Paul Andrew Mitchell, Sui Juris c/o general delivery San Marcos [ZIP code exempt] TEXAS STATE In Propria Persona All Rights Reserved, without prejudice At Law DISTRICT COURT OF TEXAS STATE HAYS COUNTY Paul Andrew Mitchell, ) Case No. CV-98-0547 ) Plaintiff, ) MEMORANDUM OF LAW ) v. ) ) City of San Marcos, ) San Marcos Utility, ) Community Action, Inc. ) of Hays, Caldwell, & ) Blanco Counties, ) Century Telephone, Inc., ) and Does 1 thru 25, ) ) Defendants. ) _________________________) COMES NOW Paul Andrew Mitchell, Sui Juris, Citizen of Arizona state, Federal Witness, Counselor at Law, Private Attorney General, and Candidate for the United States ("U.S.") House of Representatives, currently inhabiting Hays county in Texas state ("Plaintiff"), to present this, His MEMORANDUM OF LAW in this case. The Constitution for the United States of America, as lawfully amended (hereinafter "U.S. Constitution"), is the supreme Law of the Land throughout Texas state, pursuant to the Supremacy Clause: This Constitution, and the Laws of the United States [federal government] which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States [federal government], shall be the supreme Law of the Land; .... Despite what may be contained in the constitution of any Union state, the judges in every state of the Union are bound by the Supremacy Clause supra: ... and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. The Supremacy Clause, of course, mirrors the matters over which the federal courts may exercise judicial power, pursuant to the Arising Under Clause: The Judicial Power [of the United States] shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority .... Article III of the U.S. Constitution also guarantees that all federal judges shall enjoy a rate of compensation which shall not be diminished during their term of office: The Judges, both of the supreme and inferior [federal] 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. In violation of this provision, the compensation of ALL federal judges is presently being diminished unlawfully, thus depriving Plaintiff of competent federal courts with qualified judges who are impartial and unbiased. See Evans v. Gore, 253 U.S. 245 (1920); Lord v. Kelley, 240 F.Supp. 167, 169 (1965); O'Malley v. Woodrough, 307 U.S. 277 (1939). Plaintiff disputes the main holding in O'Malley supra, for being predicated on two false and rebuttable premises: (1) there is only one class of citizens (there are two); (2) all federal judges are citizens of either class (but no federal law requires judges to be citizens at all). Thus, mirroring the Arising Under Clause, the Supremacy Clause elevates three things to the lofty status of Supreme Law: (I) the U.S. Constitution itself (as lawfully amended); (II) all federal laws which are made in pursuance of the U.S. Constitution; (III) all Treaties which are enacted under authority of the U.S. Constitution. The instant case involves provisions from all three types of supreme Laws. I. The U.S. Constitution is required to adjudicate this case for the following several reasons: (1) The Qualifications Clauses at 1:2:2, 1:3:3, and 2:1:5 are necessary to prove Plaintiff's claim to being a Citizen of Arizona state who is not also a federal citizen, by Right of Election. Confer at "Federal citizenship" in Black's Law Dictionary, Sixth Edition (with Pronunciations). Confer at "Right of Election" [sic], recognized by the Maine Supreme Court, Appleton concurring at 44 Maine 528-529 (1859). (2) The proper construction of the Qualifications Clauses requires a careful study of pertinent cases which have also constructed the Diversity Clause, which authorizes the judicial power to be exercised in controversies between Citizens of different states of the Union. See 3:2:1. Federal citizens, as such, were not contemplated at the time the organic U.S. Constitution was first enacted, and this second class of citizens was first created by the 1866 Civil Rights Act. (3) The Privileges and Immunities Clause is pertinent to the instant case, because Plaintiff is presently a Citizen of Arizona state who currently inhabits Texas state, and has no present intention to become a Citizen of Texas state. See 4:2:1. (4) The Supremacy Clause governs the rules which must be applied in the event that any conflicts may arise between United States (federal government) laws, and Texas state laws; and any conflicts that may arise between Texas state laws, and two Human Rights Treaties which Plaintiff seeks to enforce in a Texas state court of general jurisdiction. See detailed discussion at Sec. V infra. (5) The First Amendment, one of the most magnificent constitutional provisions ever written, guarantees freedom of speech, freedom of religious expression, and the Right to petition government for redress of grievances. All court pleadings, of whatever type, are petitions to government for redress of grievances. (6) The Ninth and Tenth Amendments govern the proper construction of all federal authorities which are enumerated in the U.S. Constitution, and expressly reserve to the People, or to the several states, all powers which are not delegated to the United States [federal government] by the U.S. Constitution, and all powers which are not prohibited to the several states by the U.S. Constitution. The Tenth Amendment is, by far, one of the most broad provisions in the U.S. Constitution, as applied in the instant case, and Plaintiff will rely upon it to elevate certain demands to the level of fundamental Rights, which are not expressly enumerated in the two Human Rights Treaties which are also invoked. II. Laws of the United States [federal government] are required to adjudicate this case for the following several reasons: (7) The federal Privacy Act at 5 U.S.C. 552a has been amended by Public Law 93-579 for specific purposes and intents which have been violated in the instant case. Said Public Law reads as follows: (a)(1) It shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security account number. (2) The provisions of paragraph (1) of this subsection shall not apply with respect to -- (A) any disclosure which is required by Federal statute, or (B) the disclosure of a social security number to any Federal, State, or local agency maintaining a system of records in existence and operating before January 1, 1975, if such disclosure was required under statute or regulation adopted prior to such date to verify the identity of an individual. (b) Any Federal, State, or local government agency which requests an individual to disclose his social security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it. The legislative intent of this Privacy Act Amendment has already been litigated and decided: ... Pub.L. 93-579, Sec. 7 ... was enacted for [the] purpose of curtailing the expanding use of social security numbers by federal and local agencies and to eliminate the threat to individual privacy and confidentiality of information posed by common numerical identifiers. [Doyle v. Wilson, D.C. Del. 1982] [529 F.Supp. 1343] (8) The federal criminal code, at Title 18 of the United States Code, binds state government personnel, and private Citizens as well, to refrain from depriving other Citizens of any fundamental Right which is guaranteed by the U.S. Constitution. It is a misdemeanor for anyone to deprive a Citizen of any such fundamental Rights. See 18 U.S.C. 242. It is a felony for any two or more people to conspire to deprive a Citizen of any such Rights. See 18 U.S.C. 241. Privacy and equal protection of the law are two such fundamental Rights. (9) The federal Social Security Act, 42 U.S.C. 405 et seq., defines what "appropriate groups" or "categories of individuals" are required to obtain Social Security Numbers: 1. aliens at the time of their lawful admission to the United States ...; 2. any individual who is an application for or recipient of benefits ...; 3. any other individual when it appears that he could have been but was not assigned an account number ...; 4. children who are below school age at the request of their parents or guardians; 5. children of school age at the time of their first enrollment in school. [42 U.S.C. 405(c)(1)(B)(i)] (10) The federal Social Security Act, 42 U.S.C. 405 et seq., also contains specific definitions of the term "State", in the following provisions: (vii) For purposes of this subparagraph, the term "State" includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Commonwealth of the Northern Marianas, and the Trust Territory of the Pacific Islands. [42 U.S.C. 405(c)(1)(C)(vii)] (II) ... the term "State" includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Commonwealth of the Northern Marianas, and the Trust Territory of the Pacific Islands. [42 U.S.C. 405(c)(1)(D)(ii)(II)] (iv) For purposes of this subparagraph, the term "State" has the meaning such term has in sub- paragraph (D). [supra] [42 U.S.C. 405(c)(1)(E)(iv)] Plaintiff hereby makes a formal offer to prove that the term "includes" in said definitions of the term "State" is restrictive. See, in pari materia, the opinions of the Legislative Counsel and the Congressional Research Service concerning a similar definition at 26 U.S.C. 3121(e), as summarized in a letter from U.S. Representative Barbara Kennelly. (11) As a qualified federal witness (who is not presently in the Federal Witness Protection Program sponsored by the U.S. Department of Justice), Plaintiff is protected by the provisions at 18 U.S.C. 1512 and 1513. Both of these statutes have extra-territorial federal jurisdiction (which means that they can be enforced outside the federal zone and inside the several states of the Union). (12) As a candidate for a seat in the U.S. House of Representatives, Plaintiff is involved in what Congress has defined to be a "federally protected activity" [sic], at 18 U.S.C. 245(b)(1)(A), to wit: (b) Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with - (1) any person because he is or has been, or in order to intimidate such person or any other person or any class of persons from -- (A) voting or qualifying to vote, qualifying or campaigning as a candidate for elective office .... [18 U.S.C. 245(b)(1)(A)] (13) The 1866 Civil Rights Act was the first legislative Act by the Congress of the United States to create the second class of citizens known today as "federal citizens", also known as "citizens of the United States". The so-called 14th amendment [sic] did not ever "create" this second class of citizens; it was merely an attempt to declare existing law and to elevate that law to the level of a constitutional amendment. However, the unrebutted historical facts recited by the Utah Supreme Court in Dyett v. Turner, 439 P.2d 266, 270 (1968), and then again in State v. Phillips, 540 P.2d 936, 941 (1975), prove that this proposal was never lawfully ratified. Plaintiff makes no claims whatsoever which might be predicated upon non-existing provisions in any state or federal constitutions or statutes. Moreover, the existence of two classes of citizens was upheld by courts AFTER 1868, as was the Right to be a state Citizen without also becoming a federal citizen, thus rendering the 14th amendment [sic] entirely moot for purposes of the instant case. (14) The U.S. Congress has defined, by statute, two forms to which verifications made under penalty of perjury must conform. One form is for verifications made INSIDE the United States (federal government); the other form is for verifications made OUTSIDE the United States (federal government). See subsections (1) and (2) at 28 U.S.C. 1746, 90 Stat. 2534. It is clear that this statute correctly maintains the crucial distinction between the "United States" and the "United States of America". Verifications made OUTSIDE the "United States" [federal government] must contain the qualifier "under the laws of the United States of America". Verifications made INSIDE the "United States" [federal government] need not exhibit said qualifier. The latter form is the one which is used on IRS Form 1040 for federal income tax returns. Plaintiff utilizes 28 U.S.C. 1746(1) to verify all pleadings in the instant case. This is the form for verifications, under penalty of perjury, made OUTSIDE the United States [federal government], and INSIDE the United States of America, of which Texas state is now a member in good standing. III. Treaties of the United States [federal government] are required to adjudicate this case for the following several reasons: (15) Privacy is a fundamental Right protected by the following provisions of two Human Rights Treaties: Article 12 of the Universal Declaration of Human Rights ("Declaration"), reads: No one shall be subjected to arbitrary inter- ference with his privacy, family, home or correspondence, nor to attacks upon his honour or reputation. Everyone has the right to the protection of the law against such interference of attacks. Article 17 of the International Covenant on Civil and Political Rights ("Covenant"), reads: 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks. (16) Equal Protection of the Law is a fundamental Right protected by the following provisions of the two Human Rights Treaties. Article 7 of the Declaration reads: All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. Article 26 of the Covenant reads: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour [sic], sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (17) Freedom of religious belief is a fundamental Right protected by the following provisions of the two Human Rights Treaties. Article 18 of the Declaration reads: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. Article 18 of the Covenant reads: 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. (18) Freedom of expression is also a fundamental Right protected by the following provisions of the two Human Rights Treaties. Article 19 of the Declaration reads: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Article 19 of the Covenant reads: 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. (19) Freedom of association is a fundamental Right protected by the following provisions of two Human Rights Treaties. Article 20 of the Declaration reads: 1. Everyone has the right to freedom of peaceful assembly and association. 2. No one may be compelled to belong to an association. This latter Right is important in the instant case, insofar as Plaintiff complains of compelled association with the Social Security program (a voluntary federal program) and with a political class of federal citizens who are subject to a jurisdiction which is NOT protected by the Guarantee Clause in the U.S. Constitution. The federal zone is a legislative democracy; the state zone is guaranteed a Republican Form of Government. See Guarantee Clause. Article 22 of the Covenant reads: 1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. 2. No restrictions may be placed on the exercise of his right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right. 3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention. (20) The right to work is also a fundamental Right protected by the following provisions of the Declaration. Article 23 of the Declaration reads: 1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. 2. Everyone, without any discrimination, has the right to equal pay for equal work. 3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. 4. Everyone has the right to form and to join trade unions for the protection of his interests. (21) A fair standard of living is a fundamental Right which is protected by the following provisions of the Declaration. Article 25 of the Declaration reads: 1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circum- stances beyond his control. 2. [motherhood/childhood not pertinent here] IV Laws of Texas state are required to adjudicate the instant case, for the following reasons. (22) Article I, Sections 3, 3a, and 6, of the Bill of Rights in the Texas state Constitution, have the following headings: Section 3. Equal rights. Section 3a. Equality under the law. Section 6. Freedom of worship. (23) Plaintiff believes, without further research or specific citations, that Texas state criminal statutes prohibit extortion, false arrest, and false imprisonment, with appropriate fines and penalties defined. During Phases II and III of the instant case (see VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF), Plaintiff intends to lay claims to impose said fines, through lawful jury awards. V. The relationship between treaties enacted pursuant to the Supremacy Clause, and the Texas state constitution or statutes, is now discussed by paraphrasing the citations found at 87 C.J.S. Sec. 19, concerning "Treaties". a. In General. By virtue of an express provision in the U.S. Constitution, treaties are superior to the laws of the several states. The Supremacy Clause makes treaties superior to both the constitutions and laws of the several states, including the common law of a state, in so far as it is in conflict with the provisions of a treaty. Valid treaties are as binding within the territorial limits of the states as throughout the dominion of the United States. A treaty must be regarded as a part of the law of a state as much as are the state's own local laws and constitution, and is effective and binding on the state legislature. A treaty may override the power of the state even in respect of the great body of private relations which usually fall within the control of the state. The treaty-making power is superior to the reserved powers of the state, including the police power, provided that the subject matter of the treaty is not arbitrary and disconnected and remote from inter- national intercourse. The public policy of a state, as evidenced by either the common law or statutes, must yield to the provisions of a treaty. A state has no power to interfere with, or limit the operation of, a treaty. b. State Constitution. A treaty is superior to a state constitution and, in case of conflict, the treaty will control. By virtue of the Supremacy Clause, a treaty is superior to a state constitution. In so far as the provisions of a state constitution and a treaty are conflicting, the treaty will control; the constitutional provision is either void or suspended during the existence of the treaty, and the judges of the state courts must uphold and enforce the treaty provisions. Where, however, no conflict exists, the constitutional provision will be given effect; as, for example, where a treaty makes rights which may be claimed thereunder subject to state constitutional provisions. c. State Statute. A treaty is superior to a state statute and, in case of a conflict, the statute will be suspended or held in abeyance during the existence of the treaty. In view of the Supremacy Clause, a treaty is superior to a state statute, including statutes otherwise within the legislative power of the state. Or, as sometimes stated, the treaty power is independent of, and superior to, the legislative power of the states, and a state cannot by legislative act interfere with the proper observance of treaties, or destroy rights created by treaties. In view of the foregoing rules, when the provisions of a state statute and a treaty conflict, the latter will control. The application of the statute, as to the subject matter covered by the treaty, will be held in abeyance during the existence of the treaty. Or, as sometimes stated, the statute is void or suspended during the existence of the treaty. In such a case, the state courts must uphold and enforce the treaty provisions. A state law is, however, suspended or invalidated only in so far as it contravenes the provisions of the treaty. If, under a proper construction of the treaty and statute, the latter can be given effect without violating the provisions of the treaty, this should be done, particularly in the case of statutes enacted in the proper exercise of the police power, for example, statutes for the protection and preservation of the public health. Such statutes, if they are proper police regulations and if they are applicable without discrimination to citizens and to all aliens, will not ordinarily be held invalid as impairing treaty rights, notwithstanding that they may happen to affect the citizens or subjects of one nation more than others. See all cites in 87 C.J.S. Section 19, "Treaties". VERIFICATION I, Paul Andrew Mitchell, Sui Juris, a Citizen of ONE OF the United States of America, hereby verify, under penalty of perjury, under the laws of the United States of America, that the above statement of 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). See Supremacy Clause. Dated: May 26, 1998 Respectfully submitted, /s/ Paul Andrew Mitchell Paul Andrew Mitchell, B.A., M.S. Counselor at Law, Federal Witness, Private Attorney General, and Candidate for the U.S. House of Representatives All Rights Reserved without Prejudice [See USPS Pub. #221 for addressing instructions.] # # #
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Mitchell v. City of San Marcos et al.