Dateline Missoula March 3, 2010.
A street kid, Jacob Wilson, Age 20, currently attending the University of Montana for Sociology was out and about the bars on Higgins Street Monday evening, and came upon 3 big University sports players surrounding and harassing a smaller weaker guy. Being the good samaritan type, he immediately interposed himself in the intense situation and proceeded to talk to them for 45 minutes until 5 police arrived.
One of the policemen took him aside and badgered him with threatening body and voice behaviors. The kid was really scared. The policeman wanted to find out if this kid knew the identities of the participants of the situation, but the kid didn't. Then, the policeman switched tactics and because they were outside a bar, demanded that the kid take a "breathalyzer test." When the kid "no", because he hadn't had antyhing to drink, the policeman said that it was to bad "the city hadn't given him the power to write the kid a $300 ticket for refusing." But, he brightened, I can give you a ticket for Minor in Possession (M.I.P.), instead. So he gave the kid the ticket. The kid had nothing in his possession and was taken before a City Judge, where he pleaded "not guilty with Jury Trial." The judge released him on his own recognizance.
I talked to the kid yesterday and he was very upset and didn't know what he was going to do. The criminal M.I.P. offense carries a fine but no jail time, so he is S.O.L. getting a state public defender. I suggested he go to legal aid and ask for their help. I will try to keep you informed as his "case" progresses.
Dateline March 22, 2010...
The City of Missoula will take up legislation on this date to Consider an ordinance amending Missoula Municipal Code Title 10, entitled
"Vehicles and Traffic," by adding Chapter 56 entitled "Refusal to submit to alcohol
and/or drug tests" and enacting sections 10.56.010 through 10.56.030.
Passing this ordinance will allow City police to give a $300 ticket to "anyone" refusing alcohol and/or drug tests demanded by the police. This ordinance will violate Our Right to Privacy (Art. ll - Section Sec. 10, MT Const.); Our Individual Dignity (Art. ll - Section Sec. 4, MT Const.); Our Individual Dignity (Art. ll - Section Sec. 4, MT Const.); as well as other Rights Unemnumerated (Art. ll - Section Sec. 34, MT Const.).
So why is the Missoula City Council doing this instead of exploring programs to help their constituents with alcohol dependency? Alcohol is a Drug — the most commonly used and widely abused psychoactive drug in the world. It is completely legal and easily and readily available and alcohol is a disease — a chronic, progressive, fatal disease if not treated. And, Every year, more money is spent promoting the use of alcohol than any other product. So why isn't Our City Council doing more to combat the effects of alcoholism?
One answer is to look at ALL the revenue that various levels of government receive from the sale and promotion of alcohol and related products. Now, go ahead and ask yourself and ask your City Councilors, what will this new $300 ticket do to combat alcoholism? If the City Council is so concerned, why don't they just ban the sale and/or consumption of alcohol in the City? It is a Dangerous Drug after all.
As always, Think about it and I’d like to encourage your comments about this important topic. Please feel free to ask your City Councilor, County Commissioner for their stand on this important issue.
Rick Gold
Missoula, MT
Showing posts with label due process. Show all posts
Showing posts with label due process. Show all posts
Wednesday, March 3, 2010
Tuesday, August 18, 2009
Missoula, MT, Criminalizing Homelessness, Profiling & Discrimination
Last Monday evening, the Missoula City Council, after much debate and heat about the so-called problem of "aggressive panhandling" and the denial about Criminalizing Homelessness, the Council passed the new ordinance 7-4 that "prohibits begging in an "aggressive manner," such as touching a person without asking, following someone being solicited and using violence. It prohibits telling lies to get money, and it also bans soliciting in some public places, such as near ATMs and within six feet of an entrance to a building."
This new ordinance provides for a $100 fine for any of this grab bag of infractions.
However, one real and tangible issue was voiced by Councilman Dick Haines. "Councilman Dick Haines, though, said one thing plenty of people are afraid to express aloud. The complaints aren't only about the aggression, but they're about the kind of people who are asking for money downtown. He said some shop owners tell him their customers don't want to visit because of the street people - and those customers vote with their feet and stay away from downtown stores. We've got enough vacancies on Main Street and Broadway, and we don't need any more, said Haines, who voted for the ordinance." from Keila Szpaller of the Missoulian Tuesday 8-18-09. http://missoulian.com/news/local/article_045468d8-8baf-11de-9a86-001cc4c002e0.html
Also note, that the Missoula City Council is currently working on an ordinance to ban homeless people sleeping on the streets.
The real issues then are about discrimination and criminalizing homelessness, downtown! Because, let's face it, there are a lot of "homeless" people who hang, downtown. Through a lot of hard work and effort, Missoulans have made it a very nice destination to be.
And, unfortunately, the homeless don't fit within the new and improved Downtown Master Plan, which developers envision and highlights high rise office/apartment/retail and condo complexes.
So how will they accomplish removing this homeless "undesirable element" from Missoula?
Well, let's start with profiling. Long about the time that the Missoula Downtown Association, broke off into the Downtown Business Improvement District and started working on its new Downtown Master Plan, certain changes started happening downtown. The City Council started adopting rules and ordinances, that restricted business people downtown, including hiring "ambassadors" downtown rule-givers and extra police patrols to help secure downtown from the undesirable. Next, they started profiling (mandatory back ground checks) business people who came in for a "business" license. It seems they only want the Right kind of people doing business in Missoula. Then, they started profiling street people and introducing ordinances to deal with the "problem" of these "street peoples' " behaviors on the Downtown streets. Of course, nobody on the City Council spoke to how many rules or ordinances are already on the books to deal with these unacceptable behaviors. Not one. No one spoke to how many other more serious issues were not being dealt with by the police. And besides, if they had to actually arrest, an "aggressive" person, then he would have a "Right" to an attorney (due process, it's in the Constitution) to defend himself, and that would take up a judges time and clog up the courts!
And, get this ... now, all a cop has to do to "profile" a person, is to go up and say, I got a complaint that you were being aggressive .... You were being aggressive weren't you? No, well here's a $100 ticket for aggressive panhandling and another for lying about it! Or how about, are you still lying about how you spend your panhandling funds? No? Then you are still lying to me! Here's a $100 ticket for lying! Or how about, the musician who having opened his guitar case to take out and play on the street, is approached by the police and given a $100 ticket, because he is 7.95 feet from an ATM, storefront ect. and obviously he is soliciting funds....
And this is where profiling comes in. If an officer just "stops" and "reports" a "homeless person," then, it goes on their "record." No due process, no trial, you just owe $100. Clean!
No muss, no fuss. Who cares if our City Councilors have sold one more little piece of Montana's Constitution down the river? Who cares if our City Councilors are discriminating against these undesirables? After all, aren't our brave City Councilors doing something about the problem?
Thank god, that our elected and hired representatives have sworn an Oath to support, protect and defend the Constitution of Montana. It a tough job, but someones got to do it!
As always, Think about it and I'd like to encourage your comments about this important topic. Please feel free to ask your City Councilor or Your City Attorney or Your City Employee (this could also apply to County or State) ...
Rick Gold
Missoula, MT
This new ordinance provides for a $100 fine for any of this grab bag of infractions.
However, one real and tangible issue was voiced by Councilman Dick Haines. "Councilman Dick Haines, though, said one thing plenty of people are afraid to express aloud. The complaints aren't only about the aggression, but they're about the kind of people who are asking for money downtown. He said some shop owners tell him their customers don't want to visit because of the street people - and those customers vote with their feet and stay away from downtown stores. We've got enough vacancies on Main Street and Broadway, and we don't need any more, said Haines, who voted for the ordinance." from Keila Szpaller of the Missoulian Tuesday 8-18-09. http://missoulian.com/news/local/article_045468d8-8baf-11de-9a86-001cc4c002e0.html
Also note, that the Missoula City Council is currently working on an ordinance to ban homeless people sleeping on the streets.
The real issues then are about discrimination and criminalizing homelessness, downtown! Because, let's face it, there are a lot of "homeless" people who hang, downtown. Through a lot of hard work and effort, Missoulans have made it a very nice destination to be.
And, unfortunately, the homeless don't fit within the new and improved Downtown Master Plan, which developers envision and highlights high rise office/apartment/retail and condo complexes.
So how will they accomplish removing this homeless "undesirable element" from Missoula?
Well, let's start with profiling. Long about the time that the Missoula Downtown Association, broke off into the Downtown Business Improvement District and started working on its new Downtown Master Plan, certain changes started happening downtown. The City Council started adopting rules and ordinances, that restricted business people downtown, including hiring "ambassadors" downtown rule-givers and extra police patrols to help secure downtown from the undesirable. Next, they started profiling (mandatory back ground checks) business people who came in for a "business" license. It seems they only want the Right kind of people doing business in Missoula. Then, they started profiling street people and introducing ordinances to deal with the "problem" of these "street peoples' " behaviors on the Downtown streets. Of course, nobody on the City Council spoke to how many rules or ordinances are already on the books to deal with these unacceptable behaviors. Not one. No one spoke to how many other more serious issues were not being dealt with by the police. And besides, if they had to actually arrest, an "aggressive" person, then he would have a "Right" to an attorney (due process, it's in the Constitution) to defend himself, and that would take up a judges time and clog up the courts!
And, get this ... now, all a cop has to do to "profile" a person, is to go up and say, I got a complaint that you were being aggressive .... You were being aggressive weren't you? No, well here's a $100 ticket for aggressive panhandling and another for lying about it! Or how about, are you still lying about how you spend your panhandling funds? No? Then you are still lying to me! Here's a $100 ticket for lying! Or how about, the musician who having opened his guitar case to take out and play on the street, is approached by the police and given a $100 ticket, because he is 7.95 feet from an ATM, storefront ect. and obviously he is soliciting funds....
And this is where profiling comes in. If an officer just "stops" and "reports" a "homeless person," then, it goes on their "record." No due process, no trial, you just owe $100. Clean!
No muss, no fuss. Who cares if our City Councilors have sold one more little piece of Montana's Constitution down the river? Who cares if our City Councilors are discriminating against these undesirables? After all, aren't our brave City Councilors doing something about the problem?
Thank god, that our elected and hired representatives have sworn an Oath to support, protect and defend the Constitution of Montana. It a tough job, but someones got to do it!
As always, Think about it and I'd like to encourage your comments about this important topic. Please feel free to ask your City Councilor or Your City Attorney or Your City Employee (this could also apply to County or State) ...
Rick Gold
Missoula, MT
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!
Monday, June 8, 2009
Defending our lives, civil liberties & civil rights in Montana and beyond.
In Montana and the United States, in 2009 we are faced with crisis and denial of conscience. What exactly does defending our lives and liberties mean? How do we as human beings and citizens, re-invigorate the principles, rights and responsibilities entrusted to our care and defense in our Constitutions. Why are so much of Montana's and U.S. resources tied up in criminal defense alone. (ex. Google: public defender) Why?
Under The Montana Public Defender Act, the Office of the State Public Defender was formed. "The mission of the Office of the State Public Defender is to ensure equal access to justice for the State's indigent and to provide appellate representation to indigent clients." Note that while the State Public Defender Office mission does NOT specifically exclude Civil causes by their established definition, Public Defenders are mearly "attorneys appointed by a court or employed by the government to represent indigent defendants in criminal actions." Who limited or limits Public Defenders to criminal cases only? Why?
Surely, this is NOT what our founding fathers (and mothers) had in mind when they entreated each and every one of us to defend our lives and civil liberties. And exactly, how do indigent people go about defending their lives and civil liberties against all forms of encroachment by our Montana and U.S. government if they have NO access to a skilled Civil attorney (see equal access, due process and poverty below)? Again why?
The main remedy in Montana provided for the defense of our Civil Liberties is in a Court of Justice. In Montana's Constitution, Article ll - Section 16. The administration of justice. Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character… Right and justice shall be administered without sale, denial, or delay.
Think about it ....
As always, please let me have your comments on this important topic, thanks ...
Under The Montana Public Defender Act, the Office of the State Public Defender was formed. "The mission of the Office of the State Public Defender is to ensure equal access to justice for the State's indigent and to provide appellate representation to indigent clients." Note that while the State Public Defender Office mission does NOT specifically exclude Civil causes by their established definition, Public Defenders are mearly "attorneys appointed by a court or employed by the government to represent indigent defendants in criminal actions." Who limited or limits Public Defenders to criminal cases only? Why?
Surely, this is NOT what our founding fathers (and mothers) had in mind when they entreated each and every one of us to defend our lives and civil liberties. And exactly, how do indigent people go about defending their lives and civil liberties against all forms of encroachment by our Montana and U.S. government if they have NO access to a skilled Civil attorney (see equal access, due process and poverty below)? Again why?
The main remedy in Montana provided for the defense of our Civil Liberties is in a Court of Justice. In Montana's Constitution, Article ll - Section 16. The administration of justice. Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character… Right and justice shall be administered without sale, denial, or delay.
Think about it ....
As always, please let me have your comments on this important topic, thanks ...
Friday, May 22, 2009
Unbiased, Unprejudiced Individual Dignity
The Montana Constitution's Section 4. Individual Dignity. "The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas."
Thus, in framing this section representatives to Montana's 1972 Constitutional Convention recognized that these prohibitions would and should be self-executing . So what exactly was this "Individual Dignity" that our representatives were envisioning for Montana's future? Why is it so important for Montanan's to create and maintain an Unbiased, Unprejudiced Individual Dignity for all of US?
From the Universal Declaration of Human Rights of the United Nations - " Whereas: recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world ... Therefore: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood...All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination."
"Dignity does not come in possessing honors, but in deserving them." Aristotle (384-322 BC) Greek philosopher
"A society that does not recognize that each individual has values of his own which he is entitled to follow can have no respect for the dignity of the individual and cannot really know freedom." Fredrich August von Hayek (1899-1992), Nobel Laureate of Economic Sciences 1974
"No government is respectable which is not just. Without unspotted purity of public faith, without sacred public principle, fidelity, and honor, no machinery of laws, can give dignity to political society."Daniel Webster (1782-1852), US Senator
"The constitutional right of free expression… is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced in the hands of each of us, in the hope that the use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political systems rests." John Marshall Harlan (1899-1971) U. S. Supreme Court Justice
"A society that does not recognize that each individual has values of his own which he is entitled to follow can have no respect for the dignity of the individual and cannot really know freedom." Fredrich August von Hayek (1899-1992), Nobel Laureate of Economic Sciences 1974
As always, please let me have your comments on this important topic, thanks ...
Thus, in framing this section representatives to Montana's 1972 Constitutional Convention recognized that these prohibitions would and should be self-executing . So what exactly was this "Individual Dignity" that our representatives were envisioning for Montana's future? Why is it so important for Montanan's to create and maintain an Unbiased, Unprejudiced Individual Dignity for all of US?
From the Universal Declaration of Human Rights of the United Nations - " Whereas: recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world ... Therefore: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood...All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination."
"Dignity does not come in possessing honors, but in deserving them." Aristotle (384-322 BC) Greek philosopher
"A society that does not recognize that each individual has values of his own which he is entitled to follow can have no respect for the dignity of the individual and cannot really know freedom." Fredrich August von Hayek (1899-1992), Nobel Laureate of Economic Sciences 1974
"No government is respectable which is not just. Without unspotted purity of public faith, without sacred public principle, fidelity, and honor, no machinery of laws, can give dignity to political society."Daniel Webster (1782-1852), US Senator
"The constitutional right of free expression… is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced in the hands of each of us, in the hope that the use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political systems rests." John Marshall Harlan (1899-1971) U. S. Supreme Court Justice
"A society that does not recognize that each individual has values of his own which he is entitled to follow can have no respect for the dignity of the individual and cannot really know freedom." Fredrich August von Hayek (1899-1992), Nobel Laureate of Economic Sciences 1974
As always, please let me have your comments on this important topic, thanks ...
Tuesday, May 19, 2009
poverty vs. indigence in Montana's Public Defender System
In Montana, are the 14.1% statewide poor people (in poverty)? Or are we really, really destitute (indigent)? Because if we are really, really destitute (indigent) then we may be entitled under the new Public Defender Act to equal access to justice and an attorney to boot! A Montanan can NOT simply be in poverty or poor or at a place that they can not afford a $150/hr attorney when the average Montanan's wage is $6.90/hr. No! They must be indigent! Because, "The mission of the Office of the State Public Defender is to ensure equal access to justice for the State's indigent and to provide appellate representation to indigent clients (ONLY!). (http://publicdefender.mt.gov/)
Merriam-Webster's Online Dictionary Defines indigence as: "a level of poverty in which real hardship and deprivation are suffered and comforts of life are wholly lacking." And again, Merriam-Webster's Online Dictionary defines poverty as:"the state of one who lacks a usual or socially acceptable amount of money or material possessions."
So, what does it take to be in real poverty in Montana. In 2009, the U.S. Dept of Human Services says that a person is in realitive poverty if that person makes $10,830 or less per year. See http://aspe.hhs.gov/poverty/09poverty.shtml
While the Small Area Income & Poverty Estimates (SAIPE) for 2007 of the U.S. Census Bureau (http://www.census.gov/) - States: The number of all ages in poverty was 131,433 or 14.1% of Montana's overall population. And for Missoula County, the Missoula City-County Health Department and the Healthy Start Council Sept 3, 2008 Missoulian News: "Seventeen percent of all Montana children age 18 and under live in poverty. However, 38 percent of Native American children 18 and under live in poverty in our state. Yet, Native Americans are only 6 percent of our total population. Sixteen percent of children in Missoula County 18 and under live in poverty. Missoula County ranks 20th in the state, which means 36 counties have even more children living in poverty. The lowest rate is 9 percent in Stillwater County and the highest is 33 percent in Roosevelt County. The number of children in extreme poverty - those living at 50 percent of the federal poverty level - is increasing and has reached a statewide level of 8 percent."
So, what does it take in Montana to be labeled indigent? The U.S. Dept of Human Services or the Census Bureau or the U.S. Government have no relative indicators or charts for indigents. Only from the Montana State Code Section 47-1-104(3) of The Public Defender Act, do we get: "An applicant is indigent if: (a) the applicant's gross household income, as defined in 15-30-171, is at or less than 133% of the poverty level set according to the most current federal poverty guidelines updated periodically in the federal register by the United States department of health and human services under the authority of 42 U.S.C. 9902(2); or (b) the disposable income and assets of the applicant and the members of the applicant's household are insufficient to retain competent private counsel without substantial hardship to the applicant or the members of the applicant's household."
Ask yourself, why would Montana's Legislature and Governor choose to use indigent in the Montana Public Defender Act? Will this discrimination provide more poor Montanans with equal access to our Courts or justice? And exactly what percentage of the 14.1% of those stricken by real poverty will the Court or the Public Defender label indigent and actually try to help? Where have the integrity and the dignity in our Legislature & Governor & Courts gone? Really, what social condition is more acute in 2009 than realitive or real poverty?
Remember, the Montana Constitution's Section 4. Individual dignity. "The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas."
In the 1972 Montana Constitutional Convention, Delegate Mrs. Mansfield had these comments regarding Section 4 of the Montana Bill of Rights. "The committee unanimously adopted this section with the intent of providing a constitutional impetus for the eradication of public and private discrimination based on race, color, sex, culture, social origin or condition, or political or religious ideas. The provision, quite similar to that of the Puerto Rico declaration of rights, is aimed at prohibiting private as well as public discrimination in civil and political rights....Social origin or condition was included to cover discriminations based on status of income and standard of living."
And also the comment from Delegate Mr. Dahood, "The intent of Section 4 is simply to provide that every individual in the State of Montana, as a citizen of this state, may pursue his inalienable rights without having any shadows cast upon his dignity through unwarranted discrimination...(C)onstitutions are based on the premise that they are presumed to be self-executing, particularly within the Bill of Rights. If the language appears to be prohibitory and mandatory, as this particular section is intended to be, then in that event, the courts in interpreting the particular section are bound by that particular presumption and they must assume, in that situation, that it is self-executing. There was a case in Montana some 60 years ago that involved a provision of our Bill of Rights that had to do with an individual right, and there the Supreme Court said that was self executing and a citizen could enforce it without any type of legislative implementation."
As always, please let me have your comments on this important topic, thanks ...
Merriam-Webster's Online Dictionary Defines indigence as: "a level of poverty in which real hardship and deprivation are suffered and comforts of life are wholly lacking." And again, Merriam-Webster's Online Dictionary defines poverty as:"the state of one who lacks a usual or socially acceptable amount of money or material possessions."
So, what does it take to be in real poverty in Montana. In 2009, the U.S. Dept of Human Services says that a person is in realitive poverty if that person makes $10,830 or less per year. See http://aspe.hhs.gov/poverty/09poverty.shtml
While the Small Area Income & Poverty Estimates (SAIPE) for 2007 of the U.S. Census Bureau (http://www.census.gov/) - States: The number of all ages in poverty was 131,433 or 14.1% of Montana's overall population. And for Missoula County, the Missoula City-County Health Department and the Healthy Start Council Sept 3, 2008 Missoulian News: "Seventeen percent of all Montana children age 18 and under live in poverty. However, 38 percent of Native American children 18 and under live in poverty in our state. Yet, Native Americans are only 6 percent of our total population. Sixteen percent of children in Missoula County 18 and under live in poverty. Missoula County ranks 20th in the state, which means 36 counties have even more children living in poverty. The lowest rate is 9 percent in Stillwater County and the highest is 33 percent in Roosevelt County. The number of children in extreme poverty - those living at 50 percent of the federal poverty level - is increasing and has reached a statewide level of 8 percent."
So, what does it take in Montana to be labeled indigent? The U.S. Dept of Human Services or the Census Bureau or the U.S. Government have no relative indicators or charts for indigents. Only from the Montana State Code Section 47-1-104(3) of The Public Defender Act, do we get: "An applicant is indigent if: (a) the applicant's gross household income, as defined in 15-30-171, is at or less than 133% of the poverty level set according to the most current federal poverty guidelines updated periodically in the federal register by the United States department of health and human services under the authority of 42 U.S.C. 9902(2); or (b) the disposable income and assets of the applicant and the members of the applicant's household are insufficient to retain competent private counsel without substantial hardship to the applicant or the members of the applicant's household."
Ask yourself, why would Montana's Legislature and Governor choose to use indigent in the Montana Public Defender Act? Will this discrimination provide more poor Montanans with equal access to our Courts or justice? And exactly what percentage of the 14.1% of those stricken by real poverty will the Court or the Public Defender label indigent and actually try to help? Where have the integrity and the dignity in our Legislature & Governor & Courts gone? Really, what social condition is more acute in 2009 than realitive or real poverty?
Remember, the Montana Constitution's Section 4. Individual dignity. "The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas."
In the 1972 Montana Constitutional Convention, Delegate Mrs. Mansfield had these comments regarding Section 4 of the Montana Bill of Rights. "The committee unanimously adopted this section with the intent of providing a constitutional impetus for the eradication of public and private discrimination based on race, color, sex, culture, social origin or condition, or political or religious ideas. The provision, quite similar to that of the Puerto Rico declaration of rights, is aimed at prohibiting private as well as public discrimination in civil and political rights....Social origin or condition was included to cover discriminations based on status of income and standard of living."
And also the comment from Delegate Mr. Dahood, "The intent of Section 4 is simply to provide that every individual in the State of Montana, as a citizen of this state, may pursue his inalienable rights without having any shadows cast upon his dignity through unwarranted discrimination...(C)onstitutions are based on the premise that they are presumed to be self-executing, particularly within the Bill of Rights. If the language appears to be prohibitory and mandatory, as this particular section is intended to be, then in that event, the courts in interpreting the particular section are bound by that particular presumption and they must assume, in that situation, that it is self-executing. There was a case in Montana some 60 years ago that involved a provision of our Bill of Rights that had to do with an individual right, and there the Supreme Court said that was self executing and a citizen could enforce it without any type of legislative implementation."
As always, please let me have your comments on this important topic, thanks ...
Friday, May 15, 2009
Liberty vs Due Process
Today, Webster’s OnLine Dictionary offers several primary definitions for liberty: “the quality or state of being free: a: the power to do as one pleases b: freedom from physical restraint c: freedom from arbitrary or despotic control d: the positive enjoyment of various social, political, or economic rights and privileges e: the power of choice.”
However, on March 23, 1775, when Patrick Henry issued the famous line, “Give me liberty or give me death!” from a speech he gave to the Virginia Convention, liberty was for him…(F)or my own part, I consider it as nothing less than a question of freedom or slavery; and in proportion to the magnitude of the subject ought to be the freedom of the debate.”
In our U.S. and State Constitutions, and in the Declaration of Independence, we see liberty described as the powers of a sovereign people to create and participate in a government of their making … “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed…” Which was extended to the States in 1868 in the 14th Amendment to the US Constitution: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” And again in the 5th, 9th & 10th Amendments to the US Constitution (read “Equal Access” for this discussion.) And the concept of liberty is also included in Montana’s Constitution. In the Preamble: “We the people of Montana grateful to God for the quiet beauty of our state, the grandeur of our mountains, the vastness of our rolling plains, and desiring to improve the quality of life, equality of opportunity and to secure the blessings of liberty for this and future generations do ordain and establish this constitution.” And throughout Montana’s Constitution.
The concept of Due Process and Due Process of Law on the other hand which has been around since the Magna Carta in 1215 and is a course of legal proceedings according to rules and principles that have been established in a system of jurisprudence for the enforcement and protection of private legal rights. In each case, due process contemplates an exercise of the powers of government as the law permits and sanctions, under recognized safeguards for the protection of individual rights. It is the principle that the government must respect all of the legal rights that are owed to a person according to the law of the land. As developed through a large body of case law in the U.S., this principle gives individuals a varying ability to enforce their rights against alleged violations by governments and their agents (that is, state actors), but normally not against other private citizens. Due process has also been frequently interpreted as placing limitations on laws and legal proceedings, in order for judges instead of legislators to define and guarantee fundamental fairness, justice, and liberty. This interpretation has often proven controversial, and is analogous to the concepts of natural justice, and procedural justice used in various other jurisdictions.
As always, Please let me have your comments on this important topic, thanks …
However, on March 23, 1775, when Patrick Henry issued the famous line, “Give me liberty or give me death!” from a speech he gave to the Virginia Convention, liberty was for him…(F)or my own part, I consider it as nothing less than a question of freedom or slavery; and in proportion to the magnitude of the subject ought to be the freedom of the debate.”
In our U.S. and State Constitutions, and in the Declaration of Independence, we see liberty described as the powers of a sovereign people to create and participate in a government of their making … “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed…” Which was extended to the States in 1868 in the 14th Amendment to the US Constitution: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” And again in the 5th, 9th & 10th Amendments to the US Constitution (read “Equal Access” for this discussion.) And the concept of liberty is also included in Montana’s Constitution. In the Preamble: “We the people of Montana grateful to God for the quiet beauty of our state, the grandeur of our mountains, the vastness of our rolling plains, and desiring to improve the quality of life, equality of opportunity and to secure the blessings of liberty for this and future generations do ordain and establish this constitution.” And throughout Montana’s Constitution.
The concept of Due Process and Due Process of Law on the other hand which has been around since the Magna Carta in 1215 and is a course of legal proceedings according to rules and principles that have been established in a system of jurisprudence for the enforcement and protection of private legal rights. In each case, due process contemplates an exercise of the powers of government as the law permits and sanctions, under recognized safeguards for the protection of individual rights. It is the principle that the government must respect all of the legal rights that are owed to a person according to the law of the land. As developed through a large body of case law in the U.S., this principle gives individuals a varying ability to enforce their rights against alleged violations by governments and their agents (that is, state actors), but normally not against other private citizens. Due process has also been frequently interpreted as placing limitations on laws and legal proceedings, in order for judges instead of legislators to define and guarantee fundamental fairness, justice, and liberty. This interpretation has often proven controversial, and is analogous to the concepts of natural justice, and procedural justice used in various other jurisdictions.
As always, Please let me have your comments on this important topic, thanks …
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