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, ) PETITION
Petitioner At Law ) for a Peremptory Writ of Mandamus
) to compel the performance
v. ) of a duty owed to
) Petitioner
BARBARA BOXER, )
Respondent at Law )
)
)
_____________________________)
TO: Rep. Barbara Boxer
U.S. Senator-elect
3301 Kerner Boulevard
San Rafael, California Republic
TO: Rep. Barbara Boxer
U.S. Senator-elect
307 Cannon Building
Washington, District of Columbia
(see next page for)
(Table of Contents)
# # #
Table of Contents
Contents Pages
ORDER TO ISSUE a Peremptory Writ of Mandamus
to compel the performance of a duty owed to Petitioner 2
PEREMPTORY WRIT OF MANDAMUS
to compel the performance of a duty owed to Petitioner 2
NOTICE OF PETITION for a Peremptory Writ of Mandamus
to compel the performance of a duty owed to Petitioner 3
PETITION for a Peremptory Writ of Mandamus
to compel the performance of a duty owed to Petitioner 11
CERTIFICATE OF SERVICE by Randy Hillner
(acknowledgement refused by Mr. Sam T. Chapman) 1
CERTIFICATE OF SERVICE BY MAIL by Randy Hillner 1
RECEIPT FOR CERTIFIED MAIL 1
MEMORANDUM of Points and Authorities
in support of Supreme Court Jurisdiction 10
AFFIDAVIT of Petitioner in Support of Petition
for a Peremptory Writ of Mandamus
to compel the performance of a duty owed to Petitioner 14
AFFIDAVIT OF WILLIAM J. BENSON 4
COPY CERTIFICATION BY DOCUMENT OWNER 1
AFFIDAVIT OF GODFREY LEHMAN with attachments 8
COPY CERTIFICATION BY DOCUMENT OWNER 1
AFFIDAVIT OF GREGORY B. ALEXANDER 2
COPY CERTIFICATION BY DOCUMENT OWNER 1
AFFIDAVIT OF KIRBY FERRIS with attachments 19
COPY CERTIFICATION BY DOCUMENT OWNER 1
NOTICE OF ALIAS and Common Abbreviation of Petitioner's Name 1
REQUEST for permissive judicial notice of matters
listed in Section 452 of the California Evidence Code 2
LIST OF EXHIBITS in support of Petitioner's Affidavit 3
# # #
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, ) PETITION
Petitioner At Law ) for a Peremptory Writ of Mandamus
) to compel the performance
v. ) of a duty owed to
) Petitioner
BARBARA BOXER, )
Respondent at Law )
)
)
_____________________________)
TO: Rep. Barbara Boxer
U.S. Senator-elect
3301 Kerner Boulevard
San Rafael, California Republic
TO: Rep. Barbara Boxer
U.S. Senator-elect
307 Cannon Building
Washington, District of Columbia
Jurisdiction and venue are grounded by virtue of CCP 1085,
and Article 6, Section 10 of the California Constitution (1879),
to wit: "The Supreme Court [has] original jurisdiction in
proceedings for extraordinary relief in the nature of mandamus,
certiorari, and prohibition." [emphasis added]
Petition for Peremptory Writ of Mandamus:
Page 1 of 11
The Supreme Court will exercise original jurisdiction in
mandamus in appropriate cases when the issues presented are of
great public importance and must be resolved promptly. If these
criteria are satisfied, the existence of an alternative appellate
remedy will not preclude this court's original jurisdiction.
Clean Air Constituency v. California State Air Resources Board,
523 P.2d 617, 620.
Great Public Importance
The preponderance of material evidence now proves that,
since 1913, untold millions of California State Citizens were
induced to pay income taxes under a government authority which
simply did not exist. Repeated statements by federal government
officials have cited the so-called 16th Amendment as their
general authority to impose taxes on the incomes of individuals
and corporations. The California State individual income tax is
predicated upon the existence of federal income tax liabilities.
Prompt Resolution Required
Barbara Boxer was recently elected to the United States
Senate by the People of California. In January of 1993, she will
once again be required to take a solemn oath to uphold and defend
the United States Constitution against all enemies, both foreign
and domestic. 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 material evidence should prove that the exact
provisions of that Constitution are still in doubt.
Petition for Peremptory Writ of Mandamus:
Page 2 of 11
STATEMENT OF FACTS
Respondent is currently a public official serving in the
House of Representatives, in the Congress of the United States,
Washington, D.C., and this November was elected to represent
California in the United States Senate.
By virtue of this public office, Respondent now represents
the People of the Sixth (6th) Congressional District in the
California Republic.
The 6th Congressional District covers Marin and Sonoma
Counties, in the California Republic.
In order to enjoy an office of honor and public trust, and
in order to receive any pay for services rendered in this office,
Respondent was required by law to complete and sign the following
"Oath of Office":
I, Barbara Boxer, do solemnly swear (or affirm) that I will
support and defend the Constitution of the United States
against all enemies, foreign and domestic; that I will bear
true faith and allegiance to the same; that I take this
obligation freely, without any mental reservation or purpose
of evasion; and that I will well and faithfully discharge
the duties of the office on which I am about to enter. So
help me God.
_____________________ ____________________________________
(Date) (Signature)
[from U.S. House of Representatives, Oath of Office]
["Payroll and Benefits Information" (see Exhibit A)]
Respondent did sign and date this same "Oath of Office", as
required by law, and did file same with the Office of Finance,
263 Cannon House Office Building, Washington, District of
Columbia, USPS Postal Zone 20515.
Petition for Peremptory Writ of Mandamus:
Page 3 of 11
Having signed this "Oath of Office", Respondent did thereby
enter a written contract to perform certain contractual duties,
first and foremost among which is to support and defend the
Constitution of the United States.
On the evening of August 22, 1990, at a scheduled community
meeting sponsored by Respondent in a building known as the Dance
Palace in Point Reyes Station, California Republic, Petitioner
presented Respondent with substantive evidence which supports
Petitioner's allegation that the so-called 16th Amendment to the
Constitution of the United States was never lawfully ratified.
At this same community meeting, Petitioner presented
Respondent with substantive evidence which supports Petitioner's
allegation that a massive fiscal fraud has been perpetrated by
the federal government upon the People of the California
Republic, a massive fiscal fraud that began in the year 1913 and
continues until today.
At this same community meeting, Petitioner's colleague
publicly requested Respondent to examine the material evidence
which supports Petitioner's allegations that the so-called 16th
Amendment was never lawfully ratified and that a massive fiscal
fraud has been perpetrated upon the People of the California
Republic as a result.
In front of a large audience, with standing room only,
estimated by Petitioner to be approximately 400 people present,
Respondent did publicly agree to examine the material evidence
which supports Petitioner's allegation that the so-called 16th
Amendment was never lawfully ratified.
Petition for Peremptory Writ of Mandamus:
Page 4 of 11
By reason of this spoken agreement, Respondent did enter
into a verbal contract binding her specific performance to
examine the material evidence which supports Petitioner's
allegation that the so-called 16th Amendment was never lawfully
ratified.
After receipt of three written petitions filed by Petitioner
under authority of the First Amendment to the Constitution of the
United States and delivered via Registered U.S. Mail, and after
receipt of related affidavits signed and delivered by Petitioner
via Certified U.S. Mail, Respondent has fallen completely silent
in the matter of the so-called 16th Amendment.
At no time between August 22, 1990 and now has Respondent
demonstrated to Petitioner that Respondent has examined any of
the material evidence which impugns the so-called 16th Amendment.
Respondent has fallen silent even though, and in spite of
the fact that, there was a legal and moral duty for Respondent to
act.
Respondent's silence has induced Petitioner to believe that
the available material evidence constitutes conclusive proof that
the so-called 16th Amendment was never ratified.
Respondent's silence has induced Petitioner to act as if the
so-called 16th Amendment never became a law and was as much a
nullity as if it had been the act or declaration of an
unauthorized assemblage of individuals.
Petitioner filed a formal request for an investigation by
the Marin County Grand Jury, which declined to investigate.
Petition for Peremptory Writ of Mandamus:
Page 5 of 11
Petitioner has continued to investigate the matter with
extraordinary diligence and to seek further assistance from
Representative Dan Rostenkowski, Chairman, Committee on Ways and
Means, House of Representatives, Washington, District of
Columbia. Mr. Rostenkowski also fell silent.
Petitioner has filed formal notices of fraud and deception
on all 50 Governors of the Sovereign States of the Union. A
total of 42 Governors fell silent.
Petitioner has filed related affidavits and other formal
documents with the Secretary of the Treasury in Washington,
District of Columbia; the Commissioner of Social Security in
Baltimore, Maryland; the Department of Vital Records in Boston,
Massachusetts; the California Secretary of State in Sacramento,
California; United States Senators John Seymour and Alan
Cranston in Washington, District of Columbia; and unnamed
officials of the Internal Revenue Service Center in Ogden, Utah.
Petitioner's own investigation of the related federal case
law shows that federal courts do consider the failed ratification
of the so-called 16th Amendment to be a "political" question. In
contrast, other members of the House and Senate have signed
letters to constituents which state that the matter should be
decided by the federal courts. This is a vicious circle, without
any plain, speedy and adequate remedy in the ordinary course of
law.
Finally, Petitioner's request to the Marin County Superior
Court for a Peremptory Writ of Mandamus was denied by the
Honorable Gary W. Thomas on August 17, 1992 (see attached).
Petition for Peremptory Writ of Mandamus:
Page 6 of 11
Petitioner now feels that he has made a good faith attempt
to exhaust his administrative remedies in this matter, and that
he has, in fact, exhausted all ordinary remedies heretofore
available to him. There is no plain, speedy and adequate remedy,
in the ordinary course of law, now left open to Petitioner.
LAW
Respondent's duty to support the Constitution of the United
States is a lawful prerequisite to serving as an official elected
to the Senate and the House of Representatives. It is also a
prerequisite to receiving pay for serving as a Member of the
Senate and as a Member of the House of Representatives. This
duty is clearly stated in Article 6, Clause 3 of the Constitution
of the United States, as follows:
The Senators and Representatives before mentioned, and the
Members of the several State Legislatures, and all executive
and judicial Officers, both of the United States and of the
several States, shall be bound by Oath or Affirmation, to
support this Constitution ....
[United States Constitution, Article 6, Clause 3]
[emphasis added]
This duty is also specified in the federal statute which
defines the exact wording of the Oath of Office, as follows:
An individual, except the President, elected or appointed to
an office of honor or profit in the civil service or
uniformed services, shall take the following oath: "I, AB,
do solemnly swear (or affirm) that I will support and defend
the Constitution of the United States against all enemies,
foreign and domestic; that I will bear true faith and
allegiance to the same; that I take this obligation freely,
without any mental reservation or purpose of evasion; and
that I will well and faithfully discharge the duties of the
office on which I am about to enter. So help me God."
[5 U.S.C. 3331, emphasis added (see Exhibit A)]
Petition for Peremptory Writ of Mandamus:
Page 7 of 11
The exact same wording of the Oath of Office is found on the
form entitled "Oath of Office, Payroll and Benefits Information",
which must be signed before an elected Representative can receive
pay from the Office of Finance in the House of Representatives
(see Exhibit A).
A voluntary acceptance of the benefits of a transaction is
equivalent to a consent to all the obligations arising therefrom,
so far as the facts are known, or ought to be known, to the
person accepting, per CCC 1589.
An express contract is one the terms of which are stated in
words, per CCC 1620. An implied contract is one the existence
and terms of which are manifested by conduct, per CCC 1621.
Respondent has a duty, even without any verbal contract, to
abstain from injuring the person or property of another, or
infringing upon any of his fundamental rights, per CCC 1708.
Having made an oral promise which constitutes a binding
contract, Respondent also has a legal obligation to perform all
terms and conditions specified in that contract. All contracts
may be oral, except such as are specially required by statute to
be in writing, per CCC 1622.
An obligation arises either from: (1) the contract of the
parties, or (2) the operation of law, per CCC 1428. The present
action involves both an oral contract by Respondent, and the
operation of laws as specified herein, which laws required
Respondent to sign and execute a specific written contract and to
perform the specific duties listed in said contract.
Petition for Peremptory Writ of Mandamus:
Page 8 of 11
An obligation is a legal duty, per CCC 1427. An obligation
is extinguished only by full performance by Respondent of all
terms and conditions thereof, per CCC 1473.
Service of this Writ may be expressly ordered by any means,
by order of this Court, under authority of CCP 1096. Duty to
issue the Writ is mandatory, by virtue of CCP 1086.
Other relevant authorities follow:
One who willfully deceives another with intent to induce him
to alter his position to his injury or risk, is liable for
any damages which he thereby suffers.
[CCC 1709, emphasis added]
A deceit, within the meaning of [CCC 1709 supra], is either:
... (3) the suppression of a fact, by one who is bound to
disclose it, or who gives information of other facts which
are likely to mislead for want of communication of that
fact; or, (4) a promise, made without any intention of
performing it.
[CCC 1710, emphasis added]
Silence can only be equated with fraud where there is a
legal or moral duty to speak or where an inquiry left
unanswered would be intentionally misleading.
[U.S. v. Tweel, 550 F.2d 297, 299 (1977) emphasis added]
[quoting U.S. v. Prudden, 424 F.2d 1021, 1032 (1970)]
Silence is a species of conduct, and constitutes an implied
representation of the existence of the state of facts in
question, and the estoppel is accordingly a species of
estoppel by misrepresentation. [cite omitted] When silence
is of such a character and under such circumstances that it
would become a fraud upon the other party to permit the
party who has kept silent to deny what his silence has
induced the other to believe and act upon, it will operate
as an estoppel.
[Carmine v. Bowen, 64 A. 932 (1906)]
[emphasis added]
Petition for Peremptory Writ of Mandamus:
Page 9 of 11
A practice condemned by the Constitution cannot be saved by
historical acceptance and present convenience.
[U.S. v. Woodley, 726 F.2d 1328, 1338 (1983)]
[emphasis added]
It is obviously correct that no one acquires a vested or
protected right in violation of the Constitution by long
use, even when that span of time covers our entire national
existence and indeed predates it.
[Walz v. Tax Commission of New York City,]
[397 U.S. 664, 678 (1970), emphasis added]
STATEMENT OF DAMAGES
Respondent owed a duty to Petitioner. This duty was and is
the property of Petitioner, and this property was unlawfully
withheld by Respondent.
REMEDY DEMANDED
I pray this Honorable Supreme Court to order:
(1) that a Writ of Mandamus issue upon Respondent,
compelling her At Law to witness, under direct supervision of
this Honorable Court, any and all material evidence which impugns
the ratification of the so-called 16th Amendment to the
Constitution of the United States, and
(2) that Petitioner be awarded his costs and disbursements
in this action.
Presented this twentieth day of November, 1992 Anno Domini.
_________________________________________
Mitchell P. Modeleski, Sui Juris
Sovereign Petitioner At Law
All Rights Reserved Without Prejudice
Petition for Peremptory Writ of Mandamus:
Page 10 of 11
Acknowledgement
CALIFORNIA STATE/REPUBLIC )
) Subscribed, Sworn and Sealed
MARIN COUNTY )
On this twentieth (20th) day of November, 1992 Anno Domini,
Mitchell P. Modeleski did personally appear before me, and is
known to be the one described in, and who executed, the foregoing
instrument, and acknowledged that he executed the same as his
free act and deed as a Citizen/Sovereign in this above named said
State of the Union. Purpose of notary public is for
identification only, and not for granting jurisdiction to any
government agency.
_____________________________________
Notary Public
Petition for Peremptory Writ of Mandamus:
Page 11 of 11
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People v. Boxer