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:
I did some more research today, to explore some of the cases
which support the position that one can be a State Citizen
without necessarily being a citizen of the United States. You
already knew about Crosse; here are the relevant paragraphs:
Both before and after the Fourteenth Amendment to the
federal Constitution, it has not been necessary for a person
to be a citizen of the United States in order to be a
citizen of his state. United States v. Cruikshank, 92 U.S.
542, 549, 23 L.Ed. 588 (1875); Slaughter-House Cases, 83
U.S. (16 Wall.) 36, 73-74, 21 L.Ed. 394 (1873); and see
Short v. State, 80 Md. 392, 401-402, 31 A. 322 (1895). See
also Spear, State Citizenship, 16 Albany L.J. 24 (1877). ...
[B]ut we find nothing in Reum [City of Minneapolis v. Reum,
56 F. 576, 581 (8th Cir. 1893)] or any other case which
requires that a citizen of a state must also be a citizen of
the United States, if no question of federal rights or
jurisdiction is involved. As the authorities referred to in
the first portion of this opinion evidence, the law is to
the contrary.
[Crosse v. Board of Supervisors of Elections]
[221 A.2d 431 (1966), emphasis and underlines added]
Corpus Juris is another source of authorities which support this
position:
So a person may be a citizen of a particular state and not a
citizen of the United States46 ....
[11 C.J., Sec. 3, p. 777]
Footnote 46 lists the following cases:
Harding v. Standard Oil Co., 182 Fed. 421 (1910)
McDonel v. State, 90 Ind. 320 (1883)
State v. Fowler, 41 La. Ann. 380, 6 S. 602 (1889)
The reference librarian at the County Law Library and I
searched in vain for McDonel v. State; they're going to put
their special legal beagle on that search. Here's what Harding
said:
Demand for Jury Trial and for Stay of Proceedings:
Page 6 of 16
In the Constitution and laws of the United States the term
["citizenship"] is generally, if not always, used in a
political sense to designate one who has the rights and
privileges of a citizen of a state or of the United States.
Baldwin v. Franks, 120 U.S. 678, 7 Sup. Ct. 656, 30 L.Ed.
766. A person may be a citizen of a state but not of the
United States; as, an alien who has declared his intention
to become a citizen, and who is by local law entitled to
vote in the state of his residence, and there exercise all
other local functions of local citizenship, such as holding
office, right to poor relief, etc., but who is not a citizen
of the United States. Taney, C.J., in Dred Scott v.
Sandford, 19 How. 405, 15 L.Ed. 691; Slaughterhouse Cases,
16 Wall. 74, 21 L.Ed. 394.
[Harding v. Standard Oil Co. et. al., 182 Fed. 421 (1910)]
[emphasis and underlines added]
I really love the pertinent quote from State v. Fowler, which was
decided by the Louisiana Supreme Court in 1889:
A person who is a citizen of the United States is
necessarily a citizen of the particular state in which he
resides. But a person may be a citizen of a particular
state and not a citizen of the United States. To hold
otherwise would be to deny to the state the highest exercise
of its sovereignty, -- the right to declare who are its
citizens. The sovereignty of the citizens of a republic has
its highest assertion in representative government, and is
constituted in its political order in the representation of
persons, and not of classes or of interests.
[State ex rel. Leche v. Fowler, 41 La. Ann. 380]
[6 S. 602 (1889), emphasis added]
The Crosse court cites Short v. State, which came to essentially
the same conclusion in the following long passage:
And then, as to the objection that this local law is
repugnant to that clause in the fourteenth amendment of the
federal constitution which declares that "no state shall
make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States," it is
sufficient to say that the interpretation of that clause by
the supreme court in the Slaughterhouse Cases, 16 Wall. 36,
is a complete answer to this objection. There is a
distinction, says Justice Miller, between citizenship of the
United States and citizenship of a state.
[Short v. State, 80 Md. 392, 401-402, 31 A. 322 (1895)]
[emphasis and underlines added]
The Crosse court cites Short v. State, but I could find in
the latter decision no statements which took the exact position
we are seeking; nevertheless, it does cite the Slaughterhouse
Cases and also Bradwell v. State, 16 Wall. 130. In the Bradwell
case, Mr. Justice Miller, speaking for the court, says:
The protection designed by that clause, as has been
repeatedly held, has no application to a citizen of the
state whose laws are complained of.
[emphasis added]
Demand for Jury Trial and for Stay of Proceedings:
Page 7 of 16
Also, I think I have already mentioned this book, but it's
worth mentioning again. See if you can get your hands on a copy
of A Treatise on Citizenship by Birth and by Naturalization, by
Alexander Porter Morse, Boston: Little, Brown, and Company, 1881.
Buried near the end of this voluminous treatise is a section
entitled "State Citizenship -- Its Existence". In addition to
the big cases like Dred Scott, Slaughterhouse and Cruikshank, he
mentions the following in his footnotes:
Corfield v. Coryell, 4 Wash. C.C. 371
Conner v. Elliott, 18 How. 591
Donovan v. Pitcher, 53 Ala. 411
Cully v. Baltimore, etc., R.R. Co., 1 Hughes 536
Prentiss v. Brennan, 2 Blatchf. 162
Frasher v. State, 3 Tex. Ct. App. 267
Reilly v. Lamar, 2 Cranch 344
He also writes, "That there is a state citizenship, see Registry
Act of California of 1865-1866, sect. 11." I pulled it; check
it out.
So, you thought you were caught up with all your work, did
you?
Carry on, and peace be with you.
Sincerely yours,
/s/ John E. Trumane
[end of letter to Mr. Feyereisen]
Analysis of California state Constitution
Plaintiff quotes here from the California Constitution of
1849, signed by Judge Pablo De La Guerra, who later identified
the proper construction of the Qualifications Clauses, in his
case as a Respondent in People v. De La Guerra, 40 Cal. 311
(1870). Here is a pertinent paragraph from that California
Constitution of 1849:
Sec. 5. Every citizen of California, declared a legal voter
by this Constitution, and every citizen of the United
States, a resident of this state on the day of election,
shall be entitled to vote at the first general election
under this Constitution, and on the question of the adoption
thereof.
[emphasis added]
Demand for Jury Trial and for Stay of Proceedings:
Page 8 of 16
At first glance, this section appears to refer to two (2)
separate classes of American citizens: citizens of California,
and citizens of the United States.
However, having reviewed People v. De La Guerra, we now
understand that, prior to the Civil War and its ugly aftermath,
the term "Citizen of the United States", as that term is used in
the Qualifications Clauses, means "Citizen of ONE OF the States
united", that is, Citizen of ONE OF the Union states.
We also have the construction by the California Supreme
Court, soon after that 1849 Constitution was ratified. In 1855,
that Court ruled that there is no such thing as a citizen of the
United States, if the latter term refers to a class of citizens
different from Citizens of ONE OF the States united.
Judge Pablo De La Guerra's profound construction is worthy
of very close scrutiny and study, because it provides a way out
of the confusion and controversy that swirls about this subject,
even now. In light of De La Guerra's pivotal insight, we are
justified in constructing the 1849 California Constitution as
follows:
Every Citizen of California state declared a legal voter by
this Constitution, and every Citizen of ONE OF the other
Union states who is a resident of California state on the
day of election, shall be entitled ....
In other words, in 1849, the lower-case "c" in "citizen"
appears to have been the preferred convention. Nevertheless,
this lower-case "c" did not render that term a legal franchise
which was subject to the municipal authority of Congress, as is
now the case with federal citizenship.
Demand for Jury Trial and for Stay of Proceedings:
Page 9 of 16
On the contrary, in the year 1855, the California Supreme
Court, in Ex parte Knowles, 5 Cal. 300 (1855), made it very clear
that there was no such thing as a citizen of the United States,
if by that term is meant a second class of citizens, different
from the primary class of state Citizens, i.e. Citizens of ONE OF
the States united.
The 1849 California Constitution is merely trying to
establish who would be entitled to vote in general elections, and
to vote on the question of adopting that Constitution. Those
People would be either Citizens of California state, or Citizens
of ONE OF the other states of the Union, as long as the latter
Citizens were resident in California state on the day of the
election.
This logic appears to explain the apparent anomaly that is
found in Section 5 of the 1849 California Constitution as quoted
above. Despite appearances of two classes of citizens, which
appearances arise from a faulty construction, the proper
construction yields only a single class of state Citizens. This
proper construction conforms to the decisions of the California
Supreme Court in Ex parte Knowles supra and People v. De La
Guerra supra.
Analysis of Arizona state Constitution
Now Plaintiff performs a comparable analysis of a noteworthy
provision in the Constitution of Arizona state.
Under the section entitled "Eligibility to state offices",
we find another passage which also appears to acknowledge two (2)
separate classes of citizenship, but only if a faulty
construction is again placed upon the language. Here's the
pertinent section:
Section 2. No person shall be eligible to any of the
offices mentioned in section 1 of this article except a
person of the age of not less than twenty-five years, who
shall have been for ten years next preceding his election a
citizen of the United States, and for five years next
preceding his election a citizen of Arizona.
Demand for Jury Trial and for Stay of Proceedings:
Page 10 of 16
Clearly, this section makes a very obvious distinction
between being a citizen of the United States for at least ten
years, and a citizen of Arizona for at least five years. It is
very tempting to conclude from this section that there are two
separate classes of citizenship. However, using the construction
which was so well established by the California Supreme Court in
Ex parte Knowles supra, we are again justified in making the
following proper construction of this section from the Arizona
state Constitution:
No person shall be eligible to any of the offices mentioned
... except a person who shall have been a Citizen of ONE OF
the Union states for at least 10 years, and who shall have
been a Citizen of Arizona state for at least five years.
This construction conforms perfectly to the construction
established in California state, at least by 1855, if not before.
REMEDY DEMANDED
Wherefore, all premises having been duly considered by this
honorable Court, Plaintiff hereby demands a trial by competent
and qualified jury, and also an indefinite stay of the instant
proceedings, pending final review of Plaintiff's formal challenge
to the constitutionality of Arizona Revised Statutes 16-101 and
21-201, and to the corresponding provisions in the Arizona state
Constitution, for violating the Guarantee Clause in the
Constitution for the United States of America, as lawfully
amended.
Demand for Jury Trial and for Stay of Proceedings:
Page 11 of 16
VERIFICATION
I, Paul Andrew Mitchell, Sui Juris, hereby verify, under penalty
of perjury, under the laws of the United States of America,
without the "United States" (federal government), 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). See Supremacy Clause.
Dated: July 8, 1997
Respectfully submitted,
/s/ Paul Andrew Mitchell
Paul Andrew Mitchell, Sui Juris
Citizen of Arizona state
(expressly not a citizen of the United States)
All Rights Reserved without Prejudice
Demand for Jury Trial and for Stay of Proceedings:
Page 12 of 16
PROOF OF SERVICE
[redacted for privacy]
Demand for Jury Trial and for Stay of Proceedings:
Page 13 of 16
Executed on July 8, 1997:
/s/ Paul Andrew Mitchell
Paul Andrew Mitchell, Sui Juris
Citizen of Arizona state
(expressly not a citizen of the United States)
All Rights Reserved without Prejudice
Demand for Jury Trial and for Stay of Proceedings:
Page 14 of 16
Exhibit "A":
MOTION TO STAY PROCEEDINGS FOR FAILING TO COMPLY
WITH GRAND JURY SELECTION POLICY,
AND NOTICE OF CHALLENGE
AND CHALLENGE TO CONSTITUTIONALITY OF STATUTE
U.S.A. [sic] v. Wallen
United States District Court
District of Arizona, Tucson
Case Number #95-484-WDB
Demand for Jury Trial and for Stay of Proceedings:
Page 15 of 16
Exhibit "B":
VERIFIED STATEMENT IN SUPPORT OF CHALLENGE
TO GRAND JURY SELECTION POLICY AND ITS FEDERAL STATUTE
U.S.A. [sic] v. Wallen
United States District Court
District of Arizona, Tucson
Case Number #95-484-WDB
Demand for Jury Trial and for Stay of Proceedings:
Page 16 of 16
# # #
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Mitchell v. Nordbrock