Everett C. Gilbertson, Sui Juris
c/o General Delivery
Battle Lake [zip code exempt]
MINNESOTA STATE
 
In Propria Persona
 
Under Protest and
by Special Visitation
 
 
 
 
 
 
 UNITED STATES COURT OF APPEALS
 
 EIGHTH CIRCUIT
 
 
UNITED STATES OF AMERICA [sic], ) Case No. 97-2099-MNST
 Plaintiff [sic]/ )
 Appellees, ) USDC Minneapolis #CR-4-96-65
 v. )
 )
EVERETT C. GILBERTSON [sic],  )
 Defendant [sic]/ )
 Appellant. )
________________________________)
 )
Everett C. Gilbertson, ) DCUS Minneapolis #4-96-65
 Plaintiff/Appellant, )
 v.  ) NOTICE OF MOTION,
 ) MOTION FOR DISCRETIONARY
United States, ) JUDICIAL NOTICE, AND
James M. Rosenbaum, ) APPLICATION FOR LEAVE
and Does 2-99, ) TO FILE ENLARGED BRIEF:
 Respondents. ) FRAP Local Rule 28A(e),(j);
 ) Rule 201(c), Federal Rules
________________________________) of Evidence
 
COMES NOW Everett C. Gilbertson, Sui Juris, Citizen of Minnesota
 
state, expressly not a citizen of the United States ("federal
 
citizen"), and Appellant in the above entitled matter
 
(hereinafter "Appellant"), to provide formal Notice to all
 
interested party(s), to move this honorable Court for
 
discretionary judicial notice, pursuant to Rule 201(c) of the
 
Federal Rules of Evidence, and to apply for leave to file an
 
enlarged REPLY BRIEF, pursuant to Local Rules 28A(e) and (j) of
 
the Federal Rules of Appellate Procedure ("FRAP").
 
 
 Requests for Judicial Notice/Leave to File Enlarged Brief:
 Page 1 of 6

 Appellant respectfully requests judicial notice by this
 
honorable Court of the pleading entitled DEMAND FOR JURY TRIAL
 
AND DEMAND TO STAY PROCEEDINGS PENDING FINAL REVIEW OF FORMAL
 
CHALLENGE TO JUROR AND VOTER REGISTRANT QUALIFICATIONS, as filed
 
July 8, 1997, in Mitchell v. Nordbrock, Pima County Consolidated
 
Justice Court, Tucson, Arizona, case number #CV-97-3438. Said
 
pleading (hereinafter "Arizona Pleading") is attached hereto and
 
incorporated by reference, as if set forth fully herein. Arizona
 
state is in the Ninth Circuit.
 
 The two exhibits attached to the Arizona Pleading are nearly
 
identical in form, and substance, to the corresponding MOTION TO
 
STAY PROCEEDINGS and the VERIFIED STATEMENT, as previously filed
 
by Appellant, more than once, in the trial court below.
 
 The Complaint of Judicial Misconduct which follows the
 
VERIFIED STATEMENT infra was filed by Paul Andrew Mitchell,
 
Counselor at Law, against U.S. District Judge William D.
 
Browning, who presided over the trial of Sheila T. Wallen in
 
U.S.A. v. Wallen, USDC, Arizona, case number #95-484-WDB.
 
 Appellant requests discretionary judicial notice of said
 
Complaint of Judicial Misconduct, in part to demonstrate the
 
consistent lack of professionalism which the federal judiciary
 
has exhibited, when presented with the uncontested facts and laws
 
previously documented, under penalty of perjury and outside the
 
United States, in Appellant's MOTION TO STAY PROCEEDINGS and
 
requisite VERIFIED STATEMENT. See 28 U.S.C. 1746(1) in chief.
 
  Appellant hereby directs the attention of this honorable
 
Court to the following key points of law which are elaborated in
 
some detail in the Arizona Pleading, to wit:
 
 
 Requests for Judicial Notice/Leave to File Enlarged Brief:
  Page 2 of 6

 (1) The "Right of Election" is established and recognized
 by the Maine Supreme Court, Appleton concurring at 44
 Maine 528-529 (1859). The Maine Legislature had
 requested that court's judicial opinion, in response to
 the holding in Dred Scott v. Sandford, 19 How. 393
 (1856).
 
 (2) The existence of two (2) classes of citizenship under
 American law, never repealed, is also recognized by
 numerous authorities infra, both state and federal.
 
 (3) The proper construction and common understanding of the
 Qualifications Clauses are also explored thoroughly,
 with pertinent citations dating back to the California
 Constitution of 1849, and subsequently in People v. De
 La Guerra, 40 Cal. 311, 337 (1870) infra.
 
 (4) The cases recognize that one may be a citizen of the
 United States ("federal citizen") without also being a
 Citizen of any particular Union state. See e.g. Hough
 v. Societe Electrique Westinghouse de Russie, 231 F.
 341, (USDC, NY, 1916).
 
 (5) The cases also recognize that Americans may be Citizens
 of a Union state without also being federal citizens.
 See McDonel v. State, 90 Ind. 320 (1883); Crosse v.
 Board of Supervisors of Elections, 221 A.2d 431 (1966);
 11 C.J., Section 3, page 777 and cases cited therein
 (Harding, McDonel, Fowler).
 
 (6) The cases also recognize that, both before and after
 the so-called Fourteenth amendment [sic], it has not
 been necessary for one to be a federal citizen in order
 to be a Citizen of a Union state.
 
 (7) The failure to capitalize the "C" in "Citizen", as that
 term is used in the Qualifications Clauses, has created
 an immense, nearly immeasurable, amount of confusion
 among references to state and federal citizenship in
 all federal and state laws which utilize the phrase
 "citizen of the United States" [sic].
 
 (8) It is also clear that this confusion was intentional,
 in order to co-opt the American People into associating
 with a political jurisdiction which is not protected by
 the Guarantee Clause. The United States (federal
 government) is not required to guarantee a Republican
 Form of Government to the federal zone, only to the
 state zone [sic]. See Guarantee Clause.
 
 (9) Congress cannot by legislation alter the Constitution,
 from which alone it derives its power to legislate, and
 within whose limitations alone that power can be
 lawfully exercised. See Eisner v. Macomber, 252 U.S.
 189 (1919) (holding predicated on ratification of the
 16th amendment [sic] as applied to the term "income").
 
 
 Requests for Judicial Notice/Leave to File Enlarged Brief:
 Page 3 of 6

 (10) The Qualifications Clauses have never been amended,
  despite recent efforts to impose limits on the terms of
 federal Representatives and/or Senators. Appellant
 agrees that limits upon the terms of federal lawmakers
 would require an amendment to the U.S. Constitution.
 See U.S. Term Limits, Inc. v. Thornton, 115 S.Ct. 1842,
 131 L.Ed.2d 881 (1995).
 
 (11) It is a cardinal rule in dealing with written
 instruments that they are to receive an unvarying
 interpretation, and that their practical construction
 is to be uniform. See Cory et al. v. Carter, 48 Ind.
 327, 335 (1874); Qualifications Clauses, 3:2:1, 4:2:1.
 
 (12) Citizenship is a term of municipal law. Prior to the
  1866 Civil Rights Act, which legislated federal
 citizenship into existence as a municipal franchise,
 one and only one class of citizenship was recognized by
 the U.S. Constitution. Thus, prior to 1866, all
 constitutional references to "Citizen of the United
 States" and "citizen of the United States" were
 identical in all respects. See Roa v. Collector of
 Customs, 23 Philippine 315, 332 (1912); Murphy v.
 Ramsey, 114 U.S. 15 (1885); People v. De La Guerra, 40
 Cal. 311, 342 (1870) infra.
 
 
  REMEDY REQUESTED
 
 Appellant respectfully requests this honorable Court to take
 
formal judicial Notice of all authorities cited herein, pursuant
 
to Rule 201(c) of the Federal Rules of Evidence, and to grant
 
Appellant leave to file an enlarged REPLY BRIEF, pursuant to FRAP
 
Local Rules 28A(e) and (j). Appellant also requests leave to
 
incorporate the instant application into Appellant's REPLY BRIEF,
 
now in preparation, as if set forth fully therein.
 
 
  VERIFICATION
 
I, Everett C. Gilbertson, Sui Juris, hereby verify, under penalty
 
of perjury, under the laws of the United States of America,
 
without the "United States", that the above statement of facts is
 
true and correct, to the best of My current information,
 
knowledge, and belief, so help Me God, per 28 U.S.C. 1746(1).
 
 
 Requests for Judicial Notice/Leave to File Enlarged Brief:
 Page 4 of 6

Dated: ______________________________
 
 
Respectfully submitted,
 
 
 
______________________________________________
Everett C. Gilbertson, Sui Juris
Citizen of Minnesota state, federal witness
(expressly not a citizen of the United States)
 
All Rights Reserved without Prejudice
 
 
 Requests for Judicial Notice/Leave to File Enlarged Brief:
 Page 5 of 6

 PROOF OF SERVICE
 
I, Everett C. Gilbertson, Sui Juris, 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 MOTION, MOTION FOR DISCRETIONARY JUDICIAL NOTICE,
 AND APPLICATION FOR LEAVE TO FILE ENLARGED BRIEF:
 FRAP Local Rules 28A(e), (j);
 Rule 201(c), Federal Rules of Evidence
 
by placing one true and correct copy of said document(s) in first
 
class U.S. Mail, with postage prepaid and properly addressed to:
 
Attorney General James M. Rosenbaum
Department of Justice United States District Court
10th & Constitution, N.W. 110 South Fourth Street
Washington [zip code exempt] Minneapolis [zip code exempt]
DISTRICT OF COLUMBIA MINNESOTA STATE
 
Solicitor General Henry Shea
Department of Justice United States Attorneys
10th & Constitution, N.W. 110 South Fourth Street
Washington [zip code exempt] Minneapolis [zip code exempt]
DISTRICT OF COLUMBIA MINNESOTA STATE
 
Courtesy copies to:
 
William H. Rehnquist, C.J. Clarence Thomas, J.
U.S. Supreme Court  U.S. Supreme Court
One First Street N.E. One First Street N.E.
Washington [zip code exempt] Washington [zip code exempt]
DISTRICT OF COLUMBIA DISTRICT OF COLUMBIA
 
Paul Andrew Mitchell Alex Kozinski (supervising)
Counselor at Law, federal witness Ninth Circuit Court of Appeals
c/o 2509 N. Campbell Ave., #1776 125 S. Grand Avenue, Suite 200
Tucson [zip code exempt] Pasadena [zip code exempt]
ARIZONA STATE CALIFORNIA STATE
 
[See USPS Publication 221 for addressing instructions.]
 
 
Dated: ______________________________________
 
 
______________________________________________
Everett C. Gilbertson, Sui Juris
Citizen of Minnesota state, federal witness
(expressly not a citizen of the United States)
 
 
 Requests for Judicial Notice/Leave to File Enlarged Brief:
 Page 6 of 6

 
 
 
 
 
 
 
 
 
 
 Attachment "A":
 
 
 DEMAND FOR JURY TRIAL AND
 DEMAND FOR STAY OF PROCEEDINGS
 PENDING FINAL REVIEW OF FORMAL CHALLENGE
 TO JUROR AND VOTER REGISTRANT QUALIFICATIONS:
 ARS 21-201, ARS 16-101; Guarantee Clause
 
 Mitchell v. Nordbrock
 
 Pima County Consolidated Justice Court
 Pima County, Arizona state
 Case Number #CV-97-3438

Paul Andrew Mitchell, Sui Juris
Citizen of Arizona state
c/o General Delivery at:
2509 North Campbell Avenue
Tucson, Arizona state
 
In Propria Persona
 
All Rights Reserved
Without Prejudice
 
 
 
 
 
 PIMA COUNTY CONSOLIDATED JUSTICE COURT
 
 
Paul Andrew Mitchell, ) Case Number #CV-97-3438
 Plaintiff, )
 ) DEMAND FOR JURY TRIAL AND
 v. ) DEMAND TO STAY PROCEEDINGS
 ) PENDING FINAL REVIEW OF FORMAL
Neil and Evelyn Nordbrock, ) CHALLENGE TO JUROR AND VOTER
Lawrence E. Condit, ) REGISTRANT QUALIFICATIONS:
W. U. Weber, and )
Does 1 to 100, ) ARS 21-201, ARS 16-101;
 Defendants. ) Guarantee Clause
________________________________)
 
COMES NOW Paul Andrew Mitchell, Sui Juris, Citizen of Arizona
 
state, expressly not a citizen of the United States ("federal
 
citizen") and Plaintiff in the above entitled matter (hereinafter
 
"Plaintiff"), to demand a trial by jury in the instant case, and
 
also to demand an indefinite stay of proceedings, pending final
 
review of Plaintiff's formal challenge to the constitutionality
 
of Arizona Revised Statutes 16-101 and 21-201, for violating the
 
Guarantee Clause in the Constitution for the United States of
 
America, as lawfully amended, and to provide formal Notice of
 
same to all interested party(s). Pursuant to the Full Faith and
 
Credit Clause, and Rule 201(d) of the Arizona Rules of Evidence,
 
Plaintiff incorporates by reference the following documents, as
 
if set forth fully herein, and demands mandatory judicial notice
 
of the following related cases, to wit:
 
 
 Demand for Jury Trial and for Stay of Proceedings:
 Page 1 of 16

 (1) MOTION TO STAY PROCEEDINGS FOR FAILING TO COMPLY WITH
 GRAND JURY SELECTION POLICY, AND NOTICE OF CHALLENGE
 AND CHALLENGE TO CONSTITUTIONALITY OF  STATUTE,
 executed, served and filed in U.S.A. [sic] v. Wallen,
 United States District Court, District of Arizona,
 Tucson, case number #95-484-WDB. Said MOTION is
 attached hereto as Exhibit "A" and incorporated by
 reference as if set forth fully.
 
 (2) VERIFIED STATEMENT IN SUPPORT OF CHALLENGE TO GRAND
 JURY SELECTION POLICY AND ITS FEDERAL STATUTE,
 executed, served and filed in U.S.A. [sic] v. Wallen,
 United States District Court, District of Arizona,
 Tucson, case number #95-484-WDB. Said STATEMENT is
 attached hereto as Exhibit "B" and incorporated by
 reference as if set forth fully.
 
 (3) OPENING BRIEF in U.S.A. v. Gilbertson and Gilbertson v.
 U.S. et al., filed on June 18, 1997, United States
 Court of Appeals for the Eighth Circuit, case number
 #97-2099-MNST, containing a formal challenge to the
 federal Jury Selection and Service Act, 28 U.S.C. 1861
 et seq., for exhibiting prohibited discrimination
 against the class of People known as Citizens of the
 United States of America, also known as state Citizens,
 who are not also citizens of the United States, also
 known as federal citizens, by Right of Election.
 Confer at "Federal citizenship" in Black's supra.
 
 (4) MOTION TO STAY MANDATE AND PROCEEDINGS, PENDING
 DISCOVERY OF DOCUMENTS REQUESTED UNDER THE FOIA, AND
 FINAL RESOLUTION OF CHALLENGE TO CONSTITUTIONALITY OF
 THE JURY SELECTION AND SERVICE ACT in U.S.A. v. Pixley,
 filed on June 25, 1997, United States Court of Appeals
 for the Second Circuit, case number #96-1476,
 containing a formal challenge to the federal Jury
 Selection and Service Act, 28 U.S.C. 1861 et seq., for
 exhibiting prohibited discrimination against the class
 of People known as Citizens of the United States of
 America, also known as state Citizens, who are not also
 citizens of the United States, also known as federal
  citizens, by Right of Election.
 
 Pursuant to the Full Faith and Credit Clause, and Rule
 
201(d) of the Arizona Rules of Evidence, Plaintiff demands
 
mandatory judicial notice, and provides formal Notice to all
 
interested party(s), of the following authorities and analysis
 
which prove that there is, in American Law never repealed, a
 
Right of Election whereby American Citizens are entitled to
 
choose between state Citizenship and/or federal citizenship.
 
 
 Demand for Jury Trial and for Stay of Proceedings:
 Page 2 of 16

 Additional Citations Establishing a Right of Election
 
 That the general principle of such a right of electing, to
 remain under the old or to contract a new allegiance, was
 recognized, is apparent from the case of Com. v. Chapman, 1
 Dal., 53, and other cases cited. Those who adhered to the
 new government and transferred their allegiance thereto,
 became citizens of the same. All who were free, had this
 right of election, else they were not free. No particular
 color nor descent was required to confer this right of
 election. It resulted from freedom, and the necessity
 resting upon all to make an election. When it was made, and
 the individual determined to adhere to the new state, he was
 necessarily a member and a citizen of the same. He
 sustained the same relation to the new government by choice,
 which he had sustained to the old by birth.
 
 [44 Maine 528-529 (1859), Appleton concurring]
  [emphasis and underlines added]
 
 Mr. Kelley [of North Carolina] ... "contended for the broad
 principle that all men are entitled to equal rights and
 privileges; that nothing but arbitrary power can forbid
 their free exercise, and that it is contrary to all the
 principles of free government to tax a man and refuse him a
 right to vote for a member to the legislature." Debates on
 the Constitution of North Carolina in 1835, 357.
 
  [44 Maine 533 (1859), Appleton concurring]
 [emphasis and underlines added]
 
 Slavery is therefore regarded as a condition imposed upon
 the individual by the municipal law.
 
 [44 Maine 525 (1859), Appleton concurring]
 [emphasis added]
 
 ... [F]or it is certain, that in the sense in which the word
 "citizen" is used in the federal constitution, "citizen of
 each state," and "citizen of the United States," are
 convertible terms; they mean the same thing; for "the
 citizens of each state are entitled to all privileges and
 immunities of citizens in the several states," and "citizens
 of the United States" are, of course, citizens of all the
 United States.
 [44 Maine 518 (1859), Hathaway dissenting]
 [italics in original, underlines added]
 
The following additional citations prove the existence of two
 
classes of citizenship:
 
 It does not by any means follow, because he has all the
 rights and privileges of a citizen of a state, that he must
 be a citizen of the United States.
 
 [Dred Scott v. Sandford, 19 How. 405 (1856)]
 
 
 Demand for Jury Trial and for Stay of Proceedings:
 Page 3 of 16

 Under our complex system of government there may be a
 citizen of a state who is not a citizen of the United States
 in the full sense of the term. This result would seem to
 follow unavoidably from the nature of the two systems of
 government.
 [In Re Wehlitz, 16 Wis. 443 (1863)]
 
 This distinction between citizenship of the state and of the
 United States is also very clearly implied in several
 provisions both of the constitution and laws of this state.
 There, wherever the full right of citizenship of the United
 States is intended, it is so expressed, as in respect to the
 office of governor, lieutenant governor or judge, it is
 provided that no person shall be eligible who is not a
 "citizen of the United  States." This form of expression
 would never have been used if it had been supposed that no
 person could be a citizen of the state without being also a
 citizen of the United States. In that case, the word
 "citizen" alone would have been used.
 
 [In Re Wehlitz, 16 Wis. 443 at 474 (1863)]
 
 ... [T]herefore, the militia law drops the language which is
 used when a full citizenship of the United States is
 intended, and provides that all able bodied "citizens" shall
 be liable to military duty. This change of phraseology was
 not accidental or unmeaning, but was entirely based upon the
 well understood distinction between a citizen of the state
 merely, and a citizen of the United States.
 
 [In Re Wehlitz, 16 Wis. 443, 478 (1863)]
 
 The first clause of the fourteenth amendment made negroes
 citizens of the United States, and citizens of the State in
 which they reside, and thereby created two classes of
 citizens, one of the United States and the other of the
 state.
 [Cory et al. v. Carter, 48 Ind. 327 (1874)]
 [headnote 8, emphasis added]
 
 Judge Cooley, in his great work on Constitutional
 Limitations, on page 54, says: "A cardinal rule in dealing
 with written instruments is that they are to receive an
 unvarying interpretation, and that their practical
 construction is to be uniform."
 
 [Cory et al. v. Carter, 48 Ind. 327, 335 (1874)]
 
 Is a voter under the constitution of the State of Indiana,
  though not a citizen of the United States, eligible to hold
 the office of township trustee? ... The constitution [of
 Indiana], and its fair interpretation, therefore, conduct us
 to the conclusion that the contestee was eligible to the
 office of township trustee, and that he is entitled to hold
 it, and exercise its functions.
 
 [McCarthy v. Froelke, 63 Ind. 507, 509-511 (1878)]
 
 
 Demand for Jury Trial and for Stay of Proceedings:
  Page 4 of 16

 One may be a citizen of a State and yet not a citizen of the
 United States. Thomasson v. State, 15 Ind. 449; Cory v.
 Carter, 48 Ind. 327 (17 Am. R. 738); McCarthy v. Froelke,
 63 Ind. 507; In Re Wehlitz, 16 Wis. 443.
 
 [McDonel v. State, 90 Ind. 320, 323 (1883)]
 [underlines added]
 
 For it would seem incompatible with the spirit of our laws
 to exclude one from the jury box who was eligible to act as
 jury commissioner in selecting jurors; or as sheriff in
 empanneling a jury; or as judge to preside at the trial.
 
 [McDonel v. State, 90 Ind. 320, 324 (1883)]
 
 One may be a citizen of a state, and yet not a citizen of
 the United States -- McDonel v. State, 90 Ind. 320.
 
 [4 Dec. Dig. '06 -- Page 1197 (1906), "Citizens", Sec. 11]
 [underlines added]
 
 The first clause of the fourteenth amendment of the federal
 Constitution made negroes citizens of the United States, and
 citizens of the state in which they reside, and thereby
 created two classes of citizens, one of the United States
 and the other of the state -- Cory v. Carter, 48 Ind. 327,
 17 Am. Rep. 738.
 
 [4 Dec. Dig. '06 -- Page 1197 (1906), "Citizens", Sec. 11]
 [emphasis and underlines added]
 
  ... Rights and privileges of a citizen of the state or of
 the United States.
 
 [Harding v. Standard Oil Company]
 [182 F. 421 (USCC, Ill. 1910)]
 
 One may be a citizen of the United States, and yet not a
 citizen of any state.
 
 [Hough v. Societe Electrique Westinghouse de Russie]
 [231 F. 341 (USDC, NY, 1916)]
 
 The following letter to Mr. Ray Feyereisen also contains a
 
wealth of additional citations, which not only establish the
 
existence of two classes of citizenship, but they also establish
 
that an American may be a state Citizen without also being a
 
federal citizen, by Right of Election. The letter to Mr.
 
Feyereisen now follows, to wit:
 
 
 Demand for Jury Trial and for Stay of Proceedings:
 Page 5 of 16

  c/o General Delivery
 San Rafael [zip code exempt]
 California state
 
 September 10, 1993
 
Ray Feyereisen
c/o General Delivery
Houston, Texas Republic
Postal Code 77253/tdc
 
Dear Ray: