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.