Resignation

Justice of the Peace Sam Harris has announced his resignation.

Writs

GeeGuy reported that the Justices of the local Justice Court were subject of a writ and reprimand by District Court Judge Julie Macek. I have now read not only GeeGuy's report and opinions, but also the court documents. This all started with Judge Jensen taking offense at an attorney's suggestion that the Justice Court was not acting in a fair manner, or following legal procedures properly. At first blush, it is not unreasonable for a justice of the peace to take offense at that.

The canons (#11) governing a judge's role in the system suggest the proper response: "A judge should utilize his opportunities to criticize and correct unprofessional conduct of attorneys . . ." That presupposes that the conduct, i.e., suggesting that the court is unfair, is unprofessional. As discussed below, I doubt that is the case. Even so, the canon also suggests that the action to correct the attorney is by admonishing him, not by holding him in contempt of court. Only if such admonishment fails, should other steps be taken: "and, if adverse comment is not a sufficient corrective, should send the matter at once to the proper investigating and disciplinary authorities." Again, it is worth noting that contempt is not even mentioned, but rather referral for discipline.

If the judge were following the canons, she would also keep in mind that "A judge should not be swayed by partisan demands, public clamor or considerations of personal popularity or notoriety, nor be apprehensive of unjust criticism." (Canon 14). Nonetheless, whether or not the attorney should be held in contempt really does not matter. This situation shines a light on a much bigger issue.

I am well acquainted with the legal system. Even with all of the things that keep happening in the local Justice Court, I was somehow surprised that the Justices were being held accountable by writ. A writ is generally an "extraordinary" measure. In the law, that really means "extraordinary," and is not a diluted adjective like "awesome." The basic reason is that it is an end run around procedure, which can only be used in special cases. They are only used when the system is not equipped to handle the special circumstances, of special importance. Therefore, a writ issued from one court to an inferior court is truly noteworthy.

After 27 pages of analysis, Judge Macek's order granting a writ boils down to one simple order. That is, she is ordering our Justices of the Peace quite simply to follow the law. While she makes findings that essentially make the contempt charges moot, she does not end the contempt proceedings. She really just tells the two Justices to quit breaking the law, and start following it.

The first component of this goes to the abuse of contempt proceedings. As Judge Macek pointed out in granting the Writ: "Contrary to the current and prevailing practices of the Justices of the Peace in Cascade County, Justices of the Peace have extremely limited legal authority upon which to punish a person for judicial contempt." (citing sections 3-10-501 and -10-401, Montana Code Annotated). The second part, which is the real focus of the final order, goes to following the law. The justices have bounced the case around between themselves and called in an "acting justice of the peace" without following any proper procedure. If they really want to go forward and assuage their delicate feelings with a contempt charge, they are required to call in a new judge from another county (required by the law, and Judge Macek's order).

I cannot see how a competent justice of the peace, knowing that review would be done in the District Court issuing the Writ which condemned the proceedings, would ever find any contempt. That is largely due to the nature of contempt power. More importantly, it gets back to the original, alleged contempt. The attorney simply stated his doubt about whether or not the Cascade County Justice Court actually followed the rules, or treated people fairly. The justices themselves proceeded to prove they do not. Truth should be a pretty good defense.

That is what makes this whole situation so shocking. Not one, but two Justices of the Peace, charged with upholding the law, blatantly ignored it.

As I noted above, I was shocked that it was so bad as to require a writ. What is worse is that this is not the only extraordinary writ in place. The Supreme Court of Montana has also issued a writ to the Cascade County Justice Court (at least, that is what I know about, so far). When I posted my "Qualifications vs Qualities" blog, I mentioned this in passing, as an example of how Judge Harris cannot accept being in the middle, and wants to act as a prosecutor. At that time, I said I would not belabor the point. In light of the latest writ, I feel I should explain what happened in more detail.

Criminal defendants are entitled to public defenders, when they cannot afford attorneys. The public defender's office makes a determination of who qualifies. If the state or the defendant dispute the finding, they can involve the presiding judge. The key to that is "if." Like most court matters, the judge is supposed to settle disputes, not involve himself in one side or the other. However, as explained in Rios v. Justice Court, 2006 MT 256, Judge Harris could not accept that.

In the Rios case, the defendant was determined to be eligible. He accepted that, the state accepted that. There was no dispute. No one asked the court to get involved. But Judge Harris took it upon himself to intervene, anyway. He unilaterally chose to hold a hearing on whether or not the defendant could have a public defender. This was taken as an intrusion into the rights and obligations of the public defender's office--so much so it sought help from the Supreme Court. And, the Supreme Court issued a writ, telling the Justice Court to stay out of such matters when no one asked the judge to be involved.

A judge has a simple role. Know the law, apply the law, and settle disputes. The judge should not act as an advocate, or try to intervene when no party has requested involvement. It is sad that our justices of the peace have to be told that.

Kangaroo Court-Part 2 (..or, No good deed goes unpunished.)

Larry Anderson is a respected local attorney. When a neighbor of his passed away not too long ago, Larry learned at the funeral that the widow was having problems with a collection company. Apparently, a "Household Bank" claimed that this woman owed it money, but she had never even heard of the company and never borrowed any money from it.

Household Bank was not forthcoming with any information. For some time it refused to produce any information and, ultimately, it produced one of those things that looks like a check, but if you deposit it into your account, you are agreeing to borrow the money. The problem was, though, that the widow claimed (apparently quite credibly) that she never signed the check and the signature on the check was not hers. Evidence that she did, in fact, sign the check has apparently not been forthcoming from the bank.

This case began in front of our 'other' Justice of the Peace, Kathleen Jensen. Ultimately, the widow filed a motion for summary judgment. This is a dispositive motion that would end the case. Normally a court is required to hold a hearing on such motions and allow the attorneys to argue orally. This requirement can be avoided if both sides agree.

In this case, the bank waived any right to oral argument. Before the widow's lawyer even had a chance to respond, though, JP Jensen issued an "order" deciding that no oral argument was "required." This is important for a few reasons. First, as a general rule, a court should not decide matters based upon one side's assertions without at least allowing the other side a chance to respond (It's called "due process" for those of you with aspirations to Justice Court). Further, the "order" that JP Jensen issued was suspect for a few reasons:

• The order came to attorney Anderson not from the Justice Court, but in an envelope for "Larsen Law Firm, PLLC," the law firm that represented the bank.
• In the upper left-hand corner of the order, it reflected Kyle Larsen of the Larsen Law Firm as the drafter of the order.
• On the bottom of the order, it says: "This is an attempt to collect a debt. Any information will be used for that purpose. Larsen Law Firm-Debt Collection Since 1956."

Now, in fairness to Judge Jensen, it is not unusual for lawyers to prepare proposed orders for the convenience of the court. That in and of itself is certainly no reason to complain here. But when you combine the fact that the order contains the logo of the opposing counsel, that it was issued without giving the widow a chance to respond, when it was apparently provided to one side who sat on it for a couple days before bothering to mail it out, then it starts to smell. A court must scrupulously avoid the appearance of partiality for reasons that are far too obvious to state here. I can see why Anderson would be angry: why would JP Jensen rule solely based upon the assertions of only one side, and then why would she only provide one side with a copy of the order? If I represented the widow these circumstances would make me very uncomfortable.

So, a day or so after receiving the order, attorney Anderson filed his "Statement of Position." In discussing this matter with me, Mr. Anderson admits that his "Statement" was, perhaps, a bit intemperate and in hindsight he might not have filed it. He does not agree, though, that it was improper in light of what had occurred in the case. The Statement provides:

On this date, the undersigned received a document mailed from Plaintiff's counsel's office, under Plaintiff's counsel's name and address, using Plaintiff's counsel's envelope, and presumably Plaintiff's counsel's stamp entitled "Order Re: Oral Argument." The "Order" stated no oral argument is required for this summary judgment proceeding. This document contains the collection agency statement required by the Fair Debt Collection Practices Act. The document contains a Justice of the Peace signature stamp in the name of Kathleen Parker [sic], with a date stamped as well.

This document causes the undersigned to wonder who is operating this court and to further wonder whether this Court has surrended its operations to a collection industry. Certainly, litigants should at a minimum have a right to expect at least an appearance of impartiality, even if in fact there is no impartiality.

Nevertheless, under the Rules of Civil Procedure, a court may not eliminate oral argument in a summary judgment proceeding without consent from both parties. Consent certainly should be obtained by and from the moving party. Here the moving party has not given consent. Though, based on the above, one wonders whether oral argument would have any effect, other than to give an appearance of
impartiality.

Well, Judge Jensen did not like that one little bit. So, a few days later, she filed an "Affidavit," to refer the case "for investigation of possible contempt and hearing pursuant to MCA Sec. 3-1-512."

Then, on June 23, 2006, Judge Sam Harris appeared on the case. He set a hearing for July 3, 2006 for Mr. Anderson should not be held in contempt of court for "the actions stated in the Court's Order dated April 6, 2006." Only one problem: the court did not enter an order on April 6, 2006.

Now Mr. Anderson was forced to hire his own lawyer to defend him against this bogus contempt claim. His lawyer appeared in the action and asked for a new hearing date because he was unavailable. Now pay close attention because what comes next tells you a great deal about JP Harris. This is a quote from Judge Macek's October 24, 2006, Order: "[Anderson's attorney] advised the Court that Anderson would not be available from July 14-20, 2006, due to his previously scheduled attendance at the out-of-state ATLA Convention. On July 4, 2006, Justice of the Peace Samuel L. Harris issued an Order resetting the July 3, 2006, hearing for July 17, 2006, directly in conflict with Anderson's required attendance at the ATLA Convention as a member of the executive committee." [Emphasis added]

Then, Anderson's lawyer went to Justice Court to review the file and docket sheet. Both of these documents are public record. Again, from Judge Macek's Order: "Justice Court office staff refused to provide him with a copy of the docket sheet. Upon insisting, Justice of the Peace Samuel L. Harris 'came out of his office and asked me why I wanted to see the docket sheet. I told him I wanted to see it because I had a right to see it. He refused to allow me access to the docket sheet, to see the docket sheet, or to copy the docket sheet, and told me to see Deputy County Attorney Greg Bonilla regarding it.'"

Anderson then filed a Motion to Disqualify Harris, and this motion was ignored. Ultimately, Anderson had to fly home from the previously planned convention in order to attend the hearing at a cost of about $2,200.00. At the hearing, Anderson tried to have a court reporter record the proceedings, but Harris refused to allow it.

This portion of the story tells you an incredible amount about our local Justices of the Peace. If one has the audacity to question them, one is faced with contempt proceedings. Such an individual is not even granted the common courtesy in scheduling that allows one to attend to his prior commitments. Think about that: you have to be out of state and a judge will not even give you the courtesy of respecting your schedule to re-schedule a 20 minute hearing, but instead is so petty that he purposely interrupts your trip. And then, that same judge, withholds public information as though he owns it, information you want to use to defend yourself. Is this fair? Or childish?

Next, I will write about how our 'junior' Judges got their hands slapped by District Court Judge Macek.

Justice Court Department One

As GeeGuy pointed out, the Cascade County Justice Court needs help getting on track in both departments. Judge Harris (Department Two) has put himself in the news, and gone farther out on a limb with many of the things he had done publicly. My limited exposure to Judge Jensen left no strong impression one way or the other. However, most attorneys practicing in the court view Judge Jensen as much the same as Harris, at least in terms of sentences, bonds, etc, which all appear to follow Judge Harris' lead.

Since I do not have much first hand knowledge of Judge Jensen, and have not heard much about how she handles her courtroom, I would like input from those who do know. For example, disrespect toward litigants and attorneys is a big issue with Judge Harris. I would like to hear comments about what experience readers have had with her.

I also feel that we have a good alternative to Judge Harris with Steven Fagenstrom to replace him. That does not seem so clear in Department One. Mr. Fisher seems to have questionable motives, background, and qualifications. If we vote out Judge Jensen, what will we get? Again, I would encourage comments from anyone who knows.

Kangaroo Court?

Just what kind of a court are they running at Justice Court these days? I recently obtained and read a 28 page District Court Order issuing Writs against our local Justices of the Peace.

I do not have time to write extensively on this case today, and will be out of town tomorrow, so it will be Sunday at the earliest. I am also obtaining some additional records from the case.

For now, though, suffice it to say that District Court Judge Julie Macek has written a very detailed, thorough and dispassionate analysis of both of our JP's conduct in one case, and I simply cannot understand what is going on in that Court. These two individuals apparently either refuse to follow the law, refuse to read the law, or simply do not know what it is. Frankly, when Gladys Vance was a (non-lawyer) JP, she did a better job of following the law than these two attorneys have done in this case. It is really a travesty.

The whole Order smacks of a teacher having to discipline the children on the playground. It is disheartening that a District Court Judge has to spend the time and effort that Judge Macek spent educating other Judges on what is very basic, statutory, procedure.

Qualifications vs. Qualities As Person

Taking to heart wise words of a commenter on this blog, who noted that the wives of the JP candidates deserve sympathy, I modified what was to be my latest post. I had planned on keeping the Judge Harris commentary on this weblog, but decided against it. The version that made its way to the web is much softer, and likely contrary to GeeGuy's opinion. So, out of respect, I pushed it over to my own blog.

Social Change

Camille Paglia is, by her own definition, "a feminist bisexual egomaniac." I enjoy reading her pieces from time to time, and Salon is carrying a full interview with her right now. While I obviously do not agree with everything she says, I found interesting this observation about the difficulties we face in inculcating democracy in the middle east:

The majority of Iraqis and Iranians want peace and modernization, so let's impose democracy at the barrel of a gun. But what ignorance of history: The mass of the population always want to live their own lives; change is always driven by small, committed groups of ideologues and fanatics -- even in our own revolution. Representative democracy is a great ideal, but major shifts are rarely achieved by majority rule, which prefers the status quo.

Assuming she is correct, then, our success lies in finding and supporting a (hyper) committed group of leaders to press democracy's case in Iraq and elsewhere. No small task in a muslim society given that Islam, at least as practiced thus far, seems to be a totalitarian religion (totalitarian in the religious sense, not necessarily in the political sense).

You Decide:

Judge Harris has been criticized for jailing those who fail to pay civil judgments. Those criticizing him argue, in essence, that he has returned us to the days of debtor’s prison. He and his supporter say it is not really about debt. These are Judge Harris’ own words, taken directly from his order dated 12/16/05 in Wadsworth v. LaRoche, Cascade County Justice Court Cause Number SM-2005-66:

“Defendant provided no reasonable excuse for his failure to pay the judgment . . . the Court finds Defendant is in contempt of Court for his willful refusal to pay even one nickel on the judgment. IT IS ORDERED that the Defendant is found in Contempt of Court and shall be held as a prisoner in the Cascade County Detention Center INDEFINITELY until he complies with the Court’s order and pays $1,552.62 to plaintiffs.”

The bold and capitals are reprinted as they were in the order. Was the person ordered to be jailed because of contempt, or failure to pay?

Sam Harris, Jailer

As many of you have read, Sam Harris has about one defender on this blog, a local attorney named Allen. (You can find some of his comments here, or here.) Well, now Allen has taken on the issue of Sam Harris's illegal jailing of a single mother of three over in the comments at Firefly's place.

When I read Allen's comments, it appeared clear to me that he had investigated the facts of the Jenice Freer jailing since he described much that had not appeared in the newspaper. I don't know if he simply read the Court file, or if he actually spoke with his friend Sam Harris. Clearly, though, he is offering a defense of our local Justice of the Peace's decision to throw a woman in jail for a civil debt. Much of what he wrote just didn't seem right to me so I, too, decided to investigate a bit further.

In fact, I have reviewed the Court documents that were available to District Court Judge Kenneth R. Neill. Yes, he is the one who overturned Harris and set the debtor free. Allen, or Sam Harris acting through Allen, is not giving us the whole picture.

First, Allen argues that justice is blind and who cares if Freer is a single mom. Allen's statement is true...as far as it goes. It is also very unrealistic. Judges wield a tremendous amount of power, and they exercise a great deal of discretion in its use. Starting from the entirely accurate premise that one should not be jailed for civil debts in any event, it is entirely appropriate for a judge to consider one's circumstances in exercising his discretion.

Next, Allen alleges as follows: "Second, Freer was thrown in jail for contempt, not for refusing to pay the debt itself, but because she, as the bookkeeper for her business, refused to obey compulsory legal process which required her to garnish the wage of an employee, simply because she was the employee facing the garnishment." Try as I might, I could not find any suggestion that Freer operates her business as an entity separate from herself.

She is, from all appearances, a d/b/a (doing business as), or a sole proprietor. In other words her business is her. So she, the bookkeeper wasn't supposed to garnish "wages" for her employee, any "wages" would have been payable from her to her. This whole bookkeeper thing seems to be a bit of legal gobbledeegook intended to throw you off. There are also significant exemptions to garnishment available. How did Harris know that there was even non-exempt money with which to satisfy the writ at the time he threw Freer in jail?

He didn't. No hearing had been held.

This is because, despite Allen's statements, the creditor did not seek to have Freer held in contempt for 'refusing to obey compulsory process requiring her to garnish wages.' The creditor sought to hold her in contempt because the creditor claimed she had a legal obligation to return the compulsory process (writ of execution) to the Court. From the creditor's application to Judge Harris: "The failure of Ms. Freer to make a proper return is a direct violation of this CourtÂ’s order contained in each writ of execution." And, if one reads the documents, one will find that the creditor's statement is flat out false. The writ, in fact, ordered Ms. Freer to do no such thing. The writ ordered the "Sheriff, Constable or Process Server" to make the return.

So it is entirely inaccurate to 'spin' this as some sort of a willful refusal by Ms. Freer as a "bookkeeper." What we have is an entirely ordinary turn of events, a writ of execution that is not successful.

And, Allen, the "obfuscating" continues. For you see, ladies and germs, the creditor did not even ask Sam Harris to throw this woman in jail. The creditor asked for a hearing: "she should be ordered to personally appear before the Court and show cause why she should not be held in contempt for failing to comply with the CourtÂ’s Orders."

Without a hearing we don't even know if Ms. Freer had the money to pay the debt. Or, according to Allen, is it "an affront to and an assault upon the legal system itself" to be broke? Maybe in Justice Court it is.

In the rest of the USA it's called due process. Before someone takes away your FREAKING LIBERTY you have a right to notice and an opportunity to be heard. But not in Sam Harris's Justice Court.

Allen suggests that "the proper remedy was to seek and obtain a warrant for contempt." But that's not what happened, is it? The creditor didn't seek an arrest warrant. No, the creditor's attorney apparently understands due process. If one is accused of something, one should have notice and an opportunity to be heard. And that's what the creditor's attorney suggested. But no, not in Justice Court. In Justice Court Sam Harris just decided this woman should go to jail.

Ok, now let's move to the bail issue. When Sam Harris threw this woman in jail for a civil debt, for failure to make a return of service (that she had not been ordered to do), he set bail at $500.00. But then he refused to accept a cash bail in that amount.

This is because he made a very unusual (albeit legal) requirement that bail be made by "written undertaking, with two sufficient sureties." According to the affidavit on file, when the individual attempted to post bail of $500.00, Judge Harris told him "the CourtÂ’s order regarding bail requires a written undertaking and two sureties. Harris further told [the gentleman who tried to post bail] that normal bonding companies will not provide those requirements and will not provide sureties, and that therefore Jenice D. Freer could not get out of jail." [Emphasis mine]

I frankly don't care if she's a single mom or not; no one in this state should be held without bail for a civil debt. Because that's what happened here. A creditor tried to collect a debt, was unsuccessful, and complained to Sam Harris. Then Harris, on his own volition, decided to throw this person (see Allen, not single mother) in jail without an effective means of release.

So, if Allen wants to defend the indefensible, he can go right ahead. Judge Neill didn't buy it, and no other judge is going to buy it either. All of this reminds me of how Harris sounded in Sunday's paper: everyone else is wrong...it's a personal vendetta...people are just mad because I'm doing such a great job...I deserve the compassion I refuse to give others...it's my political enemies...blah, blah, blah.

Sam Harris Letter to the Editor

This was in the Tribune today. Sound familiar (or here)?

Protect pocketbooks

Just how much money has Sam Harris cost the Cascade County taxpayers? Cascade County has already paid out almost $20,000 for Harris blun­ders so far this year. First, he ruined the hearing impaired woman’s wedding day, costing the county $15,000. Then, he was involved in an arrest over a $55 speeding ticket that cost the county $4,000. Now there is a claim pending for $20,000 for the first “debtor’s prison” case where someone was held in jail for sev­eral days because he couldn’t pay a bill.

Hang on to your hats and your checkbooks. There is more com­ing. If we don’t have enough sense to demand that Harris fol­low the law and honor our fun­damental civil rights, we should at least vote him out of office in order to protect our pocket books.

— Joy Bunton, Great Falls

More Senate

Below I discuss the Burns/Tester race. Free Thought has an interesting take, too:

It is tempting to feel we should throw the rascal out, presumably to have a less troubling man in Tester (I do not know enough about him to know if that is true or not). Anyone who wants to clean up the system has to have that sentiment on some level. On the other hand, unless we assume that every other state will have the same intestinal fortitude, all we do is move ourselves to the back of the line for the pork.

Game theory would suggest everyone else will conclude it is better to have a useful rascal than a powerless man of virtue (again, only a theory with Tester, since I do not know). Rational self interest, assuming we cannot clean out the whole lot at once, makes it hard to vote against what is best for us monetarily, Burns, to have what makes us feel better about us, Tester (in theory).

What he says is especially true if one concludes, as I do, that Tester really is not as lily white as the driven snow.

John Tester, Populist

One thing John Tester had going for him was his role as a political outsider. The notion of the outsider as "one of us" has a strong appeal in politics: He's not like those dirty b*stards in Washington, he's like me! Hell, I think Conrad Burns even ran on this 'platform' way back when.

And in Montana, "one of us" seems to have a unique flavor. We, more than other states, seem to have the sense that people from Montana are good and decent, straight shootin' folks who work hard and squint their weathered faces at that 'East Coast BS." (Although one might suspect, as I do, that we have just as many crooks and politicians, a mutually exclusive classification if I ever saw one, as any other state.)

Tester's straight shooter schtick is one reason why his campaign ads about taxes caught my ear. Since I wrote the original piece, I've learned more about the whole situation.

First, let's talk about the business equipment tax that John Tester and Brian Schweitzer claim to have "eliminated for 13,000 small businesses." According to the Tribune:

Tester and the Great Falls Democrats said the Republican-controlled Legislature passed a bill in 1999 that gradually would lower and then eliminate the business equipment tax when triggered by certain growth factors in the state economy.

By a close vote, the 2005 Legislature changed the earlier law. SB48, supported by Tester as Senate president, froze the business equipment tax at 3 percent rather than allowing it to shrink. Republicans contend that 16,000 businesses are paying more because the tax rate wasn't allowed to fall to zero percent.

But Tester and the Democratic legislators said that they froze the tax rate, which is different from increasing it. Furthermore, they raised the exemption on the business equipment tax from $5,000 to $20,000, which eliminated the tax for 13,000 small businesses, Tester said.

Ok, let's see if I understand this. So, the Republicans passed a bill that was phasing out a tax, the tax paid on business equipment. In other words, it was going to be -0- percent. But then Tester froze the bill at 3 percent, rather than letting it drop to -0-. Hmmmm.

But wait, says Tester. While we did freeze the bill at 3 percent, we also raised the exemption from $5,000 to $20,000, so that now the people with equipment worth $5,001 to $20,000 don't have to pay the tax at all.

But wait, says Gee Guy. If you hadn't frozen the tax rate at 3 percent, all taxpayers would have paid -0- percent, right? The tax was going to be eliminated.

So the businesses with equipment worth $0 to $20,000 saw their taxes go from $0 (taxed phased out) to $0 (greater exemption) because of Tester's actions. And the folks with equipment worth $20,001 + saw their taxes go from $0 (tax phased out) to 3 percent (no exemption).

Gosh, Mr. Tester, I'm just a good ole' Montana boy but...where's that tax cut again?

Tester also refers to Conrad Burns' "sales tax plan." Well, according to the Tribune, Conrad Burns answered a questionnaire indicating that he would support a national flat tax in favor of eliminating all other taxes. Now Tester may or may not favor a national flat tax, but is it really honest to call this Burns' "sales tax plan?" No, it isn't.

So two of Tester's reasons to vote for him are false. He didn't really cut taxes on 13,000 Montana businesses, they were already cut. And as far as being a straight shooter, well, it sounds to me like Tester did what any pol does, he took a poll, found out that the tax issues resonate with many people, and then crafted his message, disingenuously it turns out, to meet that issue.

So, we have two politicians running for office, at least one of whom is willing to dissemble to get elected. The other one wields significant political clout for our small state.

It's fun to support the underdog, hell I even root for the Bobcats sometimes (ok, now I'm dissembling). Leave your John Tester bumper sticker on your car if you want, but when you get into the voting booth vote for your own interests, vote for Conrad Burns.

WHAT IS APPROPRIATE FOR A JUDGE?

Given the discussion about what a judge should or should not do, be or not be, I decided to read the canons for myself. I confess I had only read bits and pieces, usually quoted by others for effect. Reading them as a whole made them more meaningful. They can be downloaded from the State's website, and read in a word processing program. After my review, I find a few exerpts of the canons come into play in the Cascade County Justice of the Peace race. Because we have so little on which to assess Steven Fagenstrom, my comments will necessarily focus more heavily on Judge Harris. To the extent we do have insight into Mr. Fagenstrom, these are still the rules against which he should be measured.

2. The Public Interest.
Courts exist to promote justice, and thus to serve the public interest . . . Every judge . . . should avoid unconsciously falling into the attitude of mind that the litigants are made for the courts instead of the courts for the litigants.

By reputation, Judge Harris has made the Justice Court his court. Given the extreme focus on how the court must be run, often to the detriment of litigants or attorneys who do not feel a fair shake has been given, he may have lost sight of the public interest.

3. Constitutional Obligations.
It is the duty of all judges to support the federal Constitution and that of this state; in so doing, they should fearlessly observe and apply fundamental limitations and guarantees.

Judge Harris articulates how he can use elements of the law, like contempt power, to justify things like jailing debtors. Unfortunately, the most carefully crafted statutory or case law based argument fails when it fails to comport with either the state or federal constitution. He seems to have forgotten this point in finding a way to go against the Montana Constitutional protection against being jailed for debt.

4. Avoidance of Impropriety.
A judge’s official conduct should be free from impropriety and the appearance of impropriety; he should avoid infractions of law; and his personal behavior, not only upon the Bench and in the performance of judicial duties, but also in his everyday life, should be beyond reproach.

This is the big one, where the private lives come under the microscope. Judge Harris' actions related to the GORE game subject him to reproach in his everyday life. Likewise, Mr. Fagenstrom, if elected, will have to avoid any other missteps with the law. No matter how justified he may have been in refusing a police order, no matter how out of line the officer may have been in making the situation worse and filing questionable charges, it is foolish to allow the situation to come up. A private citizen, especially a lawyer, may have the urge to show he is right. A judge has to avoid any situation where he may create doubt about his judgement. Right or wrong, getting into an altercation with police will always cause public concern.

5. Essential Conduct.
A judge should be temperate, attentive, patient, impartial, and, since he is to administer the law and apply it to the facts, he should be studious of the principles of the law and diligent in endeavoring to ascertain the facts.

Judge Harris has developed a reputation of intemperate behavior. The revelations from his personal life give rise to questions about his bias. Given that these traits are "essential," it is worthy to evaluate whether or not his opponent bears the appropriate traits, too.

10. Courtesy and Civility.
A judge should be courteous to counsel . . .

While I have not seen incivility out of either candidate, there are too many antecdotes from people I trust to accept that Judge Harris always gives courtesy to counsel.

14. Independence.
A judge should not be swayed by partisan demands, public clamor or considerations of personal popularity or notoriety, nor be apprehensive of unjust criticism.

I thought, at first, Judge Harris did well in this regard. Perhaps he was a bit harsh in sentencing only to be playing to the public, but I think he believes in what he does, so that is not a serious concern (regarding this canon). However, I am concerned that perhaps he has started showing signs of letting criticism bother him too much. The public has the right to judge him as a candidate, and he put his life under the microscope. Seeking leniency from his opponents, as I have learned he has done, does not sit well.

20. Influence of Decisions Upon the Development of the Law.
A judge should be mindful that his duty is the application of general law to particular instances, that ours is a government of law and not of men and that he violates his duty as a minister of justice under such a system if he seeks to do what he may personally consider substantial justice in a particular case and disregards the general law as he knows it to be binding on him . . . He should administer his office with a due regard to the integrity of the system of the law itself, remembering that he is not a depositary of arbitrary power, but a judge under the sanction of law.

Several concerns come to mind with regard to this rule. In particular, high bail, harsh sentences and significant strings tied to bail or sentencing, when they are far outside the norm throughout the system, disrupt the system.

21. Idiosyncrasies and Inconsistencies.
Justice should not be molded by the individual idiosyncrasies of those who administer it. A judge should adopt the usual and expected method of doing justice, and not seek to be extreme or peculiar in his judgments, or spectacular or sensational in the conduct of the court. Though vested with discretion in the imposition of mild or severe sentences he should not compel persons brought before him to submit to some humiliating act or discipline of his own devising, without authority of law, because he thinks it will have a beneficial corrective influence.
In imposing sentence he should endeavor to conform to a reasonable standard of punishment and should not seek popularity or publicity either by exceptional severity or undue leniency.

As with the paragraph above, Judge Harris' maverick approach, not only to bail and sentencing, but to court room procedure (eg, requiring defendants to attend simple housekeeping type hearings), makes his court out of touch with other courts. It is hard to explain to the public why being in Cascade County Justice Court should give a defendant a significanlty different outcome than if he were in another county, or the city court, facing identical charges under identical facts.

34. A Summary of Judicial Obligation.
In every particular his conduct should be above reproach. He should be conscientious, studious, thorough, courteous, patient, punctual, just, impartial, fearless of public clamor, regardless of public praise, and indifferent to private, political or partisan influences; he should administer justice according to law, and deal with his appointments as a public trust; he should not allow other affairs or his private interests to interfere with the prompt and proper performance of his judicial duties, nor should he administer the office for the purpose of advancing his personal ambitions or increasing his popularity.

This sums up society's high expectations of judges. It explains why many would never want to be a judge--because doing so is a sacrifice. We must applaud and thank those who are willing to sacrifice many freedoms in their personal lives, just to live up to the ideal we create. But, we must have people of such character so that our system maintains integrity. We must therefore scrutinize those who would judge us very carefully--which is what I am trying to do.

With that, I thank Mr. Harris for his service and sacrifice, and Mr. Fagenstrom for his willingness to do the same. While I know, like and respect you both, I would not wish the sacrifice and scrutiny on my enemies, let alone my friends.

My take on Fagenstrom Situation.

Now I know why GeeGuy gave me access. I tried to post a brief comment, but simply could not. Instead, I had to go into a whole new blog.

Illegal?

It's interesting, isn't it, that the Tribune elected to run a story about Steven Fagenstrom's "legal problems," when the Tribune ignored the legal issues inherent in Justice of the Peace Sam Harris's web follies.

(As an interesting side note, Fagenstrom denied certain portions of the Tribune's original version that appeared in the paper Sunday night. When I looked at it online last night, the story had been significantly modified. Now I can't find it all. Hmmm. Curiouser and curiouser. I wonder if the story was pulled because its accuracy could not be confirmed, or whether, perhaps, the Tribune decided its provision to them was potentially illegal?)

But I digress. The Fagenstrom story involved two old tickets against him that had been dismissed. Dismissed, whether by deferred sentence or otherwise, is the legal equivalent of going to trial and getting acquitted. So, Fagenstrom was ultimately found not guilty of two tickets, and the Tribune published that?

Yet, in the GORE chat room, Justice of the Peace Sam Harris made two statements that are easily construed as illegal and the Tribune ignored this fact in its reporting.

On August 29, 2006, just two months ago, Sam's friend Doghouse is trying to find out the name of a heavy metal song. He posts the lyrics and Sam immediately replies: "'Walk' by Pantera on 'Vulgar Display of Power.' I have it if u want it. If you like that shit I have a fair amount of it. Cuz I like that shit."

How can that be construed as anything but an offer to share a copy of the song with his friend? "I have it if you want it." That's illegal though. Why is a 2 month old offer to violate federal copyright laws less newsworthy than a year old dismissal of traffic tickets?

Or how about our Justice of the Peace's post from September 19, 2006, just one month ago, when Sam's online friend is discussing a situation where an acquaintance was stalking her. Our Justice of the Peace's solution? "Put him in a coulee, imo. (in my opinion)" The next day, Justice of the Peace Sam Harris expands on his suggestion: "A coulee is a small valley or ravine. He should be dead before u put him there, or else he may crawl away, thereby causing u troubles. Also, you should place some big rocks on him so coyotes do not drag his bones around for hunters to find (also causing u troubles)."

Now, these statements may not be criminal given the lack of imminency. But are we comfortable with a sitting judge providing directions for disposing of bodies? Why are year old, dismissed tickets involving a man who was at the time a private citizen relevant, but apparently criminal statements or thoughts of a sitting judge are not worthy of comment?

And, don't you wonder, why now? Why did the Tribune all of a sudden decide to look into Steven Fagenstrom's record? Inquiring minds want to know.

Hmmm...

It's not the Gee Guy, it's just Gee Guy.

GUEST OPINION, by Free Thought

The GeeGuy was kind enough to extend to me guest privileges. When he did so, he suggested that I had the need to be heard. Maybe because he is tired of me sending him lengthy e-mails about his blogs all the time instead of just putting my thoughts out into cyber space. I doubt he knew that I had already started testing the water with my own blog. The downside of accepting his offer is that now, when I try pressing his buttons with comments about his blog, he will know it is me, taking some of the fun out of it.

Knowing that I have my own pulpit, he may pull the plug on my privileges, making me think I better try to get some of his audience while I can. On the other hand, I read the Tribune, and have discovered that there is a sneaky guy out there who sets internet traps.

I am now worried that in a public forum, of all places, someone besides my closest, most understanding and trustworthy friends may actually read what I write. At this very moment, someone may secretly be setting me up by reading these words, planning someday to share them with the world before I can erase them. After all, what security do I have when I am forced to disclose my real name, real job, real hometown real . . . Oh, right. Never mind. But still, somebody might find out who I am anyway. How can I ever possibly live my life with the pressure of never being able to let off some steam by saying what I feel? I mean, if all I have left is talking in person, by phone, or e-mail to my spouse, or friends, or family or co-workers, or . . . Ok, so maybe that isn't the trap either. But I'm sure that there is a trap here somewhere.

So, until I figure it out, please, if you are now, or have ever been, in any way against me, what I have said, or may say in the future, stop reading, forget what you read, and do not print or save any part of this post. If you are unsure, it is best not to proceed. I can't take any chances. Just to be safe, maybe you could all just post a loyalty oath and non-disclosure-for-anything-bad agreement before reading any more posts. Thank you.

Free Thought

It's not just me and Firefly anymore...

The Tribune ran a piece today about some local attorneys calling for Justice of the Peace Harris's resignation. I know all of the attorneys interviewed for the story except Theresa Diekhans. I can tell you that Messrs. Hartelius, Thompson, and Blewett are all respected attorneys in this state. I can also tell you that, in my dealings with these three and their firms, I never once have had any inkling of a problem with their integrity or honesty.

There are some other, random thoughts on the Tribune's piece:

"When the prosecutor [Brant Light] thinks a judge is too harsh on criminals, that's enough said." Told to me by a friend this afternoon when discussing the article.

When is the last time you have heard of the County having to pay damages for something a judge did? I cannot remember any such thing happening before in my entire career.

Judge Harris's Political Glossary: Political Enemy: noun, "anyone who disagrees with Sam Harris" (Apparently a very large group...)

Sam Harris threw a man into jail for a parking ticket. A parking ticket!

Debtor's Prisons are unconstitutional. Judge Harris's interpretation of the contempt statutes to allow him to jail people for civil debts is irrelevant. No statute is superior to the Constitution. No statute can be interpreted to supercede the Constitution.

I'm sure there's more to come.

Does this...

...sound vaguely familiar?

It does to me.

Sign Code

Well, we're over a year post adoption of the Sign Code. As our friend, Firefly, recently pointed out, we seem to have gotten..well...exactly nowhere on the sign issue. She also suggests in her comments that the sign code enforcer has already left his position.

You will recall that our City Commission passed the sign code over significant objection from the community (including my own). Commissioner Jovick-Kuntz went so far as to suggest that the code be adopted because, at the time, the city had already hired an enforcement officer.

Now, apparently, the city has moved on to different issues, like selling our golf courses and building power plants. And the code is, apparently, unenforced. While that is generally a good thing since I thought it was stupid to begin with, it certainly informs one about the quality of our leadership and management, doesn't it? We're a little over a year post adoption of a contentious new code and, apparently, our 'management' has just lost interest in the issue. (I guess this is good news for those who opposed the new zoning code!)

So, what happens after we build a 2 BILLION dollar power plant and 'management' loses interest? Get out your checkbooks.

Health Insurance

The Tribune ran an editorial today about "the insurance gap," or the number of people without health insurance.

Let me preface what I am about to say by admitting that obtaining health insurance is a significant problem for many families, even those who make a good living. The inefficiency of our system is glaring when one considers that a family whose primary seeking of health care is getting one's sniffles wiped by a physician's assistant runs $700.00 - $1,000.00 per month in health care premiums. Clearly, that family is subsidizing someone.

My point, though, is not to minimize the problem. It is to illustrate that, perhaps, the problem is not what it seems, and to suggest that misleading analysis could actually make it harder to find a solution.

First, the Tribune points out that 18.4% of Montanans (compared to 15.7% nationally) lack health insurance. In other words, roughly 82% of Montanans have health insurance.

What the Tribune fails to point out, or even consider, is the number of uninsured who make the at least arguably rational decision not to pay for health insurance. In other words, if I am a 25 year old, healthy adult who just graduated from college, and I haven't been to a doctor in years other than a physical, maybe it makes sense for me not to spend $300.00 a month on health insurance. If we remove these people from the analysis, the numbers get better.

The Tribune goes on:

While Montana officials say the number of uninsured kids is declining, it's still about 35,000.

Child or adult, you can be sure that every time one of them has an accident or gets sick, someone (the rest of us?) is paying for his or her health care.

Worse — and too often — people are going without health care.

That creates a vicious cycle: Uninsured people tend to wait longer before they go to a doctor or hospital; a result is that they are in worse shape when they do go; and as a result the solution winds up costing even more.

Wait a minute. Are people going without health care? Who? When? Or, are they going, and then the rest of us having to pay for it? Notice that the Tribune makes the two contradictory assertions together? Which is it? Which is the problem? Is it that a significant number of people are not getting health care, or that they are getting it but expecting someone else to pay for it?

And, in the Tribune's eyes, is the latter even a problem? In other words, isn't that exactly what they are advocating, that the uninsured get insurance and someone else pays for it?

They make another leap, too. They suggest that people without health insurance won't get care, or wait to get care until it will cost more (says who?). Let's think about this in terms of one demographic, low income families with children.

We have a subsidized Children's Health Insurance Plan (CHIP). There is currently no waiting list, meaning that everyone who wants health insurance for kids can obtain it. (In other words, if they can afford it in the marketplace they can obtain it, and if they can't afford it in the marketplace, they are eligible for and can obtain the CHIP insurance.) Now the Tribune would have us believe that someone who cannot be bothered to sign up for a free or subsidized health insurance plan for their kids will nevertheless think twice about taking those same kids to the doctor when they are sick. Based on what?

Seriously, I think they just make this stuff up.

I would suggest that a parent who is so completely irresponsible as to be unwilling to obtain free or low cost health insurance for their kids would not give a thought to taking little Johnny to the doctor. ("Oh, little Johnny broke his arm, but we can't go to the ER 'cause we don't have any affordable health insurance..." Yeah, sure.) Seriously, I think they just make this stuff up.

Providing healthcare to our citizens is a legitimate issue worthy of our attention. But fake examples and imaginary scenarios get us no closer to a solution.

Taxis

This article raises a good question of how far we need to go in order to accomodate other religious beliefs. Muslim taxidrivers refuse to carry alcohol?

"Why stop with alcohol? Muslim taxi drivers in several countries already balk at allowing seeing-eye dogs in their cars. Future demands could include not transporting women with exposed arms or hair, homosexuals, and unmarried couples. For that matter, they could ban men wearing kippas, as well as Hindus, atheists, bartenders, croupiers, astrologers, bankers, and quarterbacks."

Or is it just some beliefs we need to accomodate? What if Christians proposed to shut down airports altogether on the Sabbath? How far do you think that would get?

Minimum Wage

I recently received and read Montana's Voter Information Pamphlet. It contains arguments for and against I-151, the proposal that would raise Montana's minimum wage to $6.15 per hour (from the current $5.15) and annually increase the wage as inflation increases the Consumer Price Index.

I own part of three businesses, and none of them start their employees at minimum wage. So personally the Initiative means little to me.

I also question how many adults actually earn minimum wage. A recent perusal of the help wanted ads in the Great Falls Tribune did not reveal any jobs advertising for minimum wage positions.

But those are not my points. My points relate to the arguments offered in favor of I-151. Instead of making or responding to the economic arguments for or against a minimum wage, the proponents argue that it is "fair" or "right" to give workers a raise. It seems to me that these arguments, rather than attempting to provide a logical justification for the position, instead attempt to appeal to the recipients of the increased wages. After all, who would no doubt feel it is "fair" that a worker should get a raise but the worker himself? (or herself?)

And what is "right" or "fair" is certainly in the eye of the beholder. While I agree it would be impossible to raise a family on a minimum wage income, if a person manages to reach the age of adulthood without acquiring the skills necessarily to allow himself or herself to compete for a reasonable wage in the marketplace, and has a kid, is it really "right" or "fair" to require a complete stranger, the employer, to subsidize the worker's failure to pay enough attention to his or her own life and well-being to acquire desireable skills? And is it "right" or "fair" to require that employer to give the worker a raise every year based on inflation without any regard to the employer's ability to raise his or her own prices?

This is not meant to be a tirade against minimum wage. The same is entrenched in our system, and another buck an hour probably isn't going to hurt many employers (although if it hurts you, I am sure that's enough for you!). But if you are going to vote for I-151 based on what is "fair," you might remember that "fair" has two sides.

Interpretation...or legislation.

Judge's are often accused of 'legislating from the bench.' U.S. Supreme Court Justice Antonin Scalia might agree:

"He said unelected judges have no place deciding politically charged questions when the Constitution is silent on those issues....we debate with each other and persuade each other and vote on it either through representatives or a constitutional amendment" [Emphasis mine]

Star Wars

Thanks to my friend at Motto by Mangan for this, which is one of the funniest things I have seen in a long time.

Good stuff.

Taxes

No one can accuse me of carrying water for Conrad Burns or, frankly, even devoting much time to the Senate race. It's been done.

Plus we have important things to worry about...like the Cascade County Justice of the Peace race. (That was a joke.)

But I keep hearing the John Tester ads about how he and Gov. Schweitzer "eliminated taxes on 13,000 Montana businesses." Well, I didn't remember that so I started looking for it. Granted, I had other things to do so I didn't spend much time on it, but the closest I came to finding anything was this site citing a Billings Gazette article where Gov. Schweitzer claimed to have eliminated "the property tax on business equipment for some 13,000 businesses by raising the exemption from the tax to $20,000 in business equipment, up from the current $5,000."

So I guess Tester's claim is technically correct; he did eliminate some taxes. But it is also misleading, because the suggestion is that the bill eliminated all taxes on these small businesses.

And, for those of you who think tax policy should be used to accomplish other ends (don't count me among that number), don't we want to encourage all business growth? I mean, think about it, the businesses he 'exempted' are pretty small. One accumulates $20,000.00 in business equipment pretty easily; all but the smallest mom and pop shops did not see their businesses exempted. To the extent he "eliminated" taxes, it was pretty meaningless.

But I guess my real points are these. First, I thought Tester was running as a "straight talking Montana guy?" Why the word games? Why mislead? Second, is he really suggesting he is going to go to Washington and be a tax cut guy? Why? It isn't true. He's going to be a "George Bush tax cuts for the rich" guy.

This has really reduced him in my eyes.

Hours and Time

Throughout this whole Sam Harris issue, he and those who would defend him have constantly argued that what he did, he did on his own computer and his "own time." ("Any allegation that I did this on office time is ridiculous," Harris said. "I can account for my hours.") That made me start thinking about just what is one's "own time" in a salary situation.

I am thinking not just with reference to JP Harris, but public servants in general. What are we, the public, entitled to expect from them in terms of devotion to their jobs? What accountability, if any, do they owe us for the money they receive?

I am paid on a salary. As a general rule, I come in before 9:00 each day, leave about 6:00, and work at least some time on the weekends and once in a while at night as needed. I leave work occasionally to attend functions for my kids (although I have never run home during the middle of the afternoon to post messages on an internet bulletin board). But, and this is a big but, I am accountable only to my partners.

Are government employees different? Do they have some increased level of accountability, or are they entitled to the same flexibility that I am?

I would like some input from comments on this issue. What do you think? If this is a topic of interest/concern then I have some additional information I could research to see whether someone is acting on his or her "own time." A worthwhile endeavor?

More Reaction

There were more letters to the editor in the Tribune today. Mike Smartt's widow wrote:

Back Fagenstrom

I would like to turn your atten­tion to the election for Justice of the Peace. The past 35 months have given me much time to reflect upon the anguish my hus­band suffered at the hands of Samuel L. Harris.

I have always told my children, “’Vengeance is mine, sayeth the Lord.’ We shall remain innocent, for Sam will bury himself. What goes around comes around.”

The time of reckoning has come. Little did any of us know that when Sam Harris was point­ing his finger at my husband, he was committing even more terri­ble atrocities on the Internet?

“Sheep wife”? Vulgarities that I rather not reiterate here. You have all read the paper, or at least I hope you have. So, your life was ruined for “two years,” eh Sam? I’m so very sorry. Did you think about any of the other lives you were altering forever?

There are few people in this wonderful world of ours who I dislike.

Please stand with me, people of Cascade County, to wipe out now and forever the “little Hitler” attitude that permeates the Jus­tice Court. Stand with me to elect Steve Fagenstrom as our new Justice of the Peace.

The Justice Court is the peo­ple’s court. We need someone who is fair and compassionate. If you have even a small amount of money to spare, please send Steve a contribution.

It’s time to stand together and stamp out hatred and evil. Please vote. Your opinion means more than you’ll ever know.
— Sheila Boetcher Smartt, Great Falls

Resignation Request

As first noted by Aaron, a well-known local attorney has called for Justice of the Peace Sam Harris to resign.

By letter dated October 10, 2006, Channing Hartelius raised 13 points that he contends disqualify Sam Harris for remaining in office. In addition to the "GORE" allegations noted in the Tribune, Hartelius raises issues more directly related to the performance of Harris's official duties.

He asserts that he District Courts took away Harris's authority to set bail on felonies. According to Hartelius, this is because Harris "imposed bails of such magnitude" as to be punishment.

He asserts that Harris "put the sick and elderly in jail for lengthy periods of time for nonviolent crimes" and references a "Komeotis case." I am not aware of the facts of this case.

He points out Harris's putting people in jail for civil debts and argues that Harris uses high cash bonds to discourage people from invoking their right to a jury trial. He alleges that Harris has "demanded that the Clerk of Court's office give [him] referrals for nonreligious weddings."

An interesting request. I wonder what, if anything, will come of it.

Trolls

We have a troll (or trolls) who has found our site, and his M.O. is anonymous hit and run. I originally planned to let this person identify himself or herself or face deletion of the comments posted. I then noticed some anonymous commenters were doing a pretty good job making fun of this person.

I am leaning back the other way. Why? Well, because in two comments now there have been veiled references to Fagenstrom and some undefined legal troubles.

Hey troll, we don't work that way here. If you want to identify yourself and make your allegations, I might entertain them. We certainly engaged Allen, a Sam Harris supporter, in a long and at least ostensibly reasonable discussion.

But I'm not going to let you come on my site and slander Steve Fagenstrom or anyone else for that matter. Complain all you want about what all have written about Sam Harris, but you are still faced with the fact that he is contending with his own words.

So, I'm going to delete your comments. I'll save them though. So, if you want to come back, identify yourself, and engage the discussion, I am happy to re-post them. This is not a public forum.

Reaction

There were letters to the editor today in reaction to A History Lesson. To me, this is the most important one:

Sam Harris, this is the second occasion in which you’ve disre­spected my family in a public arena. It is only just that I respond to you in kind.

“The last time I got gay porn off a guy’s computer it cost me two years of my life and ended with the guy hanging himself,” you wrote.

You’ve taken personal and sole responsibility for my father ending his own life. You state this in a jovial manner, as if it’s a joke to you. This event is certain­ly not a joke to me or the count­less people who loved my father deeply. What a shame that you lost two years of your life. That must have been veyy difficult for you. I can’t imagine how that must have felt.

Sam Harris, you’ve created a well of pain that I will never be able to fill. You did this for no substantial reason whatsoever.

Now you laugh about it in online chat rooms. What is a son to do?

Your name is poison to an incal­culable number of people. You’ve no shame, humility, or compas­sion. Sam Harris, you are not fit to be called a person, let alone a justice.

— Michael Smartt II, Missoula

Poignant. And very sad.

What?

We're only number four?

I think I'm a Libertarian

Markos Moulitsas, The Daily Kos, has recently been discussing the idea of "Libertarian Democrats." While the idea sounds good in theory, I tend to agree with this gal:

Who does the average American fear more--the FBI or the IRS? The local zoning board, or the NSA? What does he fear more: the ten commandments on the wall of his child's school, or having the new addition to the house disallowed by the zoning board, the EPA, or the Americans with Disabilities act? On what does he spend more time: preparing his taxes, earning the money to pay for them, and arguing with the various tax authorities about what he owes . . . or checking for roving wiretaps?

I, as an 'average American,' am much more likely to be impacted by our local tinhorn dictators than NSA goons searching for Islamic terrorists. Why wouldn't I worry about them more?

Do you have 'sympathy?'

Rode a tank...
Held a general's rank...
While the Blitzkreig raged...
And the bodies stank.

Hope you guess my name.

UPDATE: I posted the foregoing, very obscure reference. No one guessed! Here are some better hints from a week ago in Missoula:

Ooops.

Allen is correct. He posted a comment to a post of mine. I was going to edit my post and, in my haste to get out of town, I saved it rather than publishing it. Rather than reopening it, I will add his comment to this post, below, and respond to it here.

First, I will verify that I believe Allen is a real person. If he is who I think he is, we went to school together. I like him, and we have always gotten along fine.

I did not know he is gay until he posted on this site a few days ago. In one of the comments, he questions whether I would go to a barbecue at his house, implying that I would not socialize with a gay couple. Allen, have you ever invited me to a barbecue at your house? Do you know whether we have any gay friends? He further makes a reference to a June posting on this blog where I suggest that my "sons need protection from seeing [Allen and his] husband holding hands in public." I couldn't find that post, Allen. Maybe you can give me the date of it? I don't think I said it. I think I know the post you are referring to, but if I am right you took it out of context and changed it. I don't want to assume you would do that, so please tell me I am wrong.

Another person commented that Allen's points sound very similar to those that Sam Harris is making. I don't know if this is a concerted effort or not, but I am not going to get baited into allowing Allen and/or JP Harris to frame this as me against Harris.

I had to laugh when I read Allen's comment, below, because earlier that day I told my partner that the next thing we would hear would be "witch hunt," and, sure enough, Allen obliged. I am not a "political opponent" of Sam Harris. (I probably agree with him on most political issues) I don't think I gave Steve Fagenstrom money (I might have, I don't remember). I don't work with Fagenstrom's campaign. When I learned about Sam Harris's GORE activities, I viewed them in the context of what he said about and did to my friend, Mike Smartt. I wrote this for my 30 or so readers. I didn't go to the Tribune; they came to me.

So, don't try to put me on the defensive, Allen. Your friend typed everything that I printed. I did not make up a word of it. Not to sound corny, but this is America, I have the right to speak my mind, and I am not going to be cowed by a suggestion you and/or Sam Harris thought up to try to discredit me. He said the words. If it's really no big deal, as you are now spinning it, why attack the messenger? This is no witch hunt. I am not gleeful about any of this. It wasn't a 'revenge' thing.

I remember reading about Harris's testimony at Smartt's hearing. I remember disbelieving the testimony of a 30 year old Montana man when he implied he would be scarred for life by viewing some porn. I remember thinking that witnesses, but especially lawyers and judges, should respect the oath.

So now you talk about "Sam from Conrad, a Montana guy with some rough edges." Well, this "Montana guy" filed a sexual harassment complaint because he saw some porn. He testified, under oath that he was deeply disturbed by glancing at these images. Do you think that a voter could reasonably infer from Sam Harris's online comments that, perhaps, this fellow was less offended than he led everyone to believe? Do you think that is a fair inference? That, just maybe, a guy who talks about "banging away on a corpse" really wasn't all that harmed? Would it be fair to draw that conclusion? I am not asking you to agree with it, just whether it is a reasonable inference.

And, as a lawyer, you are familiar with hypotheticals. Assume for me that JP Harris's offense was contrived. Assume that he pretended to be more offended than he really was because he wanted Smartt out of the office. Assume that he knowingly exaggerated his level of discontent when he testified. Is that relevant to his continued seating on the bench?

I also think that it is spin that it's now just a public property issue. Granted, one of the complaints against Smartt was that he used public computers, but that wasn't the only complaint. But let's talk about that anyhow.

You say JP Harris was on his own time when he accessed the games and the forums. How do you know that? When is county time? Do you go home during the day often to post messages on a chat room? 9:30 in the morning, 2:00 in the afternoon, etc., etc. When is he being paid to work? And, I distinctly remember during the Smartt affair that Mike argued that he often worked at night, so it was ok to screw around some during the day. Is that argument good enough for Harris, but not for Smartt?

More spin: "Explicit porn is different from written vulgarity." Why? Because you say so? Couldn't one argue that creating the mental image of a man with a sheep is just as 'bad' as passively looking at photographs of sex?

Look, this isn't all about hypocrisy, or sex, or locker room talk. This is about a gentleman who testified under oath that he saw, I believe, three pornographic images and, as a result, suffered extreme harm. His testimony and actions resulted in another man losing his position. I believe it is fair to look at public statements of the accuser to determine the likelihood he was harmed. Put it this way. I think Channing Hartelius, Mike Smartt's lawyer, would certainly have been able to cross-examine Harris over the statements he made on the GORE forum as a way of attacking the credibility of Harris's claims of harm.

One other point. You have been silent about Judge Harris's statement about the Pantera song. "Walk by Pantera on Vulgar Display of Power. I have it if u want it. If you like that shit I have a fair amount of it. Cuz I like that shit." When Judge Harris says "I have it if you want it," do you not read that to mean he is offering to give his friend the song? That's illegal. Is that something a voter has a right to be concerned about in this race?

Allen, I have no personal quarrel with you. As I said, I have always liked you. Am I perfect? No, I'm not. Have I done things I am ashamed of over the years? Sure. Does that mean I cannot comment on a judicial race?

I've reprinted your comment below. You have had your say. If you wish to discuss this further, I would happy to do it by email or even personally. But I do not maintain this site as a forum for Sam Harris to get his spin out. These sites are free for the asking; just go to Blogger. If you want to start another site in Harris's defense, please do so. Hell, I'll even give you a link. But I am pretty well done with this whole sorry thing.

Get your checkbooks out...

The Tribune hasn't reported this yet, so I will. It is my understanding that Mr. Dustin LaRoche, who Sam Harris threw in jail for allegedly not paying a civil debt (not a crime!) has submitted a claim to Cascade County for more than $20,000.00 for his incarceration in violation of the Montana Constitution.

This is on top of the $11,000.00 we had to pay because Justice of the Peace Sam Harris refused to provide an interpreter in accordance with the law.