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, ) MEMORANDUM OF LAW IN SUPPORT OF ) MOTION FOR RECONSIDERATION AND OF Petitioners, ) CHALLENGE TO THE CONSTITUTIONALITY ) OF A FEDERAL REMOVAL STATUTE: vs. ) ) 28 U.S.C. 1447(d) United States et al., ) ) 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 witness, and Counselor at Law (hereinafter "Relator"), to present this, Their MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR RECONSIDERATION AND OF CHALLENGE TO THE CONSTITUTIONALITY OF A FEDERAL REMOVAL STATUTE filed concurrently with Their MOTION FOR RECONSIDERATION. Plaintiffs hereby challenge the constitutionality of 28 U.S.C. 1447(d). In the ORDER of Chief United States District Judge Jack D. Shanstrom, dated and filed in the instant case on April 8, 1997, the following plain error is manifest, to wit: ... [T]he removal statutes do not afford a petitioner/plaintiff the power to remove a case to federal court. Reconsider and Challenge Removal Statutes: Page 1 of 9 Petitioners respectfully request this honorable District Court of the United States (hereinafter "DCUS") to compare two important removal statutes which are available to all civil litigants. Section 1441(b) of Title 28, United States Code, contains a general restatement of the original jurisdiction of the DCUS, without any requirement that the removing party(s) be defendant(s), to wit: (b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. The above statute makes absolutely no mention whatsoever of a "defendant", or "defendants". In clear contrast to the above statute, the companion statute at section 1441(a) does explicitly restrict its availability to civil defendant(s) only, to wit: (a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. [emphasis added] Petitioners rely upon the maxim of construction: inclusio unius est exclusio alterius, in order to show that Congress omitted any references to the "defendant" or "defendants" in section 1441(b), because the omission was intentional; specifically, it is the intent of Congress to allow plaintiffs to remove civil action(s) from state courts into the DCUS, particularly when the DCUS has original jurisdiction that is founded on a claim or right arising under a law of the United States. See Freedom of Information Act ("FOIA"). The FOIA is a law of the United States. See 5 U.S.C. 552(a)(4)(B) for the grant of original jurisdiction to the DCUS to enjoin the withholding of documents properly requested under FOIA, and to order the production of documents improperly withheld. Reconsider and Challenge Removal Statutes: Page 2 of 9 Accordingly, the USDC's ORDER of April 8, 1997, is in error for remanding the instant case back to the Montana Sixteenth Judicial District Court ("State Court"), because it is based on the false premise that a petitioner/plaintiff does not have the power to remove a case to federal court, under any removal statutes in Chapter 89 of Title 28, United States Code. In so doing, said ORDER would effectively deny a judicial remedy which is Petitioners' right in the instant case, because the FOIA creates a federal cause of action in the case of all FOIA requests properly submitted and improperly withheld by the agency(s) in question. Moreover, the State Court has no jurisdiction whatsoever, either original or appellate, to enjoin the withholding of documents properly requested under FOIA and/or to order the production of documents improperly withheld. CHALLENGE TO CONSTITUTIONALITY OF STATUTE Petitioners hereby also challenge the constitutionality of 28 U.S.C. 1447(d), to wit: (d) An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise. Petitioners hereby deny any reliance whatsoever upon section 1443, thus rendering moot the second half of section 1447(d). However, Petitioners argue that the first half of said section is overly broad for permitting arbitrary, capricious, erroneous, and/or injurious orders to be sustained artificially, and for depriving litigants of remedies which are their fundamental Right, under the due process clause of the Fifth Amendment. Reconsider and Challenge Removal Statutes: Page 3 of 9 The USDC's ORDER of April 8, 1997, is a classic case in point. The instant case arose from Petitioners' desire to obtain a temporary restraining order ("TRO") preventing the use of lethal force against the Montana Freeman [sic], and also to obtain a permanent injunction preventing any deprivations, by Respondents, of the life, liberty, or property of Citizens of Montana state without due process of law. See Fifth Amendment. After the Montana Freemen surrendered peacefully, without any loss of life, the application for TRO was rendered moot. However, the permanent injunction against Respondents is still an open question, and it has yet to be decided finally by this honorable Court, or by the State Court from whence the instant case originated. Petitioners submit, therefore, that the application of due process of law is quite salient in the instant case, as a remedy still available not only to the Citizens of Montana state, but also to the respective litigants in the instant case, who are not necessarily Citizens of Montana state. It was only after the instant case was filed in State Court, that Petitioners then decided to submit a proper FOIA request to the United States Department of Justice ("DOJ") for the credentials of all six hundred thirty-three (633) alleged federal agents who rotated in and out of the Freeman Standoff. When DOJ failed to produce the requested documents, after receipt of proper FOIA requests and appeals, and after expiration of the statutory deadlines for same, Petitioners had then exhausted all administrative remedies and were then faced with an immediate need to invoke the court of original jurisdiction over the FOIA; that court is the DCUS. No other court fits the bill. Reconsider and Challenge Removal Statutes: Page 4 of 9 Accordingly, Petitioners are now faced with the very real prospect of being forever deprived of their procedural Right to enforce the FOIA upon DOJ. Should the USDC'S ORDER of April 8 be permitted to stand and thereby to remove the instant case back to the State Court, there will have been, in that event, no litigation whatsoever on the federal questions which arise from the original FOIA request and appeal. This result directly contravenes the explicit legislative intent of 28 U.S.C. 1441(e): (e) The court to which such civil action is removed is not precluded from hearing and determining any claim in such civil action because the State court from which such civil action is removed did not have jurisdiction over that claim. Petitioners submit, for the careful consideration of this honorable Court, that section 1441(e) applies directly, and unequivocally, to the instant case, particularly with respect to the judicial enforcement of the FOIA. This is so, precisely because the State Court from which the instant civil action was removed does not have any jurisdiction over FOIA enforcement. Therefore, this honorable DCUS is not precluded from hearing and determining Petitioners' claim upon judicially compelled discovery of the documents requested in the original FOIA request and appeal, i.e. credentials, such as Appointment Affidavits and/or Oaths of Office. See, in particular, Article VI, Clause 3 and 5 U.S.C. 3331. When examined against this clear and unequivocal right, which is enforceable by the FOIA, the restriction found at section 1447(d) cannot stand on its own, nor can it be applied in the instant case, because said section confounds, if it does not directly contradict, the procedural Right(s) which are recognized by section 1441(e). Reconsider and Challenge Removal Statutes: Page 5 of 9 Section 1447(d) is particularly offensive in that it prohibits review on appeal or otherwise. Petitioners submit that this additional qualifier -- "or otherwise" -- would logically prohibit judicial review of Petitioners' MOTION FOR RECONSIDERATION, filed concurrently with this MEMORANDUM. Petitioners are now entirely confident that They, as Plaintiffs, have every Right under section 1441(b) to remove the State Case into this honorable DCUS, to enforce FOIA, if nothing else. The USDC's ORDER of April 8, 1997, is based on the erroneous premise that a petitioner/plaintiff does not have the power to remove a case to federal court. If allowed to stand, upon authority of section 1447(d), said ORDER would work a grave injustice upon Petitioners and result in barratry upon their efforts to compel discovery of the requisite credentials of all 633 federal agents who participated in the Freeman Standoff. This is not a small number. Without federal review by this honorable Court in the instant case, Petitioners would then be faced with exorbitant legal costs to mount still more law suits in State Court, under applicable state discovery laws. However, the separation of powers doctrine casts serious doubt on the ability of state courts to compel discovery of federal employees' credentials, via Mandamus or otherwise. See the plaintiffs' pleadings on that subject in People v. Boxer, California Supreme Court case number S-030016, December 1992. Reconsider and Challenge Removal Statutes: Page 6 of 9 It is by no means settled that state courts can compel specific performance by federal employees. So, remanding the case back to State Court raises the very real prospect that Relator could not afford to prosecute the same subject matter all over again, a second time, due to additional legal costs which would otherwise be unnecessary. Lex non cogit impossibilia. It is also clear that section 1441(e) contemplates cases in which the DCUS is empowered to remove and hear state cases in which there is a federal cause of action, and to remand all other causes of action which properly belong back in state court. As applied to the instant case, it would be proper, for example, for this honorable DCUS to remand certain injunctive remedies back to the State Court, with a recommendation to stay that proceeding, pending final judgment in the matter of compelling discovery of the credentials which have been requested. In that way, the outcome of the state case could then pivot on whether, or not, the credentials existed in the first instance and, if they did, whether or not said credentials should be enforced in equity; if they did not exist, then the State Court would then be the proper forum to adjudicate probable violations of applicable state laws, e.g. trespass, extortion, kidnap, perjury, and impersonating an officer. But, such a pivotal determination would necessarily be required to await FOIA enforcement in the DCUS, because that is the court of original jurisdiction, and it would possibly also be required to await appellate review, by the federal appeals court (Ninth Circuit) and possibly also the Supreme Court of the United States, of all relief granted by the DCUS. Reconsider and Challenge Removal Statutes: Page 7 of 9 SUMMARY 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. Dated: April 14, 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 Reconsider and Challenge Removal Statutes: Page 8 of 9 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): MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR RECONSIDERATION AND OF CHALLENGE TO THE CONSTITUTIONALITY OF A FEDERAL REMOVAL STATUTE: 28 U.S.C. 1447(d) 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 April 14, 1997: /s/ Paul Andrew Mitchell Paul Andrew Mitchell, B.A., M.S. Citizen of Arizona state, federal witness, Counselor at Law, and Relator Reconsider and Challenge Removal Statutes: Page 9 of 9 # # #
Return to the Table of Contents for
People v. United States et al.