Two Constitutional Provisions of Due Process in the U.S. Constitution, Similar Provisions & Protections in Your State Constitutions!
This morning, a friend of mine, brought a letter from the Montana Revenue Service, stating that he owned over $3,000, for an LLC. or limited liability corporation, he set up, for the purpose of getting a contract to do some work, on a film or something like that, haven't read all the letter yet, but the Service claimed that he had two employees, in the corporation, and that both must have received income, when in reality, the woman listed on the LLC., was only listed, because the articles of incorporation required two people to set up the business, to register it with the state. She was there in name only . . .
He talked to two employees of the Revenue Service, who he said were really nice, and easy to work with. However, they asked him to provide them with is quarterly earnings for the yea 2007. He very nicely told them to produce the evidence of the amount of money they are claiming that he owes the money, and then he could see what they are driving at. They have failed to produce the documents or the evidence that they relied on to claim he owes them money. Good job, the state carries the burden to prove their allegations that you owe money.
There are Two Types of Due Process, Substantive & Procedural
Now, how should an attorney attack this claim for her or his client, friend, family member, etc. First, I always go straight to the U.S. Constitution, as the Supreme Law of the Land, then to the state of Montana or other state constitution, for back up, as the highest law in the state, as long as it doesn't conflict with the federal constitution . . . that gives the contextual foundation for what should happen, big picture wise, then to fill in the specifics, I turn to the state statutes or the codified laws of the individual states, where the state legislatures lay out the steps that provide both substantive and procedural due process.
There is another constitutional provision and protection, that must be considered in this case, that of the right not to incriminate themselves, at this point, this is in the civil arena, with the possibility of criminal charges that could, not necessarily will be levied against a person, and usually, the people who dare question the IRS or the state internal revenue services, are the ones who get charges, or at least the threat of charges filed against them. He has already received a letter, threatening to freeze bank accounts, go after property, get liens on his property, or have criminal charges filed . . . so, the threat has been made, kicking in 5th amendment protections against self incrimination or being a witness against yourself . . . just fucking don't do it--many of my clients lose the case before I get it!
United State Constitution, 5th & 14th Amendments
In quoting the due process clause, I will also include the 5th amendment, the section on not incriminating yourself . . . nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; going on to the 14th amendment . . . nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction without equal protection of law!
Substantive due process consists of rights . . . interestingly, Roe v. Wade, landmark abortion case, was considered a due process case; therefore, the 14th amendment right to liberty or the right of a female to make decisions affecting her body, her and her doctor's decision! That is a rights based argument, the law is the law, is the law, know your rights! So it is your right to have an abortion, in the first trimester of a pregnancy, but thereafter, the state starts to have an interest in protecting the rights of the baby, during the second and third trimester.
Procedural due process consists of the procedure your are entitled to . . . which may include judicial, administrative, or some type of hearing, after notice is given to you, either through service of process, or a letter, or some other means of notice . . . city councils and county commissioners have to post notice of meetings in the newspaper, on a post, or at the post office, where the majority of citizens can see that there is a hearing on the matter of interest. In a criminal case, something called an information is to be given to you, either in jail, or when bail is posted, or at your arraignment!
4 Bull Shit Warrants Out for My Arrest, From Me Forcing Government to Provide Me, MY, Due Process Rights!
Several years ago, I was listed as number two in the nation for civil rights defense, after Gerry Spence, Wyoming Cowboy Attorney . . . so I know what the hell I am talking about, and if I don't know, I will find the statute that supports my claims, and if you know the roots of the law, you will know the branches, they have to be constitutionally based, or they are void! In Utah, for sure, and I am sure in every state in the nation, there are what we call, Defendant's Rights, or Defendant's Bill of Rights . . . it specifies how many hours you can be held in jail, before the state has to provide you an arraignment, with a judge reading you the charges against you, so you can plead innocent or guilty.
In Utah, that time is 48 fucking hours, not 54, not 72, or six month later in my case, when the cops and prosecutors, guested I might leave the safety of Montana, and come to visit family for Thanksgiving! Far be it from me to force the criminal justice system to actually, follow due process, both substantively and procedurally, and they hate me for it! I was actually incarcerated at the time the 48 hours were up, so it was the states, job to have me either appear in person in open court, or to appear on TV or short circuit TV between the jail and the court!
Illegal, Unconstitutional & Unlawful Retaliation!
Iron County, Utah, is so pissed at me, because I sued them, got judges, prosecutors and cops, either fired, benched for a while, or still having to handle my civil rights violation charges for my clients, that the Judge Dunlop, a justice court judge, actually, lied, said he sent paperwork to the jail, to release me on Monday, the day I was to have an arraignment, then charge me with contempt of court, for failure to appear, Tuesday, before I was even released from court . . . and I didn't hear about it until Thanksgiving, when a warrant was put out for my arrest, happened in June, after the sheriffs, illegally took my truck, my artwork, and new electronics and anything else they liked, after 6 trips through my house!
That is a fine example of violation of my procedural and substantive, due process rights! They have still never served me with paperwork, and I will not let them serve, because they had fucking 48 hours, and even worse I was in jail, so easy to serve the information . . . they just wanted to wait until my insurance ran out in September, so they could charge me with failure to have insurance, which I had on my truck, and my clients had on their car! The expired sticker, was $2.50, so that was not enough to hold me on, therefore, they created a situation, that is called, entrapment, to try to catch me breaking the law! Which I did not, given the "totality of the circumstances" like them taking my truck, hoping I would assault the officers who stole my TRUCK! Too smart for that dumb asses!
I now have four warrants, one in each town I frequent in Iron County, and another on in Washington County, still part of the 5th Judicial District I file cases in . . . they don't know the law, therefore, they are trying to cover all bases, and make sure I don't get away with a technicality! LOL! Little do they know, they blew due process after the first 48 hours, and they have been chasing me for 2 fucking years! LOL! The law is the law is the law . . . even in Iron, fucking County, fucking, Utah!
U.S. Attorney General, Eric Holder, Either Doesn't Know the Law, or He is Trying to Fool You and I
I will say, that Eric Holder, has done some great things as attorney general, and then, their are other things like Fast & Furious, but I don't know the comings and goings of the government, and what I do know, I wonder about, but I do, in fact, know the United States Constitution! Due process, is the process you are due, not just once going against the government, but in every situation, cause, interaction, etc. That is why transparency, open meetings, Sunshine Laws, and what not, are there for . . . to follow, due process, whatever the process is!
Whether it is an investigation by the Medicaid/Medicare Fraud Units, going after doctors for alleged up coding for government billing of health care expenses, or whatever . . . due process consists of the proper procedures, protecting your rights! Due process consists of NOTICE + A HEARING! If you have been denied either of those, your due process rights have been violated, and the government cannot do that. Most likely, the process is described in your state statutes by the legislature, the branch of the government that is responsible for making the laws.
In the doctor's case, I simply looked up the CFR or the Federal Regulations for fraud investigations, and the unit had not only violated Constitutional rights, but the regulatory process that was outlined in federal statute! I asked one of the doctors under investigation, to give me a copy of her warrant to search and seize her records. And sure enough, the investigators and their attorneys, had not given the docs, 24 hours notice before confiscating their records, arresting a wife who was in the office on a Saturday, etc.
Following due process protects government official, cops, judges, attorneys, legislative body members, etc. as well! If you provide citizens with their due process rights, you will have less aggravation, and better results, remember, these are inherent rights, the government didn't give, inalienable, from a creator, believe it or not, it is implanted in the hearts of men and women! People inherently know, in their heart of hearts, when rights have been violated! Because some attorney told them? No, because they feel it in their soul! So you might as well just follow the rule book, the terms of agreement, between the governed and the government.
The State Bares the Burden of Proving My Friend Owes Money!
And if the state fails, there is always the 1st amendment right to redress grievances with your government--any wonder the government wants to get rid of the U.S. Constitution! They may actually have to do their job, rather than just rely on threats, allegations, and pulling a number owed our of their asses! PROVE IT!
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