Montana Legal Eagle’s Blog

The state of torts in Montana for Constitutional Issues involving poor people.

2010-10-08T14:06:00.003-06:00

Today,

I attended a panel discussion at The 2010 Browning Symposium at the University of Montana sponsored by the Montana Law Review (see http://montanalawreview.com/id62.html ).
In questioning the assumptions of the panelists at the 11:40 panel entitled "Constitutional Torts: Does Such a Cause of Action Exist" concerning "poor people" read "indigent" in Montana gaining Civil relief and/or enforcing their Self-Executing Constitutional Rights in the Courts, pro se, I was informed that the "public defender" system in Montana is overwhelmed and underfunded and deals almost exclusively with the criminal side of Montana Law read "defense."

In my cause (5/4/2010) against the State of Montana (see
http://fnweb1.isd.doa.state.mt.us/idmws/custom/sll/SLL_FN_Home.htm
Enter either ( DA 09-0675 ) in the box and click search; or
Click on: Party search name and enter Gold;
Next click on Gold v. State and then click on Appelant Brief first then the 2 other briefs and new windows will pop up with pdfs which you can save and read.)

for refusing to appoint a public defender in my ongoing cause DV03-46.

In their opinion on Self-Executing Constitutional Torts, the Court wrote:
"Gold’s remaining arguments involve the merits of his constitutional claims. He
asserts that the “political reality” of 2010 is that indigent individuals in Montana cannot obtain legal counsel for civil complaints involving guaranteed fundamental rights. He contends that the Montana Public Defender Act unlawfully discriminates in allowing counsel for certain civil cases but denying it for all others—in particular, by denying it in cases involving fundamental rights. Citing the specially concurring opinion in Kloss v. Edward D. Jones & Co., 2002 MT 129, ¶ 58, 310 Mont. 123, 54 P.3d 1, Gold points out that constitutional rights that cannot be enforced are illusory. He argues that the rights to equal protection of the laws and equal access to justice should work together to prevent discrimination against the poor in Montana’s justice system. But he contends that this presently is not the case and that indigent persons against whom the State has allegedly discriminated are denied the assistance of counsel in prosecuting these offenses. In
support of his arguments, Gold quotes at some length from the 1972 Constitutional
Convention transcripts and the specially concurring opinion in Dorwart v. Caraway,
2002 MT 240, ¶¶ 79-98, 312 Mont. 1, 58 P.3d 128, and he cites various other cases from this Court and the United States Supreme Court.
¶9 The State, in turn, argues that if this Court reaches the substance of Gold’s
constitutional claims, the defendants were entitled to summary judgment on each one.
The State provides separate analyses respecting procedural due process (Article II,
Section 17), access to the courts (Article II, Section 16), the right to defend property rights (Article II, Section 3), equal protection (Article II, Section 4), substantive due process (Article II, Section 17), and the oath of office (Article III, Section 3).
¶10 Having considered the briefs and the record, we conclude that Gold has failed to
refute the State’s arguments that the Legislature and the Governor are statutorily immune from suit on Gold’s claims. We further conclude that while Gold, as a self-represented litigant, has made a genuine effort to research and develop his constitutional arguments on appeal, his claims nevertheless have not been sufficiently presented and argued so as to permit this Court to decide them on the merits. We acknowledge the irony of the situation—the Catch-22 in which Gold finds himself—namely, that the fact his claims have not been adequately presented is itself reflective of the very claims he is attempting to present: that as an indigent citizen, he requires the assistance of counsel to vindicate his constitutional civil rights. Nevertheless, this Court simply cannot decide a question of such significant import on the basis of the current briefing. Moreover, even setting aside this aspect of the case, the record presently before this Court is wholly inadequate for purposes of deciding such a claim. Cf. Brady v. PPL Montana, LLC, 2008 MT 177, ¶ 5, 343 Mont. 405, 185 P.3d 330 (refusing to address constitutional issues “in a relative vacuum”).

And unfortunately, no one in Montana's legal community is addressing this very situation.

As always,
Think about this and I'd like to encourage your comments about this important topic.
Feel free to follow this important Case.

happy earth day,
peace,
Rick Gold
Missoula, MT

United We Stand ....

2010-05-14T10:48:00.003-06:00

"United We Stand"
http://missoulanews.bigskypress.com/gyrobase/united-we-stand/Content?oid=1255288&storyPage=2
May Day Hoax
While marching through the streets,
we Missoula Hoaxers,
dragging our ill gotten gain "Lady Ann Magee II,"
the actual cost of which was $68 million dollars
in the blood, sweat and tears of our community,
I couldn't help feeling justified in protesting the way
cor poor rate america is killing
Missoula's and missoulian's e con of me.
How the drain of dollars and talent and sweat equity
means less than nada to the robber barons...
who are only beholden to their bottom line.
And so, every one of us is together
here, marching and pulling, pulling, pulling...
the same boat we are all in while
main stream media accuses us of
being the hoaxers!
Go figure....
Thanks capan Smurfit!
For showing us the way....

Rick Gold
Missoula, MT
May 14, 2010
http;//mtlegal.blogspot.com

A Missoula Art ll - Sec 4 political picnic (revisited)...

2010-04-23T10:32:00.003-06:00

HEALTH: Controversial cuisine: FOOD NOT BOMBS

In Alex Sakariassen's short article in the Missoula Independent News, today, Thursday, April 22, 2010, he writes:"A weekly vegetarian potluck outside the Missoula County Courthouse has sparked a civil liberties flap between local health officials and a decentralized group of peace activists called Food Not Bombs. The Missoula City-County Health Department confirms two inspectors approached Food Not Bombs during its weekly gathering Sunday evening and asked members to stop serving food. According to Environmental Health Supervisor Shannon Therriault, any organization that serves food to the public must have a service permit and pass a city-county review."
see http://missoulanews.bigskypress.com/missoula/health/Content?oid=1247859
for the rest of the story.
Yet, if one looks at Webster's definition of an organization ... "an administrative and functional structure (as a business or a political party); also : the personnel of such a structure," one need read no further.
Basically, an organization is systematically arranged and managed to meet a need or to pursue collective goals on a continuing basis. All organizations have a management structure that determines relationships between functions and positions, and subdivides and delegates roles, responsibilities, and authority to carry out defined tasks.
And there's the rub. Food Not Bombs is NOT an organization. It is an unmanageable, co-operative of individuals who gather to share food, sort of like you, your family and friends out for a picnic or gathering for a potluck.
That the City/State can and does object to people openly sharing free food and connections, isn't a suprise to anyone. In Daniel Quinn's Book Ishmael, (see http://www.ishmael.com/welcome.cfm) the pupil is US and Ishmael is an intellegent Ape (Imagine that!). We learn that 10,000 years ago, there was a shift in consciousness in the near east and the hunting/gathering culture of small tribes of individuals living off the land (defined as a leaver culture) was suddenly shifted to a sedentary farming/animal husbandry culture (defined as a taker culture). As this taker culture grew, it organized itself into a community to protect itself from outside attacks by forming a government to lock away its resources (namely FOOD). It expanded rapidly outward, conquering the smaller diverse leavers and as the old cliche goes, "the rest is history."
Consequently, FOOD NOT BOMBS chapters have been around since, "...Boston in 1980, It was started by activists involved in the anti-nuclear movement, Food Not Bombs has blossomed into a worldwide, grassroots, political movement of over 175 autonomous chapters. Each Food Not Bombs group serves free food to people in need and in support of political organizing efforts.
Food Not Bombs believes that society and government should value human life over material wealth, human need not corporate greed, and that most of its problems stem from this simple crisis in values." see http://sffnb.org/history/
It's well past time for our Big Brother government to support the efforts of activists who are making a diffence in people's lives in their local communities.
If you want to keep up with my case concerning Montanan's Fundamental Rights and/or read these important briefs:
On the internet go to:
http://fnweb1.isd.doa.state.mt.us/idmws/custom/sll/SLL_FN_Home.htm
Click on: Supreme Court Case Number
Enter either ( DA 09-0675 ) in the box and click search; or
Click on: Party search name and enter Gold;
Next click on Gold v. State and then click on Appelant Brief first then the 2 other briefs and new windows will pop up with pdfs which you can save and read.
As always,
Think about this and I'd like to encourage your comments about this important topic.
Feel free to follow this important Case.

happy earth day,
peace,
Rick Gold
Missoula, MT

A Missoula Art ll - Sec 4 political picnic...

2010-04-19T11:16:00.008-06:00

A Missoula political picnic is a meal eaten by Radicals, outdoors as on an excursion.
And what a political picnic it was last night, Sunday, April 18, 2010, if you happened to be among a bunch of political anarchists called "Food Not Bombs" serving FREE food to any and all appearing by the FREE speech plaza of the Missoula County Courthouse @200 W Broadway @ 6 p.m. These Radicals have been serving FREE food for the last year, rain, snow or sun every Sunday there.
But, last night, a man identifying himself as being from the Missoula City-County Health Department appeared and proceeded to threaten the anarchists because they are NOT a non profit organization and are serving FREE food without their permission or permit.
It appears that the Missoula City-County Health Department now has a policy that you must apply and pay for a "permit" and be granted their approval before you can have a picnic in Missoula.
The "Food Not Bombs" folks countered with the arguments that this violates their freedom of speech and their freedom of assembly. So consequently, there was an impasse last night betwwen "Food Not Bombs" folks and the Missoula City-County Health Department official.
The "Food Not Bombs" folks said that they have the right to picnic at the Courthouse (or any public space)! The Missoula City-County Health Department official stated that they needed permission and a permit to continue sharing free food and that "I will return and be bringing the Missoula police with me next Sunday to the Courthouse and we will be waiting for you at 6 p.m."

Will these Civil servants confiscate (steal) the food?
Will they further harass our gathering?
Will they issue tickets because "Food Not Bombs" activists refuse to become a non profit, or obtain their permission or pay for a license to continue having their political picnics Sundays at 6p.m. @ the County Courthouse @200 W Broadway?

Montana's Constitution guarantees that Montanan's share their Freedom of assembly. Art ll - Sec 6. "Freedom of assembly. The people shall have the right peaceably to assemble, petition for redress or peaceably protest governmental action. The people shall have the right peaceably to assemble, petition for redress or peaceably protest governmental action."
Also, Art ll - Sec 7. "Freedom of speech, expression, and press. No law shall be passed impairing the freedom of speech or expression. Every person shall be free to speak or publish whatever he will on any subject, being responsible for all abuse of that liberty..."
And MOST importantly, Montana's Constitution's Art ll - Sec 3 guarantees that we all have, "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, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways. In enjoying these rights, all persons recognize corresponding responsibilities"; and
Art ll - Sec 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 politicalor religious ideas."

So, I ask you Montanan, what about our Civil servants responsibilities to their sworn oaths of office and the protection of Our Civil Rights embodied in Article ll of our Constitution?

And make NO mistake. These Fundamental Rights are Civil Rights not Criminal. And, those Responsibilities were put there specifically to remind us ALL our "duty to defend" those inalienable rights and especially for those whose duty of care and oath of office make it imperative that they act to support, protect and defend Our Constitution and ALL our Rights.

The Montana Constitution’s oath of office (Art. III - Sec 3) is a proactive, affirmative oath. It requires an affirmative, absolute duty to support, protect and defend the U.S. and Montana Constitutions. Once taken, it requires members of the legislature, and all executive, ministerial and judicial officers bound by their oaths to discharge their duties of office with fidelity. They have a sworn duty of extra-ordinary care from the affirmative Oaths of their office to support, protect and defend Montana’s Constitution and thus discharge their duties of office with fidelity. Appellees in framing their arguments do not address what it means to take an oath and be bound to support, protect and defend Montana’s Constitution.

If you want to keep up with my case concerning Montanan's Fundamental Rights and/or read these important briefs:

On the internet go to:

http://fnweb1.isd.doa.state.mt.us/idmws/custom/sll/SLL_FN_Home.htm

Click on: Supreme Court Case NumberEnter either ( DA 09-0675 ) in the box and click search;

or Click on: Party search name and enter Gold;

Next click on Gold v. State and then click onAppelant Brief first then the 2 other briefs and a new windows will pop up with pdfs which you can save and read.

As always, Think about this and I'd like to encourage your comments about this important topic. Feel free to follow this important Case.

Rick Gold

Missoula, MT

The Canary in the Coal Mine of the Montana Court System

2010-04-02T09:56:00.003-06:00

The Right to Defend Property Rights or
The Canary in the Coal Mine of the Montana Court System

Being poor in Montana is no sin. Yet when Gold originally set out to prosecute the City and County of Missoula et al for taking his property and then not protecting it, he encountered that No Civil attorney in Missoula would assist him with his case. He then went to the Missoula Family Law Self-Help Center in the County building but they specialize in Pro Se family law. Next he went to the Montana Legal Services Association who wouldn’t help. He then contacted the Montana ACLU, who wouldn’t help. This was his personal experience which wasted 100’s of his hours, searching. Finally, he was forced to file his own Pro Se cause (and study and learn law himself) even though Montana’s Rules of Professional Conduct in PREAMBLE: A LAWYER'S RESPONSIBILITIES state:

“(7) As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.”

So Whose Responsibility is it to Defend the Fundamental Rights of ALL Montanans, including indigents? Certainly, The Montana Public Defender System is a start. All Lawyers Professional Responsibility is a start. The Montana Justices Professional Responsibility is a start. The Montana Court System is a start. The Montana ACLU is a start. The Montana Legal Services Association is a start. The Missoula Family Law Self-Help Center is a start. Taken ALL together, they are ONLY piecemeal parts of the answer to a system that doesn’t work in my cause. And, they are ONLY a start. My cause before you, is an indicator of how that start isn’t working. What it indicates is “the weakest link” in Defending the Fundamental Rights or Civil Liberties Guaranteed in Montana’s Constitution.

Of course, "Defense" attorneys will argue that ALL of these services are underfunded and overwhelmed by the ever increasing needy, and that Defending Our Fundamental Rights (Civil Liberties) takes a VERY back seat to Defending Montanans accused of crimes against the State. And the statistics clearly speak for themselves.

However, this argument is short sighted and completely ignores the most compelling sentence of Art. II § 3 of Montana’s Constitution. “In enjoying these Rights, ALL persons recognize corresponding responsibilities.” ALL people. All Lawyers. All Judges. All Legislators. All Governors. All Politicians. All Counties. All Cities and All Everyday Montanans. ALL persons. But, who monitors or champions or recognizes the importance of these Responsibilities, with an eye to the ever increasing number of poor people in Montana, who are 100 times more likely to have a fundamental rights issue with the state and who ultimately, may have a dire need of Counsel in protecting Every Montanans fundamental rights.

And make NO mistake. These Fundamental Rights are Civil Rights not Criminal. And, those Responsibilities were put there specifically to remind us ALL our "duty to defend" those inalienable rights and especially for those whose duty of care and oath of office make it imperative that they act to support, protect and defend Our Constitution and ALL our Rights.

If you want to keep up with this case and/or read these important briefs:
On the internet goto:
http://fnweb1.isd.doa.state.mt.us/idmws/custom/sll/SLL_FN_Home.htm

Click on: Supreme Court Case Number
Enter either ( DA 09-0675 ) in the box and click search; or Click on: Party search name and enter Gold;
Next click on Gold v. State and then click on
Appelant Brief first then the 2 other briefs and a new windows will pop up with pdfs which you can save and read.

As always, Think about this and I'd like to encourage your comments about this important topic. Feel free to follow this important Case.

Rick Gold
Missoula, MT

The Street Kid who tried to help, Alcohol and Our loss of privacy.

2010-03-03T10:08:00.017-07:00

Dateline Missoula March 3, 2010.
A street kid, Jacob Wilson, Age 20, currently attending the University of Montana for Sociology was out and about the bars on Higgins Street Monday evening, and came upon 3 big University sports players surrounding and harassing a smaller weaker guy. Being the good samaritan type, he immediately interposed himself in the intense situation and proceeded to talk to them for 45 minutes until 5 police arrived.
One of the policemen took him aside and badgered him with threatening body and voice behaviors. The kid was really scared. The policeman wanted to find out if this kid knew the identities of the participants of the situation, but the kid didn't. Then, the policeman switched tactics and because they were outside a bar, demanded that the kid take a "breathalyzer test." When the kid "no", because he hadn't had antyhing to drink, the policeman said that it was to bad "the city hadn't given him the power to write the kid a $300 ticket for refusing." But, he brightened, I can give you a ticket for Minor in Possession (M.I.P.), instead. So he gave the kid the ticket. The kid had nothing in his possession and was taken before a City Judge, where he pleaded "not guilty with Jury Trial." The judge released him on his own recognizance.
I talked to the kid yesterday and he was very upset and didn't know what he was going to do. The criminal M.I.P. offense carries a fine but no jail time, so he is S.O.L. getting a state public defender. I suggested he go to legal aid and ask for their help. I will try to keep you informed as his "case" progresses.
Dateline March 22, 2010...
The City of Missoula will take up legislation on this date to Consider an ordinance amending Missoula Municipal Code Title 10, entitled
"Vehicles and Traffic," by adding Chapter 56 entitled "Refusal to submit to alcohol
and/or drug tests" and enacting sections 10.56.010 through 10.56.030.
Passing this ordinance will allow City police to give a $300 ticket to "anyone" refusing alcohol and/or drug tests demanded by the police. This ordinance will violate Our Right to Privacy (Art. ll - Section Sec. 10, MT Const.); Our Individual Dignity (Art. ll - Section Sec. 4, MT Const.); Our Individual Dignity (Art. ll - Section Sec. 4, MT Const.); as well as other Rights Unemnumerated (Art. ll - Section Sec. 34, MT Const.).
So why is the Missoula City Council doing this instead of exploring programs to help their constituents with alcohol dependency? Alcohol is a Drug — the most commonly used and widely abused psychoactive drug in the world. It is completely legal and easily and readily available and alcohol is a disease — a chronic, progressive, fatal disease if not treated. And, Every year, more money is spent promoting the use of alcohol than any other product. So why isn't Our City Council doing more to combat the effects of alcoholism?
One answer is to look at ALL the revenue that various levels of government receive from the sale and promotion of alcohol and related products. Now, go ahead and ask yourself and ask your City Councilors, what will this new $300 ticket do to combat alcoholism? If the City Council is so concerned, why don't they just ban the sale and/or consumption of alcohol in the City? It is a Dangerous Drug after all.

As always, Think about it and I’d like to encourage your comments about this important topic. Please feel free to ask your City Councilor, County Commissioner for their stand on this important issue.

Rick Gold
Missoula, MT

My Supreme Court case for representation of the poor in our MT Constitution

2010-02-19T11:59:00.003-07:00

The four questions/issues I've introduced on appeal of my District Court Case (Gold v. State of Montana DV 09-320) are:
1) Did the District Court err in denying Plaintiff and Appellant's summary judgment motion while granting Defendant's summary judgment motion and while not addressing Plaintiff and Appellant's claims against the State of Montana?
2) Did the District Court err by not addressing in the final order, Plaintiff and Appellant's arguments regarding the Duty of Care of Montana Constitution' s demanding sworn oath of office upon Montana Legislators and the Governor in the performance of their duties of office and their greater duties to our Constitution,
especially in regards to discrimination?
3) Did the District Court err by not addressing in the final order, Plaintiff and Appellant's procedural arguments and objections, especially in regards to the Montana Constitution' s demanding oath of office and Montana Rules of Professional Conduct, in both his "summary judgment motion and brief' and in his "Combined Memorandum in Response to Defendant's Combined Memorandum in
Response to Plaintiffs Motion for Summary Judgment and Plaintiffs Response to Defendant's Cross Motion for Summary Judgment?"
4) Was Plaintiff and Appellant denied his Constitutional Right of the
Administration of Justice Article 11 - $16 and deprived of procedural due process and substantive due process of law guaranteed by the 14'~A mendment of the US.
Constitution and Article II. § 4 of the Montana Constitution by the 4th District Court in its final Order and Memorandum by not engaging in required constitutional analysis as well as offering no Findings of Fact or Conclusions of Law, specifically as to why Plaintiff should be denied his Constitutional claims against the State?

------------ --------- ----ARGUMENT- --------- --------- ------

I feel like Don Quixote tilting at Montana windmills. The political reality OF 2010 is that "indigent" individuals in Montana and the U.S. cannot expect or find legal Counsel for Civil complaints involving Guaranteed Fundamental Rights.
In Montana, this Catch-22 political reality is reflected in a Catch-as-catch- can, or less formally, Willy Nilly Public Defender System ("the Montana Public Defender Act $47 MCA"), defined and developed out of a necessity to defend individuals accused of crimes against the State. (Art. I1 - 5 24. Rights of the accused.
Montana Constitution) . However, in common law as well as enumerated law, defending individuals is only half of our "equal protection of the laws" (see Section 4. Individual dignity. Montana Constitution) , the other half is defending Our Montana Constitution and Our Fundamental Rights through Civil action. This political reality is exactly what Attorney Dahood argued about in his amicus brief
in Dorwart v. Caraway ,
". . .in order to avoid this result and in order to give Montana's constitutional guarantees teeth, the framers intended that the people retain the ability to protect their rights--both
enumerated and unenumerated- -through direct actions in the courts. This conclusion follows from the Committee's proposal of Article 11, Section 34 to the Convention delegates and the subsequent adoption of this provision. Article 11, Section 34 states: Unenumerated rights.
The enumeration in this constitution of certain rights shall not be construed to deny, impair, or disparage others retained by the people." Donvart v. Caraway, 2002 MT 240; 3 12 Mont. 1; 58 P.3d 128
Whether political expediency, indifference, or simply a lack of understanding regarding the basic necessity of "equal access" and "equal protection" to Montana's Court system, the 1972 Montana Constitutional Delegates couldn't muster the needed votes to include and insure legal Counsel for ALL in Montana, especially the poor in Montana Civil Jurisprudence.
*Art. I1 - 5 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.
Subsequently, they stopped short by requiring that Montana ONLY provide legal Counsel for Criminal Defendants in our 1972 Constitution. They also foresaw that they could not and should not limit the possession of ONLY those Montana's Constitutional Rights Enumerated, and that we the people recognize the possession
also of" Unenurnerated Rights" "(w)hich shall not be construed to deny, impair, or disparage others retained by thepeople." Art. I1 - 5 34. Unenumerated rights.
Montana Constitution. From these "Unenurnerated Rights" the Court has a vested self-interest in ensuring equal access to trained Counsel in Montana Jurisprudence for ALL the poor, yet as we see, in the instant Civil case, this is NOT the case to date and has caused the Discrimination in the Montana Public Defender Act.

------------ --------- ----END ARGUMENT---- --------- --------- ---
If you want to keep up with this case and/or read my opening brief:
On the internet goto:
http://fnweb1. isd.doa.state. mt.us/idmws/ custom/sll/ SLL_FN_Home. htm
Click on: Supreme Court Case Number
Enter ( DA 09-0675 ) in the box and click search.
Next click on Gold v. State and then click on
Appelant Brief and a new window will pop up with my pdf.

As always, Think about this and I'd like to encourage your comments about this important topic. Feel free to follow this important Case.

Rick Gold
Missoula, MT

The MT Public Defenders and Montana's LESS than poor legal representation.

2010-02-03T10:13:00.010-07:00

In the Wednesday February 3, 2010, Missoulian newspaper is an article from Jennifer McKee, of the Missoulian State Bureau entitled "State public defender offices faces $990K cut in addition to current shortfall."
In her article, she writes: "Already facing an $800,000 budget hole, the state agency that guarantees lawyers for poor people accused of crimes could be looking at cutting close to another million dollars from its books."
"How do you cut a million and then cut another million?" "Office of Public Defender administrative director Harry Freebourn said Tuesday of the potential cuts called for by a worsening state budget picture. Freebourn said he had no idea how the agency could absorb another hit, especially considering that its caseload is growing at anywhere between 4 percent and 7 percent."
http://www.missoulian.com/news/state-and-regional/article_72bb5de0-1075-11df-917a-001cc4c002e0.html

However, the Montana Constitution does NOT set a price tag on defense of the poor.
It has been a long standing tradition in the U.S. and the State of Montana to provide legal counsel for the poor in criminal proceedings. But, as the state budget tightens and the already strapped Public Defenders of Montana are asked to reduce their budgets further, the legal representation of the poor can only suffer.

And, therefore once again for the poor, "equal access" of and to the law in Montana (Section 16. The administration of justice) and "equal protection" of and to the law in Montana (Section 4. Individual dignity)
will suffer more than it already has suffered. And, who is speaking for the poor in Montana, who have NO voice in why the Public Defenders budget is being cut!

Now, contrast this with the Montana Attorney General's Budget, and/or the local Montana County/City public Prosecutors (Attorneys) budgets, and you'll soon see that there is NO comparison!
Consequently, there is NO "equal access" or "equal protection" in our Montana Court System.

As always, Think about this and I'd like to encourage your comments about this important topic. Feel free to ask your elected officials.

Rick Gold
Missoula, MT

The Political Reality of Montana Jurisprudence in 2010.

2010-01-24T15:17:00.015-07:00

In appealing my District Court Case DV 09-320, now before the Montana Supreme Court (DA 09-0675), I find the political reality of equal access in Montana Jurisprudence to be lacking.

I feel like Don Quixote tilting at Montana windmills. The political reality OF 2010 is that “indignant” individuals in Montana and the U.S. cannot expect or find legal Counsel for Civil complaints involving Guaranteed Fundamental Rights.

In Montana, this Catch-22 political reality is reflected in A Catch as Catch Can, or less formally, Willy Nilly Public Defender System ("the Montana Public Defender Act § 47 MCA"), defined and developed out of a necessity to defend individuals accused of crimes against the State. (Art. II - § 24. Rights of the accused. Montana Constitution). However, in common law as well as enumerated law, defending individuals is only half of our "equal protection of the laws" (see Section 4. Individual dignity. Montana Constitution) The other half is defending Our Montana Constitution and Our Fundamental Rights.

Whether political expediency, indifference, or simply a lack of understanding regarding the basic necessity of “equal access” and “equal protection” to Montana’s Court system, the 1972 Montana Constitutional Delegates couldn’t muster the needed votes to include and insure legal Counsel for ALL in Montana, especially the poor in Montana Civil Jurisprudence.

Subsequently, they stopped short by requiring that Montana ONLY provide legal Counsel for Criminal Defendants in our 1972 Constitution. They also foresaw that they could not and should not limit the possession of ONLY those Montana’s Constitutional Rights Enumerated, and that we the people recognize the possession also of “Unenumerated Rights” “(w)hich shall not be construed to deny, impair, or disparage others retained by the people.” (Art. II - § 34. Fundamental Rights. Montana Constitution)

From these “Unenumerated Rights” the Court has a vested self-interest in ensuring "equal access" to trained Counsel in Montana Jurisprudence for ALL the poor, yet as we see, in the instant Civil case, this is NOT the political reality to date.

There are many issues and problems that Montana Courts are not addressing and We the People of Montana, need to Insure an open, honest and forthright Court for our own Fundamental Rights Protection as well as that of our Constitution.

As always, Think about it and I'd like to encourage your comments about this important topic. Feel free to ask your elected officials.

Rick Gold
Missoula, MT

The very real problems with voting in Missoula, Dec 14, 2009

2009-12-13T13:43:00.016-07:00

Friday December 4, 2009 in Missoula, Vickie Zeier, Missoula County Clerk & Recorder, released a suprise proposal to shut down 13 voting locations including high youth density locations like the Courthouse downtown and the University Center on campus. Not surprising then that a number of students and one Missoula political group are very concerned and taking action.

It was just, May 31 of 2009, the Missoulian reported that there were: "Long lines forming to cast votes this week." "On Monday in Missoula, the line looked woefully long at the County Courthouse, but moved surprisingly quickly - with a wait of maybe 20 minutes. It's been that way for about a week."

"In Missoula County, late registration and absentee voting also moved to the Motor Vehicles Office in the courthouse, which is designed to accommodate a large flow of people ... That's possible because the courthouse, other than the elections office, is closed on Election Day." "Sheriff's deputies in Missoula County will enforce the 8 p.m. voting deadline at the courthouse and the University Center, which is a busy public spot, Zeier said."

I have been told by one historian, that Missoulians have been voting continuously at our historic County Courthouse since 1870, almost 140 years. And now, because of their popularity, the County Courthouse and the University are to be given the preverbial ax. Why? One answer might be politics. It seems that the "labor saving" "budget busting" voting machines, have continuously increased the bottom line for Vickie Zeier, and that has facilitated "the need" to consolidate voting precincts, but at what cost? Maybe, these voting machines, weren't the panacea that they were touted to be? And, if consolidating the University and County Courthouse precincts into others, disenfranchises (confuses, angers, loses) even one voter (more likely many, many) will it be worth the cost?

Unfortunately, Vickie Zeier, offers only a few words of justification, not a thorough cost benefit analysis of her proposal. Voting, the most basic Montana Constitutional Human Right is a sacred trust for ALL Montanans. Let's hope that our Missoula County Commissioners demand a through explanation before approving this drastic measure.

And what of Montanans Right to Know and Participate - Article ll - Sections 8 & 9. And the Right of Suffrage - Article ll - Section 13?

In Montana, the "right to vote" is guaranteed in Our Constitution. It remains of the utmost importance that Montana's Legislature guard against attempts like Missoula's County Clerk to infringe on our most basic of Human Right to vote.

Under Article IV - SUFFRAGE AND ELECTIONS voting rights are spelled out for "the people."

Section 1. Ballot. All elections by the people ...

Section 3. Elections. The legislature shall provide by law the requirements for residence, registration, absentee voting, and administration of elections. It may provide for a system of poll booth registration, and shall insure the purity of elections and guard against abuses of the electoral process.

Section 5. Result of elections. In all elections held by the people ...

In Montana, the "right to vote" is guaranteed in Our Constitution. It remains of the utmost importance that Montana's Legislature guard against attempts like Missoula's County Clerk to infringe on our most basic of Human Right to vote.

As always, Think about it and I'd like to encourage your comments about this important topic. Please feel free to ask your City Councilor, County Commissioner and/or State Legislator

Rick Gold
Missoula, MT

In Honor of Veterans Day

2009-11-12T09:38:00.016-07:00

Yesterday, November 11, 2009, I ran into a homeless guy in Missoula and he had a very interesting and sad story to relate. It seems he's a Veteran and homeless and has medical problems
In addition to this, last Friday, November 6, 2009, he was camped 3 miles up Kim Williams trail, where he had been for nearly a month. He said, he had no idea that he was in the Missoula City limits, where it appears that camping out is unlawful (so much for the Boy and Girl scouts camping anyway near Missoula City).
He kept his camp clean, not wanting to attract unwanted attention. He was awakened early Friday morning by Missoula City Police and Missoula Parks and Recreation people and promptly told them he had an outstanding warrant for a misdemeanor (a fine) which he couldn't show up for because of his health issues, so he was taken to County Jail. Before leaving, he asked the police, if his camp site would be unmolested since he was well equiped for the upcoming winter. The police, asumming he would not get out until Monday, said it would still be there when he got out.
Well, he was processed and released again Friday within one hour of his incarceration. But, after walking back to his camp site, he found that his camp and all his winter equipment was gone.
He was angry and destitute, and went to the Missoula Police to report the theft, but has of yet not gotten his equipment or camp back. He believes the Missoula Parks and Recreation people took all his things, as they and the Police were the only ones around.
Hey Missoula, Montana, what happened to our inalienable rights in the City of Missoula?
Montana Constitution, 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, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways.
In Honor of Veterans Day, I ask, aren't homeless Veteran's people too, under Montana's Constitution? Aren't homeless people?

As always, Think about it and I'd like to encourage your comments about this important topic. Please feel free to ask your City Councilor or Your City Attorney or Your City Employee (this could also apply to County or State) ...

Rick Gold
Missoula, MT

The Rule of Law or the The Rule of Arbitrary Governance?

2009-11-10T10:07:00.021-07:00

Since it's inception as a state, Montana's Constitution, first drafted when Montana became the forty-first state on November 8, 1889. has been updated by a Constitutional Convention ONLY once in 1972.

Yet, during this time, not once did any of the debates, discussions or other commentaries disclose exactly what is meant by "The Rule of Law of our Montana Constitution."

Generally, in its simplest sense, the rule of law is a system that attempts to protect the rights of citizens from arbitrary and abusive use of government power.

Montana's Supreme Court in COTTINGHAM v STATE BOARD OF EXAMINERS, ETC No. 9869.134 Mont. 1; 328 P.2d 907; 1958 Mont. LEXIS 17 had this to say about "the rule of law in Montana" ...
“This court's plain duty is to see that the constitutional mandate has been obeyed by the Legislature …”"Nor is it any concern of the court whether the act is expedient, wise, or unwise. State ex rel. Bonner v. Dixon, 59 Mont. 58, 195 P. 841. It is legislative power, not policy, that is drawn in question. And while we are mindful of the presumptions in favor of legislative acts, yet, being bound to support, protect, and defend the Constitution, when an enactment transgresses the constitutional limitations beyond a reasonable doubt, it is our solemn and sworn duty to so declare it. We are mindful, too, that the declaration of Constitutions are placed therein to be obeyed, and are not to be frittered away by construction. Less v. City of Butte, 28 Mont. 27, 72 P. 140, 61 L.R.A. 601, 98 Am. St. Rep. 545…”

Yet, time and again, if you ask Montana's Courts, Montana's lawyers or Montana's elected officials, exactly what their Constitutional oath of offices entail or how they are protecting the rights of citizens from arbitrary and abusive use of government power, they will either give you a "non-answer" or totally ignore you.

And ARE Montana's Courts, Montana's lawyers or Montana's elected officials making arbitrary laws and codes against their Constitutional Oaths, which are NOT protecting your basic Constitutional Rights?

I for one say yes, they are. They are "frittering (Our Rights) away by construction" just as the 1958 Montana Supreme Court warned against! Just read some of my earlier posts.

However, it IS of the utmost importance, that you ask these people, yourself, and then, you let others know what you have discovered. Do your best to explain, what happened or is happening in plain English. And then invite others to participate, ask questions, and share their stories.

As always, Think about it and I'd like to encourage your comments about this important topic.

Rick Gold
Missoula, MT

THE MONTANA CONSTITUTIONAL OATH OF OFFICE REVISITED

2009-10-15T14:11:00.004-06:00

Though, rarely discussed or defined in Montana’s Constitution or Code or in a Montana Court of Law, the Montana Constitutional Oath of Office declares:
Art III -- GENERAL GOVERNMENT - § 3. Oath of office. Members of the legislature and all executive, ministerial and judicial officers, shall take and subscribe the following oath or affirmation, before they enter upon the duties of their offices: "I do solemnly swear (or affirm) that I will support, protect and defend the Constitution of the United States, and the Constitution of the State of Montana, and that I will discharge the duties of my office with fidelity (so help me God)." “No other oath, declaration, or test shall be required as a qualification for any office or public trust.”

Art III § 3 then clearly states the extra-ordinary duties of care to Montana’s Constitution for those people required to swear their oaths and be bound by them. The American Dictionary of the English Language, defines an oath as:
"A solemn affirmation or declaration, made with an appeal to God for truth of what is affirmed. The appeal to God in an oath, implies that the person imprecates his vengeance and renounces his favor if the declaration is false, or if the declaration is a promise, the person invokes the vengeance of God if he should fail to fulfill it. A false oath is called perjury."
A duty of care is a requirement that a person act toward others and the public with watchfulness, attention, caution and prudence that a reasonable person in the circumstances would. If a person's actions do not meet this standard of care, then the acts are considered negligent, and any damages resulting may be claimed in a lawsuit for negligence.
What does it mean to support Montana’s Constitution?
It is the act, state, or operation of supporting, upholding, or sustaining Montana’s Constitution.
What does it mean to protect Montana’s Constitution?
It is the act of armoring and preparing oneself to defend Montana’s Constitution safeguarding it from all dangers, both foreign and domestic.
What does it mean to defend Montana’s Constitution?
It is the act of guarding against, forbidding or denying those dangers or threats to Montana’s Constitution from any and all sources, both foreign and domestic.
From The U.S. SUPREME COURT OF THE UNITED STATES
From EX PARTE GARLAND. 71 U.S. 333; 18 L. Ed. 366; 1866 U.S. LEXIS 886; 4 Wall. 333 January 14, 1867, Decided; December 1866, Term - - - ON the 2d of July, 1862, Congress, by "An act to prescribe an oath of office, and for other purposes," 1 enacted:
“That hereafter every person elected or appointed to any office of honor or profit under the government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the United States, shall, before entering upon the duties of such office, take and subscribe the following oath or affirmation:
'I, A.B., do solemnly swear (or affirm) that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto; that I have neither sought nor accepted, nor attempted to exercise the functions of any office whatever, under any authority or pretended authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power, or constitution within the United States, hostile or inimical thereto. And I do further swear (or affirm) that, to the best of my knowledge and ability, I will support and defend the [***2] Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God;' &c. 12 Stat. at Large, 502.
"Any person who shall falsely take the said oath shall be guilty of perjury; and, on conviction, in addition to the penalties now prescribed for that offence, shall be deprived of his office, and rendered incapable forever after of holding any office or place under the United States."
On the 24th of January, 1865, 2 Congress passed a supplementary act extending these provisions so as to embrace attorneys and counsellors of the courts of the United States. It is as follows:
"No person, after the date of this act, shall be admitted to the bar of the Supreme Court of the United States, or at any time after the fourth of March next, shall be admitted to the bar of any Circuit or District Court of the United States, or of the Court of Claims, as an attorney or counsellor of such court, or shall be allowed to [***3] appear and be heard in any such court, by virtue of any previous admission, or any special power of attorney, unless he shall have first taken and subscribed the oath prescribed in 'An act to prescribe an oath of office and for other purposes,' approved July 2d, 1862. And any person who shall falsely take the said oath shall be guilty of perjury, and, on conviction," &c.

From the Montana Supreme Court, 1999 MT 261; 296 Mont. 361; 989 P.2d 364; 1999 Mont. LEXIS 272; 56 Mont. St. Rep. 1045
[*P61] Long ago, this Court declared that "the State Constitution is a limitation upon the power of the legislature and not a grant of power to that body." State v. Aronson (1957), 132 Mont. 120, 127, 314 P.2d 849, 852 (citing State ex rel. Dufresne v. Leslie (1935), 100 Mont. 449, 50 P.2d 959). Just as the government has no business in the bedrooms of consenting adults, Gryczan, 283 Mont. at 450, 942 P.2d at 122, neither does it have any business in the treatment rooms of their health [**385] care providers, except under the very narrowly defined circumstances referred to above.
[*P67] That said, we close with two final observations. First, from our foregoing discussion, it should be apparent that this opinion is about the government's infringement of certain fundamental rights of individual privacy--personal and procreative autonomy--guaranteed under Article II, Section 10 of the Montana Constitution. From this same discussion, it should be equally obvious, what this opinion is not about. For the reasons hereafter set forth, the latter needs to be underscored, nonetheless. This opinion is not a comment, pro or con, on the merits of sectarian doctrine or on the deep and sincerely held personal beliefs, values and convictions of those who either favor abortion or who oppose it on moral or religious grounds.
[*P68] Unfortunately, however, it is these doctrines, values, beliefs and convictions which invariably fuel the hurricane of legal debate on this issue. And that, of course, is precisely the problem. The government can demonstrate no compelling interest for legislating on the basis of any sectarian doctrine nor may the state infringe individual liberty and personal autonomy because of majoritarian demands to safeguard some intrinsic value unrelated to the protection of the rights and interests of persons with constitutional status. The fundamental [**388] right to personal and procreative autonomy and, in the broader sense, to individual privacy, prohibits the government from dictating, approving or condemning values, beliefs and matters ultimately involving individual conscience, where opinions about the nature of such values and beliefs are seriously divided; where, at their core, such values and beliefs reflect essentially religious convictions that are fundamental to moral personality; and where the government's decision has a greatly disparate impact on the persons whose individual beliefs and personal commitments are displaced by the State's legislated values. See Dworkin, Life's Dominion, at 157; Dworkin, Freedom, at 101-102.
[*P69] That is not to say that matters involving religious values and individual conscience are not appropriately addressed by churches, other organizations and individuals in both sectarian and secular forums. Indeed, such expression aimed at changing individual values and convictions and at fostering respect for the intrinsic value of all life is protected by the First Amendment and, independently of the federal constitution, by Article II, Sections 5 and 7 of the Montana Constitution. However the doctrine of separation of church and state which is also embodied in the First Amendment and, independently, in Article II, Section 5, makes theology an impermissible basis on which to make law or interpret the Constitution. Religious arguments do not count as legal arguments. See Dworkin, Life's Dominion, at 110.
[*P70] For this reason, and without abandoning their own personal beliefs and [***383] convictions, those in government who make, execute and interpret the law and who are sworn to support, protect and defend the Constitution may not, except in violation of their oaths of office, succumb to the pressure of those who would engraft the sectarian tenets and personal values of some onto the laws which govern all.
COTTINGHAM v STATE BOARD OF EXAMINERS, ETC No. 9869.
SUPREME COURT OF MONTANA - -
134 Mont. 1; 328 P.2d 907; 1958 Mont. LEXIS 17
“This court's plain duty is to see that the constitutional mandate has been obeyed by the Legislature…”
"Nor is it any concern of the court whether the act is expedient, wise, or unwise. State ex rel. Bonner v. Dixon, 59 Mont. 58, 195 P. 841. It is legislative power, not policy, that is drawn in question. And while we are mindful of the presumptions in favor of legislative acts, yet, being bound to support, protect, and defend the Constitution, when an enactment transgresses the constitutional limitations beyond a reasonable doubt, it is our solemn and sworn duty to so declare it. We are mindful, too, that the declaration of Constitutions are placed therein to be obeyed, and are not to be frittered away by construction. Less v. City of Butte, 28 Mont. 27, 72 P. 140, 61 L.R.A. 601, 98 Am. St. Rep. 545…”

As always, Think about it and I'd like to encourage your comments about this important topic.

Rick Gold
Missoula, MT

Montana and the loss of integrity in our Judicial System

2009-09-30T09:27:00.021-06:00

Could you imagine a system of government, where the people who represent you, actually cared about you and everyone else, they represented? I mean, instead of the special interests? Well, let's have a look at the integrity of our Montana Judicial System. My personal experiences with my pro se Civil lawsuits, thus far are troubling ... In attempting to attain justice for the harm done to me in February 2001 by the City and County of Missoula (see DV 03-46, 'Missoula' Montana 4th District Court), I raised numerous issues in regard to the integrity of Montana's Judicial system. I approached the Montana Supreme Court twice seeking supervisory control in Gold v. THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT COURT OF THE STATE OF MONTANA, IN AND FOR MISSOULA COUNTY, THE HONORABLE DOUGLAS G. HARKIN, Presiding, Respondent (OP 08-0544, Dec 2, 2008 Mont. LEXIS 711). However, my petitions were denied without ever addressing the Constitutional issues that were raised.
Now, I'm back in Montana 4th District Court with these Constitutional issues in DV 09-320, and so far, I have the same Judge presiding who ruled against me in DV 03-46; the State's Attorney denies that these Constitutional issues in the current case did not arrise out of DV 03-46; the Judge has denied my motion to subpoena witnesses; and the State's attorney went on vacation so he has delayed his response to summary judgment until next week (October 5, 2009).
Can anybody else find anything wrong with this ongoing scenario.
Really, where is the Integrity in Montana's Judicial System?
What about Montana's Constitutional guarantee in Section 16 concerning administering justice? Let's see what some of America's famous leaders had to say about integrity.

John Adams, (1735-1826), Founding Father and 2nd US President, had this to say about integrity... "Society's demands for moral authority and character increase as the importance of the position increases." "Human nature itself is evermore an advocate for liberty. There is also in human nature a resentment of injury, and indignation against wrong. A love of truth and a veneration of virtue. These amiable passions, are the "latent spark"... If the people are capable of understanding, seeing and feeling the differences between true and false, right and wrong, virtue and vice, to what better principle can the friends of mankind apply than to the sense of this difference?"

Now, this quote from Justice Louis D. Brandeis (1856-1941) US Supreme Court Justice ..."The government is the potent omnipresent teacher. For good or ill it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that the end justifies the means -- to declare that the government may commit crimes -- would bring terrible retribution." and "Crime is contagious. If the government becomes a law breaker, it breeds contempt for the law." and "At the foundation of our civil liberties lies the principle that denies to government officials an exceptional position before the law and which subjects them to the same rules of conduct that are commands to the citizen."

Now, this quote from Justice William J. Brennan (1906-1997) U. S. Supreme Court Justice ...
"The Framers of the Bill of Rights did not purport to “create” rights. Rather they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be preexisting."

Now, this quote from Justice Stephen J. Field (1816-1899) US Supreme Court Justice ..."Here I close my opinion. I could not say less in view of questions of such gravity that go down to the very foundations of the government. If the provisions of the Constitution can be set aside by an Act of Congress, where is the course of usurpation to end? The present assault upon capital is but the beginning. It will be but the stepping-stone to others, larger and more sweeping, till our political contests will become a war of the poor against the rich; a war growing in intensity and bitterness." From a United States Supreme Court opinion, Pollock v. Farmers Loan & Trust Co. (1898).

Now, this quote from the Oath for Candidates Seeking Admission to the Bar, 1925, of the American Bar Association ... "I shall not counsel or maintain any suit or proceeding which shall appear to me to be unjust, nor any defense except such as I believe to be honestly debatable under the law of the land."

As always, Think about it and I'd like to encourage your comments about this important topic.

Rick Gold
Missoula, MT

Montana - Public (Self) Defenders - Unequal Access to inJustice

2009-09-09T12:51:00.037-06:00

Dateline September 09, 2009 - The Montana Public (Self) Defender Debacle - A total, often ludicrous failure and A Crisis of Conscience for our Montana Legal/Judicial System ... Hey, Montana, there's a GREAT BIG white elephant in law offices and Courtrooms across Montana!

Question - What do the Montana Public Defenders have to do with Criminal Defense? The Only possible answer is Defending themselsves. When you compare the lacklustre performance of Montana's Public Defenders to the stellar performance of the State, Counties and Cities legal Prosecuters (and staff), then there really is - NO Contest! It's a slam dunk for the Montana Prosecuters home team! And, meanwhile, with ALL their forgotten Lawyers Constitutional Oaths of Office to support, protect and defend Our Constitution (and Rules of Professional Conduct, no less), who among these gallant Montana lawyers IS proactively supporting, protecting or defending Montana's Constitutional rights of the poor (read indigent in the Montana Public Defender Act) in the process? Really, with these ridiculous sums ($100 Millions?) being spent on both sides of Criminality, who is minding the Constitutional Civil store in Montana?

In an article this week in the Missoula Independent News entitled "Self-defense -
State's public defender system takes the stand," Alex Sakariassen quotes a 66-page draft recommendation report from American University (AU) on how to improve the fledgling Montana Office of the Public Defender (OPD). In the draft the OPD is responsible for representing roughly 26,000 defendants a year in Montana. In his article, Alex quotes, Scott Crichton, executive director of the ACLU, as saying, "It's not just about defending criminals," ..."It's about defending people accused of crimes...it's about defending innocent people as well as providing good defense for guilty people, it's about saving tax dollars by having shorter pre-trial incarceration."
http://missoulanews.bigskypress.com/missoula/self-defense/Content?oid=1162302

Recently, in an August 2009 Missoulian article titled, "More than 10 percent of Montanans receiving food stamps" author and reporter JENNIFER McKEE, wrote, "Montana hit a sobering milestone in July: A record number of us, more than 100,000, are on food stamps, the federal anti-hunger program now known as the Supplemental Nutrition Assistance Program, or SNAP. The growth represents a more than 24 percent increase since May of 2008, said Linda Snedigar, administrator of the Human and Community Services Division at the Montana Department of Public Health and Human Services. Some 100,552 people received food stamps in July, she said, representing a little more than 10 percent of the state's population." http://missoulian.com/news/state-and-regional/article_987540a2-8568-11de-9ff0-001cc4c03286.html

But, what if the Montana State Legislature or the Governor, Counties or Cities or anyone of the myriad of Montana Attorneys are disregarding or violating their Oaths to Montana's Constitution or their Rules of Professional Conduct? How much money is being spent proactively to prosecute these infringements while supporting, protecting or defending Our Constitutional Rights? Sorry, the 66 page study is mum on this issue. Ask yourself this Montana, why is the Montana OPD, limited just to defending people accused of crimes? Why are they ignoring the Civil (proactive) cases allowed in the Montana Public Defender Act? Why is the Civil (proactive) side of law being ignored in relation to Montana's poor and the Montana OPD? Who is minding the store for the poor on the Civil side of Montana Law?

As always, Think about it and I'd like to encourage your comments about this important topic. Please feel free to ask your City Councilor or Your City Attorney or Your City Employee (this could also apply to County or State) ...

Rick Gold

Missoula, MT

Missoula, MT, Criminalizing sleeping in the commons for the homeless!

2009-08-26T09:40:00.020-06:00

The commons refers to public resources that are commonly owned. This could be land or food or .... And this week finds Missoula's Glorious City Representatives debating on whether or not, we as a City, should criminalize sleeping in Our commons. These changes are being considered for Missoula's "pedestrian interference" ordinance and they would limit the public places where people can sleep, lie and convene. The proposed rules would make it unlawful for people to lie or sleep on streets, sidewalks and public rights-of-way. It would also make it illegal for people to "walk, stand, sit, lie or place an object" where it obstructs walkers by leaving them less than 6 feet of room to pass. It makes some exceptions as well. For each unlawful infraction there would be a $100 fine. And get this, all these new $100 fines for people who Obviously, can not afford them, might even be able to be worked off through a community service program!
See Missoulian article: "Missoula City Council committee debates 2nd panhandling ordinance" http://missoulian.com/news/local/article_aec28efa-8d47-11de-ba3f-001cc4c002e0.html )

Why, it wasn't to long ago that the Nazi's instituted and profited from a community service program known as forced labor camps, and now the City of Missoula, has embarked on handing out $100 fines to people who can not afford them, and PRESTO! Free labor camps for Missoula! But wait, who among our Representatives is even considering or talking about this?
Really, if there are "problems" (during the summer months) with homeless people in Missoula's commons, then why NOT deal with the "problems?" If people are Forced to pee on sidewalks or in public alleys, IT'S because, the City does NOT have adequate restrooms downtown! If there needs? to be 6 feet clearance for pedestrians to pass (Missoulans don't like cuddies), then
close OFF the downtown streets to CARS, and make ALL that common space available to pedestrians! If homeless people (who are pedestrians also, after all) need a place to hang out, why set aside some space in some of the public places (like parks) for sleeping/tenting camps with rules of proper behaviors of course!
Please read Montana's Constitution ...
In it, 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, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways.

Come on City Representatives, use your HEADS, instead of your other parts to think!

"The human race is unimportant. It is the self that must not be betrayed." "I suppose one could say that Hitler didn't betray himself." "You are right. He did not. But, millions of Germans did betray their selves. That was the tragedy. Not that one man had the courage to be evil. But that millions had not the courage to be good." from The Magus, John Fowles

As always, Think about it and I'd like to encourage your comments about this important topic. Please feel free to ask your City Councilor or Your City Attorney or Your City Employee (this could also apply to County or State) ...

Rick Gold
Missoula, MT

Missoula, MT, Criminalizing Homelessness, Profiling & Discrimination

2009-08-18T11:16:00.031-06:00

Last Monday evening, the Missoula City Council, after much debate and heat about the so-called problem of "aggressive panhandling" and the denial about Criminalizing Homelessness, the Council passed the new ordinance 7-4 that "prohibits begging in an "aggressive manner," such as touching a person without asking, following someone being solicited and using violence. It prohibits telling lies to get money, and it also bans soliciting in some public places, such as near ATMs and within six feet of an entrance to a building."

This new ordinance provides for a $100 fine for any of this grab bag of infractions.

However, one real and tangible issue was voiced by Councilman Dick Haines. "Councilman Dick Haines, though, said one thing plenty of people are afraid to express aloud. The complaints aren't only about the aggression, but they're about the kind of people who are asking for money downtown. He said some shop owners tell him their customers don't want to visit because of the street people - and those customers vote with their feet and stay away from downtown stores. We've got enough vacancies on Main Street and Broadway, and we don't need any more, said Haines, who voted for the ordinance." from Keila Szpaller of the Missoulian Tuesday 8-18-09. http://missoulian.com/news/local/article_045468d8-8baf-11de-9a86-001cc4c002e0.html

Also note, that the Missoula City Council is currently working on an ordinance to ban homeless people sleeping on the streets.

The real issues then are about discrimination and criminalizing homelessness, downtown! Because, let's face it, there are a lot of "homeless" people who hang, downtown. Through a lot of hard work and effort, Missoulans have made it a very nice destination to be.

And, unfortunately, the homeless don't fit within the new and improved Downtown Master Plan, which developers envision and highlights high rise office/apartment/retail and condo complexes.

So how will they accomplish removing this homeless "undesirable element" from Missoula?

Well, let's start with profiling. Long about the time that the Missoula Downtown Association, broke off into the Downtown Business Improvement District and started working on its new Downtown Master Plan, certain changes started happening downtown. The City Council started adopting rules and ordinances, that restricted business people downtown, including hiring "ambassadors" downtown rule-givers and extra police patrols to help secure downtown from the undesirable. Next, they started profiling (mandatory back ground checks) business people who came in for a "business" license. It seems they only want the Right kind of people doing business in Missoula. Then, they started profiling street people and introducing ordinances to deal with the "problem" of these "street peoples' " behaviors on the Downtown streets. Of course, nobody on the City Council spoke to how many rules or ordinances are already on the books to deal with these unacceptable behaviors. Not one. No one spoke to how many other more serious issues were not being dealt with by the police. And besides, if they had to actually arrest, an "aggressive" person, then he would have a "Right" to an attorney (due process, it's in the Constitution) to defend himself, and that would take up a judges time and clog up the courts!

And, get this ... now, all a cop has to do to "profile" a person, is to go up and say, I got a complaint that you were being aggressive .... You were being aggressive weren't you? No, well here's a $100 ticket for aggressive panhandling and another for lying about it! Or how about, are you still lying about how you spend your panhandling funds? No? Then you are still lying to me! Here's a $100 ticket for lying! Or how about, the musician who having opened his guitar case to take out and play on the street, is approached by the police and given a $100 ticket, because he is 7.95 feet from an ATM, storefront ect. and obviously he is soliciting funds....

And this is where profiling comes in. If an officer just "stops" and "reports" a "homeless person," then, it goes on their "record." No due process, no trial, you just owe $100. Clean!
No muss, no fuss. Who cares if our City Councilors have sold one more little piece of Montana's Constitution down the river? Who cares if our City Councilors are discriminating against these undesirables? After all, aren't our brave City Councilors doing something about the problem?
Thank god, that our elected and hired representatives have sworn an Oath to support, protect and defend the Constitution of Montana. It a tough job, but someones got to do it!

As always, Think about it and I'd like to encourage your comments about this important topic. Please feel free to ask your City Councilor or Your City Attorney or Your City Employee (this could also apply to County or State) ...

Rick Gold
Missoula, MT

Re: Further on Violation of our Right to Privacy, Missoula, MT

2009-08-09T15:32:00.009-06:00

Dear Missoula Mayor and Missoula City Council,

Under the Montana Constitution, your electorate, have a Right to Know, that their elected and employed representatives are living up to their Oaths of Office.
Consequently, below are some additional questions for you ...
By-the-Way, Please don't accept any other person's interpretation of the Montana Constitution (it is your Oath after all)...
What exactly to each of you, does your Oath to support, protect and defend the Constitution of Montana mean to you?
In each of your deliberations and actions as an elected or employed representative of Missoula, do you perform an extra-ordinary duty of care, i.e. actively championing and guarding our Constitution and keeping it safe from attack or harm?
In regards to the aforementioned business license background checks in the City of Missoula, What Compelling State Interest have you shown to negate these people's Constitutional Right to Privacy (Article ll - Section 10)?
What probable cause (in each case) did you have to search these people's backgrounds (Due Process of Law & Article ll - Section 11. Searches and seizures)?
Who was involved in creating, instituting and carrying out these ongoing background checks? Who had access to this information.
Who were the people, who had to endure these infringements?
These are just a few of the questions. I have for now. Please answer them forthrightly ...

"The human race is unimportant. It is the self that must not be betrayed."
"I suppose one could say that Hitler didn't betray himself."
"You are right. He did not. But, millions of Germans did betray their selves. That was the tragedy. Not that one man had the courage to be evil. But that millions had not the courage to be good." from The Magus, John Fowles

As always, Think about it and I'd like to encourage your comments about this important topic. Please feel free to ask your City Councilor or Your City Attorney or Your City Employee (this could also apply to County or State) ...

thanks,
Rick Gold
Missoula, MT

Deception and the Constitutional Oath of Public Office

2009-08-06T10:39:00.024-06:00

When asked about their "Duty of Care" in regards to their work or their "legal" responsibilities and opinions in relation to the U.S. or Montana Constitution, most politicians or lawyers, will try to convince you that it is what they call an "ordinary" duty of care. But don't you be fooled by this mis-statement and these people not taking full responsibility for their oaths of office. It is up to each and everyone of us, to confront them with their duties and responsibilities.

First, let's look at the definition of ordinary ...

ordinary adj. regular, customary and continuing, and not unusual or extraordinary, as in ordinary expense, ordinary handling, ordinary risks, or ordinary skill. According to established order; methodical; settled; regular. ``The ordinary forms of law.'' --Addison.

Second, let's look at our elected and legal department's Oath of Office (which does NOT include their Rules of Professional Conduct). In Montana's Constitution, their Oath is “I do solemnly swear (or affirm) that I will support, protect and defend the constitution of the United States, and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God)."

Third, approach your representative and ask, "what does your Oath to support, protect and defend the Constitution of (your state) mean to you?" If their answer is anything other than an extra-ordinary duty of care, i.e. actively championing and guarding our Constitution(s) and keeping it safe from attack or harm, then you need to choose different Representatives and/or their (your) employees.
From The People's Law Dictionary:
To support: To argue in favor of; advocate; champion;
To protect: To keep from being damaged, attacked, stolen, or injured; guard;
T0 defend: To make or keep safe from danger, attack, or harm.

Fourth, keep informed, ask pertinent questions, keep a record of all communications, watch who lobbies them, gives them "campaign" money, be ever watchful of their actions, they speak so much louder than their words. And remember to be ever vigilant and act.

As always, I'd like to encourage your comments about this important topic.

Rick Gold
Missoula, MT

Violation of our Right to Privacy, Missoula, MT

2009-08-04T10:28:00.022-06:00

A couple of weekends ago, a quiet artist friend, John R., decided after I had encouraged him, to "try" tabling (selling his art) on the streets on Missoula. He was very reticent and nervous, so, he set up his table next to ours on the corner of Broadway and Higgins. After a couple of hours and a few conversations, John and I were approached by Lori, a downtown ambassador with the Missoula Business Improvement District. She asked to see John's Business license and i said that he was tabling with us and checking out tabling. She said that since he had his own table, he was required to get his own business license.
Accordingly, last week, John went online, downloaded and filled out the ITINERATE VENDOR BUSINESS LICENSE APPLICATION, then went down to the Missoula City Recorder's Office to pay his $72.00 business license tax. After he got to the City Recorders and handed in his application and tax, the clerk told him that he would have to pay an additional $42.00 for a background check.
An excerpt from the "How to Apply for a Business License" page of the City Recorder's office:
"Mobile/Street Vendor: A mobile or Itinerate Vendor is anyone soliciting or providing goods and/or services in the City of Missoula out of a temporary location. All mobile vendors must pass a background check and route the application before they can set up for business. " http://www.ci.missoula.mt.us/index.aspx?nid=810
Webster's Online Dictionary defines Itinerate as "to travel a preaching or judicial circuit."
John immediately asked the clerk, don't I have "The Right to Privacy" and isn't a background check, an invasion of my privacy and therefore, a violation of Montana's Constitution?
Article ll - Section 10: Right of privacy. "The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest."
The Clerk said she didn't know, that he would have to go talk to the police! But exactly, who with the Missoula Police Department is a Montana legal Constitutional scholar, she didn't elaborate.
He then asked her, what if anything in this background check would prevent him from getting a Itinerate Vendor Business License, again the clerk said she didn't know that he must talk to the Police! So, he left without getting his license.
First, all Missoula City personnel and elected officials, are paid by The People of Missoula. They work for US. Each and every one of US.
Second, who at the Missoula Police Department is the Montana Legal Constitutional Scholar, besides each and every policeman's duty to the Montana Constitution? Before City Councilors, the Mayor or the Police assume office, (including their "Rules of Professional Conduct") they must swear the following oath of office: “I do solemnly swear (or affirm) that I will support, protect and defend the constitution of the United States, and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God).”
Third, who set up this invasion of privacy and where were/are our City Council or any of Our City Legal Department, who have ALL sworn these oaths of office to Our Constitution?
Fourth, How many good business people in Missoula have had to endure this unwarranted invasion of their privacy? Is it possible, that, because of the inaction of Our City Councilors and City Legal Department and the continuing mockery of the Missoula City Clerk's business license process, the people of the City of Missoula, now face, a class action by harmed business and other people?
Finally, how many other, little violations, of Our Montana Constitution, have our City Council and our City Legal Department, ignored and who is responsible, within all these great minds to check the Constitutional validity?

As always, I'd like to encourage your comments about this important topic. Please feel free to ask your City Councilor or Your City Attorney ...

thanks,
Rick Gold
Missoula, MT

Security vs Liberty in Missoula, MT USA

2009-07-29T11:12:00.019-06:00

Benjamin Franklin once stated that "Any society that would give up a little liberty to gain a little security will deserve neither and lose both. " And so it seems in the latest ongoing debate in Missoula, Montana about "limiting aggressive panhandling" downtown. See http://missoulian.com/articles/2009/07/29/news/local/news04.txt

One might well ask, well aren't their already laws on the books that deal with aggressive behaviors? And the of course, why aren't they being enforced? Why is it that the police have a need to add another $100 ticket to their arsenal in order to do something constructive about aggressive and intimidating behaviors of panhandlers? Why doesn't Missoula's City Council just bite the bullet and ban "panhandlers" altogether from our beautiful downtown? Out of sight, out of mind? Or is it that the City can NOT ban panhandlers, for fear of upsetting their firemen, who every so often set up on Madison St. bridge, aggresively intimidating drivers to "give?"
Of Course, the real problems of and with the "homeless" both here and all across America are economic, social and addiction related. Maybe, instead of exacerbating the situation further, the City Council and the police should instead spend a week on the streets, and get a whole new perspective on the "problem." You know, walk a mile in their shoes. They are humans after all.

Just like you and me.
And in Montana, they, like everyone else, have what Montana's Constitution calls inalienable rights - Article ll - Section 3. "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, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways."

Before City Councilors, the Mayor or the Police assume office, (including their "Rules of Professional Conduct") they must swear the following oath of office: “I do solemnly swear (or affirm) that I will support, protect and defend the constitution of the United States, and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God).”

And finally, you and I and every other taxpayer is being asked to "pay" for our City Council and additional police to deal with yet "another" problem. And what of all the other "problems" we Missoulians are already "paying" for? Why do we still have murders, rapes, assaults, burglaries, theft, auto-theft, arson, fights etc in Missoula, MT at all? Why?

So maybe, the real issue is this: Missoulians giving up more of our essential liberties on the pretext that our police don't have enough laws at their disposal to deal with aggressive and/or intimidating behaviors, downtown (only during the summer, of course).

Well, in Missoula, we simply call this situation mere political bull pucky playing ....

So, once again, Benjamin Franklin stated that "Any fool can criticize, condemn and complain and most fools do."

So exactly, who are the fools who are complaining about not having the means to deal with "aggressive panhandling downtown" and "homeless" people sleeping downtown?

Well, read the new "proposed" ordinance addressing solicitation and intimidating panhandling. and, also, Could these proposed rules interfere with Missoulians free speech rights?

http://www.speakupmissoula.com/topic/200/Could_the_proposed_panhandling_rule_interfere_with_free_speech_rights

As always, I'd like to encourage your comments about this important topic.

thanks,

Rick Gold

Missoula, MT

Power (authority) of, by, for and to the people ....

2009-07-21T10:57:00.007-06:00

The authority of power of the people and The U.S. Declaration of Independence:
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.
The tenth Amendment to the U.S. Constitution states: 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."
In America, power means control of one's own life, liberty and happiness, these certain, defined unalienable Rights and others reserved to the States respectively, or to the people.
Power of, by, for and to the people ....
In Montana's Constitution, 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, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways.
Power of, by, for and to the people ....
The people of Montana are ALL guaranteed other special sets of Enumerated Rights. They are Popular sovereignty. Self-government. Individual dignity. Freedom of religion and Assembly. Freedom of speech, expression, and press. Right of participation. Right to Know. Right of privacy. Freedom from unreasonable searches and seizures. Right to bear arms. Right of suffrage. Adult rights. Rights of persons not adults. Due process of law. Habeas corpus. Rights of the accused. Self-incrimination and double jeopardy. Trial by jury. Imprisonment for debt. Criminal justice policy -- rights of the convicted. Eminent domain. Etc.
The principals, rights and ideals of America and the 50 States are directed toward protecting the people's power and authority...

Think about it ….As always, please let me have your comments on this important topic, thanks!

Rick Gold
Missoula, MT

Sheriff Mack vs Sheriff Mike McMeekin: Challenge the Status Quo

2009-07-15T10:53:00.009-06:00

Today, July 15, 2009, Richard Mack former 2 term sheriff of Graham County, Ariz, issued a challenge to debate current Missoula County Sheriff, Mike McMeekin.
In a Missoulian article of Monday, July 13, 2009, (http://www.missoulian.com/articles/2009/07/13/news/mtregional/znews08.txt) McMeekin is quoted as saying that, what Mack was doing at a public speaking engagement in Hamilton July 7th was "politics" and what McMeekin is doing is "law enforcement. They're not the same thing.” For that reason, McMeekin found Mack's appearance to be a “nonevent.”
Yet, Mack, who wants to make sure that every sheriff in the country has received a copy of his new book, "The County Sheriff: America's Last Hope" completely disagrees. First, he was NOT asked for his responses to Michael Moore's article about him in the Missoulian.. Second, he believes that, “All law enforcement officers, from the FBI down to the local meter maid, derive their (just) powers from the people,” (see http://www.sheriffmack.com/), “but the only law enforcement officers in the land who answer directly to the people are county sheriffs.” Mack writes, “the Constitution gives the federal government the authority to police exactly four areas: treason, piracy, treaty violations and counterfeiting. The other 5,000 they've stolen and usurped from state and local authorities.” “The very people who have promised us they will protect and defend the Constitution are the ones who are destroying it.” He says in his 49-page book, Mack also quotes America's Founding Fathers who warned that a centralized power in government would lead to one, in Thomas Jefferson's words, “as venal and oppressive as the government from which we separated.”

And the Constitutional Law Enforcement Association completely agrees with him. From their website (http://constitutionallawenforcementassoc.blogspot.com/) , The County Sheriff:The Ultimate Check & Balance, they state, When the United States of America was founded the framers spent arduous hours devising a Constitution that would protect future generations from tyranny and government criminality. A system of checks and balances was established to keep all government, especially at the federal level, from becoming too powerful and abusive.

The Bill of Rights was promulgated to augment the limitations previously placed against the government, to further insure that government would stay in its proper domain.

So, what happens when government does not obey its own constitution? What punishment is meted out to politicians who vote for and pass unconstitutional laws? What happens if they appoint unlawful bureaucracies or allow their agents to violate the rights of the American citizen? The answer to these questions is both astounding and lamentable; NOTHING!

Now the question becomes even greater; who will stop criminal and out-of-control government from killing, abusing, violating, robbing, and destroying its own people? Yes, believe it or not, there is an answer to this one. The duty to stop such criminality lies with the county sheriff. The question needs to be posed to each and every sheriff of these United States; will you stand against tyranny?

The office of sheriff has a long and noble history. It dates back over a thousand years and originated in England. The sheriff is the only elected law enforcement official in America. He is the last line of defense for his citizens. He is the people's protector. He is the keeper of the peace, he is the guardian of liberty and the protector of rights. A vast majority of sheriffs will agree with all of this until they are asked to apply these principles of protection to federal criminals. Their backpedaling and excuses will be more plentiful than radar tickets and louder than sirens at doughnut time. Most of the unbelievers, who themselves have taken a solemn oath to "uphold and defend" the U S Constitution, will passionately and even apologetically exclaim that they have no authority or jurisdiction to tell federal agents to do anything, let alone stop them from victimizing local citizens. The truth and stark reality is that it's just the opposite; the sheriff has ultimate authority and law enforcement power within his jurisdiction. He is to protect and defend his citizens from all enemies, both "foreign and domestic."

Consequently, former Sheriff Richard Mack is issuing this challenge to Missoula County Sheriff Mike McMeekin to a debate concerning McMeekin's part in law enforcement and whether he will stand against tyranny. Former Sheriff Richard Mack would also like Missoula County Sheriff Mike McMeekin to explain "how it is that the ultimate protector and keeper of the peace will not protect his citizens from federal criminals. Bottom line; How is it that the county's servant who promised, in God's name, to uphold and defend the Constitution of the United States turns right around and says that it is not his job to uphold and defend the Constitution of the United States? Not to mention that he promised to do the same for the Montana Constitution. Is this what he calls politics? I call it keeping your word!"
R Mack

Sheriffs in Montana, swear the following oath of office “I do solemnly swear (or affirm) that I will support, protect and defend the constitution of the United States, and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God).”

former Sheriff Richard Mack can be contacted at sheriffmack@hotmail.com
phone: 928.792.4340
P.O. Box 971
Pima, AZ 85543

As always, please let me have your comments on this important topic, thanks!
Rick Gold

Sworn Oath of Office: Politics, Words or Duty?

2009-07-13T10:31:00.011-06:00

What do US Judges, Presidents, Vice-Presidents, Legislators, Senators, and other US officials have in common?
They ALL must swear to be bound by Oath or Affirmation to support, preserve, protect and defend the Constitution of the United States.
But, have these politicians, faithfully supported, preserved, protected or defended our Constitution down through the years?
Just look at some of the things that the government can now do under The Patriot Act (as one recent example): Search your home; Wiretap your phone, computer, and internet; Investigate your financial records (bank accounts, credit cards, etc.); Investigate your library book activity; Investigate your medical records, travel records, and business records; Freeze your finances without the right to appeal; and Maintain “watch lists” that ban individuals from air travel.
But, aren't these governmental actions UnConstitutional, you might ask? Not until a government court rules they are. So, it appears that the US Congress and Presidents have not "faithfully supported, preserved, protected or defended" our Constitution in regards to The Patriot Act.
There are many other examples through the years, if you'd care to do a google search on dwindling civil rights.
In Montana, we have - the Constitution of Montana -- Article III - Section 3. Oath of office.
"Members of the legislature and all executive, ministerial and judicial officers, shall take and subscribe the following oath or affirmation, before they enter upon the duties of their offices: "I do solemnly swear (or affirm) that I will support, protect and defend the constitution of the United States, and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God)."
Again, in Montana, there are examples of the Montana Legislature & Governor of passing laws
which do not support, protect or defend the constitution of the state of Montana. It's interesting that Retired Graham County, Arizona, Sheriff Mack (who made a handful of speeches in western Montana over the past week) http://www.sheriffmack.com says that "“The very people who have promised us they will protect and defend the Constitution are the ones who are destroying it.” And that Missoula's own Sheriff Mike McMeekin says of Mack "“What he's doing is politics,” McMeekin said. “What we're doing is law enforcement. They're not the same thing.” And "I'm not going to comment on him personally, but I can tell you that in Missoula County we're going to continue cooperating with law enforcement agencies, whether it's the feds, the state or the local police,” McMeekin said.
So, even if the Feds, State or local law enforcement agencies are violating our Constitutional Rights here in Missoula, Sheriff McMeekin says he will cooperate. “We're just another part of law enforcement,” he said. “We're certainly not going to be a county where we expect the feds to ask our permission to do their jobs. We're not going to have any of that nonsense.” Reported by Michael Moore of the Missoulian
http://www.missoulian.com/articles/2009/07/13/news/mtregional/znews08.txt
Once again, as Governor Brian Schweitzer has said in his campaigns accross Montana - It's time to Take Back Our State, Montana," and reclaim our State Constitution, too.
Think about it ….As always, please let me have your comments on this important topic, thanks!Rick Gold
Missoula, MT

Why are County Sheriffs becoming our Constitutions Last Hope?

2009-07-07T10:43:00.010-06:00

According to Richard Mack (http://www.sheriffmack.com/) a former two-term sheriff in Graham County, Ariz, who in his new book, “The County Sheriff, America's Last Hope” spells out why he believes sheriffs are the last line of defense for the constitutional rights of U.S. citizens.
“All law enforcement officers, from the FBI down to the local meter maid, derive their powers from the people,” Mack writes on his website, “but the only law enforcement officers in the land who answer directly to the people are county sheriffs.” Mack writes, “the Constitution gives the federal government the authority to police exactly four areas: treason, piracy, treaty violations and counterfeiting. The other 5,000 they've stolen and usurped from state and local authorities.” “The very people who have promised us they will protect and defend the Constitution are the ones who are destroying it.” In his 49-page book, Mack quotes Founding Fathers who warned that a centralized power in government would lead to one, in Thomas Jefferson's words, “as venal and oppressive as the government from which we separated.” http://missoulian.com/articles/2009/07/07/news/local/news02.txt

“On his website (http://www.sheriffmack.com/) you'll find many articles and extracts from books he's written on many subjects related to maintaining our freedom as a people. He is deeply committed to the belief that government should exist to protect the freedoms of the individuals whom it serves. We must return to those principles that our country was founded upon! The founders of our nation were afraid of one thing more than any other... government having too much power! Remember, they escaped from the tyranny of an oppressive and controlling government when they established this nation. They fought and died for it, and now we are letting these same freedoms they fought for slip away little by little, without a second thought.”
Mack also, lectures and gives seminars on constitutional issues relating to gun control, law enforcement, States' rights, the farce, otherwise known as the drug war, and the oath of office. He has also been a consultant for lawyers, and people in general helping them with cases of unlawful arrests and police misconduct. He has stood for “the little guy” against “big brother” government.
But what about all the other elected or appointed Judges, Lawyers, Congresspersons, Legislators, Governors, City and County politicians on each and every level of Government including police and sheriffs who also swear oaths of office, as in Montana, “I do solemnly swear (or affirm) that I will support, protect and defend the constitution of the United States, and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God).” Article III - Section 3, Montana Constitution
Mack writes in his new book, “The very people who have promised us they will protect and defend the Constitution are the ones who are destroying it.”
So what can we as Americans and Montanans do in the fight to regain our rights, while the price to pay is less than death. Are we committed to doing all we can peacefully to get our country back. In order to succeed, we must first make ourselves aware of the problem. We must educate ourselves, and then we can know what action to take. One of the best and easiest solutions is to depend on local officials, especially the sheriff, to stand against federal intervention and federal criminality. It's time for us to reaffirm our Constitution locally with our elected, appointed and hired officials. Please email, call or speak in person to them directly asking if they understand and uphold their oaths of office with fidelity.
As Governor Brian Schweitzer has said in his campaigns accross Montana - It's time to Take Back Our State, Montana," and reclaim our State Constitution, too.
Think about it ….As always, please let me have your comments on this important topic, thanks!

Rick Gold
Missoula, MT

The U.S., Montana and Equal Protection under the Law

2009-06-30T09:39:00.009-06:00

The U.S. Constitution guarantees in the 14th Amendment, Section 1 that, 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;
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.
So,
What exactly, does equal protection of the laws mean in and for Montana? The Montana Supreme Court has held that:
"The principal purpose of the Equal Protection Clause, Article II, Section 4, of the Montana Constitution, is to ensure that persons who are citizens are not subject to arbitrary and discriminatory state action." Davis v. Union Pacific Ry. Co., 282 Mont. 233, 240, 937 P.2d 27, 31 (1997) "[A] party claiming violation of the right to equal protection must first demonstrate that the law at issue discriminates by impermissibly classifying individuals and treating them differently based on that classification. Once the classification has been identified and it has been established that members of the different classes are similarly situated, we determine the appropriate level of scrutiny to apply." State v. Ellis, 2007 MT 210, ¶ 20, 339 Mont. 14, ¶ 20, 167 P.3d 896, ¶ 20. We apply strict scrutiny to laws which affect "fundamental rights, intermediate scrutiny for laws conferred by the Montana Constitution but not found in the Declaration of Rights, or rational basis if neither strict scrutiny nor intermediate scrutiny applies." Ellis, ¶ 11.
Yet, in their three narrow applications of equal rights thus far classified, the Supreme Court of Montana, has yet to "unambiguously erase their desires" (see Judge Neill below) concerning the self-executing, self-administering and self-fulfilling Rights of the inviolability of human dignity as well as our Fundamental Rights, our Enumerated Inalienable Rights and our UnEnumerated Rights.
Montana District Judge Kenneth R. Neill was on the right track in a ruling April 15, 2009, when stated in his opinion, “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
So, Judge Neill who has sworn the same oath of office as our Supreme Court Justices are required to swear before entering into office in Montana: "I do solemnly swear (or affirm) that I will support, protect and defend the constitution of the United States, and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God)." Article III - Section 3, Montana Constitution
In protecting and defending, Judge Neill applied the broadest application for a fundamental right guaranteed by the U.S. and Montana constitutions by removing himself and his desires in favor of insuring a fundamental right guaranteed by the U.S. and Montana constitutions.
And so, this is the fourth (and easiest) application of an equal protection under the Law, one of a Justice sworn to support, protect and defend the constitution removing oneself and ones desires in favor of insuring a fundamental right guaranteed by the U.S. and Montana constitutions.

Think about it ….As always, please let me have your comments on this important topic, thanks!

Administering Right and Justice without sale, denial or dely.

2009-06-16T11:02:00.017-06:00

In Montana's Constitution, the people of Montana are ALL guaranteed a very special set of Enumerated Rights, referred to as Inalienable. Inalienable Rights are those Rights of the citizen incapable of being repudiated, taken away or transferred to another.
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, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways. In enjoying these rights, all persons recognize corresponding responsibilities.
These Inalienable Rights then are self-executing, self-administering and self-fulfilling.

The people of Montana are ALL guaranteed other special sets of Enumerated Rights. They are Popular sovereignty. Self-government. Individual dignity. Freedom of religion and Assembly. Freedom of speech, expression, and press. Right of participation. Right to Know. Right of privacy. Freedom from unreasonable searches and seizures. Right to bear arms. Right of suffrage. Adult rights. Rights of persons not adults. Due process of law. Habeas corpus. Rights of the accused. Self-incrimination and double jeopardy. Trial by jury. Imprisonment for debt. Criminal justice policy -- rights of the convicted. Eminent domain. Etc.
And Unenumerated rights.
These Enumerated and UnEnumerated Rights then are self-executing, self-administering and self-fulfilling.
But how exactly, does a Court or an attorney or an elected public official, who have sworn to protect and defend our Constitution and our Rights, administer Right or Justice when it involves every one's Enumerated and UnEnumerated Rights?
Administer means: "To cause to take, either by openly offering or through deceit; To apportion out, as in administering justice; To manage or supervise the conduct, performance or execution of; to govern or regulate the parameters for the conduct, performance or execution of; to work in an administrative ..." from en.wiktionary.org/wiki/administer
So how many of our Constitutional Rights are being administered, legislated or opinioned away?

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)
Remember, the Montana Constitution's 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."
In the 1972 Montana Constitutional Convention, Delegate Mrs. Mansfield had these comments regarding Section 4 of the Montana Bill of Rights. "The committee unanimously adopted this section with the intent of providing a constitutional impetus for the eradication of public and private discrimination based on race, color, sex, culture, social origin or condition, or political or religious ideas. The provision, quite similar to that of the Puerto Rico declaration of rights, is aimed at prohibiting private as well as public discrimination in civil and political rights....Social origin or condition was included to cover discriminations based on status of income and standard of living."
And also the comment from Delegate Mr. Dahood, "The intent of Section 4 is simply to provide that every individual in the State of Montana, as a citizen of this state, may pursue his inalienable rights without having any shadows cast upon his dignity through unwarranted discrimination...(C)onstitutions are based on the premise that they are presumed to be self-executing, particularly within the Bill of Rights. If the language appears to be prohibitory and mandatory, as this particular section is intended to be, then in that event, the courts in interpreting the particular section are bound by that particular presumption and they must assume, in that situation, that it is self-executing. There was a case in Montana some 60 years ago that involved a provision of our Bill of Rights that had to do with an individual right, and there the Supreme Court said that was self executing and a citizen could enforce it without any type of legislative implementation."

Think about it ….As always, please let me have your comments on this important topic, thanks!

Defending our lives, civil liberties & civil rights in Montana and beyond.

2009-06-08T09:58:00.010-06:00

In Montana and the United States, in 2009 we are faced with crisis and denial of conscience. What exactly does defending our lives and liberties mean? How do we as human beings and citizens, re-invigorate the principles, rights and responsibilities entrusted to our care and defense in our Constitutions. Why are so much of Montana's and U.S. resources tied up in criminal defense alone. (ex. Google: public defender) Why?
Under The Montana Public Defender Act, the Office of the State Public Defender was formed. "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." Note that while the State Public Defender Office mission does NOT specifically exclude Civil causes by their established definition, Public Defenders are mearly "attorneys appointed by a court or employed by the government to represent indigent defendants in criminal actions." Who limited or limits Public Defenders to criminal cases only? Why?
Surely, this is NOT what our founding fathers (and mothers) had in mind when they entreated each and every one of us to defend our lives and civil liberties. And exactly, how do indigent people go about defending their lives and civil liberties against all forms of encroachment by our Montana and U.S. government if they have NO access to a skilled Civil attorney (see equal access, due process and poverty below)? Again why?
The main remedy in Montana provided for the defense of our Civil Liberties is in a Court of Justice. In Montana's Constitution, Article ll - 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.
Think about it ....
As always, please let me have your comments on this important topic, thanks ...

Inalienable Rights

2009-06-02T08:38:00.016-06:00

The Montana Constitution guarantees for ALL certain: "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, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways. In enjoying these rights, all persons recognize corresponding responsibilities."

Henry David Thoreau once said "It is not desirable to cultivate a respect for the law, so much as for the right," meaning that Montanans and Americans need to be ever vigilent in regards to maintaining and increasing their Human and Inalienable Rights. Merriam-Webster Online 2009 defines Inalienable as incapable of being alienated, surrendered, or transferred." As former president Jimmy Carter often noted, "America did not invent human rights. In a very real sense human rights invented America."

However, in 2009, we as Montanans and Americans see infringements of our most sacred human rights on an ever increasing scale. On our National level we see: wars, lies, newspeak, wiretapping, loss of privacy, corruption, torture, environmental degradation, corporate domination, uncontrolable spending and continuing and deepening recession while American's Civil Rights are being trampled, left and right. It also seems that 1984, the famous book by George Orwell written and published in 1949, is being followed and enacted closely in Washington, D.C. these days to the detriment of all.

So, what is it that we, as Americans and Montanans, can do today to preserve, protect and further our Inalienable Rights for our future? Perhaps take some guidance from a few great inspirations about becoming activists now, ourselves: Mother Teresa said: "Do not wait for leaders; do it alone, person to person." and "God doesn't require us to succeed; he only requires that you try." and "It is not the magnitude of our actions but the amount of love that is put into them that matters."
Nelson Mandela said: "Education is the most powerful weapon which you can use to change the world. For to be free is not merely to cast off one's chains, but to live in a way that respects and enhances the freedom of others."
Mohandas Gandhi said: "A 'No' uttered from the deepest conviction is better than a 'Yes' merely uttered to please, or worse, to avoid trouble." and "A nation's culture resides in the hearts and in the soul of its people." and "Even if you are a minority of one, the truth is the truth." and "Be the change that you want to see in the world."
Emma Goldman said: "The most violent element in society is ignorance." and "The demand for equal rights in every vocation of life is just and fair; but, after all, the most vital right is the right to love and be loved."
As always, please let me have your comments on this important topic, thanks …

Plumber, Mechanic, Surgeon or Lawyer

2009-05-27T11:37:00.004-06:00

Would you take your car to a lawyer to have the engine rebuilt? No? Why not? Then, would you call an attorney to come to your house to fix your plumbing? No? Why not? Then, would you visit an attorney to operate on you or a loved one? No? Why not? Can a plumber or mechanic or surgeon be expected to perform in a Court of Law as well as a trained and qualified attorney? Who is better qualified to serve Justice than one who is trained and tested and a member of the State Bar? Then, why aren't attorney's available for ALL cases in Montana Courts (equal access) even if a person can't afford one (and currently that figure is at almost 30% of Montanans)? Who better to serve in Montana's closed Legal System then one who is qualified to act? Under the laws of the U.S. and the State of Montana, a person is required to be an attorney (a member of the State bar) for 5 years prior to becomming a Judge.
Therefore, a person must be an attorney and a member of the State Bar to participate in the Judiciary which is a distinct and separte branch of our government.
So, why are Montana's self-regulated Courts in denial about providing due process of law to the People of Montana in our Courts by offering the services of one our their own trained attorneys? Why are Montanan's being denied the equal protection of our laws by our Courts not offering the services of one of their trained attorneys? Why has Montana's Supreme Court ignored its Constitutional responsibility to the Administration of Justice - Right and justice shall be administered without sale, denial, or delay, by not requiring that right to an attorney to ensure that, no person shall be deprived of this full legal redress or remedy afforded for every injury of person, property, or character. Who better than an attorney to insure these Constitutional protections! (From Section 16 of the Montana Constitution 1972)
From the Montana Constitution:
ARTICLE III - GENERAL GOVERNMENT - Section 1. Separation of powers. The power of the government of this state is divided into three distinct branches--legislative, executive, and judicial. No person or persons charged with the exercise of power properly belonging to one branch shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.
Section 3. Oath of office. Members of the legislature and all executive, ministerial and judicial officers, shall take and subscribe the following oath or affirmation, before they enter upon the duties of their offices: "I do solemnly swear (or affirm) that I will support, protect and defend the constitution of the United States, and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God)." No other oath, declaration, or test shall be required as a qualification for any office or public trust.
ARTICLE VII - THE JUDICIARY- Section 9. Qualifications. (1) A citizen of the United States who has resided in the state two years immediately before taking office is eligible to the office of supreme court justice or district court judge if admitted to the practice of law in Montana for at least five years prior to the date of appointment or election. Qualifications and methods of selection of judges of other courts shall be provided by law.
From the Montana Code Annotated (2007) -3-5-202. Qualifications and residence (District Judge). (1) A person is not eligible for the office of judge of a district court unless the person is a citizen of the United States, has resided in the state 2 years immediately before taking office, and has been admitted to practice law in Montana for at least 5 years prior to the date of appointment or election.
As always, please let me have your comments on this important topic, thanks ...

Unbiased, Unprejudiced Individual Dignity

2009-05-22T10:59:00.004-06:00

The Montana Constitution's 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."
Thus, in framing this section representatives to Montana's 1972 Constitutional Convention recognized that these prohibitions would and should be self-executing . So what exactly was this "Individual Dignity" that our representatives were envisioning for Montana's future? Why is it so important for Montanan's to create and maintain an Unbiased, Unprejudiced Individual Dignity for all of US?
From the Universal Declaration of Human Rights of the United Nations - " Whereas: recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world ... Therefore: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood...All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination."
"Dignity does not come in possessing honors, but in deserving them." Aristotle (384-322 BC) Greek philosopher
"A society that does not recognize that each individual has values of his own which he is entitled to follow can have no respect for the dignity of the individual and cannot really know freedom." Fredrich August von Hayek (1899-1992), Nobel Laureate of Economic Sciences 1974
"No government is respectable which is not just. Without unspotted purity of public faith, without sacred public principle, fidelity, and honor, no machinery of laws, can give dignity to political society."Daniel Webster (1782-1852), US Senator
"The constitutional right of free expression… is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced in the hands of each of us, in the hope that the use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political systems rests." John Marshall Harlan (1899-1971) U. S. Supreme Court Justice
"A society that does not recognize that each individual has values of his own which he is entitled to follow can have no respect for the dignity of the individual and cannot really know freedom." Fredrich August von Hayek (1899-1992), Nobel Laureate of Economic Sciences 1974
As always, please let me have your comments on this important topic, thanks ...

poverty vs. indigence in Montana's Public Defender System

2009-05-19T14:43:00.010-06:00

In Montana, are the 14.1% statewide poor people (in poverty)? Or are we really, really destitute (indigent)? Because if we are really, really destitute (indigent) then we may be entitled under the new Public Defender Act to equal access to justice and an attorney to boot! A Montanan can NOT simply be in poverty or poor or at a place that they can not afford a $150/hr attorney when the average Montanan's wage is $6.90/hr. No! They must be indigent! Because, "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 (ONLY!). (http://publicdefender.mt.gov/)
Merriam-Webster's Online Dictionary Defines indigence as: "a level of poverty in which real hardship and deprivation are suffered and comforts of life are wholly lacking." And again, Merriam-Webster's Online Dictionary defines poverty as:"the state of one who lacks a usual or socially acceptable amount of money or material possessions."
So, what does it take to be in real poverty in Montana. In 2009, the U.S. Dept of Human Services says that a person is in realitive poverty if that person makes $10,830 or less per year. See http://aspe.hhs.gov/poverty/09poverty.shtml
While the Small Area Income & Poverty Estimates (SAIPE) for 2007 of the U.S. Census Bureau (http://www.census.gov/) - States: The number of all ages in poverty was 131,433 or 14.1% of Montana's overall population. And for Missoula County, the Missoula City-County Health Department and the Healthy Start Council Sept 3, 2008 Missoulian News: "Seventeen percent of all Montana children age 18 and under live in poverty. However, 38 percent of Native American children 18 and under live in poverty in our state. Yet, Native Americans are only 6 percent of our total population. Sixteen percent of children in Missoula County 18 and under live in poverty. Missoula County ranks 20th in the state, which means 36 counties have even more children living in poverty. The lowest rate is 9 percent in Stillwater County and the highest is 33 percent in Roosevelt County. The number of children in extreme poverty - those living at 50 percent of the federal poverty level - is increasing and has reached a statewide level of 8 percent."
So, what does it take in Montana to be labeled indigent? The U.S. Dept of Human Services or the Census Bureau or the U.S. Government have no relative indicators or charts for indigents. Only from the Montana State Code Section 47-1-104(3) of The Public Defender Act, do we get: "An applicant is indigent if: (a) the applicant's gross household income, as defined in 15-30-171, is at or less than 133% of the poverty level set according to the most current federal poverty guidelines updated periodically in the federal register by the United States department of health and human services under the authority of 42 U.S.C. 9902(2); or (b) the disposable income and assets of the applicant and the members of the applicant's household are insufficient to retain competent private counsel without substantial hardship to the applicant or the members of the applicant's household."
Ask yourself, why would Montana's Legislature and Governor choose to use indigent in the Montana Public Defender Act? Will this discrimination provide more poor Montanans with equal access to our Courts or justice? And exactly what percentage of the 14.1% of those stricken by real poverty will the Court or the Public Defender label indigent and actually try to help? Where have the integrity and the dignity in our Legislature & Governor & Courts gone? Really, what social condition is more acute in 2009 than realitive or real poverty?
Remember, the Montana Constitution's 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."
In the 1972 Montana Constitutional Convention, Delegate Mrs. Mansfield had these comments regarding Section 4 of the Montana Bill of Rights. "The committee unanimously adopted this section with the intent of providing a constitutional impetus for the eradication of public and private discrimination based on race, color, sex, culture, social origin or condition, or political or religious ideas. The provision, quite similar to that of the Puerto Rico declaration of rights, is aimed at prohibiting private as well as public discrimination in civil and political rights....Social origin or condition was included to cover discriminations based on status of income and standard of living."
And also the comment from Delegate Mr. Dahood, "The intent of Section 4 is simply to provide that every individual in the State of Montana, as a citizen of this state, may pursue his inalienable rights without having any shadows cast upon his dignity through unwarranted discrimination...(C)onstitutions are based on the premise that they are presumed to be self-executing, particularly within the Bill of Rights. If the language appears to be prohibitory and mandatory, as this particular section is intended to be, then in that event, the courts in interpreting the particular section are bound by that particular presumption and they must assume, in that situation, that it is self-executing. There was a case in Montana some 60 years ago that involved a provision of our Bill of Rights that had to do with an individual right, and there the Supreme Court said that was self executing and a citizen could enforce it without any type of legislative implementation."
As always, please let me have your comments on this important topic, thanks ...

Liberty vs Due Process

2009-05-15T13:58:00.000-06:00

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 …

Equal Access

2009-05-14T09:03:00.002-06:00

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 Amendment – due 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 ...

Montana’s (new) public defender system

2009-05-12T12:31:00.001-06:00

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

2009-05-12T12:27:00.000-06:00

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

2009-05-12T12:13:00.000-06:00

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?