Judge Brown’s Jurisdiction Hearing by Gary Hunt
Freedom of the Press #16
by Gary Hunt
May 15, 2017
To put proper perspective on recent ongoing events leading up to my jurisdiction hearing in Portland, Oregon, on May 9, 2017, we must go back to the Order (ECF #1901) to show cause why I should not be held in contempt of Court. That Order demanded my appearance to answer the allegations made by the government. It was specific to the show cause and had nothing to do with jurisdiction. Had I appeared, it could easily be argued by the Court that my appearance was a submission to jurisdiction.
Now, as strange as it might seem, unless jurisdictional questions are raised at the outset, the Court can properly assume jurisdiction. My research indicates that this was firmly established as early as 1856 (Dredd Scott v Sandford, 60 US 393 (1856)). Matters of jurisdiction were not the object of the hearing, and may not necessarily be heard.
The assumption of jurisdiction could be the possible outcome; the consideration of jurisdiction had to be established by other means. I was not sure just how this could be achieved. However, subsequent to my arrest, Judge Brown provided the opportune means in the telephonic hearing on April 6, 2017. This is fully explained in “Freedom of the Press #14 – Telephonic Hearing“. Briefly, the matter of jurisdiction was brought up as a separate issue from the show cause, which at that time was the only subject on the table.
That Hearing resulted in the scheduling of the May 9 jurisdiction hearing, so the two issues, jurisdiction, and show cause (First Amendment – Freedom of the Press), were separate, and would be heard separately. The jurisdiction would be heard in one hearing, the show cause in a subsequent hearing.
Well, this was a start. However, it was rather discomforting. If I were to win at the jurisdiction hearing, then there would be no show cause hearing. And, I was pretty sure that I would win at jurisdiction, meaning that the Freedom of the Press issue would not have its day in court.
On the other hand, if I lost the jurisdiction hearing, then the Freedom of the press aspect would see the light of day. Heck, I even contemplated losing the jurisdiction arguments, though it is nearly as important, so that the other, more important, show cause issue could be heard and ruled on.
Well, on May 9, Judge Brown dismissed the jurisdiction motion, with her “Order Denying Request to Dismiss Contempt Proceedings for Lack of Personal Jurisdiction” (ECF #2095). The written Order was filed two days later, on May 11. The pertinent parts follow:
In particular, the Court finds the government has made a sufficient preliminary showing that evidence exists to support its theory that Hunt intentionally or knowingly aided and abetted a party to this litigation in the violation of the Protective Order (#382). That preliminary showing requires this Court to proceed to litigate the combined jurisdictional and merits-related issues. See Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983)(When “the jurisdictional issue and the substantive issue are so intertwined that the question of jurisdiction is dependent on factual issues going to the merits, the jurisdictional determination should await a determination of the relevant facts on either a motion going to the merits or at trial.”). See also Young v. United States, 769 F.3d 1047, 1052-53 (9th Cir. 2014).
So, we can see that as the government has, in the past four months, filed no less than ten documents in pursuing the finding of contempt of court; they have only “made a sufficient preliminary showing that evidence exists to support its theory.” It does not state that they made their case, only that they have made a rather poor showing of trying to make their case.
Judge Brown then states, “That preliminary showing requires this Court to proceed to litigate the combined jurisdictional and merits-related issues.” She follows that up with the following citation:
When “the jurisdictional issue and the substantive issue are so intertwined that the question of jurisdiction is dependent on factual issues going to the merits, the jurisdictional determination should await a determination of the relevant facts on either a motion going to the merits or at trial.”
So, Judge Brown has achieved the best of both worlds, at least from my standpoint. She has merged, though distinguished, both the jurisdictional and the Freedom of the Press issues into the next hearing. Though she didn’t grant dismissal on jurisdiction at this hearing, she has not deemed that the issue of jurisdiction has no merit, simply that factors involved in the Freedom of the Press aspect may well weigh on her ultimate decision on both issues.
She then proceeds to list some requirements for the government to address, by June 12, 2017:
No later than June 12, 2017, the government must file a memorandum that confirms it is seeking a finding of contempt on the basis that Hunt knowingly or intentionally aided and abetted a party to this criminal case to violate the Protective Orders (#342, #1692), specifies any other factual basis for a finding of contempt against Hunt as to which this Court also has personal jurisdiction over Hunt to proceed, sets out the appropriate legal standards for the Court to apply, and makes any necessary legal argument.
The government must support its memorandum with a complete and admissible factual record that establishes these disputed facts by the applicable burden of proof. To the extent that the government seeks a sanction against Hunt for publishing protected discovery information that ultimately was disclosed during the public jury trials in this matter, the government must justify such position with particularity.
Finally, the government’s memorandum must also itemize the specific sanction(s) together with authorities to support the sanction(s) that the government requests the Court to impose against Hunt in the event the Court finds it has jurisdiction over him and finds him in contempt.
It becomes quite apparent that they have only scratched the surface, and in so doing, they have yet to provide any evidence to substantiate their claim of aiding and abetting. As the Order states, “The government must support its memorandum with a complete and admissible factual record that establishes these disputed facts by the applicable burden of proof.” The government has brought up the fact that Duane Ehmer had stated that I was in touch with the defense attorneys, that Facebook post is not valid evidence. And, that is what the government had hinged their entire aid and abet argument upon.
I think it is fair to say that since they knew, before the hearing, that the Facebook post was insufficient, they did attempt to bring in another accusation that has no merit in the current matter.
They brought up Ryan Payne, a friend, and Operation Mutual Defense (OMD) Advisory Board member, neither of which provides any substance to the aid and abet accusation. Though Ryan Payne was one of the defendants, he did sign a plea agreement and was not in a position to be aided by anything that I had written. They also brought up OMD, which had nothing to do with the events going on at the Malheur National Wildlife Refuge, or the subsequent trials.
Ryan Payne and I had spent over a week preparing a PowerPoint presentation on Committees of Safety. The presentation resulted in the creation of the Harney County Committee of Safety. Now, some might suggest that such an organization is illegal. If so, they simply fail to realize that Committees of Safety were fundamental in the creation of the United States of America. How can something so significant in our history be illegal? If it were, then the First Amendment would also be illegal. The right to freedom of speech, the press, to peaceably assemble, and to petition the Government for a redress of grievances, are fundamental to our entire form of government.
It is apparent that the government wants to control the narrative; they also want to determine what is acceptable and what is not acceptable. This has been amply demonstrated in the government’s desperation, though perhaps inability, to compile a case against Freedom of the Press.
It seems safe to assume that when Judge Brown wrote, “To the extent that the government seeks a sanction against Hunt for publishing protected discovery information that ultimately was disclosed during the public jury trials in this matter, the government must justify such position with particularity,” that she had just such a concern in mind. To simply say what they believe does not meet the requisite of due process. They have to prove their case, and their evidence cannot be Facebook posts or out of context transcriptions of radio programs. After all, justice is the right of the people and the responsibility of the government.
So, the burden is, finally, exactly where it should be. The government must prove, to the satisfaction of the Court, and the people, that there is merit to their accusations. And that, my friends, is an extremely difficult task, when no crime or contempt has occurred.