William Michael, Kemp, Sui Juris c/o General Delivery Gadsden, Alabama state (non-domestic zip code exempt) In Propria Persona All Rights Reserved Without Prejudice DISTRICT COURT OF THE UNITED STATES NORTHERN JUDICIAL DISTRICT OF ALABAMA MIDDLE DIVISION STATE OF ALABAMA [sic] ) Case No. CV97-H-22-M ) Plaintiff [sic] ) 16th Cir. Case #CC-95-1083-DWS ) v ) NOTICE OF REFUSAL FOR CAUSE ) OF ORDER REMANDING THIS ACTION WILLIAM MICHAEL KEMP [sic], ) TO THE CIRCUIT COURT ) FOR ETOWAH COUNTY Defendant [sic] ) Rule 201(d), 301, and 302, ) Federal Rules of Evidence ) Rule 9(b) FRCP ) ) ) ) ______________________________) COMES NOW William Michael Kemp, Sui Juris (hereinafter "Petitioner"), to provide formal Notice to all interested party(s), and to demand mandatory judicial notice by this honorable Court, pursuant to Rules 201(d), 301, and 302 of the Federal Rules of Evidence, of this, Petitioner's formal Refusal, pursuant to Rule 9(b) of the Federal Rules of Civil Procedure, of the alleged ORDER of the honorable James H. Hancock, Chief Judge, United States District Court (hereinafter "Chief Judge"), issued and filed erroneously in the instant case on January 8, 1997. Petitioner refuses said ORDER for fraud, as is demonstrated with particularity in the following, to wit: Notice of Refusal for Cause: Page 1 of 10 1. Because Petitioner seeks, as is His Right, to invoke Constitutional (Article III) judicial authority in protection of His Rights guaranteed under the Constitution for the United States of America, as lawfully amended ("U.S. Constitution"), and declares that these Rights have been violated by a "Drug Task Force" of Etowah County Alabama, which operates with a large proportion of federal funding; Petitioner declares that not only have His essential Rights been violated, but also federal funds have been used to accomplish the violation; further, these violations are the standard practice of said "Drug Task Force." Petitioner filed His PETITION FOR WARRANT OF REMOVAL in the District Court of the United States ("DCUS"), Northern Judicial District of Alabama, Middle Division, as is evident on the face of the document. Petitioner has a receipt from a Postal Money Order, serial number 64697148821, issued on January 6, 1997 at United States Post Office "359530." This shows receipt by the Clerk, District Court of the United States [sic], of the sum of one hundred fifty dollars and no cents ($$150.00) in lawful money, from Petitioner, whose ship-to location is in care of 2108 Lookout Street located in Gadsden, Alabama state. 2. The Chief Judge's ORDER is plainly issued from the United States District Court for the Northern District of Alabama, Middle Division. As mentioned supra, Petitioner's VERIFIED PETITION was presented to the District Court of the United States. The former is an Article IV territorial tribunal, with territorial and subject matter jurisdiction tightly constrained by Acts of Congress; the latter is an Article III judicial power Court, with general jurisdiction to hear all matters arising under the Constitution, laws, and treaties of the United States. Petitioner finds the Chief Judge's ORDER of Remand to be ultra vires (without effect) on the instant case. Jurisdiction of court may be challenged at any stage of the proceeding, and also may be challenged after conviction and execution of judgment by way of writ of habeas corpus. [U.S. v. Anderson, 60 F.Supp. 649 (D.C.Wash. 1945)] Notice of Refusal for Cause: Page 2 of 10 3. NOTICE OF INTENT TO SUBMIT FOIA REQUEST Petitioner hereby places all interested party(s) on formal Notice of Petitioner's intent to submit a proper request under the Freedom of Information Act ("FOIA") for all financial records of the federally funded Drug Task Force of Etowah county, Alabama state. The DCUS is the federal court of original jurisdiction to compel production of documents requested under the FOIA, and to enjoin the improper withholding of said documents, upon exhaustion of requester's administrative remedies. See 5 U.S.C. 552(a)(4)(B). 4. Petitioner argues that the only competent and qualified candidates for temporary assignment to preside on a three-judge panel in this honorable District Court of the United States ("DCUS") are those who now preside upon the United States Court of International Trade, which is expressly an Article III forum, by Act of Congress. See 28 U.S.C. 251(a), to wit: The court is a court established under article III of the Constitution of the United States. 5. Petitioner requires a competent and qualified panel of three federal judges to preside on this DCUS, because Citizens of Alabama state are not presently being counted in decisions to apportion congressional districts: they cannot register to vote; and they also cannot serve on federal grand or petit juries, unless they are willing to sign fraudulent voter registration affidavits and thereby create the presumption that they have opted into Federal citizenship. Confer at "Federal citizenship" in Black's Law Dictionary, Sixth Edition. Petitioner hereby explicitly exercises His fundamental Right of Election to refuse Federal citizenship, because the "United States" [sic] has become a criminal enterprise, as evidenced by the War on Drugs [sic] and its municipal instrumentality, the "Drug Task Force" [sic] of Etowah county, Alabama state. See Alabama voter registration forms; Right of Election; jus soli; jus sanguinis. 6. The authority in Evans [See Evans v. Gore, 253 U.S. 245 (1920), never overturned] is particularly poignant. It is apparent to Petitioner, because of irrefutable historical research, that all sitting Judges of the United States District Court in America are appointed to serve in either an Article I or in an Article IV capacity at the present time. In this capacity, said Judges do not enjoy the explicit immunity which is found in Article III, Section 1 ("3:1") of the Constitution for the United States of America, as lawfully amended, to wit: The Judges, both of the supreme and inferior 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. [U.S. Constitution, Article III, Section 1] Notice of Refusal for Cause: Page 3 of 10 7. Petitioner submits that one of the major reasons why said Judges do not enjoy the explicit immunity at 3:1 is the doctrine of territorial heterogeneity. Confer in The Federal Zone: Cracking the Code of Internal Revenue, Fourth Edition, previously available on the Internet via the Alta Vista search engine; see also U.S. v. Lopez, 131 L.Ed.2d 626 (1995): Each of these [schools] now has an invisible federal zone [sic] extending 1,000 feet beyond the (often irregular) boundaries of the school property. [Kennedy concurring] Here, the U.S. Supreme Court utilized the term "federal zone" as a common noun, without any citations or footnotes. The doctrine of territorial heterogeneity, as such, is summarized as follows in the "Conclusions" of The Federal Zone: Cracking the Code of Internal Revenue, to wit: In exercising its exclusive authority over the federal zone, Congress is not subject to the same constitutional limitations that exist inside the 50 States. For this reason, the areas that are inside and outside the federal zone are heterogeneous with respect to each other. This difference results in a principle of territorial heterogeneity: the areas within the federal zone are subject to one set of rules; the areas without (or outside) the federal zone are subject to a different set of rules. The Constitution rules outside the zone and inside the 50 States. The Congress rules inside the zone and outside the 50 States. The 50 States are, therefore, in one general class, because all constitutional restraints upon Congress are in force throughout the 50 States, without prejudice to any one State. The areas within the federal zone are in a different general class, because these same constitutional restraints simply do not limit Congress inside that zone. [The Federal Zone, electronic Fifth Edition, Conclusions] 8. In the pivotal case of Downes v. Bidwell, 182 U.S. 244 (1901), which is discussed at several places in the book The Federal Zone supra, the U.S. Supreme Court established a doctrine whereby the Constitution of the "United States", as such, does not extend beyond the limits of the states which are united by and under it. This doctrine of territorial heterogeneity is now commonly identified as the "Downes Doctrine." 9. This doctrine has been reinforced by subsequent decisions of the U.S. Supreme Court, notably, the case of Hooven & Allison v. Evatt, 324 U.S. 652 (1945), in which the high Court ruled that the guarantees of the Constitution extend to the federal zone only as Congress has made those guarantees applicable. The United States District Courts ("USDC") are currently established by Congress as territorial (federal zone) courts, with constitutional authority emanating from Article IV, Section 3, Clause 2, to wit: Notice of Refusal for Cause: Page 4 of 10 The Congress shall have Power to dispose of and make all needed Rules and Regulations respecting the Territory or other Property belonging to the United States; ....[U.S. Constitution, Art. 4, Sec. 3, Cl. 2] 10. There is a distinct and definite difference between a "United States District Court" and a "District Court of the United States". The words "District Court of the United States" commonly describe constitutional courts created under Article III of the Constitution, not the legislative courts which have long been the courts of the Territories. See International Longshoremen's & Warehousemen's Union v. Juneau Spruce Corp., 342 U.S. 237 at 241 (1952), 72 S.Ct. 235, 96 L.Ed. 275, 13 Alaska 536. 11. The term "District Court of the United States" commonly describes Article III courts or "courts of the United States", and not legislative courts of the territories. See American Insurance Co. v. 356 Bales of Cotton, 1 Pet. 511 (1828), 7 L.Ed 242; International Longshoremen's and Warehousemen's Union v. Wirtz, 170 F.2d 183 (9th Cir., 1948), cert. den. 336 U.S. 919, 93 L.Ed. 1082, 69 S.Ct. 641, reh. den. 336 U.S. 971, 93 L.Ed 1121, 69 S.Ct. 936. 12. Though the judicial system set up in a territory of the United States is a part of federal jurisdiction, the phrase "court of the United States" when used in a federal statute is generally construed as not referring to "territorial courts." See Balzac v. Porto Rico, 258 U.S. 298 at 312 (1921), 42 S.Ct. 343, 66 L.Ed. 627. In Balzac, the High Court stated: The United States District Court is not a true United States court established under Article III of the Constitution to administer the judicial power of the United States therein conveyed. It is created by virtue of the sovereign congressional faculty, granted under Article IV, Section 3, of that instrument, of making all needful rules and regulations respecting the territory belonging to the United States. The resemblance of its jurisdiction to that of true United States courts in offering an opportunity to nonresidents of resorting to a tribunal not subject to local influence, does not change its character as a mere territorial court. 13. The distinction within the dual nature of the federal court system is also noted in Title 18 U.S.C. 3241, which states that the United States District Court for the Canal Zone shall have jurisdiction "concurrently with the district courts of the United States, of offenses against the laws of the United States committed upon the high seas." Notice of Refusal for Cause: Page 5 of 10 14. This honorable Court is directed to one of the great masters of U.S. Constitution, Chief Justice John Marshall, writing in the year 1828. Here, Justice Marshall makes a very clear distinction between judicial courts, authorized by Article III, and legislative (territorial) courts, authorized by Article IV. Marshall even utilizes some of the exact wording of Article IV to differentiate those courts from Article III "judicial power" courts, as follows: These [territorial] courts then, are not Constitutional courts, in which the judicial power conferred by the Constitution on the general government can be deposited. They are incapable of receiving it. They are legislative courts, created in virtue of the general rights of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations, respecting the territory belonging to the United States. The jurisdiction with which they are invested, is not a part of that judicial power which is defined in the 3d article of the Constitution, but is conferred by Congress, in the execution of those general powers which that body possesses over the territories of the United States. Although admiralty jurisdiction can be exercised in the States in those courts only which are established in pursuance of the 3d article of the Constitution, the same limitation does not extend to the territories. In legislating for them, Congress exercises the combined powers of the general and of the State government. [American Insurance Co. v. 356 Bales of Cotton], [1 Pet. 511 (1828)] Other supporting authorities now follow, to wit: Constitutional provision against diminution of compensation of federal judges was designed to secure independence of judiciary. [O'Donoghue v. U.S., 289 U.S. 516 (1933)], [headnote 2. Judges] The term "District Courts of the United States," as used in Criminal Appeals Rules, without an addition expressing a wider connotation, had its historic significance and described courts created under article 3 of Constitution, and did not include territorial courts. [Mookini et al. v. U.S., 303 U.S. 201], [headnote 2. Courts] Where statute authorized Supreme Court to prescribe Criminal Appeals Rules in District Courts of the United States including named territorial courts, omission in rules when drafted of reference to District Court of Hawaii, and certain other of the named courts, indicated that Criminal Appeals Rules were not to apply to those [latter] courts. [Mookini et al. v. U.S., 303 U.S. 201], [headnote 4. Courts] Notice of Refusal for Cause: Page 6 of 10 15. The following paragraph from Mookini is extraordinary for several reasons: (1) it refers to the "historic and proper sense" of the term "District Courts of the United States", (2) it makes a key distinction between such courts and application of their rules to territorial courts; (3) the application of the maxim inclusio unius est exclusio alterius is obvious here, namely, the omission of territorial courts clearly shows that they were intended to be omitted: Not only did the promulgating order use the term District Courts of the United States in its historic and proper sense, but the omission of provisions for the application of the rules to the territorial courts and other courts mentioned in the authorizing act clearly shows the limitation that was intended. [Mookini et al. v. U.S., 303 U.S. 201] The words "district court of the United States" commonly describe constitutional courts created under Article III of the Constitution, not the legislative courts which have long been the courts of the Territories. [Int'l Longshoremen's and Warehousemen's Union et al. v. Juneau Spruce Corp., 342 U.S. 237 (1952)] The phrase "court of the United States", without more, means solely courts created by Congress under Article III of the Constitution and not territorial courts. [Int'l Longshoremen's and Warehousemen's Union et al. v. Wirtz, 170 F.2d 183 (9th Cir. 1948), headnote 1] United States District Courts have only such jurisdiction as is conferred by an Act of Congress under the Constitution. U.S.C.A. Const. art. 3, sec. 2; 28 U.S.C.A. 1344] [Hubbard v. Ammerman, 465 F.2d 1169 (5th Cir., 1972), headnote 2. Courts] The United States district courts are not courts of general jurisdiction. They have no jurisdiction except as prescribed by Congress pursuant to Article III of the Constitution. [many cites omitted] [Graves v. Snead, 541 F.2d 159 (6th Cir. 1976)] Notice of Refusal for Cause: Page 7 of 10 Jurisdiction of court may be challenged at any stage of the proceeding, and also may be challenged after conviction and execution of judgment by way of writ of habeas corpus. [U.S. v. Anderson, 60 F.Supp. 649 (D.C.Wash. 1945)] The United States District Court has only such jurisdiction as Congress confers. [Eastern Metals Corp. v. Martin], [191 F.Supp 245 (D.C.N.Y. 1960)] 16. Lastly, Petitioner hereby notoriously objects, permanently for the record, to the evident practice of the Clerk of Court of using a rubber stamp with the nomenclature "U.S. District Court," when this honorable Court is the District Court of the United States [sic] as a matter of law. 17. RELATED CASES AND INCORPORATION OF RELATED PLEADINGS Pursuant to the Full Faith and Credit Clause, Petitioner hereby provides formal Notice to all interested party(s), and demands mandatory judicial notice, pursuant to Rules 201(d), 301 and 302 of the Federal Rules of Evidence, of the following related cases, in which the below mentioned pleadings have already been served on all party(s) to those cases (if not actually filed, or lodged, in said cases) respectively: (1) Looker v. United States et al, DCUS West Virginia, Northern Judicial District, Case Numbers #5:96-CR-40, #1:96-CR- 41, #1:96-CR-42, and #1:96-CR-43, REBUTTAL TO RESPONSE OF UNITED STATES TO PLAINTIFF'S MOTION TO STAY PROCEEDINGS UNTIL FINAL REVIEW OF CHALLENGE TO THE CONSTITUTIONALITY OF JURY SELECTION AND SERVICE ACT: 28 U.S.C. 1861 et seq., which is incorporated by reference as if set forth fully herein; (2) People of the United States of America ex relatione Paul Andrew Mitchell v. United States et al., DCUS Montana, Billings Division, Case Number #CV-96-163-BLG; see attached copy of NOTICE OF REFUSAL FOR CAUSE [cites omitted] which is incorporated by reference as if set forth fully herein; (3) In re: Paul Andrew Mitchell Freedom of Information Act Request, USDC Montana, Helena Division, Case Number #MCV-96-50-H- CCL; see attached copy of NOTICE OF REFUSAL FOR CAUSE [cites omitted] which is also incorporated by reference as if set forth fully herein. For the convenience of this honorable Court, Petitioner attaches said pleadings hereto as Exhibits. Due to logistical problems, Petitioner hereby informs this honorable Court that said Exhibits are expected to arrive under separate cover, transmitted to the Clerk of Court via Priority U.S. Mail by Petitioner's Counsel of choice, Paul Andrew, Mitchell, B.A., M.S. Notice of Refusal for Cause: Page 8 of 10 SUMMARY Petitioner is entitled to a response to His Petition from a competent and qualified District Court of the United States [sic], said Court to consider Petitioner's proper petition for warrant of removal. Chief Judge Hancock is a judge of the United States District Court, said Court having been demonstrated to differ from the District Court of the United States. Further, he is not qualified to sit on a proper District Court of the United States, because his judicial compensation is currently being diminished by federal income taxes, in violation of Article III, Section 1, of the U.S. Constitution, and in violation of the pivotal holding in Evans v. Gore, which requires competent and qualified federal judges, whose compensation(s) are not currently being diminished by federal income taxes, for the District Court of the United States. See Evans v. Gore, 253 U.S. 245 (1920) (never overturned). VERIFICATION I, William Michael, Kemp, Sui Juris, hereby declare, under penalty of perjury, under the laws of the United States of America, without the "United States", and under knowledge of the law forbidding false witness before God and men, attest and affirm that I have read the foregoing and know the contents thereof, and that the same is true of My own knowledge, except those matters herein alleged on information and belief, and as to those matters, I believe them to be true, so help Me God, pursuant to 28 U.S.C. 1746(1). Dated: January 14, 1997 Respectfully submitted, /s/ Mike Kemp ______________________________________________ William Michael, Kemp, Sui Juris Citizen of Alabama state (expressly not a federal citizen) Notice of Refusal for Cause: Page 9 of 10 PROOF OF SERVICE I, William Michael, Kemp, Sui Juris, hereby certify, under penalty of perjury, under the laws of the United States of America, without the "United States", that I am at least eighteen years of age, a Citizen of one of the United States of America, and that I personally served the following document(s): NOTICE OF REFUSAL FOR CAUSE OF ORDER REMANDING THIS ACTION TO THE CIRCUIT COURT FOR ETOWAH COUNTY Rules 201(d), 301, and 302 of the Federal Rules of Evidence, Rule 9(b) of the Federal Rules of Civil Procedure by placing one true and correct copy of said document(s) in first class United States mail, with postage prepaid and properly addressed to the following: Clerk of Court Solicitor General Alabama Court of Criminal Appeals Department of Justice c/o P.O. Box 301555 10th and Constitution, N.W. Montgomery, Alabama state Washington, D.C. James E. Hedgspeth, Jr. Clerk of Court Etowah County Offices District Court of the U.S. [sic] c/o 800 Forrest Avenue c/o 1729 Fifth Avenue North Gadsden, Alabama state Birmingham, Alabama state Clerk of Court Attorney General Circuit Court of Etowah County Department of Justice c/o 800 Forrest Avenue 10th and Constitution, N.W. Gadsden, Alabama state Washington, D.C. Executed on January 14, 1997 /s/ Mike Kemp _________________________________________________ William Michael, Kemp, Sui Juris Citizen of Alabama state (expressly not a federal citizen) all Rights reserved without prejudice Notice of Refusal for Cause: Page 10 of 10 # # #
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Alabama v. Kemp