Paul Andrew Mitchell, Sui Juris
c/o UPS PMB #332
501 W. Broadway, Suite “A”
San Diego 92101
CALIFORNIA, USA
tel: (619) 234-5252 (messages)
fax: (619) 234-5272
without Prejudice
Superior Court of California
San Diego County
Paul Andrew Mitchell, ) Case No. GIC807057
)
Plaintiff, ) NOTICE OF MOTION AND
v. ) MOTION FOR PRELIMINARY INJUNCTION
) BARRING REMOVAL INTO FEDERAL COURT
AOL Time Warner, Inc., et al., )
) Date: June 13, 2003 A.D.
Defendants. )
) Time: 2:00 p.m.
)
_________________________________) Courtroom: 71 (telephonic hearing)
COMES NOW Paul Andrew Mitchell, Plaintiff in the above entitled case, Citizen of California, Private Attorney General and Federal Witness, to petition this honorable Court for a PRELIMINARY INJUNCTION barring removal of the instant case into any federal courts, and to provide formal Notice to all interested parties of the hearing to consider same in the Courtroom and on the date and time as shown above, or as soon thereafter as the matter can be heard.
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INCORPORATION OF SUPPLEMENTS
Concurrently herewith, Plaintiff files and incorporates by reference the following seven (7) SUPPLEMENT’s to the instant MOTION, with their corresponding URL’s where electronic copies of these same pleadings can be easily viewed on the Internet, to wit:
# Description
--- ----------------------------------------------------------
(1) OPENING BRIEF in USA v. Gilbertson, Eighth Circuit (1997):
http://www.supremelaw.org/cc/gilberts/opening.htm
(filed concurrently herewith)
(2) OPENING BRIEF in Mitchell v. AOL Time Warner, Inc. et al., Ninth Circuit (2002):
http://www.supremelaw.org/cc/aol/opening.htm
(already filed as Exhibit N-86)
(3) Appellant’s REPLY to AOL Time Warner, Inc. and to the Individual AOL Defendants, in Mitchell supra:
http://www.supremelaw.org/cc/aol/reply.htm
(already filed as Exhibit N-108)
(4) Appellant’s REPLY to Carnegie Mellon University, in Mitchell supra:
http://www.supremelaw.org/cc/aol/reply.cmu.htm
(already filed as Exhibit N-109)
(5) Appellant’s REPLY to the University Defendants in Mitchell supra:
http://www.supremelaw.org/cc/aol/reply.univ.htm
(already filed as Exhibit N-112)
(6) PETITION FOR REHEARING EN BANC in Mitchell supra:
http://www.supremelaw.org/cc/aol/enbanc.htm
(already filed as Exhibit N-126)
(7) APPLICATION FOR WRIT OF QUO WARRANTO in Mitchell supra:
http://www.supremelaw.org/cc/aol/quowarranto.htm
(already filed as Exhibit N-127)
This honorable Superior Court is strongly encouraged to take full advantage of the speed and accessibility provided by all Internet copies of the above pleadings and working hyperlinks, particularly using a broadband connection to the Internet, e.g. DSL or cable modem.
SUMMARY OF PERTINENT HISTORY
In 1996 A.D., Plaintiff Paul Andrew Mitchell (“Mitchell”) was authorized by the United States District Court in Tucson, Arizona, to defend a trust against a SUBPOENA allegedly served upon it by a panel of federal citizens claiming to exercise the powers of a lawfully convened federal grand jury. See 28 U.S.C. 1861 et seq.
To challenge many of that panel’s legal presumptions, Mitchell submitted requests under the federal Freedom of Information Act for the credentials of certain agents and employees of the “United States” (federal government) who had touched that case in various ways.
After Mitchell submitted a proper and timely FOIA appeal for those credentials, presiding U.S. District Judge John M. Roll ruled that the USDC was not the proper forum to bring a request under the Freedom of Information Act (“FOIA”). See 5 U.S.C. 552(a)(4)(B).
Because this ruling appeared to conflict with the court of original jurisdiction which had already been identified in the Citizen’s Guide to the FOIA and Privacy Act, as published by the Government Printing Office in Washington, D.C., Mitchell submitted a formal request that Judge Roll clarify that particular ruling. But, Judge Roll never responded to that request for clarification.
This sparked Mitchell’s intellectual curiosity to such an extent, it remains as strong today as it was when it began in 1996.
What followed from that one, relatively isolated and seemingly insignificant ruling has grown into a major research project, and an equally significant series of court cases, which now clearly reveal that there are two (2) entirely separate and distinct classes of federal district courts in the American court system.
The first class of federal district courts are called constitutional courts, because they originate in Article III of the U.S. Constitution. See the Arising Under Clause, for example.
The second class of federal district courts are called legislative, or territorial courts, because they originate in the Territory Clause at Article IV, Section 3, Clause 2, in the U.S. Constitution. Here, Congress has municipal legislative jurisdiction.
Plaintiff herein argues, and formally offers to prove, that all constitutional district courts are currently vacant, and all legislative district courts are currently structured to guarantee bias and prejudice against Citizens of California who freely decline to subject themselves to the municipal jurisdiction of the United States.
THE LANHAM ACT AND THE CASE AGAINST AOL et al.
Building on many years of research and litigation, Mitchell filed a landmark copyright and trademark infringement suit in the constitutional District Court of the United States in Sacramento, California, on August 1, 2001 A.D. (hereinafter “DCUS”). Exhibit N‑1.
Count Two is a rather pivotal point in his Initial COMPLAINT in that case, because it alleges violations of a relatively unknown federal trademark law known as the Lanham Act. This Act is presently uncodified in Title 15 of the United States Code, requiring Citizens to revert to the original Statutes at Large to identify the specific federal court(s) upon which Congress conferred original jurisdiction.
The statute in question is found at 60 Stat. 440, first enacted in July of 1946 A.D. It conferred original jurisdiction on the Article III DCUS inside the Union.
The legislative United States District Court, on the other hand, was effectively “broadcasted” into the several States of the Union on June 25, 1948 A.D. Prior to that important date, the United States District Courts (“USDC”) had only been authorized by Congress to convene inside the federal Territories and the District of Columbia, where Congress enjoys exclusive legislative jurisdiction.
Moreover, the Act of June 25, 1948, particularly the codified statute at 28 U.S.C. 132, never expressly abolished the Article III DCUS previously convened inside the several States of the Union.
Thus, even if Congress had fully intended to re-define the statutory meaning of the term “district court of the United States”, such a re-definition could never have had any retroactive effects, because retroactive legislation is expressly prohibited by the ex post facto Clause, even in civil matters. On the meaning of the term “district courts”, see U.S. v. King, 119 F.Supp. 398, hn. 8 (1954).
Making matters worse, in the Act of June 25, 1948 ‑‑ at 28 U.S.C. 2072 ‑‑ Congress attempted in vain to authorize the U.S. Supreme Court to issue rules of evidence and procedure which may override or abrogate any federal statutes that predate those rules. This statute is known as the Rules Enabling Act, and the offensive section found at 28 U.S.C. 2072(b) is called the Abrogation Clause, also known as the Supersession Clause (hereinafter “Abrogation Clause”).
Not only does the Abrogation Clause violate the prohibition against ex post facto legislation; it also violates the Separation of Powers Doctrine ‑‑ by attempting to delegate legislative powers to the U.S. Supreme Court, contrary to Article I, Section 1.
The constitutionality of the Rules Enabling Act, and of the Act of June 25, 1948 in toto, are both properly challenged in Mitchell’s federal case against AOL Time Warner, Inc. et al. In particular, see Exhibits N‑19 and N‑78, sec. 7(e) in Exhibit N‑86, and Exhibit N‑94.
TERRITORIES AND THE U.S. CONSTITUTION
The last important pieces of this complex puzzle are a pair of federal statutes which expressly extended the U.S. Constitution into the District of Columbia in 1871 A.D., and then into all federal Territories in 1873 A.D. (hereinafter called “extension statutes”).
The extension statutes are immensely important, in light of a specious court doctrine which grew out of the case of Downes v. Bidwell, 182 U.S. 244 (1901). Summarizing briefly, the high Court in that case held that the Constitution of the United States, as such, did not extend beyond the limits of the States united by and under it.
Later, in Hooven & Allison v. Evatt, 324 U.S. 652 (1945) the high Court elaborated this specious doctrine by ruling that the guaranties [sic] of the U.S. Constitution extend into the insular Possessions only as Congress makes those guaranties applicable ‑‑ by enacting federal legislation to that end.
However, both cases clearly overlooked the extension statutes, which prove that the Downes Doctrine was ultra vires thirty years before the fact. What a colossal oversight by the Supreme Court!
In the present context, the extension statutes also prove that the several States of the Union may not legally be treated as federal Territories by statute, by treaty, or in any manner whatsoever.
IMPLICATIONS FOR FEDERAL ADJUDICATION
Without oversimplifying the important conclusions to be drawn from the many cases which have confronted these monumentally important issues, Plaintiff submits that federal legislative courts have simply assumed the power to enforce, or withhold, the guarantees of the U.S. Constitution as their extensive legislative “discretion” deems fit.
An excellent analog can be seen by comparing Rules 201(c) and 201(d) of the Federal Rules of Evidence. Rule 201(c) authorizes discretionary judicial notice, whereas Rule 201(d) authorizes mandatory judicial notice to be taken of adjudicative facts.
Plaintiff argues that discretionary notice is to legislative courts, as mandatory notice is to constitutional courts.
In the latter courts, enforcing all guarantees of the U.S. Constitution is a judicial imperative; in the former courts, by comparison, enforcing any of those guarantees is a matter that Congress appears to have delegated entirely to the arbitrary and often capricious whims of politically motivated federal appointees.
The arbitrary and capricious decisions that are routinely issued by federal judges, now presiding on the United States District Courts inside the several States, are manifestations of bias and prejudice that are not only prohibited by federal law, but are also ever present whenever proper challenges are mounted to federal tax or monetary policies and practices. See 28 U.S.C. 455, in chief.
Thus, despite a mountain of well pleaded and meticulously detailed arguments in Gilbertson’s OPENING BRIEF, including a seminal analysis of all federal removal statutes at Topic “E”, the Eighth Circuit in that case issued an UNPUBLISHED summary ruling, holding that the Internal Revenue Code is not vague. Then, three years later, that same Court ruled that UNPUBLISHED opinions are unconstitutional:
http://www.supremelaw.org/decs/anastasoff/99-3917EM.pdf
And, despite timely and earnest attempts to preserve that body of work and to intervene in that appeal by the People of the United States of America ex rel. Paul Andrew Mitchell, the Eighth Circuit to this day refuses to rule on Their application for intervention.
For cases supporting the proposition that legislative courts are not required to exercise the Article III guarantees required of constitutional courts, see the following: American Insurance supra; Benner v. Porter, 50 U.S. 235, 242‑243 (1850); Clinton v. Englebrecht, 80 U.S. 434, 447 (1871); Hornbuckle v. Toombs, 85 U.S. 648, 655 (1873); Good v. Martin, 95 U.S. 90, 98 (1877); Reynolds v. U.S., 98 U.S. 145, 154 (1878); The City of Panama, 101 U.S. 453, 460 (1879); Keller v. Potomac Electric Power Co., 261 U.S. 428 (1923); Federal Trade Commission v. Klesner, 274 U.S. 145 (1927); Swift v. United States, 276 U.S. 311 (1928); Ex parte Bakelite Corporation, 279 U.S. 438 (1929); Federal Radio Commission v. General Electric, 281 U.S. 464 (1930); Claiborne-Annapolis Ferry Co. v. United States, 285 U.S. 382 (1932); O’Donoghue v. United States, 289 U.S. 516 (1933); Glidden Co. v. Zdanok, 370 U.S. 530 (1962); and Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).
CONCLUSIONS
By carefully considering the essential highlights discussed above, and by reviewing all incorporated SUPPLEMENT’s with equal care and attention to all pertinent details, Plaintiff is confident that the official record now before this Superior Court of California more than conclusively proves that the Article III DCUS is presently vacant, even though it still exists inside the 50 States of the Union.
All U.S. District Judges have been commissioned to preside on the legislative USDC now extant inside those 50 States.
And, the official record here also proves conclusively that all U.S. District Judges commissioned to preside upon the Article IV USDC are so demonstrably biased and prejudiced in matters of tax and monetary reform, that they are effectively disqualified by virtue of the prohibitions expressly itemized at 28 U.S.C. 455.
This is particularly so in the instant case, because all federal judges fall, as a group, into a class of people all of whom are material witnesses to the practice of concealing the Withholding Exemption Certificate (“WEC”) from them, when they were first hired as “employees” of the federal judiciary. See section 3402(n) of the Internal Revenue Code, in chief, also known as 26 U.S.C. 3402(n):
http://www.law.cornell.edu/uscode/26/3402.html (n)
Contrary to this questionable and provably fraudulent practice, federal judges are decidedly immune from taxes on their judicial compensation by virtue of the clear and fundamental mandate found at Article III, Section 1, in the U.S. Constitution, also known as the Compensation Clause. According to Chief Justice William H. Rehnquist, all federal judges are currently paying taxes on their salaries.
But, their immunity from taxes on their salaries was upheld in a most erudite decision by the U.S. Supreme Court in Evans v. Gore, 253 U.S. 245 (1920).
Then, many decades later, in Lord v. Kelley, 240 F.Supp. 167, 169 (1965), that district judge admitted that he was ruling for the IRS, because to rule against them would surely guarantee IRS retaliation. The latter holding proves that federal judges are currently subject to undue influence, thus violating federal litigants’ fundamental Right to judges who are competent, independent and impartial.
On this latter point, compare Article 14, Section 1, in the International Covenant on Civil and Political Rights, rendered supreme Law by the Supremacy Clause in the U.S. Constitution.
All premises having been duly considered, therefore, Plaintiff respectfully requests this honorable Superior Court of California to issue a timely and lawful ORDER, to remain in force during pendency of this action, enjoining its removal into any federal district court(s) of whatever description and preserving to Plaintiff his fundamental Right to appeal this action upwards, as he deems necessary and proper, using civil remedies available to him within the California State court system.
The Undersigned hereby verifies, 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 his current information, knowledge and belief, so help me God, pursuant to 28 U.S.C. 1746(1). See Supremacy Clause in the Constitution for the United States of America, as lawfully amended, i.e. Constitution, Laws and Treaties of the United States are all the supreme Law of this Land.
Dated: April 30, 2003 A.D.
Signed: /s/ Paul Andrew Mitchell
___________________________________________
Printed: Paul
Andrew Mitchell, B.A., M.S., Sui Juris
Note: This MOTION has been filed in advance of any Defendants’ answers to the SUMMONS and Initial COMPLAINT.
As Defendants’ answers are filed and served, Plaintiff hereby agrees to serve each answering Defendant with a true and correct copy of this MOTION and incorporated SUPPLEMENT’s.
A separate PROOF OF SERVICE for each Defendant served in that fashion will be filed with the Court at that time.