Mitchell P. Modeleski, Sui Juris
c/o General Delivery
San Rafael, California state
In His Own Stead
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
THE PEOPLE OF THE CALIFORNIA ) Number S-030016
REPUBLIC, ex relatione, )
)
MITCHELL P. MODELESKI, ) MEMORANDUM
Petitioner At Law ) of Points and Authorities
) in support of
v. ) Supreme Court Jurisdiction
)
BARBARA BOXER, )
Respondent At Law )
)
_____________________________)
COMES NOW MITCHELL P. MODELESKI, Petitioner At Law, to
present this Memorandum of Points and Authorities to argue in
support of the jurisdiction of this Honorable Court. The Law as
stated in the original "Petition" is incorporated herewith and
made an explicit part of this Memorandum, by reference. This
Memorandum presents further points and authorities which
constitute grounds both for and against the Court's jurisdiction
in the matter at hand. Petitioner concludes therefrom that a
difficult but necessary balance must be struck by this Honorable
Court, in order to preserve the fundamental substantive and
procedural rights of the People of the California Republic.
Memorandum in Support of Jurisdiction: page 1 of 10
ARGUMENTS AGAINST JURISDICTION
A Representative is an officer not of the State, but of the
federal government, Ekwall v. Stadelman, 30 P.2d 1037, 1040
(1934). The common understanding is that a member of the House
of Representatives is a legislative officer of the United States.
A member of Congress is a civil officer of the United States,
within the purview of the law requiring the taking of an oath of
office, Lamar v. United States, 241 U.S. 103, 36 S.Ct. 535
(1916).
A Congressman, whether elected from a district or from the
State at large, is a federal and not a State officer. Election
to the office does not, in and of itself, constitute membership.
One does not become a member of Congress until s/he takes the
oath of office as a U.S. Senator or Representative, 91 C.J.S. 10.
Representatives are the creation of the Constitution. They are
purely federal officers over which a State of the Union, as such,
has no control:
A member of Congress is not a state officer. He does not
represent the state. He represents the people of the United
States in the district from which he is elected. He is a
United States officer. The states were in existence before
"We, the People of the United States," adopted the
Constitution. Each state in turn chose to accept the
limitations of its sovereignty imposed upon it when it came
under the Constitution. Congressmen were the creation of
the Constitution -- purely federal officers over which a
state has no control.
[State ex rel. Carroll v. Becker, 45 S.W. 2d 533 (1932)]
[affirmed 52 S.Ct. 402, 285 U.S. 380, emphasis added]
Mandamus will not issue from a federal court to a State
court or its officers, and it seems settled that a State court
has no jurisdiction to direct, compel, or otherwise control by
Memorandum in Support of Jurisdiction: page 2 of 10
mandamus the performance by a federal officer of a duty imposed
by a federal statute. A State court has no jurisdiction to issue
a writ of mandamus to an officer of the United States, according
to the authorities mentioned in 52 Am Jur 2d, Section 12, citing
Bradstreet v. Cooper, 6 Pet (US) 774, 8 L Ed 577 (1832), and
M'Clung v. Silliman, 6 Wheat (US) 598, 5 L Ed 340 (1821).
ARGUMENTS FOR JURISDICTION
A court of this State may exercise jurisdiction on any basis
not inconsistent with the Constitution of this State, or with the
Constitution of the United States, per CCP 410.10.
Authority to issue writs of mandamus is vested in this
Honorable Court by virtue of the California State Constitution
(see West's Ann.Cal.Const., Article 6, Section 10). There is
additional authority for the proposition that such a
constitutional grant can be exercised upon any public official:
A constitutional grant of power to the courts of the state
to issue writs of mandamus vests in them full and complete
authority to issue such writs to enforce the performance of
the full and complete duty devolved by law upon any
official.
[State ex rel. Buckwalter v. Lakeland]
[112 Fla 200, 150 So 508 (1933)]
[emphasis added]
Close examination of Bradstreet supra reveals that the U.S.
Supreme Court did grant the petition for a writ of mandamus
against the district judge of the District Court of the United
States for the Northern District of New York. In this one
regard, American Jurisprudence as cited above is either in error,
or it is, at best, misleading.
Memorandum in Support of Jurisdiction: page 3 of 10
In the case of M'Clung supra, the U.S. Supreme Court ruled
that the Ohio State Supreme Court had no authority to issue a
mandamus against the register of a federal land office. The
question decided in that case concerned the power of State courts
over officers of the federal government, employed in disposing of
federal land that was reserved to the "United States" within the
several States. The high Court's holding is instructive:
There is but one shadow of a ground on which such a power
can be contended for, which is the general rights of
legislation which the states possess over the soil within
their respective territories.
[M'Clung v. Silliman, 6 Wheat (US) 598, 5 L Ed 340 (1821)]
[emphasis added]
Thus, there are grounds on which the States of the Union can
claim the authority to issue writs of mandamus against federal
officers, and these "grounds" are the territory and property over
which the 50 States exercise their own sovereign jurisdiction.
For a concise treatment of State territorial jurisdiction, and of
federal jurisdiction within the fifty united States of America,
see Chapter 11 of The Federal Zone (Exhibit "R") and all the
citations found therein. In M'Clung, the high Court went on to
define the following key rule concerning a federal officer:
... [H]is conduct can only be controlled by the power that
created him; since, whatever doubts have from time to time
been suggested, as to the supremacy of the United States, in
its legislative, judicial or executive powers, no one has
ever contended its supreme right to dispose of its own
property in its own way.
[M'Clung v. Silliman, 6 Wheat (US) 598, 5 L Ed 340 (1821)]
[emphasis added]
Memorandum in Support of Jurisdiction: page 4 of 10
Petitioner argues that Respondent's conduct can and should
be controlled by the People who elected Respondent to serve them.
In our constitutional form of government, the People are now, and
have always been, Sovereign. As such, they are the source of all
governmental authority in America. As "the People of the United
States" of America, they are the power which ultimately created
the offices of "Representative" and "Senator" to which Respondent
was elected:
When we consider the nature and the theory of our
institutions of government, the principles upon which they
are supposed to rest ... we are constrained to conclude that
they do not mean to leave room for the play and action of
purely personal and arbitrary power. Sovereignty itself is,
of course, not subject to law, for it is the author and
source of law; but in our system, while sovereign powers
are delegated to the agencies of government, sovereignty
itself remains with the people, by whom and for whom all
government exists and acts.
[Yick Wo v. Hopkins, 118 U.S. 356 (1886), emphasis added]
Moreover, Petitioner is not contesting the supreme right of
the "United States" to dispose of its own property, in its own
way. Petitioner is herein asserting his own fundamental right to
dispose of his own property, in his own way, since Respondent's
duty to Petitioner is a property which belongs to Petitioner and
which Petitioner alleges that Respondent has unlawfully withheld.
This Honorable Court will please take judicial notice that
Respondent represents the People of the California Republic;
Respondent does not represent the State of California per se.
Respondent does represent the Sixth Congressional District. The
People and the property within the 6th C.D. both lie inside the
territorial jurisdiction of this Honorable Court.
Memorandum in Support of Jurisdiction: page 5 of 10
Even though a State, as such, has no control over purely
federal officers (see supra), the present action is not being
brought in the name of the State of California. It is being
brought in the name of the People of the California Republic. As
a public servant, Respondent is a servant to this "public", this
Republic of People whom she was elected to serve. Accordingly,
the People of the California Republic are Respondent's Masters.
If Masters have no control whatsoever over their servants, then
the natural order of things has been turned on its head, to the
great detriment of the many, and to the great benefit of the few.
Respondent thus owes a duty to Petitioner. This duty was
and is the property of Petitioner, acting in his capacity as a
Sovereign Citizen of the California Republic. To the extent that
this property was and is being unlawfully withheld by Respondent,
the Supreme Court has preeminent authority to hear matters
affecting the substantial and fundamental property rights of the
Petitioner and to guarantee both a substantive and a procedural
due process, in a Court of Law, to resolve any and all disputes
over those substantial and fundamental property rights.
Federal Appellate Courts have consistently ruled that the
evidence which impugns the ratification of the so-called 16th
Amendment is in the nature of a "political" question. For a
Ninth Circuit example, see U. S. v. Stahl, 792 F.2d 1438 (1986);
others include Stubbs v. Commissioner, 797 F.2d 936 (11th
Circuit), U.S. v. Thomas, 788 F.2d 1250 and U.S. v. Ferguson, 793
F.2d 828 (both 7th Circuit), and Sisk v. Commissioner, 791 F.2d
58, 60 (6th Circuit), all in the year 1986. Petitioner infers
Memorandum in Support of Jurisdiction: page 6 of 10
therefrom that the matter should be brought, and indeed has
already been brought to the attention of all members of the House
of Representatives, at the very least, but thus far to no avail.
The U.S. Supreme Court has yet to rule on this question.
Federal District Courts have been presented with the
evidence against the 16th Amendment as a defense in criminal
trials. The conviction of William J. Benson in the case of
United States v. William J. Benson (see Exhibits "U" and "V") was
reversed by the Seventh Circuit Court of Appeals, but on the
ground that an IRS summary witness incorrectly identified himself
as an "expert" witness, see U.S. v. Benson, 941 F.2d 598 (1991).
The federal district court had previously denied Benson's motion
for an evidentiary hearing to introduce a total of 17,000
certified documents which Benson had assembled to impugn the
ratification of the so-called 16th Amendment. By opting to
utilize a relatively minor technicality, the Seventh Circuit's
decision to reverse Benson's conviction thus sidestepped the
material evidence which was available then, and is available now.
Congress has granted original jurisdiction to Federal
District Courts to hear any action in the nature of a mandamus to
compel an officer of the United States to perform a duty owed to
a plaintiff, 28 U.S.C. 1361. However, in the face of the above
federal case law, and for other reasons which Petitioner is
willing to place into evidence, Petitioner is now persuaded to
believe that the lower federal courts are presently unsympathetic
to the substantial issues of Law and fact being raised in the
matter at hand.
Memorandum in Support of Jurisdiction: page 7 of 10
Moreover, Petitioner hereby offers to prove, and expresses
his willingness to submit evidence and call an expert witness
willing to testify, that the California Legislature never
lawfully ratified the 16th Amendment to the Constitution of the
United States. The California State Constitution declares that
the Constitution of the United States is the Supreme Law of the
land. (See West's Ann.Cal.Const., Article 3, Section 1.). The
Supreme Court of the State of California thus retains original
jurisdiction authorizing this Honorable Court to exercise
judicial review of all acts and omissions of the California
Legislature, particularly when the matter does involve certified
historical documents which evidence the Legislature's acts in
deciding for or against a proposal to amend that Supreme Law.
The evidence in question is a matter of public records for which
the California Secretary of State is the official custodian.
Finally, it is quite simply impossible for the Respondent,
or any other public officials in America for that matter, to
perform a solemn duty to support the United States Constitution,
if the weight of available material evidence should prove that
the exact provisions of that Constitution are still in doubt!
It is a universal principle of the Common Law that, for
every wrong, there is a remedy and a due process to effect that
remedy. Should this Honorable State Court refuse to hear the
matter, on grounds that it lacks the necessary jurisdiction,
Petitioner believes that he will be left without any remedy in
Law, for the several reasons stated above, and that there will be
a demonstrable failure of justice in that event.
Memorandum in Support of Jurisdiction: page 8 of 10
CONCLUSION
Petitioner concludes that a direct conflict exists among
competing authorities both for and against the jurisdiction of
this Honorable Court. A resolution of this conflict is necessary
to enforce the fundamental rights of the Petitioner and of the
People of the California Republic. Historically, both the
executive and legislative branches of government have
demonstrated their consistent unwillingness to confront the
implications of the fraud which is alleged to have occurred when
the so-called 16th Amendment was declared ratified. This leaves
the judicial branch as the last and only resort now available.
But, the lower federal courts have also demonstrated their
consistent unwillingness to admit into evidence all of the 17,000
certified documents which impugn the so-called 16th Amendment.
This leaves but one proper recourse in Law -- the Supreme Court.
Should this Honorable Court deny jurisdiction in the matter at
hand, Petitioner will be left to swirl about a vicious circle and
will thereby be denied the remedy which is his right, and
possession, under the Common Law of the United States of America:
But the fundamental rights to life, liberty, and the pursuit
of happiness, considered as individual possessions, are
secured by those maxims of constitutional law which are the
monuments showing the victorious progress of the race in
securing to men the blessings of civilization under the
reign of just and equal laws, so that, in the famous
language of the Massachusetts Bill of Rights, the government
of the commonwealth "may be a government of laws and not of
men." For, the very idea that one man may be compelled to
hold his life, or the means of living, or any material right
essential to the enjoyment of life, at the mere will of
another, seems to be intolerable in any country where
freedom prevails, as being the essence of slavery itself.
[Yick Wo v. Hopkins, 118 U.S. 356 (1886), emphasis added]
Memorandum in Support of Jurisdiction: page 9 of 10
In that event, there will be a demonstrable failure of justice.
Petitioner concludes from the above discussion of points and
authorities that a difficult but necessary balance must be struck
by this Honorable Court, in order to preserve the fundamental
substantive and procedural rights of the People of the California
Republic and of the Petitioner, by reason of his being one of
those People, and by reason of his relationship to those People,
i.e., ex relatione as a member of the Sovereignty by birth.
Petitioner hereby moves this Honorable Court to exercise its
original jurisdiction to enforce the fundamental substantive and
procedural rights of the Petitioner, and of the People of the
California Republic, by giving its full consideration to the
extraordinary remedy requested by Petitioner on behalf of all the
People of the California Republic and, in particular, on behalf
of the People of the Sixth Congressional District, in the
Counties of Marin and Sonoma.
Thank you for your kind and careful consideration.
Presented this first (1st) day of December, 1992 Anno Domini.
_________________________________________________________________
Mitchell P. Modeleski, Sui Juris (Date)
Sovereign Petitioner At Law
All Rights Reserved Without Prejudice
Memorandum in Support of Jurisdiction: page 10 of 10
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People v. Boxer