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


                       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.)
                                      REQUEST A RESPONSE FROM
    Defendants-Appellees               THE EXECUTIVE BRANCH
                                    WITH POINTS AND AUTHORITIES


     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


     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


     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


     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
                                           [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


     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


     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


     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


     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

          Request for Executive Response:  Page 7 of 10

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?

     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


     Is it  in county  Court for the same reason?  Is it through

the Governor or Board of Supervisors?  Or is it in State Supreme


          Request for Executive Response:  Page 8 of 10


     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


     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