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

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

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