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Date: Tue, 19 Aug 1997 16:01:38 -0700
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From: Paul Andrew Mitchell [address in tool bar]
Subject: L&J: SLS: Reservations to International Covenant
<snip>
>
>Subject: SLS: Reservations to International Covenant
>
>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
>
>
> 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
>
>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
>
>
> # # #
========================================================================
Paul Andrew Mitchell : Counselor at Law, federal witness
B.A., Political Science, UCLA; M.S., Public Administration, U.C. Irvine
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