Relationship Between Responses and the TCPS

The TCPS suggest five areas in which courts must strive for excellence in order to best serve those who come before them. Each of the potential responses discussed in Sections II - IV above implicates at least one of these areas in some way.

1. Access to Justice - The first basic tenet of the TCPS is that trial courts should be open and accessible. The corollary to this is that a court should strive to eliminate all barriers to its services that are not necessary for safety and efficient operations. Coincident with that is the mandate that court personnel should attempt to understand the litigants that their court services. This is not to say that courts should sacrifice detached impartiality in rendering legal judgments. Rather, it goes toward the attitude court personnel have toward consumers of their service. Barriers can transcend the physical and extend to the ideological. The members of the groups to which this guide speaks are not somehow unintelligent or malicious or evil. Rather, they are often vulnerable people who have become disaffected for some reason and are looking for answers that our system does not seem to provide for them. If our courts understand that they hold these beliefs, and work to accommodate them within the safe and efficient operation of the courts, we can assure that our courts do remain open - while dousing some of the fuel which fires the fervent beliefs antigovernment groups hold. This goal is most clearly understood in the context of TCPS Standard 1.3 - Effective Participation. Though these tactics are not explicitly contemplated by the TCPS, it is clearly within their spirit to do so now. While use of the contempt power, for example, is clearly necessary in some circumstances, in others it amounts to little more than access to justice denied. Conversely, noting the objection of a litigant and moving on, or working to accommodate their reasonable demands, are more in line with truly providing access for these people. While noting the objection initially alleviates any implication that justice has been denied, it ultimately strains judicial resources by providing - in some instances - grounds for appeal. Though odious to some, in particular cases such as the fringed flag objection, the course of action most consistent with this aspect of the TCPS might just be accommodation.

2. Expedition and Timeliness - The underlying goal of this section of the TCPS is that all trial court functions should be performed within a proper, suitable and reasonable time. While, again, the tactics discussed here are not explicitly discussed in the TCPS, it is clear that TCPS Standards 2.1.1 - 2.1.4 are implicated by issues arising in and related to the courtroom or trial process. Each of these is concerned with the time it takes for cases to reach disposition, the ratio between case dispositions and filings, and the age of impending caseloads. If courts engage members of these antigovernment groups in their protests and refuse to accommodate certain of their demands - such as not flying the fringed flag - cases will age as appeals are docketed and arguments are heard. For these reasons, it is entirely consistent with TCPS Performance Area 2 for courts to forego use of the contempt power, unless absolutely necessary, and to instead attempt to facilitate cooperation between the parties and the court.

3. Equality, Fairness and Integrity - This performance area is concerned with a court's consistency in the way that it applies rules and conventions and assesses penalties against the parties who come before it. In this area, perhaps the biggest danger that courts face is the danger that judges begin to take dealing with the antigovernment groups personally. That is, it might become a personal challenge for a judge to deal with a heavy hand and not allow the views of these groups or their arguments to be expressed. Certainly, when a court acquiesces or compromises with an unruly party, the court is minimizing the chance that it will be seen to be heavy-handed or unfair. In contrast, the judge who is quick to invoke the contempt power and fine or lock up someone with whom the judge disagrees and who also has been a disruptive or contentious party, the judge and the court risk losing their presumptive impartiality. This may occur in the eyes of those who see the judge quickly resort to contempt, perhaps sooner than the judge would have with a different type of patron. As well, it will certainly appear to the members of the movement that the judge will truck no disturbance or refusal to conform.

It is not an easy place for the trial judge, for almost no matter what he or she does, the members of these groups are likely to remain dissatisfied. Even the appearance of a personal challenge begins to destroy the court's actual integrity and the public's perception of that integrity. For this reason, we advocate for judges to resolve disputes over matters which afford different avenues in ways that uphold both the perception of fairness and the actual existence of fairness. In response to the in-court tactics, this is probably an equally good approach as that of noting the party's objection and moving on. Both show that this is a fair judge and one who does not allow his or her own preconceived opinions to dictate his or her rulings in the court.

4. Independence and Accountability - Performance Area 4 encompasses several heuristic measurements designed to assess how courts maintain comity and deal with the people they serve and events they are confronted by. Responses to the tactics of the antigovernment movement may possibly implicate at least two of the specific standards within this Performance Area. Standard 4.4.3 measures a court's community outreach efforts. While the standard itself is meant in the context of traditional community outreach, the spirit of that standard values all court-community relations. For this, we believe that responses to these tactics that evince less of an authoritative or, especially, prejudiced attitude toward members of these movements and more of a willingness to work with litigants are the more desirable route. Necessarily, courts' responses will have to be different, according to the particular tactic at hand. For example, there is probably more leeway available to work with and around a "subject matter jurisdiction" argument based on a gold-fringed flag than there is to work around a "personal jurisdiction argument" based in a litigant's beliefs about citizenship. The flag is a physical object that may be removed, even if just for that particular hearing. The citizenship argument, however, invites interminable discussions about the nature of citizenship and the like - whether the court intends to go there or not. In cases such as this, it is entirely reasonable for a judge to note the party's objection and move forward -such a response does not indicate animosity toward the party, preconceived ideas about the party, or prejudice against the party, but rather evinces the judge's fairness and respect for our rules of procedure.

We do not wish to suggest here that courts should placate members of these groups for the sole sake of placating them. Nor do we suggest that the existence of this class of litigants should force courts to change sound court policy or procedure. However, existing policies and procedures are predicated upon serving a particular, already identified community having a generally common set of beliefs and expectations. The presence of these antigovernment groups suggests that, at times, courts now deal with a different community. For this reason, we believe that their presence signifies changed circumstances of which courts must be both aware and willing to acknowledge. Finally, Performance Standard 4.4, Public Education, contains several factors concerning the way courts disseminate information to the public. The tactics used by the antigovernment groups implicate this standard in a certain way. The way a court conducts itself, the rulings it makes, and the interaction with the media all tell a story about how our institutions are responding to these groups. This is not to say that a court should become a vendor in the marketplace and take a public stance against the antigovernment political theory. However, courts must be always mindful of their effect on the public opinion and choose responses which suggest a respect for the political beliefs of all of our citizens but reflect a firm commitment to upholding the law that both governs and protects us all.

5. Public Trust and Confidence - This Performance Area is about the way that the general public perceives the court and the job it is doing. Responses that agitate or antagonize the antigovernment groups cut two ways. On one hand, such responses can lead to negative publicity, or propaganda, put forth by the movement. On the other, they can reassure what will soon become an informed public that those who threaten the system are being dealt with fairly but firmly. It may very well be that the arguments surrounding things like personal sovereignty, the fringe on flags, harassment of court personnel, and the like represent battles worth fighting. These arguments go to the very core of these groups' beliefs, and courts should take a strong stance to inform that they are incorrect as a matter of law - but nonetheless welcome back into the societal fold upon their behavior conforming to the law.