The Right to Defend Property Rights or
The Canary in the Coal Mine of the Montana Court System
Being poor in Montana is no sin. Yet when Gold originally set out to prosecute the City and County of Missoula et al for taking his property and then not protecting it, he encountered that No Civil attorney in Missoula would assist him with his case. He then went to the Missoula Family Law Self-Help Center in the County building but they specialize in Pro Se family law. Next he went to the Montana Legal Services Association who wouldn’t help. He then contacted the Montana ACLU, who wouldn’t help. This was his personal experience which wasted 100’s of his hours, searching. Finally, he was forced to file his own Pro Se cause (and study and learn law himself) even though Montana’s Rules of Professional Conduct in PREAMBLE: A LAWYER'S RESPONSIBILITIES state:
“(7) As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.”
So Whose Responsibility is it to Defend the Fundamental Rights of ALL Montanans, including indigents? Certainly, The Montana Public Defender System is a start. All Lawyers Professional Responsibility is a start. The Montana Justices Professional Responsibility is a start. The Montana Court System is a start. The Montana ACLU is a start. The Montana Legal Services Association is a start. The Missoula Family Law Self-Help Center is a start. Taken ALL together, they are ONLY piecemeal parts of the answer to a system that doesn’t work in my cause. And, they are ONLY a start. My cause before you, is an indicator of how that start isn’t working. What it indicates is “the weakest link” in Defending the Fundamental Rights or Civil Liberties Guaranteed in Montana’s Constitution.
Of course, "Defense" attorneys will argue that ALL of these services are underfunded and overwhelmed by the ever increasing needy, and that Defending Our Fundamental Rights (Civil Liberties) takes a VERY back seat to Defending Montanans accused of crimes against the State. And the statistics clearly speak for themselves.
However, this argument is short sighted and completely ignores the most compelling sentence of Art. II § 3 of Montana’s Constitution. “In enjoying these Rights, ALL persons recognize corresponding responsibilities.” ALL people. All Lawyers. All Judges. All Legislators. All Governors. All Politicians. All Counties. All Cities and All Everyday Montanans. ALL persons. But, who monitors or champions or recognizes the importance of these Responsibilities, with an eye to the ever increasing number of poor people in Montana, who are 100 times more likely to have a fundamental rights issue with the state and who ultimately, may have a dire need of Counsel in protecting Every Montanans fundamental rights.
And make NO mistake. These Fundamental Rights are Civil Rights not Criminal. And, those Responsibilities were put there specifically to remind us ALL our "duty to defend" those inalienable rights and especially for those whose duty of care and oath of office make it imperative that they act to support, protect and defend Our Constitution and ALL our Rights.
If you want to keep up with this case and/or read these important briefs:
On the internet goto:
http://fnweb1.isd.doa.state.mt.us/idmws/custom/sll/SLL_FN_Home.htm
Click on: Supreme Court Case Number
Enter either ( DA 09-0675 ) in the box and click search; or Click on: Party search name and enter Gold;
Next click on Gold v. State and then click on
Appelant Brief first then the 2 other briefs and a new windows will pop up with pdfs which you can save and read.
As always, Think about this and I'd like to encourage your comments about this important topic. Feel free to follow this important Case.
Rick Gold
Missoula, MT
Showing posts with label poverty. Show all posts
Showing posts with label poverty. Show all posts
Friday, April 2, 2010
Friday, February 19, 2010
My Supreme Court case for representation of the poor in our MT Constitution
The four questions/issues I've introduced on appeal of my District Court Case (Gold v. State of Montana DV 09-320) are:
1) Did the District Court err in denying Plaintiff and Appellant's summary judgment motion while granting Defendant's summary judgment motion and while not addressing Plaintiff and Appellant's claims against the State of Montana?
2) Did the District Court err by not addressing in the final order, Plaintiff and Appellant's arguments regarding the Duty of Care of Montana Constitution' s demanding sworn oath of office upon Montana Legislators and the Governor in the performance of their duties of office and their greater duties to our Constitution,
especially in regards to discrimination?
3) Did the District Court err by not addressing in the final order, Plaintiff and Appellant's procedural arguments and objections, especially in regards to the Montana Constitution' s demanding oath of office and Montana Rules of Professional Conduct, in both his "summary judgment motion and brief' and in his "Combined Memorandum in Response to Defendant's Combined Memorandum in
Response to Plaintiffs Motion for Summary Judgment and Plaintiffs Response to Defendant's Cross Motion for Summary Judgment?"
4) Was Plaintiff and Appellant denied his Constitutional Right of the
Administration of Justice Article 11 - $16 and deprived of procedural due process and substantive due process of law guaranteed by the 14'~A mendment of the US.
Constitution and Article II. § 4 of the Montana Constitution by the 4th District Court in its final Order and Memorandum by not engaging in required constitutional analysis as well as offering no Findings of Fact or Conclusions of Law, specifically as to why Plaintiff should be denied his Constitutional claims against the State?
------------ --------- ----ARGUMENT- --------- --------- ------
I feel like Don Quixote tilting at Montana windmills. The political reality OF 2010 is that "indigent" individuals in Montana and the U.S. cannot expect or find legal Counsel for Civil complaints involving Guaranteed Fundamental Rights.
In Montana, this Catch-22 political reality is reflected in a Catch-as-catch- can, or less formally, Willy Nilly Public Defender System ("the Montana Public Defender Act $47 MCA"), defined and developed out of a necessity to defend individuals accused of crimes against the State. (Art. I1 - 5 24. Rights of the accused.
Montana Constitution) . However, in common law as well as enumerated law, defending individuals is only half of our "equal protection of the laws" (see Section 4. Individual dignity. Montana Constitution) , the other half is defending Our Montana Constitution and Our Fundamental Rights through Civil action. This political reality is exactly what Attorney Dahood argued about in his amicus brief
in Dorwart v. Caraway ,
". . .in order to avoid this result and in order to give Montana's constitutional guarantees teeth, the framers intended that the people retain the ability to protect their rights--both
enumerated and unenumerated- -through direct actions in the courts. This conclusion follows from the Committee's proposal of Article 11, Section 34 to the Convention delegates and the subsequent adoption of this provision. Article 11, Section 34 states: Unenumerated rights.
The enumeration in this constitution of certain rights shall not be construed to deny, impair, or disparage others retained by the people." Donvart v. Caraway, 2002 MT 240; 3 12 Mont. 1; 58 P.3d 128
Whether political expediency, indifference, or simply a lack of understanding regarding the basic necessity of "equal access" and "equal protection" to Montana's Court system, the 1972 Montana Constitutional Delegates couldn't muster the needed votes to include and insure legal Counsel for ALL in Montana, especially the poor in Montana Civil Jurisprudence.
*Art. I1 - 5 4. Individual dignity. The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political
or religious ideas.
Subsequently, they stopped short by requiring that Montana ONLY provide legal Counsel for Criminal Defendants in our 1972 Constitution. They also foresaw that they could not and should not limit the possession of ONLY those Montana's Constitutional Rights Enumerated, and that we the people recognize the possession
also of" Unenurnerated Rights" "(w)hich shall not be construed to deny, impair, or disparage others retained by thepeople." Art. I1 - 5 34. Unenumerated rights.
Montana Constitution. From these "Unenurnerated Rights" the Court has a vested self-interest in ensuring equal access to trained Counsel in Montana Jurisprudence for ALL the poor, yet as we see, in the instant Civil case, this is NOT the case to date and has caused the Discrimination in the Montana Public Defender Act.
------------ --------- ----END ARGUMENT---- --------- --------- ---
If you want to keep up with this case and/or read my opening brief:
On the internet goto:
http://fnweb1. isd.doa.state. mt.us/idmws/ custom/sll/ SLL_FN_Home. htm
Click on: Supreme Court Case Number
Enter ( DA 09-0675 ) in the box and click search.
Next click on Gold v. State and then click on
Appelant Brief and a new window will pop up with my pdf.
As always, Think about this and I'd like to encourage your comments about this important topic. Feel free to follow this important Case.
Rick Gold
Missoula, MT
1) Did the District Court err in denying Plaintiff and Appellant's summary judgment motion while granting Defendant's summary judgment motion and while not addressing Plaintiff and Appellant's claims against the State of Montana?
2) Did the District Court err by not addressing in the final order, Plaintiff and Appellant's arguments regarding the Duty of Care of Montana Constitution' s demanding sworn oath of office upon Montana Legislators and the Governor in the performance of their duties of office and their greater duties to our Constitution,
especially in regards to discrimination?
3) Did the District Court err by not addressing in the final order, Plaintiff and Appellant's procedural arguments and objections, especially in regards to the Montana Constitution' s demanding oath of office and Montana Rules of Professional Conduct, in both his "summary judgment motion and brief' and in his "Combined Memorandum in Response to Defendant's Combined Memorandum in
Response to Plaintiffs Motion for Summary Judgment and Plaintiffs Response to Defendant's Cross Motion for Summary Judgment?"
4) Was Plaintiff and Appellant denied his Constitutional Right of the
Administration of Justice Article 11 - $16 and deprived of procedural due process and substantive due process of law guaranteed by the 14'~A mendment of the US.
Constitution and Article II. § 4 of the Montana Constitution by the 4th District Court in its final Order and Memorandum by not engaging in required constitutional analysis as well as offering no Findings of Fact or Conclusions of Law, specifically as to why Plaintiff should be denied his Constitutional claims against the State?
------------ --------- ----ARGUMENT- --------- --------- ------
I feel like Don Quixote tilting at Montana windmills. The political reality OF 2010 is that "indigent" individuals in Montana and the U.S. cannot expect or find legal Counsel for Civil complaints involving Guaranteed Fundamental Rights.
In Montana, this Catch-22 political reality is reflected in a Catch-as-catch- can, or less formally, Willy Nilly Public Defender System ("the Montana Public Defender Act $47 MCA"), defined and developed out of a necessity to defend individuals accused of crimes against the State. (Art. I1 - 5 24. Rights of the accused.
Montana Constitution) . However, in common law as well as enumerated law, defending individuals is only half of our "equal protection of the laws" (see Section 4. Individual dignity. Montana Constitution) , the other half is defending Our Montana Constitution and Our Fundamental Rights through Civil action. This political reality is exactly what Attorney Dahood argued about in his amicus brief
in Dorwart v. Caraway ,
". . .in order to avoid this result and in order to give Montana's constitutional guarantees teeth, the framers intended that the people retain the ability to protect their rights--both
enumerated and unenumerated- -through direct actions in the courts. This conclusion follows from the Committee's proposal of Article 11, Section 34 to the Convention delegates and the subsequent adoption of this provision. Article 11, Section 34 states: Unenumerated rights.
The enumeration in this constitution of certain rights shall not be construed to deny, impair, or disparage others retained by the people." Donvart v. Caraway, 2002 MT 240; 3 12 Mont. 1; 58 P.3d 128
Whether political expediency, indifference, or simply a lack of understanding regarding the basic necessity of "equal access" and "equal protection" to Montana's Court system, the 1972 Montana Constitutional Delegates couldn't muster the needed votes to include and insure legal Counsel for ALL in Montana, especially the poor in Montana Civil Jurisprudence.
*Art. I1 - 5 4. Individual dignity. The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political
or religious ideas.
Subsequently, they stopped short by requiring that Montana ONLY provide legal Counsel for Criminal Defendants in our 1972 Constitution. They also foresaw that they could not and should not limit the possession of ONLY those Montana's Constitutional Rights Enumerated, and that we the people recognize the possession
also of" Unenurnerated Rights" "(w)hich shall not be construed to deny, impair, or disparage others retained by thepeople." Art. I1 - 5 34. Unenumerated rights.
Montana Constitution. From these "Unenurnerated Rights" the Court has a vested self-interest in ensuring equal access to trained Counsel in Montana Jurisprudence for ALL the poor, yet as we see, in the instant Civil case, this is NOT the case to date and has caused the Discrimination in the Montana Public Defender Act.
------------ --------- ----END ARGUMENT---- --------- --------- ---
If you want to keep up with this case and/or read my opening brief:
On the internet goto:
http://fnweb1. isd.doa.state. mt.us/idmws/ custom/sll/ SLL_FN_Home. htm
Click on: Supreme Court Case Number
Enter ( DA 09-0675 ) in the box and click search.
Next click on Gold v. State and then click on
Appelant Brief and a new window will pop up with my pdf.
As always, Think about this and I'd like to encourage your comments about this important topic. Feel free to follow this important Case.
Rick Gold
Missoula, MT
Wednesday, February 3, 2010
The MT Public Defenders and Montana's LESS than poor legal representation.
In the Wednesday February 3, 2010, Missoulian newspaper is an article from Jennifer McKee, of the Missoulian State Bureau entitled "State public defender offices faces $990K cut in addition to current shortfall."
In her article, she writes: "Already facing an $800,000 budget hole, the state agency that guarantees lawyers for poor people accused of crimes could be looking at cutting close to another million dollars from its books."
"How do you cut a million and then cut another million?" "Office of Public Defender administrative director Harry Freebourn said Tuesday of the potential cuts called for by a worsening state budget picture. Freebourn said he had no idea how the agency could absorb another hit, especially considering that its caseload is growing at anywhere between 4 percent and 7 percent."
http://www.missoulian.com/news/state-and-regional/article_72bb5de0-1075-11df-917a-001cc4c002e0.html
However, the Montana Constitution does NOT set a price tag on defense of the poor.
It has been a long standing tradition in the U.S. and the State of Montana to provide legal counsel for the poor in criminal proceedings. But, as the state budget tightens and the already strapped Public Defenders of Montana are asked to reduce their budgets further, the legal representation of the poor can only suffer.
And, therefore once again for the poor, "equal access" of and to the law in Montana (Section 16. The administration of justice) and "equal protection" of and to the law in Montana (Section 4. Individual dignity)
will suffer more than it already has suffered. And, who is speaking for the poor in Montana, who have NO voice in why the Public Defenders budget is being cut!
Now, contrast this with the Montana Attorney General's Budget, and/or the local Montana County/City public Prosecutors (Attorneys) budgets, and you'll soon see that there is NO comparison!
Consequently, there is NO "equal access" or "equal protection" in our Montana Court System.
As always, Think about this and I'd like to encourage your comments about this important topic. Feel free to ask your elected officials.
Rick Gold
Missoula, MT
In her article, she writes: "Already facing an $800,000 budget hole, the state agency that guarantees lawyers for poor people accused of crimes could be looking at cutting close to another million dollars from its books."
"How do you cut a million and then cut another million?" "Office of Public Defender administrative director Harry Freebourn said Tuesday of the potential cuts called for by a worsening state budget picture. Freebourn said he had no idea how the agency could absorb another hit, especially considering that its caseload is growing at anywhere between 4 percent and 7 percent."
http://www.missoulian.com/news/state-and-regional/article_72bb5de0-1075-11df-917a-001cc4c002e0.html
However, the Montana Constitution does NOT set a price tag on defense of the poor.
It has been a long standing tradition in the U.S. and the State of Montana to provide legal counsel for the poor in criminal proceedings. But, as the state budget tightens and the already strapped Public Defenders of Montana are asked to reduce their budgets further, the legal representation of the poor can only suffer.
And, therefore once again for the poor, "equal access" of and to the law in Montana (Section 16. The administration of justice) and "equal protection" of and to the law in Montana (Section 4. Individual dignity)
will suffer more than it already has suffered. And, who is speaking for the poor in Montana, who have NO voice in why the Public Defenders budget is being cut!
Now, contrast this with the Montana Attorney General's Budget, and/or the local Montana County/City public Prosecutors (Attorneys) budgets, and you'll soon see that there is NO comparison!
Consequently, there is NO "equal access" or "equal protection" in our Montana Court System.
As always, Think about this and I'd like to encourage your comments about this important topic. Feel free to ask your elected officials.
Rick Gold
Missoula, MT
Wednesday, September 9, 2009
Montana - Public (Self) Defenders - Unequal Access to inJustice
Dateline September 09, 2009 - The Montana Public (Self) Defender Debacle - A total, often ludicrous failure and A Crisis of Conscience for our Montana Legal/Judicial System ... Hey, Montana, there's a GREAT BIG white elephant in law offices and Courtrooms across Montana!
Question - What do the Montana Public Defenders have to do with Criminal Defense? The Only possible answer is Defending themselsves. When you compare the lacklustre performance of Montana's Public Defenders to the stellar performance of the State, Counties and Cities legal Prosecuters (and staff), then there really is - NO Contest! It's a slam dunk for the Montana Prosecuters home team! And, meanwhile, with ALL their forgotten Lawyers Constitutional Oaths of Office to support, protect and defend Our Constitution (and Rules of Professional Conduct, no less), who among these gallant Montana lawyers IS proactively supporting, protecting or defending Montana's Constitutional rights of the poor (read indigent in the Montana Public Defender Act) in the process? Really, with these ridiculous sums ($100 Millions?) being spent on both sides of Criminality, who is minding the Constitutional Civil store in Montana?
In an article this week in the Missoula Independent News entitled "Self-defense -
State's public defender system takes the stand," Alex Sakariassen quotes a 66-page draft recommendation report from American University (AU) on how to improve the fledgling Montana Office of the Public Defender (OPD). In the draft the OPD is responsible for representing roughly 26,000 defendants a year in Montana. In his article, Alex quotes, Scott Crichton, executive director of the ACLU, as saying, "It's not just about defending criminals," ..."It's about defending people accused of crimes...it's about defending innocent people as well as providing good defense for guilty people, it's about saving tax dollars by having shorter pre-trial incarceration."
http://missoulanews.bigskypress.com/missoula/self-defense/Content?oid=1162302
Recently, in an August 2009 Missoulian article titled, "More than 10 percent of Montanans receiving food stamps" author and reporter JENNIFER McKEE, wrote, "Montana hit a sobering milestone in July: A record number of us, more than 100,000, are on food stamps, the federal anti-hunger program now known as the Supplemental Nutrition Assistance Program, or SNAP. The growth represents a more than 24 percent increase since May of 2008, said Linda Snedigar, administrator of the Human and Community Services Division at the Montana Department of Public Health and Human Services. Some 100,552 people received food stamps in July, she said, representing a little more than 10 percent of the state's population." http://missoulian.com/news/state-and-regional/article_987540a2-8568-11de-9ff0-001cc4c03286.html
But, what if the Montana State Legislature or the Governor, Counties or Cities or anyone of the myriad of Montana Attorneys are disregarding or violating their Oaths to Montana's Constitution or their Rules of Professional Conduct? How much money is being spent proactively to prosecute these infringements while supporting, protecting or defending Our Constitutional Rights? Sorry, the 66 page study is mum on this issue. Ask yourself this Montana, why is the Montana OPD, limited just to defending people accused of crimes? Why are they ignoring the Civil (proactive) cases allowed in the Montana Public Defender Act? Why is the Civil (proactive) side of law being ignored in relation to Montana's poor and the Montana OPD? Who is minding the store for the poor on the Civil side of Montana Law?
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
Wednesday, August 26, 2009
Missoula, MT, Criminalizing sleeping in the commons for the homeless!
The commons refers to public resources that are commonly owned. This could be land or food or .... And this week finds Missoula's Glorious City Representatives debating on whether or not, we as a City, should criminalize sleeping in Our commons. These changes are being considered for Missoula's "pedestrian interference" ordinance and they would limit the public places where people can sleep, lie and convene. The proposed rules would make it unlawful for people to lie or sleep on streets, sidewalks and public rights-of-way. It would also make it illegal for people to "walk, stand, sit, lie or place an object" where it obstructs walkers by leaving them less than 6 feet of room to pass. It makes some exceptions as well. For each unlawful infraction there would be a $100 fine. And get this, all these new $100 fines for people who Obviously, can not afford them, might even be able to be worked off through a community service program!
See Missoulian article: "Missoula City Council committee debates 2nd panhandling ordinance" http://missoulian.com/news/local/article_aec28efa-8d47-11de-ba3f-001cc4c002e0.html )
Why, it wasn't to long ago that the Nazi's instituted and profited from a community service program known as forced labor camps, and now the City of Missoula, has embarked on handing out $100 fines to people who can not afford them, and PRESTO! Free labor camps for Missoula! But wait, who among our Representatives is even considering or talking about this?
Really, if there are "problems" (during the summer months) with homeless people in Missoula's commons, then why NOT deal with the "problems?" If people are Forced to pee on sidewalks or in public alleys, IT'S because, the City does NOT have adequate restrooms downtown! If there needs? to be 6 feet clearance for pedestrians to pass (Missoulans don't like cuddies), then
close OFF the downtown streets to CARS, and make ALL that common space available to pedestrians! If homeless people (who are pedestrians also, after all) need a place to hang out, why set aside some space in some of the public places (like parks) for sleeping/tenting camps with rules of proper behaviors of course!
Please read Montana's Constitution ...
In it, 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.
Come on City Representatives, use your HEADS, instead of your other parts to think!
"The human race is unimportant. It is the self that must not be betrayed." "I suppose one could say that Hitler didn't betray himself." "You are right. He did not. But, millions of Germans did betray their selves. That was the tragedy. Not that one man had the courage to be evil. But that millions had not the courage to be good." from The Magus, John Fowles
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
See Missoulian article: "Missoula City Council committee debates 2nd panhandling ordinance" http://missoulian.com/news/local/article_aec28efa-8d47-11de-ba3f-001cc4c002e0.html )
Why, it wasn't to long ago that the Nazi's instituted and profited from a community service program known as forced labor camps, and now the City of Missoula, has embarked on handing out $100 fines to people who can not afford them, and PRESTO! Free labor camps for Missoula! But wait, who among our Representatives is even considering or talking about this?
Really, if there are "problems" (during the summer months) with homeless people in Missoula's commons, then why NOT deal with the "problems?" If people are Forced to pee on sidewalks or in public alleys, IT'S because, the City does NOT have adequate restrooms downtown! If there needs? to be 6 feet clearance for pedestrians to pass (Missoulans don't like cuddies), then
close OFF the downtown streets to CARS, and make ALL that common space available to pedestrians! If homeless people (who are pedestrians also, after all) need a place to hang out, why set aside some space in some of the public places (like parks) for sleeping/tenting camps with rules of proper behaviors of course!
Please read Montana's Constitution ...
In it, 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.
Come on City Representatives, use your HEADS, instead of your other parts to think!
"The human race is unimportant. It is the self that must not be betrayed." "I suppose one could say that Hitler didn't betray himself." "You are right. He did not. But, millions of Germans did betray their selves. That was the tragedy. Not that one man had the courage to be evil. But that millions had not the courage to be good." from The Magus, John Fowles
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
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
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 ...
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