Friday, October 8, 2010

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

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

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