The authority of power of the people and The U.S. Declaration of Independence:
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.
The tenth Amendment to the U.S. Constitution states: Powers of States and people. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
In America, power means control of one's own life, liberty and happiness, these certain, defined unalienable Rights and others reserved to the States respectively, or to the people.
Power of, by, for and to the people ....
In Montana's Constitution, Article ll - Section 3. Inalienable rights. All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life's basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways.
Power of, by, for and to the people ....
The people of Montana are ALL guaranteed other special sets of Enumerated Rights. They are Popular sovereignty. Self-government. Individual dignity. Freedom of religion and Assembly. Freedom of speech, expression, and press. Right of participation. Right to Know. Right of privacy. Freedom from unreasonable searches and seizures. Right to bear arms. Right of suffrage. Adult rights. Rights of persons not adults. Due process of law. Habeas corpus. Rights of the accused. Self-incrimination and double jeopardy. Trial by jury. Imprisonment for debt. Criminal justice policy -- rights of the convicted. Eminent domain. Etc.
The principals, rights and ideals of America and the 50 States are directed toward protecting the people's power and authority...
Think about it ….As always, please let me have your comments on this important topic, thanks!
Rick Gold
Missoula, MT
Tuesday, July 21, 2009
Wednesday, July 15, 2009
Sheriff Mack vs Sheriff Mike McMeekin: Challenge the Status Quo
Today, July 15, 2009, Richard Mack former 2 term sheriff of Graham County, Ariz, issued a challenge to debate current Missoula County Sheriff, Mike McMeekin.
In a Missoulian article of Monday, July 13, 2009, (http://www.missoulian.com/articles/2009/07/13/news/mtregional/znews08.txt) McMeekin is quoted as saying that, what Mack was doing at a public speaking engagement in Hamilton July 7th was "politics" and what McMeekin is doing is "law enforcement. They're not the same thing.” For that reason, McMeekin found Mack's appearance to be a “nonevent.”
Yet, Mack, who wants to make sure that every sheriff in the country has received a copy of his new book, "The County Sheriff: America's Last Hope" completely disagrees. First, he was NOT asked for his responses to Michael Moore's article about him in the Missoulian.. Second, he believes that, “All law enforcement officers, from the FBI down to the local meter maid, derive their (just) powers from the people,” (see http://www.sheriffmack.com/), “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.” He says in his 49-page book, Mack also quotes America's 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.”
And the Constitutional Law Enforcement Association completely agrees with him. From their website (http://constitutionallawenforcementassoc.blogspot.com/) , The County Sheriff:The Ultimate Check & Balance, they state, When the United States of America was founded the framers spent arduous hours devising a Constitution that would protect future generations from tyranny and government criminality. A system of checks and balances was established to keep all government, especially at the federal level, from becoming too powerful and abusive.
The Bill of Rights was promulgated to augment the limitations previously placed against the government, to further insure that government would stay in its proper domain.
So, what happens when government does not obey its own constitution? What punishment is meted out to politicians who vote for and pass unconstitutional laws? What happens if they appoint unlawful bureaucracies or allow their agents to violate the rights of the American citizen? The answer to these questions is both astounding and lamentable; NOTHING!
Now the question becomes even greater; who will stop criminal and out-of-control government from killing, abusing, violating, robbing, and destroying its own people? Yes, believe it or not, there is an answer to this one. The duty to stop such criminality lies with the county sheriff. The question needs to be posed to each and every sheriff of these United States; will you stand against tyranny?
The office of sheriff has a long and noble history. It dates back over a thousand years and originated in England. The sheriff is the only elected law enforcement official in America. He is the last line of defense for his citizens. He is the people's protector. He is the keeper of the peace, he is the guardian of liberty and the protector of rights. A vast majority of sheriffs will agree with all of this until they are asked to apply these principles of protection to federal criminals. Their backpedaling and excuses will be more plentiful than radar tickets and louder than sirens at doughnut time. Most of the unbelievers, who themselves have taken a solemn oath to "uphold and defend" the U S Constitution, will passionately and even apologetically exclaim that they have no authority or jurisdiction to tell federal agents to do anything, let alone stop them from victimizing local citizens. The truth and stark reality is that it's just the opposite; the sheriff has ultimate authority and law enforcement power within his jurisdiction. He is to protect and defend his citizens from all enemies, both "foreign and domestic."
Consequently, former Sheriff Richard Mack is issuing this challenge to Missoula County Sheriff Mike McMeekin to a debate concerning McMeekin's part in law enforcement and whether he will stand against tyranny. Former Sheriff Richard Mack would also like Missoula County Sheriff Mike McMeekin to explain "how it is that the ultimate protector and keeper of the peace will not protect his citizens from federal criminals. Bottom line; How is it that the county's servant who promised, in God's name, to uphold and defend the Constitution of the United States turns right around and says that it is not his job to uphold and defend the Constitution of the United States? Not to mention that he promised to do the same for the Montana Constitution. Is this what he calls politics? I call it keeping your word!"
R Mack
Sheriffs in Montana, 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).”
former Sheriff Richard Mack can be contacted at sheriffmack@hotmail.com
phone: 928.792.4340
P.O. Box 971
Pima, AZ 85543
As always, please let me have your comments on this important topic, thanks!
Rick Gold
In a Missoulian article of Monday, July 13, 2009, (http://www.missoulian.com/articles/2009/07/13/news/mtregional/znews08.txt) McMeekin is quoted as saying that, what Mack was doing at a public speaking engagement in Hamilton July 7th was "politics" and what McMeekin is doing is "law enforcement. They're not the same thing.” For that reason, McMeekin found Mack's appearance to be a “nonevent.”
Yet, Mack, who wants to make sure that every sheriff in the country has received a copy of his new book, "The County Sheriff: America's Last Hope" completely disagrees. First, he was NOT asked for his responses to Michael Moore's article about him in the Missoulian.. Second, he believes that, “All law enforcement officers, from the FBI down to the local meter maid, derive their (just) powers from the people,” (see http://www.sheriffmack.com/), “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.” He says in his 49-page book, Mack also quotes America's 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.”
And the Constitutional Law Enforcement Association completely agrees with him. From their website (http://constitutionallawenforcementassoc.blogspot.com/) , The County Sheriff:The Ultimate Check & Balance, they state, When the United States of America was founded the framers spent arduous hours devising a Constitution that would protect future generations from tyranny and government criminality. A system of checks and balances was established to keep all government, especially at the federal level, from becoming too powerful and abusive.
The Bill of Rights was promulgated to augment the limitations previously placed against the government, to further insure that government would stay in its proper domain.
So, what happens when government does not obey its own constitution? What punishment is meted out to politicians who vote for and pass unconstitutional laws? What happens if they appoint unlawful bureaucracies or allow their agents to violate the rights of the American citizen? The answer to these questions is both astounding and lamentable; NOTHING!
Now the question becomes even greater; who will stop criminal and out-of-control government from killing, abusing, violating, robbing, and destroying its own people? Yes, believe it or not, there is an answer to this one. The duty to stop such criminality lies with the county sheriff. The question needs to be posed to each and every sheriff of these United States; will you stand against tyranny?
The office of sheriff has a long and noble history. It dates back over a thousand years and originated in England. The sheriff is the only elected law enforcement official in America. He is the last line of defense for his citizens. He is the people's protector. He is the keeper of the peace, he is the guardian of liberty and the protector of rights. A vast majority of sheriffs will agree with all of this until they are asked to apply these principles of protection to federal criminals. Their backpedaling and excuses will be more plentiful than radar tickets and louder than sirens at doughnut time. Most of the unbelievers, who themselves have taken a solemn oath to "uphold and defend" the U S Constitution, will passionately and even apologetically exclaim that they have no authority or jurisdiction to tell federal agents to do anything, let alone stop them from victimizing local citizens. The truth and stark reality is that it's just the opposite; the sheriff has ultimate authority and law enforcement power within his jurisdiction. He is to protect and defend his citizens from all enemies, both "foreign and domestic."
Consequently, former Sheriff Richard Mack is issuing this challenge to Missoula County Sheriff Mike McMeekin to a debate concerning McMeekin's part in law enforcement and whether he will stand against tyranny. Former Sheriff Richard Mack would also like Missoula County Sheriff Mike McMeekin to explain "how it is that the ultimate protector and keeper of the peace will not protect his citizens from federal criminals. Bottom line; How is it that the county's servant who promised, in God's name, to uphold and defend the Constitution of the United States turns right around and says that it is not his job to uphold and defend the Constitution of the United States? Not to mention that he promised to do the same for the Montana Constitution. Is this what he calls politics? I call it keeping your word!"
R Mack
Sheriffs in Montana, 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).”
former Sheriff Richard Mack can be contacted at sheriffmack@hotmail.com
phone: 928.792.4340
P.O. Box 971
Pima, AZ 85543
As always, please let me have your comments on this important topic, thanks!
Rick Gold
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
Tuesday, June 30, 2009
The U.S., Montana and Equal Protection under the Law
The U.S. Constitution guarantees in the 14th Amendment, Section 1 that, 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;
In Montana, our Constitution guarantees in Article ll – 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.
So,
What exactly, does equal protection of the laws mean in and for Montana? The Montana Supreme Court has held that:
"The principal purpose of the Equal Protection Clause, Article II, Section 4, of the Montana Constitution, is to ensure that persons who are citizens are not subject to arbitrary and discriminatory state action." Davis v. Union Pacific Ry. Co., 282 Mont. 233, 240, 937 P.2d 27, 31 (1997) "[A] party claiming violation of the right to equal protection must first demonstrate that the law at issue discriminates by impermissibly classifying individuals and treating them differently based on that classification. Once the classification has been identified and it has been established that members of the different classes are similarly situated, we determine the appropriate level of scrutiny to apply." State v. Ellis, 2007 MT 210, ¶ 20, 339 Mont. 14, ¶ 20, 167 P.3d 896, ¶ 20. We apply strict scrutiny to laws which affect "fundamental rights, intermediate scrutiny for laws conferred by the Montana Constitution but not found in the Declaration of Rights, or rational basis if neither strict scrutiny nor intermediate scrutiny applies." Ellis, ¶ 11.
Yet, in their three narrow applications of equal rights thus far classified, the Supreme Court of Montana, has yet to "unambiguously erase their desires" (see Judge Neill below) concerning the self-executing, self-administering and self-fulfilling Rights of the inviolability of human dignity as well as our Fundamental Rights, our Enumerated Inalienable Rights and our UnEnumerated Rights.
Montana District Judge Kenneth R. Neill was on the right track in a ruling April 15, 2009, when stated in his opinion, “assistance of counsel is a fundamental right guaranteed by the U.S. and Montana constitutions.” And that a change in (Montana) state law, effective in 2006, “unambiguously erased the judge’s desires in the matter of appointing a public defender.” Read the Great Falls Tribune story here … http://www.greatfallstribune.com/apps/pbcs.dll/article?AID=2009904220314
So, Judge Neill who has sworn the same oath of office as our Supreme Court Justices are required to swear before entering into office 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
In protecting and defending, Judge Neill applied the broadest application for a fundamental right guaranteed by the U.S. and Montana constitutions by removing himself and his desires in favor of insuring a fundamental right guaranteed by the U.S. and Montana constitutions.
And so, this is the fourth (and easiest) application of an equal protection under the Law, one of a Justice sworn to support, protect and defend the constitution removing oneself and ones desires in favor of insuring a fundamental right guaranteed by the U.S. and Montana constitutions.
Think about it ….As always, please let me have your comments on this important topic, thanks!
And;
In Montana, our Constitution guarantees in Article ll – 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.
So,
What exactly, does equal protection of the laws mean in and for Montana? The Montana Supreme Court has held that:
"The principal purpose of the Equal Protection Clause, Article II, Section 4, of the Montana Constitution, is to ensure that persons who are citizens are not subject to arbitrary and discriminatory state action." Davis v. Union Pacific Ry. Co., 282 Mont. 233, 240, 937 P.2d 27, 31 (1997) "[A] party claiming violation of the right to equal protection must first demonstrate that the law at issue discriminates by impermissibly classifying individuals and treating them differently based on that classification. Once the classification has been identified and it has been established that members of the different classes are similarly situated, we determine the appropriate level of scrutiny to apply." State v. Ellis, 2007 MT 210, ¶ 20, 339 Mont. 14, ¶ 20, 167 P.3d 896, ¶ 20. We apply strict scrutiny to laws which affect "fundamental rights, intermediate scrutiny for laws conferred by the Montana Constitution but not found in the Declaration of Rights, or rational basis if neither strict scrutiny nor intermediate scrutiny applies." Ellis, ¶ 11.
Yet, in their three narrow applications of equal rights thus far classified, the Supreme Court of Montana, has yet to "unambiguously erase their desires" (see Judge Neill below) concerning the self-executing, self-administering and self-fulfilling Rights of the inviolability of human dignity as well as our Fundamental Rights, our Enumerated Inalienable Rights and our UnEnumerated Rights.
Montana District Judge Kenneth R. Neill was on the right track in a ruling April 15, 2009, when stated in his opinion, “assistance of counsel is a fundamental right guaranteed by the U.S. and Montana constitutions.” And that a change in (Montana) state law, effective in 2006, “unambiguously erased the judge’s desires in the matter of appointing a public defender.” Read the Great Falls Tribune story here … http://www.greatfallstribune.com/apps/pbcs.dll/article?AID=2009904220314
So, Judge Neill who has sworn the same oath of office as our Supreme Court Justices are required to swear before entering into office 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
In protecting and defending, Judge Neill applied the broadest application for a fundamental right guaranteed by the U.S. and Montana constitutions by removing himself and his desires in favor of insuring a fundamental right guaranteed by the U.S. and Montana constitutions.
And so, this is the fourth (and easiest) application of an equal protection under the Law, one of a Justice sworn to support, protect and defend the constitution removing oneself and ones desires in favor of insuring a fundamental right guaranteed by the U.S. and Montana constitutions.
Think about it ….As always, please let me have your comments on this important topic, thanks!
Tuesday, June 16, 2009
Administering Right and Justice without sale, denial or dely.
In Montana's Constitution, the people of Montana are ALL guaranteed a very special set of Enumerated Rights, referred to as Inalienable. Inalienable Rights are those Rights of the citizen incapable of being repudiated, taken away or transferred to another.
Article ll - Section 3. Inalienable rights. All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life's basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways. In enjoying these rights, all persons recognize corresponding responsibilities.
These Inalienable Rights then are self-executing, self-administering and self-fulfilling.
The people of Montana are ALL guaranteed other special sets of Enumerated Rights. They are Popular sovereignty. Self-government. Individual dignity. Freedom of religion and Assembly. Freedom of speech, expression, and press. Right of participation. Right to Know. Right of privacy. Freedom from unreasonable searches and seizures. Right to bear arms. Right of suffrage. Adult rights. Rights of persons not adults. Due process of law. Habeas corpus. Rights of the accused. Self-incrimination and double jeopardy. Trial by jury. Imprisonment for debt. Criminal justice policy -- rights of the convicted. Eminent domain. Etc.
And Unenumerated rights.
These Enumerated and UnEnumerated Rights then are self-executing, self-administering and self-fulfilling.
But how exactly, does a Court or an attorney or an elected public official, who have sworn to protect and defend our Constitution and our Rights, administer Right or Justice when it involves every one's Enumerated and UnEnumerated Rights?
Administer means: "To cause to take, either by openly offering or through deceit; To apportion out, as in administering justice; To manage or supervise the conduct, performance or execution of; to govern or regulate the parameters for the conduct, performance or execution of; to work in an administrative ..." from en.wiktionary.org/wiki/administer
So how many of our Constitutional Rights are being administered, legislated or opinioned away?
And does Article ll - Section 4 of Montana's Constitution: Individual Dignity establish an affirmative obligation of the State to not discriminate in providing its' Public Defender services to ensure equal access to justice to the State's indigent?
Montana State District Judge Kenneth R. Neill (Cascade County) seems to concur. In a ruling April 15, 2009 Judge Neill stated, "assistance of counsel is a fundamental right guaranteed by the U.S. and Montana constitutions." And that a change in (Montana) state law, effective in 2006, "unambiguously erased the judge's desires in the matter of appointing a public defender." Read the Great Falls Tribune story here ... http://www.greatfallstribune.com/apps/pbcs.dll/article?AID=2009904220314
"There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." Griffin v. Illinois, 351 US 12, 19 (1956)
Remember, the Montana Constitution's Section 4. Individual dignity. "The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas."
In the 1972 Montana Constitutional Convention, Delegate Mrs. Mansfield had these comments regarding Section 4 of the Montana Bill of Rights. "The committee unanimously adopted this section with the intent of providing a constitutional impetus for the eradication of public and private discrimination based on race, color, sex, culture, social origin or condition, or political or religious ideas. The provision, quite similar to that of the Puerto Rico declaration of rights, is aimed at prohibiting private as well as public discrimination in civil and political rights....Social origin or condition was included to cover discriminations based on status of income and standard of living."
And also the comment from Delegate Mr. Dahood, "The intent of Section 4 is simply to provide that every individual in the State of Montana, as a citizen of this state, may pursue his inalienable rights without having any shadows cast upon his dignity through unwarranted discrimination...(C)onstitutions are based on the premise that they are presumed to be self-executing, particularly within the Bill of Rights. If the language appears to be prohibitory and mandatory, as this particular section is intended to be, then in that event, the courts in interpreting the particular section are bound by that particular presumption and they must assume, in that situation, that it is self-executing. There was a case in Montana some 60 years ago that involved a provision of our Bill of Rights that had to do with an individual right, and there the Supreme Court said that was self executing and a citizen could enforce it without any type of legislative implementation."
Think about it ….As always, please let me have your comments on this important topic, thanks!
Article ll - Section 3. Inalienable rights. All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life's basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways. In enjoying these rights, all persons recognize corresponding responsibilities.
These Inalienable Rights then are self-executing, self-administering and self-fulfilling.
The people of Montana are ALL guaranteed other special sets of Enumerated Rights. They are Popular sovereignty. Self-government. Individual dignity. Freedom of religion and Assembly. Freedom of speech, expression, and press. Right of participation. Right to Know. Right of privacy. Freedom from unreasonable searches and seizures. Right to bear arms. Right of suffrage. Adult rights. Rights of persons not adults. Due process of law. Habeas corpus. Rights of the accused. Self-incrimination and double jeopardy. Trial by jury. Imprisonment for debt. Criminal justice policy -- rights of the convicted. Eminent domain. Etc.
And Unenumerated rights.
These Enumerated and UnEnumerated Rights then are self-executing, self-administering and self-fulfilling.
But how exactly, does a Court or an attorney or an elected public official, who have sworn to protect and defend our Constitution and our Rights, administer Right or Justice when it involves every one's Enumerated and UnEnumerated Rights?
Administer means: "To cause to take, either by openly offering or through deceit; To apportion out, as in administering justice; To manage or supervise the conduct, performance or execution of; to govern or regulate the parameters for the conduct, performance or execution of; to work in an administrative ..." from en.wiktionary.org/wiki/administer
So how many of our Constitutional Rights are being administered, legislated or opinioned away?
And does Article ll - Section 4 of Montana's Constitution: Individual Dignity establish an affirmative obligation of the State to not discriminate in providing its' Public Defender services to ensure equal access to justice to the State's indigent?
Montana State District Judge Kenneth R. Neill (Cascade County) seems to concur. In a ruling April 15, 2009 Judge Neill stated, "assistance of counsel is a fundamental right guaranteed by the U.S. and Montana constitutions." And that a change in (Montana) state law, effective in 2006, "unambiguously erased the judge's desires in the matter of appointing a public defender." Read the Great Falls Tribune story here ... http://www.greatfallstribune.com/apps/pbcs.dll/article?AID=2009904220314
"There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." Griffin v. Illinois, 351 US 12, 19 (1956)
Remember, the Montana Constitution's Section 4. Individual dignity. "The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas."
In the 1972 Montana Constitutional Convention, Delegate Mrs. Mansfield had these comments regarding Section 4 of the Montana Bill of Rights. "The committee unanimously adopted this section with the intent of providing a constitutional impetus for the eradication of public and private discrimination based on race, color, sex, culture, social origin or condition, or political or religious ideas. The provision, quite similar to that of the Puerto Rico declaration of rights, is aimed at prohibiting private as well as public discrimination in civil and political rights....Social origin or condition was included to cover discriminations based on status of income and standard of living."
And also the comment from Delegate Mr. Dahood, "The intent of Section 4 is simply to provide that every individual in the State of Montana, as a citizen of this state, may pursue his inalienable rights without having any shadows cast upon his dignity through unwarranted discrimination...(C)onstitutions are based on the premise that they are presumed to be self-executing, particularly within the Bill of Rights. If the language appears to be prohibitory and mandatory, as this particular section is intended to be, then in that event, the courts in interpreting the particular section are bound by that particular presumption and they must assume, in that situation, that it is self-executing. There was a case in Montana some 60 years ago that involved a provision of our Bill of Rights that had to do with an individual right, and there the Supreme Court said that was self executing and a citizen could enforce it without any type of legislative implementation."
Think about it ….As always, please let me have your comments on this important topic, thanks!
Monday, June 8, 2009
Defending our lives, civil liberties & civil rights in Montana and beyond.
In Montana and the United States, in 2009 we are faced with crisis and denial of conscience. What exactly does defending our lives and liberties mean? How do we as human beings and citizens, re-invigorate the principles, rights and responsibilities entrusted to our care and defense in our Constitutions. Why are so much of Montana's and U.S. resources tied up in criminal defense alone. (ex. Google: public defender) Why?
Under The Montana Public Defender Act, the Office of the State Public Defender was formed. "The mission of the Office of the State Public Defender is to ensure equal access to justice for the State's indigent and to provide appellate representation to indigent clients." Note that while the State Public Defender Office mission does NOT specifically exclude Civil causes by their established definition, Public Defenders are mearly "attorneys appointed by a court or employed by the government to represent indigent defendants in criminal actions." Who limited or limits Public Defenders to criminal cases only? Why?
Surely, this is NOT what our founding fathers (and mothers) had in mind when they entreated each and every one of us to defend our lives and civil liberties. And exactly, how do indigent people go about defending their lives and civil liberties against all forms of encroachment by our Montana and U.S. government if they have NO access to a skilled Civil attorney (see equal access, due process and poverty below)? Again why?
The main remedy in Montana provided for the defense of our Civil Liberties is in a Court of Justice. In Montana's Constitution, Article ll - Section 16. The administration of justice. Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character… Right and justice shall be administered without sale, denial, or delay.
Think about it ....
As always, please let me have your comments on this important topic, thanks ...
Under The Montana Public Defender Act, the Office of the State Public Defender was formed. "The mission of the Office of the State Public Defender is to ensure equal access to justice for the State's indigent and to provide appellate representation to indigent clients." Note that while the State Public Defender Office mission does NOT specifically exclude Civil causes by their established definition, Public Defenders are mearly "attorneys appointed by a court or employed by the government to represent indigent defendants in criminal actions." Who limited or limits Public Defenders to criminal cases only? Why?
Surely, this is NOT what our founding fathers (and mothers) had in mind when they entreated each and every one of us to defend our lives and civil liberties. And exactly, how do indigent people go about defending their lives and civil liberties against all forms of encroachment by our Montana and U.S. government if they have NO access to a skilled Civil attorney (see equal access, due process and poverty below)? Again why?
The main remedy in Montana provided for the defense of our Civil Liberties is in a Court of Justice. In Montana's Constitution, Article ll - Section 16. The administration of justice. Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character… Right and justice shall be administered without sale, denial, or delay.
Think about it ....
As always, please let me have your comments on this important topic, thanks ...
Tuesday, June 2, 2009
Inalienable Rights
The Montana Constitution guarantees for ALL certain: "Inalienable Rights. All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life's basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways. In enjoying these rights, all persons recognize corresponding responsibilities."
Henry David Thoreau once said "It is not desirable to cultivate a respect for the law, so much as for the right," meaning that Montanans and Americans need to be ever vigilent in regards to maintaining and increasing their Human and Inalienable Rights. Merriam-Webster Online 2009 defines Inalienable as incapable of being alienated, surrendered, or transferred." As former president Jimmy Carter often noted, "America did not invent human rights. In a very real sense human rights invented America."
However, in 2009, we as Montanans and Americans see infringements of our most sacred human rights on an ever increasing scale. On our National level we see: wars, lies, newspeak, wiretapping, loss of privacy, corruption, torture, environmental degradation, corporate domination, uncontrolable spending and continuing and deepening recession while American's Civil Rights are being trampled, left and right. It also seems that 1984, the famous book by George Orwell written and published in 1949, is being followed and enacted closely in Washington, D.C. these days to the detriment of all.
So, what is it that we, as Americans and Montanans, can do today to preserve, protect and further our Inalienable Rights for our future? Perhaps take some guidance from a few great inspirations about becoming activists now, ourselves: Mother Teresa said: "Do not wait for leaders; do it alone, person to person." and "God doesn't require us to succeed; he only requires that you try." and "It is not the magnitude of our actions but the amount of love that is put into them that matters."
Nelson Mandela said: "Education is the most powerful weapon which you can use to change the world. For to be free is not merely to cast off one's chains, but to live in a way that respects and enhances the freedom of others."
Mohandas Gandhi said: "A 'No' uttered from the deepest conviction is better than a 'Yes' merely uttered to please, or worse, to avoid trouble." and "A nation's culture resides in the hearts and in the soul of its people." and "Even if you are a minority of one, the truth is the truth." and "Be the change that you want to see in the world."
Emma Goldman said: "The most violent element in society is ignorance." and "The demand for equal rights in every vocation of life is just and fair; but, after all, the most vital right is the right to love and be loved."
As always, please let me have your comments on this important topic, thanks …
Henry David Thoreau once said "It is not desirable to cultivate a respect for the law, so much as for the right," meaning that Montanans and Americans need to be ever vigilent in regards to maintaining and increasing their Human and Inalienable Rights. Merriam-Webster Online 2009 defines Inalienable as incapable of being alienated, surrendered, or transferred." As former president Jimmy Carter often noted, "America did not invent human rights. In a very real sense human rights invented America."
However, in 2009, we as Montanans and Americans see infringements of our most sacred human rights on an ever increasing scale. On our National level we see: wars, lies, newspeak, wiretapping, loss of privacy, corruption, torture, environmental degradation, corporate domination, uncontrolable spending and continuing and deepening recession while American's Civil Rights are being trampled, left and right. It also seems that 1984, the famous book by George Orwell written and published in 1949, is being followed and enacted closely in Washington, D.C. these days to the detriment of all.
So, what is it that we, as Americans and Montanans, can do today to preserve, protect and further our Inalienable Rights for our future? Perhaps take some guidance from a few great inspirations about becoming activists now, ourselves: Mother Teresa said: "Do not wait for leaders; do it alone, person to person." and "God doesn't require us to succeed; he only requires that you try." and "It is not the magnitude of our actions but the amount of love that is put into them that matters."
Nelson Mandela said: "Education is the most powerful weapon which you can use to change the world. For to be free is not merely to cast off one's chains, but to live in a way that respects and enhances the freedom of others."
Mohandas Gandhi said: "A 'No' uttered from the deepest conviction is better than a 'Yes' merely uttered to please, or worse, to avoid trouble." and "A nation's culture resides in the hearts and in the soul of its people." and "Even if you are a minority of one, the truth is the truth." and "Be the change that you want to see in the world."
Emma Goldman said: "The most violent element in society is ignorance." and "The demand for equal rights in every vocation of life is just and fair; but, after all, the most vital right is the right to love and be loved."
As always, please let me have your comments on this important topic, thanks …
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 …
Thursday, May 14, 2009
Equal Access
On first blush when we as Americans, hear or search something out about equal access in Montana or in America (as elsewhere I'm sure), it is usually about access to education or women's rights or healthcare or social justice or fishing rights etc, but, NOT about Equal Access to Justice. Why? At the base of ANY equal access issue, is the ultimate question of Justice. If we start with the root of the word Equal from the French word egal meaning that all people are endowed with basic human rights and therefore have the same (equal) political, economic, social, and civil rights; And then we look to justice : "the maintenance or administration of what is just especially by the impartial adjustment of conflicting claims or the assignment of merited rewards or punishments." From Webster's OpenDictionary and attributed to 12th century Middle English.
So how did our ancestors deal with the concepts of equality and justice?
In America, in the Bill of Rights to our Constitution (the highest law of our land) and the preamble to Our Declaration of Independence, Americans set the tone of American Justice over two hundred years ago...
"When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. 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, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness..."
And from our Bill of Rights to Our Constitution ... Fifth Amendment – due process, double jeopardy, self-incrimination, eminent domain. "No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. " Ninth Amendment – Protection of rights not specifically enumerated in the Bill of Rights. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. " Tenth Amendment – Powers of States and people. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
So what were these truths concerning equality and justice that were self-evident: being created equally with certain unalienable Rights: life, liberty and the pursuit of Happiness? And why, was it necessary to justice to reinforce these truths in the 5th Amendment with "...nor be deprived of life, liberty, or property, without due process of law?" Inorder to interpret these concepts for just powers from the consent of the governed and insure that all parties were dealt with impartially, fairly and equitably, our forefathers set up the third branch of American Government in our Constitution. Article Three - establishes the judicial branch of the federal government. "The judicial branch comprises the Supreme Court of the United States along with lower federal courts established pursuant to legislation by Congress. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed." Yet nowhere in its enabling or creation or history of our Federal courts and very little in the State of Montana Courts, has equality or justice been mentioned, established or enforced. It is merely a Court of Laws, without the Spirit of American Justice or Equality behind it.
And in the overall American System of Law, therein lies the problem. For law is merely: "A rule of conduct established and enforced by the authority, legislation, or custom of a given community, State, or nation." From Webster's OpenDictionary
So how do we regain Equal Access and Justice in Our American Court System in 2009? In our State Court Systems! Please look above for articles 9 and 10 in our Bill of Rights!
As always, Please let me have your comments on this important topic, thanks ...
So how did our ancestors deal with the concepts of equality and justice?
In America, in the Bill of Rights to our Constitution (the highest law of our land) and the preamble to Our Declaration of Independence, Americans set the tone of American Justice over two hundred years ago...
"When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. 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, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness..."
And from our Bill of Rights to Our Constitution ... Fifth Amendment – due process, double jeopardy, self-incrimination, eminent domain. "No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. " Ninth Amendment – Protection of rights not specifically enumerated in the Bill of Rights. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. " Tenth Amendment – Powers of States and people. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
So what were these truths concerning equality and justice that were self-evident: being created equally with certain unalienable Rights: life, liberty and the pursuit of Happiness? And why, was it necessary to justice to reinforce these truths in the 5th Amendment with "...nor be deprived of life, liberty, or property, without due process of law?" Inorder to interpret these concepts for just powers from the consent of the governed and insure that all parties were dealt with impartially, fairly and equitably, our forefathers set up the third branch of American Government in our Constitution. Article Three - establishes the judicial branch of the federal government. "The judicial branch comprises the Supreme Court of the United States along with lower federal courts established pursuant to legislation by Congress. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed." Yet nowhere in its enabling or creation or history of our Federal courts and very little in the State of Montana Courts, has equality or justice been mentioned, established or enforced. It is merely a Court of Laws, without the Spirit of American Justice or Equality behind it.
And in the overall American System of Law, therein lies the problem. For law is merely: "A rule of conduct established and enforced by the authority, legislation, or custom of a given community, State, or nation." From Webster's OpenDictionary
So how do we regain Equal Access and Justice in Our American Court System in 2009? In our State Court Systems! Please look above for articles 9 and 10 in our Bill of Rights!
As always, Please let me have your comments on this important topic, thanks ...
Tuesday, May 12, 2009
Montana’s (new) public defender system
What is "equal access to justice"?
For the discussion here and although, I have spent some considerable time, researching around the internet, for an applicable definition for equal access to justice, I have not been successful. And maybe because they haven't defined it, is why so many governments around the world are having trouble with attaining equal access to justice. However, for this discussion, I shall define equal access to justice as: "The freedom or ability to fairly and equitably engage in the Montana system of jurispurdence regardless of a persons ability to pay."
On July 1, 2006 the Office of the State Public Defender (http://publicdefender.mt.gov/) assumed responsibility for statewide Public Defender Services, previously provided by cities and counties. These services are now provided statewide through Regional Offices of the State Public Defender.
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.
The summary of Montana's State Public Defender Act is here: http://publicdefender.mt.gov/forms/pdf/bill_summary.pdf
And does Article ll - Section 4 of Montana's Constitution: Individual Dignity establish an affirmative obligation of the State to not discriminate in providing its' Public Defender services to ensure equal access to justice to the State's indigent?
Montana State District Judge Kenneth R. Neill (Cascade County) seems to concur. In a ruling April 15, 2009 Judge Neill stated, "assistance of counsel is a fundamental right guaranteed by the U.S. and Montana constitutions." And that a change in (Montana) state law, effective in 2006, "unambiguously erased the judge's desires in the matter of appointing a public defender." Read the Great Falls Tribune story here ... http://www.greatfallstribune.com/apps/pbcs.dll/article?AID=2009904220314
"There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." Griffin v. Illinois, 351 US 12, 19 (1956)
Please let me have your comments on this important topic, thanks ...
For the discussion here and although, I have spent some considerable time, researching around the internet, for an applicable definition for equal access to justice, I have not been successful. And maybe because they haven't defined it, is why so many governments around the world are having trouble with attaining equal access to justice. However, for this discussion, I shall define equal access to justice as: "The freedom or ability to fairly and equitably engage in the Montana system of jurispurdence regardless of a persons ability to pay."
On July 1, 2006 the Office of the State Public Defender (http://publicdefender.mt.gov/) assumed responsibility for statewide Public Defender Services, previously provided by cities and counties. These services are now provided statewide through Regional Offices of the State Public Defender.
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.
The summary of Montana's State Public Defender Act is here: http://publicdefender.mt.gov/forms/pdf/bill_summary.pdf
And does Article ll - Section 4 of Montana's Constitution: Individual Dignity establish an affirmative obligation of the State to not discriminate in providing its' Public Defender services to ensure equal access to justice to the State's indigent?
Montana State District Judge Kenneth R. Neill (Cascade County) seems to concur. In a ruling April 15, 2009 Judge Neill stated, "assistance of counsel is a fundamental right guaranteed by the U.S. and Montana constitutions." And that a change in (Montana) state law, effective in 2006, "unambiguously erased the judge's desires in the matter of appointing a public defender." Read the Great Falls Tribune story here ... http://www.greatfallstribune.com/apps/pbcs.dll/article?AID=2009904220314
"There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." Griffin v. Illinois, 351 US 12, 19 (1956)
Please let me have your comments on this important topic, thanks ...
The Case for Court appointed Civil Defenders for the poor in Montana
First, I spent a lot of time and energy talking with Civil Attorneys about my case (fleshing out the issues, as it were). However, I could find no attorney willing to take my case in 2002-2003 before having to file it myself. The reason as I’ve learned in the prusuing 6 years since beginning the case is that I have spent more than six thousand hours and many, many dollars prosecuting my case. And Unfortunately, I can not publish the issues in my case (for fear of prejudice to the defense) although it is a matter of public record at the Missoula County Court House (Gold vs City & County of Missoula DV 03-46) if you are interested.
And now onto the beginning discussion of the issues in my new cause …
Civ Def #1: This is the beginning of my stating of the Case for Court appointed Civil Defenders for the poor in Montana (DV 09-320).
Recently, in the Missoulian newspaper, there were stories of two widely divergent Federal District Court Cases in Missoula. #1 was “Jurors find W.R. Grace and execs not guilty,” thanks to the multimillion dollar effort by a team of Defense Lawyers lead by David Bernick that one blogger termed the “The O.J. verdict of environmental crime.” http://missoulian.com/articles/2009/05/09/bnews/br67.txt
And District Court Case #2 was “Conservationists settle free-speech lawsuit with Bitterroot National Forest.” http://missoulian.com/articles/2009/05/04/news/local/news05.txt In this trial Conservationists who were excluded from a press conference at the Bitterroot National Forest supervisor’s office in Hamilton, were pursuing a Civil Free Speech Case against the Government and quoting from the article, “The three men said late last week they believed they had a good case, but couldn’t afford to continue the legal fight. “It boiled down to the fact that the legal process is expensive and we could no longer afford the cost,” Miller said. “We feel like we have some very good strong issues … we just couldn’t continue.” All of the men remain disappointed about the agency’s decision to exclude them from the news conference. “I was humiliated by my own government,” Campbell said. “I feel like I was treated like a second-class citizen.”
The question these two widely divergent cases point to as we Americans face the uphill battle to maintain our Rights guaranteed by both the Montana and the US Constitutions is: As Lawyers fees and Court Costs become increasingly more expensive, how do Montanan’s initiate and maintain sustained legal battles to protect our dwindling Civil Rights with very limited resources? In 2009, how is equal protection in Montana’s Court rooms being insured? How are Montana Lawyers working to insure that low income Montanan’s have equal access to the Courts?
In Montana, our Constitution guarantees in Article ll – 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. 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 … In enjoying these rights, all persons recognize corresponding responsibilities. And in Section 16. The administration of justice. Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character… Right and justice shall be administered without sale, denial, or delay.
I appreciate your comments, as I prepare my pro se court case.
And now onto the beginning discussion of the issues in my new cause …
Civ Def #1: This is the beginning of my stating of the Case for Court appointed Civil Defenders for the poor in Montana (DV 09-320).
Recently, in the Missoulian newspaper, there were stories of two widely divergent Federal District Court Cases in Missoula. #1 was “Jurors find W.R. Grace and execs not guilty,” thanks to the multimillion dollar effort by a team of Defense Lawyers lead by David Bernick that one blogger termed the “The O.J. verdict of environmental crime.” http://missoulian.com/articles/2009/05/09/bnews/br67.txt
And District Court Case #2 was “Conservationists settle free-speech lawsuit with Bitterroot National Forest.” http://missoulian.com/articles/2009/05/04/news/local/news05.txt In this trial Conservationists who were excluded from a press conference at the Bitterroot National Forest supervisor’s office in Hamilton, were pursuing a Civil Free Speech Case against the Government and quoting from the article, “The three men said late last week they believed they had a good case, but couldn’t afford to continue the legal fight. “It boiled down to the fact that the legal process is expensive and we could no longer afford the cost,” Miller said. “We feel like we have some very good strong issues … we just couldn’t continue.” All of the men remain disappointed about the agency’s decision to exclude them from the news conference. “I was humiliated by my own government,” Campbell said. “I feel like I was treated like a second-class citizen.”
The question these two widely divergent cases point to as we Americans face the uphill battle to maintain our Rights guaranteed by both the Montana and the US Constitutions is: As Lawyers fees and Court Costs become increasingly more expensive, how do Montanan’s initiate and maintain sustained legal battles to protect our dwindling Civil Rights with very limited resources? In 2009, how is equal protection in Montana’s Court rooms being insured? How are Montana Lawyers working to insure that low income Montanan’s have equal access to the Courts?
In Montana, our Constitution guarantees in Article ll – 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. 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 … In enjoying these rights, all persons recognize corresponding responsibilities. And in Section 16. The administration of justice. Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character… Right and justice shall be administered without sale, denial, or delay.
I appreciate your comments, as I prepare my pro se court case.
Introduction
With this blog I hope to engender dialog about improving and updating Montana’s Court system. First, I’ll start off with some of my background, so that the dialog will have context.
My name is Rick Gold, I live in Missoula, and I am an activist working for social and environmental awareness, and hopefully, to effect positive change.
This blog is a conversation from the street level view of the Montana Court System in the 21st century as I have personally experienced it. I am NOT an attorney, yet, because of lack of finances, I have been forced to act as my own attorney (pro se) in a Civil case against the City and County of Missoula since January 2003.
This situation of Montanan’s being forced to be their own Civil attorneys because of lack of funds is what I will call the large pink and white elephant in the middle of Montana’s Court Rooms statewide. In 2002-2003, even though Duties: For Montana lawyers: included PRO BONO PUBLICO SERVICE, “Every lawyer has a professional responsibility to provide legal services to those unable to pay,” I could find NO competent Civil attorney (although I called them all in a 10 mile radius of Missoula as well as the Montana Legal Aid and the Montana ACLU).
So, I had to file pro se and learn as I went. Pull myself up by my bootstraps, Montana style. Since, 2003, I have learned a great deal about the Montana Legal System and it’s Courts and procedures and somehow managed to hold my own facing the well funded and well staffed law offices of the City and the County. Then in May 2007, being frustrated with what was happening with my case, I asked Judge Harkin to appoint Public Counsel for me under the then new Montana Public Defender act which claimed to be , “Establishing a Statewide Public Defender System and Specifying the Scope of Public Defender Services in Criminal and Civil Proceedings …” But, Judge harkin denied my motion stating, he relied upon an email from Ed Sheehy, Jr – Regional Deputy Public Defender, Region 2, that stated that “Montana law only allows for the appointment of counsel in cases governed by section 47-1-104(4), MCA. The only civil cases where appointment may be authorized are: postconviction; habeas corpus; involuntary commitment; and, guardianships.”
Yet, the Montana Constitution guarantees in Article II – Section 4, that, “ 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.” So, why would the state government and Montana’s Courts deny equal protection of the laws in the court rooms of this state by specifically discriminating against the poor in Civil cases? Who benefits? Who loses? Really, I don’t know.
I have filed twice with the Montana Supreme Court (Writs of Supervisory Control) but the Supreme Court has neglected to respond. So, now, consequently, I have just filed another lawsuit (in Missoula against the State, our legislature & our Governor) asking why only those four clases of Civil cases (above) rate equality when the only qualifier (within the public defender law ) I can determine is that one doesn’t have the funds to pay an attorney. What are your thoughts?
My name is Rick Gold, I live in Missoula, and I am an activist working for social and environmental awareness, and hopefully, to effect positive change.
This blog is a conversation from the street level view of the Montana Court System in the 21st century as I have personally experienced it. I am NOT an attorney, yet, because of lack of finances, I have been forced to act as my own attorney (pro se) in a Civil case against the City and County of Missoula since January 2003.
This situation of Montanan’s being forced to be their own Civil attorneys because of lack of funds is what I will call the large pink and white elephant in the middle of Montana’s Court Rooms statewide. In 2002-2003, even though Duties: For Montana lawyers: included PRO BONO PUBLICO SERVICE, “Every lawyer has a professional responsibility to provide legal services to those unable to pay,” I could find NO competent Civil attorney (although I called them all in a 10 mile radius of Missoula as well as the Montana Legal Aid and the Montana ACLU).
So, I had to file pro se and learn as I went. Pull myself up by my bootstraps, Montana style. Since, 2003, I have learned a great deal about the Montana Legal System and it’s Courts and procedures and somehow managed to hold my own facing the well funded and well staffed law offices of the City and the County. Then in May 2007, being frustrated with what was happening with my case, I asked Judge Harkin to appoint Public Counsel for me under the then new Montana Public Defender act which claimed to be , “Establishing a Statewide Public Defender System and Specifying the Scope of Public Defender Services in Criminal and Civil Proceedings …” But, Judge harkin denied my motion stating, he relied upon an email from Ed Sheehy, Jr – Regional Deputy Public Defender, Region 2, that stated that “Montana law only allows for the appointment of counsel in cases governed by section 47-1-104(4), MCA. The only civil cases where appointment may be authorized are: postconviction; habeas corpus; involuntary commitment; and, guardianships.”
Yet, the Montana Constitution guarantees in Article II – Section 4, that, “ 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.” So, why would the state government and Montana’s Courts deny equal protection of the laws in the court rooms of this state by specifically discriminating against the poor in Civil cases? Who benefits? Who loses? Really, I don’t know.
I have filed twice with the Montana Supreme Court (Writs of Supervisory Control) but the Supreme Court has neglected to respond. So, now, consequently, I have just filed another lawsuit (in Missoula against the State, our legislature & our Governor) asking why only those four clases of Civil cases (above) rate equality when the only qualifier (within the public defender law ) I can determine is that one doesn’t have the funds to pay an attorney. What are your thoughts?
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