From: Mark Ferran
To: Lex Rex
Subject: Tyrannical State's Rights Doctrine: Right to Jury Trial in Civil Case Still Depends on State's Law

The following (below copied) correspondence I received from Montana State Senator Jerry O'Neil illustrates the partial continuation of the Tyrannical Doctrine of "STATE'S RIGHTS" which the Southern States prosecuted a Civil War to maintain intact, and which partially lingers on today.   The Tyrannical Doctrine of "STATE'S RIGHTS" is still the basis for Denial and Infringement By the States of certain fundamental rights referred to in the Bill of Rights, such as the Right to a Jury Trial in a Civil Case and "the Right of the People to Keep and Bear Arms"
Because the Doctrine of STATE's RIGHTS has not been Totally Abolished (i.e., not completely abolished by the opposing "Incorporation Doctrine" ), the State's still claim the Right to Deny a Jury Trial in a Civil Case if they want to deny that right, and it was not until 1967 that the STATES' RIGHTS to Deny a Jury Trial in a Criminal Case was partly Abolished.  See DUNCAN v. LOUISIANA, 391 U.S. 145 (1968) 
The Original US Constitution (1787) provided:
Article 1 Section. 9.  No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
Article 1 Section. 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility 
Article III Section. 2. The judicial Power [of the United States] shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority ... The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed." 
The First Amendment to the Constitution (1789) ordained:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Fifth Amendment (1789) ordained:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; 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; nor shall private property be taken for public use, without just compensation.

The Sixth Amendment (1789) ordained:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The Seventh Amendment (1789) ordained:

"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law." 
    The Tyrannical Doctrine of State's Rights is basically the doctrine that the STATE has the RIGHTS to ABUSE people (e.g., its own state-citizens) within its territory and that the Federal Government (Federal Courts) have No Power to intervene and protect the citizen from abuse by his STATE.  The Doctrine of STATE's Rights was upheld by the Supreme Court in 1833 in the case of Barron v. Baltimore: 
In Barron, it was decided specifically that the Fifth Amendment's express prohibition that "nor shall private property be taken for public use, without just compensation" ONLY restrained the FEDERAL Government, but did not abolish the STATE's RIGHT to Take Private Property without Compensation if it Wanted to do so.  Thus, in 1833, it was settled to the satisfaction of the Southern States that any STATE could Deprive any Person of Life, Liberty, or Property Without Due Process of Law if it Wanted to do so, and the Federal Government (courts) could not restrain nor punish any STATE OFFICIAL for doing so. 
    The Southern State's fought the First American Civil War to maintain the Tyrannical Doctrine of STATE's RIGHTS, including specifically the Ancient RIGHT of the STATE to ENSLAVE ANYONE it wanted to, white or black, for any pretended offense or for no offense at all. And, of course, the states that claimed the RIGHT to ENSLAVE anyone also claimed the lesser Right to Deny and Withhold from any Person who was not a state-citizen, the Equal Protection of the Laws.  And, the States also claimed it was their Ancient RIGHT to DENY state-citizenship to any person or class of persons that they wanted to deny state-citizenship to, or to deprive any state-citizen of his state-citizenship if the State wanted to.  Thus, in effect, the states claimed the RIGHT to Deny and Withhold from any Person, white or black, the Equal Protection of its Laws, if it wanted to.
Fortunately for Mankind, the Southern State's lost the First American Civil War and the People of the United States who prevailed in that War abolished human Slavery (by the Thirteenth Amendment in 1865) and then set out to abolish the Tyrannical Doctrine of State's Rights that many believed had caused that Civil War in the first place, by giving American citizens the right to appeal to their National Courts for the protection of their fundamental rights (e.g., the Bill of Rights) when their State abridged or Denied those rights. See The Original Intent of the 14th Amendment at:  Historians note that "several capable lawyers in the Thirty-ninth Congress, the Congress that drafted the Fourteenth Amendment, seemed unaware of Barron until the case was brought to their attention by name by John Bingham, the principal draftsman of Section One of the Amendment."
Thus, the Fourteenth Amendment (1868) was originally intended by its framers to Completely Abolish Tyrannical Doctrine of State's Rights by overruling Barron v. Baltimore, and to open the doors of the Federal Courts to all persons within the United States for the redress of violations of their Basic Civil Rights by the States.  See, e.g.., The Original Intent of the 14th Amendment  at:  And, see
The Fourteenth Amendment expressly abrogated Tyrannical Doctrine of STATE's RIGHTS to the extent that it provided that: 
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens ... of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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 the equal protection of the laws." 
But, .... a bare majority of five Supreme Court Judges in The Slaughter House Cases initially slaughtered the Provisions of the Fourteenth Amendment by holding (erroneously) that the language of the "privileges and immunities" clause of the Fourteenth Amendment did not succeed in having the effect of prohibiting the States from violating the rights referred to in the Bill of Rights.  But, the struggle of humans and their champions (learned attorneys) to overcome the Tyrannical Doctrine of State's Rights did not end there.  Clever Attorneys advocating for the Rights of the People, successfully argued that the Due Process of Law Clause of the Fourteenth Amendment had "incorporated" at least portions of the Bill of Rights (including the Freedom of Speech, etc.).   See Justice BLACK's opinion in Adamson v. California, 332 U.S. 46 (1947) 
Gradually, the Supreme Court recognized that portions of the Bill of Rights were applicable against the States, (and partially abolished State's Rights) after all. 
[For a general explanation of how the "Selective Incorporation Doctrine" has gradually displaced the Doctrine of STATE's RIGHTS, see  And for a more  comprehensive article, see:  "THE BILL OF RIGHTS AND THE FOURTEENTH AMENDMENT" at ]
In practice, however, not even all criminal prosecutions in the State Courts require a jury trial. The Supreme Court has consistently excluded "petty offenses," as distinguished by their punishment or the nature of the offense itself, from triggering this right in State Courts.  State courts, moreover, were not at all bound by this standard nor the Sixth Amendment's Jury Trial guarantee until 1968, when the Supreme Court incorporated it through the Due Process Clause of the Fourteenth Amendment (Duncan v. Louisiana, 391 U.S. 145). In both state and federal courts, an accused person still may waive the right to a trial by jury in favor of a bench trial before a judge.]
Today, the Doctrine of STATE's RIGHTS partially survives to the extent that the STATE's still claim the RIGHT to INFRINGE "the Right of the People to Keep and Bear Arms" and the RIGHT to Deny a Jury Trial in any Civil Case, if the State wants to.  One reason that the STATE still claim that Doctrine of STATE's RIGHTS gives them the Power to Infringe the Right of the People to Keep and Bear Arms" is that "in their zeal to defend the individual right to keep and bear arms, most firearms owners limit their discussions to the Second Amendment" and therefore FAIL to DEMAND INCORPORATION of that "Right of the People" into the Fourteenth Amendment like the Right of the People to Petition and to Speak, has been incorporated.   Another reason for the continuation of Such Tyrannical STATE's RIGHTS is that Patriot/Reform movements have been subverted by "PAYtriots-for-Profit", Judges, and STATE's RIGHTS advocates, who have been using Deceit and Fraud to persuade the People to insanely demand the "repeal" of the Fourteenth Amendment instead of the complete fulfillment of its original purpose.

"The commandment in the Fourteenth Amendment that the People in each state must give to every "person" within their jurisdiction the "equal protection of the laws," is a codification of the Ancient Hebrew "One Law" (for citizens and strangers alike) principle and a codification of Jesus' Golden Rule (i.e., you and your neighbors should be treated equally by all humans administering the power of the sword).   "It sought equality of treatment of all persons ... similarly situated. .... It means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances." Truax v. Corrigan, 257 US 312, 331, 338 (1921).

"The Due Process of Law commandment in the Fourteenth Amendment is a codification of the rule prescribed in Deuteronomy that the King shall read and keep within the Law, and deviate neither to The Right Nor to The Left, nor shall he commit theft, nor murder.  "The due process clause requires that every man shall have ... the benefit of the general law, ... so that every citizen shall hold his life, liberty and property and immunities under the protection of the general rules which govern society.  It of course tends to secure equality...." Truax v. Corrigan, 257 US 312, 331, 338 (1921).
"The Judeo-Christian pedigree of the Law Clauses of the Fourteenth Amendment is why the Devil now seeks to use deceit and earthly hosts of deceit to tear down that Christian Law.  That is why you have Teachers of the Law today, like the Whitewashed Tombs of old, declaring that only certain people are "neighbors" entitled to the protection of the Golden Rule prescribed in the Fourteenth Amendment.  The methods of the Devil have not changed.   The words of the Constitution have not changed.   What has changed is that the Churches no longer teach the Constitution as containing the Expressed Will of God on Earth, and the People no longer recognize that God's Commandments already were, after much bloody struggle and Martyrdom, written into the Constitution of the United States."
With the above historical background, now consider the shock and surprise of Montana State Senator [Montana state-citizen] Jerry O'Neil when he demanded a Jury Trial in a Civil Action in a Montana State Court of Montana and when he was denied that Jury Trial, he asked a Federal District Court Judge to ORDER the State Court to afford him a Jury Trial.
----- Original Message -----
From: Jerry O'Neil
Sent: Monday, November 15, 2004 11:50 PM
Subject: Order denying jury trial, 11-15-04

file:///C:/Documents and Settings/Owner/My Documents/POLITICS/HALT/Contempt & Injunction Petition/Federal District Court/Order_denying_jury_trial,_11-15-04.html

Filed Missoula, MT 2004 Nov 15  PM 4 52
By: Patricia E. Duffy, Deputy Clerk


JERRY O'NEIL, on behalf of himself,  )
his clients and his constituents,              )
                                                            )                CV 04-223-M-DWM
                                    Plaintiff,            )
           vs.                                             )                       ORDER
MIKE McGRATH, Attorney General   )
of the State of Montana, et al.,              )
                                    Defendants.      )

    Plaintiff Jerry O'Neil is the subject of a Petition for Finding of Civil Contempt and for Permanent Injunction, filed by the Montana Commission on the Unauthorized Practice of Law on July 15, 2002. Plaintiff responded to the Petition, filed in the Eleventh [State] Court of Montana, by bringing counterclaims against the Commission on Unauthorized Practice and the State Bar of Montana. The counterclaim defendants in that state civil action moved successfully to strike O=92Neil=92s request for a jury trial. the Order granting the motion, dated November 9, 2004, does not explain the reasons for the denial of O=92Neil=92s request for a jury trial.
    O'Neil filed this action under 42 U.S.C. section 1983, alleging violation by the state court of his Constitutional right to trial by jury in a civil case. He seeks a temporary restraining order enjoining the state court from proceeding with a bench trial.

    Whether seeking a preliminary injunction or a temporary restraining order, O'Neil needs to satisfy the same requirements. Welker v Cicerone, 174 F. Supp. 2d 1055, 1062, (C.D Cal. 2001). He must show either the possibility of irreparable injury and a likelihood of success, or the existence of serious questions going to the merits and the balance of hardships tipping in his favor. id., quoting Diamontiney v Borg 918 F.2d 793, 795 (9th Cir. 1990). He meets neither test.

    The right for which O'Neil seeks this Court's protection, i.e., the right to a jury trial in civil matters, does not extend to actions in state courts. see R.J. Reynolds Tobacco Co. v. Shewry, 384 F.3d 1126, 1142 (9th Cir. 2004) (citing  Dohany v. Rogers, 281 U.S. 362, 369 (1930)). The Seventh Amendment's guarantee of the right to a civil trial by jury does not apply to the states and was not incorporated into the Fourteenth Amendment. Id. As a result, O'Neil cannot demonstrate the likelihood of success on the merits, but rather has demonstrated the certainty of failure.
    This fundamental defect in Plaintiff O=92Neil=92s Complaint and request for a temporary restraining order obviates the need for a hearing on his preliminary injunction request. Plaintiff has no chance for success in his quest to invoke the power of this Court to protect a right he does not possess. The Court therefore denies the Plaintiff's request for a preliminary injunction.
    There still remains Plaintiff's challenge to the constitutionality of Mont. Code Ann. section 37-41-201. Because it appears the question of the validity of that statute is suitable for summary disposition, the Court will order a briefing schedule on that question.
    Accordingly, IT IS HEREBY ORDERED that Plaintiff O=92Neil=92s request for a temporary restraining order and preliminary injunction is DENIED.
    IT IS FURTHER ORDERED that the parties shall brief the question of the constitutionality of Mont. Code Ann. section 37-61-201 according to the following schedule:

Plaintiff's Opening Brief in
Support of Summary Judgment:                                     December 16, 2004

Defendants' Combined Response
Brief and Brief in Support of
Summary Judgment:                                                       January 22, 2005

Plaintiff's Response/Reply
(10 page maximum):                                                        February 4, 2005

Defendants' Reply (10 pages):                                         February 18, 2005

    Plaintiff is further instructed to serve the Defendants with the Complaint and a copy of this Order no later than December 4, 2004.

    DATED this 15th day of November, 2004

Donald W. Molloy, Chief Judge
United States District Court
----- Original Message -----
From: Jerry O'Neil
Sent: Tuesday, January 25, 2005 1:46 PM
Subject: LC2226

I have a proposed bill which presently states:

"A Bill for an Act entitled: "An Act revising the penalty for practicing law without a license; providing that except in cases involving fraud no penalty other than contempt of court may be imposed on a person providing advice in the course of the person's profession or occupation; amending section 37-61-210, MCA; and providing an immediate effective date."

Be it enacted by the Legislature of the State of Montana:

    Section 1.  Section 37-61-210, MCA, is amended to read:
    "37-61-210.  Penalty for practicing without license.  (1)  If any person practices law in any court, except a justice's court or a city court, without having received a license as attorney and counselor, he the person is guilty of a contempt of court.
    (2)  Except in cases involving fraud, a penalty other than the penalty provided in subsection (1) may not be imposed on a person for providing advice in the course of the person's profession or occupation."

I am wondering if I need to add some other wrongs to be penalized in addition to "fraud." I would appreciate your critique and help with this bill.

Jerry O'Neil

----- Original Message -----
From: Jerry O'Neil
Subject: LC2226
Senate kills attorney bill

HELENA - [Montana State] Sen. Jerry O'Neil, R-Kalispell, pitched a set of bills Monday that promote his long-standing battle to give non-attorneys permission to provide legal advice and prepare legal documents.

Just hours later, the Senate Judiciary Committee killed the bills.

O'Neil put forth one measure that would have given the Legislature, rather than the Supreme Court, the power to determine who is eligible to practice law. Another measure would limit penalties for practicing law without a license. His third measure would allow non-attorneys to prepare written separation agreements and family law mediation agreements.

"There's other good ways to learn the law besides graduating from the (American Bar Association) system," O'Neil said.

But O'Neil has not been successful in convincing courts. In December 2004, a district judge found O'Neil in contempt after a two-day trial and ordered the state Commission on the Unauthorized Practice of Law to issue an injunction against O'Neil practicing law.

In 1986 O'Neil's candidacy for the Montana Supreme Court was rejected because he is not an attorney, which is a constitutional requirement for those seeking a seat on the state's high court.