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VALIDITY OF OREGON COURTS FACES POSSIBLE QUESTIONING BY U.S. SUPREME COURT

 

By Jack Worthington
Research Investigative Analyst
February 17, 2003  1:05 PST
NewsWithViews.com

PORTLAND, OR. (NWV) -- A "Defining Moment" is an uncommon event with a particularly far reaching effect. Some "moments" are "good" and some "bad." There are others that are seemingly, almost too carefully, tucked away from the sight and knowledge of the common man, their quality not generally known and still to be recognized. It is these latter "moments" that are ofttimes most interesting and cause for one to ask, "Why were they so carefully covered up?" Of course the answer is that someone or some group had something to gain or lose, such as power, wealth, 'money', prestige, property et. al., by disclosure of the truth and was willing to twist the "law" in order to allow the preservation or acquisition of ill-gotten gains. Researcher, Milt Mitchek, has uncovered one of those carefully concealed "defining moments". Mr. Mitchek's long and dogged research has yielded the startling and scholarly brilliant discovery that there are "no courts of remedy" in Oregon.

How can there be "no courts of remedy" in Oregon? Is this true or is this an absurd claim? If true, then what might be the consequences for anyone past, present or future that has the great misfortune to be "forced" into one of these "courts" where only "judges" with questionable authority preside? If there are "no courts of remedy" in Oregon then our whole foundation as a nation of laws may have been struck a mortal blow.

The problem of "no courts of remedy" in Oregon is truly a conspicuous "defining moment" in history and has been unwinding since about 1988 and has been virtually unpublicized and seemingly ignored by the media. Where there is "no court of remedy" there is no due process. But to acquire due process one must have access to a "court of law" that is separate from legislative powers as guaranteed by the United States Constitution that each state must have a republican form of government with three separate branches. In short, Mr. Mitchek's work questions the constitutional validity of circuit courts in Oregon. Besides the question of court validity, another problem in the court system is that "judges" are circumventing the correct original oath of office as required by Article VII, section 21 of the 1859 Constitution of Oregon "BEFORE" taking their seats. Due to this very unfortunate circumstance, the "judges" are in violation of the qualification requirement in their applications for public office questionnaire. Such failure to qualify has fraud implications with consequent monetary and jail time penalties. Each of the 165 circuit court judges in Oregon stands to be fined and/or imprisoned for illegally swearing or affirming (it is one or the other, but not both) an oath of office that is not Article VII, section 21 of the 1859 Constitution of the State of Oregon. One might easily imagine the problems that could ensue from the removal of all 165 "judges" from their respective benches.

In June 1999 the plaintiffs, Darrell Smith, et. al., filed a Civil Class Action for a Declaratory Judgement for the Verified Violation of the Oregon State Constitution and Constitutional Guaranteed Rights in the United States District Court for the District of Columbia against the STATE OF OREGON. In August 1999, the counsel for the defendant, STATE OF OREGON, filed a motion to dismiss the claim because 1.) insufficient service, 2.) improper venue or in the alternative, transferring the action to the District of Oregon, 3.) lack of subject matter jurisdiction, and 4.) failure to state a claim. In September 1999, the plaintiffs filed a Motion for Leave to Amend and Perfect the Complaint. In December 1999, the court granted the defendant, STATE OF OREGON (note that all capitals distinguish corporate as opposed to the organic, 1859 State of Oregon), Motion in the alternative and the case was moved to the District of Oregon. Interestingly, there was approximately a 1 year delay in the government's paperwork "due to an oversight", and the action wasn't transferred until December 2000.

On December 15, 2000, United States Magistrate Judge Janice Stewart granted plaintiffs Darrell Smith, et. al., Motion for Leave to Amend. Judge Stewart stated, "In this case, plaintiffs seek declaratory relief that Measure 362-363, approved by the voters of the State of Oregon on November 8, 1999 (should be 1910), was not validly adopted and may not properly be made part of the Oregon Constitution." Obviously from Judge Stewart's quote, she had trouble with dates, subject matter and historical events.

In 1908 George Earle Chamberlain, then governor of Oregon, resigned his governorship, having recently been elected to the United States Senate. Frank Benson, Secretary of State since January 15, 1907, was sworn in as governor on March 1, 1909, but curiously retained his position as Secretary of State and received salaries for both positions. (Note that it is a violation of the Constitution of the State of Oregon Article II, section 10, for a person to simultaneously hold more than one lucrative office; a prohibition designed as part of the "Check & Balance" System to protect Oregon citizens from despotism.) Benson held the governorship until June 17, 1910 and then resigned that position, while retaining his office as Secretary of State, and directed that Jay Bowerman, President of the Senate, assume the duties of governor. Bowerman was sworn in on June 16, 1910.

While Benson was holding both the Secretary of State and Governor offices, Measure 362-363 was introduced. With Bowerman in office Measure 362-363 was placed on the ballot by the legislature for plebiscite on July 7, 1910. Measure 362-363 was subsequently and mysteriously approved on November 8, 1910. Mysterious because there is an absence of county records showing the vote tallies. In 1988 Mr. Mitchek and other researchers visited every Oregon County's election archive and found nothing supporting passage of Measure 362-363. Benson, holding the offices of Secretary of State and Governor, did not have an abstract of the 1910 Measure 362-363 plebiscite. Strangely missing is the official abstract of votes statewide for Measure 362-363. Yet Benson announced the passage of Measure 362-363 and proceeded to certify his own announcement.

Measure 362-363 was an attempt to alter Article VII of the original 1859 Oregon Constitution by using the "Initiative Petition" process of Article IV. The "Measure" was written so as to permit an invasion of the Judicial Branch by the Legislative Branch of the state government, thus conflicting with the "separation of powers" doctrine. The 'new' Article VII, designated as amended, centralized the judicial power in the Supreme Court and in other courts created by the legislature. Discretion to take original jurisdiction in mandamus, quo warranto and habeas corpus proceedings was given to the supreme court, whereas, it had previously belonged in the circuit courts and county courts, and the supreme court only had jurisdiction to revise the final circuit court decisions. Thus the Supreme Court 'acquired' the power to toss any law or judgement it chose, and substitute its own ideas, beliefs or values, and consequently to "make law from the bench," a wholly untenable postulate and violative of the "separation of powers" doctrine, so necessary as one of the many "Check and Balances" on government power.

Measure 362-363 put the removal of judges of the Supreme Court and prosecuting attorneys beyond the reach of Executive and Legislative constitutional authority. So again, one of the "Checks and Balances" was removed and these 'judges' were given virtual immunity to accountability for any unacceptable behavior.

Measure 362-363 flaunted the Oregon Constitution by encompassing more than one subject or matter. The "Measure" dealt with where judicial power is vested, terms of office of judges, terms of judges Pro Tempore, judge retirement age, original jurisdiction, who appoints judges, instructions that a lower court gave to the jury on any case appealed to the supreme, terms of supreme court, juries and indictment and information, and the critically important, "Oath of Office to said state."

Measure 362-363 violates the separation of power doctrine by over-riding Article IV, section 4 of the United States Constitution, wherein a republican form of government with three separate and distinct branches is guaranteed to each state. That "guarantee" demands that the "initiative power" will not be used in a way to fundamentally invalidate the requirement that each state be provided a republican form of government. It should be clear that Measure 362-363 did merge government powers, much to the damage of the general population and to the benefit of a select few.

Recall that the "Oath of Office" was changed. Below are copies of the original Article VII, section 21 oath as per the 1859 Constitution of the State of Oregon, and the amended ( or supplanted?) Article VII, section 7 oath. The phrase, "...and that I will faithfully and impartially discharge the duties of a judge of the Supreme and Circuit Courts of said State..." [emphasis mine] was missing from the oaths of the current circuit court 'judges' as filed with the Secretary of State -  until "remedial action" by Oregon Supreme Court Chief Justice, Wallace Carson. (In late 2001 he advised Oregon 'judges' about the probable oath of office problem). Note also how the original oath uses the term "said state" while the supplanted or amended Article VII oath uses the term "this state." From the Merriam-Webster Dictionary(Internet/on-line) one can read the definitions: 1.) amend - to put right; especially: to make emendations in (as a text), and 2.) supplant - to supersede (another) especially by force or treachery. Until the late 1980's or early 1990's the oath of office that Oregon 'judges' were taking was described as being from Article VII Supplanted,  but then, somewhere in the 1990's, someone changed the description to Article VII Amended. Who effected this change from "Supplanted to Amended", and why, is not currently known.

Article VII (Original), Section 21.  Oath of office of Supreme Court Judges. Every judge of the Supreme Court before entering upon the duties of his office shall take, subscribe, and transmit to the Secretary of State the following oath.-

"I, _________, do solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution of the State of Oregon, and that I will faithfully and impartially discharge the duties of a judge of the supreme court of this state, according to the best of my ability, and that I will not accept any other office, except judicial offices, during the term for which I have been elected." [Created through initiative petition filed July 7, 1910, and adopted by the people Nov. 8, 1910]

Sample of text of typical Oath of office taken and subscribed by a Judge of the Supreme Court in Oregon prior to the "remedial action," i.e. prior to the Carson memo as aforementioned.

I, _________, do solemnly swear, or affirm that I will support the Constitution of the United States, and the Constitution of the State of Oregon, and that I will faithfully discharge the duties of Judge of the Supreme Court according to the best of my ability, and that I will not accept any other office, except a judicial office, during the term for which I have been elected.

Sample of text of typical Oath of office taken and subscribed by a circuit court 'judge' in Oregon prior to the "remedial action," i.e. prior to the Carson memo as aforementioned.."

I, _________, do solemnly swear, or affirm that I will support the Constitution of the United States, and the Constitution of the State of Oregon, and that I will faithfully discharge the duties of Judge of the Supreme Court according to the best of my ability, and that I will not accept any other office, except a judicial office, during the term for which I have been elected.

NOTE: The term "this state" is defined in Oregon Revised Statute (ORS) 131.205, to wit: As used in ORS 131.205 to 131.235, "this state" means the land and water and air space above the land and water with respect to which the State of Oregon has legislative jurisdiction. In ORS 323.010(4) "In this state" means within the exterior limits of the State of Oregon and includes all territory within these limits owned by or ceded to the Unites States of America, and ORS 459A.700(7) read similarly. The term "said state" refers to the geographic boundaries that define the organic state of Oregon as per the 1859 constitution.

Now one should ask, "If I were to venture into a circuit court in the State of Oregon today, would a judge be required to act impartially in making his decision concerning my case?" The answer is irrelevant because in failing to take the proper oath BEFORE a 'judge' assumed office, the 'judge' failed to qualify for that position and thus was improperly occupying his seat.

Thus, by circumventing the original oath of office of the 1859 Constitution of the State of Oregon, the "judges" achieved the power to over-ride the due process protection of and the 5th Amendment of the United States Constitution, one's right to protection of life, liberty and property. Hence these "judges" acquired the power to dismiss many critically important constitutional questions.

The oath issue gets even better. In November 1940 Judge George Tazwell of Department No. 7 of the circuit court lost to Judge John A. Mears. Mears died November 9th, 4 days following his election, from injuries sustained in an automobile accident. Newton C. Smith, relator, was appointed to the office of judge of said department of the circuit court by then Governor, Charles A. Sprague. Smith took the "oath of office" and demanded that Tazwell surrender it. Tazwell refused. Tazwell demurred (objected, took exception), contending that he was "entitled to hold office until his successor has been elected and qualified as per Article XV, section 1 of the Constitution of the State of Oregon.

Perhaps a shining and "defining moment" of the Oregon Supreme Court came in the case of State Ex Rel. Smith v. Tazwell, 166 Or 349-361 (1941), 111 P2d 1021(1941). In that case it was indicated that "Before a judge of the circuit court can enter upon the duties of his office, he must, under section 21 of the original Article VII of the constitution, take and subscribe to the following oath and transmit the same to the secretary of state:" The text of the original oath aforementioned appears above. Could it be that the court was trying to tell us that it recognized the enormous errors attendant Measure 362-363 back in 1910 and that it was leaving us a legacy of decency and honesty upon which we could reassert our freedoms, if we are willing to exhibit some courage? It surely seems so. The plaintiffs, Darrell Smith, et. al., with Milt Mitcheck, demonstrated that courage and have become "belligerent claimants of their rights" as per the directions provided by that honorable 1941 Supreme Court.

Because the application for public office carries a stipulation of signing under penalty of perjury, which has penalties for failing to qualify, the confusion over the oath of office issue raises the ugly specter of fraud.

Back to the chronology of the Darrell Smith, et. al., case. On December 15, 2000, Judge Stewart signed her Finding and Recommendations but these were not filed with the Court Clerk until December 18, 2000, at 9:39 AM. Magistrate Stewart allegedly erred where she wrote in her Finding and Recommendations, "Oregon has not consented to suit by explicitly waiving its Eleventh Amendment immunity." The Eleventh Amendment to the United States Constitution states: "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state."

Magistrate Stewart dismissed the Amended Civil Class Action by Darrell Smith, et. al., that claimed there is "no remedy" in the State of Oregon. Magistrate Stewart's decision implies that she determined that the Legislative Branch of the Oregon Government did not invade the Judicial Branch. She also denied the claim that "there are no courts in Oregon" due to the defective and infamous Measure 362-363 of 1999. (Stewart erred here as the year is 1910, not 1999!), which measure caused the circuit court 'judges' to fail to qualify before taking their offices because it somehow was effective in causing them to take the wrong oath. Smith, et. al., objected to the magistrate's Findings and Recommendation. Whereupon the district court was required to make a de novo determination (anew or afresh, or to consider the matter as though it had not been heard previously and as if no decision had been rendered).

In April 2001, United States District Judge Robert Jones performed his de novo determination and found no error in Magistrate Stewart's denial of the claim of Darrell Smith, et. al., that there are "no courts in Oregon" and that the Judicial Branch had not been invaded by the Legislative Branch. Judge Jones granted the Defendant's, STATE OF OREGON, Motion to Dismiss for lack of subject matter jurisdiction (the U.S. and state constitutions, as well as federal and state laws, grant and limit courts' jurisdiction, i.e. the power to hear and decide a case). The court dismissed the case with prejudice (meaning the plaintiffs were free to seek "remedy" in a higher court). The plaintiffs immediately filed a petition for rehearing in the UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

Interestingly, it was reported in the Oregonian Newspaper of Thursday, October 11, 2001, that Chief Justice Wallace Carson of the Oregon Supreme Court sent a memorandum to all elected and appointed 'judges' in Oregon, informing them that the oaths provided to judges upon election was not the 'proper' oath. Chief Justice Carson's memorandum was accompanied by two forms of oath, one for elected 'judges' and one for appointed 'judges'. Why? It now appears that Carson's efforts provide prima facie evidence or admission that he recognized the "oath" problem and was attempting to avoid the danger posed by exposure of such  questionable oath taking and subsequent questionable office taking and actions of the questionable 'judges' thereafter. Keep in mind that the courts are want to say, "one cannot unring a bell." Hence, once a 'judge' has failed to qualify for office, i.e. took the wrong oath, he is not at liberty to retake some other oath, possibly correct or possibly incorrect, for as many times as it might take to get it right. It appears that once a 'judge' has erred in the qualification process he would have to repeat the application, election and qualification process.

In June 2002, the UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT denied the appellant's petition for a rehearing en banc (by the full court as when all members of an appellate court hear an argument). The "NINTH" then apparently sequestered its unpublished "judgment" and "opinion" on this case.

Thus, in September 2002, Darrell Smith, Patrick Smith, John McBride and John and Jane Doe made a Petition for a Writ of Certiorari in the United States Supreme Court. Due to a "form" problem the petitioners, they were granted 60 days to perfect their petition and it was resubmitted on November 29, 2002, and assigned a Docket #02-9862. A Petition for Writ of Certiorari is a document that a losing party files with the Supreme Court requesting that it review the decision of a lower court. The "petition" contains the names of the parties, facts of the case, legal questions for review and arguments as to why the Supreme Court should grant the writ. In January the Supreme Court gave the STATE OF OREGON 30 days to respond to the petitioners assertions and claims. The Attorney General of Oregon, Hardy Myers, is charged with preparing that response. The Supreme Court Docket indicates that on January 17, 2003, a Waiver of right of respondent Oregon to respond was filed, and on January 22, 2003, the case was DISTRIBUTED for Conference of February 21, 2003.

So there you have it. Ballot Measure 362-363 in 1910 was a convoluted "Defining Moment" where the Oregon Judicial Branch apparently was invaded from within by the Oregon Legislative Branch. Then in 1941, the Oregon Supreme Court provided a shining "Defining Moment" by explaining that the original Article VII, section 21, oath of office was required BEFORE a judge could take office. And in the 1990's, Milt Mitchek, through clever insight and dogged determination, provided Oregon with a really explosive "Defining Moment" when he discovered the aforementioned documents and sorted it all out to explain where we had gone wrong.

If this information seems scathing, consider the damage wrought upon the people of Oregon by 'judges' who have not sworn to render their decisions with "impartiality" and thus failed one of the requirements to qualify for office.

1.  www.osl.state.or.us/lib/governors/fwb.htm
2.  www.supremecourtus.gov/docket/02-986.htm

2003 - NewsWithViews - All Rights Reserve

Related Article:
Validity of Oregon's Judges Oaths Challenged in Writ to US Supreme Court



E-Mail:  Jack Worthington  jackw@egr.up.edu 


 

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"In 1908 George Earle Chamberlain, then governor of Oregon, resigned his governorship, having recently been elected to the United States Senate. Frank Benson, Secretary of State since January 15, 1907, was sworn in as governor on March 1, 1909, but curiously retained his position as Secretary of State and received salaries for both positions."