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First off we will start with the criminal endangerment statue, then show you how Montana courts can't even legally prosecute you with this offense. Also how the way some Montana courts charge and prosecute felonies is a clear violation of the United States Constitution.
45-5-207 Criminal Endangerment "A person who knowingly engages in conduct that creates "a substantial risk" of death or severe bodily injury..."
All statutes must have their"main elements" defined. ( Elements are the "main words" that make a statute enforceable and understandable.) Montana Supreme Court has ruled this many times.
Columbia Falls Elementary School District #6 v State (2005 MT 69) , here in known as "CFESD #6". In this case Montana Supreme court said..."legislature has not defined what "quality" means, [therefore] we cannot conclude the current statute is enforceable."
Therefore, under State and Federal guidelines for "equal protection under the law", because of Montana Supreme Courts ruling in CFESD#6, All statutes must have the "main elements" of the statutes defined.
CFESD #6 has been upheld time and time again by Montana Supreme Court. Most Notably in Clark Fork Coalition v Montana Dept. of Environmental Quality (2008 MT 407) and Bair Family Trust.
In Clark Fork Coalition the Montana Supreme Court said "...We held in CFESD #6 that the legislature had failed to act within it's discretion to define "quality education", rather than stepping into the legislators shoes and drafting the definition of "quality education" ourselves, we require the legislature to define the term, as it was their duty."
As shown, so far, the Montana Supreme Court has repeatedly ruled that the State Legislature must define the "main elements " of a criminal statute for it to be enforceable, otherwise it falls under the federal "Void for Vagueness Doctrine" This federal guideline says "...a penal felony statute (that is a statute that can result in prison time.) defines the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." !! (quoting Knudson v Lawson (416 US)
The "main elements" of the criminal endangerment statute are "substantial" and "risk", neither of which have been "defined " by our State Legislature, even though Montana's Supreme Court has ruled repeatedly (CFESD #6, Clark Fork Coalition, Bair Family Trust), the "main elements " must be "defined"! There is no single commonly accepted definition for these words. Not only are there multiple definitions for each word (substantial has at least 5 definitions), but multiple interpretations of these definitions.
Under Montana codified laws there are no definitions for "substantial" or "risk"...nor for "substantial risk". It is impossible for the State to determine probable cause without having a baseline definition of even just plain "risk" or "normal risk", or "acceptable risk". If there is no baseline definition of a "risk" it is impossible to know when you have crossed the line and put someone in just mere risk, or substantial risk, or any risk at all. Without probable cause you cannot be legally charged, let alone convicted. M.C.A.1-3-222 "the law never requires impossibilities.
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State v Knudson, (2007 MT324) , Montana Supreme Court ruled that the word "address" was vague which made the statute being challenged unconstitutionally vague. Justice Leaphart explained "the word 'address' is ambiguous, because it has more than one generally accepted meaning (just like substantial ), and Blacks Law Dictionary noted the possible ambiguity in the term" and it was of this ambiguity the statue was unconstitutionally vague in relation to the federal "Void for Vagueness Doctrine"
Now in State v Crisp (249 MT) Montana Supreme Court apparently attempted to define "substantial risk" without the use of Blacks Law Dictionary, because those words are not in there ! In this case Montana Supreme Court used Websters 9th New Collegiate Edition (1986 ) and they came up with "not imaginary: true real" for "substantial" and "possibility of injury/peril" for "risk". I have no idea why the Montana Supreme Court decided to use a Websters Dictionary from 1986, but it obvious they have issues with words the legislature has neglected to define. Now for the sake of argument, let's use Motana's Supreme Court illegal definition of substantial risk. Substantial = "not imaginary /true " Risk = "possibility of injury/peril" This means "not imaginary,real and true injury or peril." Which for one means ANY risk, because if any amount of risk is present it has to be "real or true"no matter the amount. Even if it was the smallest amount of "true and real risk" possible it would fall under Montana's Supreme Court illegal definition of substantial risk. This is why this statute is unconstitutional. Since Montana's Legislature has never even given a baseline definition of plain risk you have no way to tell when you have crossed the imaginary line of just tiny unharming risk to substantial risk. This is impossible to prove and defend against plus it lends itself to indiscriminate enforcement.
State v Stanko ( MT. 321-323 1998 ) Montana Supreme Court
ruled "where the legislature fails to provide such minimal guidelines
(definition), a criminal statute may 'permit' a standard-less sweep
(that) allows policemen, prosecutors and juries to pursue their personal
predilections."
* Plain English * - When the legislature does not clearly define criminal statutes this allows police, prosecutors and/or juries to arrest, charge or convict based on their own opinions! not according to the law!!!--- This was said by the Montana Supreme Court ---they know it but still allow it and constantly rule against this.
That aside you would think that at least they would know their own codified statutes, but in Montana M.C.A.1-2-101, Montana M.C.A.1-4-101 and cited in Swearingen v State (2001 MT 10) "The office of the Judge is to simply ascertain and declare what is in terms or substance contained there-in, not to insert what has been omitted or omit what has been inserted."
Plain English A Judge is only on the bench to rule on the facts (codified and legislative definitions) of a case and not to" insert" (add) his own definitions. Now add in another case from Montana, Lone Elk v State 2005 MT 56) " If legislature wanted to...[add definitions ]...it could have done so."
Taking into consideration all of these previous rulings that the Montana Supreme Court has set, CFESD #6, Clark Fork, Bair Family Trust, Lone Elk, Swearingen and Montana M.C.A.'s 1-2-101,1-4-101. ALL say or show Montana State Legislature has to define the "main elements" of a statue or that statute, and/or the ruling is unenforceable and vague as shown in State v Knudson. Also a Judge cannot insert his/her own definitions-even from Blacks Law Dictionary. By law they have to rule on the facts of the case. The facts of any criminal endangerment case is that there is no viable or useable constitutionally accepted sound definition of this statutes main elements passed by our State Legislature. That fact makes this statute fall under the federally recognized Void for Vagueness Doctrine and unconstitutionally unenforceable. This doctrine has been brought up and won many times in the Montana Supreme Court, Federal District Courts and the US Supreme Court.
So every time a State Prosecutor charges a citizen, a District Court convicts them and the Montana Supreme Court upholds that conviction they are going against numerous Montana settled case laws. Montana's own codified statutes and Federal case law. Which per Hicks v Oklahoma (US -471). When the state fails to abide by its own laws then that also creates a "federal question" of a "deprivation of the due process guarantee of the 14th amendment of the United States Constitution."
I have just made it very clear of how all Montana courts and state prosecutors multiple times each and every day, not only violate our own laws, statutes, settled case laws of Montana, Federal statutes/guidelines, Federal case law, the US Constitution as well as our own State of Montana Constitution, " Due Process" and Equal Protection of the laws each and every time they even charge, let alone convict someone with these offenses.
Now when I say "Equal Protection" what does that mean? If your neighbor was charged and convicted under a sound and legislatively "defined" statute--You have the right "Equally" to be charged and convicted under the same guidelines of a sound and legislatively defined statute. You cannot be less of an individual in the eyes of the law.
At the end of the day, this statute is unconstitutionally vague and it is impossible to defend against. This creates an impossible burden. As per Montana M.C.A. 1-3-222 "The law never requires impossibilities"
Okay, lets now tackle how Montana's charging and prosecuting of felonies is a violation of Montana's Uniform District Court Rules and the United States Constitution. This has two parts to it.
Part 1 (a) Montana Rules of Procedure -7(b)
Part 1 (b) Uniform District Court Rules -2 (B)
Part 2 Montana's Violation of the US Constitution
The first two parts really shows the vast corruption in our state courts, however Part 1 (a), and (b) only pertains to the people who are still in the District courts. The reason this occurs is, because once you plead "guilty" you waive many rights - some of which include not to challenge the things the state has done procedurally wrong to you, prior to entering a (possibly) coerced plea agreement.
You can try to argue this on appeal, but the Montana Supreme Court will call it "Harmless error". Kind of funny this "harmless error" is a violation of many American Bar Association (ABA) standards, Montana's Uniform District Court Rules, Federal guidelines and almost everything our system of laws were founded on as far as allowing people to respond to the charges brought against them and illegally putting people in jail without having to present any evidence....Ever hear of "innocent until proven guilty". Yes I know it is a new phrase/concept (for Montana "justice" at any rate.)
1(a) Montana Rules for Civil Procedure-7(b) This says in plain English that all requests to the court including the Prosecutor charging you must be made, and are in the form of, a "motion"
Example, when your lawyer asks to "suppress" something or to "Dismiss " something, your lawyer will put it in the form of a "motion to suppress" or a "motion todismiss". Anything the prosecution does, also has to be put in the form of a "motion".
When your charges are first brought before the Judge, it is in the form of a "motion". Prosecutors will call it many things - "Application for.".., "Affidavit in support of"..., "move to file"..., "Request for"...ect. They are all and have to be "motions".-at least that is the way Montana code requires it to be.
1(b) Montana's Uniform District Court Rules Rule 2(b) says in plain English "within 10 days thereafter the adverse party (Defense) shall file an answer brief "to the motion " put in by the prosecution.
This means that your lawyer (and you) are allowed, by law, 14 days to respond to any and all "motions"brought before the court. Remember now, when your charges were first brought against you they were in the form of a "motion", but almost all of the time the Judges grant the "motion/information" that same day, or the very next day. Never allowing you the 14 days to respond to the "motion" (your charges)brought against you as guaranteed by this law.!!!
If you use 1(a) and 1(b) you should be able to get your case dismissed, and returned to the lower court (Justice Court ) because of the court not allowing you to respond to the "motions" You will have to fight your lawyer/public defender on this, This is not only in Montana Law/guidelines but also in Federal Law. Now when your case is sent back to Justice Court and the prosecution has to "refile" the information (your charges). They will have to present evidence this time, because they now they know you know something about the law. So now this time around if there is no evidence most likely be dropped. By doing this you are basically calling the prosecutor's bluff. You may ask the clerk of court for a court index or docket report. That will show that they did not give you the 14 days to respond to the motion.
Call any lawyer, Law Professor or any law student. Preferably call one from out of state and ask about this. Make sure to explain this in detail. If you talk to a lawyer from another state he may say 'don't worry about it. I will just bring it up at your preliminary hearing.' Oh wait... Montana does not give preliminary hearings.!!! ( But that is covered in part 2 ) Now Montana Supreme Court has ruled on this in a similar fashion...its called "Invalid Information" or "Defective Information" See State v Onstad (234 MT 487)and McCassery v State. Montana State Courts really have a hard time remembering their own case law!
So right off the bat, if you are charged with felony criminal endangerment, or most felonies here, not only are you being held under an unconstitutionally vague statute, but there is a chance you will be sentenced to multiple years in prison. Which, by the way is a violation of the US Constitution. (discussion still coming up) In a criminal endangerment charge most likely the only evidence the prosecutor needs is that someone said you made them "feel" endangered. Again-not defined, and subject to vague interpretation. Most likely there is no physical "evidence" a crime happened. You are charged by "here-say" This is the way Montana operates. There apparently doesn't have to be any bona fide evidence.
Now you will have to push your lawyer very hard on Part 1(a and b). He will not want to go against the status quo! Don't take NO for an answer---BTW , because of the attitude and corruption in Montana's State judicial system your public defender will not willingly argue this point at all.
Here is where it gets real interesting ...this pertains to all felonies This is a large Constitutional violation
Part 2- There are three motions on this Blog (motion 1, motion 2, motion 3, ) that were filed in State v Hall (DC-09-125). The lawyer who put those together went into great detail that no State can override the United States Constitution, Montana agrees with this. See Lone Elk v State , but if the State could they would have to pass statutes that allow the prosecution of felonies without allowing the defendant the right to have a preliminary hearing. Also he explains on how since Montana is a common law state, and in Common Law States, "information" can only be used for misdemeanors-- not felonies unless the State Legislators pass legislation allowing the courts to do so. Guess what? Montana legislators have in fact never passed any statutes that allow the use of "informations" for felony prosecutions,unless given a preliminary hearing. Montana Courts almost never give or allow defendants (you) a preliminary hearing. This is a clear violation of the 5th amendment as applied through the 14 amendment to the Constitution. Again, ask any lawyer or Law Professor from another state. So why do they not allow a preliminary hearing, or in State v Nauman (DC-99-063) in Flathead County his lawyer "waived" it for him without defendants approval- Highly unethical/illegal. Most cases have little or no evidence and this unethical denying our mandatory preliminary hearings essentially forces defendants to agree to a plea for crimes they did not commit.
* Fun Fact* The way prosecutors file/change the "infomations" (your charges) incorrectly, the District Courts actually do not have the Jurisdiction (legal authority) to hear your case! These are all Constitutional rights issues and you can't "waive" (forgive) these rights. More importantly, no one can waive them for you.
Example: Nobody can waive your constitutional right not to be discriminated against. Nobody can waive your right to not have liberty(be free), Nobody can waive your right not to pursue happiness and above all else, nobody can waive your right to due process. (Montana's current process is current process of eliminating preliminary hearings),and your right to be able to have the evidence being used against you brought before a judge/jury and your right to question that evidence before being formally arraigned.
Stanley v Lemire (2006-MT-304), Montana Supreme Court ruled "a court cannot accept jurisdiction by consent of the parties..."
Plain English: Montana Courts cannot and do not have "legal authority" over your case just because you or the prosecution says so. Courts can only have legal authority over your case when granted by constitutionally accepted laws. There are no laws (statutes) allowing the State to waive your constitutionally right to a preliminary hearing. Montana Courts do this with almost every felony charge, see (DC-12-70) . Will try to appeal this. * Hello lawyers* This has the potential of a huge class action lawsuit. The person from (DC-12-70 and DA-14-0632) would like to file. This would involve almost all felonies for over the last 30 years. *Big Money*
So to sum this all up....every time a State Prosecutor charges a citizen, a District Court convicts them, and the Montana Supreme Court upholds that conviction of a citizen charged with a Felony Criminal Endangerment they are going against multiple A.B.A. standards for prosecutors/evidence/defense ect.... Montana's own numerous settled case law (Columbia Falls School Distric t#6 v State(2005 MT 64),Clark Fork Coalition v Montana Dept. of Environmental Quality (2008 MT 407), Bair Family Trust , State v Knudson, (2007 MT 324), State v Hall (DC-09-125), State v Onstad (324 MT 487), McCaffery v State , Whitefish v O"Shaughessy, Swearingen v State (2001 MT 10), Lone Elk v State (2005 MT 56), State v Ah Jim (9 MT), RE: Durbon (10 MT 147), Stanley v Lemire (2006 MT 304)State v Stanko ( MT. 321-323 1998 ) , Montana's own codified statutes (1-2-101/1-4-101/1-3-222) ect... The Federal " Void for Vagueness Doctrine", settled Federal case law Hicks v Oklahoma (447 US 343),Kolender v Lawson (461 US ),Powell v Alabama(287-US-45) Exparte Wilson (114 US 417), Exparte Bain (121 US 1), ect... and Montana's own Constitution Article 2, section 17, as well as the United States Constitution 5th and 14th amendments
All cases presented in this Blog need some legal help in one form or another. Some cases are caustic, in as far as the statute they were charged with and that Montana knows that no one will help them. There are some very large class action lawsuits possible in this Blog. Only if you are willing to do what you went to school for- uphold the law. If you are willing to help out please let us know and on which case. Donations are always welcome. Fighting this is very expensive. All proceeds are to pay for legal fees, legal help and legal phone calls.
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