Paul Andrew, Mitchell, B.A., M.S. Citizen of Arizona state, federal witness, Counselor at Law, and Relator c/o 2509 N. Campbell Avenue, #1776 Tucson [zip code exempt] ARIZONA STATE Under Protest, Necessity, and by Special Visitation DISTRICT COURT OF THE UNITED STATES JUDICIAL DISTRICT OF MONTANA BILLINGS DIVISION People of the United States ) Case No. CV-96-163-BLG of America, ex relatione ) Paul Andrew Mitchell, ) REQUEST TO CERTIFY CASE ) FOR APPEAL: Petitioners, ) ) Final Judgements Act, vs. ) 28 U.S.C. 1291; ) Interlocutory Orders, United States et al., ) 28 U.S.C. 1292(b) ) Respondent. ) ____________________________) COME NOW the People of the United States of America (hereinafter "Petitioners"), ex relatione Paul Andrew, Mitchell, B.A., M.S., Citizen of Arizona state, expressly not a citizen of the United States ("federal citizen"), federal witness, and Counselor at Law (hereinafter "Relator"), to submit their objections to the ORDER, dated May 1, 1997, issued from the United States District Court ("USDC") by Chief Judge Jack D. Shanstrom, denying Petitioners' MOTION FOR RECONSIDERATION (hereinafter "ORDER of May 1"), and respectfully to request certification of this case for appeal to the United States Court of Appeals for the Ninth Circuit, with all deliberate speed. Request to Certify Case for Appeal: Page 1 of 6 OBJECTIONS Petitioners hereby enter the following standing objections to the ORDER of May 1, to wit: 1. Said ORDER of May 1 plainly errs by claiming to rule on a motion to reconsider an order of dismissal by the USDC. On the contrary, Petitioners previously filed and served Their MOTION FOR RECONSIDERATION AND CHALLENGE TO CONSTITUTIONALITY OF FEDERAL REMOVAL STATUTES (hereinafter "MOTION FOR RECONSIDERATION"), and Their MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR RECONSIDERATION AND OF CHALLENGE TO THE CONSTITUTIONALITY OF A FEDERAL REMOVAL STATUTE (hereinafter "MEMORANDUM OF LAW"), specifically to request reconsideration of the USDC's ORDER of April 8, 1997, in which Chief Judge Jack D. Shanstrom remanded the instant case back to the Sixteenth Judicial District Court of Montana state: Cause No. 2721 in the Montana Sixteenth Judicial District Court, Garfield County, is hereby remanded to said Sixteenth Judicial District Court. The Clerk of Court shall return the file in Cause No.. 2721 received from the Montana Sixteenth Judicial District Court. [ORDER of April 8, 1997] 2. The USDC's ORDER of May 1 repeats, once again, the same error which has been made in all previous Orders which have issued from the USDC in the instant case, namely, the USDC was never petitioned for relief of any kind in the instant case. On the contrary, the District Court of the United States ("DCUS") was specifically petitioned, pursuant to the grant of original jurisdiction to the DCUS to hear cases which arise under the Freedom of Information Act ("FOIA"). See 5 U.S.C. 552(a)(4)(B). Request to Certify Case for Appeal: Page 2 of 6 3. Likewise, the USDC's ORDER of May 1 repeats another mistake by confusing the Petitioners with the Relator in the instant case. The "Petitioners" of record are the People of the United States of America. See Preamble in the Constitution for the United States of America [sic], as lawfully amended, and Supremacy Clause. Confer at "Union" and "United States of America" in Bouvier's Law Dictionary (1856). The "Relator" of record is Paul Andrew Mitchell who, in said capacity, is proceeding as a Private Attorney General in the instant case. As such, Relator technically has not filed any motions or pleadings in the instant case, any more so than a licensed attorney files motions on behalf of himself (herself) when s/he is retained to represent another proper party in a civil or criminal action. For these reasons, it is technically true that Relator presented no valid reasons for this honorable Court to reconsider the alleged Order of dismissal, but this is true because Relator has not actually filed any motions or pleadings in His own name. 4. The truth of the case is that Petitioners have, on the contrary, presented numerous valid reasons why the USDC should reconsider its Order remanding the case to the State court. Most prominent, and pivotal, among these several reasons is the damaging effect which such a remand has caused, for example, that of depriving Petitioners of Their Right to litigate a crucial FOIA request in a court of competent jurisdiction, with presiding judges whose independence and integrity are both beyond question because their judicial pay is not being diminished by federal income taxes. See Article III, Section 1; Supremacy Clause; International Covenant on Civil and Political Rights, and Universal Declaration of Human Rights, enacted with explicit Reservations by Congress (see standing for "localities" to compel United States (federal government) obedience to said treaties). Request to Certify Case for Appeal: Page 3 of 6 5. Moreover, Petitioners have presented what they consider to be excellent grounds for challenging the federal statute which prohibits judicial review of summary remands, such as the Order of April 8. See 28 U.S.C. 1447(d) ("not reviewable on appeal or otherwise"). Petitioners have now argued that said statute is unconstitutional for being overly broad, for being in conflict with 28 U.S.C. 1441(e), for being prejudicial to Petitioners' fundamental Right to an essential remedy when a federal cause of action is clearly present by virtue of the FOIA, and for supporting an erroneous claim by the USDC that a civil petitioner/plaintiff does not have the power to remove a case to federal court. See Tenth Amendment. The pertinent paragraphs from Petitioners' MEMORANDUM OF LAW now follow: Petitioners hereby challenge 28 U.S.C. 1447(d) for being overly broad, for conflicting with 28 U.S.C. 1441(e), and for depriving Petitioners of an essential remedy when a federal cause of action is clearly present by virtue of the Freedom of Information Act, 5 U.S.C. 552 et seq. Petitioners also conclude that the USDC's ORDER of April 8, 1997, in the instant case, is erroneous for basing a remand upon a false premise, namely, that a civil petitioner/plaintiff does not have the power to remove a case to federal court. If allowed to stand, said ORDER will deny a remedy which belongs to Petitioners, and thereby cause irreparable damage(s) to Petitioners, for all the reasons stated above. [SUMMARY, Page 8 of 9, emphasis added] Petitioners remain convinced that each of these issues is not only meritorious, but also entirely valid, particularly in light of the Respondents' continued total silence in the instant case. 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. See U.S. v. Tweel, 550 F.2d 297, 299 (1977). Silence also activates estoppel. See Carmine v. Bowen, 64 A. 932 (1906). Confer also at "Acquiescence, estoppel by" in Black's Law Dictionary, Sixth Edition (with pronunciations). Request to Certify Case for Appeal: Page 4 of 6 REMEDY REQUESTED Wherefore, all premises having been duly considered, Petitioners hereby request this honorable Court to certify this case for appeal to the United States Court of Appeals for the Ninth Circuit, pursuant to the Final Judgments Act, 28 U.S.C. 1291, or to the authority for review of interlocutory orders at 28 U.S.C. 1292(b), with all deliberate speed. Dated: May 8, 1997 Respectfully submitted, /s/ Paul Andrew Mitchell Paul Andrew, Mitchell, B.A., M.S. Citizen of Arizona state, federal witness, (expressly not a citizen of the United States) Counselor at Law, and Relator on behalf of the People of the United States of America All Rights Reserved without Prejudice Request to Certify Case for Appeal: Page 5 of 6 PROOF OF SERVICE I, Paul Andrew, Mitchell, B.A., M.S., Citizen of Arizona state, federal witness, and Counselor at Law, do hereby certify, under penalty of perjury, under the laws of the United States of America, without the "United States", 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): REQUEST TO CERTIFY CASE FOR APPEAL: Final Judgments Act, 28 U.S.C. 1291; Interlocutory Orders, 28 U.S.C. 1292(b) by placing one true and correct copy of same in first class U.S. Mail, with postage prepaid and properly addressed to: Attorney General William H. Rehnquist, C.J. Department of Justice Supreme Court of the U.S. 10th and Constitution, N.W. 1 First Street, N.E. Washington, D.C. Washington, D.C. Solicitor General Warren Christopher Department of Justice U.S. Secretary of State 10th and Constitution, N.W. Department of State Washington, D.C. Washington, D.C. James M. Burns LeRoy Michael; Schweitzer United States District Court c/o Yellowstone County Jail 316 North 26th Street 3165 King Avenue, East Billings, Montana state Billings, Montana state Office of the U.S. Attorneys Judge J. Clifford Wallace United States District Court Ninth Circuit Court of Appeals Federal Building c/o P.O. Box 193939 Billings, Montana state San Francisco, California Chief Judge Judge Alex Kozinski Ninth Circuit Court of Appeals Ninth Circuit Court of Appeals c/o P.O. Box 193939 125 South Grand Avenue, #200 San Francisco, California state Pasadena, California state Executed on May 8, 1997: /s/ Paul Andrew Mitchell Paul Andrew Mitchell, B.A., M.S. Citizen of Arizona state, federal witness, Counselor at Law, and Relator Request to Certify Case for Appeal: Page 6 of 6 # # #
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People v. United States et al.