Paul Andrew Mitchell, Sui Juris
c/o general delivery
San Marcos [ZIP code exempt]
TEXAS STATE
In Propria Persona
All Rights Reserved,
without prejudice
At Law
DISTRICT COURT OF TEXAS STATE
HAYS COUNTY
Paul Andrew Mitchell, ) Case No. CV-98-0547
)
Plaintiff, ) MEMORANDUM OF LAW
)
v. )
)
City of San Marcos, )
San Marcos Utility, )
Community Action, Inc. )
of Hays, Caldwell, & )
Blanco Counties, )
Century Telephone, Inc., )
and Does 1 thru 25, )
)
Defendants. )
_________________________)
COMES NOW Paul Andrew Mitchell, Sui Juris, Citizen of
Arizona state, Federal Witness, Counselor at Law,
Private Attorney General, and Candidate for the United
States ("U.S.") House of Representatives, currently
inhabiting Hays county in Texas state ("Plaintiff"),
to present this, His MEMORANDUM OF LAW in this case.
The Constitution for the United States of America,
as lawfully amended (hereinafter "U.S. Constitution"),
is the supreme Law of the Land throughout Texas state,
pursuant to the Supremacy Clause:
This Constitution, and the Laws of the United
States [federal government] which shall be made
in Pursuance thereof; and all Treaties made, or
which shall be made, under the Authority of the
United States [federal government], shall be the
supreme Law of the Land; ....
Despite what may be contained in the constitution
of any Union state, the judges in every state of the
Union are bound by the Supremacy Clause supra:
... and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding.
The Supremacy Clause, of course, mirrors the
matters over which the federal courts may exercise
judicial power, pursuant to the Arising Under Clause:
The Judicial Power [of the United States] shall
extend to all Cases, in Law and Equity, arising
under this Constitution, the Laws of the
United States, and Treaties made, or which shall
be made, under their Authority ....
Article III of the U.S. Constitution also
guarantees that all federal judges shall enjoy a
rate of compensation which shall not be diminished
during their term of office:
The Judges, both of the supreme and inferior
[federal] Courts, shall hold their Offices during
good Behaviour [sic], and shall, at stated Times,
receive for their Services, a Compensation, which
shall not be diminished during their Continuance
in Office.
In violation of this provision, the compensation
of ALL federal judges is presently being diminished
unlawfully, thus depriving Plaintiff of competent
federal courts with qualified judges who are impartial
and unbiased. See Evans v. Gore, 253 U.S. 245 (1920);
Lord v. Kelley, 240 F.Supp. 167, 169 (1965); O'Malley
v. Woodrough, 307 U.S. 277 (1939). Plaintiff disputes
the main holding in O'Malley supra, for being
predicated on two false and rebuttable premises:
(1) there is only one class of citizens
(there are two);
(2) all federal judges are citizens of either
class (but no federal law requires judges
to be citizens at all).
Thus, mirroring the Arising Under Clause, the
Supremacy Clause elevates three things to the lofty
status of Supreme Law: (I) the U.S. Constitution
itself (as lawfully amended); (II) all federal laws
which are made in pursuance of the U.S. Constitution;
(III) all Treaties which are enacted under authority
of the U.S. Constitution. The instant case involves
provisions from all three types of supreme Laws.
I.
The U.S. Constitution is required to adjudicate
this case for the following several reasons:
(1) The Qualifications Clauses at 1:2:2, 1:3:3,
and 2:1:5 are necessary to prove Plaintiff's claim
to being a Citizen of Arizona state who is not also
a federal citizen, by Right of Election. Confer at
"Federal citizenship" in Black's Law Dictionary, Sixth
Edition (with Pronunciations). Confer at "Right of
Election" [sic], recognized by the Maine Supreme Court,
Appleton concurring at 44 Maine 528-529 (1859).
(2) The proper construction of the Qualifications
Clauses requires a careful study of pertinent cases
which have also constructed the Diversity Clause,
which authorizes the judicial power to be exercised
in controversies between Citizens of different states
of the Union. See 3:2:1. Federal citizens, as such,
were not contemplated at the time the organic U.S.
Constitution was first enacted, and this second class
of citizens was first created by the 1866 Civil Rights
Act.
(3) The Privileges and Immunities Clause is
pertinent to the instant case, because Plaintiff is
presently a Citizen of Arizona state who currently
inhabits Texas state, and has no present intention
to become a Citizen of Texas state. See 4:2:1.
(4) The Supremacy Clause governs the rules which
must be applied in the event that any conflicts may
arise between United States (federal government) laws,
and Texas state laws; and any conflicts that may
arise between Texas state laws, and two Human Rights
Treaties which Plaintiff seeks to enforce in a Texas
state court of general jurisdiction. See detailed
discussion at Sec. V infra.
(5) The First Amendment, one of the most
magnificent constitutional provisions ever written,
guarantees freedom of speech, freedom of religious
expression, and the Right to petition government
for redress of grievances. All court pleadings,
of whatever type, are petitions to government for
redress of grievances.
(6) The Ninth and Tenth Amendments govern the
proper construction of all federal authorities which
are enumerated in the U.S. Constitution, and expressly
reserve to the People, or to the several states, all
powers which are not delegated to the United States
[federal government] by the U.S. Constitution, and
all powers which are not prohibited to the several
states by the U.S. Constitution. The Tenth Amendment
is, by far, one of the most broad provisions in the
U.S. Constitution, as applied in the instant case,
and Plaintiff will rely upon it to elevate certain
demands to the level of fundamental Rights, which
are not expressly enumerated in the two Human Rights
Treaties which are also invoked.
II.
Laws of the United States [federal government]
are required to adjudicate this case for the following
several reasons:
(7) The federal Privacy Act at 5 U.S.C. 552a
has been amended by Public Law 93-579 for specific
purposes and intents which have been violated in the
instant case. Said Public Law reads as follows:
(a)(1) It shall be unlawful for any Federal,
State or local government agency to deny to any
individual any right, benefit, or privilege
provided by law because of such individual's
refusal to disclose his social security account
number.
(2) The provisions of paragraph (1) of this
subsection shall not apply with respect to --
(A) any disclosure which is required by
Federal statute, or
(B) the disclosure of a social security
number to any Federal, State, or local agency
maintaining a system of records in existence
and operating before January 1, 1975, if such
disclosure was required under statute or
regulation adopted prior to such date to
verify the identity of an individual.
(b) Any Federal, State, or local government
agency which requests an individual to disclose
his social security account number shall inform
that individual whether that disclosure is
mandatory or voluntary, by what statutory or
other authority such number is solicited, and
what uses will be made of it.
The legislative intent of this Privacy Act
Amendment has already been litigated and decided:
... Pub.L. 93-579, Sec. 7 ... was enacted for
[the] purpose of curtailing the expanding use
of social security numbers by federal and local
agencies and to eliminate the threat to
individual privacy and confidentiality of
information posed by common numerical
identifiers.
[Doyle v. Wilson, D.C. Del. 1982]
[529 F.Supp. 1343]
(8) The federal criminal code, at Title 18 of
the United States Code, binds state government
personnel, and private Citizens as well, to refrain
from depriving other Citizens of any fundamental Right
which is guaranteed by the U.S. Constitution. It is
a misdemeanor for anyone to deprive a Citizen of any
such fundamental Rights. See 18 U.S.C. 242. It is
a felony for any two or more people to conspire
to deprive a Citizen of any such Rights. See 18
U.S.C. 241. Privacy and equal protection of the law
are two such fundamental Rights.
(9) The federal Social Security Act, 42 U.S.C.
405 et seq., defines what "appropriate groups" or
"categories of individuals" are required to obtain
Social Security Numbers:
1. aliens at the time of their lawful admission
to the United States ...;
2. any individual who is an application for
or recipient of benefits ...;
3. any other individual when it appears that
he could have been but was not assigned an
account number ...;
4. children who are below school age at the
request of their parents or guardians;
5. children of school age at the time of their
first enrollment in school.
[42 U.S.C. 405(c)(1)(B)(i)]
(10) The federal Social Security Act, 42 U.S.C.
405 et seq., also contains specific definitions of
the term "State", in the following provisions:
(vii) For purposes of this subparagraph, the term
"State" includes the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands,
Guam, the Commonwealth of the Northern Marianas,
and the Trust Territory of the Pacific Islands.
[42 U.S.C. 405(c)(1)(C)(vii)]
(II) ... the term "State" includes the District
of Columbia, the Commonwealth of Puerto Rico, the
Virgin Islands, Guam, the Commonwealth of the
Northern Marianas, and the Trust Territory of the
Pacific Islands.
[42 U.S.C. 405(c)(1)(D)(ii)(II)]
(iv) For purposes of this subparagraph, the term
"State" has the meaning such term has in sub-
paragraph (D). [supra]
[42 U.S.C. 405(c)(1)(E)(iv)]
Plaintiff hereby makes a formal offer to prove
that the term "includes" in said definitions of the
term "State" is restrictive. See, in pari materia,
the opinions of the Legislative Counsel and the
Congressional Research Service concerning a similar
definition at 26 U.S.C. 3121(e), as summarized in a
letter from U.S. Representative Barbara Kennelly.
(11) As a qualified federal witness (who is not
presently in the Federal Witness Protection Program
sponsored by the U.S. Department of Justice), Plaintiff
is protected by the provisions at 18 U.S.C. 1512 and
1513. Both of these statutes have extra-territorial
federal jurisdiction (which means that they can be
enforced outside the federal zone and inside the
several states of the Union).
(12) As a candidate for a seat in the U.S. House
of Representatives, Plaintiff is involved in what
Congress has defined to be a "federally protected
activity" [sic], at 18 U.S.C. 245(b)(1)(A), to wit:
(b) Whoever, whether or not acting under color
of law, by force or threat of force willfully
injures, intimidates or interferes with, or
attempts to injure, intimidate or interfere with -
(1) any person because he is or has been, or
in order to intimidate such person or any
other person or any class of persons from --
(A) voting or qualifying to vote,
qualifying or campaigning as a
candidate for elective office ....
[18 U.S.C. 245(b)(1)(A)]
(13) The 1866 Civil Rights Act was the first
legislative Act by the Congress of the United States
to create the second class of citizens known today as
"federal citizens", also known as "citizens of the
United States". The so-called 14th amendment [sic]
did not ever "create" this second class of citizens;
it was merely an attempt to declare existing law and
to elevate that law to the level of a constitutional
amendment. However, the unrebutted historical facts
recited by the Utah Supreme Court in Dyett v. Turner,
439 P.2d 266, 270 (1968), and then again in State v.
Phillips, 540 P.2d 936, 941 (1975), prove that this
proposal was never lawfully ratified.
Plaintiff makes no claims whatsoever which might
be predicated upon non-existing provisions in any
state or federal constitutions or statutes. Moreover,
the existence of two classes of citizens was upheld
by courts AFTER 1868, as was the Right to be a state
Citizen without also becoming a federal citizen, thus
rendering the 14th amendment [sic] entirely moot
for purposes of the instant case.
(14) The U.S. Congress has defined, by statute,
two forms to which verifications made under penalty of
perjury must conform. One form is for verifications
made INSIDE the United States (federal government);
the other form is for verifications made OUTSIDE the
United States (federal government). See subsections
(1) and (2) at 28 U.S.C. 1746, 90 Stat. 2534.
It is clear that this statute correctly maintains
the crucial distinction between the "United States" and
the "United States of America". Verifications made
OUTSIDE the "United States" [federal government] must
contain the qualifier "under the laws of the United
States of America". Verifications made INSIDE the
"United States" [federal government] need not exhibit
said qualifier. The latter form is the one which is
used on IRS Form 1040 for federal income tax returns.
Plaintiff utilizes 28 U.S.C. 1746(1) to verify all
pleadings in the instant case. This is the form for
verifications, under penalty of perjury, made OUTSIDE
the United States [federal government], and INSIDE
the United States of America, of which Texas state
is now a member in good standing.
III.
Treaties of the United States [federal government]
are required to adjudicate this case for the following
several reasons:
(15) Privacy is a fundamental Right protected by
the following provisions of two Human Rights Treaties:
Article 12 of the Universal Declaration of
Human Rights ("Declaration"), reads:
No one shall be subjected to arbitrary inter-
ference with his privacy, family, home or
correspondence, nor to attacks upon his honour
or reputation. Everyone has the right to the
protection of the law against such interference
of attacks.
Article 17 of the International Covenant on
Civil and Political Rights ("Covenant"), reads:
1. No one shall be subjected to arbitrary or
unlawful interference with his privacy, family,
home or correspondence, nor to unlawful attacks
on his honour and reputation.
2. Everyone has the right to the protection of
the law against such interference or attacks.
(16) Equal Protection of the Law is a fundamental
Right protected by the following provisions of the
two Human Rights Treaties. Article 7 of the
Declaration reads:
All are equal before the law and are entitled
without any discrimination to equal protection
of the law. All are entitled to equal protection
against any discrimination in violation of this
Declaration and against any incitement to such
discrimination.
Article 26 of the Covenant reads:
All persons are equal before the law and are
entitled without any discrimination to the equal
protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee
to all persons equal and effective protection
against discrimination on any ground such as
race, colour [sic], sex, language, religion,
political or other opinion, national or social
origin, property, birth or other status.
(17) Freedom of religious belief is a fundamental
Right protected by the following provisions of the
two Human Rights Treaties. Article 18 of the
Declaration reads:
Everyone has the right to freedom of thought,
conscience and religion; this right includes
freedom to change his religion or belief,
and freedom, either alone or in community with
others and in public or private, to manifest his
religion or belief in teaching, practice, worship
and observance.
Article 18 of the Covenant reads:
1. Everyone shall have the right to freedom of
thought, conscience and religion. This right
shall include freedom to have or to adopt a
religion or belief of his choice, and freedom,
either individually or in community with others
and in public or private, to manifest his
religion or belief in worship, observance,
practice and teaching.
2. No one shall be subject to coercion which
would impair his freedom to have or to adopt a
religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs
may be subject only to such limitations as are
prescribed by law and are necessary to protect
public safety, order, health, or morals or the
fundamental rights and freedoms of others.
4. The States Parties to the present Covenant
undertake to have respect for the liberty of
parents and, when applicable, legal guardians
to ensure the religious and moral education of
their children in conformity with their own
convictions.
(18) Freedom of expression is also a fundamental
Right protected by the following provisions of the
two Human Rights Treaties. Article 19 of the
Declaration reads:
Everyone has the right to freedom of opinion and
expression; this right includes freedom to hold
opinions without interference and to seek,
receive and impart information and ideas through
any media and regardless of frontiers.
Article 19 of the Covenant reads:
1. Everyone shall have the right to hold opinions
without interference.
2. Everyone shall have the right to freedom of
expression; this right shall include freedom to
seek, receive and impart information and ideas of
all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of
art, or through any other media of his choice.
3. The exercise of the rights provided for in
paragraph 2 of this article carries with it
special duties and responsibilities. It may
therefore be subject to certain restrictions,
but these shall only be such as are provided
by law and are necessary:
(a) For respect of the rights or reputations
of others;
(b) For the protection of national security
or of public order (ordre public), or of
public health or morals.
(19) Freedom of association is a fundamental
Right protected by the following provisions of
two Human Rights Treaties. Article 20 of the
Declaration reads:
1. Everyone has the right to freedom of peaceful
assembly and association.
2. No one may be compelled to belong to an
association.
This latter Right is important in the instant case,
insofar as Plaintiff complains of compelled association
with the Social Security program (a voluntary federal
program) and with a political class of federal citizens
who are subject to a jurisdiction which is NOT
protected by the Guarantee Clause in the U.S.
Constitution. The federal zone is a legislative
democracy; the state zone is guaranteed a Republican
Form of Government. See Guarantee Clause.
Article 22 of the Covenant reads:
1. Everyone shall have the right to freedom of
association with others, including the right to
form and join trade unions for the protection of
his interests.
2. No restrictions may be placed on the exercise
of his right other than those which are prescribed
by law and which are necessary in a democratic
society in the interests of national security or
public safety, public order (ordre public), the
protection of public health or morals or the
protection of the rights and freedoms of others.
This article shall not prevent the imposition of
lawful restrictions on members of the armed forces
and of the police in their exercise of this right.
3. Nothing in this article shall authorize States
Parties to the International Labour Organisation
Convention of 1948 concerning Freedom of
Association and Protection of the Right to
Organize to take legislative measures which would
prejudice, or to apply the law in such a manner
as to prejudice, the guarantees provided for in
that Convention.
(20) The right to work is also a fundamental
Right protected by the following provisions of the
Declaration. Article 23 of the Declaration reads:
1. Everyone has the right to work, to free choice
of employment, to just and favourable conditions
of work and to protection against unemployment.
2. Everyone, without any discrimination, has the
right to equal pay for equal work.
3. Everyone who works has the right to just and
favourable remuneration ensuring for himself and
his family an existence worthy of human dignity,
and supplemented, if necessary, by other means of
social protection.
4. Everyone has the right to form and to join
trade unions for the protection of his interests.
(21) A fair standard of living is a fundamental
Right which is protected by the following provisions of
the Declaration. Article 25 of the Declaration reads:
1. Everyone has the right to a standard of living
adequate for the health and well-being of himself
and of his family, including food, clothing,
housing and medical care and necessary social
services, and the right to security in the event
of unemployment, sickness, disability, widowhood,
old age or other lack of livelihood in circum-
stances beyond his control.
2. [motherhood/childhood not pertinent here]
IV
Laws of Texas state are required to adjudicate
the instant case, for the following reasons.
(22) Article I, Sections 3, 3a, and 6, of the
Bill of Rights in the Texas state Constitution, have
the following headings:
Section 3. Equal rights.
Section 3a. Equality under the law.
Section 6. Freedom of worship.
(23) Plaintiff believes, without further research
or specific citations, that Texas state criminal
statutes prohibit extortion, false arrest, and false
imprisonment, with appropriate fines and penalties
defined. During Phases II and III of the instant
case (see VERIFIED COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF), Plaintiff intends to lay claims
to impose said fines, through lawful jury awards.
V.
The relationship between treaties enacted
pursuant to the Supremacy Clause, and the Texas state
constitution or statutes, is now discussed by
paraphrasing the citations found at 87 C.J.S. Sec. 19,
concerning "Treaties".
a. In General. By virtue of an express provision
in the U.S. Constitution, treaties are superior
to the laws of the several states.
The Supremacy Clause makes treaties superior to
both the constitutions and laws of the several states,
including the common law of a state, in so far as it
is in conflict with the provisions of a treaty.
Valid treaties are as binding within the
territorial limits of the states as throughout the
dominion of the United States. A treaty must be
regarded as a part of the law of a state as much as
are the state's own local laws and constitution,
and is effective and binding on the state legislature.
A treaty may override the power of the state
even in respect of the great body of private relations
which usually fall within the control of the state.
The treaty-making power is superior to the reserved
powers of the state, including the police power,
provided that the subject matter of the treaty is not
arbitrary and disconnected and remote from inter-
national intercourse.
The public policy of a state, as evidenced by
either the common law or statutes, must yield to the
provisions of a treaty. A state has no power to
interfere with, or limit the operation of, a treaty.
b. State Constitution. A treaty is superior
to a state constitution and, in case of conflict,
the treaty will control.
By virtue of the Supremacy Clause, a treaty is
superior to a state constitution. In so far as the
provisions of a state constitution and a treaty are
conflicting, the treaty will control; the
constitutional provision is either void or suspended
during the existence of the treaty, and the judges
of the state courts must uphold and enforce the treaty
provisions.
Where, however, no conflict exists, the
constitutional provision will be given effect;
as, for example, where a treaty makes rights which
may be claimed thereunder subject to state
constitutional provisions.
c. State Statute. A treaty is superior to a
state statute and, in case of a conflict, the
statute will be suspended or held in abeyance
during the existence of the treaty.
In view of the Supremacy Clause, a treaty is
superior to a state statute, including statutes
otherwise within the legislative power of the state.
Or, as sometimes stated, the treaty power is
independent of, and superior to, the legislative power
of the states, and a state cannot by legislative act
interfere with the proper observance of treaties,
or destroy rights created by treaties.
In view of the foregoing rules, when the
provisions of a state statute and a treaty conflict,
the latter will control. The application of the
statute, as to the subject matter covered by the
treaty, will be held in abeyance during the existence
of the treaty. Or, as sometimes stated, the statute
is void or suspended during the existence of the
treaty. In such a case, the state courts must uphold
and enforce the treaty provisions.
A state law is, however, suspended or invalidated
only in so far as it contravenes the provisions of the
treaty. If, under a proper construction of the treaty
and statute, the latter can be given effect without
violating the provisions of the treaty, this should be
done, particularly in the case of statutes enacted
in the proper exercise of the police power, for
example, statutes for the protection and preservation
of the public health. Such statutes, if they are
proper police regulations and if they are applicable
without discrimination to citizens and to all aliens,
will not ordinarily be held invalid as impairing treaty
rights, notwithstanding that they may happen to affect
the citizens or subjects of one nation more than
others. See all cites in 87 C.J.S. Section 19,
"Treaties".
VERIFICATION
I, Paul Andrew Mitchell, Sui Juris, a Citizen of
ONE OF the United States of America, hereby verify,
under penalty of perjury, under the laws of the
United States of America, that the above statement
of 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: May 26, 1998
Respectfully submitted,
/s/ Paul Andrew Mitchell
Paul Andrew Mitchell, B.A., M.S.
Counselor at Law, Federal Witness,
Private Attorney General, and Candidate
for the U.S. House of Representatives
All Rights Reserved without Prejudice
[See USPS Pub. #221 for addressing instructions.]
# # #
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Mitchell v. City of San Marcos et al.