Friday, May 15, 2009

Liberty vs Due Process

Today, Webster’s OnLine Dictionary offers several primary definitions for liberty: “the quality or state of being free: a: the power to do as one pleases b: freedom from physical restraint c: freedom from arbitrary or despotic control d: the positive enjoyment of various social, political, or economic rights and privileges e: the power of choice.”
However, on March 23, 1775, when Patrick Henry issued the famous line, “Give me liberty or give me death!” from a speech he gave to the Virginia Convention, liberty was for him…(F)or my own part, I consider it as nothing less than a question of freedom or slavery; and in proportion to the magnitude of the subject ought to be the freedom of the debate.”
In our U.S. and State Constitutions, and in the Declaration of Independence, we see liberty described as the powers of a sovereign people to create and participate in a government of their making … “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed…” Which was extended to the States in 1868 in the 14th Amendment to the US Constitution: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” And again in the 5th, 9th & 10th Amendments to the US Constitution (read “Equal Access” for this discussion.) And the concept of liberty is also included in Montana’s Constitution. In the Preamble: “We the people of Montana grateful to God for the quiet beauty of our state, the grandeur of our mountains, the vastness of our rolling plains, and desiring to improve the quality of life, equality of opportunity and to secure the blessings of liberty for this and future generations do ordain and establish this constitution.” And throughout Montana’s Constitution.
The concept of Due Process and Due Process of Law on the other hand which has been around since the Magna Carta in 1215 and is a course of legal proceedings according to rules and principles that have been established in a system of jurisprudence for the enforcement and protection of private legal rights. In each case, due process contemplates an exercise of the powers of government as the law permits and sanctions, under recognized safeguards for the protection of individual rights. It is the principle that the government must respect all of the legal rights that are owed to a person according to the law of the land. As developed through a large body of case law in the U.S., this principle gives individuals a varying ability to enforce their rights against alleged violations by governments and their agents (that is, state actors), but normally not against other private citizens. Due process has also been frequently interpreted as placing limitations on laws and legal proceedings, in order for judges instead of legislators to define and guarantee fundamental fairness, justice, and liberty. This interpretation has often proven controversial, and is analogous to the concepts of natural justice, and procedural justice used in various other jurisdictions.
As always, Please let me have your comments on this important topic, thanks …

Thursday, May 14, 2009

Equal Access

On first blush when we as Americans, hear or search something out about equal access in Montana or in America (as elsewhere I'm sure), it is usually about access to education or women's rights or healthcare or social justice or fishing rights etc, but, NOT about Equal Access to Justice. Why? At the base of ANY equal access issue, is the ultimate question of Justice. If we start with the root of the word Equal from the French word egal meaning that all people are endowed with basic human rights and therefore have the same (equal) political, economic, social, and civil rights; And then we look to justice : "the maintenance or administration of what is just especially by the impartial adjustment of conflicting claims or the assignment of merited rewards or punishments." From Webster's OpenDictionary and attributed to 12th century Middle English.

So how did our ancestors deal with the concepts of equality and justice?

In America, in the Bill of Rights to our Constitution (the highest law of our land) and the preamble to Our Declaration of Independence, Americans set the tone of American Justice over two hundred years ago...
"When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness..."
And from our Bill of Rights to Our Constitution ... Fifth Amendmentdue process, double jeopardy, self-incrimination, eminent domain. "No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. " Ninth Amendment – Protection of rights not specifically enumerated in the Bill of Rights. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. " Tenth Amendment – Powers of States and people. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

So what were these truths concerning equality and justice that were self-evident: being created equally with certain unalienable Rights: life, liberty and the pursuit of Happiness? And why, was it necessary to justice to reinforce these truths in the 5th Amendment with "...nor be deprived of life, liberty, or property, without due process of law?" Inorder to interpret these concepts for just powers from the consent of the governed and insure that all parties were dealt with impartially, fairly and equitably, our forefathers set up the third branch of American Government in our Constitution. Article Three - establishes the judicial branch of the federal government. "The judicial branch comprises the Supreme Court of the United States along with lower federal courts established pursuant to legislation by Congress. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed." Yet nowhere in its enabling or creation or history of our Federal courts and very little in the State of Montana Courts, has equality or justice been mentioned, established or enforced. It is merely a Court of Laws, without the Spirit of American Justice or Equality behind it.

And in the overall American System of Law, therein lies the problem. For law is merely: "A rule of conduct established and enforced by the authority, legislation, or custom of a given community, State, or nation." From Webster's OpenDictionary

So how do we regain Equal Access and Justice in Our American Court System in 2009? In our State Court Systems! Please look above for articles 9 and 10 in our Bill of Rights!

As always, Please let me have your comments on this important topic, thanks ...

Tuesday, May 12, 2009

Montana’s (new) public defender system

What is "equal access to justice"?
For the discussion here and although, I have spent some considerable time, researching around the internet, for an applicable definition for equal access to justice, I have not been successful. And maybe because they haven't defined it, is why so many governments around the world are having trouble with attaining equal access to justice. However, for this discussion, I shall define equal access to justice as: "The freedom or ability to fairly and equitably engage in the Montana system of jurispurdence regardless of a persons ability to pay."
On July 1, 2006 the Office of the State Public Defender (http://publicdefender.mt.gov/) assumed responsibility for statewide Public Defender Services, previously provided by cities and counties. These services are now provided statewide through Regional Offices of the State Public Defender.
The mission of the Office of the State Public Defender is to ensure equal access to justice for the State's indigent and to provide appellate representation to indigent clients.
The summary of Montana's State Public Defender Act is here: http://publicdefender.mt.gov/forms/pdf/bill_summary.pdf
And does Article ll - Section 4 of Montana's Constitution: Individual Dignity establish an affirmative obligation of the State to not discriminate in providing its' Public Defender services to ensure equal access to justice to the State's indigent?
Montana State District Judge Kenneth R. Neill (Cascade County) seems to concur. In a ruling April 15, 2009 Judge Neill stated, "assistance of counsel is a fundamental right guaranteed by the U.S. and Montana constitutions." And that a change in (Montana) state law, effective in 2006, "unambiguously erased the judge's desires in the matter of appointing a public defender." Read the Great Falls Tribune story here ... http://www.greatfallstribune.com/apps/pbcs.dll/article?AID=2009904220314
"There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." Griffin v. Illinois, 351 US 12, 19 (1956)
Please let me have your comments on this important topic, thanks ...

The Case for Court appointed Civil Defenders for the poor in Montana

First, I spent a lot of time and energy talking with Civil Attorneys about my case (fleshing out the issues, as it were). However, I could find no attorney willing to take my case in 2002-2003 before having to file it myself. The reason as I’ve learned in the prusuing 6 years since beginning the case is that I have spent more than six thousand hours and many, many dollars prosecuting my case. And Unfortunately, I can not publish the issues in my case (for fear of prejudice to the defense) although it is a matter of public record at the Missoula County Court House (Gold vs City & County of Missoula DV 03-46) if you are interested.
And now onto the beginning discussion of the issues in my new cause …
Civ Def #1: This is the beginning of my stating of the Case for Court appointed Civil Defenders for the poor in Montana (DV 09-320).
Recently, in the Missoulian newspaper, there were stories of two widely divergent Federal District Court Cases in Missoula. #1 was “Jurors find W.R. Grace and execs not guilty,” thanks to the multimillion dollar effort by a team of Defense Lawyers lead by David Bernick that one blogger termed the “The O.J. verdict of environmental crime.” http://missoulian.com/articles/2009/05/09/bnews/br67.txt
And District Court Case #2 was “Conservationists settle free-speech lawsuit with Bitterroot National Forest.” http://missoulian.com/articles/2009/05/04/news/local/news05.txt In this trial Conservationists who were excluded from a press conference at the Bitterroot National Forest supervisor’s office in Hamilton, were pursuing a Civil Free Speech Case against the Government and quoting from the article, “The three men said late last week they believed they had a good case, but couldn’t afford to continue the legal fight. “It boiled down to the fact that the legal process is expensive and we could no longer afford the cost,” Miller said. “We feel like we have some very good strong issues … we just couldn’t continue.” All of the men remain disappointed about the agency’s decision to exclude them from the news conference. “I was humiliated by my own government,” Campbell said. “I feel like I was treated like a second-class citizen.”
The question these two widely divergent cases point to as we Americans face the uphill battle to maintain our Rights guaranteed by both the Montana and the US Constitutions is: As Lawyers fees and Court Costs become increasingly more expensive, how do Montanan’s initiate and maintain sustained legal battles to protect our dwindling Civil Rights with very limited resources? In 2009, how is equal protection in Montana’s Court rooms being insured? How are Montana Lawyers working to insure that low income Montanan’s have equal access to the Courts?
In Montana, our Constitution guarantees in Article ll – Section 4. Individual dignity. The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas. Article ll – Section 3. Inalienable rights. All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life’s basic necessities, enjoying and defending their lives and liberties … In enjoying these rights, all persons recognize corresponding responsibilities. And in Section 16. The administration of justice. Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character… Right and justice shall be administered without sale, denial, or delay.
I appreciate your comments, as I prepare my pro se court case.

Introduction

With this blog I hope to engender dialog about improving and updating Montana’s Court system. First, I’ll start off with some of my background, so that the dialog will have context.
My name is Rick Gold, I live in Missoula, and I am an activist working for social and environmental awareness, and hopefully, to effect positive change.
This blog is a conversation from the street level view of the Montana Court System in the 21st century as I have personally experienced it. I am NOT an attorney, yet, because of lack of finances, I have been forced to act as my own attorney (pro se) in a Civil case against the City and County of Missoula since January 2003.
This situation of Montanan’s being forced to be their own Civil attorneys because of lack of funds is what I will call the large pink and white elephant in the middle of Montana’s Court Rooms statewide. In 2002-2003, even though Duties: For Montana lawyers: included PRO BONO PUBLICO SERVICE, “Every lawyer has a professional responsibility to provide legal services to those unable to pay,” I could find NO competent Civil attorney (although I called them all in a 10 mile radius of Missoula as well as the Montana Legal Aid and the Montana ACLU).
So, I had to file pro se and learn as I went. Pull myself up by my bootstraps, Montana style. Since, 2003, I have learned a great deal about the Montana Legal System and it’s Courts and procedures and somehow managed to hold my own facing the well funded and well staffed law offices of the City and the County. Then in May 2007, being frustrated with what was happening with my case, I asked Judge Harkin to appoint Public Counsel for me under the then new Montana Public Defender act which claimed to be , “Establishing a Statewide Public Defender System and Specifying the Scope of Public Defender Services in Criminal and Civil Proceedings …” But, Judge harkin denied my motion stating, he relied upon an email from Ed Sheehy, Jr – Regional Deputy Public Defender, Region 2, that stated that “Montana law only allows for the appointment of counsel in cases governed by section 47-1-104(4), MCA. The only civil cases where appointment may be authorized are: postconviction; habeas corpus; involuntary commitment; and, guardianships.”
Yet, the Montana Constitution guarantees in Article II – Section 4, that, “ No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas.” So, why would the state government and Montana’s Courts deny equal protection of the laws in the court rooms of this state by specifically discriminating against the poor in Civil cases? Who benefits? Who loses? Really, I don’t know.
I have filed twice with the Montana Supreme Court (Writs of Supervisory Control) but the Supreme Court has neglected to respond. So, now, consequently, I have just filed another lawsuit (in Missoula against the State, our legislature & our Governor) asking why only those four clases of Civil cases (above) rate equality when the only qualifier (within the public defender law ) I can determine is that one doesn’t have the funds to pay an attorney. What are your thoughts?