Gold v. State

May 4 2010

DA 09-0675

IN THE SUPREME COURT OF THE STATE OF MONTANA

2010 MT 102N

RICHARD GOLD,

Plaintiff and Appellant,

v.

THE STATE OF MONTANA, THE MONTANA
LEGISLATURE, and BRIAN SCHWEITZER,
the Montana Governor,

Defendants and Appellees.

APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DV 2009-320
Honorable Douglas G. Harkin, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Richard Gold (Self-Represented), Missoula, Montana

For Appellee:

Norman Clyde Peterson, Tammy A. Hinderman, Assistant Attorneys
General, Agency Legal Services Bureau, Helena, Montana

Submitted on Briefs: April 14, 2010

Decided: May 4, 2010

Filed:

__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2006, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court cause number, and disposition shall be included in

this Court’s quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2 In January 2003, Richard Gold, representing himself, filed an action in the Fourth

Judicial District Court, Missoula County, against the City of Missoula, Missoula County,

the Missoula County Sheriff, and Iron Horse Towing. The case arose out of the

impoundment of Gold’s 1981 Honda Accord, which Gold had parked at the intersection

of Railroad and Owen Streets in the City of Missoula, without moving it, for

approximately three weeks. Evidently, Gold’s vehicle was sold at a sheriff’s sale and

personal property within the vehicle was not returned. The District Court ultimately

granted summary judgment in favor of the defendants on all of Gold’s claims except his

“eminent domain” claim associated with his personal property and his claim of mental

and emotional distress. See Gold v. City of Missoula, DV-03-46, 2004 Mont. Dist.

LEXIS 2246 (Oct. 15, 2004); Gold v. City of Missoula, DV-03-46, 2006 Mont. Dist.

LEXIS 318 (May 4, 2006).

¶3 Meanwhile, Gold filed a motion for appointment of counsel under the Montana

Public Defender Act (Title 47, chapter 1, MCA). The District Court denied this motion

on the ground that § 47-1-104(4), MCA, does not provide for the assignment of counsel

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at public expense to represent an indigent plaintiff in a civil action for damages based on

injury to or loss of property. This Court denied Gold’s petition for writ of supervisory

control. See Gold v. Fourth Judicial Dist. Court, OP 08-0544, 2008 Mont. LEXIS 711

(Dec. 2, 2008).

¶4 Gold then commenced the present action in March 2009, naming the State of

Montana, the Montana Legislature, and Governor Brian Schweitzer as defendants. He

alleged that due to his inability to afford counsel, he was at an “unequal disadvantage” in

pursuing his underlying civil suit against Missoula City and Missoula County. He further

alleged that the limitations in § 47-1-104(4), MCA, on the assignment of counsel in civil

actions were “artificial,” and he argued that the defendants’ failure to provide him with

the aid of competent counsel in the underlying suit violated various provisions of the

Montana Constitution. Gold requested a declaration that his rights had been violated; an

order requiring the State immediately to appoint him counsel in his underlying civil suit;

and compensatory damages, fees, and punitive damages.

¶5 The District Court denied Gold’s motion for summary judgment, granted the

defendants’ cross-motion for summary judgment, and dismissed Gold’s complaint. The

court concluded that, under the facts alleged, the Montana Legislature and Governor

Schweitzer were entitled to immunity under §§ 2-9-111 and -113, MCA. As for the State

of Montana, the court ruled, based on our December 2, 2008 order denying Gold’s

petition for writ of supervisory control, that Gold must bring his constitutional claims

within the context of a direct appeal in Cause No. DV-03-46 (the underlying civil suit),

not in this separate action. Gold, still representing himself, now appeals.

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¶6 As an initial matter, Gold challenges the District Court’s conclusion that he must

pursue his claims against the State within the context of a direct appeal in his underlying

civil action. He points out that he did not sue the State in that civil action. The State,

however, suggests that Gold’s claim against the State is in reality a constitutional

challenge directed at the failure of § 47-1-104(4), MCA, to provide for the assignment of

counsel for indigent plaintiffs pursuing civil rights claims. As such, the State contends

that he may pursue this claim on a direct appeal in the underlying civil suit.

¶7 Next, Gold raises a number of objections concerning procedural aspects of the

case. First, he notes that the District Court granted defense counsel’s request for an

extension of time to file a response brief without Gold’s approval or allowing Gold to

respond to the request. The State, however, argues that the court’s ruling was proper

based on Rule 3 of the Uniform District Court Rules (Title 25, chapter 19, MCA).

Second, Gold contends that the court erred by not addressing his “oath of office” claim

(see Article III, Section 3), but the State responds that the court effectively disposed of

this claim when it concluded that the Legislature and the Governor both enjoyed statutory

immunity. Lastly, Gold claims the District Court’s Order and Memorandum is deficient

because it does not recite “Findings of Fact” and “Conclusions of Law” and because it

contains insufficient constitutional analysis. However, his assertions in this regard are

themselves deficient in that they lack substantive analysis and supporting authority.

¶8 Gold’s remaining arguments involve the merits of his constitutional claims. He

asserts that the “political reality” of 2010 is that indigent individuals in Montana cannot

obtain legal counsel for civil complaints involving guaranteed fundamental rights. He

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contends that the Montana Public Defender Act unlawfully discriminates in allowing

counsel for certain civil cases but denying it for all others—in particular, by denying it in

cases involving fundamental rights. Citing the specially concurring opinion in Kloss v.

Edward D. Jones & Co., 2002 MT 129, ¶ 58, 310 Mont. 123, 54 P.3d 1, Gold points out

that constitutional rights that cannot be enforced are illusory. He argues that the rights to

equal protection of the laws and equal access to justice should work together to prevent

discrimination against the poor in Montana’s justice system. But he contends that this

presently is not the case and that indigent persons against whom the State has allegedly

discriminated are denied the assistance of counsel in prosecuting these offenses. In

support of his arguments, Gold quotes at some length from the 1972 Constitutional

Convention transcripts and the specially concurring opinion in Dorwart v. Caraway,

2002 MT 240, ¶¶ 79-98, 312 Mont. 1, 58 P.3d 128, and he cites various other cases from

this Court and the United States Supreme Court.

¶9 The State, in turn, argues that if this Court reaches the substance of Gold’s

constitutional claims, the defendants were entitled to summary judgment on each one.

The State provides separate analyses respecting procedural due process (Article II,

Section 17), access to the courts (Article II, Section 16), the right to defend property

rights (Article II, Section 3), equal protection (Article II, Section 4), substantive due

process (Article II, Section 17), and the oath of office (Article III, Section 3).

¶10 Having considered the briefs and the record, we conclude that Gold has failed to

refute the State’s arguments that the Legislature and the Governor are statutorily immune

from suit on Gold’s claims. We further conclude that while Gold, as a self-represented

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litigant, has made a genuine effort to research and develop his constitutional arguments

on appeal, his claims nevertheless have not been sufficiently presented and argued so as

to permit this Court to decide them on the merits. We acknowledge the irony of the

situation—the Catch-22 in which Gold finds himself—namely, that the fact his claims

have not been adequately presented is itself reflective of the very claims he is attempting

to present: that as an indigent citizen, he requires the assistance of counsel to vindicate

his constitutional civil rights. Nevertheless, this Court simply cannot decide a question of

such significant import on the basis of the current briefing. Moreover, even setting aside

this aspect of the case, the record presently before this Court is wholly inadequate for

purposes of deciding such a claim. Cf. Brady v. PPL Montana, LLC, 2008 MT 177, ¶ 5,

343 Mont. 405, 185 P.3d 330 (refusing to address constitutional issues “in a relative

vacuum”).

¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our 1996 Internal Operating Rules, as amended in 2006, which provides for

memorandum opinions. For the foregoing reasons, we affirm the District Court’s

November 17, 2009 Order and Memorandum.

¶12 Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ JIM RICE
/S/ MICHAEL E WHEAT
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER

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