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

 

 

JUDICIAL COUNCIL

 

FOR THE NINTH CIRCUIT

 

In re Charge of                    )  No. 02-89005

                                   )

Judicial Misconduct                )  REFUSAL OF ORDER AND MEMORANDUM

                                   )  FOR FRAUD AND OTHER CAUSES,

                                   )  BY AFFIDAVIT:

                                   )

___________________________________)  28 U.S.C. 1746(1).

COMES NOW Paul Andrew Mitchell, Complainant in the above entitled matter, to refuse this Council’s ORDER AND MEMORANDUM filed in error on March 26, 2002, for causes including, but not limited to, fraud upon this honorable Council and related fundamental errors.

There is no statute of limitations for fraud.

Complainant is not a “pro se litigant” [sic].  Se” is a neuter Latin pronoun with no application to Complainant whatsoever.  Complainant is not now, and never has been, “neuter” [sic] and He appears in this and related cases In Propria Persona (in His Proper Person).  Cf. the Qualifications Clauses in the U.S. Constitution.

The ORDER AND MEMORANDUM supra is misleading, to say the least, because the federal statute at 28 U.S.C. 636 does not authorize any United States magistrate judges to preside in any capacity whatsoever on the Article III District Court of the United States (“DCUS”).

The United States District Court (“USDC”) is a legislative tribunal with a constitutional origin in Article IV of the U.S. Constitution.  See Balzac v. Porto Rico, 258 U.S. 298, 312 (1922).

Statutes conferring original jurisdiction on federal district courts must be strictly construed [cites in INFORMAL OPENING BRIEF].

There is absolutely no mention of the DCUS anywhere in the federal statute at 28 U.S.C. 636.  The USDC is mentioned several times in that statute, however.

A careful review of the docket sheet in Mitchell v. AOL Time Warner, Inc. et al., Ninth Circuit appeal #02-15269, does not reveal that any assigned Article III judge ever referred that matter to Mr. Dale A. Drozd.  This Council again makes a plain error in this regard.

No ORDER OF REFERENCE was ever issued by the DCUS, or ever executed, filed or served on any of the proper parties in that case.  See APPELLANT’S INFORMAL OPENING BRIEF for further discussion concerning the missing ORDER OF REFERENCE.  Cf. FRCP Form 34A.

Moreover, there is no Presidential Commission in evidence to establish conclusively that Mr. William B. Shubb was duly appointed to preside on such cases as Mitchell v. AOL Time Warner, Inc. et al. in the DCUS for the Eastern Judicial District of California.  See, for example, the Lanham Act at 60 Stat. 440.

Complainant made every effort, by means of a proper and lawful request under the Freedom of Information Act (“FOIA”), to obtain a certified copy of said commission from the U.S. Department of Justice (“DOJ”), because DOJ is the legal custodian of same.

The FOIA creates a federal cause of action when properly invoked.  See 5 U.S.C. 552(a)(4)(B) (confers original jurisdiction on the DCUS).

No offices in the legislative or judicial branches of the federal government are designated by law to be the legal custodians of the Presidential Commissions of any federal judges.

And, DOJ was unable to produce a proper Presidential Commission appointing Mr. William B. Shubb to the District Court of the United States for the Eastern Judicial District of California.

The defendants in appeal #02-15269 never filed any proper motions to dismiss, because the attorneys they hired to represent them failed to produce the credentials required by California State laws.

See U.S. v. High Country Broadcasting, 3 F.3d 1244 (9th Cir. 1993) (entry of default judgment was proper when an unlicensed corporate president attempted to represent his corporation in court).

In particular, proper SUBPOENA’s IN A CIVIL CASE commanded certain of those attorneys to produce valid certificates of oath indorsed upon their licenses to practice law in the State of California, as required by section 6067 of the California Business and Professions Code (“CBPC”).

All of those attorneys, without exception, have failed timely to exhibit the credentials required by CBPC section 6067.  Their failure to do so has given this Council probable cause to investigate all such attorneys for misdemeanor violations of CBPC section 6126, and contempt of court in violation of CBPC section 6127.

Complainant’s proper and timely COMPLAINT did not object only to the so-called findings and recommendations entered by Mr. Drozd.  Complainant also itemized several other specious “orders” which Mr. Drozd attempted to issue and enter ultra vires and coram non judice.  Thus, this Council’s ORDER AND MEMORANDUM is quite misleading.

Chief among these was his specious “order” filed Nov. 15, 2001, in which Mr. Drozd attempted ultra vires and coram non judice to “deny” Complainant’s MOTION TO STRIKE ALL PLEADINGS BY ATTORNEYS LACKING CREDENTIALS and also Complainant’s MOTION FOR INTERLOCUTORY JUDGMENT AND CHALLENGE TO THE CONSTITUTIONALITY OF AN ACT OF CONGRESS.

Said specious “order” was clearly conduct prejudicial to the effective and expeditious administration of justice, but this Council’s ORDER AND MEMORANDUM fails to mention the latter 2 MOTION’s.

Complainant never consented to civil jurisdiction by any United States magistrate judges.  For this reason alone, Mr. Drozd never enjoyed any civil jurisdiction to issue dispositive rulings on the latter 2 MOTION’s.  His specious “orders” issued from the USDC also.

This Council’s failure to address the latter two MOTION’s is all the more serious and prejudicial to Complainant, in light of the fact that Mr. Drozd was likewise unable to produce any certificate of oath properly indorsed upon his license to practice law in the State of California ‑‑ a legal prerequisite to the office of magistrate judge.

It follows necessarily from his failure to do so that Mr. Drozd was never qualified to occupy the office of United States magistrate judge, in the first instance.

The United States ex rel. Paul Andrew Mitchell has now petitioned the Ninth Circuit for a prerogative Writ in the nature of a Quo Warranto, to dispose of this matter judicially, once and for all.

Complainant herein specifically denies that Mr. Dale A. Drozd was ever duly appointed to preside as a United States magistrate judge on the District Court of the United States (“DCUS”) for the Eastern Judicial District of California, in Sacramento.

Complainant herein also specifically denies that Mr. William B. Shubb was ever duly commissioned to preside as a United States District Judge on the District Court of the United States (“DCUS”) for the Eastern Judicial District of California, in Sacramento.

This Council’s ORDER AND MEMORANDUM filed on March 26, 2002 A.D., therefore, wrongly assumes facts that are simply not in evidence.

For all of the bona fide causes itemized and justified above, Complainant now refuses said ORDER AND MEMORANDUM.

Complainant now incorporates by reference Attachment “A”:  Authorities in re Presidential Commissions, as if set forth fully here, e.g. Legerton v. Chambers, 163 P. 678, 32 Cal.App. 601 (1917).

Complainant also incorporates by reference Attachment “B”: Complainant’s MEMO to the Hon. Mary Schroeder, Chief Judge of the Ninth Circuit Court of Appeals, dated December 23, 2002 A.D., as if set forth fully here, with copies also of its separate attachments.

 

VERIFICATION

I, Paul Andrew Mitchell, Sui Juris, Complainant 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 23, 2002 A.D.

 

Signed:  /s/ Paul Andrew Mitchell

         ____________________________________________________

Printed: Paul Andrew Mitchell, Complainant In Propria Persona


PROOF OF SERVICE

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):

 

REFUSAL OF ORDER AND MEMORANDUM

FOR FRAUD AND OTHER CAUSES,

BY AFFIDAVIT:

28 U.S.C. 1746(1)

 

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 (5x)

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

 

 

[Please see USPS Publication #221 for “addressing” instructions.]

 

 

 

Dated:   December 24, 2002 A.D.

 

Signed:  /s/ Paul Andrew Mitchell

         ____________________________________________________

Printed: Paul Andrew Mitchell, Complainant In Propria Persona


 

 

 

 

 

 

 

 

 

 

Attachment “A”:

 

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)]

 

 

 

 

#  #  #


 

 

 

 

 

 

 

 

 

 

Attachment “B”:

 

Complainant’s MEMO to Hon. Mary Schroeder,

Chief Judge, Ninth Circuit Court of Appeals

 

Dated:  December 23, 2002 A.D.

 

 


MEMO

 

TO:       Hon. Mary Schroeder, Chief Judge

          c/o Cathy A. Catterson, Clerk of Court

          U.S. Court of Appeals for the Ninth Circuit

          P.O. Box 193939

          San Francisco 94119-3939

          CALIFORNIA, USA

 

FROM:     Paul Andrew Mitchell, B.A., M.S.

          Private Attorney General and Plaintiff/Appellant

          Mitchell v. AOL Time Warner, Inc. et al. #02-15269

 

DATE:     December 23, 2002 A.D.

 

SUBJECT:  consensual reference of civil cases to a magistrate

 

 

Greetings Chief Judge Schroeder:

 

Merry Christmas and Happy New Year to you and yours!

 

In the course of continuing research into the many issues of fact and law that have arisen in the above entitled case, I was pleasantly surprised to come across your informative dissent in the case of Pacemaker Diagnostic Clinic, Inc. v. Instromedix, Inc., 725 F.2d 537 (9th Cir. 1984).

 

In your dissent in the latter case, you wrote, “Consensual reference of civil cases to a magistrate violates the Constitution.”

 

Arguendo, I would be very interested to know if you would also agree with the following propositions:

 

(1)  non-consensual reference of civil cases to a magistrate violates the Constitution, i.e. no consent by parties;

 

(2)  usurpation of civil cases by a magistrate violates the Constitution, i.e. without an ORDER OF REFERENCE;  and,

 

(3)           impersonating a magistrate in a civil case violates the Constitution, i.e. without the requisite credentials.

 

I am posing these additional situations, because each has now occurred in appeal #02-15269:  all parties did not consent to a magistrate;  there is no ORDER OF REFERENCE on record (see FRCP Form 34A);  and, Mr. Drozd lacks the credentials required by California State laws.

 

I am very pleased to learn that you do regard the Constitution to be the controlling law in such situations.

 

Your prompt and professional reply will be most appreciated, and it will be served on all interested parties and also posted on the Internet, for our further edification.

 

 

Sincerely yours,

 

/s/ Paul Andrew Mitchell

 

Paul Andrew Mitchell, B.A., M.S.

Private Attorney General and Plaintiff/Appellant

 

U.S. Mail:

 

   c/o MBE PMB #332

   501 West Broadway, Suite “A”

   San Diego 92101

   CALIFORNIA, USA

 

copy:  Judge Alex Kozinski, Ninth Circuit (supervising)

 

attachments:

 

  NOTICE OF REFUSAL FOR CAUSE BY AFFIDAVIT, September 27, 2002 A.D.

 

  FINAL NOTICE AND DEMAND FOR PROOF OF APPOINTMENT

  AND DESIGNATION, September 1, 2002 A.D.

 


NOTICE OF REFUSAL FOR CAUSE

BY AFFIDAVIT

 

 

TO:       Administrative Office of the United States Courts

          Attention:  Kathryn Marrone, Staff Attorney

          Magistrate Judges Division

          One Columbus Circle, N.E.

          Washington 20544

          DISTRICT OF COLUMBIA, USA

 

FROM:     Paul Andrew Mitchell, B.A., M.S.

          Private Attorney General and Plaintiff/Appellant,

          Mitchell v. AOL Time Warner, Inc. et al.

          Ninth Circuit appeal #02-15269

 

DATE:     September 27, 2002 A.D.

 

SUBJECT:  Formal Refusal of your letter dated September 18, 2002

 

 

Greetings Ms. Marrone:

 

In My FINAL NOTICE AND DEMAND dated September 1, 2002 A.D., I specifically required timely exhibition and certification of any and all documentary evidence that:

 

a federal judge did attempt to appoint Mr. Dale A. Drozd to the office of United States magistrate judge, pursuant to 28 U.S.C. 631(a) (or any other lawful authority);

 

and that:

 

a federal judge did attempt, pursuant to 28 U.S.C. 636(b)(1)(B) (or any other lawful authority), to designate Mr. Dale A. Drozd to conduct hearings and submit findings of fact and conclusions of law in My case, now pending before the Ninth Circuit.

 

Your letter of September 18, 2002 is fatally defective, for all of the following reasons, to wit:

 

(1)           it is not certified under penalty of perjury (uncertified documents are not admissible);

 

(2)           it does not exhibit evidence that a duly commissioned federal judge did lawfully appoint Mr. Dale A. Drozd to the office of United States magistrate judge (no such judge is identified anywhere in your letter of September 18, 2002);  and,

 

(3)           it does not exhibit evidence that a duly commissioned federal judge did designate Mr. Dale A. Drozd to conduct hearings and submit findings of facts and conclusions of law in My case, now pending before the Ninth Circuit (see ORDER OF REFERENCE, Form 34A in the Federal Rules of Civil Procedure).

 

Moreover, My original NOTICE AND DEMAND FOR SPECIFIC PERFORMANCE did not request from you copy(s) of any signed oath(s) of office.  I do, however, expressly reserve My fundamental Right to compel disclosure of any and all such oaths of office, pursuant to Article VI, Clause 3 (“6:3”) in the U.S. Constitution as lawfully amended.

 

Finally, as stated in My original NOTICE AND DEMAND FOR SPECIFIC PERFORMANCE, the federal statute at 28 U.S.C. 631(b)(1) requires each U.S. magistrate judge to have been ‑‑ for at least five (5) years ‑‑ a member in good standing of the bar of the highest court of a State.

 

After My diligent and good faith efforts to obtain his certificate of oath indorsed upon his license to practice law in the State of California, as mandated by § 6067 of the California Business and Professions Code, all notified parties have failed to produce any such license, indorsement or certificate for Mr. Drozd, or any such license, indorsement or certificate executed by Mr. Drozd.

 

Therefore, I am now entitled to proceed on the basis of all the above, and to conclude therefrom, that Mr. Drozd was never a member in good standing of the State Bar of California and, consequently, he was never qualified to be appointed to the office of United States magistrate judge in the first instance.

 

His claim to the office of United States magistrate judge now assumes facts not in evidence.

 

Since you have had more than sufficient time to answer My NOTICE AND DEMAND FOR SPECIFIC PERFORMANCE and/or to request clarification or additional time to answer, I now invoke the doctrine of estoppel against your office.  From this point forward, I hereby assert My right to bar any future correspondence from your office in the matter of the credentials required by Law of Mr. Dale A. Drozd.

 

 

VERIFICATION

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:   September 27, 2002 A.D.

 

Signed:  /s/ Paul Andrew Mitchell

         ___________________________________________

Printed: Paul Andrew Mitchell, B.A., M.S., Sui Juris

         Appellant In Propria Persona (notPro Se”)


PROOF OF SERVICE

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):

 

NOTICE OF REFUSAL FOR CAUSE,

BY AFFIDAVIT

 

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                Clerk of Court (5x)

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:   September 27, 2002 A.D.

 

Signed:  /s/ Paul Andrew Mitchell

         __________________________________________________

Printed: Paul Andrew Mitchell, Appellant In Propria Persona

 


FINAL NOTICE AND DEMAND FOR

PROOF OF APPOINTMENT AND DESIGNATION

 

TO:       Mr. Jack L. Wagner, Clerk of Court

          District Court of the United States

          501 “I” Street, Suite 4-200

          Sacramento 95814-2322

          CALIFORNIA, USA

 

          Mr. Leonidas Ralph Mecham, Director

          Administrative Office of the U.S. Courts

          Thurgood Marshall Federal Judiciary Building

          One Columbus Circle, N.E.

          Washington 20544

          DISTRICT OF COLUMBIA, USA

 

          Mr. James. S. Carroll, III, Assistant Director

          Executive Office for United States Attorneys

          Freedom of Information/Privacy Act Unit

          600 “E” Street, N.W., Room 7300

          Washington 20530

          DISTRICT OF COLUMBIA

 

          Hon. Mary M. Schroeder, Chief Judge

          c/o Cathy A. Catterson, Clerk of Court

          U.S. Court of Appeals for the Ninth Circuit

          P.O. Box 193939

          San Francisco 94119-3939

          CALIFORNIA, USA

 

FROM:     Paul Andrew Mitchell, B.A., M.S., Plaintiff/Appellant

          Mitchell v. AOL Time Warner, Inc. et al.

          Ninth Circuit docket #02-15269 and 372(c) #02-89005

 

DATE:     September 1, 2002 A.D.

 

Ladies and Gentlemen:

 

To date, neither the office of the Clerk of the federal district court in Sacramento, California, nor the Administrative Office of the U.S. Courts in Washington, D.C., nor the U.S. Department of Justice in Washington, D.C., nor the State Bar of California, nor the Clerk of the California Supreme Court, has been able to produce any of the credentials which Mr. Dale A. Drozd (hereinafter “Mr. Drozd”) must have, in order for him to occupy the office of United States magistrate judge in Sacramento, California State.

 

I refer all of you specifically to the form letter I received from Mr. James S. Carroll, III, dated April 24, 2002, in which he appeared to err by alleging that My request sought public records which may be obtained from the clerk of the court.  This appeared to be an error, because the U.S. Department of Justice (in the Executive Branch) is the legal custodian of all Presidential Commissions appointing federal judges to the bench, not any office in the Judicial Branch.

 

Thus, the clerk of court is not the legal custodian of any such Presidential Commissions.  See 5 U.S.C. §§ 2104(a)(1)(A) and 2902(c).

 

On April 26, 2002 A.D., Mr. Drozd signed and filed another specious “order” in which he formally acknowledged My allegations that, in his case, no jurisdiction, no license, no oath, no certificate, and no commission have been produced by any personnel employed by any of the above federal offices to which this NOTICE AND DEMAND are now addressed.

 

And, in that specious “order” of April 26, 2002, Mr. Drozd offered absolutely no rebuttal(s) or denial(s) whatsoever that no (civil) jurisdiction existed, no license (to practice law) existed, no oath (of office) existed, no certificate (of oath) existed, and no (presidential) commission existed.  I never consented to civil jurisdiction by any United States magistrate judges.

 

I refer you now to the cases which have held that a Presidential Commission is required for all judges of the Supreme Court, Circuit Courts, and District Courts.  For Mr. Drozd to exercise any lawful authorities of a district judge, such as denying My MOTION FOR INTERLOCUTORY JUDGMENT, the Law requires that he be commissioned by the President, and have a life-time appointment.  Neither is the case, based on the official record before the Ninth Circuit at the present time.  See the Appointments Clause in the U.S. Constitution (“2:2:2”).

 

So, I believe that sufficient evidence has already been certified that Mr. Drozd is not now, and never was, a district judge.

 

The question remains, therefore, whether or not Mr. Drozd is now, or ever was, a United States magistrate judge.  Please note well the federal statute at 28 U.S.C. 631(a) requires that judges of each United States District Court shall appoint all United States magistrate judges;  the statute at 28 U.S.C. 631(b)(1) requires each such magistrate judge to have been ‑‑ for at least five (5) years ‑‑ a member in good standing of the bar of the highest court of a State.

 

Provided that they are qualified and duly appointed, a federal judge may then, and only then, designate such magistrate judges to conduct hearings and to submit to a judge proposed findings of fact and conclusions of law, pursuant to the federal statute at 28 U.S.C. 636(b)(1)(B).

 

My demand for his certificate of oath, properly indorsed upon his license to practice law, was My earnest and good faith attempt to determine whether or not Mr. Drozd was ever qualified to be appointed to the office of United States magistrate judge, in the first instance.  Evidently, Mr. Drozd was not so qualified.

 

Section 6067 of the California Business and Professions Code mandates that a certificate of oath shall be indorsed upon a license to practice law in the State of California.  When no such certificate was produced by Mr. Drozd, nor by the State Bar of California, nor by the Clerk of the California Supreme Court, I was thereby entitled to conclude that Mr. Drozd was never qualified to be appointed to the office of United States magistrate judge, in the first instance.

 

To date, I have not requested any evidence that Mr. Drozd has been duly appointed or designated under 28 U.S.C. 631(a) or 636(b)(1)(B), respectively, because the matter of his qualifications came first.  If he was never qualified, then no appointment or designation by any federal judge could have been valid, or lawful, in the first instance.

 

Nevertheless, before I satisfy the legal requirements imposed upon me by the federal criminal statute at 18 U.S.C. 4 (misprision of felony), and before I formally charge Mr. Drozd with impersonating a federal officer, in violation of 18 U.S.C. 912 (a felony), I wish to confirm, once and for all, whether or not certain documentary evidence exists.

 

Documentary evidence may indicate that a federal judge did attempt to appoint Mr. Drozd to the office of United States magistrate judge, and/or that a federal judge did attempt to designate Mr. Drozd to conduct hearings and submit findings of fact and conclusions of law in My case, now pending before the Ninth Circuit.  I would regard such documentary evidence as a factor mitigating the charge I now intend to file against Mr. Drozd, for impersonating a federal officer in violation of 18 U.S.C. 912, and I do intend to supplement My Complaint of Judicial Misconduct with said evidence (if available).

 

 

DEMAND FOR SPECIFIC PERFORMANCE

 

Accordingly, I hereby demand the timely exhibition and certification of any and all documentary evidence that a federal judge did attempt to appoint Mr. Dale A. Drozd to the office of United States magistrate judge, pursuant to 28 U.S.C. 631(a) (or any other lawful authority).

 

I also demand the timely exhibition and certification of any and all documentary evidence that a federal judge did attempt, pursuant to 28 U.S.C. 636(b)(1)(B) (or any other lawful authority), to designate Mr. Dale A. Drozd to conduct hearings and submit findings of fact and conclusions of law in My case, now pending before the Ninth Circuit.

 

 

NOTICE OF DEADLINE

 

I am giving each of you a reasonable deadline of thirty (30) calendar days hence, which deadline is 5:00 p.m. on September 30, 2002 A.D., to produce the documentary evidence itemized above.  Beyond that deadline, your silence will constitute fraud, pursuant to the court holding in U.S. v. Tweel, and it will also activate estoppel, pursuant to the court holding in Carmine v. Bowen (cites on the Internet).

 

Please be advised that I intend to file your answer(s), if any, in the Ninth Circuit docket assigned to My Complaint of Judicial Misconduct against Mr. Drozd, pursuant to 28 U.S.C. 372(c).  That docket number is #02‑89005.  I also intend to testify to your silence, in the event that no answers are forthcoming from all of you, or any one of you.

 

 

Thank you for your timely professional consideration.

 

 

Sincerely yours,

 

/s/ Paul Andrew Mitchell

 

Paul Andrew Mitchell, B.A., M.S.

Private Attorney General, Plaintiff and Appellant

Mitchell v. AOL Time Warner, Inc. et al.

http://www.supremelaw.org/cc/aol/index.htm

 

copies:  Judge Alex Kozinski (supervising)

         Ninth Circuit Court of Appeals

         P.O. Box 91510

         Pasadena 91109-1510

         CALIFORNIA, USA

 

         Hon. Jan Scully, District Attorney

         Office of the District Attorney

         County of Sacramento

         901 “G” Street

         Sacramento 95814

         CALIFORNIA, USA

 

U.S. Mail care of:

 

         Dr. John C. Alden, M.D., Eyewitness

         350 – 30th Street, Suite 444

         Oakland 94609-3426

         CALIFORNIA, USA