GUEST COLUMN: Forest Practices Act by Rep Hart

Private use of Public Timber by Representative Phil Hart

In 1995 I contracted with a private landowner to purchase a quantity of logs to build a house. When it came time to deliver, he could not fill the entire order. Due to springtime load limits, several other landowners were prevented from providing such logs, as they were unable to access their property with heavy equipment.

After calling nearly everyone within 50 miles, I finally talked to a landowner who had the logs I needed. But he literally talked himself out of a sale by informing me, “I would feel guilty if I didn’t tell you that since you’re using the logs personally, you can take them off of state land. My dad and I did it when we built his house. He had studied the law and ran it by our legislator who verified this was lawful.”

I then studied the law and came to the same conclusion. Meanwhile I talked to an elderly logger who also told me this was common practice in Idaho when he was logging. This man submitted an affidavit to that effect when I went to court over the issue.

Here is what I discovered first in the federal law:

“The Secretary of Agriculture may permit, under regulations to be prescribed by him, the use of timber and stone found upon national forests, free of charge, by bona fide settlers, miners, residents, and prospectors for minerals, for firewood, fencing, buildings, mining, prospecting, and other domestic purposes….” (emphasis added) 16 U.S.C. 477.

That federal statute has been on the books since 1905. Fast forward to 1975 and we find at Title 38, Chapter 13, Section 1302, of the Idaho Code the Idaho Forest Practices Act, which states its purpose in part: “To encourage uniform forest practices implementing the policy of this chapter, and to provide a mechanism for harmonizing… laws and rules relating to federal, state and private forest land….” We also find at section 1303 under “Definitions” that “Forest practice” means (a) the harvesting of forest tree species….” “Harvesting” is defined to mean “a commercial activity related to the cutting or removal of forest tree species to be used as a forest product. A commercial activity does not include the cutting or removal of forest tree species by a person for his own personal use.” (emphasis added)

In the 1996 edition of the Idaho Forest Practices Act we find at IDAPA 20.02.01.07 (b) 07. “Types of Operation for Which Notice Will Not Be Required…..(b) Noncommercial cutting and removal of forest tree species by a person for his own personal use.” (emphasis added)

The federal statue allowing the “free of charge” use of timber from federal lands for personal use has been part of the U.S. Code since 1905, The Idaho Forest Practices Act was added to the Idaho Code in 1975. If we were to “harmonize” state and federal laws, a stated goal of the Idaho Forest Practices Act, we would also allow the “free of charge” use of timber from state land by a person “for his own personal use”. Given the exemptions previously quoted, this seemed reasonable to me.

When the state demanded I pay for the logs because I neglected to get a permit or sign a contract, I agreed to pay if the state could show me a sample copy of the permit or contract they were referring to. They could not, because no such documents existed. Nor had there ever been an Idaho court case that litigated these facts, nor such a case in our neighboring states. So we went to court.

In hindsight, I believe the biggest issue was the political correctness of the whole thing. One view is that these trees were created by the Creator for man’s benefit, that such public trees belong to “We the People” and can be used by an individual for his own personal. The other view is that the government owns the trees and must regulate every aspect of their use.

Sixteen years later my detractors are delighted I created a public record of the whole affair. The controversy was settled when phantom words were added to the black and white written law so that the court could justify its ruling. This was a case of legislating from the bench to the benefit of the bureaucracy. Once again the jurisdiction of the bureaucracy encroaches further, and “We the People” backup for the umpteenth time.

GUEST COLUMN: Tax Expert Rep. Hart

The Income Tax and Due Process by Rep. Phil Hart

Monday, January 23, 2012, we had a bill on the House floor (House Bill 362) that would strike the current statutory requirement that the Idaho State Tax Commission must notify a taxpayer by certified mail when the Tax Commission has issued them a Notice of Deficiency. If the taxpayer disagrees with the findings of the Tax Commission, there is a statutory requirement that the taxpayer has 63 days to object to the findings of the Tax Commission. The 63 day period begins when the notice is mailed. House Bill 362 would allow this notice to be mailed by first class mail. The argument behind this legislation is that there would be a savings to the Tax Commission of $200,000, and that there would be fewer articles of mail returned to the Tax Commission as unclaimed.

We had nearly an identical bill in 2007 (HB 8) which passed both houses of the legislature with little opposition, but was vetoed by the Governor. I voted in favor of the 2007 bill, although in hindsight I regret having done so. However, this year, with a clear conscience, I voted against HB 362, when we considered it on the House floor.

In 2007 Governor Otter did the right thing when he vetoed House Bill 8. In his letter of explanation, the Governor wrote,

“I strongly encourage saving tax dollars and achieving cost savings within state government, however, this specific cost savings is minimal and inappropriate compared with the potential costs to property owners across Idaho.

Idaho has a long tradition of protecting and promoting private property rights. The Idaho Constitution sets forth the inalienable right to acquire, possess and protect property. This right is paramount to a free and prosperous society. To that end, there are many processes established under state law to protect property and an owner’s interest in it.

Title 63, Section 3061A of the Idaho Code is no exception…. Notice in these situations is critical for property owners to defend any rights or interests in their property, and using certified mail provides greater assurance that notice is actually received.”

Governor Otter was right in 2007 when he vetoed House Bill 8, and I was wrong when I had voted in favor of that bill. Our Declaration of Independence states that the purpose of government is to secure our rights. And when we, as a government, are going to take someone’s life, their liberty or their property, due process requires that the procedure begins with “notice.”

Look up “due process” in a legal dictionary and you’ll discover the term is largely undefined, yet it needs to be “reasonable.” Taking someone’s property, and notifying them you’re going to do so by first class mail in my mind is unreasonable.

If we are trying to save money, as the Statement of Purpose of HB362 claims, maybe we should junk the entire income tax instead of trying to tweak it to make it better. For the taxpayer, it costs 22 cents to develop and keep the financial records necessary in order to pay $1 in income tax. The income tax is the most inefficient tax we have. However a sales tax only takes about one cent in record keeping effort for every $1 paid in sales tax. The income tax requires all of us to be a witness against ourselves, in violation of our Fifth Amendment rights. To get around this, the courts completely distort the application of the Fifth Amendment.

Will Rogers said, “The income tax has made more liars out of the American people than golf has.”

Reporting on my Monday’s “no” vote on HB362, reporter Betsy Russell of the Spokesmen Review and the Eye on Boise blog continues to lie about my court case with the State Tax Commission. All the back taxes related to my case have been paid, including all penalties and interest. What is at question now is the trumped up “taxable income” that was created when the IRS, illegally, denied all of my business deductions for eight years. As an engineer in private practice, the IRS did not allow me to deduct the cost of a single postage stamp, paperclip, or work mile driven for 8 years. When these deductions were denied, my so-called “income” skyrocketed.

I earned an MBA and did learn a thing or two about running an efficient business. But even my alma matter, The Wharton School of Business at the University of Pennsylvania, America’s #1 business school, was not able to teach me how to run a business for eight years without incurring a single dollar in expenses.

Depriving me of my rightful business deductions for eight years was political payback for having refused to turn over to the IRS the names, address and phone numbers of the people who bought a book I authored about the income tax (a book, by the way, that remains unchallenged as to the accuracy and completeness of the history of the income tax). My refusal to turn over the names of the purchasers of my book was morally and legally necessary to protect their First Amendment rights to Freedom of Speech. And my “no” vote on HB362 was made in an effort to defend Idahoan’s Fifth Amendment rights to Due Process.

All around us we see the crumbling of our institutions caused by socialism, the overreach of big government and collapsing societal structures that were propped up by debt – financed with money created out of thin air! If we are going to pull out of our economic mess, we are going to have to get leaner. We must rid our society of our most inefficient tax, the income tax – a necessity if we are going to restore the prosperity we once knew.

Have a Hart Press Conference

Phil Hart Press Conference tomorrow – Wed. 12:30AM Capitol steps

Friends,

As mentioned previously, we will be having a press conference in support
of Phil Hart tomorrow (Wednesday.) Here are the details:

The press conference will be at 12:30 PM on the steps of the Idaho
Capitol. The purpose of the press conference is to show that there are
people from around the state who support Rep. Phil Hart’s fight against
the IRS. Lucas Baumbach will be the spokesman at the press conference.
When he is giving his statement to the press, please stand behind him to
show the cameras that there are a lot of people who support Phil. If
the press tries to interview you, please stick to the soundbites, no
matter what they ask. Simply state that you support Phil and his fight
against the IRS, and that he is being politically persecuted for
challenging the constitutionality of the income tax. If you are not
comfortable speaking to the press, don’t do it.

Defer any questions to Lucas and let him answer if you don’t know what
to say. Also remember that we need as many people as possible to show
up to the ethics committee hearing on Thursday, 9AM at the State House.

Idahoans for Liberty
353-8157

Letter to support Phil Hart

TO: Ethics Committee Members

RE: Phil Hart

FROM: Lucas Baumbach

imwithlucas@gmail.com

I am writing this letter in support of Phil Hart.  After reviewing the facts, I am concerned that the ethics hearing is a partisan attack that was precipitated after a primary election.  There is no reason for this issue to come up during a general election, except that Democrats want to paint Republicans in general as bad legislators.  Phil Hart is one of the most productive and hard-working legislators.  I once met him at a pro-life event, and around 10PM Representative Hart said he was returning to the capitol to work on legislation.  I was impressed by his dedication to research and writing good legislation himself.  The charges of carelessness and impropriety couldn’t be leveled at a more conscientious man.

It is clear that a fair hearing will find Hart innocent of any misuse of legislative privilege.  It is pointless to have legislative privilege to avoid the distraction of polemical civil filings, if the legislature is going to convene an ethics hearing each time the privilege is invoked.  To punish Representative Hart would be to open the entire legislature up to frivolous lawsuits.  This ethics charge alone will have a chilling effect on the legislative process itself.  Setting this precedent would ensure that no conscientious citizen will want to serve in the state legislature.  A citizen legislature can not continue to impose such draconian measures on the integrity of the legislative process.  To act in contradiction of this reality would be to deny that good legislators are needed.

It has come to my attention that the committee has chosen to take legislative counsel from the same office that is actively opposing Phil Hart in appellate court.  The current attorney should immediately recuse himself from advising the ethics committee.  This is also a question of separation of powers; as the attorney is a part of the executive branch.  The State Bar should be apprised of this conflict of interest.

I would expect the committee of Phil’s peers to consider the accusations as peers and not transform the ethic hearing process into a staged, quasi-prosecutorial, trans-governmental charade.  The charges originally leveled have expanded into a whole host of unfocused questions that were not the original intent of the ethics panel.  This attempt to expand the inquiry to include questioning Hart’s voting record is part of the political theatre.  In a sense no good legislator can entirely avoid personal gain, as all laws should effect all citizens (even legislators) positively.  It is the legislator’s job to benefit everyone, himself and the entire public by virtue of limited government and taxation.

But, even accusing Phil Hart of self-serving is a red herring.  No law can be enacted ex post facto.  Even if a legislator voted on a bill to cut taxes, that vote could not effect past tax debts.  Only an amnesty bill would clear past tax debts.  And, there have been no amnesty bills before the legislature.  Any legislator, even a Democrat, should know this.  I suspect either a fundamental lack of legal knowledge by Democrat accusers or a deliberate Democrat attempt to despoil the Republican majority by virtue of innuendo, media propaganda and hyperbole.

This ethics panel request was made as an act of desperation by a political party bent on fundamentally changing the character of our State and Country.  They will say anything to further their socialist cause.  They will seek to destroy men, like Hart, who oppose big-government panacea at every turn.  If you think that Democrats in Idaho’s legislature are unlike those in DC, just look at the votes in the last legislative session.  The local Democrats are more partisan than ever.  What’s worse: our society has been on a downward trajectory for so long that we think it’s right.  It’s not only wrong; it’s evil.  In the tradition of Ronald Reagan, we must call evil by its name.  That’s the true question of ethics.

Best,

–

Lucas Baumbach

http://www.imwithlucas.com

imwithlucas@gmail.com

208-473-7215 office

Op/Ed, Legislative Immunity: Who Benefits?

By Rep. Matt Shea

Recently, an oft quoted myth has resurfaced that legislative immunity is a perk for State Representatives which can be invoked whenever convenient. For example, this myth is being used as the basis for accusations of impropriety being leveled against Idaho State Representative Phil Hart (3rd H.D.)

Rep. Hart has relied on a provision in the Idaho Constitution to postpone an income tax controversy he is involved in until after the conclusion of the legislative session. Both Washington and Idaho legislators are protected from “any civil process” while their legislatures are in session. As a threshold matter of state sovereignty that protection also includes civil process attempted by the federal government.

State Constitutions

Article 2, Section 16 of the Washington Constitution reads:

Members of the legislature shall be privileged from arrest in all cases except treason, felony and breach of the peace; they shall not be subject to any civil process during the session of the legislature, nor for fifteen days next before the commencement of each session.

Similarly Article III, Section 7 of Idaho’s Constitution reads:

Senators and representatives in all cases…shall not be liable to any civil process during the session of the legislature, nor during the ten days next before the commencement thereof…

There are eleven states that have similar language in their respective constitutions which use the phrase “any civil process.” An I.R.S. decision on what Rep. Hart’s allowable business deductions are is administrative in nature and clearly a civil matter because it involves an attempt to take property. It is therefore, “any civil process.”

The History of and Reasons for Legislative Immunity

Our Founding Fathers just freed from English tyranny wanted to ensure that elected Representatives would not face arbitrary arrest for the sake of political retribution.

As stated by the United States Supreme Court:

The privilege of legislators to be free from arrest or civil process for what they do or say in legislative proceedings has taproots in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries. As Parliament achieved increasing independence from the Crown, its statement of the privilege grew stronger. In 1689, the Bill of Rights declared in unequivocal language: “That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.” 1 Wm. & Mary, Sess. 2, c. II. See Stockdale v. Hansard, 9 Ad. & El. 1, 113-114 (1839)… Freedom of speech and action in the legislature was taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation. It was deemed so essential for representatives of the people that it was written into the Articles of Confederation and later into the Constitution. Tenney v. Brandhove, 341 U.S. 367, 372 (1951).

The Founding Fathers also wanted to ensure that the people’s voice was protected and uninhibited:

The reason for the privilege is clear. It was well summarized by James Wilson, an influential member of the Committee of Detail which was responsible for the provision in the Federal Constitution. “In order to enable and encourage a representative of the public to discharge his public trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offence.” Id. at 373.

The court continued in summary “Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial… [Emphasis added] Id. at 377.

This idea has been affirmed time and again in many states.

In Wisconsin the Speaker of the House’s office received a subpoena for one of the speaker’s administrative assistants related to an audit of a lobbyist’s tax return. The Speaker took the position that his administrative assistant was his alter ego and should be protected by the constitutional provision that a member of the legislature not be “subject to any civil process, during the session of the legislature….” The Supreme Court of Wisconsin agreed with the Speaker.

“…the meaning of a constitutional provision may be determined by looking at the objectives of the framers in adopting the provision. We conclude, as did the court of appeals, that the rationale for the privilege was to preserve the public’s right to representation in the state legislature. When a legislator cannot appear the people whom the legislator represents lose their voice in debate and vote.” [Emphasis added] State v. Beno, 341 N.W. 2d 668 (1984).

In Michigan there was a legislator who had a garnishment on his wages. The judgement was in place before the legislative session started. The Attorney General for the state of Michigan defended the legislator because the garnishment was viewed more as an attack against the legislative branch of government as opposed to an attack on the legislator. The Michigan Constitution uses the same “any civil process” language used in Idaho and Washington. Here is what the Michigan Supreme Court said of the garnishment:

“This is too narrow view of the situation. The idea back of the constitutional provision was to protect the legislators from the trouble, worry, and inconvenience of court proceedings during the session, and for a certain time before and after, so that the state could have their undivided time and attention in public affairs.” Fuller v. Barton, 208 N.W. 696 (1926).

In Arizona and Wisconsin the Attorneys General agreed that a garnishment shall not be allowed on a legislator’s paycheck during the legislative session in their respective states. The Arizona Attorney General cited the Fuller v. Barton case as his authority. “It is my opinion that the Arizona constitutional provision prohibits garnishment proceedings, and, therefore, you should not honor any garnishments involving any legislator during the sessions of the Legislature.” Arizona, Opinion of Attorney General, No. 56-24.

In Kansas the point is made again that the immunity provision of their constitution is for the benefit of the state and of the people that the legislator represents.

The use of the words “subject to” means that the member is not “liable to” the service of civil process. To construe our constitution differently would be to defeat its apparent object. The state is clearly entitled to the service of its members of the legislature during the time sessions of either branch thereof are being held. Our constitution has wisely provided that the members shall not be annoyed with arrests or suits, or be obliged to be absent from their duties….” Cook v. Senior, 45 P. 126, 127-8 (1896).

In California the language in that state constitution reads “A member of the Legislature is not subject to civil process during a session of the Legislature or for 5 days before and after a session.” The California Court of Appeals said:

In precise terms article IV, section 14, creates an exception from civil process without qualification as to the kind of subject matter of the lawsuit. Similar exemptions have been construed to cover civil actions of all kinds, including those involving the legislator’s personal affairs. …such immunities are designed to benefit the public by protecting legislators against compelled distraction and interference during the session.” Harmer v. Superior Court, 79 Cal. Reporter 855 (1969).

And finally in my state, Washington, a member of the Washington Senate, was sued for legal malpractice because he filed a lawsuit after the statute of limitations had expired. Senator Gordon Walgren, in his capacity as an attorney, argued successfully that the statute of limitations tolls (is postponed) while he was tied up with the business of the legislature.

These similar constitutional provisions convince us that immunity was granted by our constitution to protect the legislators from distraction during the stated periods of time and should be broadly construed. Immunity from service of “any civil process” should be granted during the constitutional described time periods… When a person is prevented from exercising his legal remedy by some positive rule of law, the time during which he is prevented from bringing suit is not to be counted against him in determining whether the statute of limitations has barred his right… Seamans v. Walgren, 82 Wn.2d 771, 774 (1973).

This is exactly the case with Representative Phil Hart. The deadline to appeal given by the IRS or the Idaho Tax Commission should toll (be postponed) during the legislative session. Otherwise, Rep. Hart would have likely missed votes and debate to address his tax litigation. However, it is important to also note that this constitutional provision cannot be waived. For example:

In Alaska, that Attorney General says the legislator has no flexibility. According to him, exercising the immunity from civil process is mandatory. “Immunity against civil process cannot be waived by the legislator since the Alaska immunity is intended to protect the public as well as serve the convenience of the legislators.” Alaska, Attorney General Opinion, 159 Op. Att’y Gen. No. 8.

Conclusion

Rep. Hart has relied on the legislative immunity provision of the Idaho Constitution to postpone working on his own tax issues, which have been ongoing for a few years. There is no question that it is within the sovereign power of the states to afford this protection. Furthermore, the law seems to be clearly on Rep. Hart’s side. So why does the witch hunt continue? Has the I.R.S. ever been used as a weapon for political retribution? Both President Richard Nixon(1) and President Bill Clinton were accused of this.(2)

For a man who wrote a book challenging the I.R.S. definition of “income,”(3) to face an arbitrary I.R.S. denial of normal business deductions(4) and then not be allowed to appeal that decision because the I.R.S. ignores the Idaho Constitution while he is in legislative session…is a glimpse into the future of an Obama nation. Remember Obama’s request for 16,000 additional I.R.S. agents?

Not only are Rep. Hart’s accusers in error, but the entire situation substantiates the very reason legislative immunity was written into the constitution in the first place…to prevent political persecution.

Matt Shea is an Army combat veteran, practicing attorney, and State Representative for the 4th Legislative District in Spokane Valley, Washington.

http://en.wikipedia.org/wiki/Nixon’s_Enemies_List

http://archive.newsmax.com/archives/articles/2002/4/22/200136.shtml

http://www.constitutionalincome.com/

It has been reported in the press that the IRS’s denial of 100% of Rep. Hart’s business deductions over an eight year period was political payback after Rep. Hart’s refusal to turn over the names and addresses of those who purchased his book. Now both the IRS and the Idaho Tax Commission are attempting to impose the income tax on the amount of these denied deductions which totals approximately $300,000.

Real Jobs in Idaho

Tonight, February 10th, Democrat legislators will meet at South Junior High in Boise to talk about a bad jobs bill, called iJobs.  I knew that the Democrats, notorious posers, would put forth a fake jobs bill, so I found a Republican bill that would actually create jobs.  It’s too bad that Republicans are so inept at self-promotion.  But, Republican jobs bills are written for the people not fame and glory.  I found a proposal and did an interview with the writer, Representative Phil Hart.

A summary of my findings follows:

Representative Hart has a plan that will create one to two thousand jobs in Idaho, according to the Commerce Department.  His plan centers around expanding an existing refinery in Salmon to handle production from a silver mine in Bunker Hill.  All silver mined in Idaho must currently be sent overseas for processing, because Idaho has maxed out the production capacity of current facilities.

His plan also includes remediation of a state-owned smelter pond, which contains $100 million dollars of Indium, a key element in the production of solar panels.  The EPA built the pond 18 years ago with a 20-year liner.

Under this jobs bill, $40 million in taxes from the Indium cleanup would go directly to connecting the Bunker Hill mine to rail lines, saving wear and tear on local roads.  This is a big advantage of the plan.  Northern Idaho roads can’t stand over use, especially when all the stimulus money and ITD funds go to southwest Idaho.

The bill sends the signal that Idaho is mining friendly and serious about saving the environment from government.  Finally we have a legislator with concrete plans to breathe life into the languishing Idaho economy.