I attended a panel discussion at The 2010 Browning Symposium at the
University of Montana sponsored by the Montana Law Review (see <a
href="http://montanalawreview.com/id62.html">http://
montanalawreview.com/id62.html</a> ).
In questioning the assumptions of the panelists at the 11:40 panel
entitled "Constitutional Torts: Does Such a Cause of Action Exist"
concerning "poor people" read "indigent" in Montana gaining Civil
relief and/or enforcing their Self-Executing Constitutional Rights in
the Courts, pro se, I was informed that the "public defender" system
in Montana is overwhelmed and underfunded and deals almost exclusively
with the criminal side of Montana Law read "defense."
In my cause (5/4/2010) against the State of Montana (see
<a href="http://fnweb1.isd.doa.state.mt.us/idmws/custom/sll/
SLL_FN_Home.htm">http://fnweb1.isd.doa.state.mt.us/idmws/custom/sll/
SLL_FN_Home.htm</a>
Enter either ( DA 09-0675 ) in the box and click search; or
Click on: Party search name and enter Gold;
Next click on Gold v. State and then click on Appelant Brief first
then the 2 other briefs and new windows will pop up with pdfs which
you can save and read.)
for refusing to appoint a public defender in my ongoing cause DV03-46.
In their opinion on Self-Executing Constitutional Torts, the Court
wrote:
"Gold's remaining arguments involve the merits of his constitutional
claims. He
asserts that the "political reality" of 2010 is that indigent
individuals in Montana cannot obtain legal counsel for civil
complaints involving guaranteed fundamental rights. He contends that
the Montana Public Defender Act unlawfully discriminates in allowing
counsel for certain civil cases but denying it for all others—in
particular, by denying it in cases involving fundamental rights.
Citing the specially concurring opinion in Kloss v. Edward D. Jones &
Co., 2002 MT 129, ¶ 58, 310 Mont. 123, 54 P.3d 1, Gold points out that
constitutional rights that cannot be enforced are illusory. He argues
that the rights to equal protection of the laws and equal access to
justice should work together to prevent discrimination against the
poor in Montana's justice system. But he contends that this presently
is not the case and that indigent persons against whom the State has
allegedly discriminated are denied the assistance of counsel in
prosecuting these offenses. In
support of his arguments, Gold quotes at some length from the 1972
Constitutional
Convention transcripts and the specially concurring opinion in Dorwart
v. Caraway,
2002 MT 240, ¶¶ 79-98, 312 Mont. 1, 58 P.3d 128, and he cites various
other cases from this Court and the United States Supreme Court.
¶9 The State, in turn, argues that if this Court reaches the substance
of Gold's
constitutional claims, the defendants were entitled to summary
judgment on each one.
The State provides separate analyses respecting procedural due process
(Article II,
Section 17), access to the courts (Article II, Section 16), the right
to defend property rights (Article II, Section 3), equal protection
(Article II, Section 4), substantive due process (Article II, Section
17), and the oath of office (Article III, Section 3).
¶10 Having considered the briefs and the record, we conclude that Gold
has failed to
refute the State's arguments that the Legislature and the Governor are
statutorily immune from suit on Gold's claims. We further conclude
that while Gold, as a self-represented litigant, has made a genuine
effort to research and develop his constitutional arguments on appeal,
his claims nevertheless have not been sufficiently presented and
argued so as to permit this Court to decide them on the merits. We
acknowledge the irony of the situation—the Catch-22 in which Gold
finds himself—namely, that the fact his claims have not been
adequately presented is itself reflective of the very claims he is
attempting to present: that as an indigent citizen, he requires the
assistance of counsel to vindicate his constitutional civil rights.
Nevertheless, this Court simply cannot decide a question of such
significant import on the basis of the current briefing. Moreover,
even setting aside this aspect of the case, the record presently
before this Court is wholly inadequate for purposes of deciding such a
claim. Cf. Brady v. PPL Montana, LLC, 2008 MT 177, ¶ 5, 343 Mont. 405,
185 P.3d 330 (refusing to address constitutional issues "in a relative
vacuum").
And unfortunately, no one in Montana's legal community is addressing
this very situation.
As always,
Think about this and I'd like to encourage your comments about this
important topic.
Feel free to follow this important Case.
peace,
Rick Gold
Missoula, MT
http://mtlegal.blogspot.com/
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