By Attorney Jack
October 2, 2013
Grants Pass, Oregon: -The fifth amendment provides that “No person shall be . . . . . . . deprived of life, liberty, or property, without due process of law. . .” The rights therein guaranteed are both procedural and substantive protections against government actions that threaten the individual’s life, liberty or property. In terms of procedure, the fundamental requisites are awareness that a matter is pending (notice), informed choice whether to acquiesce or contest (opportunity to contest), and opportunity to be heard in the matter (hearing). It implies the right of the accused to be present before the tribunal which pronounces judgment. Aside from all else, due process means fundamental fairness and substantial justice. An aspect of substantial due process is that the hearing required be one before an impartial jury or judge.
Our commissioners are plowing new ground in the area of due process with their package of compliance ordinances, 2013-002, 2013-003, 2013-004, and 2013-005. Their creative thinking is truly marvelous.
Initially, they would tell us that the magistrate for their compliance courts (hearings officers) “shall remain fair and impartial.” (2013-004, 6.3) That would certainly establish at least a paper facade of the impartiality enshrined in due process. But it comes after telling us that “the hearings officer shall be appointed by the BoC to serve at the pleasure of the BoC. (2013-004, 5.1) Do they seriously expect us to believe that a magistrate, dependent in his continued employment upon pleasing the commissioners, in a forum whose function is to generate fines for the support of the prosecuting departments, will be financially disinterested in the outcome?
This is pure Delphi Method, the technique employed by federal agencies when required to “hear” public input prior to decision making. It provides all the trappings of an honest inquiry, provides all parties an opportunity to express themselves, and then does exactly what it had already decided. The Forest Service - which spawned Cheryll Walker’s administrative career - is well versed in the tactic. It is no accident that this package of compliance ordinances have the same trappings of due process while altogether devoid of substance.
But Walker’s genius does not end with simply copying what the federal agencies do so well. In this matter of due process, she has been truly creative. This package of ordinances establishes that the accused must pay to exercise his right. This is truly unique.
Initially, it will be a matter of BoC decision whether any particular offense will be cited into the Circuit Court or before a hearings officer. (2013-004, 5.2)
The compliance cop when she finds reasonable cause to believe a violation has occurred at any location within the unincorporated area of the County may issue a citation. (2013-004, 9) The violation may relate to County ordinances, codes, rules, regulations or any violation which may be charged as crimes. (2013-004, 8.1). It follows that the issue of protecting due process rights applies as regards both criminal and civil liability.
The citation must consist of a summons and a complaint. (2013-004, 8.2)
The summons issued may hail the accused into the Circuit Court. (2013-004, 8.4) If summoned to Circuit Court, the accused may request a trial. (2013 004, 13.1) This is, of course, exactly according to the dictates of due process. The ingenuity of Walker appears in 2013-004, 13.1(B) which establishes the requirement that for the accused to qualify for a trial, he must first pay the fine at issue. Another way to think of that is to say that one who would defend the taking of his property must first surrender the property at issue.
Alternatively, the summons issued may hail the accused before a hearings officer. (2013-004, 8.5) Again, if the accused wants a trial, he may request one. (2013-004, 13.2) Even in a kangaroo court we still have the trappings of due process. But again, he must first pay for the opportunity to exercise that right. (2013-004, 18.4)
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If the right implied in due process is the right of the accused to be present before the tribunal which pronounces judgment, by what constitutional authority does the accuser gain the power to force the accused to pay to exercise the right? For all her administrative law experience, does Cheryll Walker understand the difference between a right and a privilege?
The idea of taxing the exercise of rights by the individual to protect himself against bureaucratic overreach is outrageous. Poll taxes were outlawed years ago. Now we are to live with a trial tax?
These compliance ordinances must be defeated. They are evil and they are an affront to justice.
Commissioner Cherryl Walker Explains it All For You
2. The Ordinances According to Cherryl Walker
Commissioner Cherryl Walker, Kangaroo
Court and Big Fines
2- Josephine County, Oregon: Sad Failure of Central Planning
3- Commissioners Cherryl Walker and Keith Heck Misinformed
4- Bureaucrat Cherry Walker - The Bully in Josephine County Government
5- What the Grants Pass Daily Courier Failed to Report
6- County Government vs. Citizens, Part 1
7- County Government vs. Citizens, Part 2
8- County Government vs. Citizens, Part 3
9- County Government vs. Citizens, Part 4
© 2013 Jack Swift - All Rights Reserved
Jack Swift is an retired attorney.
Actively involved in the Republican Party and local politics, Jack would
love to see honest Constitution following representatives in local Josephine
County government. Jack believes if we are to save America from the grip
of evil, people must get involved on the local level and expose wrongdoers
at every opportunity. He is putting that belief in practice.