Mitchell P. Modeleski, Sui Juris
c/o General Delivery
San Rafael, California state


In His Own Stead








         IN THE SUPREME COURT OF THE STATE OF CALIFORNIA




THE PEOPLE OF THE CALIFORNIA )  Number S-030016
REPUBLIC, ex relatione,      )
                             )
MITCHELL P. MODELESKI,       )             MEMORANDUM
Petitioner At Law            )      of Points and Authorities
                             )            in support of
        v.                   )     Supreme Court Jurisdiction
                             )
BARBARA BOXER,               )
Respondent At Law            )
                             )
_____________________________)


     COMES NOW  MITCHELL P.  MODELESKI,  Petitioner  At  Law,  to

present this  Memorandum of  Points and  Authorities to  argue in

support of  the jurisdiction of this Honorable Court.  The Law as

stated in  the original  "Petition" is  incorporated herewith and

made an  explicit part  of this  Memorandum, by  reference.  This

Memorandum  presents   further  points   and  authorities   which

constitute grounds  both for and against the Court's jurisdiction

in the  matter at  hand.   Petitioner concludes  therefrom that a

difficult but  necessary balance must be struck by this Honorable

Court, in  order to  preserve  the  fundamental  substantive  and

procedural rights of the People of the California Republic.


       Memorandum in Support of Jurisdiction: page 1 of 10


                 ARGUMENTS AGAINST JURISDICTION

     A Representative  is an officer not of the State, but of the

federal government,  Ekwall v.  Stadelman,  30  P.2d  1037,  1040

(1934).   The common  understanding is that a member of the House

of Representatives is a legislative officer of the United States.

A member  of Congress  is a  civil officer  of the United States,

within the  purview of the law requiring the taking of an oath of

office, Lamar  v. United  States, 241  U.S.  103,  36  S.Ct.  535

(1916).

     A Congressman,  whether elected  from a district or from the

State at  large, is  a federal and not a State officer.  Election

to the  office does not, in and of itself, constitute membership.

One does  not become  a member  of Congress  until s/he takes the

oath of office as a U.S. Senator or Representative, 91 C.J.S. 10.

Representatives are  the creation  of the Constitution.  They are

purely federal officers over which a State of the Union, as such,

has no control:

     A member  of Congress  is not  a state officer.  He does not
     represent the state.  He represents the people of the United
     States in  the district  from which  he is elected.  He is a
     United States  officer.  The states were in existence before
     "We,  the   People  of   the  United  States,"  adopted  the
     Constitution.   Each state  in  turn  chose  to  accept  the
     limitations of  its sovereignty imposed upon it when it came
     under the  Constitution.   Congressmen were  the creation of
     the Constitution  -- purely  federal officers  over which  a
     state has no control.

         [State ex rel. Carroll v. Becker, 45 S.W. 2d 533 (1932)]
            [affirmed 52 S.Ct. 402, 285 U.S. 380, emphasis added]

     Mandamus will  not issue  from a  federal court  to a  State

court or  its officers,  and it  seems settled that a State court

has no  jurisdiction to  direct, compel,  or otherwise control by


       Memorandum in Support of Jurisdiction: page 2 of 10


mandamus the  performance by  a federal officer of a duty imposed

by a federal statute.  A State court has no jurisdiction to issue

a writ  of mandamus to an officer of the United States, according

to the  authorities mentioned in 52 Am Jur 2d, Section 12, citing

Bradstreet v.  Cooper, 6  Pet (US)  774, 8  L Ed  577 (1832), and

M'Clung v. Silliman, 6 Wheat (US) 598, 5 L Ed 340 (1821).


                   ARGUMENTS FOR JURISDICTION

     A court of this State may exercise jurisdiction on any basis

not inconsistent with the Constitution of this State, or with the

Constitution of the United States, per CCP 410.10.

     Authority to  issue writs  of mandamus  is  vested  in  this

Honorable Court  by virtue  of the  California State Constitution

(see West's  Ann.Cal.Const., Article  6, Section  10).   There is

additional  authority   for   the   proposition   that   such   a

constitutional grant can be exercised upon any public official:

     A constitutional  grant of power to  the courts of the state
     to issue  writs of  mandamus vests in them full and complete
     authority to  issue such writs to enforce the performance of
     the  full  and  complete  duty  devolved  by  law  upon  any
     official.
                           [State ex rel. Buckwalter v. Lakeland]
                                 [112 Fla 200, 150 So 508 (1933)]
                                                 [emphasis added]

     Close examination  of Bradstreet supra reveals that the U.S.

Supreme Court  did grant  the petition  for a  writ  of  mandamus

against the  district judge  of the  District Court of the United

States for  the Northern  District of  New York.    In  this  one

regard, American Jurisprudence as cited above is either in error,

or it is, at best, misleading.


       Memorandum in Support of Jurisdiction: page 3 of 10


     In the  case of  M'Clung supra, the U.S. Supreme Court ruled

that the  Ohio State  Supreme Court  had no  authority to issue a

mandamus against  the register  of a  federal land  office.   The

question decided in that case concerned the power of State courts

over officers of the federal government, employed in disposing of

federal land  that was reserved to the "United States" within the

several States.  The high Court's holding is instructive:

     There is  but one  shadow of  a ground on which such a power
     can be  contended  for,  which  is  the  general  rights  of
     legislation which  the states  possess over  the soil within
     their respective territories.

       [M'Clung v. Silliman, 6 Wheat (US) 598, 5 L Ed 340 (1821)]
                                                 [emphasis added]

     Thus, there are grounds on which the States of the Union can

claim the  authority to  issue writs  of mandamus against federal

officers, and these "grounds" are the territory and property over

which the  50 States  exercise their  own sovereign jurisdiction.

For a concise treatment of State territorial jurisdiction, and of

federal jurisdiction  within the  fifty united States of America,

see Chapter  11 of  The Federal  Zone (Exhibit  "R") and  all the

citations found  therein.   In M'Clung, the high Court went on to

define the following key rule concerning a federal officer:

     ... [H]is  conduct can  only be controlled by the power that
     created him;   since, whatever doubts have from time to time
     been suggested, as to the supremacy of the United States, in
     its legislative,  judicial or  executive powers,  no one has
     ever contended  its supreme  right to  dispose  of  its  own
     property in its own way.

       [M'Clung v. Silliman, 6 Wheat (US) 598, 5 L Ed 340 (1821)]
                                                 [emphasis added]


       Memorandum in Support of Jurisdiction: page 4 of 10


     Petitioner argues  that Respondent's  conduct can and should

be controlled by the People who elected Respondent to serve them.

In our constitutional form of government, the People are now, and

have always been, Sovereign.  As such, they are the source of all

governmental authority  in America.  As "the People of the United

States" of  America, they  are the power which ultimately created

the offices of "Representative" and "Senator" to which Respondent

was elected:

     When  we   consider  the   nature  and  the  theory  of  our
     institutions of  government, the  principles upon which they
     are supposed to rest ... we are constrained to conclude that
     they do  not mean  to leave  room for the play and action of
     purely personal and arbitrary power.  Sovereignty itself is,
     of course,  not subject  to law,  for it  is the  author and
     source of  law;   but in  our system, while sovereign powers
     are delegated  to the  agencies of  government,  sovereignty
     itself remains  with the  people, by  whom and  for whom all
     government exists and acts.

        [Yick Wo v. Hopkins, 118 U.S. 356 (1886), emphasis added]

     Moreover, Petitioner  is not contesting the supreme right of

the "United  States" to  dispose of  its own property, in its own

way.  Petitioner is herein asserting his own fundamental right to

dispose of  his own  property, in his own way, since Respondent's

duty to  Petitioner is a property which belongs to Petitioner and

which Petitioner alleges that Respondent has unlawfully withheld.

     This Honorable  Court will  please take judicial notice that

Respondent represents  the People  of  the  California  Republic;

Respondent does  not represent  the State  of California  per se.

Respondent does  represent the Sixth Congressional District.  The

People and  the property  within the 6th C.D. both lie inside the

territorial jurisdiction of this Honorable Court.


       Memorandum in Support of Jurisdiction: page 5 of 10


     Even though  a State,  as such,  has no  control over purely

federal officers  (see supra),  the present  action is  not being

brought in  the name  of the  State of  California.   It is being

brought in the name of the People of the California Republic.  As

a public  servant, Respondent is a servant to this "public", this

Republic of  People whom  she was elected to serve.  Accordingly,

the People  of the  California Republic are Respondent's Masters.

If Masters  have no  control whatsoever over their servants, then

the natural  order of  things has been turned on its head, to the

great detriment of the many, and to the great benefit of the few.

     Respondent thus  owes a  duty to  Petitioner.  This duty was

and is  the property  of Petitioner,  acting in his capacity as a

Sovereign Citizen of the California Republic.  To the extent that

this property was and is being unlawfully withheld by Respondent,

the Supreme  Court  has  preeminent  authority  to  hear  matters

affecting the  substantial and fundamental property rights of the

Petitioner and  to guarantee  both a substantive and a procedural

due process,  in a  Court of Law, to resolve any and all disputes

over those substantial and fundamental property rights.

     Federal Appellate  Courts have  consistently ruled  that the

evidence which  impugns the  ratification of  the so-called  16th

Amendment is  in the  nature of  a "political"  question.   For a

Ninth Circuit  example, see U. S. v. Stahl, 792 F.2d 1438 (1986);

others  include  Stubbs  v.  Commissioner,  797  F.2d  936  (11th

Circuit), U.S. v. Thomas, 788 F.2d 1250 and U.S. v. Ferguson, 793

F.2d 828  (both 7th  Circuit), and Sisk v. Commissioner, 791 F.2d

58, 60  (6th Circuit),  all in  the year 1986.  Petitioner infers


       Memorandum in Support of Jurisdiction: page 6 of 10


therefrom that  the matter  should be  brought,  and  indeed  has

already been brought to the attention of all members of the House

of Representatives,  at the very least, but thus far to no avail.

The U.S. Supreme Court has yet to rule on this question.

     Federal  District   Courts  have  been  presented  with  the

evidence against  the 16th  Amendment as  a defense  in  criminal

trials.   The conviction  of William  J. Benson  in the  case  of

United States v. William J. Benson (see Exhibits "U" and "V") was

reversed by  the Seventh  Circuit Court  of Appeals,  but on  the

ground that an IRS summary witness incorrectly identified himself

as an  "expert" witness, see U.S. v. Benson, 941 F.2d 598 (1991).

The federal  district court had previously denied Benson's motion

for an  evidentiary  hearing  to  introduce  a  total  of  17,000

certified documents  which Benson  had assembled  to  impugn  the

ratification of  the so-called  16th Amendment.    By  opting  to

utilize a  relatively minor  technicality, the  Seventh Circuit's

decision to  reverse Benson's  conviction  thus  sidestepped  the

material evidence which was available then, and is available now.

     Congress  has   granted  original  jurisdiction  to  Federal

District Courts to hear any action in the nature of a mandamus to

compel an  officer of the United States to perform a duty owed to

a plaintiff,  28 U.S.C.  1361.  However, in the face of the above

federal case  law, and  for other  reasons  which  Petitioner  is

willing to  place into  evidence, Petitioner  is now persuaded to

believe that the lower federal courts are presently unsympathetic

to the  substantial issues  of Law  and fact  being raised in the

matter at hand.


       Memorandum in Support of Jurisdiction: page 7 of 10


     Moreover, Petitioner  hereby offers  to prove, and expresses

his willingness  to submit  evidence and  call an  expert witness

willing  to   testify,  that  the  California  Legislature  never

lawfully ratified  the 16th  Amendment to the Constitution of the

United States.   The  California State Constitution declares that

the Constitution  of the  United States is the Supreme Law of the

land. (See  West's Ann.Cal.Const.,  Article 3,  Section 1.).  The

Supreme Court  of the  State of  California thus retains original

jurisdiction  authorizing   this  Honorable   Court  to  exercise

judicial review  of all  acts and  omissions  of  the  California

Legislature, particularly  when the matter does involve certified

historical documents  which evidence  the Legislature's  acts  in

deciding for  or against  a proposal  to amend  that Supreme Law.

The evidence  in question is a matter of public records for which

the California Secretary of State is the official custodian.

     Finally, it  is quite  simply impossible for the Respondent,

or any  other public  officials in  America for  that matter,  to

perform a  solemn duty to support the United States Constitution,

if the  weight of  available material  evidence should prove that

the exact provisions of that Constitution are still in doubt!

     It is  a universal  principle of  the Common  Law that,  for

every wrong,  there is  a remedy and a due process to effect that

remedy.   Should this  Honorable State  Court refuse  to hear the

matter, on  grounds that  it lacks  the  necessary  jurisdiction,

Petitioner believes  that he  will be  left without any remedy in

Law, for the several reasons stated above, and that there will be

a demonstrable failure of justice in that event.


       Memorandum in Support of Jurisdiction: page 8 of 10


                           CONCLUSION

     Petitioner concludes  that a  direct conflict  exists  among

competing authorities  both for  and against  the jurisdiction of

this Honorable Court.  A resolution of this conflict is necessary

to enforce  the fundamental  rights of  the Petitioner and of the

People of  the  California  Republic.    Historically,  both  the

executive   and   legislative   branches   of   government   have

demonstrated  their  consistent  unwillingness  to  confront  the

implications of  the fraud which is alleged to have occurred when

the so-called  16th Amendment was declared ratified.  This leaves

the judicial branch as the last and only resort now available.

     But, the  lower federal  courts have also demonstrated their

consistent unwillingness to admit into evidence all of the 17,000

certified documents  which impugn  the so-called  16th Amendment.

This leaves  but one proper recourse in Law -- the Supreme Court.

Should this  Honorable Court  deny jurisdiction  in the matter at

hand, Petitioner will be left to swirl about a vicious circle and

will thereby  be denied  the  remedy  which  is  his  right,  and

possession, under the Common Law of the United States of America:

     But the fundamental rights to life, liberty, and the pursuit
     of happiness,  considered  as  individual  possessions,  are
     secured by  those maxims of constitutional law which are the
     monuments showing  the victorious  progress of  the race  in
     securing to  men the  blessings of  civilization  under  the
     reign of  just and  equal  laws,  so  that,  in  the  famous
     language of the Massachusetts Bill of Rights, the government
     of the  commonwealth "may be a government of laws and not of
     men."   For, the  very idea that one man may be compelled to
     hold his life, or the means of living, or any material right
     essential to  the enjoyment  of life,  at the  mere will  of
     another, seems  to  be  intolerable  in  any  country  where
     freedom prevails, as being the essence of slavery itself.

        [Yick Wo v. Hopkins, 118 U.S. 356 (1886), emphasis added]


       Memorandum in Support of Jurisdiction: page 9 of 10


In that event, there will be a demonstrable failure of justice.  

     Petitioner concludes from the above discussion of points and

authorities that a difficult but necessary balance must be struck

by this  Honorable Court,  in order  to preserve  the fundamental

substantive and procedural rights of the People of the California

Republic and  of the  Petitioner, by  reason of  his being one of

those People,  and by reason of his relationship to those People,

i.e., ex relatione as a member of the Sovereignty by birth.

     Petitioner hereby moves this Honorable Court to exercise its

original jurisdiction  to enforce the fundamental substantive and

procedural rights  of the  Petitioner, and  of the  People of the

California Republic,  by giving  its full  consideration  to  the

extraordinary remedy requested by Petitioner on behalf of all the

People of  the California  Republic and, in particular, on behalf

of the  People  of  the  Sixth  Congressional  District,  in  the

Counties of Marin and Sonoma.


     Thank you for your kind and careful consideration.


Presented this first (1st) day of December, 1992 Anno Domini.


_________________________________________________________________
Mitchell P. Modeleski, Sui Juris                           (Date)
Sovereign Petitioner At Law
All Rights Reserved Without Prejudice


      Memorandum in Support of Jurisdiction: page 10 of 10


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People v. Boxer