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