Paul Andrew Mitchell, Sui Juris Citizen of Arizona state c/o general delivery at: 2509 North Campbell Avenue Tucson, Arizona state In Propria Persona All Rights Reserved Without Prejudice PIMA COUNTY CONSOLIDATED JUSTICE COURT Paul Andrew Mitchell, ) Case Number #CV-97-3438 Plaintiff, ) ) DEMAND FOR JURY TRIAL AND v. ) DEMAND TO STAY PROCEEDINGS ) PENDING FINAL REVIEW OF FORMAL Neil and Evelyn Nordbrock, ) CHALLENGE TO JUROR AND VOTER Lawrence E. Condit, ) REGISTRANT QUALIFICATIONS: W. U. Weber, and ) Does 1 to 100, ) ARS 21-201, ARS 16-101; Defendants. ) Guarantee Clause ________________________________) COMES NOW Paul Andrew Mitchell, Sui Juris, Citizen of Arizona state, expressly not a citizen of the United States ("federal citizen") and Plaintiff in the above entitled matter (hereinafter "Plaintiff"), to demand a trial by jury in the instant case, and also to demand an indefinite stay of proceedings, pending final review of Plaintiff's formal challenge to the constitutionality of Arizona Revised Statutes 16-101 and 21-201, for violating the Guarantee Clause in the Constitution for the United States of America, as lawfully amended, and to provide formal Notice of same to all interested party(s). Pursuant to the Full Faith and Credit Clause, and Rule 201(d) of the Arizona Rules of Evidence, Plaintiff incorporates by reference the following documents, as if set forth fully herein, and demands mandatory judicial notice of the following related cases, to wit: Demand for Jury Trial and for Stay of Proceedings: Page 1 of 16 (1) MOTION TO STAY PROCEEDINGS FOR FAILING TO COMPLY WITH GRAND JURY SELECTION POLICY, AND NOTICE OF CHALLENGE AND CHALLENGE TO CONSTITUTIONALITY OF STATUTE, executed, served and filed in U.S.A. [sic] v. Wallen, United States District Court, District of Arizona, Tucson, case number #95-484-WDB. Said MOTION is attached hereto as Exhibit "A" and incorporated by reference as if set forth fully. (2) VERIFIED STATEMENT IN SUPPORT OF CHALLENGE TO GRAND JURY SELECTION POLICY AND ITS FEDERAL STATUTE, executed, served and filed in U.S.A. [sic] v. Wallen, United States District Court, District of Arizona, Tucson, case number #95-484-WDB. Said STATEMENT is attached hereto as Exhibit "B" and incorporated by reference as if set forth fully. (3) OPENING BRIEF in U.S.A. v. Gilbertson and Gilbertson v. U.S. et al., filed on June 18, 1997, United States Court of Appeals for the Eighth Circuit, case number #97-2099-MNST, containing a formal challenge to the federal Jury Selection and Service Act, 28 U.S.C. 1861 et seq., for exhibiting prohibited discrimination against the class of People known as Citizens of the United States of America, also known as state Citizens, who are not also citizens of the United States, also known as federal citizens, by Right of Election. Confer at "Federal citizenship" in Black's supra. (4) MOTION TO STAY MANDATE AND PROCEEDINGS, PENDING DISCOVERY OF DOCUMENTS REQUESTED UNDER THE FOIA, AND FINAL RESOLUTION OF CHALLENGE TO CONSTITUTIONALITY OF THE JURY SELECTION AND SERVICE ACT in U.S.A. v. Pixley, filed on June 25, 1997, United States Court of Appeals for the Second Circuit, case number #96-1476, containing a formal challenge to the federal Jury Selection and Service Act, 28 U.S.C. 1861 et seq., for exhibiting prohibited discrimination against the class of People known as Citizens of the United States of America, also known as state Citizens, who are not also citizens of the United States, also known as federal citizens, by Right of Election. Pursuant to the Full Faith and Credit Clause, and Rule 201(d) of the Arizona Rules of Evidence, Plaintiff demands mandatory judicial notice, and provides formal Notice to all interested party(s), of the following authorities and analysis which prove that there is, in American Law never repealed, a Right of Election whereby American Citizens are entitled to choose between state Citizenship and/or federal citizenship. Demand for Jury Trial and for Stay of Proceedings: Page 2 of 16 Additional Citations Establishing a Right of Election That the general principle of such a right of electing, to remain under the old or to contract a new allegiance, was recognized, is apparent from the case of Com. v. Chapman, 1 Dal., 53, and other cases cited. Those who adhered to the new government and transferred their allegiance thereto, became citizens of the same. All who were free, had this right of election, else they were not free. No particular color nor descent was required to confer this right of election. It resulted from freedom, and the necessity resting upon all to make an election. When it was made, and the individual determined to adhere to the new state, he was necessarily a member and a citizen of the same. He sustained the same relation to the new government by choice, which he had sustained to the old by birth. [44 Maine 528-529 (1859), Appleton concurring] [emphasis and underlines added] Mr. Kelley [of North Carolina] ... "contended for the broad principle that all men are entitled to equal rights and privileges; that nothing but arbitrary power can forbid their free exercise, and that it is contrary to all the principles of free government to tax a man and refuse him a right to vote for a member to the legislature." Debates on the Constitution of North Carolina in 1835, 357. [44 Maine 533 (1859), Appleton concurring] [emphasis and underlines added] Slavery is therefore regarded as a condition imposed upon the individual by the municipal law. [44 Maine 525 (1859), Appleton concurring] [emphasis added] ... [F]or it is certain, that in the sense in which the word "citizen" is used in the federal constitution, "citizen of each state," and "citizen of the United States," are convertible terms; they mean the same thing; for "the citizens of each state are entitled to all privileges and immunities of citizens in the several states," and "citizens of the United States" are, of course, citizens of all the United States. [44 Maine 518 (1859), Hathaway dissenting] [italics in original, underlines added] The following additional citations prove the existence of two classes of citizenship: It does not by any means follow, because he has all the rights and privileges of a citizen of a state, that he must be a citizen of the United States. [Dred Scott v. Sandford, 19 How. 405 (1856)] Demand for Jury Trial and for Stay of Proceedings: Page 3 of 16 Under our complex system of government there may be a citizen of a state who is not a citizen of the United States in the full sense of the term. This result would seem to follow unavoidably from the nature of the two systems of government. [In Re Wehlitz, 16 Wis. 443 (1863)] This distinction between citizenship of the state and of the United States is also very clearly implied in several provisions both of the constitution and laws of this state. There, wherever the full right of citizenship of the United States is intended, it is so expressed, as in respect to the office of governor, lieutenant governor or judge, it is provided that no person shall be eligible who is not a "citizen of the United States." This form of expression would never have been used if it had been supposed that no person could be a citizen of the state without being also a citizen of the United States. In that case, the word "citizen" alone would have been used. [In Re Wehlitz, 16 Wis. 443 at 474 (1863)] ... [T]herefore, the militia law drops the language which is used when a full citizenship of the United States is intended, and provides that all able bodied "citizens" shall be liable to military duty. This change of phraseology was not accidental or unmeaning, but was entirely based upon the well understood distinction between a citizen of the state merely, and a citizen of the United States. [In Re Wehlitz, 16 Wis. 443, 478 (1863)] The first clause of the fourteenth amendment made negroes citizens of the United States, and citizens of the State in which they reside, and thereby created two classes of citizens, one of the United States and the other of the state. [Cory et al. v. Carter, 48 Ind. 327 (1874)] [headnote 8, emphasis added] Judge Cooley, in his great work on Constitutional Limitations, on page 54, says: "A cardinal rule in dealing with written instruments is that they are to receive an unvarying interpretation, and that their practical construction is to be uniform." [Cory et al. v. Carter, 48 Ind. 327, 335 (1874)] Is a voter under the constitution of the State of Indiana, though not a citizen of the United States, eligible to hold the office of township trustee? ... The constitution [of Indiana], and its fair interpretation, therefore, conduct us to the conclusion that the contestee was eligible to the office of township trustee, and that he is entitled to hold it, and exercise its functions. [McCarthy v. Froelke, 63 Ind. 507, 509-511 (1878)] Demand for Jury Trial and for Stay of Proceedings: Page 4 of 16 One may be a citizen of a State and yet not a citizen of the United States. Thomasson v. State, 15 Ind. 449; Cory v. Carter, 48 Ind. 327 (17 Am. R. 738); McCarthy v. Froelke, 63 Ind. 507; In Re Wehlitz, 16 Wis. 443. [McDonel v. State, 90 Ind. 320, 323 (1883)] [underlines added] For it would seem incompatible with the spirit of our laws to exclude one from the jury box who was eligible to act as jury commissioner in selecting jurors; or as sheriff in empanneling a jury; or as judge to preside at the trial. [McDonel v. State, 90 Ind. 320, 324 (1883)] One may be a citizen of a state, and yet not a citizen of the United States -- McDonel v. State, 90 Ind. 320. [4 Dec. Dig. '06 -- Page 1197 (1906), "Citizens", Sec. 11] [underlines added] The first clause of the fourteenth amendment of the federal Constitution made negroes citizens of the United States, and citizens of the state in which they reside, and thereby created two classes of citizens, one of the United States and the other of the state -- Cory v. Carter, 48 Ind. 327, 17 Am. Rep. 738. [4 Dec. Dig. '06 -- Page 1197 (1906), "Citizens", Sec. 11] [emphasis and underlines added] ... Rights and privileges of a citizen of the state or of the United States. [Harding v. Standard Oil Company] [182 F. 421 (USCC, Ill. 1910)] One may be a citizen of the United States, and yet not a citizen of any state. [Hough v. Societe Electrique Westinghouse de Russie] [231 F. 341 (USDC, NY, 1916)] The following letter to Mr. Ray Feyereisen also contains a wealth of additional citations, which not only establish the existence of two classes of citizenship, but they also establish that an American may be a state Citizen without also being a federal citizen, by Right of Election. The letter to Mr. Feyereisen now follows, to wit: Demand for Jury Trial and for Stay of Proceedings: Page 5 of 16 c/o general delivery San Rafael [zip code exempt] California state September 10, 1993 Ray Feyereisen c/o general delivery Houston, Texas Republic Postal Code 77253/tdc Dear Ray: I did some more research today, to explore some of the cases which support the position that one can be a State Citizen without necessarily being a citizen of the United States. You already knew about Crosse; here are the relevant paragraphs: Both before and after the Fourteenth Amendment to the federal Constitution, it has not been necessary for a person to be a citizen of the United States in order to be a citizen of his state. United States v. Cruikshank, 92 U.S. 542, 549, 23 L.Ed. 588 (1875); Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 73-74, 21 L.Ed. 394 (1873); and see Short v. State, 80 Md. 392, 401-402, 31 A. 322 (1895). See also Spear, State Citizenship, 16 Albany L.J. 24 (1877). ... [B]ut we find nothing in Reum [City of Minneapolis v. Reum, 56 F. 576, 581 (8th Cir. 1893)] or any other case which requires that a citizen of a state must also be a citizen of the United States, if no question of federal rights or jurisdiction is involved. As the authorities referred to in the first portion of this opinion evidence, the law is to the contrary. [Crosse v. Board of Supervisors of Elections] [221 A.2d 431 (1966), emphasis and underlines added] Corpus Juris is another source of authorities which support this position: So a person may be a citizen of a particular state and not a citizen of the United States46 .... [11 C.J., Sec. 3, p. 777] Footnote 46 lists the following cases: Harding v. Standard Oil Co., 182 Fed. 421 (1910) McDonel v. State, 90 Ind. 320 (1883) State v. Fowler, 41 La. Ann. 380, 6 S. 602 (1889) The reference librarian at the County Law Library and I searched in vain for McDonel v. State; they're going to put their special legal beagle on that search. Here's what Harding said: Demand for Jury Trial and for Stay of Proceedings: Page 6 of 16 In the Constitution and laws of the United States the term ["citizenship"] is generally, if not always, used in a political sense to designate one who has the rights and privileges of a citizen of a state or of the United States. Baldwin v. Franks, 120 U.S. 678, 7 Sup. Ct. 656, 30 L.Ed. 766. A person may be a citizen of a state but not of the United States; as, an alien who has declared his intention to become a citizen, and who is by local law entitled to vote in the state of his residence, and there exercise all other local functions of local citizenship, such as holding office, right to poor relief, etc., but who is not a citizen of the United States. Taney, C.J., in Dred Scott v. Sandford, 19 How. 405, 15 L.Ed. 691; Slaughterhouse Cases, 16 Wall. 74, 21 L.Ed. 394. [Harding v. Standard Oil Co. et. al., 182 Fed. 421 (1910)] [emphasis and underlines added] I really love the pertinent quote from State v. Fowler, which was decided by the Louisiana Supreme Court in 1889: A person who is a citizen of the United States is necessarily a citizen of the particular state in which he resides. But a person may be a citizen of a particular state and not a citizen of the United States. To hold otherwise would be to deny to the state the highest exercise of its sovereignty, -- the right to declare who are its citizens. The sovereignty of the citizens of a republic has its highest assertion in representative government, and is constituted in its political order in the representation of persons, and not of classes or of interests. [State ex rel. Leche v. Fowler, 41 La. Ann. 380] [6 S. 602 (1889), emphasis added] The Crosse court cites Short v. State, which came to essentially the same conclusion in the following long passage: And then, as to the objection that this local law is repugnant to that clause in the fourteenth amendment of the federal constitution which declares that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," it is sufficient to say that the interpretation of that clause by the supreme court in the Slaughterhouse Cases, 16 Wall. 36, is a complete answer to this objection. There is a distinction, says Justice Miller, between citizenship of the United States and citizenship of a state. [Short v. State, 80 Md. 392, 401-402, 31 A. 322 (1895)] [emphasis and underlines added] The Crosse court cites Short v. State, but I could find in the latter decision no statements which took the exact position we are seeking; nevertheless, it does cite the Slaughterhouse Cases and also Bradwell v. State, 16 Wall. 130. In the Bradwell case, Mr. Justice Miller, speaking for the court, says: The protection designed by that clause, as has been repeatedly held, has no application to a citizen of the state whose laws are complained of. [emphasis added] Demand for Jury Trial and for Stay of Proceedings: Page 7 of 16 Also, I think I have already mentioned this book, but it's worth mentioning again. See if you can get your hands on a copy of A Treatise on Citizenship by Birth and by Naturalization, by Alexander Porter Morse, Boston: Little, Brown, and Company, 1881. Buried near the end of this voluminous treatise is a section entitled "State Citizenship -- Its Existence". In addition to the big cases like Dred Scott, Slaughterhouse and Cruikshank, he mentions the following in his footnotes: Corfield v. Coryell, 4 Wash. C.C. 371 Conner v. Elliott, 18 How. 591 Donovan v. Pitcher, 53 Ala. 411 Cully v. Baltimore, etc., R.R. Co., 1 Hughes 536 Prentiss v. Brennan, 2 Blatchf. 162 Frasher v. State, 3 Tex. Ct. App. 267 Reilly v. Lamar, 2 Cranch 344 He also writes, "That there is a state citizenship, see Registry Act of California of 1865-1866, sect. 11." I pulled it; check it out. So, you thought you were caught up with all your work, did you? Carry on, and peace be with you. Sincerely yours, /s/ John E. Trumane [end of letter to Mr. Feyereisen] Analysis of California state Constitution Plaintiff quotes here from the California Constitution of 1849, signed by Judge Pablo De La Guerra, who later identified the proper construction of the Qualifications Clauses, in his case as a Respondent in People v. De La Guerra, 40 Cal. 311 (1870). Here is a pertinent paragraph from that California Constitution of 1849: Sec. 5. Every citizen of California, declared a legal voter by this Constitution, and every citizen of the United States, a resident of this state on the day of election, shall be entitled to vote at the first general election under this Constitution, and on the question of the adoption thereof. [emphasis added] Demand for Jury Trial and for Stay of Proceedings: Page 8 of 16 At first glance, this section appears to refer to two (2) separate classes of American citizens: citizens of California, and citizens of the United States. However, having reviewed People v. De La Guerra, we now understand that, prior to the Civil War and its ugly aftermath, the term "Citizen of the United States", as that term is used in the Qualifications Clauses, means "Citizen of ONE OF the States united", that is, Citizen of ONE OF the Union states. We also have the construction by the California Supreme Court, soon after that 1849 Constitution was ratified. In 1855, that Court ruled that there is no such thing as a citizen of the United States, if the latter term refers to a class of citizens different from Citizens of ONE OF the States united. Judge Pablo De La Guerra's profound construction is worthy of very close scrutiny and study, because it provides a way out of the confusion and controversy that swirls about this subject, even now. In light of De La Guerra's pivotal insight, we are justified in constructing the 1849 California Constitution as follows: Every Citizen of California state declared a legal voter by this Constitution, and every Citizen of ONE OF the other Union states who is a resident of California state on the day of election, shall be entitled .... In other words, in 1849, the lower-case "c" in "citizen" appears to have been the preferred convention. Nevertheless, this lower-case "c" did not render that term a legal franchise which was subject to the municipal authority of Congress, as is now the case with federal citizenship. Demand for Jury Trial and for Stay of Proceedings: Page 9 of 16 On the contrary, in the year 1855, the California Supreme Court, in Ex parte Knowles, 5 Cal. 300 (1855), made it very clear that there was no such thing as a citizen of the United States, if by that term is meant a second class of citizens, different from the primary class of state Citizens, i.e. Citizens of ONE OF the States united. The 1849 California Constitution is merely trying to establish who would be entitled to vote in general elections, and to vote on the question of adopting that Constitution. Those People would be either Citizens of California state, or Citizens of ONE OF the other states of the Union, as long as the latter Citizens were resident in California state on the day of the election. This logic appears to explain the apparent anomaly that is found in Section 5 of the 1849 California Constitution as quoted above. Despite appearances of two classes of citizens, which appearances arise from a faulty construction, the proper construction yields only a single class of state Citizens. This proper construction conforms to the decisions of the California Supreme Court in Ex parte Knowles supra and People v. De La Guerra supra. Analysis of Arizona state Constitution Now Plaintiff performs a comparable analysis of a noteworthy provision in the Constitution of Arizona state. Under the section entitled "Eligibility to state offices", we find another passage which also appears to acknowledge two (2) separate classes of citizenship, but only if a faulty construction is again placed upon the language. Here's the pertinent section: Section 2. No person shall be eligible to any of the offices mentioned in section 1 of this article except a person of the age of not less than twenty-five years, who shall have been for ten years next preceding his election a citizen of the United States, and for five years next preceding his election a citizen of Arizona. Demand for Jury Trial and for Stay of Proceedings: Page 10 of 16 Clearly, this section makes a very obvious distinction between being a citizen of the United States for at least ten years, and a citizen of Arizona for at least five years. It is very tempting to conclude from this section that there are two separate classes of citizenship. However, using the construction which was so well established by the California Supreme Court in Ex parte Knowles supra, we are again justified in making the following proper construction of this section from the Arizona state Constitution: No person shall be eligible to any of the offices mentioned ... except a person who shall have been a Citizen of ONE OF the Union states for at least 10 years, and who shall have been a Citizen of Arizona state for at least five years. This construction conforms perfectly to the construction established in California state, at least by 1855, if not before. REMEDY DEMANDED Wherefore, all premises having been duly considered by this honorable Court, Plaintiff hereby demands a trial by competent and qualified jury, and also an indefinite stay of the instant proceedings, pending final review of Plaintiff's formal challenge to the constitutionality of Arizona Revised Statutes 16-101 and 21-201, and to the corresponding provisions in the Arizona state Constitution, for violating the Guarantee Clause in the Constitution for the United States of America, as lawfully amended. Demand for Jury Trial and for Stay of Proceedings: Page 11 of 16 VERIFICATION I, Paul Andrew Mitchell, 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 statements of fact are true and correct, 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: July 8, 1997 Respectfully submitted, /s/ Paul Andrew Mitchell Paul Andrew Mitchell, Sui Juris Citizen of Arizona state (expressly not a citizen of the United States) All Rights Reserved without Prejudice Demand for Jury Trial and for Stay of Proceedings: Page 12 of 16 PROOF OF SERVICE [redacted for privacy] Demand for Jury Trial and for Stay of Proceedings: Page 13 of 16 Executed on July 8, 1997: /s/ Paul Andrew Mitchell Paul Andrew Mitchell, Sui Juris Citizen of Arizona state (expressly not a citizen of the United States) All Rights Reserved without Prejudice Demand for Jury Trial and for Stay of Proceedings: Page 14 of 16 Exhibit "A": MOTION TO STAY PROCEEDINGS FOR FAILING TO COMPLY WITH GRAND JURY SELECTION POLICY, AND NOTICE OF CHALLENGE AND CHALLENGE TO CONSTITUTIONALITY OF STATUTE U.S.A. [sic] v. Wallen United States District Court District of Arizona, Tucson Case Number #95-484-WDB Demand for Jury Trial and for Stay of Proceedings: Page 15 of 16 Exhibit "B": VERIFIED STATEMENT IN SUPPORT OF CHALLENGE TO GRAND JURY SELECTION POLICY AND ITS FEDERAL STATUTE U.S.A. [sic] v. Wallen United States District Court District of Arizona, Tucson Case Number #95-484-WDB Demand for Jury Trial and for Stay of Proceedings: Page 16 of 16 # # #
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Mitchell v. Nordbrock