Time: Tue Aug 19 16:15:11 1997 by primenet.com (8.8.5/8.8.5) with ESMTP id QAA06479; Tue, 19 Aug 1997 16:12:47 -0700 (MST) id TAA12128; Tue, 19 Aug 1997 19:07:57 -0400 (EDT) id TAA12091; Tue, 19 Aug 1997 19:07:43 -0400 (EDT) id AA02511; Tue, 19 Aug 1997 19:07:41 -0400 by usr01.primenet.com (8.8.5/8.8.5) with SMTP id QAA12604; Tue, 19 Aug 1997 16:02:58 -0700 (MST) Date: Tue, 19 Aug 1997 16:01:38 -0700 To: (Recipient list suppressed) From: Paul Andrew Mitchell [address in tool bar] Subject: SNET: SLS: Reservations to International Covenant -> SearchNet's SNETNEWS Mailing List <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 tel: (520) 320-1514: machine; fax: (520) 320-1256: 24-hour/day-night email: [address in tool bar] : using Eudora Pro 3.0.3 on 586 CPU website: http://www.supremelaw.com : visit the Supreme Law Library now ship to: c/o 2509 N. Campbell, #1776 : this is free speech, at its best Tucson, Arizona state : state zone, not the federal zone Postal Zone 85719/tdc : USPS delays first class w/o this As agents of the Most High, we came here to establish justice. We shall not leave, until our mission is accomplished and justice reigns eternal. ======================================================================== [This text formatted on-screen in Courier 11, non-proportional spacing.] -> Send "subscribe snetnews " to majordomo@world.std.com -> Posted by: Paul Andrew Mitchell [address in tool bar]
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