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
Showing posts with label law. Show all posts
Showing posts with label law. Show all posts
Tuesday, November 10, 2009
Wednesday, July 29, 2009
Security vs Liberty in Missoula, MT USA
Benjamin Franklin once stated that "Any society that would give up a little liberty to gain a little security will deserve neither and lose both. " And so it seems in the latest ongoing debate in Missoula, Montana about "limiting aggressive panhandling" downtown. See http://missoulian.com/articles/2009/07/29/news/local/news04.txt
One might well ask, well aren't their already laws on the books that deal with aggressive behaviors? And the of course, why aren't they being enforced? Why is it that the police have a need to add another $100 ticket to their arsenal in order to do something constructive about aggressive and intimidating behaviors of panhandlers? Why doesn't Missoula's City Council just bite the bullet and ban "panhandlers" altogether from our beautiful downtown? Out of sight, out of mind? Or is it that the City can NOT ban panhandlers, for fear of upsetting their firemen, who every so often set up on Madison St. bridge, aggresively intimidating drivers to "give?"
Of Course, the real problems of and with the "homeless" both here and all across America are economic, social and addiction related. Maybe, instead of exacerbating the situation further, the City Council and the police should instead spend a week on the streets, and get a whole new perspective on the "problem." You know, walk a mile in their shoes. They are humans after all.
Just like you and me.
And in Montana, they, like everyone else, have what Montana's Constitution calls inalienable rights - Article ll - Section 3. "They include the right to a clean and healthful environment and the rights of pursuing life's basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways."
Before City Councilors, the Mayor or the Police assume office, (including their "Rules of Professional Conduct") they must swear the following oath of office: “I do solemnly swear (or affirm) that I will support, protect and defend the constitution of the United States, and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God).”
And finally, you and I and every other taxpayer is being asked to "pay" for our City Council and additional police to deal with yet "another" problem. And what of all the other "problems" we Missoulians are already "paying" for? Why do we still have murders, rapes, assaults, burglaries, theft, auto-theft, arson, fights etc in Missoula, MT at all? Why?
So maybe, the real issue is this: Missoulians giving up more of our essential liberties on the pretext that our police don't have enough laws at their disposal to deal with aggressive and/or intimidating behaviors, downtown (only during the summer, of course).
Well, in Missoula, we simply call this situation mere political bull pucky playing ....
So, once again, Benjamin Franklin stated that "Any fool can criticize, condemn and complain and most fools do."
So exactly, who are the fools who are complaining about not having the means to deal with "aggressive panhandling downtown" and "homeless" people sleeping downtown?
Well, read the new "proposed" ordinance addressing solicitation and intimidating panhandling. and, also, Could these proposed rules interfere with Missoulians free speech rights?
http://www.speakupmissoula.com/topic/200/Could_the_proposed_panhandling_rule_interfere_with_free_speech_rights
As always, I'd like to encourage your comments about this important topic.
thanks,
Rick Gold
Missoula, MT
One might well ask, well aren't their already laws on the books that deal with aggressive behaviors? And the of course, why aren't they being enforced? Why is it that the police have a need to add another $100 ticket to their arsenal in order to do something constructive about aggressive and intimidating behaviors of panhandlers? Why doesn't Missoula's City Council just bite the bullet and ban "panhandlers" altogether from our beautiful downtown? Out of sight, out of mind? Or is it that the City can NOT ban panhandlers, for fear of upsetting their firemen, who every so often set up on Madison St. bridge, aggresively intimidating drivers to "give?"
Of Course, the real problems of and with the "homeless" both here and all across America are economic, social and addiction related. Maybe, instead of exacerbating the situation further, the City Council and the police should instead spend a week on the streets, and get a whole new perspective on the "problem." You know, walk a mile in their shoes. They are humans after all.
Just like you and me.
And in Montana, they, like everyone else, have what Montana's Constitution calls inalienable rights - Article ll - Section 3. "They include the right to a clean and healthful environment and the rights of pursuing life's basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways."
Before City Councilors, the Mayor or the Police assume office, (including their "Rules of Professional Conduct") they must swear the following oath of office: “I do solemnly swear (or affirm) that I will support, protect and defend the constitution of the United States, and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God).”
And finally, you and I and every other taxpayer is being asked to "pay" for our City Council and additional police to deal with yet "another" problem. And what of all the other "problems" we Missoulians are already "paying" for? Why do we still have murders, rapes, assaults, burglaries, theft, auto-theft, arson, fights etc in Missoula, MT at all? Why?
So maybe, the real issue is this: Missoulians giving up more of our essential liberties on the pretext that our police don't have enough laws at their disposal to deal with aggressive and/or intimidating behaviors, downtown (only during the summer, of course).
Well, in Missoula, we simply call this situation mere political bull pucky playing ....
So, once again, Benjamin Franklin stated that "Any fool can criticize, condemn and complain and most fools do."
So exactly, who are the fools who are complaining about not having the means to deal with "aggressive panhandling downtown" and "homeless" people sleeping downtown?
Well, read the new "proposed" ordinance addressing solicitation and intimidating panhandling. and, also, Could these proposed rules interfere with Missoulians free speech rights?
http://www.speakupmissoula.com/topic/200/Could_the_proposed_panhandling_rule_interfere_with_free_speech_rights
As always, I'd like to encourage your comments about this important topic.
thanks,
Rick Gold
Missoula, MT
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, July 7, 2009
Why are County Sheriffs becoming our Constitutions Last Hope?
According to Richard Mack (http://www.sheriffmack.com/) a former two-term sheriff in Graham County, Ariz, who in his new book, “The County Sheriff, America's Last Hope” spells out why he believes sheriffs are the last line of defense for the constitutional rights of U.S. citizens.
“All law enforcement officers, from the FBI down to the local meter maid, derive their powers from the people,” Mack writes on his website, “but the only law enforcement officers in the land who answer directly to the people are county sheriffs.” Mack writes, “the Constitution gives the federal government the authority to police exactly four areas: treason, piracy, treaty violations and counterfeiting. The other 5,000 they've stolen and usurped from state and local authorities.” “The very people who have promised us they will protect and defend the Constitution are the ones who are destroying it.” In his 49-page book, Mack quotes Founding Fathers who warned that a centralized power in government would lead to one, in Thomas Jefferson's words, “as venal and oppressive as the government from which we separated.” http://missoulian.com/articles/2009/07/07/news/local/news02.txt
“On his website (http://www.sheriffmack.com/) you'll find many articles and extracts from books he's written on many subjects related to maintaining our freedom as a people. He is deeply committed to the belief that government should exist to protect the freedoms of the individuals whom it serves. We must return to those principles that our country was founded upon! The founders of our nation were afraid of one thing more than any other... government having too much power! Remember, they escaped from the tyranny of an oppressive and controlling government when they established this nation. They fought and died for it, and now we are letting these same freedoms they fought for slip away little by little, without a second thought.”
Mack also, lectures and gives seminars on constitutional issues relating to gun control, law enforcement, States' rights, the farce, otherwise known as the drug war, and the oath of office. He has also been a consultant for lawyers, and people in general helping them with cases of unlawful arrests and police misconduct. He has stood for “the little guy” against “big brother” government.
But what about all the other elected or appointed Judges, Lawyers, Congresspersons, Legislators, Governors, City and County politicians on each and every level of Government including police and sheriffs who also swear oaths of office, as in Montana, “I do solemnly swear (or affirm) that I will support, protect and defend the constitution of the United States, and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God).” Article III - Section 3, Montana Constitution
Mack writes in his new book, “The very people who have promised us they will protect and defend the Constitution are the ones who are destroying it.”
So what can we as Americans and Montanans do in the fight to regain our rights, while the price to pay is less than death. Are we committed to doing all we can peacefully to get our country back. In order to succeed, we must first make ourselves aware of the problem. We must educate ourselves, and then we can know what action to take. One of the best and easiest solutions is to depend on local officials, especially the sheriff, to stand against federal intervention and federal criminality. It's time for us to reaffirm our Constitution locally with our elected, appointed and hired officials. Please email, call or speak in person to them directly asking if they understand and uphold their oaths of office with fidelity.
As Governor Brian Schweitzer has said in his campaigns accross Montana - It's time to Take Back Our State, Montana," and reclaim our State Constitution, too.
Think about it ….As always, please let me have your comments on this important topic, thanks!
Rick Gold
Missoula, MT
“All law enforcement officers, from the FBI down to the local meter maid, derive their powers from the people,” Mack writes on his website, “but the only law enforcement officers in the land who answer directly to the people are county sheriffs.” Mack writes, “the Constitution gives the federal government the authority to police exactly four areas: treason, piracy, treaty violations and counterfeiting. The other 5,000 they've stolen and usurped from state and local authorities.” “The very people who have promised us they will protect and defend the Constitution are the ones who are destroying it.” In his 49-page book, Mack quotes Founding Fathers who warned that a centralized power in government would lead to one, in Thomas Jefferson's words, “as venal and oppressive as the government from which we separated.” http://missoulian.com/articles/2009/07/07/news/local/news02.txt
“On his website (http://www.sheriffmack.com/) you'll find many articles and extracts from books he's written on many subjects related to maintaining our freedom as a people. He is deeply committed to the belief that government should exist to protect the freedoms of the individuals whom it serves. We must return to those principles that our country was founded upon! The founders of our nation were afraid of one thing more than any other... government having too much power! Remember, they escaped from the tyranny of an oppressive and controlling government when they established this nation. They fought and died for it, and now we are letting these same freedoms they fought for slip away little by little, without a second thought.”
Mack also, lectures and gives seminars on constitutional issues relating to gun control, law enforcement, States' rights, the farce, otherwise known as the drug war, and the oath of office. He has also been a consultant for lawyers, and people in general helping them with cases of unlawful arrests and police misconduct. He has stood for “the little guy” against “big brother” government.
But what about all the other elected or appointed Judges, Lawyers, Congresspersons, Legislators, Governors, City and County politicians on each and every level of Government including police and sheriffs who also swear oaths of office, as in Montana, “I do solemnly swear (or affirm) that I will support, protect and defend the constitution of the United States, and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God).” Article III - Section 3, Montana Constitution
Mack writes in his new book, “The very people who have promised us they will protect and defend the Constitution are the ones who are destroying it.”
So what can we as Americans and Montanans do in the fight to regain our rights, while the price to pay is less than death. Are we committed to doing all we can peacefully to get our country back. In order to succeed, we must first make ourselves aware of the problem. We must educate ourselves, and then we can know what action to take. One of the best and easiest solutions is to depend on local officials, especially the sheriff, to stand against federal intervention and federal criminality. It's time for us to reaffirm our Constitution locally with our elected, appointed and hired officials. Please email, call or speak in person to them directly asking if they understand and uphold their oaths of office with fidelity.
As Governor Brian Schweitzer has said in his campaigns accross Montana - It's time to Take Back Our State, Montana," and reclaim our State Constitution, too.
Think about it ….As always, please let me have your comments on this important topic, thanks!
Rick Gold
Missoula, MT
Wednesday, May 27, 2009
Plumber, Mechanic, Surgeon or Lawyer
Would you take your car to a lawyer to have the engine rebuilt? No? Why not? Then, would you call an attorney to come to your house to fix your plumbing? No? Why not? Then, would you visit an attorney to operate on you or a loved one? No? Why not? Can a plumber or mechanic or surgeon be expected to perform in a Court of Law as well as a trained and qualified attorney? Who is better qualified to serve Justice than one who is trained and tested and a member of the State Bar? Then, why aren't attorney's available for ALL cases in Montana Courts (equal access) even if a person can't afford one (and currently that figure is at almost 30% of Montanans)? Who better to serve in Montana's closed Legal System then one who is qualified to act? Under the laws of the U.S. and the State of Montana, a person is required to be an attorney (a member of the State bar) for 5 years prior to becomming a Judge.
Therefore, a person must be an attorney and a member of the State Bar to participate in the Judiciary which is a distinct and separte branch of our government.
So, why are Montana's self-regulated Courts in denial about providing due process of law to the People of Montana in our Courts by offering the services of one our their own trained attorneys? Why are Montanan's being denied the equal protection of our laws by our Courts not offering the services of one of their trained attorneys? Why has Montana's Supreme Court ignored its Constitutional responsibility to the Administration of Justice - Right and justice shall be administered without sale, denial, or delay, by not requiring that right to an attorney to ensure that, no person shall be deprived of this full legal redress or remedy afforded for every injury of person, property, or character. Who better than an attorney to insure these Constitutional protections! (From Section 16 of the Montana Constitution 1972)
From the Montana Constitution:
ARTICLE III - GENERAL GOVERNMENT - Section 1. Separation of powers. The power of the government of this state is divided into three distinct branches--legislative, executive, and judicial. No person or persons charged with the exercise of power properly belonging to one branch shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.
Section 3. Oath of office. Members of the legislature and all executive, ministerial and judicial officers, shall take and subscribe the following oath or affirmation, before they enter upon the duties of their offices: "I do solemnly swear (or affirm) that I will support, protect and defend the constitution of the United States, and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God)." No other oath, declaration, or test shall be required as a qualification for any office or public trust.
ARTICLE VII - THE JUDICIARY- Section 9. Qualifications. (1) A citizen of the United States who has resided in the state two years immediately before taking office is eligible to the office of supreme court justice or district court judge if admitted to the practice of law in Montana for at least five years prior to the date of appointment or election. Qualifications and methods of selection of judges of other courts shall be provided by law.
From the Montana Code Annotated (2007) -3-5-202. Qualifications and residence (District Judge). (1) A person is not eligible for the office of judge of a district court unless the person is a citizen of the United States, has resided in the state 2 years immediately before taking office, and has been admitted to practice law in Montana for at least 5 years prior to the date of appointment or election.
As always, please let me have your comments on this important topic, thanks ...
Therefore, a person must be an attorney and a member of the State Bar to participate in the Judiciary which is a distinct and separte branch of our government.
So, why are Montana's self-regulated Courts in denial about providing due process of law to the People of Montana in our Courts by offering the services of one our their own trained attorneys? Why are Montanan's being denied the equal protection of our laws by our Courts not offering the services of one of their trained attorneys? Why has Montana's Supreme Court ignored its Constitutional responsibility to the Administration of Justice - Right and justice shall be administered without sale, denial, or delay, by not requiring that right to an attorney to ensure that, no person shall be deprived of this full legal redress or remedy afforded for every injury of person, property, or character. Who better than an attorney to insure these Constitutional protections! (From Section 16 of the Montana Constitution 1972)
From the Montana Constitution:
ARTICLE III - GENERAL GOVERNMENT - Section 1. Separation of powers. The power of the government of this state is divided into three distinct branches--legislative, executive, and judicial. No person or persons charged with the exercise of power properly belonging to one branch shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.
Section 3. Oath of office. Members of the legislature and all executive, ministerial and judicial officers, shall take and subscribe the following oath or affirmation, before they enter upon the duties of their offices: "I do solemnly swear (or affirm) that I will support, protect and defend the constitution of the United States, and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God)." No other oath, declaration, or test shall be required as a qualification for any office or public trust.
ARTICLE VII - THE JUDICIARY- Section 9. Qualifications. (1) A citizen of the United States who has resided in the state two years immediately before taking office is eligible to the office of supreme court justice or district court judge if admitted to the practice of law in Montana for at least five years prior to the date of appointment or election. Qualifications and methods of selection of judges of other courts shall be provided by law.
From the Montana Code Annotated (2007) -3-5-202. Qualifications and residence (District Judge). (1) A person is not eligible for the office of judge of a district court unless the person is a citizen of the United States, has resided in the state 2 years immediately before taking office, and has been admitted to practice law in Montana for at least 5 years prior to the date of appointment or election.
As always, please let me have your comments on this important topic, thanks ...
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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