Paul Andrew Mitchell, Sui Juris

c/o Forwarding Agent at:

350 – 30th Street, Suite 444

Oakland 94609-3426

CALIFORNIA, USA

 

In Propria Persona

 

All Rights Reserved

without Prejudice

 

 

 

 

 

District Court of the United States

 

Eastern Judicial District of California

 

 

Paul Andrew Mitchell,         )  No. CIV. S-01-1480 WBS DAD PS

                              )

          Plaintiff,          )  NOTICE OF MOTION,

                              )  MOTION FOR INTERLOCUTORY

     v.                       )  JUDGMENT, AND CHALLENGE

                              )  TO THE CONSTITUTIONALITY

AOL Time Warner, Inc. et al., )  OF AN ACT OF CONGRESS:

                              )

          Defendants.         )  28 U.S.C. 2201, 2072(a), 2072(b)

______________________________)

COMES NOW Paul Andrew Mitchell, Plaintiff in the above entitled case, Citizen of California, Private Attorney General and Federal Witness, to move this honorable Court for an interlocutory judgment on the applicability of rules of civil procedure promulgated under the authority at 28 U.S.C. 2072(a), to challenge the constitutionality of the statute at 28 U.S.C. 2072(b), and to provide formal Notice to all interested Party(s) of same.

The plain language of section 2072(a) compels a conclusion that the Supreme Court has no power whatsoever to prescribe rules of practice and procedure and rules of evidence for cases in the District Courts of the United States.

No such rules presently exist, as a matter of Law.

The United States district courts (“USDC”) and the district courts of the United States (“DCUS”) are decidedly not one and the same.  For example, see Balzac v. Porto Rico, 258 U.S. 298 (1922);  Mookini v. U.S., 303 U.S. 201 (1938).

The USDC is a legislative tribunal, created under authority of Article IV.  The DCUS is a constitutional court, created under authority of Article III.

The constitutionality of the Act of June 25, 1948, 62 Stat. 869, has now been properly challenged in the case of USA v. Makarian, Ninth Circuit docket number #01-50422.  See also 28 U.S.C. 1292(a)(1).

Statutes granting original jurisdiction must be strictly construed [numerous cites omitted here].  Statutes granting appellate jurisdiction should be strictly construed as well.

Accordingly, the Supreme Court has not prescribed, and can not prescribe, rules of civil procedure or rules of evidence for this honorable Court.

Confer at “Inclusio unius est exclusio alterius” in Black’s Law Dictionary, Sixth Edition.

Plaintiff is protesting Black’s Seventh Edition, because it omits any definition of the term “United States” (a monumentally stupid error).  See Hooven & Allison v. Evatt, 325 U.S. 652 (1945) (“United States” has 3 meanings).

Therefore, all pleadings and orders (past, present, or future) which attempt to enforce in this Court the Federal Rules of Civil Procedure (“FRCP”) or the Federal Rules of Evidence (“FREv”) as currently prescribed by the Supreme Court, are plainly erroneous on this essential point.

Allowing any rules to be enforced which have no applicability here will cause irreparable prejudice to Plaintiff.

An interlocutory judgment is needed to declare, as a matter of law, that the U.S. Supreme Court has no power to prescribe general rules of practice and procedure, and no power to prescribe rules of evidence, for cases in the Article III District Courts of the United States, such as the instant case.

 

CHALLENGE TO THE CONSTITUTIONALITY

OF THE STATUTE AT 28 U.S.C. 2072(b)

The offensive statute is found in the second sentence of 28 U.S.C. 2072(b), to wit:

 

All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.

 

Article I, Section 1 in the Constitution for the United States of America, as lawfully amended (“U.S. Constitution”), clearly vests all legislative Powers in the Congress of the United States.

The U.S. Constitution is the supreme Law of the Land.  See Supremacy Clause.

No legislative powers whatsoever are vested in the Executive or Judicial Branches by any constitutional provision.

A clear Separation of Powers is the Framers’ original intent by defining Articles I, II, and III as separate and distinct Articles corresponding to separate and distinct Branches of government.

It follows necessarily that section 2072(b) attempts to grant legislative power to the federal Judiciary in a manner that violates the Doctrine of Separation of Powers and is, therefore, unconstitutional.

For parallel reasons, Plaintiff cannot be compelled to adjudicate the instant COMPLAINT in a legislative tribunal, when it is His fundamental Right, under the Seventh Amendment, to proceed in an Article III constitutional court.

 

REMEDY REQUESTED

All premises having been duly considered, Plaintiff requests this honorable District Court of the United States to issue an interlocutory ORDER, JUDGMENT and DECREE, pursuant to 28 U.S.C. 2201, that:

 

(1)  the statute at 28 U.S.C. 2072(a) does not authorize the U.S. Supreme Court to prescribe general rules of practice and procedure, or rules of evidence, for the District Courts of the United States;  and,

(2)           the second sentence of the statute at 28 U.S.C. 2072(b) is unconstitutional, for violating the Separation of Powers Doctrine.

 

VERIFICATION

I, Paul Andrew Mitchell, Sui Juris, Plaintiff in the above entitled action, hereby verify under penalty of perjury, under the laws of the United States of America, without the “United States” (federal government), that the above statement of facts and laws is true and correct, according to the best of My current information, knowledge, and belief, so help me God, pursuant to 28 U.S.C. 1746(1).

 

Dated:     November 6, 2001 A.D.

 

Signed:    /s/ Paul Andrew Mitchell

           ___________________________________________

Printed:   Paul Andrew Mitchell, B.A., M.S., Sui Juris

PROOF OF SERVICE

I, Paul Andrew Mitchell, Sui Juris, hereby certify, under penalty of perjury, under the laws of the United States of America, without the “United States” (federal government), that I am at least 18 years of age, a Citizen of ONE OF the United States of America, and that I personally served the following document(s):

 

NOTICE OF MOTION,

MOTION FOR INTERLOCUTORY JUDGMENT,

AND CHALLENGE TO THE CONSTITUTIONALITY

OF AN ACT OF CONGRESS:

28 U.S.C. 2201, 2072(a), 2072(b)

 

by placing one true and correct copy of said document(s) in first class United States Mail, with postage prepaid and properly addressed to the following:

 

Clerk of Court

District Court of the United States

501 “I” Street, Suite 4-200

Sacramento 95814-2322

CALIFORNIA, USA

 

Hon. John Ashcroft                Office of the Solicitor General

Attorney General                  U.S. Department of Justice

U.S. Department of Justice        950 Pennsylvania Avenue, N.W.

10th and Constitution, N.W.        Room 5614

Washington 20530                  Washington 20530-0001

DISTRICT OF COLUMBIA, USA         DISTRICT OF COLUMBIA, USA

 

 

Courtesy copies to:

 

Ropers, Majeski, Kohn & Bentley     DeForest & Koscelnik

(failed to exhibit oaths)          (failed to exhibit oath)

1001 Marshall Street                3000 Koppers Building

Redwood City 94063                  436 Seventh Avenue

CALIFORNIA, USA                     Pittsburgh 15219

                                    PENNSYLVANIA, USA

 

Murphy Austin Adams Schoenfeld LLP  Pillsbury Winthrop LLP

(failed to exhibit oaths)          (failed to exhibit oaths)

P.O. Box 1319                       400 Capitol Mall, Suite 1700

Sacramento 95814-1319               Sacramento 95814-4419

CALIFORNIA, USA                     CALIFORNIA, USA

 

Steinhart & Falconer, LLP

(failed to exhibit oaths)

333 Market Street, 32nd Floor

San Francisco 94105-2150

CALIFORNIA, USA

 

 

Dated:   November 6, 2001 A.D.

 

 

 

Signed:  /s/ Paul Andrew Mitchell

         __________________________________________________

Printed: Paul Andrew Mitchell, Plaintiff In Propria Persona