Time: Mon Apr 14 05:13:08 1997
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Mon, 14 Apr 1997 04:27:25 -0700 (MST)
Date: Mon, 14 Apr 1997 06:02:37 -0500
Originator: civprocedure-l@lawlibdns.wuacc.edu
From: Paul Andrew Mitchell [address in tool bar]
To: Multiple recipients of list <civprocedure-l@lawlibdns.wuacc.edu>
Subject: Motion to Remand
One attack we have used is to demonstrate two things:
1. defendants removed into the United States District Court
("USDC"), which is a territorial tribunal authorized by
Article IV in the U.S. Constitution, pursuant to the
American Insurance case in 1828, but said USDC only has
territorial jurisdiction within the federal zone; the
removal should have been accomplished by requesting a
warrant of removal by the District Court of the United
States ("DCUS"), which is a judicial power forum authorized
by Article III in the U.S. Constitution, having territorial
jurisdiction within the state zone;
2. all federal judges are currently paying federal income
taxes on their pay, in violation of Article III, Section 1,
in the U.S. Constitution, and of the holding in Evans v.
Gore (1920); see also Lord v. Kelley (1965) for a judicial
admission that paying taxes on their pay subjects federal
judges to the undue influence of the IRS. For more
background on this question, see "The Lawless Rehnquist"
in the Supreme Law Library at URL: http://www.supremelaw.com
3. C.J. Rehnquist has cited O'Malley v. Woodrough as authority
for the "change in doctrine" (as he puts it), but this case
is predicated on false premises, namely, that there is only
one class of citizenship (there are 2), and that all federal
judges are necessarily citizens of either class (when there
is no law requiring federal judges to be citizens at all);
appointment to the bench is not the same as naturalization.
4. the lack of qualified federal judges invokes the due process
guarantees found in two (2) international human rights
treaties -- the Universal Declaration of Human Rights,
and the International Covenant on Civil and Political Rights;
said treaties were enacted by Congress with explicit
reservations, granting standing to "localities" (read "states")
to compel United States (federal government) obedience to said
treaties, in the event that the United States should fail to
perform its obligations under same; the provision of effective
judicial remedies is one such obligation; without qualified
judges to issue relief, no judicial remedies are impossible.
5. said treaties also create liabilities where federal judges
are otherwise immunized by judicial degrees; they guarantee
effective judicial remedies for violations of fundamental
Rights, notwithstanding that the violations were committed
by persons acting in their official capacities, e.g. judicial
orders. Thus, you can stop a federal judge from remanding back
to state court, using this logic; you can also prevent the
removal in the first instance, by properly briefing the state
court judge; treaties are rendered supreme Law pursuant to the
Supremacy Clause. See also the Tenth Amendment, on which the
treaty reservations were grounded.
We invoke these arguments now whenever we expect to be in a
hostile federal courtroom, made hostile by the prejudice and
bias that are now evidence in most federal judge(s).
/s/ Paul Mitchell
http://www.supremelaw.com
At 08:10 PM 4/13/97 -0500, you wrote:
>I just learned of this list after struggling with an interesting federal
>civil procedure question for a week or so and coming up with a solution
>that may or may not fly with the Court. Since I have another week to
>file my motion I'm putting it out for feedback. Here's the problem:
>
>Defendants (three corporations and one individual) remove on diversity
>grounds. Plaintiff is sure that one of the defendants (an advertising
>agency) has its principal place of business in the same state in which
>she resides but has no admissible evidence proving her contention. She
>does not want to commence discovery in federal court but wants a remand
>immediately.
>
>Defendant has two offices, one in plaintiff's state and another
>elsewhere. The test in this circuit is which office does more business.
>There is a substantial amount of detailed material in various well known
>trade publications, trade directories, etc., showing that the office in
>plaintiff's state is larger than the other office in terms of revenue,
>billings and number of employees. This material contains the numbers of
>employees at each office and dollar figures on relative revenue and
>billings. The ultimate burden of proving jurisdictional facts is, of
>course, on defendants. But plaintiff wants to put ds to their proof by
>including this persuasive publicly available information in her remand
>motion even though it is not admissible to prove the ultimate fact, that
>the local office is the principal place of business. How to do that?
>
>Tentative solution:
>
>Ask the court to take judicial notice of the authenticity of the various
>magazine articles, directory excerpts etc., without asking the court to
>accept the truth of the matters stated therein. Argue that the material
>raises serious doubts about ds'claim. If d does not refute the facts in
>the article with admissible evidence containing similarly detailed
>information, the court must remand.
>
>Any and all feedback will be appreciated.
>-------------------------------------------------------------
>Private reply: Sue Ochs <sueochs@sirius.com>
>Public replies: CIVPROCEDURE-L@lawlibdns.wuacc.edu
>To subscribe, signoff: listserv@lawlibdns.wuacc.edu
>Listserv questions: Quintin Chatman, qchatman@pf.com
>With technical assistance from WashLawWEB
> http://lawlib.wuacc.edu/washlaw/washlaw.html
>
>
========================================================================
Paul Andrew, Mitchell, B.A., M.S. : Counselor at Law, federal witness
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