Montana Supreme Court Justice says Orwell's 1984 has arrived


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charlesb_la
August 7, 2005, 07:13 PM
Imagine if they started random trash searches, you know to make us safer, it's for the children....




From http://news.com.com/2060-10796_3-0.html?tag=nefd.bl


A snippet....


Justice James C. Nelson concurs.

I have signed our Opinion because we have correctly applied existing legal theory and constitutional jurisprudence to resolve this case on its facts.

I feel the pain of conflict, however. I fear that, eventually, we are all going to become collateral damage in the war on drugs, or terrorism, or whatever war is in vogue at the moment. I retain an abiding concern that our Declaration of Rights not be killed by friendly fire. And, in this day and age, the courts are the last, if not only, bulwark to prevent that from happening.

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MarkDido
August 7, 2005, 07:23 PM
Obviously, a jurist who believes his roll is to MAKE laws instead of INTERPRET them. Dangerous man! People of Montana, take note!

Hawkmoon
August 7, 2005, 07:34 PM
Obviously, a jurist who believes his roll is to MAKE laws instead of INTERPRET them. Dangerous man! People of Montana, take note!
How do you figure?

This court did not "make" any law in this case. Trash has been considered fair game, without a warrant, for many years. As the judge said, the decision is based on legal precedent ... it is not judicial activism.

I would say this judge is just the opposite of what you consider him to be. He is IMHO a conscientious, thinking jurist who applied the law as he sees it written and as has previously been established, yet he acknowledges that he has concerns about the effect of the law on society and citizens.

Why do you consider this man dangerous? Aren't we usually begging for judges who will apply the law as written rather than bend and stretch the law well beyond any reasonable expectation of what the law actually says? Here's a judge who stuck to the law, and you're casting aspersions because of it.

I don't understand.

Deavis
August 7, 2005, 07:45 PM
Obviously, a jurist who believes his roll is to MAKE laws instead of INTERPRET them. Dangerous man! People of Montana, take note!

Read it again, because obviously that jurist does believe his role is to interpret laws rather than make them.

As our Opinion states, what we voluntarily throw away, what we discard--i.e., what we abandon--is fair game for roving animals, scavengers, busybodies, crooks and for those seeking evidence of criminal enterprise.

...

I don't like living in Orwell's 1984; but I do. And, absent the next extinction event or civil libertarians taking charge of the government (the former being more likely than the latter), the best we can do is try to keep Sam and the sub-Sams on a short leash.

...

As our Opinion states, search and seizure jurisprudence is centered around privacy expectations and reasonableness considerations. That is true even under the extended protections afforded by Montana's Constitution, Article II, Sections 10. and 11. We have ruled within those parameters. And, as is often the case, we have had to draw a fine line in a gray area. Justice Cotter and those who have signed the Opinion worked hard at defining that line; and I am satisfied we've drawn it correctly on the facts of this case and under the conventional law of abandonment.

That said, if this Opinion is used to justify a sweep of the trash cans of a neighborhood or community; or if a trash dive for Sudafed boxes and matchbooks results in DNA or fingerprints being added to a forensic database or results in personal or business records, credit card receipts, personal correspondence or other property being archived for some future use unrelated to the case at hand, then, absent a search warrant, I may well reconsider my legal position and approach to these sorts of cases--even if I have to think outside the garbage can to get there.


The only thing "dangerous" about this man is that he states that he would probably not feel the same about the jurisprudence they used for this opinion in the face of a massive warrantless search specifically for the creation of a database for future use unrelated to the case at hand. Forweward thingking men concerned about proper interpretation of the law to protect your rights are indeed dangerous... if you support a police/nanny state.

hifi
August 7, 2005, 08:02 PM
Obviously, a jurist who believes his roll is to MAKE laws instead of INTERPRET them. Dangerous man! People of Montana, take note!

Maybe you read it wrong. Or was that sarcasm?

Joejojoba111
August 7, 2005, 08:02 PM
I think Mark was poking fun because he knows everyone agrees with the judge, but he also knows that almost all the people here have castigated judges who made similar diatribes on different subjects.

geekWithA.45
August 7, 2005, 09:06 PM
I have signed our Opinion because we have correctly applied existing legal theory and constitutional jurisprudence to resolve this case on its facts.

THAT is the fundamental problem: The acceptance of the perverse consequence of flawed precedent.

Signing off on that basis, no matter the caveats, makes him part of the problem, not the solution.

Standing Wolf
August 7, 2005, 09:09 PM
I fear that, eventually, we are all going to become collateral damage in the war on drugs, or terrorism, or whatever war is in vogue at the moment.

Sad to say, I have to concur.

Flyboy
August 7, 2005, 09:27 PM
THAT is the fundamental problem: The acceptance of the perverse consequence of flawed precedent.

Signing off on that basis, no matter the caveats, makes him part of the problem, not the solution.
I agree with your assessment of the problem; unfortunately, the structure of our legal system does not give lower courts the freedom to reform precedent of higher (in this case, SCOTUS) courts. All-in-all, that's probably for the best; the real solution is to get sane justices back on the Supreme Court. And, on that point, I thinkAnd, absent the next extinction event or civil libertarians taking charge of the government (the former being more likely than the latter)is disturbingly accurate.

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