Lonnie G. Schmidt, Sui Juris
Citizen of California State
11230-388 Gold Express Drive
Gold River 95670
CALIFORNIA, USA
tel: (916) 858-2373
fax: (916) 858-1568
All Rights Reserved
without Prejudice
SUPREME COURT OF ARIZONA
STATE OF ARIZONA, ) Case No. HC-01-0016
)
Plaintiff, ) Superior Court Docket:
) CR 2000-01-3042
v. )
)
BENJAMIN FRANKLIN COOK, III, )
)
Defendant. )
__________________________________)
) APPLICATION FOR LEAVE
People of the United States ) TO INTERVENE BY RIGHT:
of America ex relatione ) Article I, Section 9,
Lonnie G. Schmidt, ) Clause 2: U.S. Const.;
) Rule 24(a):
Applicants. ) Arizona Rules of
__________________________________) Civil Procedure
COME NOW the People of the United States of America (hereinafter “Applicants”) ex relatione Lonnie G. Schmidt, Citizen of one of the United States of America (“Relator”), to petition this honorable Supreme Court for leave to intervene by Right in the matter of Defendant’s application for the extraordinary Writ of Habeas Corpus in the above entitled case.
Applicants assert specific fundamental Rights which appear to be at risk by reason of certain judicial and prosecutorial customs and practices now well established and likewise evident in Defendant’s case, both here in Arizona, and in other States of the Union.
Arizona State is a member, in good standing, of the Union of several States which are united by, and under, the Constitution for the United States of America, as lawfully amended (hereinafter “U.S. Constitution”).
Moreover, Congress has expressly extended the U.S. Constitution into the District of Columbia and into all federal Territories, present and future. See 16 Stat. 419, 426, Sec. 34 (1871); 18 Stat. 325, 333, Sec. 1891 (1873); 18 C.J. 1358, Sec. 11, notes 93, 93[a].
As a Citizen of one of the United States of America, Defendant is in no way subject to any federal municipal laws. See Qualifications Clauses; Article I, Section 8, Clause 17 (“1:8:17”); Article IV, Section 3, Clause 2 (“4:3:2”).
The Supremacy Clause in the U.S. Constitution elevates to supreme Law those constitutional and treaty provisions found at Article I, Section 9, Clause 2 (“1:9:2”); the Sixth Amendment; the Eighth Amendment; and the International Covenant on Civil and Political Rights (“Covenant”), the latter of which was enacted with specific Reservations authorizing State (and local) governments to enforce all provisions of said Treaty.
See Exhibit “A”: Ratification Document, which is attached hereto and incorporated by reference as if set forth fully herein.
Applicants now itemize Their meritorious and non-frivolous reasons for intervening in the instant case, to wit:
The Privilege of
the Writ of Habeas Corpus
Any construction of 1:9:2 which implies a revocable privilege is necessarily incorrect. The capitalization of “P” in “Privilege”, as used therein, per force implicates the same term as found in the Privileges and Immunities Clause at Article IV, Section 2, Clause 1 (“4:2:1”).
Said Privileges are fundamental Rights, not revocable exemptions granted to any special class of persons, to the exclusion of others and in derogation of common Rights deserving of equal protection.
The U.S. Constitution is clear on this point: it limits the specific cases in which the Writ of Habeas Corpus can be suspended. Those cases include, and are limited to, Cases of Rebellion or Invasion when the public Safety may require it. The Ninth Amendment expressly prohibits any other construction of 1:9:2 supra.
Applicants specifically deny that conditions of Rebellion or Invasion exist at the present time anywhere in the United States of America, as those terms were used and intended by the Framers. No such Act of Congress, or of the Arizona Legislature, is presently in effect, declaring that said conditions exist as a matter of fact. See Guarantee Clause, i.e. on Application of the Legislature (“4:4”).
Compare Ex parte Merryman, 17 Fed. Cas. No. 9487 (1861) (barring President Lincoln from prosecuting the Civil War under martial law, without a Congressional declaration of war; he did anyway).
With respect to Presidential Executive Orders, on the other hand, Applicants argue that the custom of continuing arbitrary emergency declarations, so as to effect the appearance of an unbroken state of emergency, has the unavoidable consequences of perpetrating fraud and unlawful dominion, and of levying War, against the several States of the Union. Such a custom is, therefore, unconstitutional.
See 12 U.S.C. 95(a), (b); Article III, Section 3, Clause 1 (“3:3:1”); and 18 U.S.C. 241, 242.
On the contrary, levying War against the several States is expressly defined as treason in the U.S. Constitution, and one of the penalties for treason is death. 18 U.S.C. 2381, 3592(b).
Both the U.S. Supreme Court and the United States Court of Appeals for the Ninth Circuit have been succinct and unqualified on the general principles applicable here:
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.
[Waltz v. Tax Commission of New York City,]
[397 U.S. 664, 678 (1970), emphasis added]
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]
Measured against the high standard for waivers of fundamental Rights, which standard has already been well established by the U.S. Supreme Court, there is no evidence in any judicial record to which Defendant has been a Proper Party, since the date of His majority, that He ever waived His Privilege fully to enjoy the Writ of Habeas Corpus.
In Brady v. U.S., 397 U.S. 742, 748 (1970), the High Court set the standard: waivers of fundamental Rights – like the Right to enjoy the extraordinary Writ of Habeas Corpus – must be knowing, intentional and voluntary acts done with sufficient awareness of the relevant circumstances and likely consequences.
Applicants submit that the
various court records in the instant case, both here in Arizona and in other
States of the Union, exhibit absolutely no such competent waivers of any kind.
Applicants specifically deny that any such competent waivers were ever executed by Defendant – knowingly, intentionally, voluntarily, and with His sufficient awareness of the relevant circumstances and likely consequences.
Furthermore, the High Court has also held that waivers of fundamental Rights will never be presumed. See Ohio Bell v. Public Utilities Commission, 301 U.S. 292 (1937).
In the pattern now obvious – from all of Defendant’s previous attempts to obtain Habeas Corpus relief – State and federal actions in most instances exhibit the rebuttable presumptions that the Privilege in question has either been suspended or waived, when neither is the case and when both presumptions assume facts nowhere in evidence.
Therefore, Defendant never waived His fundamental Privilege of the Writ of Habeas Corpus.
Demotion
of the Writ to a “Special Action” [sic]
Similarly, all court pleadings are petitions to Government for redress of grievances; as such, they warrant special constitutional protection and do not allow dubious intrusions of any kind.
See Thomas v. Collins, 323 U.S. 516 (1945) (“right to petition enjoys a sanctity and a sanction not permitting dubious intrusions”); Chambers v. Baltimore & Ohio R.R., 207 U.S. 142, 148 (1907) (“... the right conservative of all other rights” [emphasis added]).
It is in the very nature of the Writ of Habeas Corpus to be extraordinary, not ordinary.
The record below provides ample evidence that one State judge and one federal judge, at least, have attempted to demote Defendant’s prior application down to the status of “special actions”, i.e. a bail reduction motion and motion to dismiss, respectively, thus falsely creating the questionable appearance of falling into routine motion handling and scheduling.
Such a vain attempt is a dubious intrusion, at best.
On the contrary, to be extraordinary in its very nature implies ‑‑ no, commands! ‑‑ that courts give immediate and priority attention to any application for Writ of Habeas Corpus, unless of course another such application is already pending before any given judge or court.
Applicants argue that the converse will necessarily reduce such a proposition to absurd consequences: there is no State or federal constitutional authority permitting any judge to promote sua sponte a routine motion into an extraordinary writ of any kind whatsoever.
Confer at “Reductio ad absurdum” in Black’s Law Dictionary, Sixth Edition.
Applicants hereby protest the Seventh Edition of Black’s supra, because it omits any definition of the key term “United States”. In pari materia, confer also at “Inclusio unius est exclusio alterius” in Black’s Sixth Edition (an inference can be made that whatever is omitted, was intended to be omitted).
Accordingly,
Applicants believe They have now proven that American courts have no authority
whatsoever to demote applications for the extraordinary Writ of Habeas
Corpus to inferior and/or routine procedural motions.
Nor is there any constitutional authority to impose perpetual martial law, nor perpetual martial rule [sic], upon the Citizens of the several States. See Privileges and Immunities Clause at 4:2:1.
Emergencies are, by their very nature, temporary and short‑lived, not perpetual. Such a vain attempt ‑‑ to impose unending emergency conditions ‑‑ runs contrary to the well established principles embodied in the U.S. Constitution. See Waltz and Woodley supra.
Insofar as prior courts have attempted to demote Defendant’s previous applications to inferior status, they have clearly and reversibly violated His fundamental Right to petition Government for redress of grievances. See Petition Clause in conjunction with 18 U.S.C. 241 and 242.
What are those grievances? The remainder of the instant Application for Leave to Intervene highlights the most salient of those grievances, from Relator’s unique vantage point. Relator has been an eyewitness to Defendant’s case dating back to June 1999 A.D., and Defendant’s incarceration on October 20, 1999 A.D. without an arrest warrant.
Specifically, Defendant’s fundamental Rights to a speedy trial, effective assistance of Counsel, and no excessive bails have been systematically violated.
In closing, Applicants complain, from eyewitness experiences of Relator, that specific State and federal actions against Defendant have exhibited a consistent and demonstrable pattern of Treaty violations, over which this honorable Court has jurisdiction pursuant to the explicit Reservations which Congress attached to its ratification of the Covenant (see Exhibit “A”).
His Fundamental Right to a Speedy Trial
For reasons which Relator submits are obvious from the accumulated records of several courts, both State and federal, Defendant has been incarcerated without having been duly arraigned, punished in solitary confinement, deprived of His Liberty, and held far beyond pertinent statutes which implement the Sixth Amendment’s fundamental guarantee of a speedy trial. Confer at “Liberty” in Black’s Sixth.
Relator hereby offers to prove, in appropriate detail, how the pertinent statutes of limitation have now run out ‑‑ completely. Exceeding these statutes is an error that is not reversible.
Defendant has no other plain, speedy or adequate
remedy available in the ordinary course of law, at the present time, unless His
application for the extraordinary Writ of Habeas Corpus is granted with
all deliberate speed.
Again, Applicants hereby challenge Plaintiff to prove that this deprivation of Defendant’s fundamental Right to a speedy trial has not become established practice in all courts throughout Arizona State.
Likewise, Defendant has never waived His fundamental Right to a speedy trial, and no competent waivers can be found anywhere in the record below.
Applicants also submit that the accumulated records of several courts, both State and federal, exhibit certified and undeniable evidence that Defendant has also been deprived of His fundamental Right to effective assistance of Counsel of His choosing.
Relator offers to demonstrate, by means of specific examples in those records, that fundamental, malpractice, and ethical violations by private and court‑appointed attorneys have occurred.
On this point, the U.S. Supreme Court has already held that, if effective assistance of counsel is not provided at every step in a criminal proceeding, then the court ousts itself of jurisdiction.
In Johnson v. Zerbst, 304 U.S. 458, 468 (1938), the High Court has made it very clear that it is the obligation of courts to ensure that effective assistance of Counsel is available to a criminal defendant at every point in all criminal proceedings.
In the event that effective assistance of Counsel is not available to a criminal defendant at every point in a criminal proceeding, even if only for a moment, then the court is ousted of jurisdiction to proceed any further.
This is an error from which a court cannot recover, because the jurisdiction, once lost, cannot be retained by any action of the court. It is lost forever ‑‑ with prejudice.
Defendant never waived His fundamental Right to effective assistance of Counsel.
His Immunity from Excessive Bail
Applicants herein prove that the bail already set in the instant case is far in excess of any amount appropriate to the allegations in question. This is particularly salient in light of the fact that court-appointed counsel did not appear at the first hearing setting bail at $88,500, on February 9, 2001 A.D.
Similarly, court-appointed counsel did not appear at a second hearing at 1:00 a.m. on February 10, 2001 A.D., at which bail was dramatically increased to $8,850,000!
Since then, court-appointed counsel has failed to move the lower court for any bail reductions.
In contrast, Defendant has timely objected to court-appointed counsel, even suing said counsel for malpractice. Defendant has filed six (6) of His own requests for bail reduction hearings In Propria Persona; no action has been taken on any of those requests. At the time those 6 requests were filed, court‑appointed counsel had already withdrawn.
Applicants
argue that the current bail amount was conveniently set to coincide with the
quantity of funds seized, and presently controlled, by the court-appointed
Receiver of Defendant’s financial assets.
The amount seized, in fact, now exceeds $9 million.
As such, the present bail amount was set arbitrarily and without any foundation in law, thus violating the Guarantee Clause in the U.S. Constitution (“4:4”), the equal protection provisions of the Covenant, and Article 14(3)(c) of the Covenant, in chief.
Defendant never waived His fundamental Immunity from excessive bail.
VII
Defendant
Cannot Enforce the Covenant
Absent
Any Private Right of Action
Applicants are particularly alarmed to discover recently that, under 18 U.S.C. 241 and 242, no private right of action is available to Defendant or to others in His class. Compare Re Grand Jury, 26 F. 749 (D.C. Or., 1886) (Congress can penalize Treaty violations).
Although Congress did codify 42 U.S.C. 1983 specifically to provide civil remedies for violations of fundamental Rights, like those itemized in the Covenant, only federal citizens have standing to invoke section 1983; no comparable remedy is available to Citizens of the 50 States. See Wadleigh v. Newhall, 136 F. 941 (CC Cal, 1905), as a case directly on point.
Such demonstrable discrimination, against the very class of People who are qualified to make federal laws, is expressly prohibited by that very same Covenant. See Qualifications Clauses (1:2:2; 1:3:3; 2:1:5); Pannill v. Roanoke, 252 F. 910, 914, the latter of which is not only definitive, but also dispositive on the matter of two (2) classes of citizens under American laws never repealed. Federal citizens were not even contemplated when the organic U.S. Constitution was being drafted.
A comparable federal statute can be found at 42 U.S.C. 1988: when a federal civil remedy is absent, federal courts are authorized to import a State’s common law. See Robertson v. Wegmann, 436 U.S. 584, 591 (1978) (in certain areas, federal law is unsuited or insufficient to furnish suitable remedies); Burnett v. Grattan, 468 U.S. 42, 47 (1984); Jund v. Town of Hempstead, 941 F.2d 1271, 1278 (9th Cir. 1991); and Board of Regents v. Tomanio, 446 U.S. 478, 485 (1980).
Once again, however, Defendant has no standing to invoke this statute either. 42 U.S.C. 1983-1988 are merely codified versions of federal municipal laws which originated in the 1866 Civil Rights Act.
As Citizens of one of the United States of America, neither Defendant nor Relator is subject to federal municipal laws.
Federal citizenship is a municipal franchise domiciled in the District of Columbia. See Murphy v. Ramsey, 114 U.S. 15 (1885); and 7 Words and Phrases 281 (1952) (“Citizen of State”).
Unlike
other Clauses, such as the Guarantee Clause, the term “United States” in each
of the Qualifications Clauses supra means “States united” [sic]. See People
v. De La Guerra, 40 Cal. 311,
337 (1870).
Congress cannot by legislation alter the U.S.
Constitution, from which alone it derives its power to legislate, and within
whose limitations alone that power can be lawfully exercised. See Eisner v. Macomber, 252 U.S. 189
(1920).
To the extent that Defendant has no Right to enforce any provisions of the Covenant, using any known federal statutes, Applicants seek timely to invoke Congressional Reservations granting original jurisdiction to State governments to enforce the Covenant, absent federal legislative or judicial jurisdiction. See Exhibit “A”: Understandings(5).
VIII
Request for Oral Argument
Relator respectfully requests an opportunity to
present oral arguments in support of the instant Application for Leave to
Intervene, pursuant to Rule 24(a). Relator
agrees to limit His oral arguments to thirty (30) minutes maximum.
IX
Remedy Requested
All premises having been duly considered,
Applicants respectfully request a prompt hearing on the instant Application,
and leave of this honorable Court to join Defendant as Proper Parties ex
relatione Lonnie G. Schmidt, Citizen of one of the United States of
America, in all future proceedings in the instant case.
X
VERIFICATION
I, Lonnie G. Schmidt, Sui Juris, 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). See Supremacy Clause.
Dated: August 9, 2001 A.D.
Signed: /s/ Lonnie G. Schmidt
____________________________
Printed: Lonnie G. Schmidt, Sui Juris
XI
California All-Purpose Acknowledgement
CALIFORNIA
STATE )
)
SACRAMENTO
COUNTY )
On
the 9th day of August, 2001 Anno
Domini, before me personally appeared Lonnie G. Schmidt, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the Person
whose name is subscribed to the within instrument and acknowledged to me that
He executed the same in His authorized capacity, and that by His signature on
this instrument the Person, or the entity upon behalf of which the Person
acted, executed the instrument. Purpose
of Notary Public is for identification only, and not for entrance into
any foreign jurisdiction.
WITNESS my hand and official seal.
_____________________________________
Notary Public
I, Lonnie G. Schmidt, 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):
APPLICATION
FOR LEAVE TO INTERVENE BY RIGHT:
Article I, Section 9, Clause 2: U.S. Const.;
Rule 24(a), Arizona Rules of Civil Procedure
by placing one true and correct copy of said document(s) in Priority United States Mail, with postage prepaid and properly addressed to the following:
Office
of Attorney General
State of Arizona
1275 West Washington
Phoenix 85007
ARIZONA, USA
Benjamin
Franklin Cook III
c/o County Jail
225 West Madison Street
Phoenix 85003
ARIZONA, USA
Sheriff
Joe Arpaio
Office of the Sheriff
County of Maricopa
102 West Madison Street
Phoenix 85003
ARIZONA, USA
Dated: August 9, 2001 A.D.
Signed: /s/ Lonnie G. Schmidt
____________________________
Printed: Lonnie G. Schmidt, Sui Juris
Exhibit “A”: Ratification Document
Reservations:
"(1) That article 20 does not authorize or
require legislation or other action by the United States that would restrict
the right of free speech and association protected by the Constitution and laws
of the United States.
"(2) That the United States reserves the
right, subject to its Constitutional constraints, to impose capital punishment
on any person (other than a pregnant woman) duly convicted under existing or future
laws permitting the imposition of capital punishment, including such punishment
for crimes committed by persons below eighteen years of age.
"(3) That the United States considers itself
bound by article 7 to the extent that ‘cruel, inhuman or degrading treatment or
punishment’ means the cruel and unusual treatment or punishment prohibited by
the Fifth, Eighth, and-or Fourteenth Amendments to the Constitution of the
United States.
"(4) That because U.S. law generally applies
to an offender the penalty in force at the time the offence was committed, the
United States does not adhere to the third clause of paragraph 1 of article 15.
"(5) That the policy and practice of the
United States are generally in compliance with and supportive of the Covenant's
provisions regarding treatment of juveniles in the criminal justice
system. Nevertheless, the United States
reserves the right, in exceptional circumstances, to treat juveniles as adults,
notwithstanding paragraphs 2 (b) and 3 of article 10 and paragraph 4 of article
14. The United States further reserves
to these provisions with respect to States with respect to individuals who
volunteer for military service prior to age 18."
Understandings:
"(1) That the Constitution and laws of the
United States guarantee all persons equal protection of the law and provide
extensive protections against discrimination.
The United States understands distinctions based upon race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or any other status ‑‑ as those terms are used in
article 2, paragraph 1 and article 26 ‑‑ to be permitted when such
distinctions are, at minimum, rationally related to a legitimate governmental
objective. The United States further
understands the prohibition in paragraph 1 of article 4 upon discrimination, in
time of public emergency, based ‘solely’ on the status of race, colour, sex,
language, religion or social origin, not to bar distinctions that may have a
disproportionate effect upon persons of a particular status.
"(2) That the United States understands the
right to compensation referred to in articles 9 (5) and 14 (6) to require the
provision of effective and enforceable mechanisms by which a victim of an
unlawful arrest or detention or a miscarriage of justice may seek and, where
justified, obtain compensation from either the responsible individual or the
appropriate governmental entity.
Entitlement to compensation may be subject to the reasonable requirements
of domestic law.
"(3) That the United States understands the
reference to ‘exceptional circumstances’ in paragraph 2 (a) of article 10 to
permit the imprisonment of an accused person with convicted persons where
appropriate in light of an individual's overall dangerousness, and to permit
accused persons to waive their right to segregation from convicted
persons. The United States further
understands that paragraph 3 of article 10 does not diminish the goals of
punishment, deterrence, and incapacitation as additional legitimate purposes
for a penitentiary system.
"(4) That the United States understands that
subparagraphs 3 (b) and (d) of article 14 do not require the provision of a
criminal defendant's counsel of choice when the defendant is provided with
court-appointed counsel on grounds of indigence, when the defendant is
financially able to retain alternative counsel, or when imprisonment is not
imposed. The United States further
understands that paragraph 3 (e) does not prohibit a requirement that the
defendant make a showing that any witness whose attendance he seeks to compel
is necessary for his defense. The
United States understands the prohibition upon double jeopardy in paragraph 7
to apply only when the judgment of acquittal has been rendered by a court of
the same governmental unit, whether the Federal Government or a constituent
unit, as is seeking a new trial for the same cause.
"(5) That the United States understands that
this Covenant shall be implemented by the Federal Government to the extent that
it exercises legislative and judicial jurisdiction over the matters covered
therein, and otherwise by the state and local governments; to the extent that
state and local governments exercise jurisdiction over such matters, the
Federal Government shall take measures appropriate to the Federal system to the
end that the competent authorities of the state or local governments may take
appropriate measures for the fulfillment of the Covenant." [bold
emphasis added]
Declarations:
"(1) That the United States declares that the
provisions of articles 1 through 27 of the Covenant are not self-executing.
"(2) That it is the view of the United States
that States Party to the Covenant should wherever possible refrain from
imposing any restrictions or limitations on the exercise of the rights
recognized and protected by the Covenant, even when such restrictions and
limitations are permissible under the terms of the Covenant. For the United States, article 5, paragraph
2, which provides that fundamental human rights existing in any State Party may
not be diminished on the pretext that the Covenant recognizes them to a lesser
extent, has particular relevance to article 19, paragraph 3 which would permit
certain restrictions on the freedom of expression. The United States declares that it will continue to adhere to the
requirements and constraints of its Constitution in respect to all such
restrictions and limitations.
"(3) That the United States declares that the
right referred to in article 47 may be exercised only in accordance with
international law."
# # #
Exhibit “B”:
(Courtesy Copy)