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
Showing posts with label administering justice. Show all posts
Showing posts with label administering justice. Show all posts
Friday, October 8, 2010
Friday, May 14, 2010
United We Stand ....
"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
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
Friday, April 2, 2010
The Canary in the Coal Mine of the Montana Court System
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 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
Friday, February 19, 2010
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
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
Wednesday, February 3, 2010
The MT Public Defenders and Montana's LESS than poor legal representation.
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
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
Thursday, November 12, 2009
In Honor of Veterans Day
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
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
Tuesday, November 10, 2009
The Rule of Law or the The Rule of Arbitrary Governance?
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
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
Thursday, October 15, 2009
THE MONTANA CONSTITUTIONAL OATH OF OFFICE REVISITED
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
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
Wednesday, September 30, 2009
Montana and the loss of integrity in our Judicial System
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
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
Monday, July 13, 2009
Sworn Oath of Office: Politics, Words or Duty?
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
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
Tuesday, June 16, 2009
Administering Right and Justice without sale, denial or dely.
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!
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!
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