There is a movement afoot in this country today that is made up of disaffected and often dispossessed Americans who are seeking a better way through a wholesale return to their view of the past. This movement has been called many things: the antigovernment movement, the sovereignty movement, and the common law courts movement. Regardless of the name attached to the beliefs and the people who follow them, one common denominator exists: a feeling of despair, rooted in personal and pecuniary loss, and manifested in a new, defiant mistrust and spite for the ways of the current government. This guide focuses on the ways in which followers of these movements impact the operation of our state court systems.
While the commentators have discussed these movements from all angles -ranging from ridicule to outrage to fear - most of the mainstream pundits discount the powerful emotion that drives individuals from the fold of our everyday society and into the ranks of the modem patriots. This guide asks that our state courts not take these individuals and their problems and concerns so lightly. In 1928, Justice Brandeis said:
"Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example."1
The people who make up the movements that we are concerned with consistently speak out to say that our government today does not listen, it no longer serves the American people, it exists to serve its own ends. The merits of that argument are not within the purview of this guide. Rather, the authors wish to urge Justice Brandeis's warning upon those who administer our state courts. That is, while we do not advocate an ultra-sympathetic response at the expense of safety and the efficient operation of the courts, we do implore those charged with running our court system to do two things: learn the history behind the beliefs we are seeing spread across our land, and understand that these are not militia members or "Patriots" or "ultra-conservatives," but rather citizens who come before you seeking the same fair treatment that those without any label attached receive.
To that end, this guide is organized in the. following manner. Part I includes an essay that provides a historic overview of the "common law courts" movement. This essay was written by Dr. Mark Pitcavage, a widely traveled lecturer on the "militia movement" and operator of the Militia Watchdog website.
Parts II through IV include a discussion of many of the common tactics used by members of these groups - both in and against the courts - as well as typical responses to each tactic. Part V is a brief introduction to and discussion of the relationship between potential responses to the tactics and the Trial Court Performance Standards ("TCPS"). While not all courts have adopted or use the TCPS, they provide a good framework for making a broader assessment of the relative value of each potential response - because the TCPS value less tangible things as "access to justice" and "equality, fairness and integrity."
The final part of this guide contains three appendices. The first two of those, Appendix A and AppendixB, are general resource guides. These include sample state legislative responses, and links to Patriot, militia, common law courts and other antigovernment websites. Appendix C is a sampling of various "movement documents" -pleadings, essays and articles written by followers of the various movements. These stand less as a comprehensive compilation and more as a general overview - enough to introduce those who have not yet experienced dealings with the movement to the general tone and approach used.
Finally, the authors again ask the reader to consider Justice Brandeis's warning and remember that, when dealing with followers of the various movements, you are, foremost, representatives of the government they see as corrupt and they are, foremost, American citizens. The fairness and dignity with which you treat them from the outset will go a long way toward determining how they respond to you and your court.
The Anti-Government Movement Guidebook coalesced out of a grant from the State Justice Institute
for the Institute for Court Management course, "The Rise of Common Law
Courts in the United States: An Examination of the Movement, The Potential
Impact on the Judiciary, and How the State Could Respond" (Dealing with
Common Law Courts). On February 5-7, 1997, twenty-seven judges, court clerks,
court administrators, and prosecutors met in Scottsdale, Arizona to learn about
the so-called Common Law Court Movement (CLC), to develop responses the courts
can take to deal with the CLC, and to make recommendations for establishing a
curriculum for judicial educators to train judges and court officials on how to
deal with CLC activities in their own jurisdictions. The course was very much a
working group and sought to bring together individuals who have first-hand
experience with CLC activists and who could use their experiences and insights
to develop possible responses to the CLC. Over the course of two and one half days, the participants
heard a presentation on the history of the CLC, shared first-hand experiences in
dealing with CLC activists, examined how the CLC disseminates its materials and
ideology, heard from an investigative reporter who described his experiences
attending CLC proceedings, and broke out into work groups to examine CLC-related
issues and craft proposals for responding to CLC actions. The work product of the groups was a set of recommendations
and responses the courts might use to handle situations and inconveniences
brought on by CLC activists better.
These responses and the experience of conducting the course in Scottsdale formed
the basis for the NCSC publication. Dealing
with Common Law Courts: A Model Curriculum/or Judges and Court Staff:
Instructor's Manual a precursor to this latest NCSC
publication. The Anti-Government
Guidebook. The authors wish to thank the State Justice Institute for
continued funding of the project; Hon. Roger Warren, President of the National
Center for State Courts for supporting this project; and Ms. Cheryl Reynolds,
State Justice Institute project monitor, for her support and helpful assistance
throughout the project. Acknowledgment is also due to the advisory committee, and
especially to the participants of the initial
Institute for Court Management course. Dealing
With Common Law Courts whose input and experiences with the common law court
movement were critical to the formulation of this guidebook. We would like to express particular gratitude to the
following individuals for assisting in reviewing the guidebook and making
recommendations on this project: The Hon. Louraine Arkfeld, Tempe Municipal
Court, Tempe, Arizona; Ms. Colleen Danos, Court Information Resource Analyst,
National Center for State Courts, Williamsburg, Virginia; Mr. Rick Neidhardt,
Legal Analyst, Washington State Office of the Administrator for the Courts,
Olympia, Washington; Ms. Cheryl Nyberg, Law Librarian, University of Washington,
Seattle, Washington. Williamsburg, Virginia, 1999 1
Olmstead v. United States, Til
U.S. 438 (1928)(Brandeis, J.,
dissenting).