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Show WESTERN AMERICANA The Threat From Within irkirkixiKicfrkiciticixitixiKicirkicicixiriciriKiticiricicirfrfrkicirkick'frfKiKicicitic it A: it fc? Vol. 4, No. 49 : Salt Lake City, Utah 84115 December 6, 1973 25 V V Takes Away Rights RA Two sensational Court decisions in the past few months clearly show what is in store for wives and families if the Equal Rights Amendment is ever ratified. The Superior Pennsylvania Court in the case of Wiegand v. Wiegand on September 19, 1973 knocked out the special rights of wives in regard to separate maintenance and attorney's fees. More precisely, the Court ruled unconstitutional the sections of the Pennsylvania law which permit a wife (but not a husband) to obtain a divorce from bed and board (called separate maintenance in many states), alimony pendente lite the during (support-mone- y litigation), and attendant costs and fees (payment for her counsel lawyer). Pennsylvania is one of the few states which now have a State Equal Rights Amendment already in effect. Under this new section of the Pennsylvania " State Constitution, the Court declared that the sections of the law giving special rights to wives had to be invalidated. According to United States Law Week (a respected national weekly survey of current law): This decision may foretell a national rule if the proposed Equal Rights Amendment to the U.S. Constitution is adopted. In this case, the wife argued that the Equal Rights Amendment was meant to be limited to insuring women equality of opportunity in the areas of education, jobs, wages and benefits for workers. The lower court agreed. But the Court Pennsylvania Superior reversed the lower court decision and rejected this argument, saying: Such a restrictive interpretation does not comport with either the plain meaning of the Amendment's words or its meaning as understood by the electorate which adopted it. ... The Amendment specifically says that equality of vf ' ' rights under the law shall not be denied ... because of ... sex. No exception is made for rights in the area of domestic relations. ERA proponents have been confidently their assuring uninformed audiences that, when courts rule on the superior rights and benefits which present laws give to women, the courts will extend those benefits to men. This Pennsylvania case gives the lie to this argument. The Court absolutely did not make these the Court rights reciprocal simply knocked out the special rights enjoyed by wives, saying: Absent such mutuality of rights to both sexes, the present statutes must fall. ... We therefore cannot judically interpret the word wife as meaning spouse. ... We are thus compelled to hold Nos. 1 1 and 46 the Divorce Law unconstitutional. COLORADO CASE Meanwhile, another case called Fromives Colorado v. Elliott, decided under the new Colorado State Equal Rights Amendment on June 8, 973, w'as even more devastating to the rights of wives. Larry Lee Elliott was charged by the State rt with felony under the is which Colorado Law, typical of the support laws in most states. The Court dismissed the case on the ground that the statute applies only to males, and such laws must be invalidated under the new Colorado State Equal Rights Amendment. The Court stated: It is clear that only men can be and prosecuted for a of be convicted only men can felony under this law. It is just this type of sexual discrimination under the law that the Equal Rights Amendment prohibits. The sexual discrimination contained in this statute is clearly in violation of the Equal Rights Amendmenmt to the Colorado Constitution These two cases are a clear 1 non-suppo- . non-suppo- rt, . warning of what courts will decide if the Federal Equal Rights Amendment is ever ratified by three-fourtof the States. Women who naively think that the Equal Rights Amendment merely means equal pay for equal work are in for a big shock when they find out what equality really means. These cases show the foresight of eminent legal authorities such as Professor Paul A. Freund of the Harvard Law School, who wrote: What will he the reaction of wives to the Equal Rights Amendment when husbands procure judicial decisions in its name relieving them o f the duty of support because an equal duty is not imposed on their wives? and of Professor Philip B. Kurland of the University of Chicago Law School who wrote: It is largely misrepresented as a womens rights amendment when in fact the primary benejiciary will he men." hs 1U THE MYTH OF OFFICIAL IMMUNITY Most persons have the idea that since they have heard that the federal government cannot be sued W. Vaughn Ellsworth UTAH INDEPENDENT1' 2459 Major Street Salt Lake City, Utah 841 Second Clare Pottage Paid at Salt lake City, Utah Cl to cr. r". - j c- - or4 (ti Ci sa M r- J 3J C at 00 l H ID ft, 1 1 blQMa tti H OH M ci xn txi U tii m t til rr - B without its consent, that an oppressed citizen's only remedy for his government's wrong is to go through the red tape of Administrative hearings, including the petitioning for refunds, and, if damages are sought from the federal government, obtaining their consent to be sued. are All Federal personnel an oath to support required to take the Constitution. So are all State employees. When an officer of government takes that oath he very implicitly agrees to protect you in your Constitutional rights, and certainly not to be a party to deprive you of them. Heretofore, both Federal and State employees have been quick to You complain that I shout, deprived you of your rights, but 1 was only doing my job; I was doing what I was required to do as my official duty. With that excuse, both Federal and State bureaucrats issue pocket summons and subpoenas. They issue what amounts to the hated general warrants which helped provoke the Colonists to rebel against the Crown. Bureaucrats drag citizens into what amounts to Star-Chamb- er and courts, where no Prerogative jury is ever permitted to set foot. Bureaucrats become walking legislators. Personnel like those of OS HA (Occupational Safety and Health Act) snoop and probe and with their threaten pocket the on and spot, injunctions fines for that which they disapprove. A great remedy, a great obstruction to this tyranny is the S 15 civil rights suit which any citizen can file against these tyrants in Federal Court under 42 United States Code, Sections 1983, 1985 and 1986. Although Section 1983 calls for the availability of money damages against those who under the color of State statute, custom or usage deprive another of a Constitutional right, every Federal official at some time or other resorts to color of State Statute, custom or usage. The language used in Title 28 United States Code ( J udiciary and Judicial Procedure) Section 1343, is (3) To redress the deprivation, under color of any State law, ordinance, regulation , statute, or custom usage, of any right, or immunity secured by privilege the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; Injunctive and declaratory relief are available also under the Civil Rights Acts. If an offended citizen seeks a redress against a judge, a prosecutor, a government lawyer or bureaucrat, it is best to sue the offensive tyrant not as a as an individual , fast-growi- ng violated his oath of office (he did if he deprived any citizen of any right guaranteed by the Constitution) and that consequently he acted outside the perimeter of his lawful duties (no official has a lawful duty of any and ine.vr5 to deprive you Constitutional right) of his proper jurisdiction (he always goes outside of it when he deprives one of a Constitutional right), then you have made some factual allegations which, under the Seventh Amendment of the Constitution, you can demand be settled by a jury. personnel have 20 days to answer your suit; Federal personnel are given 60 days. The US Attorney or State Attorney General or County Attorney or City Attorney, or whoever is defending the government officials sued, will submit a Motion to ' Dismiss to the Court. Sometimes, and especially in the case of judges, they will move, the Court for summary judgment. Remember that if you have alleged that the official acted outside of his official and lawful duties (even if he conscientiously thought that he was enforcing a valid law), you have made an issue of fact, even though it be intertwined with an issue of law. The Courts like to claim that they can decide an issue of law without any help from jury, and that a jury is only to decide a question of fact. If the Court claims that there is no real issue of government agent. By alleging that the official fact it will want to dismiss the suit. . tax-collect- or, Non-Feder- al Actually the Court will want to dismiss the suit anyway, because it realizes that if you are successful, the Court (the judge) may be next on the list of the irate citizen who is out to redress his wrongs. This is the reason to press strongly for a jury trial. A judge who tries a suit against a fellow is judge, a fellow hardly in a position to be impartial! The judge has a vested interest in the outcome. If he permits the Plaintiff to win the suit, he knows that all thunder will break loose, and that many aggrieved citizens will bring similar suits. For this reason the judge will want to get rid of the hot potato by agreeing with the Defendant that the suit ought to be dismissed. Although in a Motion to Dismiss it will be claimed that the Plaintiff has not stated a claim upon which relief can be granted and probably that the court lacks jurisdiction and that the Plaintiff bar-memb- er, has . not . exhausted his administrative remedies, or that he is really making an attack upon the Government and that Jie should have followed procedures of the all of this is Tort Claims Act untrue in a Civil Rights suit. We indignant Constitutionalists can whip every one of the bureaucrats and the government lawyers' arguments. We just have to stay in there and press forward. L.et . us examine the biggest that of claimed stumbling block official immunity. This usually Continued on page 8 |