Paul Andrew, Mitchell, B.A., M.S. Citizen of Arizona state, federal witness, Counselor at Law, and Relator c/o 2509 N. Campbell Avenue, #1776 Tucson, Arizona state zip code exempt Under Protest, Necessity, and by Special Visitation DISTRICT COURT OF THE UNITED STATES JUDICIAL DISTRICT OF MONTANA BILLINGS DIVISION People of the United States ) Case No. CV-96-163-BLG of America, ex relatione ) Paul Andrew Mitchell, ) NOTICE OF REFUSAL FOR CAUSE: ) FRCP Rules 9(b); 12(b)(1),(2); Petitioners, ) 28 U.S.C. 1746(1); Rule 201(d), ) Federal Rules of Evidence; vs. ) Petition Clause; Supremacy ) Clause; Universal Declaration United States et al., ) of Human Rights; International ) Covenant on Civil and Political Respondent. ) Rights, enacted with explicit ______________________________) Reservations COME NOW the People of the United States of America (hereinafter "Petitioners"), ex relatione Paul Andrew, Mitchell, B.A., M.S., Citizen of Arizona state, federal witness, and Counselor at Law (hereinafter "Relator"), to provide formal Notice to all interested party(s) of Petitioners' formal Refusal of the alleged ORDER of the honorable Jack D. Shanstrom, Chief Judge, United States District Court (hereinafter "Chief Judge"), issued and filed erroneously in the instant case on October 28, 1996. Petitioners refuse said ORDER for fraud, and for all of the following valid causes, to wit: Notice of Refusal for Cause: Page 1 of 14 1. Because Petitioners seek to enjoin the United States, and its alleged agents in the instant case, from depriving Citizens of Montana state of life, liberty, or property without due process or law, Petitioners have invoked a three-judge panel to preside over the District Court of the United States. The Chief Judge, presiding over the United States District Court, is not a three-judge panel. See 28 U.S.C. 2284, which was expressly invoked by Petitioners in Their VERIFIED PETITION FOR WARRANT OF REMOVAL BY THREE-JUDGE PANEL (hereinafter "VERIFIED PETITION"). 2. The Chief Judge's ORDER is plainly issued from the United States District Court for the District of Montana, Billings Division. Petitioners' VERIFIED PETITION was presented to the District Court of the United States. The former is an Article IV territorial tribunal, with territorial and subject matter jurisdiction tightly constrained by Acts of Congress; the latter is an Article III judicial power Court, with general jurisdiction to hear all matters arising under the Constitution, laws, and treaties of the United States. 3. One of the other stated purposes for removing the instant case into the District Court of the United States [sic] is to enforce production of the documents requested in Relator's original Freedom of Information Act ("FOIA") request, submitted to the U.S. Department of Justice in Washington, D.C., for the official credentials (if any) of all six hundred thirty-three (633) alleged federal agents who rotated in and out of the standoff with the so-called Montana Freemen in Garfield county, Montana state. This is a "federal question" which requires a federal court of competent jurisdiction to adjudicate. Notice of Refusal for Cause: Page 2 of 14 4. The court of original jurisdiction to compel production of documents requested under the FOIA is the District Court of the United States ("DCUS"), not the United States District Court ("USDC"). See 5 U.S.C. 552(a)(4)(B); Full Faith and Credit Clause; and the ORDER of United States District Judge John M. Roll, dated May 21, 1996, In re Grand Jury Subpoena Served on New Life Health Center Company, Case No. GJ-95-1-6 (JMR), USDC, Tucson, Arizona state, to wit: "... [T]his [USDC] is not the proper forum to bring a request under the Freedom of Information Act. 5. The instant case was not properly dismissed through lawful action by Garfield County District Judge Kenneth Wilson, as alleged in the Chief Judge's ORDER, because Judge Wilson failed to provide Petitioners with a proper hearing on Their application for leave to appear in writing. While Petitioners were awaiting a ruling on said application, Judge Wilson attempted to dismiss the case because Petitioners had failed to appear as scheduled. This worked a gross injustice against Petitioners by violating Their fundamental Right to due process of law. Petitioners never waived this fundamental Right. 6. Judge Wilson's alleged dismissal was also improper for the several reasons as stated in Petitioners' PETITION FOR RECONSIDERATION, dated July 29, 1996. Judge Wilson's failure to rule upon motions which were properly placed before his court is proof that two (2) international human rights treaties were violated thereby in the instant case. Specifically, Petitioners are guaranteed effective judicial remedies, notwithstanding that the violations were committed by persons acting in their official capacities, e.g. state and/or federal judges. Treaties are rendered supreme Law of Our Land, pursuant to the Supremacy Clause. See Petition Clause; Universal Declaration of Human Rights; International Covenant on Civil and Political Rights. Notice of Refusal for Cause: Page 3 of 14 7. The Chief Judge erred by misinterpreting Petitioner's NOTICE AND DEMAND to the Ninth Circuit Court of Appeals for a Certificate of Necessity to be served upon the Chief Justice of the Supreme Court of the United States. The Chief Judge alleged that Petitioners sought to "empanel [sic] a Court of International Trade to perform the judicial duties of this Court." This statement is misleading and incorrect. Petitioners are entitled to a 3-judge panel of competent and qualified federal judges, whose compensation(s) are not currently being diminished by federal income taxes. See Evans v. Gore, 253 U.S. 245 (1920) (never overturned). 8. Petitioners argued that the only competent and qualified candidates for temporary assignment to preside on a three-judge panel in this honorable District Court of the United States ("DCUS") are those who preside upon the United States Court of International Trade, which is expressly an Article III forum, by Act of Congress. See 28 U.S.C. 251(a), to wit: The court is a court established under article III of the Constitution of the United States. 9. The authority in Evans is particularly poignant. It is apparent to Petitioners, because of exhaustive research which Relator has conducted for more than seven (7) years, that all sitting United States District Judges in America are appointed to serve in either an Article I or in an Article IV capacity at the present time. In this capacity, said Judges do not enjoy the explicit immunity which is found in Article III, Section 1 ("3:1") of the Constitution for the United States of America, as lawfully amended (hereinafter "U.S. Constitution"), to wit: The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour [sic], and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. [U.S. Constitution, Article III, Section 1] [emphasis added] Notice of Refusal for Cause: Page 4 of 14 10. Petitioners submit that one of the major reasons why said Judges do not enjoy the explicit immunity at 3:1 is the doctrine of territorial heterogeneity. Confer in The Federal Zone: Cracking the Code of Internal Revenue, Fourth Edition, previously available on the Internet via the Alta Vista search engine; see also U.S. v. Lopez, 131 L.Ed.2d 626 (1995): Each of these [schools] now has an invisible federal zone [sic] extending 1,000 feet beyond the (often irregular) boundaries of the school property. [Kennedy concurring] [emphasis added] Here, the U.S. Supreme Court utilized this term as a common noun, without any citations or footnotes. The doctrine of territorial heterogeneity, as such, is summarized as follows in the Conclusions of The Federal Zone: Cracking the Code of Internal Revenue, to wit: In exercising its exclusive authority over the federal zone, Congress is not subject to the same constitutional limitations that exist inside the 50 States. For this reason, the areas that are inside and outside the federal zone are heterogeneous with respect to each other. This difference results in a principle of territorial heterogeneity: the areas within the federal zone are subject to one set of rules; the areas without (or outside) the federal zone are subject to a different set of rules. The Constitution rules outside the zone and inside the 50 States. The Congress rules inside the zone and outside the 50 States. The 50 States are, therefore, in one general class, because all constitutional restraints upon Congress are in force throughout the 50 States, without prejudice to any one State. The areas within the federal zone are in a different general class, because these same constitutional restraints simply do not limit Congress inside that zone. [The Federal Zone, electronic Fifth Edition, Conclusions] Notice of Refusal for Cause: Page 5 of 14 11. In the pivotal case of Downes v. Bidwell, 182 U.S. 244 (1901), which is discussed at several places in the book The Federal Zone supra, the U.S. Supreme Court established a doctrine whereby the Constitution of the "United States", as such, does not extend beyond the limits of the states which are united by and under it. This doctrine of territorial heterogeneity is now commonly identified as the "Downes Doctrine." 12. This doctrine has been reinforced by subsequent decisions of the U.S. Supreme Court, notably, the case of Hooven & Allison v. Evatt, 324 U.S. 652 (1945), in which the high Court ruled that the guarantees of the Constitution extend to the federal zone only as Congress has made those guarantees applicable. The United States District Courts ("USDC") are currently established by Congress as territorial (federal zone) courts, with constitutional authority emanating from Article IV, Section 3, Clause 2, to wit: The Congress shall have Power to dispose of and make all needed Rules and Regulations respecting the Territory or other Property belonging to the United States; .... [U.S. Constitution, Art. 4, Sec. 3, Cl. 2] [emphasis added] 13. Petitioners wish to litigate Their civil case against the United States, and against other Respondents as yet unnamed, in an Article III Court of competent jurisdiction. In particular, Petitioners wish to invoke the judicial power of the United States of America, among several reasons, in order to enjoin the Respondent(s) from withholding the agency records which Relator has requested in lawful and proper requests under the FOIA, and to order the production of any agency records improperly withheld from Relator. See 5 U.S.C. 552(a)(4)(B), to wit: On complaint, the district court of the United States ... has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. [5 U.S.C. 552(a)(4)(B)] [emphasis added] Notice of Refusal for Cause: Page 6 of 14 14. There is a distinct and definite difference between a "United States District Court" and a "District Court of the United States". The words "District Court of the United States" commonly describe constitutional courts created under Article III of the Constitution, not the legislative courts which have long been the courts of the Territories. See International Longshoremen's & Warehousemen's Union v. Juneau Spruce Corp., 342 U.S. 237 at 241 (1952), 72 S.Ct. 235, 96 L.Ed. 275, 13 Alaska 536. 15. The term "District Court of the United States" commonly describes Article III courts or "courts of the United States", and not legislative courts of the territories. See American Insurance Co. v. 356 Bales of Cotton, 1 Pet. 511 (1828), 7 L.Ed 242; International Longshoremen's and Warehousemen's Union v. Wirtz, 170 F.2d 183 (9th Cir., 1948), cert. den. 336 U.S. 919, 93 L.Ed. 1082, 69 S.Ct. 641, reh. den. 336 U.S. 971, 93 L.Ed 1121, 69 S.Ct. 936. 16. Though the judicial system set up in a territory of the United States is a part of federal jurisdiction, the phrase "court of the United States" when used in a federal statute is generally construed as not referring to "territorial courts." Notice of Refusal for Cause: Page 7 of 14 See Balzac v. Porto Rico, 258 U.S. 298 at 312 (1921), 42 S.Ct. 343, 66 L.Ed. 627. In Balzac, the High Court stated: The United States District Court is not a true United States court established under Article III of the Constitution to administer the judicial power of the United States therein conveyed. It is created by virtue of the sovereign congressional faculty, granted under Article IV, Section 3, of that instrument, of making all needful rules and regulations respecting the territory belonging to the United States. The resemblance of its jurisdiction to that of true United States courts in offering an opportunity to nonresidents of resorting to a tribunal not subject to local influence, does not change its character as a mere territorial court. [emphasis added] 17. The distinction within the dual nature of the federal court system is also noted in Title 18 U.S.C. 3241, which states that the United States District Court for the Canal Zone shall have jurisdiction "concurrently with the district courts of the United States, of offenses against the laws of the United States committed upon the high seas." 18. This honorable Court is directed to one of the great masters of U.S. Constitution, Chief Justice John Marshall, writing in the year 1828. Here, Justice Marshall makes a very clear distinction between judicial courts, authorized by Article III, and legislative (territorial) courts, authorized by Article IV. Marshall even utilizes some of the exact wording of Article IV to differentiate those courts from Article III "judicial power" courts, as follows: These [territorial] courts then, are not Constitutional courts, in which the judicial power conferred by the Constitution on the general government can be deposited. They are incapable of receiving it. They are legislative courts, created in virtue of the general rights of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations, respecting the territory belonging to the United States. The jurisdiction with which they are invested, is not a part of that judicial power which is defined in the 3d article of the Constitution, but is conferred by Congress, in the execution of those general powers which that body possesses over the territories of the United States. Although admiralty jurisdiction can be exercised in the States in those courts only which are established in pursuance of the 3d article of the Constitution, the same limitation does not extend to the territories. In legislating for them, Congress exercises the combined powers of the general and of the State government. [American Insurance Co. v. 356 Bales of Cotton] [1 Pet. 511 (1828), emphasis added] Notice of Refusal for Cause: Page 8 of 14 Other supporting authorities now follow, to wit: Constitutional provision against diminution of compensation of federal judges was designed to secure independence of judiciary. [O'Donoghue v. U.S., 289 U.S. 516 (1933)] [headnote 2. Judges] The term "District Courts of the United States," as used in Criminal Appeals Rules, without an addition expressing a wider connotation, had its historic significance and described courts created under article 3 of Constitution, and did not include territorial courts. [Mookini et al. v. U.S., 303 U.S. 201] [headnote 2. Courts, emphasis added] Where statute authorized Supreme Court to prescribe Criminal Appeals Rules in District Courts of the United States including named territorial courts, omission in rules when drafted of reference to District Court of Hawaii, and certain other of the named courts, indicated that Criminal Appeals Rules were not to apply to those [latter] courts. [Mookini et al. v. U.S., 303 U.S. 201] [headnote 4. Courts, emphasis added] 19. The following paragraph from Mookini is extraordinary for several reasons: (1) it refers to the "historic and proper sense" of the term "District Courts of the United States", (2) it makes a key distinction between such courts and application of their rules to territorial courts; (3) the application of the maxim inclusio unius est exclusio alterius is obvious here, namely, the omission of territorial courts clearly shows that they were intended to be omitted: Not only did the promulgating order use the term District Courts of the United States in its historic and proper sense, but the omission of provisions for the application of the rules to the territorial courts and other courts mentioned in the authorizing act clearly shows the limitation that was intended. [Mookini et al. v. U.S., 303 U.S. 201] [emphasis added] Notice of Refusal for Cause: Page 9 of 14 The words "district court of the United States" commonly describe constitutional courts created under Article III of the Constitution, not the legislative courts which have long been the courts of the Territories. [Int'l Longshoremen's and Warehousemen's Union et al.] v. Juneau Spruce Corp., 342 U.S. 237 (1952)] [emphasis added] The phrase "court of the United States", without more, means solely courts created by Congress under Article III of the Constitution and not territorial courts. [Int'l Longshoremen's and Warehousemen's Union et al.] [v. Wirtz, 170 F.2d 183 (9th Cir. 1948), headnote 1] [emphasis added] United States District Courts have only such jurisdiction as is conferred by an Act of Congress under the Constitution. U.S.C.A. Const. art. 3, sec. 2; 28 U.S.C.A. 1344] [Hubbard v. Ammerman, 465 F.2d 1169 (5th Cir., 1972)] [headnote 2. Courts] The United States district courts are not courts of general jurisdiction. They have no jurisdiction except as prescribed by Congress pursuant to Article III of the Constitution. [many cites omitted] [Graves v. Snead, 541 F.2d 159 (6th Cir. 1976)] Jurisdiction of court may be challenged at any stage of the proceeding, and also may be challenged after conviction and execution of judgment by way of writ of habeas corpus. [U.S. v. Anderson, 60 F.Supp. 649 (D.C.Wash. 1945)] The United States District Court has only such jurisdiction as Congress confers. [Eastern Metals Corp. v. Martin] [191 F.Supp 245 (D.C.N.Y. 1960)] Notice of Refusal for Cause: Page 10 of 14 20. Petitioners are not proceeding "Pro Se" [sic]. They are proceeding in Their own Right, Sui Juris. In Latin, the term "Pro Se" means "For It", because "Se" is a singular neuter pronoun which is utilized in law to refer to an artificial entity, such as a statutory trust, partnership, association, company, or corporation. Compare IRC 7701(a)(1) in pari materia. The Relator herein speaks for Petitioners, because He is one of Them, in good standing, by Right of birth. See jus soli. 21. The Chief Judge has confused "licensed attorney" and "Counselor at Law". A Counselor at Law is not necessarily a licensed attorney. See original Thirteenth Amendment. Confer at "Counsellor at Law" in Bouvier's Law Dictionary (1856), to wit: COUNSELLOR AT LAW, offices. An officer in the supreme court of the United States, and in some other courts, who is employed by a party in a cause, to conduct the same on its trial on his behalf. He differs from an attorney at law. (q. v.) 2. In the supreme court of the United States, the two degrees of attorney and counsel are kept separate, and no person is permitted to practise both. It is the duty of the counsel to draft or review and correct the special pleadings, to manage the cause on trial, and, during the whole course of the suit, to apply established principles of law to the exigencies of the case. 1 Kent, Com. 307. 3. Generally in the other courts of the United States, as well as in the courts of Pennsylvania, the same person performs the duty of counsellor and attorney at law. 4. In giving their advice to their clients, counsel and others, professional men have duties to perform to their clients, to the public, and to themselves. In such cases they have thrown upon them something which they owe to the fair administration of justice, as well as to the private interests of their employers. The interests propounded for them ought, in their own apprehension, to be just, or at least fairly disputable; and when such interests are propounded, they ought not to be pursued per fas et nefas. Hag. R. 22. Notice of Refusal for Cause: Page 11 of 14 5. A counsellor is not a hired person, but a mandatory; he does not render his services for a price, but an honorarium, which may in some degree recompense his care, is his reward. Doubtless, he is not indifferent to this remuneration, but nobler motives influence his conduct. Follow him in his study when he examines his cause, and in court on the trial; see him identify himself with the idea of his client, and observe the excitement he feels on his account; proud when he is, conqueror, discouraged, sorrowful, if vanquished; see his whole soul devoted to the cause he has undertaken, and which he believes to be just, then you perceive the elevated man, ennobled by the spirit of his profession, full of sympathy for his cause and his client. He may receive a reward for his services, but such things cannot be paid for with money. No treasures can purchase the sympathy and devotedness of a noble mind to benefit humanity; these things are given, not sold. See Honorarium. 6. Ridley says, that the law has appointed no stipend to philosophers and lawyers not because they are not reverend services and worthy of reward or stipend, but because either of them are most honorable professions, whose worthiness is not to be valued or dishonored by money. Yet, in these cases many things are honestly taken, which are not honestly asked, and the judge may, according to the quality of the cause, and the still of the advocate, and the custom of the court, and, the worth of the matter that is in hand, appoint them a fee answerable to their place. View of the Civil and Eccles. Law, 38, 39. A Law Dictionary Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union, Sixth Edition, John Bouvier (1856) [emphasis added] 22. Petitioners hereby demand mandatory judicial notice, pursuant to Rule 201(d) of the Federal Rules of Evidence, of Relator's NOTICE OF INTENT TO FILE CRIMINAL COMPLAINTS AGAINST: Rupert Randall Parsons, Keven Entzel, WITH VERIFICATION PER 28 U.S.C. 1746(1), dated December 12, 1996 and addressed to the Postmaster, Billings, Montana state, Postal Zone 59108/tdc ["Threat, Duress, and Coercion"], which NOTICE OF INTENT is attached hereto and incorporated by reference as if set forth fully herein. Petitioners were denied timely service of the Chief Judge's ORDER, due to deliberate and premeditated mail tampering and obstruction of mail. See attached. Notice of Refusal for Cause: Page 12 of 14 SUMMARY Petitioners are entitled to a competent and qualified three- judge panel to preside over this honorable District Court of the United States [sic] and to consider Petitioners' proper petition for warrant of removal. Chief Judge Shanstrom is neither a 3- judge panel, nor is he competent or qualified to preside over this honorable Court, because his judicial compensation is currently being diminished by federal income taxes, in violation of Article III, Section 1, of the U.S. Constitution, and in violation of the pivotal holding in Evans v. Gore supra. VERIFICATION The Undesigned, Paul Andrew, Mitchell, B.A., M.S., hereby verifies, under penalty of perjury, under the laws of the United States of America, without the "United States", that the above statements of fact are true and correct, to the best of My current information, knowledge, and belief, so help Me God, pursuant to 28 U.S.C. 1746(1). Executed on December 13, 1996 Respectfully submitted, /s/ Paul Andrew Mitchell Paul Andrew, Mitchell, B.A., M.S. Citizen of Arizona state, federal witness, Counselor at Law, and Relator Notice of Refusal for Cause: Page 13 of 14 PROOF OF SERVICE I, Paul Andrew, Mitchell, B.A., M.S., Citizen of Arizona state, federal witness, and Counselor at Law, do hereby certify, under penalty of perjury, under the laws of the United States of America, without the "United States", 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: FRCP Rules 9(b); 12(b)(1), (2); 28 U.S.C. 1746(1); Rule 201(d), Federal Rules of Evidence; Petition Clause; Supremacy Clause; Universal Declaration of Human Rights; International Covenant on Civil and Political Rights, enacted with explicit Reservations by placing one true and correct copy of same in first class U.S. Mail, with postage prepaid and properly addressed to: Attorney General William H. Rehnquist, C.J. Department of Justice Supreme Court of the U.S. 10th and Constitution, N.W. 1 First Street, N.E. Washington, D.C. Washington, D.C. Solicitor General Warren Christopher Department of Justice U.S. Secretary of State 10th and Constitution, N.W. Department of State Washington, D.C. Washington, D.C. James M. Burns LeRoy Michael; Schweitzer United States District Court c/o Yellowstone County Jail 316 North 26th Street 3165 King Avenue, East Billings, Montana state Billings, Montana state Office of the U.S. Attorneys Judge J. Clifford Wallace United States District Court Ninth Circuit Court of Appeals Federal Building c/o P.O. Box 193939 Billings, Montana state San Francisco, California Chief Judge Judge Alex Kozinski Ninth Circuit Court of Appeals Ninth Circuit Court of Appeals c/o P.O. Box 193939 125 South Grand Avenue, #200 San Francisco, California state Pasadena, California state Executed on December 13, 1996 /s/ Paul Andrew Mitchell Paul Andrew Mitchell, B.A., M.S. Citizen of Arizona state, federal witness, Counselor at Law, and Relator Notice of Refusal for Cause: Page 14 of 14 # # #
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People v. United States et al.