Subject: Tyrannical State's Rights Doctrine: Right to Jury Trial in
Civil Case Still Depends on State's Law
The following (below copied) correspondence I
received from Montana State Senator Jerry O'Neil illustrates the partial
continuation of the Tyrannical Doctrine of "STATE'S RIGHTS" which the Southern
States prosecuted a Civil War to maintain intact, and which partially
lingers on today. The Tyrannical Doctrine of "STATE'S
RIGHTS" is still the basis for Denial and Infringement By the States of
certain fundamental rights referred to in the Bill of Rights, such as the Right
to a Jury Trial in a Civil Case and "the Right of the
People to Keep and Bear
Arms"
Because the
Doctrine of STATE's RIGHTS has not been Totally Abolished (i.e., not
completely abolished by the opposing "Incorporation Doctrine" ), the State's still claim the Right to
Deny a Jury Trial in a Civil Case if they want to deny that right, and it was
not until 1967 that the STATES' RIGHTS to Deny a Jury Trial in a Criminal Case
was partly Abolished. See DUNCAN v. LOUISIANA, 391 U.S. 145
(1968) http://laws.findlaw.com/us/391/145.html
The Original
US Constitution (1787) provided:
Article 1 Section. 9. No Title of Nobility
shall be granted by the United States: And no Person holding any
Office of Profit or Trust under them, shall, without the Consent of the
Congress, accept of any present, Emolument, Office, or Title, of any kind
whatever, from any King, Prince, or foreign State.
Article 1 Section. 10. No
State shall enter into any Treaty, Alliance, or
Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit;
make any
Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of
Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or
grant any Title of Nobility.
http://www.constitution.org/cons/constitu.htm
Article III
Section. 2. The judicial Power [of the United States] 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 ... The 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." http://www.constitution.org/cons/constitu.htm
The First Amendment to the
Constitution (1789) ordained:
"Congress
shall make no law respecting an establishment of religion,
or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press;
or the
right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.
The Fifth Amendment (1789)
ordained:
No person shall be held to answer for a
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.
The Sixth Amendment (1789)
ordained:
In all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which district shall
have been previously ascertained by law, and to be informed of the nature and cause of
the accusation; to be confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.
The Seventh
Amendment (1789) ordained:
"In
Suits at common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury, shall be otherwise
re-examined in any Court of the United States, than according to the rules of
the common law."
The Tyrannical Doctrine of State's Rights is basically
the doctrine that the STATE has the RIGHTS to ABUSE people
(e.g., its own state-citizens) within its territory and that the Federal
Government (Federal Courts) have No Power to intervene and protect the citizen
from abuse by his STATE. The Doctrine of STATE's Rights was upheld by
the Supreme Court in 1833 in the case of Barron v. Baltimore:
http://groups.yahoo.com/group/Lex_Rex/message/2
In Barron, it
was decided specifically that the Fifth Amendment's express prohibition
that "nor shall private property be taken for public use, without just
compensation" ONLY restrained the FEDERAL Government, but did not
abolish the STATE's RIGHT to Take Private Property without Compensation if it
Wanted to do so. Thus, in 1833, it was settled to the satisfaction of
the Southern States that any STATE could Deprive any Person of Life, Liberty, or
Property Without Due Process of Law if it Wanted to do so, and the Federal
Government (courts) could not restrain nor punish any STATE OFFICIAL for
doing so.
The Southern State's fought the First American Civil
War to maintain the Tyrannical Doctrine of STATE's RIGHTS, including
specifically the Ancient RIGHT of the STATE to ENSLAVE ANYONE it
wanted to, white or black, for any pretended offense or for no offense at
all. And, of course, the states that claimed the RIGHT to ENSLAVE anyone
also claimed the lesser Right to Deny and Withhold from any Person who was not a
state-citizen, the Equal Protection of the Laws. And, the States also
claimed it was their Ancient RIGHT to DENY state-citizenship to any person
or class of persons that they wanted to deny state-citizenship to, or
to deprive any state-citizen of his state-citizenship if the State wanted
to. Thus, in effect, the states claimed the RIGHT to Deny and
Withhold from any Person, white or black, the Equal Protection of its
Laws, if it wanted to.
Fortunately
for Mankind, the Southern State's lost the First American Civil War and the
People of the United States who prevailed in that War abolished human
Slavery (by the Thirteenth Amendment in 1865) and then set out to abolish the
Tyrannical Doctrine of State's Rights that many believed had caused that Civil
War in the first place, by giving American citizens the right to appeal to their
National Courts for the protection of their fundamental rights (e.g., the Bill
of Rights) when their State abridged or Denied those rights. See The Original Intent of the 14th
Amendment at: http://billstclair.com/ferran/fourteenth.html Historians note
that "several capable lawyers in the Thirty-ninth Congress, the Congress
that drafted the Fourteenth Amendment, seemed unaware of Barron until the case
was brought to their attention by name by John Bingham, the principal draftsman
of Section One of the Amendment." http://www.saf.org/LawReviews/Amar1.html
The Fourteenth
Amendment expressly abrogated Tyrannical Doctrine of STATE's RIGHTS to the
extent that it provided that:
"All persons
born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens ... 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." http://www.constitution.org/cons/constitu.htm
But,
.... a bare majority of five Supreme Court Judges in The Slaughter House Cases initially slaughtered the Provisions of
the Fourteenth Amendment by holding (erroneously) that the
language of the "privileges and immunities" clause of the Fourteenth
Amendment did not succeed in having the effect of prohibiting the States
from violating the rights referred to in the Bill of Rights. But, the
struggle of humans and their champions (learned attorneys) to overcome the
Tyrannical Doctrine of State's Rights did not end there. Clever Attorneys
advocating for the Rights of the People, successfully argued that the
Due Process of Law Clause of the Fourteenth Amendment had "incorporated" at
least portions of the Bill of Rights (including the Freedom of Speech,
etc.). See Justice BLACK's opinion in Adamson
v. California, 332 U.S. 46 (1947) http://www.constitution.org/ussc/332-046c.htm
Gradually, the
Supreme Court recognized that portions of the Bill of Rights were applicable
against the States, (and partially abolished State's Rights) after all.
In practice,
however, not even all criminal prosecutions in the State Courts require a jury
trial. The Supreme Court has consistently excluded "petty offenses," as
distinguished by their punishment or the nature of the offense itself, from
triggering this right in State Courts. State courts, moreover, were not at
all bound by this standard nor the Sixth Amendment's Jury Trial guarantee until
1968, when the Supreme Court incorporated it through the Due Process Clause of
the Fourteenth Amendment (Duncan v. Louisiana, 391 U.S.
145). In both state and federal courts, an accused person still may waive
the right to a trial by jury in favor of a bench trial before a judge. http://www.crfc.org/americanjury/right_accused.html]
Today, the
Doctrine of STATE's RIGHTS partially survives to the extent that the
STATE's still claim the RIGHT to INFRINGE "the Right of the
People to Keep and Bear
Arms" and the RIGHT to Deny a Jury Trial in any Civil Case, if the State
wants to. One reason that the STATE still claim that Doctrine of STATE's
RIGHTS gives them the Power to Infringe the Right of the People to Keep and Bear
Arms" is that "in their zeal to defend the individual right to keep and bear
arms, most firearms owners limit their discussions to the Second Amendment" http://www.tysknews.com/Depts/2nd_Amend/fourteenth_amend.htm and
therefore FAIL to DEMAND INCORPORATION of that "Right of the People" into
the Fourteenth Amendment like the Right of the People to Petition and
to Speak, has been incorporated. Another reason for
the continuation of Such Tyrannical STATE's RIGHTS is that
Patriot/Reform movements have been subverted by "PAYtriots-for-Profit", Judges, and
STATE's RIGHTS advocates, who have been using Deceit and Fraud to persuade the
People to insanely demand the "repeal" of the Fourteenth Amendment instead
of the complete fulfillment of its original purpose.
"The commandment in the Fourteenth Amendment that the People in each state
must give to every "person" within their jurisdiction the "equal protection of
the laws," is a codification of the Ancient Hebrew "One Law" (for citizens and
strangers alike) principle and a codification of Jesus' Golden Rule (i.e., you
and your neighbors should be treated equally by all humans administering the
power of the sword). "It sought equality of treatment of all
persons ... similarly situated. .... It means that no person or class of
persons shall be denied the same
protection of the laws which is enjoyed by other persons or other classes
in the same place and under like circumstances." Truax v. Corrigan, 257 US
312, 331, 338 (1921). http://billstclair.com/ferran/markferran1.html
"The Due Process of Law commandment in the Fourteenth Amendment is a
codification of the rule prescribed in Deuteronomy that the King shall read
and keep within the Law, and deviate neither to The Right Nor to The Left, nor
shall he commit theft, nor murder. "The due process clause requires that
every man shall have ... the benefit of
the general law, ... so that every citizen shall
hold his life, liberty and property and immunities under the protection of the
general rules which govern society. It of course tends to secure
equality...." Truax v. Corrigan, 257 US 312, 331, 338 (1921).
http://billstclair.com/ferran/markferran1.html "The
Judeo-Christian pedigree of the Law Clauses of the Fourteenth Amendment is why
the Devil now seeks to use deceit and earthly hosts of deceit to tear down
that Christian Law. That is why you have Teachers of the Law today, like
the Whitewashed Tombs of old, declaring that only certain people are
"neighbors" entitled to the protection of the Golden Rule prescribed in the
Fourteenth Amendment. The methods of the Devil have not
changed. The words of the Constitution have not
changed. What has changed is that the Churches no longer teach
the Constitution as containing the Expressed Will of God on Earth,
and the People no longer recognize that God's Commandments already were, after
much bloody struggle and Martyrdom, written into the Constitution of the
United States."
With the above historical background, now consider
the shock and surprise of Montana State Senator [Montana state-citizen] Jerry
O'Neil when he demanded a Jury Trial in a Civil Action in a Montana State Court
of Montana and when he was denied that Jury Trial, he asked a Federal
District Court Judge to ORDER the State Court to afford him a Jury Trial.
----- Original Message -----
Sent: Monday, November 15, 2004 11:50 PM
Subject: Order denying jury trial, 11-15-04
Filed Missoula, MT 2004 Nov 15 PM 4 52
By: Patricia E. Duffy,
Deputy Clerk
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF
MONTANA
MISSOULA DIVISION
JERRY O'NEIL, on behalf of himself,
)
his clients and his
constituents,
)
)
CV
04-223-M-DWM
Plaintiff,
)
)
vs.
)
ORDER
)
MIKE McGRATH, Attorney General )
of the State of Montana, et
al.,
)
)
Defendants.
)
______________________________)
Plaintiff Jerry
O'Neil is the subject of a Petition for Finding of Civil Contempt and for
Permanent Injunction, filed by the Montana Commission on the Unauthorized
Practice of Law on July 15, 2002. Plaintiff responded to the Petition, filed in
the Eleventh [State] Court of Montana, by bringing counterclaims against
the Commission on Unauthorized Practice and the State Bar of Montana. The
counterclaim defendants in that state civil action moved successfully to strike
O=92Neil=92s request for a jury trial. the Order granting the motion, dated November
9, 2004, does not explain the reasons for the denial of O=92Neil=92s request for a
jury trial.
Whether seeking a preliminary injunction or a
temporary restraining order, O'Neil needs to satisfy the same requirements.
Welker v Cicerone, 174 F. Supp.
2d 1055, 1062, (C.D Cal. 2001). He must show either the possibility of
irreparable injury and a likelihood of success, or the existence of serious
questions going to the merits and the balance of hardships tipping in his favor.
id., quoting
Diamontiney
v Borg
918 F.2d 793, 795 (9th Cir. 1990). He meets neither test.
The right for which O'Neil seeks this Court's
protection, i.e.,
the right to a jury trial in civil matters, does not
extend to actions in state courts.
see R.J. Reynolds Tobacco Co. v. Shewry,
384 F.3d 1126, 1142 (9th Cir. 2004) (citing
Dohany v. Rogers,
281 U.S. 362, 369 (1930)).
The Seventh Amendment's guarantee of the right to a civil trial by jury
does not apply to the states
and was not
incorporated into
the Fourteenth Amendment.
Id. As
a result, O'Neil cannot demonstrate the likelihood of success on the merits, but
rather has demonstrated the certainty of failure.
This fundamental defect in Plaintiff O=92Neil=92s Complaint
and request for a temporary restraining order obviates the need for a hearing on
his preliminary injunction request. Plaintiff has no chance for success in his
quest to invoke the power of this Court to protect a right he does not possess.
The Court therefore denies the Plaintiff's request for a preliminary
injunction.
There still remains Plaintiff's challenge to the
constitutionality of Mont. Code Ann. section 37-41-201. Because it appears the
question of the validity of that statute is suitable for summary disposition,
the Court will order a briefing schedule on that question.
Accordingly, IT IS HEREBY ORDERED
that Plaintiff O=92Neil=92s request for a temporary restraining order and
preliminary injunction is DENIED.
IT IS FURTHER ORDERED
that the parties shall brief the question of the constitutionality of Mont. Code
Ann. section 37-61-201 according to the following schedule:
Plaintiff's
Opening Brief in
Support of Summary
Judgment:
December 16, 2004
Defendants' Combined Response
Brief and Brief in
Support of
Summary
Judgment:
January 22, 2005
Plaintiff's Response/Reply
(10 page
maximum):
February 4, 2005
Defendants' Reply (10
pages):
February 18, 2005
Plaintiff is further instructed to
serve the Defendants with the Complaint and a copy of this Order no later than
December 4, 2004.
DATED this 15th day of November,
2004
Donald W. Molloy, Chief Judge
United States District
Court
----- Original Message -----
Sent: Tuesday, January 25, 2005 1:46 PM
Subject: LC2226
I have a proposed bill which presently
states:
"A Bill for an Act entitled: "An Act revising the penalty for
practicing law without a license; providing that except in cases involving fraud
no penalty other than contempt of court may be imposed on a person providing
advice in the course of the person's profession or occupation; amending section
37-61-210, MCA; and providing an immediate effective date."
Be it enacted
by the Legislature of the State of Montana:
Section
1. Section 37-61-210, MCA, is amended to read:
"37-61-210. Penalty for practicing without license. (1)
If any person practices law in any court, except a justice's court or a city
court, without having received a license as attorney and counselor,
he the person is guilty of a contempt of
court.
(2) Except in cases involving fraud, a
penalty other than the penalty provided in subsection (1) may not be imposed on
a person for providing advice in the course of the person's profession or
occupation."
I am wondering if I need to add some other wrongs to
be penalized in addition to "fraud." I would appreciate your critique and help
with this bill.
Jerry O'Neil
406-444-4361
----- Original Message -----
Senate kills attorney bill
Associated Press
HELENA - [Montana State] Sen. Jerry O'Neil, R-Kalispell, pitched a set of
bills Monday that promote his long-standing battle to give non-attorneys
permission to provide legal advice and prepare legal documents.
Just hours later, the Senate Judiciary Committee killed the bills.
O'Neil put forth one measure that would have given the Legislature, rather
than the Supreme Court, the power to determine who is eligible to practice law.
Another measure would limit penalties for practicing law without a license. His
third measure would allow non-attorneys to prepare written separation agreements
and family law mediation agreements.
"There's other good ways to learn the law besides graduating from the
(American Bar Association) system," O'Neil said.
But O'Neil has not been successful in convincing courts. In December 2004, a
district judge found O'Neil in contempt after a two-day trial and ordered the
state Commission on the Unauthorized Practice of Law to issue an injunction
against O'Neil practicing law.
In 1986 O'Neil's candidacy for the Montana Supreme Court was rejected because
he is not an attorney, which is a constitutional requirement for those seeking a
seat on the state's high court.