our interpretation of the hearsay rule is consistent with various statutes affording litigants a “day in court,” including the opportunity to present all relevant, competent evidence on material issues, ordinarily through the oral testimony of witnesses testifying in the presence of the trier of fact.[4] […] a fair and full adjudication on the merits is at least as important in family law trials as in other civil matters, in light of the importance of the issues presented such as the custody and well-being of children[5] […]
Although some informality and flexibility have been accepted in marital dissolution proceedings, such proceedings are governed by the same statutory rules of evidence and procedure that apply in other civil actions. […] The Family Code establishes as the law of the state — and superior courts are without authority to adopt rules that deviate from this law — that except as otherwise provided by statute or rule adopted by the Judicial Council, “the rules of practice and procedure applicable to civil actions generally . . . apply to, and constitute the rules of practice and procedure in, proceedings under [the Family Code].” (Fam. Code, § 210; In re Marcus (2006) 138 Cal.App.4th 1009, 1017; In re Marriage of Mallory (1997) 55 Cal.App.4th 1165, 1170; cf. Fewel v. Fewel (1943) 23 Cal.2d 431, 438-439 (conc. opn. Of Traynor, J.) (Fewel); see also 11 Witkin, Summary of Cal. Law (10th ed. 2005) Husband and Wife, § 99, pp. 152-154; Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007), ¶¶ 13:80, 13:81, pp. 13-22-13.23; Samuels & Mandabach, Practice Under the Cal. Family Code (Cont.Ed.Bar 2007 ed.) §§ 16.3-16.5, pp. 745-746.)[6] [Emphasis mine.]
Furthermore,
in Reifler, supra, 39 Cal.App.3d 479 […] the Court of Appeal considered a challenge to a Los Angeles Superior Court policy of adjudicating long-cause hearings on postjudgment motions in marital dissolution matters solely on the basis of affidavits. The reviewing court acknowledged that affidavits ordinarily are excluded as hearsay, but concluded Code of Civil Procedure section 2009 provides a hearsay exception that grants a trial court discretion to decide motions on the basis of affidavits — even when facts are controverted — but only so long as the controverted facts do not require factfinding resulting in a judgment. (Reifler, supra, at pp. 484-485.)[7]
Additionally, the Supreme Court of California, also in Elkins v. Superior Court, informs us that
We also observed in Johnson that, unlike a pretrial suppression motion, the motions referred to in Code of Civil Procedure section 2009 are on “preliminary or ancillary procedural matters” that historically have been decided on the basis of affidavits alone, whereas it is well settled that section 2009 does not change the rules of evidence. (Johnson, supra, 38 Cal.4th at p. 730.) Quoting Lacrabere, supra, 141 Cal. 554, we confirmed that section 2009 “ ‘has no relation to proof of facts the existence of which are made issues in the case, and which it is necessary to establish to sustain a cause of action.’ ” (Johnson, supra, at p. 730, italics added.)[8]
My understanding of Elkins v. Superior Court (2007) as applied to the present case and with regard to the statements cited above concerning “evidence” is that the trial court failed to apply due process and the relevant Codes in determining credibility by simply making use of written declarations rather than the material evidence at hand. Again, and according to the Respondent’s own statement, “trial court could not reconcile the evidence from one parent with that of the other,” in other words, trial court should have, by law, resorted to the only objective and material evidence available: the audio-visual recordings.
Finally, the Respondent failed to provide any ‘evidence’ or even reasoned argument regarding the manner in which my postings to the Internet adversely affected the children: no statute, code or law was identified as being broken. My “Responsive Declaration II to Petitioner’s March 4, 2009 OSC” [CT 1789 – 1812] refutes any and all arguments the Respondent made regarding my alleged detriment to the children. Furthermore, it establishes, beyond a reasonable doubt, that the only real detriment to the children has taken and continues to take place under the Respondent’s custody and in her continued refusal to provide psychological treatment to our son.
Trial court’s refusal to address this issue has been a major concern throughout the litigation and a major source of the acrimony throughout this Case. As Supreme Court decisions do constitute the ‘law of the land’ and trial court did violate this law, said violation is not an abuse of discretion but an unlawful act on the part of the trial court and therefore requires a de novo review by the present Court of Appeals.
3. RESPONDENT’S ARGUMENT: APPELLANT WAS ABSENT FROM THE HEARING
“Appellant did not make his request of the trial court to continue the case. Should Appellant argue that he was prevented from making such a request by the fact that he was not present for the hearing due to being late, he cannot reasonably say he was prevented. Instead, the hearing going forward in his absence was solely due to his failure to timely appear and further failure to advise the trial court that he would be delayed.” [Page 17]
REPLY:
I was in fact at the hearing, and (for medical reasons) I did appear late, and I was prevented from participating. The Reporter’s Transcript confirms all such statements. Whether I appeared too late for the trial court to have properly included me in the proceedings is a matter for the present Court to determine.
However, even if my participation were a matter of the trial court’s discretion, the question is whether or not the trial court exercised such discretion in a manner consistent with due process, the pursuit of justice or in a manner that would imply non-compliance with the law, bad faith, discrimination, or some other nefarious ulterior motive. I did attempt to address the court upon my arrival but the Judge refused to acknowledge my presence for a period of time. However, as the Reporter’s Transcript confirms and as I have argued previously, the trial court actually made its ruling after I was present in the hearing; when I continued to attempt to participate in the hearing the trial court ordered my removal from the courtroom.
I will not repeat myself on this issue; I will say the following:
1. Over the four years that I have been in and out of Family Court Hearings, and the dozens of hearings I have witnessed, I have never experienced or witnessed a situation in which an attorney or a pro-se litigant was subjected to such hostility – abuse of authority – as the trial court demonstrated towards me on April 9th, 2009. Trial court has always, in my experience made every effort to at least switch the order of presentations of the cases in order to accommodate a late litigant or his/her attorney.
3. Whether it is policy, code, law, or discretion that regulates such bad faith behavior on the part of the Court, the Equal Protection and Due Process clauses of the Constitution do not permit a Judge to so deliberately discriminate against a single party to his or her material detriment.
4. Furthermore, the “right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society,"[9] a principle the trial court failed to consider when I was excluded from the hearing even though I was only minutes late in entering the courtroom.
Again, I refer to Yick Wo v. Hopkins, 118 U.S. 356 (1886), in support of the same argument advanced previously, i.e., the trial court discriminated against me in its actions by not seeking alternatives to commencing the hearing in my absence. Once again, trial court actions were in violation of my rights under the 14th Amendment if not also under the 5th Amendment and therefore require a de novo review by the present Court.
4. RESPONDENT’S ARGUMENT: APPELLANT WAS NOT AFFECTED BY LACK OF TIME TO REVIEW FCS MEDIATION REPORT
Appellant actually represented his perception of the mediation at Family Court Services and did so in his 24 page “Responsive Declaration II to Mother’s OSC of March 4, 2009 and Supplementary Declaration II to Respondent’s OSC of March 9,
REPLY:
Respondent’s statement is deliberately misleading. As her own Brief indicates, the Declaration stated above (“Responsive Declaration II”) was filed on March 30, 2009 [CT 1789], days prior to my receipt of the Family Court Services Report which was filed on April 2, 2009. The point Respondent makes about is irrelevant. I presented my “perception of the mediation” but I had no chance to even review the Report, much less respond to the substance of the Report itself.
5. RESPONDENT’S ARGUMENT: APPELLANT HAS NOT COMPLIED WITH RULE 8.204(a)(2)A
“…thereby leaving Respondent to guess what Appellant is appealing.”
REPLY:
I disagree that “Respondent” is left to “guess what Appellant is appealing” given that the very Notice of Appeal filed on April 9, 2009 [CT 1841] explicitly states that I am appealing a judgment which took place on “Hearing date 4/09/2009”. I do not think there is much left for Respondent to guess. Furthermore, the Findings and Order after Hearing, filed on June 16, 2009, for the Hearing of “4/09/2009” was added to the Clerk’s Transcript Augment and can be found on page 128 of stated volume. I doubt very seriously that I left “Respondent to guess what Appellant is appealing.”
Nonetheless, should I have in my Opening Brief failed to comply with Rule 8.204(a)(2)A with sufficient clarity I will thank Respondent for bringing this dereliction on my part to my attention and take advantage of my opportunity to now make such a correction, should on be necessary, in hopes that my Appeal not be rendered fatally flawed by any confusion regarding this issue:
Appellant is appealing the Findings and Orders after Hearing filed June 19, 2009 pertaining to the trial hearing held on April 9, 2009, Judge Schall presiding.
6. REPLY TO RESPONDENT’S AD HOMINEN ATTACK AND HER RECOGNITION OF TRIAL COURT’S “WITHOUT QUESTION” DISCRIMINATORY BIAS IN HER FAVOR:
(1) “Appellant seeks to hold others responsible for everything he perceives has gone wrong in his life. While the word may be overly used, this type of “blame others” mentality is recognized sign of pathological narcissism. A narcissist hates losing and then facing reality, so Appellant vents his anger and frustration in court documents.” [Page 15]
(2) Appellant is quick to “diagnose” others such as the trial court . . . yet, Respondent [?] has little or no insight into his own pathology. [Page 15, emphasis mine]
(3) But, stated simply, without question, the trial court accepted the declaration testimony of Respondent over that of Appellant. And that should not be surprising as the trial court could not reconcile the evidence from one parent with that of the other.” [Page 15]
REPLY TO STATEMENT (3): I agree wholeheartedly, trial court has ALWAYS, regardless of the material evidence I have brought to bear, and as it has in the present case, systematically disregarded the evidence, not to mention my testimony, in favor of Respondent’s declaration. I thank Respondent for her candor in this matter. Her frankness bespeaks the elephant present during every single trial and hearing throughout this case. The present Court should verify that this same perspective, with accompanying sentiments, are expressed in my Responsive Declaration II to Petitioner’s March 4, 2009 OSC [CT 1789 – 1812] when I state “The mother enjoys de facto credibility before the Court” [CT 1806] despite her history of forged documents, false declarations and testimonies. [E.g. CT 1782-4]
One should find the Respondent’s admission to the preferential treatment by the trial court, as well as the naturalness with which she assumes she deserves this treatment, utterly shocking no matter how accurately it depicts reality. But one does not, and one does not because what is represented in her succinct statement are the sentiments behind what those words imply, sentiments immortalized during another trial in this country:
Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the
And such sentiment is quite simply translated into the current case of in the Marriage of Overton thusly,
“Why would the trial Court not believe a wealthy White woman’s word over a poor Colored man’s? Why would such a man believe to be entitled to all the rights, and privileges, and immunities guaranteed to citizens under the Constitution of the
In 1857 Chief Justice Taney of the Supreme Court of the
We think they are not, […] On the contrary, they were at that time considered as a subordinate [60 U.S. 393, 405] and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them. […]
REPLY TO STATEMENT (2): I concur with the Respondent; “Respondent” indeed has little or no insight into ‘her’ own pathology which consists of perceptions of entitlement to special legal rights and privileges, paid for to the tune of $200,000 in legal fees and mounting. Perhaps if Respondent did have more insight then she would had predicted that the turpitude behind her motivation to deny our children their right to their father would be met not with the passive acceptance she no doubt thinks proper for my ‘kind,’ but with the implacable struggle for justice that my ‘kind’ has demonstrated throughout the history of this country. As I informed Respondent’s attorney on a certain occasion, way back when, “I am not moving to the back of the bus on this one.” Of course, he gorged his pockets with the result, which leads me to my reply to RESPONDENT’S STATEMENT (1).
REPLY TO STATEMENT (1): In response to Respondent’s ad hominen attack in which she diagnoses me as suffering “pathological narcissism” (in her expert capacity as a history teacher, no less), pathology which materializes in the venting of my “anger and frustration in court documents,” I have some carefully chosen words to offer, words taken from my work in progress entitled: “MANDATED REPORT: A Black Father’s Battle with Cancer and Injustice – The Historical Problem of Racism in the American Injustice System Today.”
This work not only describes in minute detail the events, names of individuals, findings, orders, transcripts, and the like pertaining to this case, but also a brief historical summary of a people’s cumulative frustrations with the legal system in this country and a social snapshot of what these legal decision have caused.
I cannot, however, and shall not speak for those socially and politically disenfranchised millions, many filled with even more “anger and frustrated, who may see, should justice not prevail, that my case is simply another clear and present example that visible minorities cannot hope to find justice in this country. They may use those sentiments of “anger and frustration” to justify other actions, actions too terrible to mention. I am not responsible for the potential outcomes of the mere reporting of actions I have done my utmost to prevent.
With that in mind, this Court has the opportunity to re-establish public confidence in our system of justice, confidence that has been diminished in part by the series of abuses of discretion and disregard for Due Process and Equal Protection Clauses of the Constitution that have been endemic to this Case – to my children’s and my detriment. In so doing, the Court would restore the all-important appearance of justice to this Case. “Courts must earn the public trust (See Cal. Stds. Jud. Admin., § 10.17, subd.(b)(5)(A) & (B).)”[10] and “justice must satisfy the appearance of justice,” Offutt v. United States, 348
In the Marriage of Overton is wrought with actual injustice, incompetence, corruption, racism, and mostly justice denied. These are facts that The People will come to know all about; what is on trial here is not a case before the higher courts, but the Justice system of the State of
The first legal importation of African slaves in 1619 initiated a series of human events that would leave indelible and disgraceful scars on the face of American society and its jurisprudence. Slavery created a caste system in which a category of human beings was legally designated as property to another category based strictly and solely on their ethnic and racial heritage. This default classification of legal discrimination created, of necessity, a social, educational, economic, and cultural inequity and inequality which continues until this day. As a result, no issue has created more conflict and controversy, be it social, economic, political, or moral throughout the history of the
During the 1787 Constitutional Convention which began in
From this point on, the history of the
Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a Country. As nations can not be rewarded or punished in the next world they must be in this. By an inevitable chain of caused & effects providence punishes national sins, by national calamities.” - George Mason, Aug.22, 1787[11]
It is relevant to the present treatise to bear in mind that the institution of slavery did not solely involve forced labor under inhumane conditions. Rather, it involved a series of degrading and dehumanizing processes that stemmed from a perspective that the slave was less than human – indeed, only three-fifths so. As such, no more than property, the slave was subject to the degradation of having his wife and daughters raped by White masters, and the dissolution of his family through the sale of children, likely for financial profit. Additionally, and equally relevant to the argument at hand, the slave became dispossessed of his own identity by the forced privation of his ethnic and linguistic heritage. Loss of language of origin was enforced by preventing slaves from interacting with others who spoke the same language. It was feared that communication amongst others of the same ethnicity would provide the ego-strength, the sense of community and joint destiny, and means for active coordination that would lead to a rebellion against their masters. Thus slavery, in its need to affirm a demoralized and subservient population, demolished at once ethnic and linguistic identity as well as family bonds. In further efforts to prevent incidents of the likes of the Stono Rebellion of September 9,
The affirmation of slaves as legal property was firmly upheld by various United States Supreme Court cases such as The Antelope case.[13] The Antelope was a slave ship seized by a
It is in slavery, I would argue, that the American justice system learned to treat humans as merchandise and in the same manner Family Courts treat children as the primary custodian’s personal property. I find little difference between a trial court endorsing the destruction of father-child bonds by authorizing a move away for the financial benefit of the mother – without even charging her with the full financial responsibility of ensuring the same degree of contact with their father PRIOR to the move away – and the destruction of those same bonds via the sale of children for financial gain.
In 1842 another case came before the Supreme Court that would again involve the kidnapping of slaves and that assert the rights of slave owners to retrieve their property and affirm the less-than-human status of Black Slaves. In Prigg v. Pennsylvania, under Chief Justice Taney, the Supreme Court ruled that no state can enact laws which would hinder a master’s right to retrieve his lawful property, even if the manner in which that property was retrieved (kidnapping as was the case), was unlawful in that state or if slavery was not legal in that state.[15]
In 1850, Congress passed the Fugitive Slave Act of 1850 as part of the Compromise of 1850. It was an attempt at keeping the country together by making concessions to slave-owning states. Fredrick Douglass would state that it was “designed to involve the North in complicity with slavery.” The new legislation eliminated due process for those accused of being fugitives, and stiffened the penalty for those who aided and abetted those seeking freedom from (legal but immoral) bondage. “The law also made it a federal crime for any citizen to refuse to aid in the recapture of a fugitive slave . . . . [it] allowed any claimant of a fugitive to place him or her in custody without a warrant, jury trial, or hearing.” Consequently, “many free blacks were kidnapped and sold into slavery.”[16] In effect, what the Fugitive Slave Act of 1850 did was contribute to the formation of a culture in which the inhumane persecution of Blacks became a social requirement and legal institution.
Perhaps the most controversial ruling of the Supreme Court with respect to the politics and economics of race, one which left an indelible stain on the legitimacy of the Supreme Court to dispense justice in racial issues; one which tainted the history of the United States and the premise of freedom and justice for all; and which is considered to be an indirect cause of the Civil War, is the 1857 Dred Scott v. Sandford case. The decision of the Supreme Court was to affirm that no Black person, free or otherwise, was a citizen of the
Justice Taney’s is an opinion that is clearly and repeatedly reflected in the findings and orders of the Family Court judges I have faced to date. It is an opinion that was clearly and repeatedly reflected in the acquittal of all police officers involved in the 1992 Rodney King Trial in Simi Valley California and which left hundreds of millions – if not billions – of citizens of all countries of the world asking “Why did the twelve members of the jury fail to convict any of the officers?” It was an opinion which has been all too often repeated throughout the legal history of this country and which has resulted in such cries of desperation as were seen in the LA riots following the King Trial in 1992, as well as many others of its kind, such as the 1965 Watts riots of my childhood, and the race riots of Wilmington, N. C. (1898), Atlanta, Ga. (1906), Springfield, Ill. (1908), East St. Louis) Ill. (1917), Chicago, Ill. (1919), Tulsa, Okla. (1921) and Detroit, Mich. (1943). And it is an opinion which the Respondent herself flaunts as governing the perception of trial court in this case:
“But, stated simply, without question, the trial court accepted the declaration testimony of Respondent over that of Appellant. And that should not be surprising as the trial court could not reconcile the evidence from one parent with that of the other.” [Page 15 Respondent’s Opening Brief]
Any court of law should cringe at the manner in which a White female judge, under conflicting information from the litigants which she “could not reconcile,” would unequivocally take the word of the White female litigant over that of the Black male litigant without as much as giving the slightest care or consideration for material evidence at her disposal – any court of law save that of the Supreme Court of the United States under Chief Justice Taney.
Justice Taney also ruled that Congress had no right to ban slavery in the
Even prior to the Dred Scott ruling, Hezekiah Ford Douglass, a free African American from
When I remember the many wrongs that have been inflicted upon my unfortunate race, I can scarcely realize the fact that this is my country. I owe it no allegiance because it refuses to protect me. It is a maxim in Governments, “That each individual owes allegiance in proportion to the protection given.” . . . When I remember that from Maine to Georgia, from the Atlantic waves to the Pacific shore, I am an alien and an outcast, unprotected by law, proscribed and persecuted by cruel prejudice, I am willing to forget the endearing name of home and country, and an unwilling exile seek on other shores that freedom which has been denied me in the land of my birth.[19]
Although an individual of African descent has reached the pinnacle of power in the United States by occupying the position of President in the White House – an edifice constructed at least in part by Black slave labor[20] – H. Ford Douglass’ remarks echo as clearly in the hearts and minds of many if not most African Americans today as they held 150 years ago. While it is difficult for members of the White majority, or even other ethnic minorities to understand let alone accept this claim, a simple reference to the nationwide statistics which show the incarceration rates for Blacks as being 397% higher (i.e., five times more) than those of Whites should assist in the change of viewpoint that will open one’s mind to the reality of this perception.
The point for the present Court to keep in mind is that whether these incarceration rates reflect a) the increased attention, persecution, and prosecution of Blacks by the justice system nationwide; b) a high degree of criminal behavior inherent to Black culture and society; or c) a combination of the two, the original cause is the same: social and economic circumstances forged and fomented by incessant legal determinations throughout the history of this country, of which the Dred Scott ruling is but one.
The Dred Scott ruling became central to American politics between 1857 and 1861.[21] It is an example of how judicial legal decisions can have great social impact on a country and why in particular de rulings of the Supreme Court cannot in any reasonable conscious manner divorce themselves from the social and historic context in which they take place. The Dred Scott disposition had not only the effect of establishing legal grounds to perpetuate and nationalize slavery, but was also tremendously instrumental in provoking the United States Civil War,[22] a brutal confrontation within our own soil in which 600,000 American lives were lost. Dred Scott is also a clear and present example of how American jurisprudence, when it comes to issues of race, has established an unequivocal pattern of making short-sighted decisions with long-term social implications that separate and distinguish law and order from morality and justice.
Although the Dred Scott case and its relation to slavery were the primary focal points of the seven presidential debates between Senator Douglas and Abraham Lincoln in 1860, it is important to note that abolition of slavery did not imply equality between the races; that is a point which needs to be understood and which Abraham Lincoln himself made very clear when he stated in 1858 that,
I will say then that I am not, nor ever have been in favor of bringing about in any way the social and political equality of the white and black races, [applause]---that I am not nor ever have been in favor of making voters or jurors of negroes, nor of qualifying them to hold office, nor to intermarry with white people; and I will say in addition to this that there is a physical difference between the white and black races which I believe will for ever forbid the two races living together on terms of social and political equality. And inasmuch as they cannot so live, while they do remain together there must be the position of superior and inferior, and I as much as any other man am in favor of having the superior position assigned to the white race. I say upon this occasion I do not perceive that because the white man is to have the superior position the negro should be denied everything. . . . very frankly that I am not in favor of negro citizenship.[23]
Therefore, the future President of the
There are other dimensions in which Dred Scott must be interpreted. In a similar manner in the Jews were the victims of a campaign of dehumanization during Hitler’s Germany, Blacks were dehumanized by way of even religious and biological arguments in order to justify the inhumane horrors of slavery: human beings cannot effect such treatments of other fellow human beings. The Dred Scott ruling is reflective of a deeply-seated venom that has deprived millions in our country of “Life,
Even such a noteworthy anti-slavery proponents as Abraham Lincoln was infected by the view of his time in which Blacks were inherently inferior to Whites – even if that inferiority did not merit slavery. And if the people themselves were inferior and not meriting equal treatment under the law, then anything produced by those people – such as culture, language, and all aspects of ethnic heritage – are equally unworthy of protection by the law. This campaign of systematic denigration not only became the official culture of much of the United States, affecting White’s perception of Blacks, but it also had tremendous impact on Blacks themselves, creating a internecine conflict in which darkness of skin, type of hair, or facial features such as thick lips are often valued the racist esthetic views of White supremacy. It has been argued that the extent to which Blacks themselves have been the victims of the dehumanizing and undervaluing propaganda of White supremacists is reflected in the use of the ‘n’ word by Blacks themselves in open reference to each other, and are the only ethnic minority to refer to each other in the same derogatory and demeaning terms employed by the discriminating majority. Even if the “separate by equal” status conferred perfect equality of condition and circumstances, it is internally degrading to a group of people to be considered unfit to freely intermingle with another group.
Since that time, and for the following century the Negro, Black, or African-American experience in this country has been dominated by the fight for equal rights and the freedoms promised to all under the Constitution. During the first decade of that century progress was inhibited by Supreme Court rulings of Congress giveth and the Supreme Court taketh away:
Congress giveth:
Ø January 31, 1865: Congress passes the 13th Amendment to the Constitution, which abolishes slavery; it is ratified by the states in December of 1865.
Ø July 9, 1868: Congress passes a strong civil rights act in 1866 and enacted the 14th Amendment to the Constitution, granting full citizenship to all individuals born in the
o No state could abridge “the privileges and immunities” of citizens.
o States could not “deprive any person of life, liberty, or property without due process of the law.”
o States could not deny any person from “equal protection of the laws.”
Ø February 3, 1870: The 15th Amendment to the Constitution is ratified, guaranteeing voting rights to all adult male citizens the right to vote. Supposedly, the rights could not be “denied or abridged . . . on account of race, color, or previous condition of servitude.”
Ø 1870-71: Congress enacts the Enforcement Acts intended to help them achieve the rights to which they are entitled under the 14th and 15th Amendments, giving the President the right to use force in the protection of those rights.
Ø March 1, 1875: Congress passes the Civil Rights Act of 1875 which prohibits discrimination in public accommodations such as restaurants and hotels.
The Supreme Court taketh away:
Beginning with two important decisions which virtually crippled the establishment of Civil Rights for Blacks in the Supreme Court for over a century – not surprisingly making use of former Chief Justice Taney’s argument in the Dred Scot case:
Ø 1873: The Slaughterhouse Case. The Supreme Court makes an important ruling in a 14th Amendment case, using an argument made by former Chief Justice Taney in his regarding the distinction between ‘state’ and ‘federal’ and also establishing the so-called “state action” doctrine in which only actions by the state itself could be prosecuted under the 14th Amendment. The Supreme Court rules that 14th Amendment only protected those rights guaranteed under “federal” but not “state” citizenship.
Ø 1875: Cruikshank v.
The Supreme Court would then continue with a series of racist decisions that paved the way for and supported Jim Crow “separate but equal” laws which remained in effect for nearly a century until the 1954 Brown v. Board of Education.
Ø 1876: In United States v. Reese the Supreme Court rules that the 15th Amendment does not guarantee Blacks a right to vote.
Ø 1878: In Hall v. Decuir the Supreme Court rules that states cannot prohibit segregation on interstate public transportation.
Ø 1883: The Supreme Court rules that aspects of the Enforcement Acts of 1870-71 are unconstitutional. The court holds that states not individuals are constitutionally bound to respect the rights of Blacks.
Ø
Ø May 12, 1896: In Plessy v. Ferguson, the Supreme Court ruling establishes the “separate but equal” policy. Justice John Harlan, the sole dissenter, equated the Plessy decision with that of the Dred Scott case of 1857, predicting it would rouse racial hatred for generation; he was right. Much as being Jewish in Nazi Germany, the Plessy case also established the “one-drop” rule for being Black, that is, if one had an identifiable Black ancestor then one would be legally considered Black, regardless of the color of one’s skin or the appearance of one’s features. My children Alex and Julia, having one grandparent – my father – who is Black would be considered by any rule of law to be Black.
Ø 1900. The Supreme Court validates segregation in railroad cars even if travel is between states in which segregation is illegal.
Between 1900 and the Brown vs. Board of Education in
a black person who has been reprimanded or persecuted for voicing his dissatisfaction with or rejection of the sub-standard treatment of himself or other black people.
The term was very popular among slave masters who often used the term to refer to blacks that were rebellious or, in other words, blacks who required and demanded respect, fair treatment and regard.
In his day, Frederick Douglass was considered to be an "Uppity Negro" because he never tried to assimilate to the white way of life. Douglass never begged or asked for respect, he demanded it.[24]
The issue of a confident Black man being labeled “arrogant” is well understood by social scientists in this country. Socially threatened Whites refer to African American’s who take the requisite legal measures to defend their rights and therefore “do not know their place” not by the politically incorrect term “uppity negro”, but rather by social euphemisms such as being “narcissists who hate losing” or legal terms such as “vexatious litigant.” Evidently, despite the great advances of the Civil Rights movements in bringing Jim Crow to a close, the wounds accumulated in the process of those battles have not healed to this day, nor have the misguided perceptions of a racist majority. The rights we have we fought for, and we still do. Being designated a vexatious litigant is nothing compared to being hung from a tree. That is how “we” feel on that issue.
With a Black President in the White House the issue of Black “arrogance” is far more on the surface that White America is accustomed,
Karl Rove says Barack Obama is arrogant.
We've heard that; we've heard the pejorative "arrogant" before. When I say "we" I mean those of us who are "others" in
Arrogant, of course, is a euphemism. In the monochromatic bunkers from which old-schoolers cling to power the true word they use is "uppity" when hurled at blacks. […]
Arrogant?
The only arrogance Obama is guilty of is the same "Unforgivable Blackness" so many exceptional people of color have demonstrated throughout the history of this country: a refusal to bend to the will of the Retro Guard. […] Back in the day such "arrogance" was met with a strong rope and tall branch…[25]
Back in the day, when I was only five years old, such “arrogance” was met by two White teenagers from North Carolina who decided they wanted to see a “n----er” fly, so they picked me up and tossed me off a
Today, the scores of angry, violent visible minority youths are populating the jails and prisons of our country rather than the colleges and universities; they are swelling the ranks gangs and anti-social institutions rather than occupying themselves as productive and proud members of our multicultural society. They mock the achievements of the Civil Rights movements from their jail cells and in their rap songs, while they chant verses of hatred and practice self- and other-destructive lifestyles. If the Courts do not provide us, the older generations of visible minorities, with the legal precedents and judicial backing that assist us to encourage the younger generations to value their roots and believe that justice is a possibility to be afforded them, then we will all be helpless in turning the growing tide of frustration, desperation, anger, and bitter hatred that will in more probability than possibility, create greater havoc on our great nation than the Civil War: again the Courts would have sown the wind, and the country itself will reap the whirlwind.
The
“Hate is part of our culture,” said Jack Levin of the
The youths are being tried as adults; one of them, who admitted throwing a punch that left the victim unconscious, was a grade ‘A’ student and ran track in his high school.
The issue of race came to the very forefront of In the Marriage of Overton since Minors’ Counsel presented his Statement before the Court during the acrimonious Move Away litigation:
Alexander presents as a Caucasian child. Julia presents as a child of mixed race heritage. Alex could easily pass for a white child; Julia could not. I mention the race issue because unfortunately we live in a time and place where fear, hate and bigotry still exist. It still exists in
The mother would never follow through with her obligation to provide the children with a bilingual education and effective Spanish language training. The Superior Court did nothing, has done nothing, to require the mother to comply with any of the suggestions or requirements regarding protection of their multiethnic and bilingual heritage. The Court refused to act upon the recommendations of a professional linguistic evaluation which clearly established that the children had no effective exposure to the Spanish language since their relocation:
I the undersigned hereby declare that Alexander Jesse Overton and Julia Rachel Overton made a series of Spanish evaluation exams in this Institution. [. . . ] In both cases, we identify that the children have not been exposed to the Spanish language at home, nor have they taken Spanish classes which would give them the opportunity to practice and to express themselves in this language as other bilingual children of their ages do. Both children are well below average for children their age who speak Spanish even as a second language.[iii]
Most often, ethnic minority children grow up in a social or family context in which this identity is fostered and cultivated. However, in the case of In the Marriage of Overton, which arises as the direct result of the growing trend in divorced parents to relocate, trial court has repeatedly refused to give weight to the needs and rights of the multi-ethnic and bilingual children to grow up according to these identities as a factor in the “best interest” or in a “change of circumstances” analysis of their custody and visitation. When Supervising Judge Alksne finally guaranteed my day in court, Judge Schall saw to it that it would not happen.
White children freely enjoy the right to develop according to their ethnic identity based on the position of advantage and achievement of the dominant White majority in American society. Their ethnic identity and language is guaranteed under such circumstances:
The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.[iv]
These words, written by Justice J. Harlan were the sole dissenting opinion in the Supreme Court case of Plessy v
It is necessary to understand the context in which those words were written, for they were redacted precisely as a result of one of the most devastating Supreme Court decisions to equal rights among the races, second only to the Dred Scott v Sandford case of
This legal legacy has contributed of necessity to the embedded perception in the hearts and minds of American culture of the inherent and all-pervasive superiority of the White race. We, the visible minorities of this country, are not “the peer of the most powerful” and will not begin to be until our rights to our ethnic and linguistic heritages are recognized and enforced by law so we can proceed to reconstruct that which has been taken from us through the legal use of discrimination:
In the "doll test," psychologists Kenneth and Mamie Clark used four plastic, diaper-clad dolls, identical except for color. They showed the dolls to black children between the ages of three and seven and asked them questions to determine racial perception and preference. Almost all of the children readily identified the race of the dolls. However, when asked which they preferred, the majority selected the white doll and attributed positive characteristics to it. The
Visible minority children can only fulfill their right to cultivate their ethnic identity by developing in an environment in which they have the opportunity to do so. For children of Hispanic descent in
The cultural tradition of socio-economic and legal exclusion in the
The nation's answer to the question 'Who is black?’ has long been that a black is any person with any known African black ancestry. This definition reflects the long experience with slavery and later with Jim Crow segregation. In the South it became known as the "one-drop rule,'' meaning that a single drop of "black blood" makes a person a black . . . this American cultural definition of blacks is taken for granted as readily by judges, affirmative action officers, and black protesters as it is by Ku Klux Klansmen.[vi]
Despite having an African American in the Oval office, the fact remains that most visible minorities - and Blacks in particular – have continued to remain tremendously handicapped and disenfranchised in most, if not all aspects of American society:
Ø There is an early and manifest educational divide that mirrors and is predictive of the economical discrepancy between Blacks and Hispanics and the White majority. In 2009, on the national mathematics assessment test for fourth graders, “Black students had an average score that was 26 points lower than that of White students,” and “Hispanic students had an average score that was 21 points lower than that of White students.”[vii] Furthermore, while only 9% of White 4th graders performed at below Basic level on the same Mathematics achievement test, 36% of Blacks, 29% of Hispanics and 34% Native Americans failed to perform at Basic levels.[viii]
Ø The gap widens with age: In the same year, eighth grade “Black students had an average score that was 32 points lower than that of White students” and “Hispanic students had an average score that was 26 points lower than that of White students.”[ix] Furthermore, while 17% of White eighth graders performed at below the Basic level this contrasts with the 50% of Blacks, 43% Hispanic, and 44% of Native American student who failed to perform at the Basic level on the same test.[x]
Ø In 2007 on a national reading assessment test, Blacks, Hispanics and Native Americans also demonstrate deficient levels in reading skills compared to their White counterparts, scoring on average 28, 26, and 28 points lower than White students, in the 4th grade, respectively and 27, 25, and 25 points less respectively than White students at the 8th grade level.[xi]
Ø These early differences between childhood achievement levels in education continue throughout adulthood. 2008 statistics reveal Black and Hispanic populations with significantly lower (between 25% and 75% lower) percentages of college graduates in the categories of Bachelors, Masters, Professional, and Doctoral degrees[xii]:
Ø The disparity in education levels are equally reflected in lower income levels for Blacks and Hispanics with respect to Whites. In 2006, only 11.3% of White households had an income of $15,000 or less, while 24.4% of Black households and 16.3% of Hispanic households were in the same category. Similarly, while 32.0% of White households earned $75,000 or more, only 16.8% of Black households and 19.4% of Hispanics were in the same income category.[i] While the median income for White households in 2006 was $50,673, for Blacks and Hispanics it remained considerably less at $31,969 and $37,781 respectively.[ii]
Ø With the discrepancies in education and income levels comes a propensity towards criminal behavior and friction with the law: in 2008, the incarceration rates for Hispanics were 64% higher than those for Whites, and those for Blacks were a whopping 397% higher than those for Whites.[iii] I have made reference to this statistic earlier.
Ø These social, educational and financial disparities between the races have also had a profound impact on Black and Hispanic youth. Gangs have become a primary threat to American society with “[a]pproximately 1 million gang members belonging to more than 20,000 gangs were criminally active within all 50 states and the
What these and countless other contemporary ethnic statistics demonstrate, is that Blacks and Hispanics experience tremendous and crippling disadvantages in virtually all dimensions of American society.
I refer again to Justice Harlan’s sole dissent in the Plessy v.
This question is not met by the suggestion that social equality cannot exist between the white and black races in this country. That argument, if it can be properly regarded as one, is scarcely worthy of consideration, for social equality no more exists between two races when traveling in a passenger coach or a public highway than when members of the same races sit by each other in a street car or in the jury box, or stand or sit with each other in a political assembly, or when they use in common the street of a city or town, or when they are in the same room for the purpose of having their names placed on the registry of voters, or when they approach the ballot box in order to exercise the high privilege of voting.
This is as valid today as it was 113 years ago. When access to the law requires social standing, equal before the law does not exist for those socially and economically deprived: while the mother, a White woman, has spent well over $175,000 in legal fees, I have had to litigate self-represented while fighting a life-threatening disease. But the inequalities existing between the races, particularly between the African Americans and Caucasians does not stem simply from discrepancies in socio-economic standing; the discrepancies in socio-economic standing stem from the psychological crippling of a ethnic group alienated from its cultural identity – an aspect of what we call racism – and exactly what the Family Court has allowed the Respondent to do with the children of the marriage.
What is the root cause of this lack of social equality to which Justice Harlan is making reference? None other than the legacy of that legalized “Peculiar Institution.” In fact, there is very little difference between the effects of that “Peculiar Institution” that so completely devastated African Americans, and what the Family Court Institution has done to my family: (1) my son was raped, subjected to brutal violence because of it; (2) my children’s have been deprived of their ethnic heritage, including their Spanish language, because of it; and (3) their emotional ties to their father have been devastated because of it; and (4) my role, if not my existence as such in their memories, has been all but erased by its continuous unjust and partial Findings and Orders:
The effect of slavery on black families quite clearly was a pathway toward the breakdown of the family unit. What the rest of American society took for granted as a right to the most elemental and basic foundations of family association. The present day tragically comprehensive system in which the African-American father is absent from the family unit either temporarily or permanently traces back to the slave family unit that retained, at best, the mother/child relationship. The lack of a strong father figure for young slave children is considered to have played a massive part in the development of the cultural psyche of abandonment too often present in modern day African-American social constructs. The predominant view of sociologists is that the single most long-lasting legacy of slavery upon black society has been the weakening of the family unit.[1]
W.E.B. DuBois “also noted that slavery had a crippling effect on the slave father, who lacked the authority to govern or protect his family,”[2] thus contributing to the destruction of the father as a role model in an entire culture.
Racism, which according to the United Nations is indistinguishable from ethnic discrimination, is at the core of this case. It appears in many forms in a given society; it can be found in the way in which one racial group is systematically and legally deprived of opportunities and freedoms afforded others, such as was characteristic of
Racism also takes place when one or more groups are commonly represented as having inherently inferior, substandard, contemptible, or disreputable qualities – such as is the case today in the United States as manifested by prevailing negative stereotypes of Hispanics and African Americans alike.
Another, even more insidious form of discrimination takes place when the ethnic heritage of one group is considered unworthy or lacking in value, and is methodically exterminated: between the 1870s and the 1930s the United States government removed many Native American children from their tribes and interned them in boarding schools in order to ‘civilize’ or ‘assimilate’ them by dispossessing them of their language and identity:
Based on nationwide studies conducted between 1969 and 1974, 25 percent to 35 percent of Indian children were removed from their homes and placed in non-Indian foster or adoptive homes by state courts and welfare agencies. The alarming rate of out-of-home placement of Indian children with non-Indian families came to be viewed as a form of cultural genocide.[vi]
The result was the creation of the Indian Child Welfare Act in order to protect the rights of Native Americans children to their ethnic identity.
And yet another form of racism consists of trivializing the heritage of a given group, thereby reducing and downplaying the worth of its ethnic identity. Such is the case In the Marriage of Overton when the mother sardonically suggested that a good way to promote the children’s African American heritage would be to enroll them in ‘dance lessons’:
Alex has shown a real interest and talent for dance, and there are a variety of classes offered nearby in hip-hop, African dance, jazz and tap. Perhaps enrolling him in such a dance class or even at a dance class at an African-American cultural center in
Equating African American culture to simply “dance” is one of the most denigrating and insulting enactment of the racist stereotype that has been established in American Culture from the 1930s onward by way of the Minstrel Show which portrayed Blacks as ignorant, lazy, buffoonish, superstitious, joyous, and musical. Written by the children’s own mother, the reductive equivalency of Black culture to “dance” is at the very core of the stereotyping that was demonstrated in the Jump Jim Crow song and acts which in turn lent their name to the Jim Crow segregation laws that dominated our existence for over a century. Can anyone, even a Family Court judge actually believe that my children have a hope in Hades of learning to appreciate their African-American heritage, that is, themselves, when their own mother equates African-American culture to dance?
DISCRIMINATION has been present throughout this Case in the manner in which, without just cause as characterized by the Respondent, she has always been credibility over me and in spite of the number of occasions in which even the Court itself has had to admonish her on the falsehood of her testimony. Furthermore, RACISM has been present, in my opinion, in the manner in which my children ethnic heritage, though initially identified by Minors’ Counsel as critical to their BEST INTEREST, has subsequently been ignored by the Court. When the DISCRIMINATION and the RACISM are combined, I have reason to believe that the Court’s motivation behind its refusal to provide me with Due Process and Equal Protection under the law is RACIALLY motivated.
II.
CONCLUSION
Child sexual abuse (CSA) is one of the most damaging assaults against a child’s safety and welfare:
“Surveys likely underestimate prevalence due to underreporting and memory failure.[vii] Although official reports have declined somewhat in the
CSA is also a tremendous social problem. If the personal risks to a child under its jurisdiction were not justification enough for a “change of circumstances” and a “best interest analysis” of the children’s custody, then the social costs of CSA alone should have warranted such action: “Based on data drawn from a variety of sources, the estimated annual cost of child abuse and neglect is $103.8 billion in 2007 value.”[xv] Yet despite what is common knowledge to every institution dealing with victims of CSA, the San Diego Family Court took no action against the mother for her neglectful supervision, her denial of my joint-custodial rights, her interference with my communication with Alex, her obvious deceit to the Court, or for her delay and refusal to provide our son with therapy. This issue, which I was to bring again before the court and under Petition approved by Supervising Judge Alksne, was rendered moot by Judge Schall.
That stated, the tremendous issues that were at stake for my children – none the least were Alex’s legal right to psychological treatment; the role racism has played in the form of the denial of the children’s rights to their ethnic identity and heritage; the role racism has played in the social, political, and legal history of this country; and the lengths to which trial court was determined that I did not have my “day in court,” beg the question:
Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such seek that his children – even one victimized by Child Sexual Abuse (CSA) – become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to a child citizen?
The overwhelming evidence of this case demonstrates, beyond a reasonable doubt, that the answer is “No, not if he is battling in the
The court system and the Respondent now face the same unique problem, one to which “they” have jointly contributed to create, yet one “they” can never understand. “They” cannot begin to comprehend that by the age of 5 my personal experiences with this country’s violent racial hatred forced upon me a social identity of “us” that spans centuries of agony, despair, frustration, brutality, and institutional injustice. In that time “our” children have been taken from “us” many a time and “we” have been subject to every form of dehumanization imaginable - yet “we” are still here; “we” fought on even after Scott v.
By taking my children away all “they” have accomplished is to activate that same socially-implanted mechanism of “endeavor to persevere” that “they” and their institutions of injustice have engrained in “us.” “We” have been trained to endure all mechanisms of inhumanity that “they” have imposed upon “us” and to continue to fight on indefinitely, not for ourselves, for “we” little matter; not for ‘victory’ – there can be no ‘victory’ when one exists behind enemy lines – but for the next generations of “us” who will become exalted by our example, inspired by our deeds. There is no hope of justice from “them.” When it comes to “us,” “they” do not understand justice. “They” understand the ‘law’ and its consequences; “they” understand cost, loss, inconvenience, public opinion, riots, but not justice. Justice is a concept that only those who have experienced injustice at the end of an instrument of its brutality can truly understand – “we” truly understand. My son Alex understands; my daughter Julia does too as she grieves the loss of her father, a loss to injustice; and so my children become “us” and “we” and not “they.” “They” have imposed more violence upon the world then any other culture in history and so “they” cannot understand non-violence, or civil disobedience, or justice – “they” see “pathological narcissism.” My children will come to know the injustice of this case from any number of a myriad of potential sources – but never from me personally, no, only “they” would do that, “we” know better than to allow a “man [to] pull you low enough to hate him”[xvi] Through my published example they will too come to understand the essence of “I will fight forever everyday.”
The Respondent’s position is pitiable; she has entrapped herself in a lose-no-win scenario from which she may never emerge and in which the children themselves will be her judge. She has already lost the war in which I have not yet begun to fight: with her hatred and her injustice she has become “them” to our children’s “us.” She and the Family Court system – they – have seen to that.
III.
CERTIFICATE OF WORD COUNT
(Rule of Court 14(c)(1))
The text of this Brief, not including the Tables on pages i through ii consists of 13,906 words as counted by the Microsoft Word word-processing program used to generate this Brief.
Dated April 14, 2010
James A. G. Overton
Appellant Self-Represented
[1] http://www.associatedcontent.com/article/951915/us_history_the_black_family_unit_during.html?singlepage=true&cat=9 Emphasis mine.
[2] SOURCE: “Ensuring Inequality. The Structural Transformation of the African-American Family” by Donna L. Franklin, found at http://www.washingtonpost.com/wp-srv/style/longterm/books/chap1/ensuringinequality.htm
[i] SOURCE: US Census Bureau, Money Income Of Families--Median Income by Race and Hispanic Origin, in Current and Constant (2006) Dollars. Table 672: Money Income of Families—Number and Distribution by Race and
Hispanic Origin: 2006 http://www.census.gov/compendia/statab/cats/income_expenditures_poverty_wealth.html
[ii] SOURCE: US Census Bureau, Money Income Of Families--Median Income by Race and Hispanic Origin, in Current and Constant (2006) Dollars. Table 668. Money Income of Households—Percent Distribution by Income Level, Race, and Hispanic Origin, in Constant (2006) Dollars: 1980 to 2006. http://www.census.gov/compendia/statab/tables/09s0668.pdf
[iii] SOURCE: Bureau of Justice Statistics, Jail populations by race and ethnicity, 1990-2008, http://www.ojp.usdoj.gov/bjs/glance/jailrair.htm
[iv] SOURCE: Nation Gang Threat Assessment 2009, produced by the
[v] SOURCE: Gang Facts and Statistics, http://www.helpinggangyouth.com/statistics.html
[vi] SOURCE: The National Conference of State Legislature’s Website, Issues & Research » State-Tribal » The Indian Child Welfare Act and the States
http://www.ncsl.org/IssuesResearch/StateTribal/TheIndianChildWelfareActandtheStates/tabid/13275/Default.aspx
[vii] D. M. Fergusson, L. J. Horwood, L. J. Woodward, Psychol. Med. 30, 529 (2000). J.Hardt, J. Child Psychology Psychiatry 45, 260 (2004). C. S. Widom, S. Morris, Psychol. Assess. 9, 34 (1997).
[viii] Child Maltreatment Report 1990 [-2002] (
[ix] R. F. Hanson, et al., Child Abuse Neglect 23, 559 (1999).
[x] C. S. Widom, Child Abuse Neglect 18, 303 (1994). F. W. Putnam, F. W. J. Am. Acad. Child Adolescent Psychiatry 42, 269 (2003). D. Fergusson, L. Horwood, M. Lynskey, J. Am. Acad. Child Adolescent Psychiatry 34, 1365 (1996). E. C. Nelson, et al., Arch Gen Psychiatry, 59, 139 (2002).
[xi] B. E. Molnar, S. L. Buka, R. C. Kessler, Am. J. Public Health 91, 753 (2001). B. E. Molnar, L. F. Berkman, S. L. Buka, Psychol. Med. 31, 965 (2001).
[xii]
[xiii] World Health Organization, World Report on Violence and Health (2002; http://www.who.int/violence_injury_prevention/violence/world_report/).
[xiv] SOURCE: The Science of Child Sexual Abuse, http://dynamic.uoregon.edu/~jjf/articles/science05.htm
[xv] SOURCE: Total Estimated Cost of Child Abuse and Neglect in the United States, Economic Impact Study (2007), by Ching-Tung Wang, Ph.D. and John Holton, Ph.D., link found in website by Timothy D. Kosnoff, Child Sexual Abuse attorney http://www.kosnoff.com/PracticeAreas/Societal-Costs-Sexual-Abuse.asp, website by Timothy D. Kosnoff, Child Sexual Abuse attorney.
[xvi] Martin Luther King, Jr.
[1] This would be the equivalent of having two people formally working under the same job description, but paying one less according to job title; this practice has been ruled illegal by The Equal Pay Act of
[2] See Elkins v.
[3] See Elkins v.
[4] Elkins v.
[5] Elkins v.
[6] Elkins v.
[7] Elkins v.
[8] Elkins v.
[9] Joint Anti-Fascist Refugee Committee v. McGrath, 341
[10] Elkins v.
[11] SOURCE:
[12] SOURCE: Civil Rights Chronicle: The African-American Struggle for Freedom, Clayborne Carson et al, 2003, p. 14.
[13] SOURCE:
[14] The Antelope, 23
[15] SOURCE: Civil Rights Chronicle: The African-American Struggle for Freedom, Clayborne Carson et al, 2003, p. 22.
[16] SOURCE: Civil Rights Chronicle: The African-American Struggle for Freedom, Clayborne Carson et al, 2003, p. 27.
[17] Dred Scott v. Sandford 60
[18] SOURCE: The History of the Supreme Court, by Peter Irons, (Lecture 8) The Teaching Company 2003.
[19] SOURCE:
[20] SOURCE: The White House's History of Slave Labor in the CBS Evening News: Records Show Slaves Helped Build The Presidential Mansion.
[21] SOURCE: The History of the Supreme Court, by Peter Irons, (Lecture 8) The Teaching Company 2003.
[22] SOURCE:
[23]
[24] SOURCE: http://www.thehilltoponline.com/campus/uppity-negro-infiltrates-howard-s-campus-1.470137
[25] SOURCE, When Rove Calls Obama Arrogant, He Means "Uppity," by John Ridley, http://www.huffingtonpost.com/john-ridley/when-rove-calls-obama-arr_b_109639.html
[i] SOURCE: “Small town killing puts focus on crimes against Latinos,” October 22, 2009. http://www.cnn.com/2009/CRIME/10/22/lia.shenandoah.killing/index.html#cnnSTCText
[ii] SOURCE: Statement of Minors Counsel Terrence Chucas before the Superior Court.
[iii] Professional Spanish Language competency evaluation in
[iv] SOURCE: HARLAN, J., Dissenting Opinion SUPREME COURT OF THE UNITED STATES 163 U.S. 537, Plessy v. Ferguson, ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA, No. 210 Argued:
[v] SOURCE: The Library of Congress >> Exhibitions “With an Even Hand” Brown v. Board at Fifty. http://www.loc.gov/exhibits/brown/brown-brown.html (Introduced and applied as the basis of the US Supreme Court’s landmark decision in Brown v Board of Education, 1954).
[vi] SOURCE: “Who is Black? One Nation's Definition” (1991), by F. James Davis, retired sociology professor,
[vii] SOURCE:
[viii] SOURCE: The Nation’s Report Card, Mathematics, Grade 4 National Results, http://nationsreportcard.gov/math_2009/gr4_national.asp?tab_id=tab2&subtab_id=Tab_3#chart
[ix] SOURCE: The Nation’s Report Card, Mathematics, Grade 4 National Results, http://nces.ed.gov/nationsreportcard/pdf/stt2009/2010454NP8.pdf.
[x] SOURCE:
[xi] SOURCE:
http://nces.ed.gov/nationsreportcard/pubs/main2007/2007496.asp
[xii]
