ACCESS TO LAW DENIED BY MONTANA SUPREME COURT:

DA-14-

IN THE SUPREME COURT OF THE STATE OF MONTANA

2014 MT

____________________________________

SHAWN GUYMON,

Appellant/ Plaintiff, APPELLANT’S

OPENING BRIEF

v,

Edward Corrigan, D.B.A. EDWARD

CORRIGAN, CHIEF COUNTY ATTORNEY,

FLATHEAD COUNTY ATTORNEYS OFFICE,

FLATHEAD COUNTY, MONTANA, Et al.,

Appellee(s)/ Defendant(s). ___________________________________

Appeal From: District Court of the Eleventh Judicial District, In and For the County

for Flathead, Cause No. DV-12-912(A)Honorable Ted O. Lympus, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Shawn Guymon- Pro Se, Kalispell, Montana

For Appellee:

Edward Corrigan, County Attorney, Flathead County,

Kalispell,Montana

Filed: _________________________________ , 2014

_________________________________ , Clerk

 

TABLE OF AUTHORITIES

The Full Faith and Credit Clause of the United States Constitution states: “Full Faith and Credit shall be given in each state to the public Acts, Records, and judicial Proceedings of every other State.” U.S. Const. art. IV, § 1. Expounding on the Full Faith and Credit Clause, Chief Justice John Marshall stated:

[T]he judgment of a state court should have the same credit, validity, and

effect in every other court in the United States, which it had in the state where

it was pronounced, and that whatever pleas would be good to a suit thereon in

such state, and none others, could be pleaed [sic] in any other court in the

United States.

Hampton v. M’Connel, 3 Wheat. 234, 235; 16 U.S. 234, 235 (1818).

In the wake of Hampton and its progeny, “it is now well established that the full faith and credit clause of the federal constitution requires that the judgment of a state court, which had jurisdiction of the parties and the subject matter in suit, be given the same credit, validity and effect in the courts of every other state and that such judgment be equally conclusive upon the merits in the courts of the enforcing states.” Mirage Casino Hotel v. J. Roger Pearsall, No. -4-02A01-9608-CV-00198, 1997 WL 275589, at *3; 1997 Tenn. App. LEXIS 367, at *7 (Tenn. Ct. App. May 27, 1997).

The Full Faith and Credit Clause of the Federal Constitution was a key component of the Founding Fathers’ efforts to form a unified nation, rather than simply a confederation of independent sovereign states:

Full faith and credit embodies an important federal policy. It is designed to give the United States certain of the benefits of a unified nation. As stated by Mr. Justice Stone in Milwaukee County v. M.E. White Co., 296 U.S. 268, 276-7 (1935):

The very purpose of the full faith and credit clause was to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin.” Blackwell v. Haslam, No. M2012-01991-COA-R3-CV, 2013 WL 3379364, at *6; 2013 Tenn. App. LEXIS 436, at *16-17 (Tenn. Ct. App. June 28, 2013) (quoting Restatement (Second) of Conflict of Laws § 103 cmt. b (2012)).

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STATEMENT OF THE ISSUES

Issue #1:

A Petition for Writ of Mandamus filed originally with Honorable Judge Ted O. Lympus, was reassigned under Cause Number, DV-12- 084(C), with Honorable Stewart E. Stadler, the Cause Number was reassigned again WITHOUT NOTICE, back to Honorable Ted O. Lympus under Cause Number DV-12-912(A) with the Eleventh Judicial District Court, requesting Statutory relief in line with the following: MCA 3-5-302(5) “The district court and its judges have power to issue,

hear, and determine writs of mandamus, quo warranto, certiorari,

prohibition, and injunction, other original remedial writs…”

The District Court issues an “Order To Dismiss” under Cause Number DV-12-912(A) on December 17, 2013, Stating “Plaintiff’s Petition requests action that violates the separation of powers doctrine for impermissable interference by one branch of government (judicial) with another (executive). Further, a writ of mandamus is not an appropriate mechanism to compel investigation of alleged criminal activity as a County Attorney has discretion whether or not to engage in that activity, and no clear duty exists requiring a County Attorney to investigate every allegation of purported criminal activity presented to him.”

The Flathead County Official WebSite states the following:

http://flathead.mt.gov/about_flathead_county/values.php

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Mission Statement and Core Values

Our Mission

We provide responsive and accountable services to protect and enhance the Flathead community.

Our Core Values

We are committed to:

  • Accountable stewardship of taxpayer resources

  • Respectful and responsive communication

  • Professional service with quality and integrity

  • Proactive and innovative leadership at all levels

  • Creating a positive team culture that values all people

  • Safety and security throughout the County

  • Equal treatment for all

Adopted by the Employees of Flathead County and the Flathead County Board of Commissioners.

Issue #2:

In Response to the District Court Order and the stated “Mission” and “Core Values” above, Appellant takes Issue with the fact that statutory relief to “compel the performance of an act that the law specially enjoins as a duty resulting from an office, trust, or station…” was not granted, and would point out the statutory language in the following Statute:

MCA 27-26-102(1) “A writ of mandamus may be issued by the supreme court or the district court or any judge of the district court to any lower tribunal, corporation, board, or person to compel the performance of an act that the law specially enjoins as a duty resulting from an office, trust, or station or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled and from which the party is unlawfully precluded by the lower tribunal, corporation, board, or person.”

The District Court Order is a violation of Appellant’s Constitutional rights as stated in Statute.

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Furthermore,

MCA 27-26-102 (2) “The writ must be issued in all cases in which there is

not a plain, speedy, and adequate remedy in the ordinary course of law.”

The Appellant, Mr. Guymon, having attempted to exhaust all relief from lower agencies, tribunals, and courts, was forced to Petition for Relief to the Eleventh Judicial District Court of Flathead County Montana thru Petition for Writ of Mandamus. The County Attorney having breached his contract with Mr. Guymon, by negligence and indifference to his need, by use of “Discretion” in his official capacity as County Attorney, and has further breached Constitutional protections of the People of Montana of which Mr. Guymon is a member by birth. If elected officials can choose to ignore evidence of grievous harm done to a Citizen and Person/People whom they swear an Oath to perform in their official duties under that Oath, then there is no Individual Rights as a Sovereign Citizen of Montana.

Issue #3:

Appellant’s Constitutional rights under the State of Montana, are BREACHED, specifically the following: These Rights have been denied and breached:

  1. Article III Section 3: Oath of office. Members of the legislature and all executive, ministerial and judicial officers, shall take and subscribe the following oath or affirmation, before they enter upon the duties of their offices: “I do solemnly swear (or affirm) that I will support, protect and defend the constitution of the United States, and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God).” Defendant has violated this oath through action/inaction denying the Due Process

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rights of Appellant by not investigating the claim made with regards to the grievous injury sustained while working for High Country Linen.

  1. Article II Section 3: Unalienable Rights: Appellant’s right to a clean and healthful environment including the work place has been breached. This negligent act directly effects the ability to procure “life’s basic necessity” and his ability to pursue “life, liberty and pursuit of happiness.” The near fatal asphyxiation and subsequent carbon monoxide poisoning caused by pre-meditated alteration of the exhaust system of the delivery truck. This pre-meditated alteration being the direct and proximate cause that has damaged and eliminated his safety and health, in all lawful ways. TheAppellant’s rights of “enjoying these rights, all persons recognize corresponding responsibilities” through the seeming application of MCA 39-71-411 by Appelle(s). This has resulted in the Rights of Appellant being denied and breached. The Constitution of the State of Montana, Article II, Declaration of Rights, Section 3. INALIENABLE RIGHTS. “All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life’s basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways. In enjoying these rights, all persons recognize corresponding responsibilities.” The violation of the above is evident in the wording of the last paragraph of the

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MCA 39-71-411:

The Workers’ Compensation Act binds the employee and, in case of death, binds the employee’s personal representative and all persons having any right or claim to compensation for the employee’s injury or death, as well as the employer and the servants and employees of the employer and those conducting the employer’s business during liquidation, bankruptcy, or insolvency.” Is this Provision to protect employees and employers from frivolous and unfounded claims? If so, why then does the MCA 39-71-411 provision state it “binds” the employee, there is no opportunity for employee to have equitable redress of grievances if they are bound by this Provision. “We The People” are guaranteed certain protections that both State and Federal Constitutions (i.e.: 9th and 10th Amendment to The Bill of Rights) enumerates and some un-enumerated rights that the Apellee has refused to investigate or hear in this matter, even though in holding his office he has Sworn an Oath to do so.

  1. Section 4: Individual Dignity: also having his “dignity” denied and breached because the ignoring of his request for assistance from the County attorney and the County Attorney’s office and said Office denying this request by actions and/or inactions, imperiled Appellant and subsequently resulted in further damage to health and human dignity, and Rights. Having been “denied the equal

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protection of the laws” it is further evident that by inactivity of Municipal offices,

County offices, State offices, etc., especially that of the County Attorney, the Appellant has had no recourse and thus no justice. This has resulted in violation directly and indirectly of Appellant’s Constitutional, Medical, and Human Rights. Further it is evident that because of perception of Appellant’s status in society that County attorney, the Appelle/Defendant(s)/Fiduciary has refused equal access to the state of Montana’s Justice System’s protection under the Montana constitution and numerous Unalienable Rights yet to be enumerated.

  1. Section 8: Right of Participation: MCA 39-71-411, bars the door to full participation by its wording and enforcement at all levels of government, State and Federal. Ex Parte communication by client attorney and agency involved, is unethical, unprofessional and prohibited by law. When the agency, in this case Montana State Fund, communicates directly with client or attorney, they can take steps to eliminate the ability to receive insurance benefits simply by “Fiat” under the Workers Compensation Act and MCA 39-71-411, aka WR Grace Protection Act. Summarily dismissing a claim without first investigating the claim or process of rules of civil procedure in accordance with statutory requirements is a direct and unethical violation of the legal mandate to address each claim with objectivity and subjectivity.

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Thereby resulting in dismissal without Due Process hearing as afforded in both Federal and State constitutions of which Appellee(s) have sworn oaths to support and uphold.

  1. Section 9: Right to know: Under this section, Appellant has been barred from document examination in support of his claim, by the concealment of said documents and the unconstitutional application of MCA 39-71-411 and its implications by officers and agents and employees of State and Federal offices and agencies at all levels of government. The abrogation of Constitutional Rights, both State and Federal, by the lack of transparency in divulging information with regards to application and enforcement of this provision, as set forth in MCA 39-71-411, which sole purpose is to abrogate these constitutional rights, thus binding, in essence, forcing, employees to submit to a form of slavery without their knowledge or approval, or to force a “charter of labor” by agencies of the Municipal, County, State, OSHA, County attorney’s office, Worker’s Comp, State Fund, DOJ, other Federal agencies, etc. With respect to the exception clause of Section 9, Appellant has no issue with full disclosure.
  2. Section 16: The administration of Justice: Courts of Justice are either open to every person or they are not, and speedy remedy is afforded or it is not. The United States constitution enumerates in the Bill of Rights Amendment 1, the

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right to “redress of grievance” and the stated section below of the constitution for the state of Montana sets forth the same. So it would seem the Appellee/Defendant/Fiduciary has violated both Montana and Federal constitutional protections by their inactivity caused by their selected and thus discretionary action resulting in a Court Order blocking Constitutional Rights of the Appellant.

  1. Section 17: Due Process of Law: what due process has Petitioner enjoyed with regards to the purposeful dismissal of the claim without so much as a summary inquiry? Deprivation of “Life” is evident in the allegations that Petitioner was directly imperiled by the actions of High Country Linens, ‘Liberty” was blocked by MCA 39-71-411 by the statute barring all workers and binding said workers, from being able to bring a claim to seek help in protecting themselves and others from purposeful injury directly or indirectly by their respective employers, agents or servants, etc. Forcing the employee in this case the Petitioner into “Bond Servant hood” under statute, under color of law and authority, resulting in an abuse of power and violation of Unalienable Rights, Human Rights and Medical Rights to Petitioner and all Montana Workers since the enactment of this unconstitutional statute.
  2. Section 18: States subject to suit: there is no immunity from suit, for injury to a

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person or property, even with regards to possible exception in this case is not one man’s decision to NOT investigate an allegation of attempted murder let alone negigence resulting in harm by one human being to another.

  1. Section 31: Ex post facto, obligation of contracts, and irrevocable privileges. No ex post facto law nor any law impairing the obligation of contracts, or making any irrevocable grant of special privileges, franchise, or immunities, shall be passed by the legislature.
  2. The Constitution of the State of Montana, Article II, Declaration of Rights, Section 34. UNENUMERATED RIGHTS. “The enumeration in this constitution of certain rights shall not be construed to deny, impair, or disparage others retained by the people.”

Appellent has submitted the Petition For Writ of Mandamus and deserves a hearing of the facts and evidences claimed. This is NOT a frivolous claim, there has been documented evidence to permanent and irreparable harm resulting from ongoing criminal acts perpetrated against the Apellant and subsequent other members of society by the Negligence and Malfeasant act of the Appellee(s) by ignoring and refusing to so much as initiate an investigation in accordance with the Oath of Office, and duties regulated by law for that position in office.

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STATEMENT OF THE CASE

This case stems from a workplace injury that is caused by criminal negligence of a corporate officer/manager that attempted to purposely and intentionally cover up equipment failure which resulted in great physical and mental injury to Appellant/ Plaintiff, Mr. Guymon. Subsequently, when Mr. Guymon approached law enforcement to seek protection and prosecution of this criminal negligence, he was ignored by each agency he sought help from: Kalispell Police Department, City of Kalispell Attorney’s Office, Flathead County Sheriff’s Office, and finally County Attorney’s Office and Edward Corrigan. Each representative of these agencies passed the buck until it finally came before Appellee Edward Corrigan, acting as County Attorney for Flathead County Attorney’s Office, Flathead County Montana. Mr. Guymon was summarily dismissed and ignored without ever so much as an incident report being drafted for even a preliminary investigation as to the facts as claimed by Mr. Guymon.

STATEMENT OF THE FACTS

      1. Appellant, Shawn Guymon has clearly communicated the facts of this case in the Writ of Mandamus, that he has filed with the Eleventh Judicial District Court under the above Cause Numbers in the beginning of this Appeal. These facts can be proven through the documents obtained by Mr. Guymon from a personal investigation

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and the subsequent “Expert” findings related to this claim. The extensive medical record which involves physical, mental, and emotional care that has been provided and still is being provided for future care stemming from the injury sustained by Mr. Guymon, will attest to the level and severity of injury he suffered. There is also evidence as to the additional injury and damage that has been inflicted on Mr. Guymons person.

      1. For the convenience of the Appeals Court, we briefly state the pertinent facts relating to why this appeal was requested. Mr. Guymon was injured on the job, as a result of alleged criminal negligence by manager, Ward Clark, of High Country Linen. Upon attempting to contact law enforcement for assistance in how to protect his person from additional harm, Mr. Guymon contacted the Kalispell Police Department, City Attorney, Flathead County Sheriff’s office, and finally Flathead County Attorney’s office and Edward Corrigan as County Attorney. All without any Statutory assistance, even after a District Court Judge for Flathead County encouraged Mr. Corrigan to investigate the claim.
      2. This injury caused Mr. Guymon to be initially admitted into the Kalispell Regional Medical Center Emergency Room on December 26, 2006 around 9:44 with complaints of “dizziness… lightheadedness… mild heavy pressure sensation in chest.” Symptoms of euphoria were evident. Mr. Guymon has been under the care of numerous specialized doctors ever since this incident occurred, including neurological specialists,

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and mental health assistance while dealing with the resulting effects of this Negligent Injury being, Post-traumatic Embitterment Disorder or PTED, please see the link provided here and “Abstract” provided for the Courts convenience: http://www.ncbi.nlm.nih.gov/pubmed/12792124

Psychother Psychosom. 2003 Jul-Aug;72(4):195-202.

Posttraumatic embitterment disorder.

Linden M.

Abstract

BACKGROUND:

Adjustment and reactive disorders are a heterogeneous group of mental disorders. Diagnostic criteria are vague and scientific research is limited despite the fact that these disorders play a major role in clinical practice.

METHODS:

The ‘posttraumatic embitterment disorder’ (PTED) is introduced as a new concept for a subgroup of adjustment disorders. A case vignette and diagnostic criteria are presented.

RESULTS:

Core criteria of PTED are: (1) a single exceptional negative life event precipitates the onset of the illness; (2) the present negative state developped in the direct context of this event; (3) the emotional response is embitterment and feelings of injustice; (4) repeated intrusive memories of the event; (5) emotional modulation is unimpaired, patients can even smile when engaged in thoughts of revenge, and (6) no obvious other mental disorder that can explain the reaction. Additional symptoms are feelings of helplessness, self-blame, rejection of help, suicidal ideation, dysphoria, aggression, down-heartedness, seemingly melancholic depression, unspecific somatic complaints, loss of appetite, sleep disturbances, pain, phobic symptoms in respect to the place or to persons related to the event, reduced drive. Duration is longer than 3 months. Performance in daily activities and roles is impaired.

CONCLUSIONS:

PTED is a frequent disorder. The diagnosis of PTED can lead to specific therapeutic interventions. PTED can be discriminated from PTSD, depression, anxiety disorders, and other adjustment disorders.

Copyright 2003 S. Karger AG, Basel

      1. Lack of proper maintenance to Delivery Truck owned, and maintained by High Country Linen was the direct cause of Carbon Monoxide exposure that resulted in

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the permanent and irreversable injury to Mr. Guymon. Mr. Guymon had reported the damage to “Truck #3” which is owned by High Country Linen. The manager scheduled maintenance but did not address the issue of damage to the exhaust at this time which resulted in the injury to Mr. Guymon.

      1. A request for investigation to the U.S. Department of Labor, OSHA out of Billings, Montana was started on December 28, 2006. On December 29, 2006, manager Ward Clark, drafted a letter “in response” to the “alleged hazards” involving “truck #3”. The supposed investigation requiring “supporting documentation of your findings, including any applicable measurements or monitoring results, and photographs which you believe would be helpful, as well as a description of any corrective action you have taken or are in the process of taking…” The “investigation” was supposedly completed within 24 hours. A statement from AM Muffler dated 12-28-06, refers to repairs on 12-27-06 having to do with the “y-pipe assembly” and states “no leaks at this time”. Please note the OSHA request for Investigation was on 12-28-06, Mr. Clark never addressed the repair in his report to OSHA, and the fact that there was by “insinuation and fact of repair” and “exhaust leak” as the “y-pipe assembly” was replaced.
      2. Mr Guymon initiated investigation himself by contacting Gary Mahugh of Mahugh Fire and Safety LLC “sometime after Christmas 2006”. Mr. Mahugh then contacted Robert P. Dwyer. Director of Training at the Carbon Monoxide Training

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Association (COSA) and asked if Mr. Dwyer would talk with Mr. Guymon. Upon talking with Mr. Guymon, Mr. Dwyer made a trip to Mahugh Fire to meet with Mr. Guymon and Mahugh to measure the Carbon Monoxide levels of “Truck #3”. Mr. Dwyer began measurements of the “panel truck” (Truck #3) and levels of CO started to rise within minutes and reached over 450PPM. These levels were reached in less than a minute. The levels of CO (Carbon Monoxide) was “beyond evacuation concentration levels” and the vehicle “should not be driven”.

      1. OSHA issued findings of fact, as reported January 5, 2007, in a letter to Leila Brockie, stated that since the issue has been “investigated and that corrective action has been taken… With this information, OSHA feels the case can be closed on the grounds that the hazardous condition(s) no longer exist(s).”
      2. Mr. Guymon filed a OSHA Act protection against discrimination because of involvement in protected safety and health related activity. A subsequent “Settlement Agreement” dated February 8, 2007, was proposed “back pay in the amount of $1610.00 less normal payroll deductions” and “Respondent… purge the personnel record of Shawn Guymon of any derogatory references to his termination…” and provide a “neutral reference” and was signed by company officer of High Country Linen which is not legible, signed February 14, 2007.
      3. Mr. Guymon was still under doctors care and suffering from the effects of

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the exposure that he refused to agree as there was no certainty that he would become better or worse with doctor care from the results of the Carbon Monoxide poisoning he suffered. It having been an ongoing medical and neurological concern, Mr. Guymon has continued under doctor care for this injury which was negligently inflicted upon his person by the lack of care or maintenance of company owned vehicle known as “Truck #3” which is owned by High Country Linen. Subsequently, Mr. Guymon’s quality of life has been deeply affected. His resulting injury and illness has seriously changed his physical, mental, emotional, and financial lifestyle that $1610 does not compensate. The lack of response to a criminal claim by “elected county officials” and “law enforcement” has resulted in the above mentioned PTED which has only exacerbated his injury and other illnesses resulting from the Negligence of High Country Linen. Further, this has caused the inducement and aggravation of his Post-Traumatic Stress Disorder (PTSD) as diagnosed thru the Veteran’s Administration and Social Security administration, resulting in Total and Permanent Disability, and ongoing pain and suffering.

      1. Mr. Guymon’s case upon Appeal has been one of ongoing injury, illness, marginalization, and ongoing damages resulting in severe impairment to his quality of life. The Appellee has participated in Negligence, discrimination, bias and subsequent lack of regard to Mr. Guymon being injured by criminal Negligent acts. Because of Appellee indifference and discriminatory negligence has allowed Mr. Guymon to go

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without redress of grievance by law enforcement and elected County officials, who have a statutory responsibility to Citizens and further mandates a response to and action to prevent further injury, be carried out in accordance with the Petition of the Writ of Mandamus.

      1. The Eleventh Judicial District Court failed to even address the facts and evidence as asserted in the Petition for Writ. The very fact that Mr. Guymon was forced to Petition for a Writ of Mandamus when the Executive, and Judicial offices have a mandate to provide the protections requested by Mr. Guymon, should be reason enough to grant Appeal to Mr. Guymon.

STATEMENT OF THE STANDARD OF REVIEW

In reviewing an order granting or denying a motion to suppress, we determine

whether:

  1. The district court’s findings of fact are clearly erroneous and whether those

findings were correctly applied as a matter of law. State v. Dawson, 1999 MT

171, ¶ 13, 295 Mont. 212, 983 P.2d 916 (citing State v. Parker, 1998 MT 6, ¶ 17,

287 Mont. 151, 953 P.2d 692; State v. Roberts, 284 Mont. 54, 56, 943 P.2d 1249,

1250 (1997)).

  1. We review a district court’s evidentiary rulings for abuse of discretion. State v.

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Schmidt, 2009 MT 450, ¶ 27, 354 Mont. 280, 224 P.3d 618 (citing State v. Damon, 2005 MT 218, ¶ 12, 328 Mont. 276, 119 P.3d 1194).

  1. We exercise plenary review of constitutional issues. State v. Hantz, 2013 MT 311, ¶ 18, 372 Mont. 281, 311 P.3d 800.

  2. Statutes carry the presumption of constitutionality. Therefore the party

making the constitutional challenge bears the burden of proving, beyond

a reasonable doubt, that the statute is unconstitutional, and any doubt must be

resolved in favor of the statute. State v. McCaslin (2004), 322 Mont. 350, 353-

354, 96 P.3d 722.

  1. Because the issue of whether a defendant’s right to defend was violated is a question of law, this Supreme Court will review the District Court’s

conclusion to determine whether its interpretation of the law was correct. Id.

  1. A District Court’s evidentiary rulings are reviewed under an abuse of discretion standard. An abuse of discretion occurs when a District Court acts arbitrarily without conscientious judgment or exceeds the bounds of reason. Id.

SUMMARY OF ARGUMENT

Appellant, Mr. Guymon, has sought relief through all local, regional, and state authorities that have the legal right to act on his behalf to protect his being. These authorities have discriminated against Appellant for no known reason and using their

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official capacity have done so under an “abuse of Discretion” which has resulted in the ongoing grievous damage and injury to Appelant’s person. This injury has deeply effected the quality of life of Appellant. There is no review of evidence, there is no transcript of the District Court process that Appellant can point to for this unconstitutional act and resulting Court Order that basically cancels the criminal act by judicial “FIAT” which is further evidence of unconstitutional behaviour by elected officials that have a sworn duty to protect the constituents that voted in the election that granted office to them. How can a Citizen have confidence in his/her elected officials believing that they will perform their sworn duities if grievous acts such as those perpetrated against the Appellant be allowed to continue. The rights included within the “Declaration of Rights” of Article II of the Montana Constitution are “fundamental rights.” Butte Community Union v. Lewis (1986), 219 Mont. 426, 430, 712 P.2d 1309, 1311. Fundamental rights are significant components of liberty, and any infringement of them will trigger the highest level of scrutiny and protection by the courts. Kloss v. Edward D. Jones & Co. (2002), 310 Mont. 123, 54 P.3d 1. There are extensive citations that support the listed constitutional breaches under issue, and ongoing harm each and every day to the Appellant because JUSTICE IS NOT BEING SERVED, but parceled out by Judicial Discretion, showing obvious prejudicial preferance. Mr. Guymon has lived in Montana most his life, except for a short time in service to our country, and

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upon Honorable Discharge has returned to the place of his birth only to find he is marginalized and neglected by elected officials, to whom he HAS fulfilled his Oath to “protect and defend” and to which they at least owe him a Fair and Unbiased Hearing in this matter.

ARGUMENT

Appellant, Mr. Guymon, has sought relief through all local, regional, and state authorities that have a legal obligation to act on his behalf to protect his person/being. Exhaustion of administrative remedies ordinarily is required to prevent any premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review. Weinberger v. Salfi, 422 U.S. at 765, 95 S.Ct. at 2467; see also Montgomery v. Rumsfeld, 572 F.2d at 253. These authorities have not attempted to take “opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review,” instead they discriminated against Appellant for no apparent reason and using their official capacity have “abused Discretion.” “A court abuses discretion when it acts arbitrarily without conscientious judgement or exceeds the bounds of reason, resulting in substantial injustice.” State v. Criswell, 2013 MT 177, 42, 370 Mont. 511,

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305 P.3d 760. This abuse of discretion has resulted in the ongoing grievous damage and injury to Appelant’s person. This injury has deeply effected the quality of life of Appellant. Under these circumstances, the appropriate course is to remand to allow the district court the opportunity to exercise its discretion. See Stratman v. Watt, 656 F.2d 1321, 1326 (9th Cir.1981), cert. dismissed, 456 U.S. 901, 102 S.Ct. 1744, 72 L.Ed.2d 170 (1982); SEC v. G.C. George Securities, Inc., 637 F.2d at 688 & n. 3; Montgomery v. Rumsfeld, 572 F.2d at 254. There has been no review of evidence, there is no transcript of the District Court process that Appellant can point to for this unconstitutional act and resulting Court Order that basically cancels the criminal act by judicial “FIAT” which is further evidence of unconstitutional behavior by elected officials that have a sworn duty to protect the constituents that voted in the election that granted office to them. So remanding forces the District Court to hear the evidence and THEN make a Judicially Fair decisison as to how to handle this case. How can a Citizen have confidence in his/her elected officials when they will not perform their sworn duities, when grievous acts such as those perpetrated against the Appellant be allowed to continue. The rights included within the “Declaration of Rights” of Article II of the Montana Constitution are “fundamental rights.” Butte Community Union v. Lewis (1986), 219 Mont. 426, 430, 712 P.2d 1309, 1311. Fundamental rights are significant components of liberty, and any infringement of them will trigger the highest level of scrutiny and protection by the

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courts. Kloss v. Edward D. Jones & Co. (2002), 310 Mont. 123, 54 P.3d 1. In order to be fundamental, a right must be found within Montana’s Declaration of Rights or be a right “without which other constitutionally guaranteed rights would have little meaning.” In the Matter of C.H. (Mont. 1984), 683 P.2d 931, 940, 41 St.Rep. 997, 1007 . Montana will not be bound by decisions of the United States Supreme Court where independent state grounds exist for developing heightened and expanded rights under our state constitution. This position was last articulated by our Court in Pfost v. State (Mont. 1985), 713 P.2d 495, 42 St.Rep. 1957. But Justice Sheehy writing for the majority said:

Art. II, § 4, of our State Constitution provides in part that “[n]o person shall be denied the equal protection of the laws.” Art. II, § 4, 1972 Mont. Const. That provision of our State Constitution, though similar in wording to the last clause of the Fourteenth Amendment of the Federal Constitution provides a separate ground on which rights of persons within this state may be founded, and under accepted principles of constitutional law such rights must be at least the same as and may be greater than rights founded on the federal clause. Thus, states may interpret their own constitutions to afford greater protections than the Supreme Court of the United States has recognized in its interpretations of the federal counterparts to state constitutions. City and County of Denver v. Nielson (1977), 194 Colo. 407, 572 P.2d 484. Federal rights are considered minimal and a state constitution may be more demanding than the equivalent federal

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constitutional provision. Washakie Co. Sch. Dist. No. One v. Herschler (Wyo. 1980), 606 P.2d 310, cert. den. 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 28. This is true even though our state constitutional language is substantially similar to the language of the Federal Constitution. Deras v. Myers (1975), 272 Or. 47, 535 P.2d 541, 549 n. 17. Pfost, 713 P.2d at 500, 42 St.Rep. at 1963-1964. There are extensive citations that support the listed constitutional breaches under issue, and ongoing harm each and every day to the Appellant because JUSTICE IS NOT BEING SERVED, but parceled out by Judicial Discretion, showing obvious prejudicial preferance. Mr. Guymon has lived in Montana most his life, except for a short time in service to our country, and upon Honorable Discharge has returned to the place of his birth only to find he is marginalized and neglected by elected officials, that he HAS fulfilled his Oath to “protect and defend” and to which they at least owe him a Fair and Unbiased Hearing in this matter.

CONCLUSION

The District Court’s decision should be remanded and overturned. Judicial oversight by Montana Supreme Court of Appeals be instituted to confirm a fair and unbiased hearing of the facts and examination of the evidence be allowed.

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Shawn Guymon- Appellant/Plaintiff Pro Se 22