Posted by Paul Andrew Mitchell, B.A., M.S. on April 08, 1998 at 20:53:32:
In Reply to: Re: Does 28 U.S.C. 451destroy posted by Dave on April 08, 1998 at 19:00:11:
: : (snip)
: : the DCUS, which clearly existed PRIOR TO
: : 1948.
: : 6. DCUS for Arizona is created by 28 U.S.C. 82;
: : USDC for Arizona is created by 28 U.S.C. 132;
: : and so on ....
: : 7. The USDC cannot exercise judicial power,
: : according to the holding in American
: : Insurance, because its constitutional
: : authority originates from Article IV,
: : NOT Article III; C.J. Marshall held that
: : the USDC cannot receive judicial power
: : in the first place.
: : I hope this helps. My apologies for the
: : malfunction in the forum software.
: : Sincerely yours,
: : /s/ Paul Andrew Mitchell, B.A., M.S.
: : Counselor at Law, Federal Witness
: : and Private Attorney General
: Speaking for those of us who take an interest in these issues, but don't have access to much more than the internet to verify the many claims made on the vast number of websites, I would offer the following suggestion to 'flesh out' your 'karma' argument.
You have placed yourself at a significant
disadvantage by limiting yourself only to what
is available on the Internet, because such
pivotal cases as American Insurance v.
356 Bales of Cotton must be read, and
understood, in order to comprehend the
dual nature of federal district courts.
The origin of this duality is the pair
of constitutional authorities at Article
III, and Article IV, respectively.
: I personally find your assorted facts to be difficult to tie together in a conclusive manner. While each fact may be correct (again, I haven't the resources at hand to check), they each approach the matter in a tangential fashion, making it difficult to grasp the whole as sufficient to prove the point. For example, my reading of 28 USC 81 through 131 would conclude that those sections establish the boundries of the judicial districts within each state/territory, not the courts themselves.
To what are you referring when you use the
term "assorted facts"? Have you read
Topic "E" of Gilbertson's OPENING BRIEF?
Again, this section of that BRIEF will not
mean much, unless you understand all of the
court and other authorities cited therein.
: After some digging I came across this old Supreme Court case which provides a starting point for resolving the issue.
: In THE GLIDE, 167 U.S. 606 (1897) the Supreme Court stated
: "The most convenient way of tracing the development of the law upon this subject will be to consider the principal decisions of this (Supreme) court in chronological order, first referring to the provisions of the constitution and statutes of the United States which lie at the foundation of the whole matter.
The collection of court cases which I have
assembled do just that. You may not know
that the 8th Circuit has a limit of 50 pages
on any OPENING BRIEF. What you are suggesting
here would take about 75 to 100 pages for
this one subject alone; Gilbertson's OPENING
BRIEF covers 7 separate topics in 50 pages,
not including the excerpts from the record
below. Perhaps you would benefit also from
reading all of the excerpts from Gilbertson's
district court record; these ARE available
in the Supreme Law Library.
: By the constitution of the United States (article 3, 2), 'the judicial power shall extend' 'to all cases of admiralty and maritime jurisdiction.' And by provisions, still in force, of the judiciary act of 1789, the district courts of the United States 'shall have, exclusively of the courts of the several states,' 'original cognizance of all civil causes of admiralty and maritime jurisdiction,' 'saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.' Act Sept. 24, 1789, c. 20, 9; 1 Stat. 76; Rev. St. 563, cl. 8; Id. 711, cl. 3. "
: So here we can see that the 'district courts of the United States' existed in 1987 and were established immediately after ratification of the Constitiution, presumeably by some part of the Judiciary Act of 1789, and that this particluar section of the act was still in effect in May of 1897.
You means 1897, not 1987, yes?
: Now if you can list the changes in the federal law (amending the Judiciary Act of 1789) from 1897 through the present (in cronological order) proving that today's 'United States District Courts' (28 USC 132) do not derive from, or replace, the Judiciary Act in any form or fashion, you will have a straightforward proof of your claims.
: Alternatively (additionally?) proof that the pertinent sections of the Judiciary Act of 1789 (and their replacements/amendments) are still in effect, or that they trace to 28 USC 81 - 131, and have not been removed in any way, would prove conclusively that they are separate from the courts created in section 132.
You seem to have missed an all-important holding
by C.J. Marshall -- the USDC is NOT a judicial
forum. That leaves the DCUS as the ONLY
district court [sic] inside the state zone with
any judicial power. If Arizona is a "judicial
district" per 28 U.S.C. 82, and if the USDC
is NOT a judicial forum, then, by process of
elimination, if nothing else, the DCUS must be
the only other district court with original
jurisdiction and any judicial power within
Arizona state. The other path to the same
result is to realize that the USDC derives
its constitutional authority from Article IV
and not from Article III. Judicial power
emanates ONLY from Article III of the
U.S. Constitution; see discussion below
for more clarification of this all important
: Shift gears for a different topic. . .
: Your argument on the subject of whether a particular judge is an article 3 judge based on whether his pay is taxed is also not sound logic.
The object of the prohibition against taxing
judicial pay is to guarantee that Article III
judges remain independent and unbiased.
Lord v. Kelley contains an horrific admission
that federal judges who pay taxes on their
judicial compensation are SUBJECT TO THE
UNDUE INFLUENCE OF THE IRS. Thus, even if
a judge is "volunteering," as you say, s/he
defeats the very purpose of the prohibition by
volunteering to be subject to the undue
influence of the IRS. Bias and dependence
are both grounds from proving that a court
holding is skewed and therefore worthless.
They are in the same category as conflicts
of interest, which are expressly prohibited.
: While the Supreme Court has ruled that an article 3 judge's pay is not taxable under the constitution, doesn't the judge himself have the option to voluntarily self-assess and pay the tax anyway? If he voluntarily chooses to do so, does that mean he is no longer an article 3 judge?
Are you not forgetting the Public Salary
Tax Act of 1939? Also, C.J. Rehnquist has
stated that there has been a "change in
doctrine" [sic]. See "The Lawless Rehnquist"
in the Supreme Law Library here. He cited
O'Malley v. Woodrough has "his authority."
Gilbertson's OPENING BRIEF dispatches
O'Malley in short order. Last but not least,
the USDC emanates from Article IV, where
the guarantees of the constitution are
not necessarily in effect; thus, the
prohibition against taxing judicial pay
is irrelevant there, because that forum is not
a judicial forum in the first place! This is
the reason why we spend so much time discussing
the Downes Doctrine -- the Constitution of
the United States, as such, does not extend
beyond the limits of the states which are
united by and under it! Taxing the pay of
judges who preside on a legislative tribunal
is not prohibited by Article III, because
those judges derive their constitutional
authority from Article IV.
: Proof that an article 3 judge is not required to pay, and that this particular judge does pay, does not prove that this particular judge falls outside the group of those not so required (ie. article 3 judges). He could be 'volunteering', (even if he's not aware of it). In order to complete your proof, you must also show that the particular judge is required to pay.
Dan Meador has assembled evidence showing
that federal judges, since the 1930's, have
been told they could not serve, if they did
not sign a W-4 "Employee's Withholding
Allowance Certificate." So, please appreciate
that this is as much a political thrust, as a
legal one. Imagine the far-reaching
implications if we can get just one federal
judge to rescind his (her) W-4, e.g. via a
Certificate of Exemption from Withholding
In Lieu of W-4, per IRC 3402(n).
: I hope these comments will provide an independent viewpoint which allows you to further strengthen your arguments. Thanks for your prompt response to my previous posts.
Post a Followup