Paul Andrew Mitchell, B.A., M.S.
c/o MBE PMB #332
501 W. Broadway, Suite “A”
San Diego 92101
CALIFORNIA, USA
tel: (619) 234-5252 (msg)
fax: (619) 234-5272
In Propria Persona
All Rights Reserved
without Prejudice
United States Court of Appeals
Ninth Circuit
Paul Andrew
Mitchell, ) Appeal No. 02-15269 and
)
372(c) No. 02-89005
Plaintiff/Appellant, )
v.
) PETITION FOR REHEARING EN
BANC
)
AND REQUEST FOR ORAL ARGUMENTS:
AOL Time Warner, Inc. et
al., )
)
FRAP Rules 35, 40;
Defendants/Appellees.)
Circuit Rule 35.
_______________________________)
COMES NOW Paul Andrew Mitchell, Appellant in the above entitled case, to respond timely to this Court’s MEMORANDUM NOT FOR PUBLICATION, as filed on December 13, 2002 A.D., by presenting and serving this, His PETITION FOR REHEARING EN BANC AND REQUEST FOR ORAL ARGUMENTS in the instant appeal.
In support of this petition for rehearing, the attention of this honorable Court is directed to material points of fact and law that were evidently overlooked in its MEMORANDUM; and, the attention of this Court is also directed to apparent conflicts with other decisions of this Court that were not addressed at all in its MEMORANDUM.
In support of Appellant’s petition for rehearing en banc, in particular, excellent grounds exist for en banc consideration, for all of the following reasons:
(1) consideration by the full Court is necessary to secure and maintain overall uniformity of its decisions;
(2) the instant proceeding involves several highly unusual questions of exceptional national importance; and,
(3) the MEMORANDUM of December 13, 2002 A.D. conflicts with existing opinions by other courts of appeal, and it substantially affects rules of national application in which there is an overriding need for national uniformity.
To simplify the sequence of arguments that follow, Appellant presents issues in the order of their first appearance in this Court’s MEMORANDUM dated December 13, 2002 A.D.
UNPUBLISHED
OPINIONS ARE UNCONSTITUTIONAL
This Court is respectfully referred to the published opinion of the U.S. Court of Appeals for the Eighth Circuit in Anastasoff v. USA, No. 99-3917EM, filed August 22, 2000 A.D. Quoting in pertinent part: “Insofar as [the rule allowing unpublished opinions] limits the precedential effect of our prior decisions, the Rule is therefore unconstitutional.” Copies are attached for the benefit of the Court.
For all of the same reasons enumerated in that erudite opinion, this Court is prohibited from holding that its MEMORANDUM should remain “NOT FOR PUBLICATION” [sic] and may not be cited.
APPELLANT
OBJECTS TO SPELLING PARTIES’
PROPER NAMES USING ALL CAPITAL LETTERS
Appellant argues that the practice of spelling parties’ proper names in ALL CAPS is evidence that this Court is using a nomme de guerre in error. Such an error also reinforces Appellant’s standing objection to the frequent usurpation of jurisdiction by federal legislative tribunals, when Appellant’s fundamental Right to due process of law guarantees a constitutional court convened under Article III. See Guarantee Clause in the U.S. Constitution.
THIS
APPEAL IS NOT, AND CAN NOT BE, FROM
THE ARTICLE IV UNITED STATES DISTRICT COURT
A telltale and fundamental error is made on Page 1 of this Court’s MEMORANDUM dated December 13, 2002 A.D. The instant appeal is taken from the District Court of the United States (“DCUS”); it is not taken from the United States District Court for the Eastern District of California (“USDC”). The latter legislative tribunal does not enjoy original jurisdiction over the Lanham Act. See the statute conferring original jurisdiction at 60 Stat. 440 (cf. 15 U.S.C. 1121).
But, Title 15 of the United States Code has not yet been enacted into positive law by any known Act(s) of Congress, making it absolutely necessary for this Court to construe 60 Stat. 440 strictly.
At the preliminary hearing had on December 14, 2001 A.D., Mr. Drozd even agreed that this citation is exactly correct in Appellant’s Initial COMPLAINT (see COUNT TWO)!
WILLIAM
B. SHUBB WAS NEVER COMMISSIONED TO PRESIDE
ON THE
ARTICLE III DISTRICT COURT OF THE UNITED STATES
Appellant has gone to great lengths to prove to this Court that William B. Shubb was never commissioned by the President of the United States of America to preside on the District Court of the United States for the Eastern Judicial District of California (“DCUS”). Such an unfounded assertion assumes facts not in evidence. See in particular U.S. v. LeBaron, 60 U.S. 73 (1856); Legerton v. Chambers, 32 Cal.App. 601 (1917), as cited and quoted in Attachment “A” infra.
THERE
IS THE APPEARANCE OF BIAS AND PREJUDICE AS LONG AS
PROCTER HUG SITS ON ANY CIRCUIT PANEL IN THIS APPEAL
Pursuant to His legal obligation imposed by 18 U.S.C. 4, Appellant executed a proper and lawful complaint entitled COMPLAINANT’S VERIFIED CRIMINAL COMPLAINT FOR VIOLATIONS OF THE FEDERAL CRIMINAL CODE on December 1, 1997 A.D., charging Procter Hug with several violations of 18 U.S.C. 3 and 1503 in Ninth Circuit docket numbers #96‑80380 and #96‑80337. See also 28 U.S.C. 455.
Procter Hug either knew, or should have known, about same, because the Chief Judge of the Ninth Circuit was served with said CRIMINAL COMPLAINT via first class U.S. Mail. See PROOF OF SERVICE in the latter docket numbers, also executed on December 1, 1997 A.D. Procter Hug was the Chief Judge at that time.
Appellant now raises, and emphatically objects to, the very real possibility that retaliation also motivates Procter Hug in the instant appeal. See also COUNTS THREE and FOUR in the Initial COMPLAINT.
THE
FINAL JUDGMENTS ACT AT 28 U.S.C. 1291
CONCLUSIVELY PROVES THIS CASE ORIGINATED IN THE DCUS
Appellant agrees that this Court has appellate jurisdiction under 28 U.S.C. 1291. Using a simple process of elimination, the instant appeal obviously did not originate in the United States District Court for the District of the Canal Zone, in the District Court of Guam, or in the District Court of the Virgin Islands. See 28 U.S.C. 1291.
This leaves only one other Federal District Court from which the instant case could be appealed, namely, the District Court of the United States for the Eastern Judicial District of California (“DCUS”). See Article III in the U.S. Constitution.
Appellant continues to argue that statutes conferring appellate jurisdiction must be strictly construed as well, because it is already well decided that statutes conferring original jurisdiction must be strictly construed. See cites in Appellant’s INFORMAL OPENING BRIEF.
THE
APPLICABILITY OF ALL FEDERAL RULES OF CIVIL PROCEDURE (“FRCP”)
REMAINS AN OPEN QUESTION UNTIL INTERLOCUTORY JUDGMENT IS FINAL
This Court is now directed to the final sentence on Page 2 of its MEMORANDUM dated December 13, 2002 A.D., to wit: “We reject all remaining contentions on appeal, and deny all pending motions.” This is a most pivotal sentence, for all of the following reasons:
First of all, this Court has obviously overlooked Appellant’s MOTION FOR INTERLOCUTORY JUDGMENT AND CHALLENGE TO THE CONSTITUTIONALITY OF AN ACT OF CONGRESS, which was timely filed and served in the instant case. See also Appellant’s FIRST SUPPLEMENT TO MOTION FOR INTERLOCUTORY JUDGMENT, AND CHALLENGE TO THE CONSTITUTIONALITY OF AN ACT OF CONGRESS, also timely filed and served.
Both the USDC and Mr. Drozd lacked all jurisdiction to hear
and decide the fundamental questions that arose in the latter MOTION.
Moreover, after discussion with a Deputy Clerk of this Court, Appellant then filed a NOTICE OF CHALLENGE TO THE CONSTITUTIONALITY OF AN ACT OF CONGRESS, specifically requesting the Circuit Clerk to certify the fact of Appellant’s challenge to the United States Attorney General, as required by FRAP Rule 44.
And, to leave no doubt as to the Circuit Clerk’s duty here, Appellant then filed a MOTION REQUESTING CLERK TO CERTIFY TO THE ATTORNEY GENERAL APPELLANT’S FORMAL CHALLENGE TO THE CONSTITUTIONALITY OF CERTAIN ACTS OF CONGRESS, again pursuant to FRAP Rule 44.
There is absolutely nothing in this Court’s MEMORANDUM dated December 13, 2002 A.D., nor in the official record now before this honorable Court, even remotely suggesting that the Circuit Clerk has done anything to certify to the U.S. Attorney General Appellant’s proper and timely challenge to the constitutionality of the Acts of Congress enumerated in the MOTIONS itemized above.
THIS
COURT’S RELIANCE ON THE KRUSO CASE
CLEARLY NECESSITATES A CONTRARY CONCLUSION
By citing Kruso v. Int’l Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), this Court reaches a conclusion flatly contrary to one of its own holdings in that case. Specifically, in Kruso this Court held that a district court’s factual findings on jurisdictional issues must be accepted unless they are clearly erroneous.
Repeating with emphasis, Mr. Drozd agreed that 60 Stat. 440 was the correct citation to the statute conferring original jurisdiction upon the DCUS to adjudicate claims that arise under the Lanham Act, which is the subject matter raised by COUNT TWO in Appellant’s Initial COMPLAINT. 60 Stat. 440 does not and could not even mention the USDC.
Moreover, the Kruso court held that dismissal for failure to state a claim, pursuant to FRCP Rule 12, is a ruling on a question of law and, as such, is reviewed de novo. Is Rule 12 even applicable?
Once again, we are confronted with this Court’s failure to address in orderly fashion Appellant’s challenge to the Rules Enabling Act, necessarily forcing the applicability of all FRCP rules to remain a nagging, open question in this case. See Schlagenhauf v. Holder, 379 U.S. 104 (1964) (Supreme Court may deal directly with the district court when the subject concerns rules which that Court formulates).
THIS
COURT’S RELIANCE ON THE REDDY CASE
ALSO NECESSITATES A CONTRARY CONCLUSION
Likewise, by citing Reddy v. Litton Indus., Inc., 912 F.2d 291, 296-297 (9th Cir. 1990), this Court reaches a conclusion which is also flatly contrary to the spirit and the specific holdings in that case. In Reddy this Court held that it is not an abuse of discretion to deny leave to amend when any proposed amendment would be futile. Also, leave to amend should be liberally granted; an amended complaint may only allege other facts consistent with the challenged pleading; and, dismissal with prejudice is proper only if amendments would not cure the deficiencies in the initial complaint.
Against these specific criteria, this Court is clearly in error by affirming summarily that leave to amend would have been futile, when it would not be futile. This Court has, once again, overlooked all the ways in which all deficiencies can be alleviated with simple additions to Appellant’s Initial COMPLAINT, e.g. citing the copyright registration certificate now issued by the Register of Copyrights.
THIS
COURT’S RELIANCE ON THE MULTNOMAH CASE
ALSO
NECESSITATES A CONTRADICTORY CONCLUSION
Likewise, by citing School Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1262-1263 (9th Cir. 1993), this Court also reaches a conclusion which is, once again, flatly contrary to the spirit and to the specific holdings in that case. This Court reviews a denial of a motion to reconsider for abuse of discretion.
Reconsideration is appropriate if the district court: (1) is presented with newly discovered evidence; (2) committed clear error, or the initial decision was manifestly unjust; or (3) if there is an intervening change in the controlling law. There may also be other, highly unusual, circumstances warranting reconsideration.
This Court has overlooked Appellant’s unrebutted arguments proving conclusively that clear errors were made by Messrs. Drozd and Shubb, and that the majority, if not all of their ultra vires actions were manifestly unjust. For example, Drozd overlooked Exhibit A‑1; the Lanham Act was intended to enforce treaties. Cf. 15 U.S.C. 1127.
More importantly, Appellant argues that other, highly unusual circumstances did warrant reconsideration, including but not limited to Appellant’s well documented challenges to the constitutionality of certain Acts of Congress, e.g. the Act of June 25, 1948 aka Title 28, U.S.C., and Appellant’s timely MOTION FOR INTERLOCUTORY JUDGMENT urging strict construction of the Rules Enabling Act and challenging the constitutionality of the Abrogation Clause in that Act.
Appellant believes He is the first litigant in many decades to set correctly the constitutional Article III DCUS, in order to invoke the judicial Power of the United States under Article III in matters that have arisen under the Constitution, Laws and Treaties of the United States. See Supremacy Clause in pari materia with the Arising Under Clause, in chief. This fact by itself qualifies as a highly unusual circumstance, the full significance of which appears to have escaped both Messrs. Shubb and Drozd, if not this Court as well.
RELIANCE
ON LOCAL RULE 72-304(b) IS LIKEWISE OUT OF ORDER
BEFORE TIMELY INTERLOCUTORY JUDGMENT IS REACHED IN THIS CASE
Appellant’s objections to the findings and recommendations of Mr. Drozd were not untimely. The correct meaning of “timely” in this context is not, and can not be, controlled by any Local Rule (“L.R.”) of the Eastern District of California, if the Rules Enabling Act is strictly construed, and if Appellant’s timely challenge to the Abrogation Clause in that Act is legally correct.
Moreover, this Court is also overlooking the fact that delivery of U.S. Mail containing said findings and recommendations was delayed at length for reasons that still remain unknown to Appellant. In earnest good faith, immediately after receiving same Appellant did expedite the drafting, filing and service of three (3) separate and thoroughly detailed objections to those findings and recommendations.
Moreover, this Court is once again overlooking the fact that Appellant did formally incorporate into His motion for reconsideration each of His thoroughly detailed objections to those findings and recommendations. Even Mr. Shubb acknowledged the issue of fairness.
THIS
COURT HAS OVERLOOKED APPELLANT’S
INCORPORATED COMPLAINT OF JUDICIAL MISCONDUCT
Further to substantiate Appellant’s timely and correct objections to the usurpation of jurisdiction by Messrs. Shubb and Drozd, Appellant formally incorporated the entire docket assigned to Appellant’s COMPLAINT OF JUDICIAL MISCONDUCT filed against Mr. Drozd, pursuant to 28 U.S.C. 372(c). See Circuit Clerk’s docket #02‑89005. This Court, once again, appears to have ignored the controlling facts and laws itemized in all documents filed to date in that docket, e.g. the decisions in U.S. v. Hough, 157 F.Supp. 771, 774 (1957), Traguth v. Zuck, 710 F.2d 90 (1983) and Hoffman v. U.S, 244 F.2d 378, 379. Technical compliance with Rules is not stringently enforced upon Pro Per litigants! This Court violates this well established principle.
Specifically, nobody has been able to produce a certificate of oath properly indorsed by Mr. Drozd upon his license to practice law in the State of California, which was a legal prerequisite for him to occupy the office of U.S. magistrate judge in the first instance. Similarly, nobody has been able to produce any Presidential Commission appointing Mr. Shubb to preside on the DCUS.
Accordingly, the requisite credentials of both men assume facts which are simply not in evidence anywhere before this honorable Court.
THE
MEMORANDUM DECISION CONTRADICTS OR IGNORES
NUMEROUS STANDING DECISIONS OF THIS COURT OF APPEALS
Appellant also went to great effort correctly to cite the following standing decisions of this honorable Court, to wit:
Tsang v. Kan, 173 F.2d 204 (1949) [was “Kansas”]
Agnew v. Compton, 239 F.2d 226 (1956)
Crescent Wharf v. Pillsbury, 259 F.2d 850 (1958)
Drop Dead Co. v. S.C. Johnson & Son, Inc., 326 F.2d 87 (1963)
Roth Greeting Cards v. United Card Co., 429 F.2d 1106 (1970)
Brennan v. Silvergate, 503 F.2d 800 (1974)
Griffith Co. v. NLRB, 545 F.2d 1194 (1976)
Alpha Industries, Inc. v. Alpha Steel, 616 F.2d 440 (1980)
Gillespie v. Civiletti, 629 F.2d 637 (1980)
Nova Stylings, Inc. v. Ladd, 695 F.2d 1179 (1983)
U.S. v. Woodley, 726 F.2d 1328 (1983)
Levi Strauss v. Blue Bell, Inc., 778 F.2d 1352 (1985)
U-Haul Int’l v. Jartran, Inc., 793 F.2d 1034 (1986)
Seiler v. Lucasfilm, Ltd., 808 F.2d 1316 (1986)
Midler v. Ford Motor Company, 849 F.2d 460 (1988)
U.S. v. High Country Broadcasting, 3 F.3d 1244 (1993)
Roley v. New World Pictures, Ltd., 19 F.3d 479 (1994)
Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (1996)
Wendt v. Host International, Inc., 125 F.3d 806 (1997)
Kodadek v. MTV Networks, Inc., 152 F.3d 1209 (1998)
Brookfield v. West Coast Entertainment, 174 F.3d 1036 (1999)
A&M Records et al. v. Napster, Inc., filed Feb. 12, 2001
Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180 (2001)
See Appellant’s INFORMAL OPENING BRIEF for decisions of other circuits with which this Court now conflicts, e.g. in re tolling.
THIS
COURT’S MEMORANDUM DECISION CONTRADICTS OR IGNORES
NUMEROUS STANDING DECISIONS OF THE U.S. SUPREME COURT
And, this Court’s MEMORANDUM dated December 13, 2002 A.D. also contradicts many standing decisions of the Supreme Court such as Mookini v. U.S., 303 U.S. 201 (DCUS in its historic and proper sense), and Balzac v. Porto Rico, 258 U.S. 298 (the USDC is a territorial tribunal originating in Article IV). See Appellant’s INFORMAL OPENING BRIEF and all reply BRIEF’s for full citations, cited in context.
This Court has no authority whatsoever to contravene any standing decisions of the Supreme Court of the United States.
INCORPORATION
OF ATTACHMENT
Appellant hereby incorporates His Attachment “A” entitled “Authorities in re Presidential Commissions” and all citations quoted therein, as if set forth fully here, with particular emphasis on the statute at 5 U.S.C. 2902(c) and the following court authorities:
... [W]here the law requires a commission to be issued, the person selected is not entitled to the office until the commission issues, and he cannot be legally qualified by taking the required oath until he has received his commission.
[Legerton v. Chambers, 163 P. 678, 32 Cal.App. 601 (1917)]
[Magruder v. Tuck, 25 Md. 217] [bold emphasis added]
All premises having been duly considered, Appellant respectfully requests rehearing en banc of all issues that have arisen to date in the instant appeal, and a thorough published opinion to follow.
Appellant also takes this opportunity respectfully to request leave to deliver oral arguments to the full Court convened en banc.
Finally, Appellant respectfully demands that Procter Hug be recused permanently from all further proceedings in the instant case, due to the unavoidable appearance of bias and prejudice, and requests that Judge Alex Kozinski be assigned to substitute for Procter Hug instead, due to Judge Kozinski’s unique knowledge of this case.
I, Paul Andrew Mitchell, Sui Juris, Appellant in the
above entitled action, hereby verify under penalty of perjury, under the laws
of the United States of America, without the “United States”
(federal government), that the above statement of facts and 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).
Dated: December
17, 2002 A.D.
Signed: /s/ Paul
Andrew Mitchell
__________________________________________________
Printed: Paul Andrew Mitchell, Appellant In Propria
Persona
I, Paul Andrew Mitchell, Sui Juris, hereby certify,
under penalty of perjury, under the laws of the United States of America,
without the “United States” (federal government), that I am at least 18
years of age, a Citizen of ONE OF the United States of America, and that I personally served the
following document(s):
PETITION FOR
REHEARING EN BANC
AND REQUEST FOR
ORAL ARGUMENTS:
FRAP Rules 35, 40; Circuit Rule 35
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:
Judge Alex Kozinski (supervising) Clerk of Court (51x)
Ninth Circuit Court of Appeals Attention: Cathy Catterson
P.O. Box 91510 Ninth Circuit Court of Appeals
Pasadena 91109-1510 P.O. Box 193939
CALIFORNIA, USA San Francisco 94119-3939
CALIFORNIA, USA
Ropers, Majeski, Kohn & Bentley DeForest & Koscelnik
(failed to exhibit oaths) (failed to exhibit oath)
1001 Marshall Street 3000 Koppers Building
Redwood City 94063 436 Seventh Avenue
CALIFORNIA, USA Pittsburgh 15219
PENNSYLVANIA, USA
Murphy Austin Adams Schoenfeld LLP Pillsbury Winthrop LLP
(failed to exhibit oaths) (failed to exhibit oaths)
P.O. Box 1319 400 Capitol Mall, Suite 1700
Sacramento 95812-1319 Sacramento 95814-4419
CALIFORNIA, USA CALIFORNIA, USA
Curiale Dellaverson Hirschfeld Quinn
Emanuel Urquhart Oliver
Kraemer & Sloan, LLP & Hedges, LLP
(failed to exhibit oaths) (failed to exhibit oaths)
727 Sansome Street 201 Sansome Street, 6th Floor
San Francisco 94111 San Francisco 94104
CALIFORNIA, USA CALIFORNIA, USA
Office of the General Counsel Paul
Southworth
(failed to exhibit oaths) 2018 N. New Hampshire Ave.
University of California Los Angeles 90027
1111 Franklin Street, 8th Floor CALIFORNIA, USA
Oakland 94607-5200
CALIFORNIA, USA
Karl Kleinpaste Ram Samudrala
P.O. Box 1551 UW Micro Box 357242
Beaver Falls 15010 Seattle 98195-7242
PENNSYLVANIA, USA WASHINGTON STATE, USA
Laskin & Guenard Rivkin Radler, LLP
(failed to exhibit oath) (failed to exhibit oaths)
1810 South Street 1330 N. Dutton Ave., #200
Sacramento 95814 Santa Rosa 95401-4646
CALIFORNIA, USA CALIFORNIA, USA
Harvey Siskind Jacobs LLP Office of Solicitor General
(failed to exhibit oaths) 950 Pennsylvania Ave., N.W.
3 Embarcadero Center, Ste. 1060 Room 5614
San Francisco 94111 Washington 20530-0001
CALIFORNIA, USA DISTRICT OF COLUMBIA, USA
Register of Copyrights Steinhart & Falconer LLP
Library of Congress (failed to exhibit oaths)
101 Independence Avenue, S.E. 333 Market Street, 32nd Floor
Washington 20559-6000 San Francisco 94105-2150
DISTRICT OF COLUMBIA, USA CALIFORNIA, USA
Matheny Sears Linkert & Long LLP Latham & Watkins
(failed to exhibit oaths) (failed to exhibit oaths)
P.O. Box 13711 633 West Fifth St., Ste. 4000
Sacramento 95853-4711 Los Angeles 90071-2007
CALIFORNIA, USA CALIFORNIA, USA
[Please see USPS Publication #221 for “addressing”
instructions.]
Dated: December
17, 2002 A.D.
Signed: /s/ Paul Andrew
Mitchell
__________________________________________________
Printed: Paul Andrew Mitchell, Appellant In Propria
Persona
Authorities in re Presidential Commissions
Authorities in re Presidential Commissions
When person has been nominated to office by President, confirmed by Senate, and his commission signed by President, with seal of United States affixed thereto, his appointment is complete.
[U.S. v. LeBaron, 60 U.S. 73, 19 How. 73 (1856)]
[15 L.Ed. 525 (1856), bold emphasis added]
The commissions of judicial officers ... appointed by the President, by and with the advice and consent of the Senate ... shall be made out and recorded in the Department of Justice under the seal of that department and countersigned by the Attorney General.
[5 U.S.C. 2902(c), bold emphasis added]
Federal circuit and district judges are among the “other officers of the United States” required to be nominated by the President by and with the advice and consent of the Senate.
[Thomson v. Robb, 328 S.E.2d 136, 140, hn. 3]
[229 Va. 233 (Va. 1985)]
From this clause [2:2:2] the Constitution must be understood to declare that all offices of the United States, except in cases where the Constitution itself may otherwise provide, shall be established by law.
[U.S. v. Maurice, 2 Brock, U.S., 96]
[26 Fed. Cas. No. 15,747]
... [W]here the law requires a commission to be issued, the person selected is not entitled to the office until the commission issues, and he cannot be legally qualified by taking the required oath until he has received his commission.
[Legerton v. Chambers, 163 P. 678, 32 Cal.App. 601 (1917)]
[Magruder v. Tuck, 25 Md. 217]
[bold emphasis added]
The commission is in law prima facie proof of the right of the judge to enter on and perform the duties of his office.
[State v. Montague, 130 S.E. 838, 190 N.C. 841]
[Sylvia Lake Co. v. Northern Ore Co., 151 N.E. 158]
[242 N.Y. 144, cert. den. 273 U.S. 695]
It [commission] is the highest and best evidence of his right to the office until, on quo warranto or a proceeding of that nature, is annulled by judicial determination.
[Thompson v. Holt, 52 Ala. 491]
[bold emphasis added]
Without taking the oath prescribed by law, one cannot become a judge either de jure or de facto, and such an individual is without authority to act and his acts as such are void until he has taken the prescribed oath.
[French v. State, 572 S.W.2d 934]
[Brown v. State, 238 S.W.2d 787]
Law requires the judge selected to take an oath of office.
[U.S. ex rel. Scott v. Babb]
[199 F.2d 804 (7th Cir. 1952)]
# # #