Dixianne Hawks In Propria Persona 13803 N. Granada Drive Magalia, California 95954 John E. Wolfgram, J.D. Assistant Counsel Constitutional Defender Association 4826 South Studebaker Road Placerville, California 95667 THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM 1995 DIXIANNE HAWKS, No. 95-7473 Plaintiff-Appellant-Petitioner 9th Circuit Court of Appeals: Appeal Case No. 95-16714 v. Civil Case No. 9382-WBS (Eastern District of Calif.) COUNTY OF BUTTE, DISTRICT JUDGE GARCIA, CIRCUIT JUDGES SCHROEDER, CANBY AND WIGGINS, SUGGESTION THAT THE COURT REQUEST A RESPONSE FROM Defendants-Appellees THE EXECUTIVE BRANCH ________________________________/ WITH POINTS AND AUTHORITIES NINTH CIRCUIT COURT OF APPEALS, Respondent ________________________________/ Whereas: The Solicitor General has WAIVED the Administration's "right to respond" to the Petition by filing a Waiver on February 1, 1996. Petitioner Dixianne Hawks respectfully suggests that this Court formally request the Solicitor General to file a response specifically addressing the issues in Her Petition for a Peremptory Writ of Mandamus, as herein stated, on the grounds that the issues concern good faith enforcement of treaties, and they affect the relationships between the Judicial and Executive Branches of the Federal Government, and between the Federal and State Governments. Request for Executive Response: Page 1 of 10 ISSUES THE SOLICITOR GENERAL SHOULD ADDRESS The issues arise under the Jurisdictional Statement, Point 1: Aid to Court's Appellate Jurisdiction, pages 6-9. Petitioner does not suggest that the Court should limit its request to one issue, nor should the Court suggest to the Solicitor General that other issues are not important. Rather, there is one issue of such overriding significance in matters of judicial policy affecting the relationships between the Judicial and Executive Branches of Government, and between the Federal and State Governments, that this Court should ask the Solicitor General to address the merits, and it should also obtain his input on the solution. Even Petitioner believes, because of the importance of this issue, that She, as a Citizen, and this Court, as a Co-Equal Branch of Government, can both benefit from learning the Executive's concerns with respect to the good faith of the United States in adhering to treaties affecting the domestic administration of justice in and through our Judiciary. In point of fact, it is very unusual for this Court to be called upon to assure domestic, good faith compliance with treaties. Usually, that task is left to the Executive Branch, under its duty to "take Care that the Laws be faithfully executed." Article II, Section 3. But, the two treaties relied on show two major differences from most treaties: Request for Executive Response: Page 2 of 10 FIRST, a major part of the substance of the Universal Declaration of Human Rights ("Declaration" hereinafter) and the International Covenant on Civil and Political Rights ("Covenant" hereinafter) directly concerns the administration of domestic justice. Thus, good faith performance under the treaty comes directly under this Court's duty to supervise the Judiciary. As set out in Her Petition beginning at 8:5, first Butte County "violated Her rights under Articles 9, l7, 19 and 21 of the International Covenant." Next: "Defendant District Judge Garcia's First Dismissal prevented any judicial remedy, but for the first appeal; and the Defendant Circuit Judges prevented all judicial remedy, but for rehearing and the extraordinary efforts not usually expected of an IFP plaintiff. But the result was that the Defendants perpetuated the procedural mechanism by which they arbitrarily foreclose such appeals in all but the most determined cases. Those procedural mechanisms not only circumvent the due Appellate Jurisdiction of this Court as to poor persons, but, insofar as this Court is a [co-equal] branch of the United States Government, they usurp this Court's ability to perform its supervisory obligation to ensure United States good faith compliance with its treaties adopted to defend human and political rights around the world [including in the United States of America]." [emphasis in original Petition at p. 8:6] In effect, Petitioner complains of systematic violations in the administration of domestic justice, in direct violation of fundamental rights guaranteed to all Americans by Our Constitution and protected by the two treaties mentioned on a worldwide basis. She comes to this Court under BOTH of its hats: (1) as a co-equal branch directly responsible for good faith compliance with treaty obligations and (2) under its other hat, as the Head of the Judiciary, it is the Branch of the Federal Government directly responsible for the administration of justice throughout the Land. Request for Executive Response: Page 3 of 10 Thus, the first issue the Solicitor General should address is the United States' concurrence in, or opposition to, the contention that this Court has an obligation, under the treaties, to ensure the good faith adherence by the Judiciary to the judicial principles and standards stated in those treaties. SECOND: The U.S. Senate, in ratifying the Covenant, recognized that it is not self-executing and requires the United States to "take measures appropriate to the federal system to the end that the competent authorities of the State or Local Governments may take appropriate measures for the fulfillment of the Covenant." The result is that the Executive and Judicial Branches have a legal duty to design and clarify the substantive and procedural rights and remedies necessary to implement them effectively. While it is unusual for the Court to interpret treaties with respect to domestic rights, remedies, and procedures, Senate ratification of the Covenant presents a question of first impression at a critical stage in U.S. history, when the States are increasingly demanding States' Rights under the Tenth Amendment and the People are now increasingly more cynical of unbalanced Federal power. Many Americans are fearful of our relationship with the United Nations because it is another centralization of government power over them and, as such, it threatens traditional American liberty. But the Covenant, under the Senate's reservations, obtains just the opposite effect. Those reservations decentralize enforcement of important American fundamental rights and return it to the States and to the People. That, in turn, increases public confidence in our relationship with the United Nations, and in our Government. Request for Executive Response: Page 4 of 10 THE SENATE RATIFICATION OF THE TREATY What the Senate said in its ratification, and what President George Bush accepted as conditions limiting its ratification, are an important part of the treaty and its legislative history. Specifically, Article II, Section 5, of the Document of Ratification of the International Covenant (hereinafter "Ratification Document"), signed by President Bush on June 1, 1992, contains the reservation: "(5) That the United States understands that this Covenant shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments; to the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall take measures appropriate to the Federal system to the end that the competent authorities of the state or local governments may take appropriate measures for the fulfillment of the Covenant." [emphasis added] The first emphasized clause above clearly means that the Federal Government SHALL implement the treaty, and it is clear that this Court has jurisdiction over the matters raised. Thus, this Court shall implement the treaty with respect to the Judiciary. The issue that arises under the Covenant in the instant case is the mechanism of enforcement if this Court does not execute the Covenant. Article 50 of the Covenant contemplates other agencies in federal States, to wit: "The provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions." Request for Executive Response: Page 5 of 10 With respect to enforcement, the Ratification Document requires delegation of treaty enforcement rights and duties to the States and Localities with respect to matters within their jurisdiction, AND it requires the United States to enable the States and Localities to "take appropriate measures for the fulfillment of the Covenant." Given that we are talking about a treaty, that can only mean enforcement against the United States. As far as Petitioner can see, this is an entirely new principle of treaty enforcement that is consistent with the aims and objects of the treaty, and with decentralization of government under the Tenth Amendment, as addressed in United States v Lopez, 115 S.Ct. 1624 (1995). Said the Chief Justice quoting from Gregory v Ashcroft, 501 US 452, 458 (1991): "Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front." That is the object of both treaties as stated in their Preambles. But what does this mean with respect to the rights and remedies of the People? Petitioner concedes that the treaties are only concerned with systematic violations of the rights described therein, but that is precisely what she is alleging, both in Her Petition for Mandamus, and in Her Opening Brief to the Ninth Circuit Court of Appeals, also under the treaties. Suppose, for example, this Court does not grant relief. She has thus exhausted her federal remedies, and her substantive appeal issues are without remedy by reason of Her financial status. Under its Reservations, the Federal Government "SHALL take measures appropriate to the Federal system to the end that competent authorities of the state or local governments may take appropriate measures for the fulfillment of the Covenant." Request for Executive Response: Page 6 of 10 Failure of this Court to execute the treaty is a "measure," albeit by default, and that default, under the Reservations, calls upon the States to take action against their federal big brother who refuses to abide a treaty that binds both Federal and State Governments to the rest of the civilized world. The "mandatory jurisdiction" of this Court is to perfect its leadership by promoting the best of American judicial standards to the rest of the world. In effect, the Senate is balancing States' Rights against Federal Supremacy under the treaty. Under the Reservations, the States have the authority, and the federal government has the duty, to provide a mechanism by which the States and Localities can enforce the Treaty against the Federal Government, if it does not comply of its own accord. The Covenant requires, in Article 2, Sections 3(a) and 3(b), that People whose rights or freedoms are injured by persons acting in their official capacity shall have an effective judicial remedy (see Petition at page 7), and that State parties are to develop the possibilities of judicial remedy. In the underlying case, Petitioner has been injured by reason of systematic violations by federal judges of Rights described in the treaty, e.g. the Right to access a judicial remedy notwithstanding poverty or property. She is thus entitled to a judicial remedy, but she cannot get a judicial remedy, because of a systematic judicial immunity that also offends the treaty. If, under the Reservations, She has no federal remedy for treaty violations by the Federal Government, then where is Her remedy? Request for Executive Response: Page 7 of 10 Is it in State court to compel the Federal Government to comply with its treaty obligations undertaken for the benefit of the State's Citizens, as stated in the Ratification Document? This is not a simple "federal supremacy" issue, because the Ratification Document clearly contemplates State and Local enforcement; and the alternative is enforcement by foreign nations. Is it in county Court for the same reason? Is it through the Governor or Board of Supervisors? Or is it in State Supreme Court? Request for Executive Response: Page 8 of 10 HUMAN RIGHTS COMMITTEE OF THE UNITED NATIONS The Ratification Document, Art. III, Sec.(3), declares: "(3) That the United States declares that it accepts the competence of the Human Rights Committee to receive and consider communications under Article 41 in which a State Party claims that another State Party is not fulfilling its obligations under the Covenant." While it is clear that a foreign nation qualifying under Article 41 may enforce the treaty against the United States before the Human Rights Committee, does the Ratification Reservation in Article II, Section 5, also mean that States and Localities have standing to enforce the treaty against the United States before the Committee, and if so, what is the mechanism? Obviously, there are many benefits to the United States, should it recognize the standing of States and Localities under Article 41 to enforce our rights under the Covenant against the Federal Government. By that mechanism, domestic compliance problems are first addressed and solved by domestic adversaries without foreign state intervention. But equally important is the question of whether the Human Rights Committee will recognize their standing there as well. Now that the Senate has spoken, it is important that the Executive and this Court solve the problems of implementation and good faith adherence, to provide to the Human Rights Committee a balanced procedural mechanism which achieves the treaty objectives. Therefore, this Court should request the Administration kindly to contribute to the solution. Petitioner hereby suggests that this Court request a formal response from the Administration on the merits of Her Petition, particularly addressing the mandatory jurisdictional issues presented herein, and allow it to withdraw its Waiver. Request for Executive Response: Page 9 of 10 Dated: February 8, l996 /s/ Dixianne Hawks _______________________________ Dixianne Hawks, Petitioner by John E. Wolfgram, J.D. Request for Executive Response: Page 10 of 10 # # #
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Hawks v. County of Butte et al.