Time: Fri Apr 18 22:13:30 1997
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Date: Fri, 18 Apr 1997 22:05:05 -0700
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLF: First Amendment Triumphs (5 of 5)

[This text is formatted in Courier 11, non-proportional spacing.]


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 [zip code exempt]
ARIZONA STATE

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,       ) MEMORANDUM OF LAW IN SUPPORT OF
                            ) MOTION FOR RECONSIDERATION AND OF
               Petitioners, ) CHALLENGE TO THE CONSTITUTIONALITY
                            ) OF A FEDERAL REMOVAL STATUTE:
          v.                )
                            ) 28 U.S.C. 1447(d)
United States et al.,       )
                            )
               Respondent.  )
____________________________)

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,  expressly not a citizen of the United

States,  federal  witness,  and  Counselor  at  Law  (hereinafter

"Relator"), to  present this,  Their MEMORANDUM OF LAW IN SUPPORT

OF  MOTION   FOR  RECONSIDERATION   AND  OF   CHALLENGE  TO   THE

CONSTITUTIONALITY OF A FEDERAL REMOVAL STATUTE filed concurrently

with  Their   MOTION  FOR  RECONSIDERATION.    Plaintiffs  hereby

challenge the constitutionality of 28 U.S.C. 1447(d).

     In the  ORDER of  Chief United States District Judge Jack D.

Shanstrom, dated  and filed in the instant case on April 8, 1997,

the following plain error is manifest, to wit:


     Reconsider and Challenge Removal Statutes:  Page 1 of 9


     ...   [T]he    removal   statutes    do   not    afford    a
     petitioner/plaintiff the  power to  remove a case to federal
     court.

     Petitioners respectfully  request  this  honorable  District

Court of  the United  States (hereinafter  "DCUS") to compare two

important removal  statutes which  are  available  to  all  civil

litigants.   Section 1441(b)  of Title  28, United  States  Code,

contains a  general restatement  of the  original jurisdiction of

the DCUS,  without any  requirement that the removing party(s) be

defendant(s), to wit:

     (b)  Any civil  action of  which the  district  courts  have
     original jurisdiction  founded on  a claim  or right arising
     under the  Constitution, treaties  or  laws  of  the  United
     States shall  be removable without regard to the citizenship
     or residence of the parties.

The above  statute makes  absolutely no  mention whatsoever  of a

"defendant", or  "defendants".   In clear  contrast to  the above

statute, the companion statute at section 1441(a) does explicitly

restrict its availability to civil defendant(s) only, to wit:

     (a)  Except  as  otherwise  expressly  provided  by  Act  of
     Congress, any civil action brought in a State court of which
     the district  courts of  the  United  States  have  original
     jurisdiction,  may  be  removed  by  the  defendant  or  the
     defendants, to  the district  court of the United States for
     the district  and division  embracing the  place where  such
     action is pending.
                                                 [emphasis added]

     Petitioners rely  upon the  maxim of construction:  inclusio

unius est  exclusio alterius,  in order  to  show  that  Congress

omitted any  references to  the "defendant"  or  "defendants"  in

section  1441(b),   because   the   omission   was   intentional;

specifically, it is the intent of Congress to allow plaintiffs to

remove  civil   action(s)  from   state  courts  into  the  DCUS,

particularly when  the DCUS  has original  jurisdiction  that  is

founded on  a claim  or right  arising under  a law of the United


     Reconsider and Challenge Removal Statutes:  Page 2 of 9


States.   See Freedom of Information Act ("FOIA").  The FOIA is a

law of  the United  States.   See 5  U.S.C. 552(a)(4)(B)  for the

grant  of  original  jurisdiction  to  the  DCUS  to  enjoin  the

withholding of  documents properly  requested under  FOIA, and to

order the production of documents improperly withheld.

     Accordingly, the  USDC's ORDER of April 8, 1997, is in error

for remanding  the instant  case back  to the  Montana  Sixteenth

Judicial District  Court ("State  Court"), because it is based on

the false  premise that  a petitioner/plaintiff does not have the

power to  remove a  case to  federal  court,  under  any  removal

statutes in  Chapter 89  of Title  28, United States Code.  In so

doing, said  ORDER would effectively deny a judicial remedy which

is Petitioners'  right in  the instant  case,  because  the  FOIA

creates a  federal cause  of action  in  the  case  of  all  FOIA

requests  properly  submitted  and  improperly  withheld  by  the

agency(s)  in  question.    Moreover,  the  State  Court  has  no

jurisdiction whatsoever,  either original or appellate, to enjoin

the withholding of documents properly requested under FOIA and/or

to order the production of documents improperly withheld.


            CHALLENGE TO CONSTITUTIONALITY OF STATUTE

     Petitioners hereby  also challenge  the constitutionality of

28 U.S.C. 1447(d), to wit:

     (d)  An order remanding a case to the State court from which
     it was  removed is  not reviewable  on appeal  or otherwise,
     except that  an order  remanding a  case to  the State court
     from which  it was  removed pursuant to section 1443 of this
     title shall be reviewable by appeal or otherwise.

Petitioners hereby  deny any  reliance  whatsoever  upon  section

1443, thus  rendering moot  the second  half of  section 1447(d).

However, Petitioners argue that the first half of said section is


     Reconsider and Challenge Removal Statutes:  Page 3 of 9


overly broad  for permitting  arbitrary,  capricious,  erroneous,

and/or injurious  orders to  be sustained  artificially, and  for

depriving litigants  of  remedies  which  are  their  fundamental

Right, under the due process clause of the Fifth Amendment.

     The USDC's  ORDER of  April 8,  1997, is  a classic  case in

point.  The instant case arose from Petitioners' desire to obtain

a temporary  restraining order  ("TRO")  preventing  the  use  of

lethal force  against the  Montana Freeman  [sic],  and  also  to

obtain a  permanent injunction  preventing any  deprivations,  by

Respondents, of  the life,  liberty, or  property of  Citizens of

Montana state without due process of law.  See Fifth Amendment.

     After the  Montana Freemen  surrendered peacefully,  without

any loss  of life,  the application  for TRO  was rendered  moot.

However, the permanent injunction against Respondents is still an

open question,  and it  has yet  to be  decided finally  by  this

honorable Court,  or by  the State  Court from whence the instant

case  originated.     Petitioners  submit,  therefore,  that  the

application of due process of law is quite salient in the instant

case, as  a remedy  still available  not only  to the Citizens of

Montana state,  but also  to  the  respective  litigants  in  the

instant case, who are not necessarily Citizens of Montana state.

     It was only after the instant case was filed in State Court,

that Petitioners  then decided to submit a proper FOIA request to

the  United   States  Department   of  Justice  ("DOJ")  for  the

credentials of all six hundred thirty-three (633) alleged federal

agents who  rotated in and out of the Freeman Standoff.  When DOJ

failed to  produce the  requested  documents,  after  receipt  of

proper FOIA  requests and  appeals, and  after expiration  of the


     Reconsider and Challenge Removal Statutes:  Page 4 of 9


statutory deadlines  for same, Petitioners had then exhausted all

administrative remedies  and were  then faced  with an  immediate

need to  invoke the court of original jurisdiction over the FOIA;

that court is the DCUS.  No other court fits the bill.

     Accordingly, Petitioners  are now  faced with  the very real

prospect of  being forever  deprived of their procedural Right to

enforce the FOIA upon DOJ.  Should the USDC'S ORDER of April 8 be

permitted to stand and thereby to remove the instant case back to

the State  Court,  there  will  have  been,  in  that  event,  no

litigation whatsoever  on the  federal questions which arise from

the original  FOIA request  and appeal.    This  result  directly

contravenes the explicit legislative intent of 28 U.S.C. 1441(e):

     (e)  The court  to which such civil action is removed is not
     precluded from  hearing and  determining any  claim in  such
     civil action  because the  State court from which such civil
     action is removed did not have jurisdiction over that claim.

     Petitioners submit,  for the  careful consideration  of this

honorable Court,  that  section  1441(e)  applies  directly,  and

unequivocally, to  the instant case, particularly with respect to

the judicial  enforcement of  the FOIA.   This  is so,  precisely

because the  State Court  from which the instant civil action was

removed does not have any jurisdiction over FOIA enforcement.

     Therefore, this honorable DCUS is not precluded from hearing

and determining  Petitioners'  claim  upon  judicially  compelled

discovery of the documents requested in the original FOIA request

and appeal,  i.e. credentials,  such  as  Appointment  Affidavits

and/or Oaths of Office.  See, in particular, Article VI, Clause 3

and 5 U.S.C. 3331.

     When examined  against this  clear  and  unequivocal  right,

which is  enforceable by  the  FOIA,  the  restriction  found  at


     Reconsider and Challenge Removal Statutes:  Page 5 of 9


section 1447(d) cannot stand on its own, nor can it be applied in

the instant  case, because said section confounds, if it does not

directly contradict, the procedural Right(s) which are recognized

by section 1441(e).

     Section  1447(d)   is  particularly  offensive  in  that  it

prohibits review on appeal or otherwise.  Petitioners submit that

this additional  qualifier --  "or otherwise"  -- would logically

prohibit   judicial    review   of    Petitioners'   MOTION   FOR

RECONSIDERATION,  filed   concurrently  with   this   MEMORANDUM.

Petitioners are  now entirely confident that They, as Plaintiffs,

have every  Right under  section 1441(b) to remove the State Case

into this honorable DCUS, to enforce FOIA, if nothing else.

     The USDC's ORDER of April 8, 1997, is based on the erroneous

premise that  a petitioner/plaintiff  does not  have the power to

remove a  case to  federal court.   If  allowed  to  stand,  upon

authority of  section 1447(d),  said ORDER  would  work  a  grave

injustice upon  Petitioners and  result in  barratry  upon  their

efforts to  compel discovery  of the requisite credentials of all

633 federal  agents who  participated in  the  Freeman  Standoff.

This is  not a  small number.   Without  federal review  by  this

honorable Court  in the  instant case,  Petitioners would then be

faced with  exorbitant legal  costs to mount still more law suits

in State Court, under applicable state discovery laws.

     However, the  separation of  powers doctrine  casts  serious

doubt on  the ability  of state  courts to  compel  discovery  of

federal employees'  credentials, via  Mandamus or otherwise.  See

the plaintiffs'  pleadings on  that subject  in People  v. Boxer,

California Supreme Court case number S-030016, December 1992.


     Reconsider and Challenge Removal Statutes:  Page 6 of 9


     It is  by no  means settled  that state  courts  can  compel

specific performance  by federal  employees.   So, remanding  the

case back  to State  Court raises  the very  real  prospect  that

Relator could not afford to prosecute the same subject matter all

over again,  a second  time, due  to additional legal costs which

would otherwise be unnecessary.  Lex non cogit impossibilia.

     It is  also clear that section 1441(e) contemplates cases in

which the  DCUS is  empowered to  remove and  hear state cases in

which there is a federal cause of action, and to remand all other

causes of action which properly belong back in state court.

     As applied  to the  instant case,  it would  be proper,  for

example, for  this honorable  DCUS to  remand certain  injunctive

remedies back  to the  State Court, with a recommendation to stay

that  proceeding,   pending  final  judgment  in  the  matter  of

compelling  discovery   of  the   credentials  which   have  been

requested.  In that way, the outcome of the state case could then

pivot on  whether, or  not, the  credentials existed in the first

instance and, if they did, whether or not said credentials should

be enforced  in equity;   if  they did  not exist, then the State

Court would  then be  the proper  forum  to  adjudicate  probable

violations of  applicable state  laws, e.g.  trespass, extortion,

kidnap, perjury, and impersonating an officer.

     But, such  a  pivotal  determination  would  necessarily  be

required to  await FOIA  enforcement in the DCUS, because that is

the court of original jurisdiction, and it would possibly also be

required to  await appellate review, by the federal appeals court

(Ninth Circuit) and possibly also the Supreme Court of the United

States, of all relief granted by the DCUS.


     Reconsider and Challenge Removal Statutes:  Page 7 of 9


                             SUMMARY

     Petitioners hereby  challenge 28  U.S.C. 1447(d)  for  being

overly broad,  for conflicting  with 28  U.S.C. 1441(e),  and for

depriving Petitioners of an essential remedy when a federal cause

of action  is  clearly  present  by  virtue  of  the  Freedom  of

Information Act, 5 U.S.C. 552 et seq.

     Petitioners also  conclude that the USDC's ORDER of April 8,

1997, in  the instant case, is erroneous for basing a remand upon

a false  premise, namely,  that a civil petitioner/plaintiff does

not have the power to remove a case to federal court.

     If allowed  to stand,  said ORDER  will deny  a remedy which

belongs to  Petitioners, and  thereby cause irreparable damage(s)

to Petitioners, for all the reasons stated above.


Dated:  April 14, 1997


Respectfully submitted,

/s/ Paul Andrew, Mitchell, B.A., M.S.

Citizen of Arizona state, federal witness,
(expressly not a citizen of the United States),
Counselor at Law, and Relator on behalf of
the People of the United States of America
All Rights Reserved without Prejudice


     Reconsider and Challenge Removal Statutes:  Page 8 of 9


                        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):

                 MEMORANDUM OF LAW IN SUPPORT OF
                MOTION FOR RECONSIDERATION AND OF
               CHALLENGE TO THE CONSTITUTIONALITY
                  OF A FEDERAL REMOVAL STATUTE:
                        28 U.S.C. 1447(d)

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 April 14, 1997:

/s/ Paul Andrew Mitchell, B.A., M.S.

Citizen of Arizona state, federal witness,
Counselor at Law, and Relator


     Reconsider and Challenge Removal Statutes:  Page 9 of 9


                             #  #  #


========================================================================
Paul Andrew, Mitchell, B.A., M.S.    : Counselor at Law, federal witness
email:       [address in tool bar]   : Eudora Pro 3.0.1 on Intel 586 CPU
web site:  http://www.supremelaw.com : library & law school registration
ship to: c/o 2509 N. Campbell, #1776 : this is free speech,  at its best
             Tucson, Arizona state   : state zone,  not the federal zone
             Postal Zone 85719/tdc   : USPS delays first class  w/o this
========================================================================


      


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