No. 03-5070
______________________________________
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2002 A.D.
______________________________________
Paul Andrew Mitchell -- Petitioner
v.
AOL Time Warner, Inc. et al. -- Respondents
On Petition for a Writ of Certiorari to
the United States Court of Appeals
for the Ninth Circuit
PETITION FOR WRIT OF CERTIORARI
Paul Andrew Mitchell, B.A., M.S.
Private Attorney General
c/o Forwarding Agent
501 West Broadway, Suite A-332
San Diego 92101
CALIFORNIA, USA
tel: (619) 234-5252
fax: (619) 234-5272
All Rights Reserved without Prejudice
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Questions Presented
(1)
Is the Act of June 25, 1948, 62 Stat. 869 et seq.,
unconstitutional for exhibiting vagueness, for violating the ex
post facto prohibition at Article I, Section 9, Clause 3, for
violating the Separation of Powers at Article I, Section 1, and
for violating the well established principle that federal
statutes conferring original jurisdiction on federal district
courts must be strictly construed?
(2)
Does the ex post facto Clause in the U.S. Constitution prohibit
Congress from enacting or otherwise authorizing legislation which
retroactively re-defines the term “district courts” in federal
statutes that pre-date the Act of June 25, 1948, without
expressly amending, or repealing and re-enacting, those statutes?
(3)
Are there two (2) separate and distinct classes of federal
district courts currently established and currently available to
federal litigants within the 50 States: one constitutional and
the other legislative?
(4)
Strictly construed, does the Rules Enabling Act at 28 U.S.C.
2072(a) limit this Court’s authority to promulgate rules of
evidence and procedure only for United States District Courts,
and not for the District Courts of the United States?
(5)
Is the Abrogation Clause at 28 U.S.C. 2072(b) in the Rules
Enabling Act unconstitutional for violating the Separation of
Powers Doctrine as founded upon Article I, Section 1?
(6)
Likewise, are the Local Rules for the federal district courts in
Sacramento, California, expressly limited in scope to cases that
proceed before the United States District Court for the Eastern
District of California (“USDC”)?
(7)
Specifically, is a Local Rule “coercive” when it refers all Pro
Per cases -- automatically and without the consent of all parties
-- to U.S. magistrates appointed to that USDC and, as such, does
that Local Rule also violate the Federal Magistrates Act, recent
decisions of this Court, pertinent decisions of the Ninth
Circuit, and Article III in the U.S. Constitution?
(8)
Strictly construed, did the Lanham Act at 60 Stat. 440 confer
original jurisdiction on the District Courts of the United States
(“DCUS”) but not on the United States District Courts (“USDC”)
inside California State, and has that grant of original
jurisdiction ever been amended by Congress?
(9)
Did Congress expressly extend the U.S. Constitution into D.C. in
1871 A.D. and into all federal Territories in 1873 A.D.?
(10) Are UNPUBLISHED Circuit Court opinions unconstitutional?
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List of Parties
Plaintiff:
Paul Andrew Mitchell
Defendants:
AOL Time Warner, Inc.,
Steve Case,
Lennert Leader,
Randall J. Boe,
Adit Seth,
George R. Boyce,
James R. Bramson,
Daniel Levy,
Jonathan Steuer,
Brian Oblivion,
Donald D. Hoffman,
Karl Kleinpaste,
California Institute of Technology,
Carnegie-Mellon University,
Cornell University,
Embry-Riddle Aeronautical University,
Florida Institute of Technology,
Indiana University,
Miami University of Ohio,
Northeastern University,
Pennsylvania State University,
Princeton University,
Stanford University,
Stetson University,
Swiss Federal Institute of Technology,
University of Arkansas,
University of California,
University of Georgia,
University of Kansas,
University of Michigan,
University of Oregon,
University of Texas,
Barrett Owens,
A2Z Computers & Software,
James H. Daugherty,
James Daugherty-AA Research,
Internet Domain ALGONET.SE,
Mark Creamer,
Internet Domain BAYON.NET,
Christopher Kankel,
C I Host,
Desert Video Production,
Cyborganic Media,
Alias “Dimitri”,
Carrie Malcolm,
Internet Domain DEOXY.ORG,
David W. Starr,
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ALH,
Mitchell A. Goodkin,
Image’FX Productions, Inc.,
EZ2 Network, Inc.,
Cybergate, Inc.,
Josh Bempechat,
Earthlink Network, Inc.,
Hacked Archives,
Internet Domain INCORPTEK.COM,
Telecode,
InfoMagic, Inc.,
Joe Szemiot,
Intac Access Corporation,
Internet Online Services,
Justsystem Pittsburgh Research Center,
Leander Pearson,
Burntfork Rural Systems,
X Mission,
L0pht Heavy Industries,
Levity,
Club Madness,
Maui Global Communications,
David Feustel,
Midwest Internet Exchange, Inc., [sic]
Jeff Head,
Internet Domain NEBONET.COM,
Kearney, Castillo & Blake,
Phreak Network Solutions,
J. Wyatt,
Primenet,
Mike McArthur,
Provide Net,
Simple Network Communications, Inc.,
Snow Hill Enterprises, Inc.,
Dave Alexander,
John L. Dortch,
Telalink Corporation,
Thomson Financial Services,
Transworld Mail Express,
Jahred Held,
Westworld Communications,
Luke Stevens,
Msen, Inc.,
COWZ Technologies,
The Works BBS,
AOL Prime Host,
Justsystem Corporation,
Paul Southworth,
The ETEXT Archives,
Ram Samudrala,
Twisted Helices,
Ruffin Prevost,
Parascope, Inc.,
Avalon Tech,
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Dan Turkette,
Todd R. Eigenschink,
TEK Interactive Group, Inc.,
Mail.com, Inc.,
Sector 13,
Thirteen Technologies, LLC,
Jason Scott,
Frank Ch. Eigler,
Elastic BBS,
Sean Strasburg,
Michael McFarland,
David Thorburn-Gundlach,
Bob Isaacson,
Tore Nestenius,
C. J. Sollien,
Chris Hansen,
Floyd W. Shackelford,
Network Solutions, Inc.,
The Thomson Corporation,
Cosmic Awareness Communications,
Sprawlnet.com, Inc.,
Four Peaks Technology Groups,
Tzolkin Corporation,
ParabolaX Research Group,
William Harrity,
THF Pictures,
Synchron Data,
Lyle Myhr, and
Doe’s 98 thru 2,500
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Dedications
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Petitioner dedicates this document to Dr. John C. Alden, M.D.,
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eye surgeon practicing in Oakland, California, and Trustee of the
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charitable trust we call The EyeCare Fund -- Vision for Everyone.
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Part of the proceeds of this lawsuit will be used to provide routine
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and emergency eye care to patients who cannot afford health insurance.
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Petitioner also dedicates this document to Professor Emeritus
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Kenneth L. Karst, at the UCLA Law School in Los Angeles, California.
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As quoted below, Prof. Karst had the courage and foresight to question
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the wisdom of transferring wholesale American jurisprudence into the
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hands of federal legislative courts.
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Let Article III prevail.
Amen.
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Table of Contents
Page
Table of Authorities ......................................... vi
Opinions Below ............................................. xiii
Jurisdiction ................................................ xiv
Constitutional / Statutory Provisions Involved ............... xv
Statement of the Case ......................................... 1
Reasons for Granting the Writ ................................. 4
A Drama Unfolding ............................................. 5
Navigating this Petition and its Appendices ................... 9
Final Summation .............................................. 27
Conclusions .................................................. 28
Index to Appendices .......................................... 29
Proof of Service ............................................. 30
For Appendix numbers, please refer in sequence to entries in the
Table of Contents at Internet URL:
http://www.supremelaw.org/cc/aol/index.htm
This PETITION FOR WRIT OF CERTIORARI is entry number 151 in that
Table of Contents.
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The Hyper-Text Markup Language (“HTML”) version of this PETITION
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will contain additional underlines, due to the addition of numerous
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working hyperlinks.
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The hard copy version was written and printed using registered
copies of Microsoft WORD 2002 and Microsoft Windows 98 Second Edition.
And, many thanks to SuperMicro for manufacturing such a reliable
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PC motherboard.
Mine has crossed the continent and the Pacific Ocean
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twice, surviving bumpy pickup trucks and airline baggage handlers.
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Table of Authorities
Cases:
Page
U.S. Supreme Court
American Insurance v. 356 Bales of Cotton,
26 U.S. (1 Pet. 511), 7 L.Ed. 242 (1828) ...................... 23
American Tobacco Co. v. Werckmeister,
207 U.S. 284, hn. 2 & 6 (1907) ................................ 19
Ex parte Bakelite Corporation,
279 U.S. 438 (1929) ........................................... 23
Balzac v. Porto Rico,
258 U.S. 298 (1922) ....................................... 22, 24
Benner v. Porter,
50 U.S. 235, 242-243 (1850) ................................... 23
Carmell v. Texas,
529 U.S. 513, 531 (2000) ....................................... 6
The City of Panama,
101 U.S. 453, 460 (1879) ...................................... 23
Claiborne-Annapolis Ferry Co. v. United States,
285 U.S. 382 (1932) ........................................... 23
Clinton v. Englebrecht,
80 U.S. 434, 447 (1871) ....................................... 23
Darr v. Burford,
339 U.S. 200 (1950) ........................................... 25
Evans v. Gore,
253 U.S. 245 (1920) ....................................... 16, 21
Federal Radio Commission v. General Electric Co.,
281 U.S. 464 (1930) ........................................... 23
Federal Trade Commission v. Klesner,
274 U.S. 145 (1927) ........................................... 23
Glidden Co. v. Zdanok,
370 U.S. 530 (1962) ........................................... 23
Good v. Martin,
95 U.S. 90, 98 (1877) ......................................... 23
Hornbuckle v. Toombs,
85 U.S. 648, 655 (1873) ....................................... 23
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Keller v. Potomac Electric Power Co.,
261 U.S. 428 (1923) ........................................... 23
Mookini v. U.S.,
303 U.S. 201 (1938) ........................................... 22
Northern Pipeline Co. v. Marathon Pipe Line Co.,
458 U.S. 50 (1982) ............................................ 23
O’Donoghue v. United States,
289 U.S. 516 (1933) ........................................... 23
Reynolds v. U.S.,
98 U.S. 145, 154 (1878) ....................................... 23
Roell et al. v. Withrow,
2003 DJDAR 4593 (April 29, 2003) .......................... 11, 16
Swift & Co. v. United States,
276 U.S. 311 (1928) ........................................... 23
U.S. ex rel. Toth v. Quarles,
350 U.S. 11 (1955) ............................................ 12
Williams v. United States,
289 U.S. 553 (1933) ............................................ 8
U.S. Courts of Appeal
A&M Records et al. v. Napster, Inc.,
239 F.3d 1004 (9th Cir. 2001) .................................. 22
Abdul-Jabbar v. General Motors Corp.,
85 F.3d 407 (9th Cir. 1996) .................................... 22
Agnew v. Compton,
239 F.2d 226 (9th Cir. 1956) ................................... 22
Alpha Industries, Inc. v. Alpha Steel,
616 F.2d 440 (9th Cir. 1980) ................................... 22
Anastasoff v. USA,
223 F.3d 898 (8th Cir. 2000) ................................ 4, 20
Brennan v. Silvergate,
503 F.2d 800 (9th Cir. 1974) ................................... 22
Brookfield v. West Coast Entertainment,
174 F.3d 1036 (9th Cir. 1999) .................................. 22
Crescent Wharf v. Pillsbury,
259 F.2d 850 (9th Cir. 1958) ................................... 22
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Drop Dead Co. v. S.C. Johnson & Son, Inc.,
326 F.2d 87 (9th Cir. 1963) .................................... 22
Gillespie v. Civiletti,
629 F.2d 637 (9th Cir. 1980) ................................... 22
Griffith Co. v. NLRB,
545 F.2d 1194 (9th Cir. 1976) .................................. 22
Hajek v. Burlington Northern R.R. Co.,
186 F.3d 1105, hn. 9 (9th Cir. 1999) ........................... 11
Hoffman v. Capital Cities/ABC, Inc.,
255 F.3d 1180 (9th Cir. 2001) .................................. 22
Hoffman v. U.S.,
244 F.2d 378, 379 (9th Cir. 1957) .............................. 25
In re Simon,
297 F. 942 (2nd Cir. 1924) ..................................... 15
Kodadek v. MTV Networks, Inc.,
152 F.3d 1209 (9th Cir. 1998) .................................. 22
Leas & McVitty v. Merriman,
132 F. 510 (C.C. W.D. Virginia 1904) .......................... 15
Levi Strauss v. Blue Bell, Inc.,
778 F.2d 1352 (9th Cir. 1985) .................................. 22
Mai Systems Corp. v. Peak Computer, Inc.,
991 F.2d 511, hn. 2 (9th Cir. 1993) ............................ 20
Martinez v. Stanford et al.,
2003 DJDAR 3371 (9th Cir. March 26, 2003) ...................... 11
Middleton Paper Co. v. Rock River Paper Co.,
19 F. 252 (C.C. W.D. Wisconsin 1884) .......................... 15
Midler v. Ford Motor Company,
849 F.2d 460 (9th Cir. 1988) ................................... 22
Nova Stylings, Inc. v. Ladd,
695 F.2d 1179 (9th Cir. 1983) .................................. 22
Roley v. New World Pictures, Ltd.,
19 F.3d 479 (9th Cir. 1994) .................................... 22
Roth Greeting Cards v. United Card Co.,
429 F.2d 1106 (9th Cir. 1970) .................................. 22
Scanbe Mfg. Co. v. Tryon,
400 F.2d 598 (9th Cir. 1968) ................................... 15
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Seiler v. Lucasfilm, Ltd.,
808 F.2d 1316 (9th Cir. 1986) .................................. 22
Taylor v. U.S.,
45 F. 531 (C.C. E.D. Tennessee 1891) .......................... 15
Traguth v. Zuck,
710 F.2d 90, 95 (2nd Cir. 1983) ................................ 25
Tsang v. Kan,
173 F.2d 204 (9th Cir. 1949) ................................... 22
U-Haul Int’l v. Jartran, Inc.,
793 F.2d 1034 (9th Cir. 1986) .................................. 22
U.S. v. High Country Broadcasting Co.,
3 F.3d 1244 (9th Cir. 1993) ................................ 17, 22
U.S. v. Saunders,
641 F.2d 659, hn. 2 (9th Cir. 1980) ............................ 11
U.S. v. Woodley,
726 F.2d 1328 (9th Cir. 1983) .................................. 22
Wells v. U.S.,
214 F.2d 380, 382, hn. 2-4 (5th Cir. 1954) ..................... 27
Wendt v. Host International, Inc.,
125 F.3d 806 (9th Cir. 1997) ................................... 22
U.S. District Courts
Advance Coating Technology, Inc. v. LEP Chemical, Ltd.,
142 FRD 91 (USDC/New York 1992) ............................... 14
Austin v. Cuyler,
499 F.Supp. 1116 (USDC/Pennsylvania 1980) ..................... 13
Intellectual Reserve Inc. v. Utah Lighthouse Ministry, Inc.,
75 F.Supp.2d 1290 (USDC/Utah 1999) ............................ 20
Lord v. Kelley,
240 F.Supp. 167, 169 (USDC/Massachusetts 1965) ............ 16, 21
Marobie-FL, Inc. v. National Ass’n of Fire Equip. Distrib.,
983 F.Supp. 1167, 1179 (USDC/Illinois 1997) ................... 20
Mullins v. Hinkle,
953 F.Supp. 744 (USDC/West Virginia 1997) ..................... 14
Nalty v. Nalty Tree Farm,
654 F.Supp. 1315 (USDC/Alabama 1987) .......................... 14
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Thompson v. Rose,
505 F.Supp. 183 (USDC/Tennessee 1981) ......................... 14
U.S. v. Hough,
157 F.Supp. 771, 774 (USDC/California 1957) ................... 25
U.S. v. King,
119 F.Supp. 398 (DC/Alaska 1954) ............................... 6
U.S. v. Marrone,
172 F.Supp. 368, 370, hn. 1-2 (D.C. Alaska 1959) .............. 27
U.S. v. Murphy,
82 F. 893 (DCUS/Delaware 1897) ................................ 15
U.S. v. Sharrock,
276 F. 30 (DCUS/Montana 1921) ................................. 15
U.S. Bankruptcy Courts
Miles v. Gussin,
104 B.R. 553 (District of Columbia 1989) ...................... 15
California Court of Appeals
Legerton v. Chambers,
163 P. 678, 32 Cal.App. 601 (1917) ........................ 12, 15
Constitutional Provisions:
Article I,
Section 1 (“All legislative Powers ...”)........ i, 8
Article I,
Section 9, Clause 3, ex post facto Clause ... i, 6, 7
Article II ..................................................... 8
Article III ................. i, xii, 5, 6, 11, 12, 16, 20, 23, 24
Article III, Section 1, Compensation Clause ................... 21
Article III, Section 2, Clause 1, Arising Under Clause ......... 8
Article IV,
Section 3, Clause 2, Territory Clause ............. 6
Article IV,
Section 4, Guarantee Clause .................. 10, 18
Article VI,
Section 3, Oath of Office Clause .............. 3, 11
Ninth Amendment ................................................ 8
Tenth Amendment ................................................ 8
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Statutes:
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62
Stat. 27, 1866 Civil Rights Act ...........................
Stat. 419, 426, §
34 (1871) ................... i, 10, 18,
Stat. 325, 333, § 1891 (1873) ................... i, 10, 18,
Stat. 869 et seq. .................................... i, 5,
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13
5 U.S.C. 552 ............................................ 11, 12
5 U.S.C. 2104 ............................................ 12, 15
5 U.S.C. 2902 ............................................ 12, 15
15 U.S.C. 1121, 60 Stat. 440 ................ i, xiv, 1, 5, 16, 18
15 U.S.C. 1125, 60 Stat. 441 .................. i, 1, 5, 6, 16, 25
15 U.S.C. 1127, 60 Stat. 443 .................................. 25
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U.S.C.
U.S.C.
U.S.C.
U.S.C.
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U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
101 ................................................
106 ................................................
506, COUNT ONE .................................. 1,
512(h) .............................................
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25
19
18
3-4 .............................................. 15
241-242, COUNT FOUR ............................. 1, 25
371, COUNT FOUR ................................. 1, 25
1503 ................................................ 15
1512-1513, COUNTS THREE, FOUR ............... xiv, 1, 25
2319, COUNT ONE .................................. 1, 19
3231 ............................................... xiv
26 U.S.C. 3402(n) (IRC 3402(n)) ............................... 21
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U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
................................................... i, 5
132 ................................................ 24
251 ................................................ 24
372(c) ...................................... 2, 12, 14
453 ................................................. 3
454 ............................................. 2, 14
455 ............................................ 16, 21
631 ................................................ 17
636 ................................................ 14
955 ............................................ 12, 15
1254 ............................................... xiv
1291 ........................................... xiv, 17
1292 ................................................ 18
1331 ............................................... xiv
1338 ............................................... xiv
1654 ................................................ 25
1691 ............................................ 10, 15
2072 ...................................... i, 7, 13, 16
2403(a) ............................................. 12
California Business and Professions Code (“CBPC”):
§ 6067 ............................................. 11, 16, 17
§ 6126-6127 ................................................ 17
§ 17200 et seq., COUNT FIVE .................................. 1
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Rules:
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School, has summarized the overall problem quite nicely as follows:
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Rule 44, Federal Rules of Appellate Procedure (“FRAP”) ........ 13
Rule 6(e), Federal Rules of Civil Procedure (“FRCP”) .......... 14
Local Rule (“L.R.”) 73-302(c)(1), USDC/EDCA ............ i, 11, 16
Other:
Bouvier’s Law Dictionary (1856) ................................ 8
“Party” defined (see Article III)
Quoting:
“When applied to practice, by party
either the plaintiff or defendant.”
is
understood
[bold and underlined emphasis added]
Black’s Law Dictionary, Sixth Edition ......................... 24
“Inclusio unius est exclusio alterius” defined
Quoting:
“This doctrine decrees that where law expressly
describes particular situation to which it shall
apply, an irrefutable inference must be drawn that
what is omitted or excluded was intended to be omitted
or excluded.”
[bold and underlined emphasis added]
Academic Treatises:
Prof. Emeritus Kenneth L. Karst, on the faculty of the UCLA Law
In
essence
a
legislative
court
is
merely
an
administrative agency with an elegant name.
While
Congress surely has the power to transfer portions of
the business of the federal judiciary to legislative
courts, a wholesale transfer of that business would
work a fundamental change in the status of our
independent judiciary and would seem vulnerable to
constitutional attack.
[Discussion of “Legislative Court”]
[in Encyclopedia of the American Constitution]
[New York, MacMillan Publishing Company (1986)]
[underlines and bold emphasis added]
xii
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2002 A.D.
Petitioner respectfully requests
that a Writ of Certiorari issue
to review the judgments below:
Opinions Below
The
“ORDER”
denying
rehearing
by
the
United
States
Court
of
19
Appeals for the Ninth Circuit, as filed on April 8, 2003 A.D., appears
20
at Appendix 147.
21
The “MEMORANDUM NOT FOR PUBLICATION” by the United States Court
22
of Appeals for the Ninth Circuit, as filed on December 13, 2002 A.D.,
23
appears at Appendix 125.
24
The
“MEMORANDUM
February 22, 2002 A.D., appears at Appendix 75.
captioned
CALIFORNIA”
“UNITED
26
“ORDER”
OF
captioned
COURT,
The
DISTRICT
ORDER”
25
27
EASTERN
AND
“UNITED
denying
STATES
STATES
DISTRICT
reconsideration
on
See also Appendix 70.
DISTRICT
COURT,
EASTERN
28
DISTRICT OF CALIFORNIA” adopting the findings and recommendations, as
29
filed on January 25, 2002 A.D., appears at Appendix 57.
30
31
32
33
34
35
36
The “ORDER AND FINDINGS AND RECOMMENDATIONS” [sic] by Mr. Drozd,
as filed on December 31, 2001 A.D., appear at Appendix 45.
Other alleged “ORDER’s” issued by Mr. Drozd are also listed in
chronological order in the Table of Contents at Internet URL:
http://www.supremelaw.org/cc/aol/index.htm
Appendix numbers correspond to entries in that Table of Contents,
in chronological order.
(Appendix 1 = entry 1, etc.)
xiii
1
2
3
4
5
Jurisdiction
The date on which the United States Court of Appeals decided this
case was December 13, 2002 A.D.
See Appendix 125.
6
A timely petition for rehearing was denied by the United States
7
Court of Appeals on April 8, 2003 A.D., and a copy of the “ORDER”
8
denying rehearing appears at Appendix 147.
9
10
The jurisdiction of this Supreme Court of the United States is
invoked under 28 U.S.C. § 1254(1).
11
The United States Court of Appeals enjoyed appellate jurisdiction
12
pursuant to a strict construction of the federal statutes at 60 Stat.
13
440, § 39, July 5, 1946 (aka 15 U.S.C. 1121) and 28 U.S.C. 1291.
14
The
District
Court
of
the
United
States
enjoyed
original
15
jurisdiction pursuant to a strict construction of the federal statutes
16
at 60 Stat. 440 supra, 28 U.S.C. §§ 1331, 1338(a), 1338(b), and also
17
18 U.S.C. §§ 1512, 1513 and 3231.
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
See Initial COMPLAINT.
For the convenience of this Supreme Court and all its personnel,
Petitioner now documents all known amendments to 60 Stat. 440 supra:
Statute at Large
---------------60 Stat. 440
62 Stat. 870
62 Stat. 907
62 Stat. 991
63 Stat. 107
96 Stat. 46
96 Stat 1316
102 Stat 3946
112 Stat 3070
Date
------------Jul. 5, 1946
Jun. 25, 1948
Jun. 25, 1948
Jun. 25, 1948
May 24, 1949
Apr. 2, 1982
Oct. 12, 1982
Nov. 16, 1988
Oct. 30, 1998
Public Law
------------
P.L. 97-164
P.L. 97-296
P.L. 100-667
P.L. 105-330
Miscellaneous
-----------------------Ch. 540, Title VI, § 39
Ch. 646, §§ 1, 32(a)
Ch. 646, § 32
Ch. 646, §§ 1, 32(a)
Ch. 139, § 127
Title I, Part B, § 148
§ 39a, 15 U.S.C. 1121(b)
Title I, § 131
Title II, § 201(a)(10)
Sources:
15 USCA 1121, 15 USCS 1121, and the
U.S. Code at Cornell University’s website:
http://www.law.cornell.edu/uscode/15/1121.html
xiv
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
Constitutional and Statutory Provisions Involved
Constitutional Provisions:
Article I,
Section 1 (“All legislative Powers ...”)
Article I,
Section 9, Clause 3, ex post facto Clause
Article III, Section 1, Compensation Clause
Article III, Section 2, Clause 1, Arising Under Clause
Article IV, Section 3, Clause 2, Territory Clause
Article IV, Section 4, Guarantee Clause
Article VI, Section 3, Oath of Office Clause
Ninth and Tenth Amendments
Statutory Provisions:
14
16
18
62
Stat. 27, 1866 Civil Rights Act
Stat. 419, 426, §
34 (1871) (first extension statute)
Stat. 325, 333, § 1891 (1873) (second extension statute)
Stat. 869 et seq.
5 U.S.C.
552, 2104, 2902
15 U.S.C. 1121, 60 Stat. 440 (Title 15 not enacted) (see COUNT TWO)
15 U.S.C. 1125, 60 Stat. 441 (Title 15 not enacted) (see COUNT TWO)
15 U.S.C. 1127, 60 Stat. 443 (Title 15 not enacted) (see COUNT THREE)
17
17
17
17
U.S.C.
U.S.C.
U.S.C.
U.S.C.
101
106
506
512
(see
(see
(see
(see
COUNT
COUNT
COUNT
COUNT
18
18
18
18
18
18
U.S.C.
3-4
U.S.C. 241-242 (see
U.S.C. 371
(see
U.S.C. 1503
U.S.C. 1512-1513(see
U.S.C. 2319
(see
ONE)
ONE)
ONE)
ONE)
COUNTS THREE and FOUR)
COUNT FOUR)
COUNTS THREE and FOUR)
COUNT ONE)
26 U.S.C. 3402(n), IRC 3402(n) (Title 26 not enacted)
28
28
28
28
28
28
28
28
28
28
28
28
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
132
372(c)
453-455
631
636
955
1254
1291-1292
1654
1691
2072
2403(a)
§§ 6067, 6126, 6127, and 17200 et seq., CBPC (see COUNT FIVE)
xv
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
Reader’s Notes:
xvi
1
Statement of the Case
2
On August 1, 2001 A.D., Plaintiff Paul Andrew Mitchell filed a
3
civil case in the District Court of the United States for the Eastern
4
Judicial District of California (“DCUS”), in Sacramento, California,
5
alleging five (5) counts against a total of 129 named Defendants.
6
The
five
counts
included
copyright
infringement,
trademark
7
infringement, deprivation of fundamental Rights, conspiracy to deprive
8
fundamental Rights, and unfair competition under California laws.
9
Pursuant to a Local Rule and without the consent of all parties,
10
the case was automatically referred to Mr. Dale A. Drozd, alleging to
11
occupy the office of a United States magistrate in Sacramento, Calif.
12
Mitchell timely objected to that referral, in numerous ways.
13
Over
Mitchell’s
written
objections,
Mr.
Drozd
scheduled
a
14
preliminary hearing for December 14, 2001 A.D., to consider motions to
15
dismiss which had been filed in the wrong court by defense attorneys
16
appearing without the credentials required by California State laws.
17
Mitchell appeared under protest to challenge jurisdiction.
18
At that hearing, Mr. Drozd agreed that 60 Stat. 440 was exactly
19
the correct statute conferring original jurisdiction over Mitchell’s
20
Lanham Act claim.
21
also branded Mitchell’s constitutional issues as “frivolous” [sic].
22
Compare 15 U.S.C. 1121 (not enacted).
Mr. Drozd
Also on December 14, 2001 A.D., the District Clerk issued a large
23
number
of
SUBPOENA’s
IN
A
CIVIL
CASE:
to
command
24
Defendants to disclose computer activity logs and the identities of
25
subscribers suspected of infringing Mitchell’s exclusive copyrights,
26
and to compel defense attorneys to disclose the certificates of oath
27
that are required to be indorsed upon their licenses to practice law.
Petition for Writ of Certiorari to the Ninth Circuit:
certain
named
Page 1 of 31
1
2
3
On December 31, 2001 A.D., Mr. Drozd filed his findings and
recommendations, assuming motions to dismiss had been properly filed.
Mitchell followed timely with a complaint of judicial misconduct
4
against
5
incorporated Mitchell’s VERIFIED CRIMINAL COMPLAINT against Mr. Drozd,
6
for practicing law from the bench in violation of 28 U.S.C. 454.
7
8
Mr.
Drozd,
pursuant
to
28
U.S.C.
372(c).
That
complaint
The delivery of Mr. Drozd’s mail, containing his findings and
recommendations, was delayed for reasons that remain undiscovered.
9
Immediately upon receiving those findings and recommendations,
10
Mitchell prepared, filed and served thoroughly detailed objections, in
11
three (3) parts entitled MOTION TO STRIKE ORDER [sic] AND FINDINGS AND
12
RECOMMENDATIONS OF MAGISTRATE JUDGE -- PARTS I, II, and III.
13
Assuming he had jurisdiction, Mr. William B. Shubb then adopted
14
Mr. Drozd’s findings and recommendations in full.
Mitchell followed
15
with a MOTION FOR RECONSIDERATION, which Mr. Shubb summarily denied.
16
Mitchell then appealed timely to the Ninth Circuit.
17
In a MEMORANDUM NOT FOR PUBLICATION [sic] dated Dec. 13, 2002
18
A.D., Messrs. Goodwin, Hug and Trott issued an unsigned and unsealed
19
ruling approving all actions taken by Mr. Shubb, and affirming for
20
reasons set forth in Mr. Drozd’s findings and recommendations.
21
That
MEMORANDUM
also
agreed
that
leave
to
amend
Mitchell’s
22
Initial COMPLAINT would be “futile” and that the district court did
23
not abuse its discretion by dismissing the complaint with prejudice.
24
Finally,
that
MEMORANDUM
erred
in
finding
that
Mitchell
had
25
failed to file timely objections to the findings and recommendations,
26
and that Mitchell had presented no valid grounds for reconsideration
27
of the dismissal with prejudice.
Petition for Writ of Certiorari to the Ninth Circuit:
Page 2 of 31
1
Mitchell then objected to Shubb and Trott, because the U.S. DOJ
2
later confirmed in writing that, as the legal custodian of record, DOJ
3
could find no Presidential Commission for either gentleman.
4
Mitchell also objected to Mr. Hug, because an earlier VERIFIED
5
CRIMINAL COMPLAINT, which Mitchell had filed against Mr. Hug in 1997,
6
created conflicts of interest in connection with the case of a federal
7
grand jury SUBPOENA that Mitchell was authorized to litigate.
8
And, Mitchell also objected to Mr. Goodwin, because the latter’s
9
decision in re the Pledge of Allegiance effectively disqualified him
10
for lacking a proper oath of office (i.e. by omitting from that oath
11
the conditional phrase “So help me God.”)
12
Mitchell
continued
to
investigate
See 28 U.S.C. 453.
all
pertinent
laws
and
13
decisions with great diligence, e.g. see his detailed MEMO to Circuit
14
Judge Kozinski detailing 25 years of Ninth Circuit precedents in re
15
the Federal Magistrates Act, and a shorter MEMO to Ninth Circuit Chief
16
Judge Mary M. Schroeder concerning her dissent in one of those cases.
17
Mitchell formally requested rehearing en banc, and also filed an
18
APPLICATION FOR WRIT IN THE NATURE OF QUO WARRANTO on behalf of the
19
United States ex rel., to challenge and finally to decide any rights
20
in Messrs. Shubb and Drozd to occupy the offices they claimed.
21
In another unsigned and unsealed ORDER dated April 8, 2003 A.D.,
22
Messrs. Goodwin, Hug and Trott also denied Mitchell’s petition for
23
rehearing and all other pending motions, inclusive of a demand by
24
Mitchell for mandatory judicial notice of Trott’s missing commission.
25
Mitchell now respectfully requests
that a Writ
of
Certiorari
26
issue upon the U.S. Court of Appeals, permitting full appellate review
27
by this honorable Supreme Court of all proceedings below.
28
Petition for Writ of Certiorari to the Ninth Circuit:
Page 3 of 31
1
Reasons for Granting the Writ
2
3
I
4
The Ninth Circuit’s decisions conflict with the principles and
5
the specific holding pronounced by the decision of the Eighth Circuit
6
in Anastasoff v. USA, 223 F.3d 898 (2000) in re UNPUBLISHED decisions,
7
and with standing decisions by other Circuit Courts in re trademark
8
and copyright enforcement.
9
relevant to the historic and proper meaning of “judicial precedent.”
The Anastasoff decision is particularly
10
11
II
12
The Ninth Circuit has itself departed so far from the accepted
13
and usual course of judicial proceedings, and it has also sanctioned
14
such a departure by a lower federal court, as to call for an exercise
15
of this Supreme Court’s supervisory powers.
Confer at “res judicata”.
16
17
18
III
The Ninth Circuit has effectively decided important questions of
19
federal
Law
in
a
cursory,
summary
and
“legislative”
fashion
that
20
conflicts with standing and relevant decisions of this Supreme Court.
21
22
IV
23
The Ninth Circuit has effectively decided important questions of
24
federal Law that have not been, and should be, finally settled by this
25
Supreme Court, by exercising appropriate deliberation in this case.
26
27
Petitioner now elaborates in detail as follows:
Petition for Writ of Certiorari to the Ninth Circuit:
Page 4 of 31
1
A Drama Unfolding
2
To set the stage for the dramatic disclosures that are about to
3
follow in this Petition, Paul Andrew Mitchell (hereinafter “Mitchell”)
4
respectfully
5
reflect on two pivotal dates in the history of American jurisprudence.
6
First
requests
of
all,
a
this
honorable
relatively
Supreme
unknown
Court
to
trademark
law
pause,
called
and
the
7
Lanham Act was first enacted on July 5, 1946.
8
jurisdiction on the district and territorial courts of the United
9
States over federal claims of trademark infringement, including false
10
designations of origin, false and misleading descriptions of fact, and
11
false and misleading representations of fact.
12
It conferred original
Compare 15 U.S.C. 1121.
Secondly, a well known Act of Congress was signed into law by
13
President Truman on June 25, 1948.
That Act completely re-structured
14
the entire federal court system, after several years of committee work
15
were needed to re-write numerous governing statutes.
See Title 28.
16
It is not difficult to prove that, in 1946 A.D., the distinction
17
between district and territorial courts was well understood and not
18
terribly controversial.
19
federal district courts established inside the several (48) States.
20
What has
become
In that year, there was only one class of
rather controversial, however, is
our recent
21
discovery proving that “district courts” acquired quite a different
22
meaning as a direct result of specific changes introduced in 1948 A.D.
23
Instead
of
referring
to
a
single
class
of
trial
courts
24
contemplated by Article III, the term “district courts” was elevated
25
to embrace two (2) different and entirely distinct classes of trial
26
courts, the second of which originated in the federal Territories,
27
where Constitutional guarantees are presently options, not mandates.
Petition for Writ of Certiorari to the Ninth Circuit:
Page 5 of 31
1
Using a questionable premise that the several States could also
2
be treated as federal Territories, for ever growing purposes, Congress
3
effectively
4
Territories into each of the several States which existed in 1948, but
5
without expressly abolishing the Article III court which had existed
6
inside those States for almost 160 years.
7
Congress must also destroy.
“broadcasted”
an
Article
IV
court
from
the
federal
Whatever Congress creates,
See U.S. v. King, 119 F.Supp. 398 (1954).
8
Moreover, in the course of implementing this new court structure
9
throughout America, Congress was too preoccupied in that post-war era
10
to notice an important omission.
It failed to amend statutes like the
11
Lanham Act in order to confer original jurisdiction on the Article IV
12
district courts instead of, or in addition to, the Article III courts.
13
This omission would not be nearly so important as it is now, but
14
for the clear constitutional prohibition against ex post facto laws,
15
even if civil cases.
See Carmell v. Texas, 529 U.S. 513, 531 (2000).
16
Even if Congress had fully intended to re-define the meaning of
17
“district courts” retroactively, with the effect of granting original
18
jurisdiction to the Article IV USDC to adjudicate Lanham Act claims,
19
such an intent is obviously barred by that Clause which renders it
20
unconstitutional.
Thus, we must now confront fundamental justice.
21
Because the Lanham Act grant was not amended after it was first
22
enacted in 1946 A.D., the federal court with original jurisdiction to
23
adjudicate claims that arise under that Act remains the Article III
24
District Court of the United States inside the several (50) States.
25
We now abbreviate these as the “DCUS” (singular and plural).
26
27
This Court, and many inferior federal courts, have often held
that repeals by implication are never favored.
Cites in Appendix 86.
Petition for Writ of Certiorari to the Ninth Circuit:
Page 6 of 31
1
Using the benefit of hindsight, it is now clear that Congress
2
attempted to effect a sea change:
3
inside the several States, to a hybrid in which legislative courts
4
would eventually dominate federal jurisprudence in the first instance.
5
from strictly constitutional courts
Although this important distinction between constitutional and
6
legislative
7
Supreme Court, Mitchell believes he is one of the first (if not the
8
first) to reach this level with enough verified evidence to carry his
9
burden of proving the following essential proposition:
10
courts
has
been
upheld
in
numerous
decisions
by
this
The United States District Courts now established within the 50
11
States
are
actually
legislative
courts,
convened
to
sustain
12
premise that those States can be treated as federal Territories.
the
13
We now abbreviate these as the “USDC” (singular and plural).
14
Further dramatic evidence of this swing to legislative courts can
15
be seen in a section of the Act of June 25, 1948, known as the Rules
16
Enabling Act, 28 U.S.C. 2072(a).
17
to this Court authority to promulgate rules of evidence and procedure,
18
but only for the USDC.
19
Here, Congress attempted to delegate
The DCUS are not even mentioned in that Act.
Along these very same lines of enabling legislative mode (we much
20
prefer
21
Congress also attempted to confer on this high Court authority to
22
abrogate federal statutes by means of rules of evidence and procedure
23
promulgated by this Court.
24
Enabling Act called the Abrogation Clause, 28 U.S.C. 2072(b).
25
this
term
“mode”
over
references
to
physical
buildings),
This was done in a subsection of the Rules
Not only would such “abrogations” necessitate effects that are
26
retroactive, or ex post facto, in time.
On a more fundamental level,
27
such legislative powers are reserved to the Congress by Article I.
Petition for Writ of Certiorari to the Ninth Circuit:
Page 7 of 31
1
If the Separation of Powers Doctrine means anything in actual
2
practice, it confines the legislative powers of the federal government
3
to the Congress of the United States, while it simultaneously limits
4
the ability of that Congress either to surrender or to delegate any
5
legislative powers to any of the coordinate branches.
6
Without meaning to sound pedantic, federal Separation of Powers
7
means
that
only
Congress
can
legislate,
only
8
execute, and only the Judiciary can adjudicate.
the
Executive
can
Accordingly:
9
(1)
the Congress can neither execute nor adjudicate;
10
(2)
the Executive can neither legislate nor adjudicate;
11
(3)
the Judiciary can neither legislate nor execute.
12
This structural property of our chosen form of government is
directly
in
the
structures
of
Articles
I,
II,
and,
13
mirrored
and
III,
14
respectively.
15
of a fundamental Right, institutionalized and perpetuated by the clear
16
language of Article I, as qualified by the Ninth and Tenth Amendments.
As such, that structure is elevated here to the level
17
Witness how this Court has addressed this matter in the past:
18
19
20
21
22
23
24
25
... the limitation fundamentally implicit in the constitutional
separation of the powers, namely, that a power definitely
assigned by the Constitution to one department can neither be
surrendered nor delegated by that department, nor vested by
statute in another department or agency.
[Williams v. United States, 289 U.S. 553 (1933)]
[italics in original, bold emphasis added]
26
However,
the
Williams
27
significant error:
28
Under Clause referred only to the “United States” as plaintiff, and
29
not to the “United States” as defendant.
30
statutes
31
Bouvier’s defines “Party” to embrace both plaintiffs and defendants.
waiving
decision
was
later
repudiated
for
one
very
this Court had decided that “Party” in the Arising
sovereign
immunity
In the latter situation,
required
legislative
Petition for Writ of Certiorari to the Ninth Circuit:
courts!
Page 8 of 31
1
2
Navigating this Petition
and its Appendices
3
The task before us now is to provide correct and authoritative
4
answers to the Questions Presented above.
There are no better means
5
at our disposal to answer these questions, than the vast resources now
6
provided to us by the Internet and the Supreme Law Library.
7
To this end, Mitchell hereby urges this Court, and all of its
8
personnel, to begin by traveling the following path through the mass
9
of pleadings and documentary exhibits already assembled in this case,
10
and uploaded to the Internet where their accessibility has been vastly
11
improved for all (numbers in parentheses identify the Appendix):
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
1.
Internet copy of this PETITION FOR WRIT OF CERTIORARI (151):
http://www.supremelaw.org/cc/aol/cert.htm
2.
APPELLANT’S INFORMAL OPENING BRIEF (86):
http://www.supremelaw.org/cc/aol/opening.htm
3.
APPELLANT’S BRIEF IN REPLY TO AOL TIME WARNER et al. (108):
http://www.supremelaw.org/cc/aol/reply.htm
4.
APPELLANT’S BRIEF IN REPLY TO CARNEGIE MELLON UNIVERSITY (109):
http://www.supremelaw.org/cc/aol/reply.cmu.htm
5.
APPELLANT’S BRIEF IN REPLY TO UNIVERSITY DEFENDANTS (112):
http://www.supremelaw.org/cc/aol/reply.univ.htm
6.
Letter to Jon Mummolo, Washington Square News (124):
http://www.supremelaw.org/cc/aol/mummolo2.htm
7.
PETITION FOR REHEARING EN BANC (126):
http://www.supremelaw.org/cc/aol/enbanc.htm
8.
APPLICATION FOR WRIT OF QUO WARRANTO (127):
http://www.supremelaw.org/cc/aol/quowarranto.htm
9.
REFUSAL OF ORDER AND MEMORANDUM FOR FRAUD AND OTHER CAUSES (131):
http://www.supremelaw.org/cc/aol/refusal.schroeder.htm
10.
MEMO to Chief Judge Mary M. Schroeder (133):
http://www.supremelaw.org/cc/aol/schroeder.2.htm
11.
MEMO to Circuit Judge Alex Kozinski (136):
http://www.supremelaw.org/cc/aol/kozinski.htm
Petition for Writ of Certiorari to the Ninth Circuit:
Page 9 of 31
1
2
3
4
5
6
7
8
9
10
11
12.
NOTICE OF FRAUD to Defendant Miami University of Ohio (141):
http://www.supremelaw.org/copyrite/muohio.edu/notice.of.fraud.htm
13.
APPELLANT’S SECOND MOTION FOR MANDATORY JUDICIAL NOTICE (143):
http://www.supremelaw.org/cc/aol/mot.mandatory.notice.2.htm
14.
NOTICE AND DEMAND FOR SPECIFIC PERFORMANCE (146):
http://www.supremelaw.org/cc/aol/nad.perform.htm
15.
FORMAL NOTICE OF PERTINENT LAW AND DEMAND TO OBEY (149):
http://www.supremelaw.org/cc/aol/nad.1691.htm
12
In the course of reviewing each of these online documents, in the
13
sequence shown above, it is hoped that the Answers we seek will emerge
14
the same way an immense jigsaw puzzle is solved, one piece at a time.
15
In addition to the obvious solution, Mitchell also contends that
16
a “picture within a picture” will emerge, just as a “state within a
17
State” has already been recognized by this honorable Court.
18
On this particular point, legally
speaking
the
population of
19
federal citizens who now inhabit the 50 States of the Union comprise
20
an absolute legislative democracy that is subject to the municipal
21
jurisdiction of Congress, as well as its national laws.
22
In contrast, by intent of the Framers the population of State
23
Citizens who now inhabit the 50 States are a constitutional Republic
24
whose
25
presiding upon courts of competent jurisdiction, at the very least.
26
27
fundamental
Rights
also
include
qualified
judicial
officers
Due process of Law and the rule of Law in this scheme are the
absolute Rights of any Citizen whose legacy is the Guarantee Clause.
28
Mitchell now submits that the extension statutes, discussed at
29
length above and below, result in rendering that legislative democracy
30
a phantom opera fiction, deserving of extinction with all deliberate
31
speed, God willing.
32
The Most High never speaks with a forked tongue.
We now proceed to elaborate with further essential details.
33
Petition for Writ of Certiorari to the Ninth Circuit:
Page 10 of 31
1
1.
Automatic referral to a magistrate appointed to the United States
2
District Court in Sacramento, California (“USDC”), was a “coercive
3
referral” under Local Rule 73-302(c)(21) and over Mitchell’s numerous
4
and timely objections.
5
(decided April 29, 2003 A.D.).
6
Circuit’s holding in Hajek v. Burlington Northern R.R. Co., 186 F.3d
7
1105, hn. 9 (9th Cir. 1999).
8
rules were invalid and thus ineffective to confer authority upon any
9
federal
magistrates
See Roell et al. v. Withrow, 2003 DJDAR 4593
As such, it also violated the Ninth
In the latter case, local district court
without
the
express
consent
of
all
parties;
10
moreover, as here those local rules were inconsistent with the Federal
11
Magistrates Act (“FMA”) and with Article III.
12
Stanford et al., 2003 DJDAR 3371 (9th Cir. filed March 26, 2003 A.D.)
13
See also Martinez v.
Consent to civil jurisdiction by a magistrate cannot be inferred
14
from
15
Mitchell’s MEMO to Ninth Circuit Judge Alex Kozinski, dated Jan. 12,
16
2003 A.D., for a thorough review of 25 years of Ninth Circuit FMA
17
decisions.
18
undeniably consistent -- for mandating the consent of all parties.
19
any
of
(a)
Mitchell’s
conduct
in
this
case.
See
Appendix
136:
The pattern of Ninth Circuit precedents is dramatic and
Mr. Drozd failed to exhibit the certificate of oath that is
20
required to be indorsed upon licenses to practice law in the State of
21
California by § 6067 of the California Business and Professions Code
22
(“CBPC”).
23
Mitchell
24
magistrate
25
question in this case that Mr. Drozd is not an Article III federal
26
judge.
27
request and appeal for his Presidential Commission also came up empty.
Mr. Drozd also failed to exhibit any oath of office, after
demanded
assumed
same.
facts
His
that
eligibility
for
are
evidence.
not
in
the
office
There
U.S. v. Saunders, 641 F.2d 659, hn. 2 (9th Cir. 1980).
Petition for Writ of Certiorari to the Ninth Circuit:
of
U.S.
is
no
A FOIA
Page 11 of 31
1
(b)
The U.S. Department of Justice (“DOJ”) were also unable to
2
produce a proper Presidential Commission for Mr. Shubb, after Mitchell
3
submitted a lawful FOIA request and appeal for same, and later a FINAL
4
DEMAND that Mr. Shubb exhibit all credentials required by Law.
5
Appendix 52, 65 and 101.
6
district judge until the commission issues.
7
P. 678, 32 Cal.App. 601 (1917).
8
of all Presidential Commissions.
9
Shubb’s qualifications for the office of U.S. District Judge also
See
A candidate is not entitled to the office of
Legerton v. Chambers, 163
The DOJ are the sole legal custodians
See 5 U.S.C. §§ 2104, 2902.
Mr.
10
assumed facts that are still not in evidence, even today.
11
properly docketing Mitchell’s complaint of judicial misconduct against
12
Mr. Drozd, the Circuit Clerk then failed to docket Mitchell’s proper
13
complaint
14
pursuant to 28 U.S.C. 372(c).
15
(c)
of
judicial
misconduct
against
Mr.
Shubb,
After
also
served
See Appendix 46 and 132.
Contrary to evidence on record, the Ninth Circuit erred by
16
declining
17
WARRANTO filed and served by the United States ex rel. Mitchell.
18
Writ
19
demonstrate
20
preside upon the DCUS in Sacramento, and to exercise the judicial
21
Power of the United States in the instant case.
22
A State Citizen may appear on behalf of the United States ex rel.
23
U.S. ex rel. Toth v. Quarles, 350 U.S. 11 (1955) (a criminal case
24
enumerating certain fundamental guarantees embodied in Article III).
of
to
hear
Quo
by
an
APPLICATION
Warranto
what
would
lawful
FOR
command
WRIT
IN
Messrs.
authorities
(if
THE
NATURE
Shubb
any)
and
each
OF
QUO
That
Drozd
to
claimed
to
Appendix 127 and 132.
See
25
In that APPLICATION the United States exercised its statutory
26
right to intervene in the instant case, pursuant to 28 U.S.C. 2403(a),
27
due to Mitchell’s formal challenges to the constitutionality of the
Petition for Writ of Certiorari to the Ninth Circuit:
Page 12 of 31
1
Abrogation Clause in the Rules Enabling Act, and the Act of June 25,
2
1948 in toto, 62 Stat. 869 et seq.
3
failed to perform her duty formally to certify those challenges to the
4
U.S. Attorney General.
5
(d)
To date, the Circuit Clerk has
See Appendix 78, 94, and FRAP Rule 44.
Likewise, the Ninth Circuit erred by declining to grant
6
Mitchell’s PETITION FOR REHEARING EN BANC, for all of the meritorious
7
reasons stated in that PETITION.
8
each and every one of those meritorious reasons before this Court.
9
All Appendices are hereby incorporated fully by reference.
10
(e)
Appendix 126.
Mitchell now brings
The Ninth Circuit also erred by ruling that Mitchell failed
11
to file timely objections to the findings and recommendations filed by
12
Mr. Drozd on Dec. 31, 2001 A.D.
13
Kozinski, Mitchell itemized sixteen (16) separate written objections
14
to Mr. Drozd, six (6) of which are dated prior to Dec. 31, 2001 A.D.
15
See
16
findings
17
undiscovered, well within 10 working days of receiving them Mitchell
18
wrote and filed three (3) separate and thorough pleadings, documenting
19
his objections to those findings and recommendations in great detail.
20
See
21
RECOMMENDATIONS OF MAGISTRATE JUDGE -- PARTS I, II, and III:
22
Appendix 55, 62 and 63, respectively.
23
Appendix
and
136.
Although
recommendations
Mitchell’s
MOTION
TO
In his detailed MEMO to Circuit Judge
delivery
was
of
delayed
STRIKE
ORDER
U.S.
Mail
for
reasons
[sic]
containing
AND
that
the
remain
FINDINGS
AND
i.e.
Where delay in filing objections was beyond a party’s control,
24
objections would be treated as timely.
25
1116
26
objections to a magistrate’s report ran from the date the report was
27
actually received by the party;
(USDC/Penna.
1980).
The
10-day
Austin v. Cuyler, 499 F.Supp.
time
limitation
for
filing
where a report was served by mail,
Petition for Writ of Certiorari to the Ninth Circuit:
Page 13 of 31
1
the operative period for computing the 10-day period was 13 days.
2
Thompson v. Rose, 505 F.Supp. 183 (USDC/Tenn. 1981).
3
timeliness, exclude weekends and holidays, and add 3 days for mailing,
4
pursuant to Rule 6(e).
5
W.Va. 1997);
6
1987);
7
FRD 91 (USDC/S.D.N.Y. 1992).
8
In computing
Mullins v. Hinkle, 953 F.Supp. 744 (USDC/S.D.
Nalty v. Nalty Tree Farm, 654 F.Supp. 1315 (USDC/Ala.
Advance Coating Technology, Inc. v. LEP Chemical, Ltd., 142
(f)
The
Ninth
Those were USDC rulings!
Circuit
erred
again
by
overlooking
Mitchell’s
9
complaint of judicial misconduct against Mr. Drozd, filed with the
10
Circuit Clerk pursuant to 28 U.S.C. 372(c) within the 10-day deadline
11
imposed by 28 U.S.C. 636(b)(1)(C).
12
recommendations were filed by Drozd on Dec. 31, 2001 A.D.;
13
372(c) complaint was mailed on Jan. 15, 2002 A.D. and delivered on
14
Jan.
15
Tuesday, Jan. 1, 2002 A.D. was a federal holiday (excluding 1 day).
16
Thus, Dec. 31, 2001 + 10 days + 5 days + 3 days
18,
2002
A.D.
Two
See Appendix 46.
weekends
intervened
The findings and
(excluding
=
Mitchell’s
4
days).
Jan. 18, 2002 A.D.
17
The docket number assigned to that 372(c) complaint is displayed
18
on the caption page of Mitchell’s INFORMAL OPENING BRIEF to the Ninth
19
Circuit;
20
(“In Miscellaneous Pleadings”).
21
incorporated Mitchell’s VERIFIED CRIMINAL COMPLAINT against Mr. Drozd,
22
dated Nov. 30, 2001 A.D., for one count of practicing law from the
23
bench, in violation of 28 U.S.C. 454.
24
(g)
that complaint is also cited at paragraph 4(d) in that BRIEF
The
Ninth
Circuit
See Appendix 86.
also
And, that complaint
See Appendix 34.
erred
by
overlooking
Mitchell’s
25
SECOND MOTION FOR MANDATORY JUDICIAL NOTICE, BY AFFIDAVIT, containing
26
testimony that the U.S. DOJ could not find any Presidential Commission
27
for Stephen S. Trott, whose name has appeared on Ninth Circuit ORDER’s
Petition for Writ of Certiorari to the Ninth Circuit:
Page 14 of 31
1
issued in this case.
2
The DOJ are the sole legal custodians of all Presidential Commissions
3
of federal circuit and district judges.
4
Mitchell
also
See Appendix 143 and Legerton v. Chambers supra.
had
a
right
to
See 5 U.S.C. §§ 2104, 2902.
know
if
circuit
clerks
were
5
impersonating circuit judges, and/or issuing “orders” in violation of
6
the clear mandates imposed by 28 U.S.C. § 955 (clerks are prohibited
7
from practicing law) and § 1691 (all court process must exhibit the
8
seal of the Court and the signature of the Clerk).
9
at 28 U.S.C. 1691 means a court order.
The word “process”
See Middleton Paper Co. v.
10
Rock River Paper Co., 19 F. 252 (C.C. W.D. Wisconsin 1884);
11
U.S., 45 F. 531 (C.C. E.D. Tennessee 1891);
12
(DCUS Delaware 1897);
13
W.D. Virginia 1904);
14
In re Simon, 297 F. 942, 34 ALR 1404 (2nd Cir. 1924);
15
v. Tryon, 400 F.2d 598 (9th Cir. 1968);
16
(Bankruptcy D.C. 1989).
17
(h)
Taylor v.
U.S. v. Murphy, 82 F. 893
Leas & McVitty v. Merriman, 132 F. 510 (C.C.
U.S. v. Sharrock, 276 F. 30 (DCUS Montana 1921);
Scanbe Mfg. Co.
Miles v. Gussin, 104 B.R. 553
Similarly, Mitchell objected strenuously when Procter Hug’s
18
name appeared on Ninth Circuit ORDER’s, because a conflict of interest
19
resulted directly from Mitchell’s VERIFIED CRIMINAL COMPLAINT against
20
Mr. Hug in 1997 A.D. for several violations of 18 U.S.C. §§ 3, 1503.
21
In this context, see 18 U.S.C. 4 (creating a legal obligation to
22
report felony federal offenses to a judge of the United States).
23
latter VERIFIED CRIMINAL COMPLAINT was docketed by the Ninth Circuit
24
Clerk as part of Mitchell’s complaint of judicial misconduct against
25
U.S. District Judge John M. Roll, USDC/Tucson, to which that Clerk
26
assigned docket number #96-80380.
27
See Internet URL:
http://www.supremelaw.org/cc/roll/index.htm etc.
Petition for Writ of Certiorari to the Ninth Circuit:
Page 15 of 31
The
1
2.
2
were
3
deprived
4
insulated from interference with his obligation to ignore everything
5
but the merits of a case, and who was free from potential domination
6
by other branches (or agents) of government.
7
253 U.S. 245 (1920) with Lord v. Kelley, 240 F.Supp. 167, 169 (1965).
8
9
The worthy principles recited in Roell et al. v. Withrow supra
consistently
of
(a)
TO
THE
trial
and
systematically
before
an
violated
Article
III
when
district
Mitchell
judge
was
who
was
Compare Evans v. Gore,
Mitchell’s MOTION FOR INTERLOCUTORY JUDGMENT AND CHALLENGE
CONSTITUTIONALITY
OF
AN
ACT
OF
CONGRESS
was
not
properly
10
adjudicated before an Article III district judge.
11
35.
12
“frivolous,” even in the face of serious Congressional doubt as to the
13
constitutionality of the Abrogation Clause in the Rules Enabling Act.
14
See 28 U.S.C. 2072(b).
15
on the DCUS at 60 Stat. 440 (15 U.S.C. 1121);
16
FRCP and of certain coercive Local Rules (like L.R. 73-302(c)(21)),
17
and the applicability of both to the DCUS in this case, still remain
18
open questions without that interlocutory judgment.
19
Instead,
(b)
the
merits
Mitchell’s
CREDENTIALS
of
that
pivotal
See Appendix 19 and
MOTION
were
branded
as
The Lanham Act conferred original jurisdiction
MOTION
STRIKE
22
particular, a conflict of interest arose for Mr. Drozd because that
23
MOTION
24
violating.
25
to produce any certificate of oath properly indorsed upon a license to
26
practice law in the State of California;
27
exhibit
a
adjudicated
ATTORNEYS
Article III district judge either.
State
duly
BY
21
California
never
PLEADINGS
LACKING
a
was
ALL
20
raised
likewise
TO
but, the scope of the
See Appendix 20 and 47.
law
which
Mr.
See CBPC § 6067, and 28 U.S.C. 455.
key
prequisite
before
qualification
Drozd
himself
an
In
was
Mr. Drozd was unable
hence, the record fails to
before
Mr.
Petition for Writ of Certiorari to the Ninth Circuit:
Drozd
was
Page 16 of 31
even
1
eligible to occupy the office of United States magistrate in the first
2
instance.
3
good standing of the State Bar of California, or other Union State).
4
(c)
See 28 U.S.C. 631(b)(1) (minimum of 5 years a member in
Mr. Drozd was completely out of order to recommend that
5
“motions” to dismiss be granted with prejudice, after Mitchell had
6
timely objected not only to the missing credentials of attorneys who
7
attempted to file those “motions,” but also to the legislative court
8
from which those “motions” sought relief.
9
failed to state any claim upon which the USDC could grant any relief.
10
On Dec. 14, 2001 A.D., Mitchell obtained lawful SUBPOENA’s from the
11
District Clerk in Sacramento, commanding those attorneys to produce
12
the certificates of oath, and licenses to practice law, required by
13
CBPC § 6067.
14
No such certificate, or license to practice law, was ever produced!
As such, those “motions”
See Appendix 34, 116, 117, 144 and CBPC §§ 6126, 6127.
15
Accordingly, the Ninth Circuit violated its own clear holding in
16
U.S. v. High Country Broadcasting Co., 3 F.3d 1244 (9th Cir. 1993),
17
because
18
Defendants assumed powers of attorney that did not exist, as a matter
19
of fact.
20
when
21
corporation in court!
22
granted, because they were never properly before the DCUS.
Again, see
23
CBPC
of
24
respectively).
25
(d)
an
the
attorneys’
appearances
on
behalf
of
certain
named
In High Country supra, entry of default judgment was proper
unlicensed
sections
6126
corporate
president
attempted
to
represent
his
Those “motions” should have been stricken, not
and
6127
(misdemeanor
and
contempt
court,
Sanctions for fraud and contempt are now in order.
For the Ninth Circuit to have acquired jurisdiction under
26
the Final Judgments Act at 28 U.S.C. 1291, the instant case had to
27
have originated in the DCUS, and not the USDC.
This conclusion is
Petition for Writ of Certiorari to the Ninth Circuit:
Page 17 of 31
1
easily demonstrated by a simple process of elimination.
2
also 60 Stat. 440.
3
than fully satisfied his burden of proving that there are two (2)
4
distinct classes of federal district courts: one constitutional and
5
the other legislative.
6
elsewhere, that statutes conferring appellate jurisdiction on federal
7
circuit courts should be strictly construed as well.
8
the Ninth Circuit’s rulings in USA v. Makarian at Internet URL:
9
Try it!
See
Mitchell’s thoroughly detailed pleadings have more
Mitchell has consistently argued, here as
For example, see
http://www.supremelaw.org/cc/makarian/index.htm etc.
10
In light of 2 Acts of Congress expressly extending the U.S.
11
Constitution into D.C. and into all federal Territories -- 1871 A.D.
12
and 1873 A.D., respectively -- the practice of treating California as
13
a federal Territory, where the guarantees of the U.S. Constitution are
14
matters of legislative discretion and not enforceable mandates, is a
15
clear violation of the Guarantee Clause in this case.
16
is Mitchell’s fundamental Right.
17
never been litigated before now, to Mitchell’s knowledge.
18
(e)
That Guarantee
These two “extension statutes” have
The only matter over which the legislative USDC had any
19
jurisdiction whatsoever was the issuance and enforcement of SUBPOENA’s
20
for computer activity logs and the identities of subscribers suspected
21
of infringing Mitchell’s exclusive copyrights.
22
Statutes conferring original jurisdiction upon federal district courts
23
must be strictly construed (cites in OPENING BRIEF: Appendix 86).
24
Mitchell
25
discovery of evidence that remains essential to quantify the full
26
extent of actual damages inflicted by the continuing wrongs properly
27
alleged in his Initial COMPLAINT.
was
thus
deprived
of
his
See 17 U.S.C. 512(h).
fundamental
Right
to
compel
See Appendix 1, 2, 3, 4, 16, & 21.
Petition for Writ of Certiorari to the Ninth Circuit:
Page 18 of 31
1
(f)
The Ninth Circuit also erred by denying Mitchell’s MOTION
2
FOR ORDER ENJOINING FURTHER INACTION BY THE REGISTER OF COPYRIGHTS,
3
and by failing to take mandatory judicial notice of the Certificate of
4
Copyright Registration issued by the Register of Copyrights on July
5
23, 2001 A.D., eight (8) days prior to commencement of this lawsuit.
6
See Appendix 80, 107.
7
jurisdiction
8
Initial
9
judicial enforcement of copyrights).
10
over
COMPLAINT
Thus, the DCUS in Sacramento did enjoy original
the
subject
(i.e.
matter
formal
of
COUNT
registration
is
ONE
a
in
Mitchell’s
prerequisite
to
See COUNT ONE in Appendix 1.
Moreover, during this litigation, Mitchell submitted a second
11
application
12
shareware editions of the book at issue here.
13
required fee, the Register of Copyrights has, to date, failed entirely
14
to act on this second application.
15
then did nothing.
16
among modern American government personnel).
17
(g)
for
copyright
registration,
to
register
the
specific
After being paid the
The Register took Mitchell’s fee,
This is theft, pure and simple (a common practice
The purpose of the copyright statutes is not so much to
18
protect the physical thing created, as to protect the author’s rights
19
of publication and reproduction.
20
in view of the character of the property intended to be protected.
21
The property of an author in his intellectual creation is absolute
22
until he voluntarily parts therewith.
23
Werckmeister, 207 U.S. 284, hn. 2, 6 (1907).
The
Circuit
(h)
25
purposes
26
transferred from a permanent storage device to a computer’s random
27
access memory (“RAM”).
copyright
law,
has
See American Tobacco Co. v.
24
of
Ninth
Those statutes should be construed
already
occurs
held
whenever
a
that
“copying,”
computer
program
for
is
Loading copyrighted computer software from a
Petition for Writ of Certiorari to the Ninth Circuit:
Page 19 of 31
1
storage medium, like a hard disk, floppy disk, or read only memory,
2
into the memory of a central processing unit (“CPU”), causes a copy to
3
be made.
4
permission by license, such acts constitute copyright infringements.
5
“... [W]e hold that the loading of software into the RAM creates a
6
copy under the Copyright Act.”
7
v. Peak Computer, Inc., 991 F.2d 511, hn. 2 (9th Cir. 1993).
8
9
In the absence of ownership of the copyright, or express
(i)
17 U.S.C. 101.
See Mai Systems Corp.
With complete approval, the USDC in Utah has cited the
Ninth Circuit’s res judicata in this context:
10
11
12
13
14
15
16
17
When a person browses a website, and by so doing displays the
Handbook, a copy of the Handbook is made in the computer’s random
access memory (RAM), to permit viewing of the material. And in
making a copy, even a temporary one, the person who browsed
infringes the copyright. Citing MAI Systems Corp. supra.
18
That district court also cited the decision in Marobie-FL, Inc.
19
v. National Ass’n of Fire Equip. Distrib., 983 F.Supp. 1167, 1179
20
(USDC/N.D. Ill. 1997) noting that liability for copyright infringement
21
is with the persons who cause the display or distribution of the
22
infringing
23
making a printout, or re-posting a copy of a book on another website,
24
does infringe the author’s copyright.
25
[Intellectual Reserve Inc. v. Utah Lighthouse Ministry, Inc.]
[75 F.Supp.2d 1290 (USDC/Utah 1999)]
(j)
material
The
onto
Ninth
their
Circuit’s
computers.
Additionally,
a
person
See Intellectual Reserve supra.
MEMORANDUM
NOT
FOR
PUBLICATION
26
conflicts with the holding of the Eighth Circuit in Anastasoff v. USA,
27
223 F.3d 898 (2000).
28
Circuit
29
unpublished opinions, expanded the judicial Power beyond the limits
30
set by Article III, by allowing complete discretion to determine which
31
judicial decisions are binding, and which are not binding.
held
that
See Appendix 125.
their
Local
Circuit
In that appeal the Eighth
Rule
#28A(i),
Petition for Writ of Certiorari to the Ninth Circuit:
permitting
Quoting,
Page 20 of 31
1
“Insofar as it limits the precedential effect of our prior decisions,
2
the
Rule
is
3
decisions
in
4
judicial precedents, particularly its own!
5
(k)
therefore
the
unconstitutional.”
instant
case
violated
a
The
Ninth
multitude
Circuit’s
of
standing
Confer at “res judicata”.
Messrs. Drozd, Shubb, Goodwin, Trott, Hug and Kozinski are
6
all paying federal income taxes on their judicial compensation, in
7
violation of the Compensation Clause and the holding of this Court in
8
Evans v. Gore, 253 U.S. 245 (1920).
9
may have changed, the fundamental Law on this point has not changed.
10
Although “judge-made doctrines”
Moreover, these very same gentlemen also appear to be material
11
witnesses
12
certificate from them, when they were first hired into the federal
13
judiciary.
14
U.S.C. 455.
15
seventeen
16
conflict of interest is sufficient to recuse any presiding federal
17
judge.
18
to
the
practice
of
concealing
the
withholding
exemption
See § 3402(n) of the Internal Revenue Code (“IRC”) and 28
The term “withholding exemption certificate” occurs some
(17x)
times
in
IRC
§
3402.
Even
the
appearance
of
a
Compare Lord v. Kelley, 240 F.Supp. 167, 169 (1965).
(l)
The Ninth Circuit’s actions in this case violated numerous
19
other standing decisions of that Circuit Court.
A complete list of
20
such standing decisions is provided in Mitchell’s MOTION FOR REHEARING
21
EN BANC.
22
IGNORES
23
Appendix 126.
24
contains hyperlinks to the case contexts in which Mitchell cited those
25
decisions.
26
speed and accessibility of all documents itemized in the online docket
See heading entitled THE MEMORANDUM DECISION CONTRADICTS OR
NUMEROUS
STANDING
DECISIONS
OF
THIS
COURT
OF
APPEALS
in
The electronic version of that MOTION FOR REHEARING
This Court is encouraged to take full advantage of the
Petition for Writ of Certiorari to the Ninth Circuit:
Page 21 of 31
1
created and maintained by Mitchell on the Internet for this case,
2
using a high-speed “broadband” connection like DSL or cable modem.
3
That list of cases is repeated here as follows:
Tsang v. Kan,
4
173 F.2d 204 (1949);
Agnew v. Compton, 239 F.2d 226 (1956);
Crescent
5
Wharf v. Pillsbury, 259 F.2d 850 (1958);
Drop Dead Co. v. S.C.
6
Johnson & Son, Inc., 326 F.2d 87 (1963);
Roth Greeting Cards v.
7
United Card Co., 429 F.2d 1106 (1970);
8
F.2d 800 (1974);
9
Industries, Inc. v. Alpha Steel, 616 F.2d 440 (1980);
Brennan v. Silvergate, 503
Griffith Co. v. NLRB, 545 F.2d 1194 (1976);
Alpha
Gillespie v.
10
Civiletti, 629 F.2d 637 (1980);
11
1179 (1983);
12
Blue Bell, Inc., 778 F.2d 1352 (1985);
13
793
14
(1986);
15
High Country Broadcasting, 3 F.3d 1244 (1993);
16
Pictures, Ltd., 19 F.3d 479 (1994);
17
Corp., 85 F.3d 407 (1996);
18
F.3d 806 (1997);
19
Brookfield v. West Coast Entertainment, 174 F.3d 1036 (1999);
A&M
20
Records et al. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001);
and
21
Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180 (2001).
22
F.2d
(m)
Nova Stylings, Inc. v. Ladd, 695 F.2d
U.S. v. Woodley, 726 F.2d 1328 (1983);
1034
(1986);
Seiler
v.
Levi Strauss v.
U-Haul Int’l v. Jartran, Inc.,
Lucasfilm,
Ltd.,
808
F.2d
Midler v. Ford Motor Company, 849 F.2d 460 (1988);
1316
U.S. v.
Roley v. New World
Abdul-Jabbar v. General Motors
Wendt v. Host International, Inc., 125
Kodadek v. MTV Networks, Inc., 152 F.3d 1209 (1998);
And, the Ninth Circuit’s actions in this case also violated
23
numerous standing decisions of this Supreme Court, e.g. Mookini v.
24
U.S., 303 U.S. 201 (1938) (term “district courts of the United States”
25
in its historic and proper sense) and Balzac v. Porto Rico, 258 U.S.
26
298 (1922) (the USDC is not a true United States court established
Petition for Writ of Certiorari to the Ninth Circuit:
Page 22 of 31
1
under Article III).
2
all reply BRIEF’s, for a full set of citations in proper context.
3
More
to
the
See also Mitchell’s INFORMAL OPENING BRIEF, and
merits,
legislative
courts
are
not
required
to
4
exercise the Article III guarantees required of constitutional courts.
5
See American Insurance v. 356 Bales of Cotton, 26 U.S. 511, 7 L.Ed.
6
242 (1828) (C.J. Marshall’s seminal ruling);
7
U.S. 235, 242-243 (1850);
8
(1871);
9
Martin, 95 U.S. 90, 98 (1877);
Benner v. Porter, 50
Clinton v. Englebrecht, 80 U.S. 434, 447
Hornbuckle v. Toombs, 85 U.S. 648, 655 (1873);
Good v.
Reynolds v. U.S., 98 U.S. 145, 154
10
(1878);
11
Potomac
12
Commission v. Klesner, 274 U.S. 145 (1927);
13
States, 276 U.S. 311 (1928);
14
438 (1929);
15
U.S. 464 (1930);
Claiborne-Annapolis Ferry Co. v. United States, 285
16
U.S. 382 (1932);
O’Donoghue v. United States, 289 U.S. 516 (1933);
17
Glidden Co. v. Zdanok, 370 U.S. 530 (1962);
18
v. Marathon Pipe Line Co., 458 U.S. 50 (1982).
19
Appeal are Article III federal courts [cites omitted here].
20
The City of Panama, 101 U.S. 453, 460 (1879);
Electric
Power
Co.,
261
U.S.
428
(1923);
Keller v.
Federal
Trade
Swift & Co. v. United
Ex parte Bakelite Corporation, 279 U.S.
Federal Radio Commission v. General Electric Co., 281
and Northern Pipeline Co.
The U.S. Courts of
In Marathon supra, Justice Brennan for the plurality reasoned
21
that
Congress
22
protections in only three limited settings:
23
(2) courts martial, and (3) courts deciding disputes involving public
24
rights that Congress created in the first instance.
Thus, by treating
25
the
creating
26
citizenship
as
27
“broadcast”
into
50
could
States
as
a
create
federal
municipal
those
legislative
Territories
franchise,
States
a
courts
without
Article
III
(1) territorial courts,
and
by
Congress
legislative
could
court
Petition for Writ of Certiorari to the Ninth Circuit:
federal
effectively
that
routinely
Page 23 of 31
1
proceeds without Article III protections!
See the 1866 Civil Rights
2
Act, 14 Stat. 27-30, April 9, 1866 A.D.
In the legislative USDC,
3
those protections are options, not mandates, particularly when the
4
extension statutes supra are also routinely ignored.
5
(n)
Circuit
Judge
Alex
Kozinski
(or
other
qualified
Circuit
6
Judge) owed a duty to Mitchell timely to present to the Chief Justice
7
of this Court a certificate of necessity, justifying designation and
8
temporary
9
Article III Court of International Trade, to perform judicial duties
assignment
of
a
competent
and
qualified
judge
from
the
10
in the constitutional DCUS below.
11
FOR TEMPORARY ASSIGNMENT OF A JUDGE OF THE COURT OF INTERNATIONAL
12
TRADE TO PRESIDE OVER THIS DISTRICT COURT OF THE UNITED STATES.
13
was obviously confused: it was not Mitchell’s intent to convene the
14
Court of International trade;
15
its Article III judges assigned temporarily to the instant case.
16
See Mitchell’s NOTICE AND DEMAND
Drozd
Mitchell merely sought to have one of
The Court of International Trade is an Article III federal court
17
by virtue of explicit language in the statute that created it.
18
In
19
virtue of said standing decisions by this Supreme Court.
20
supra.
21
federal court, nor does it abolish the Article III DCUS which existed
22
for almost 160 years before its enactment (1789 A.D. thru 1948 A.D.)
23
Confer at “Inclusio unius est exclusio alterius” in Black’s Sixth Ed.
24
contrast,
(o)
the
USDC
is
a
legislative,
territorial
§ 251.
tribunal,
by
See Balzac
28 U.S.C. 132 does not identify the USDC as an Article III
Leave to amend would definitely not be futile.
On the
25
contrary, all confirmed deficiencies were minor and can be alleviated
26
with simple additions to Mitchell’s Initial COMPLAINT, e.g. admitting
27
evidence of the copyright registration certificate now issued by the
Petition for Writ of Certiorari to the Ninth Circuit:
Page 24 of 31
1
Register of Copyrights;
2
such as Mitchell’s exclusive rights to reproduction and distribution;
3
and
4
entirely by Mr. Drozd, Mitchell did pay the first application fee for
5
registration of his exclusive copyrights in “The Federal Zone.”
6
the eyes of the Register of Copyrights, surely it would not have been
7
a completed “application” without payment of that fee!
8
9
similar
(p)
minor
citing specific violations of 17 U.S.C. 106,
edits.
Contrary
to
a
cruel
fiction
fabricated
In
When a petitioner appears In Propria Persona, the court
itself should undertake to insure to the litigant that no meritorious
10
case may be lost because of any lack of legal skill.
11
Moreover,
12
stringently
13
(USDC/S.D. Calif. 1957).
14
is
15
allowances to protect Pro Per litigants from inadvertent forfeiture of
16
important Rights because of any lack of formal legal training.
17
Traguth v. Zuck, 710 F.2d 90, 95 (2nd Cir. 1983);
18
F.2d 378, 379 (9th Cir. 1957);
19
20
an
technical
enforced.
obligation
(q)
compliance
The
See
on
U.S.
the
v.
rules
Hough,
of
157
court
F.Supp.
is
not
771,
774
Implicit in the right of self-representation
the
Ninth
with
28 U.S.C. 1654.
part
Circuit
of
any
court
to
make
reasonable
See
Hoffman v. U.S., 244
Darr v. Burford, 339 U.S. 200 (1950).
has
completely
overlooked
the
stated
legislative intent of the Lanham Act at 60 Stat. 443, 15 U.S.C. 1127:
21
22
23
24
25
The intent of this chapter is ... to provide rights and remedies
stipulated by treaties and conventions respecting trademarks,
trade names, and unfair competition entered into between the
United States and foreign nations.
26
In this context, see COUNTS THREE and FOUR in Mitchell’s Initial
27
COMPLAINT, Appendix 1.
28
via
29
Canada,
the
Internet,
Sweden
and
that
“The Federal Zone” traveled so far and wide,
certain
Switzerland.
named
Defendants
After
filing
Petition for Writ of Certiorari to the Ninth Circuit:
are
this
domiciled
lawsuit,
Page 25 of 31
in
a
1
different electronic counterfeit of Mitchell’s book turned up on other
2
computers located in Europe and in South America.
3
(r)
Mitchell
viral
fully
deserves
distribution
of
preliminary
his
book
and
injunctions
its
many
to
halt
4
further
modified
5
derivatives.
6
did not stop when the case was filed on Aug. 1, 2001 A.D.
7
witness retaliation has continued in the form of attempted assault,
8
breaches of contract, peonage, obstruction of justice, obstruction of
9
correspondence and denial-of-service attacks on Mitchell’s website,
The damages from copyright and trademark infringements
Further
10
the Supreme Law Library.
11
motion picture on a videotape entitled “The F Zone,” which plagiarizes
12
verbatim segments from a chapter in Mitchell’s book.
13
for “Federal.”)
14
the
15
University
16
Service Provider (“ISP”), has adopted Mitchell’s recommendations for
17
ISP’s, with their policy concerning links to copyright infringements
18
that remain entrained in the index database of their search engines.
University
of
One named Defendant continues to sell a
(The “F” stands
Counterfeits have since appeared on web servers at
of
Wisconsin
Brazil.
And
and
at
an
Yahoo!,
a
engineering
major
and
college
popular
at
the
Internet
19
In retrospect, there is no question now that agents and employees
20
of the federal government, collaborating with a host of unlicensed
21
attorneys and numerous John Doe’s, have contributed materially to the
22
continuing
23
Mitchell over the span of many years.
wrongs
that
all
named
Defendants
have
inflicted
upon
Let the truth prevail.
24
If fundamental justice means anything in America today, it should
25
guarantee to Mitchell a trial in an Article III federal court before a
26
lawful jury of his peers.
27
must remain inviolate, if the rule of Law is to endure intact.
This is a fundamental Right of his that
28
Petition for Writ of Certiorari to the Ninth Circuit:
Page 26 of 31
1
Final Summation
2
In
light
of
all
the
well
reasoned
and
thoroughly
detailed
3
argumentation provided above, and in all Appendices below, Mitchell
4
urges
5
consider the specific remedies requested in his INFORMAL OPENING BRIEF
6
and in his several REPLY briefs to the Ninth Circuit.
7
those remedies come very close to satisfying completely Mitchell’s
8
educated understanding of “district courts,” judicial precedent and
9
res
10
the
honorable
judicata
under
Justices
pertinent
of
this
American
Supreme
Laws
Court
that
carefully
to
Taken together,
have
never
been
repealed.
11
It is not too difficult to demonstrate the obvious disagreements
12
among many federal judges on the correct meaning of “district courts”:
13
e.g. see U.S. v King supra;
14
(5th Cir. 1954);
15
(D.C. Alaska 1959).
Wells v. U.S., 214 F.2d 380, 382, hn. 2-4
and U.S. v. Marrone, 172 F.Supp. 368, 370, hn. 1-2
16
It is Mitchell’s fondest hope, at this time, that the highest
17
Court in America will view this case as a golden opportunity to issue
18
a far-reaching judicial precedent that will set a bright and shining
19
example for many generations to come -- a monument to truth and to
20
justice
21
struggling to find their way to safe harbors, and home.
in
our
time,
and
a
powerful
beacon
to
weary
22
May the Most High and Living God guide your every step.
23
So be it.
travelers
Amen.
24
25
26
#
#
#
27
Petition for Writ of Certiorari to the Ninth Circuit:
Page 27 of 31
1
Conclusions
2
3
4
This Petition for Writ of Certiorari should be granted.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
Respectfully submitted,
/s/ Paul Andrew Mitchell
Paul Andrew Mitchell, B.A., M.S., Sui Juris
Private Attorney General, Relator and Petitioner
Date:
May 26, 2003 A.D.
(Memorial Day)
All Rights Reserved without Prejudice
Petition for Writ of Certiorari to the Ninth Circuit:
Page 28 of 31
1
2
3
4
Index to Appendices
Please refer to the Table of Contents at Internet URL:
5
http://www.supremelaw.org/cc/aol/index.htm
6
7
Appendix numbers correspond in sequence to entry numbers in that
Table of Contents.
8
9
A hard copy of
that Table of
Contents is reproduced on the
following pages.
10
The suffix “.htm” refers to documents that were saved in an HTML
11
format compatible with most Internet browsers, e.g. the HTML version
12
of this document has a filename of “cert.htm”.
13
The suffix “.doc” refers to documents that were saved in a format
14
that is “native” to Microsoft WORD 2002, e.g. the native version of
15
this document has a filename of “cert.doc”.
16
By using compatible versions of Microsoft WORD, together with the
17
View | Print Layout option in Microsoft Internet Explorer 6.0.2600+,
18
users
19
laser-printed originals, with line numbers generated automatically in
20
the left-hand margin.
can
view
documents
on-screen
exactly
as
they
appear
in
21
This approach will guarantee that all Internet users will be
22
viewing exactly the same copies of all documents now available in the
23
Supreme Law Library at Internet URL:
24
http://www.supremelaw.org/index.htm
etc.
25
26
Thank you.
27
Petition for Writ of Certiorari to the Ninth Circuit:
Page 29 of 31
1
PROOF OF SERVICE
2
I, Paul Andrew Mitchell, Sui Juris, hereby certify, under penalty of
3
perjury, under the laws of the United States of America, without the
4
“United States” (federal government), that I am at least 18 years of
5
age, a Citizen of ONE OF the United States of America, and that I
6
personally served the following document(s):
7
PETITION FOR WRIT OF CERTIORARI
8
by placing one true and correct copy of said document(s) in first
9
class United States Mail, with postage prepaid and properly addressed
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
to the following:
Ropers, Majeski, Kohn & Bentley
(failed to exhibit oaths)
1001 Marshall Street
Redwood City 94063
CALIFORNIA, USA
DeForest Koscelnik Yokitis & Kaplan
(failed to exhibit oath)
3000 Koppers Building
436 Seventh Avenue
Pittsburgh 15219
PENNSYLVANIA, USA
Murphy Austin Adams Schoenfeld LLP Pillsbury Winthrop LLP
(failed to exhibit oaths)
(failed to exhibit oaths)
P.O. Box 1319
400 Capitol Mall, Suite 1700
Sacramento 95812-1319
Sacramento 95814-4419
CALIFORNIA, USA
CALIFORNIA, USA
Curiale Dellaverson Hirschfeld
Kraemer & Sloan, LLP
(failed to exhibit oaths)
727 Sansome Street
San Francisco 94111
CALIFORNIA, USA
Quinn Emanuel Urquhart Oliver
& Hedges, LLP
(failed to exhibit oaths)
201 Sansome Street, 6th Floor
San Francisco 94104
CALIFORNIA, USA
Office of the General Counsel
(failed to exhibit oaths)
University of California
1111 Franklin Street, 8th Floor
Oakland 94607-5200
CALIFORNIA, USA
Paul Southworth
2018 N. New Hampshire Ave.
Los Angeles 90027
CALIFORNIA, USA
Karl Kleinpaste
P.O. Box 1551
Beaver Falls 15010
PENNSYLVANIA, USA
Ram Samudrala
UW Micro Box 357242
Seattle 98195-7242
WASHINGTON STATE, USA
Petition for Writ of Certiorari to the Ninth Circuit:
Page 30 of 31
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
Laskin & Guenard
(failed to exhibit oath)
1810 South Street
Sacramento 95814
CALIFORNIA, USA
Rivkin Radler, LLP
(failed to exhibit oaths)
1330 N. Dutton Ave., #200
Santa Rosa 95401-4646
CALIFORNIA, USA
Harvey Siskind Jacobs LLP
(failed to exhibit oaths)
3 Embarcadero Center, Ste. 1060
San Francisco 94111
CALIFORNIA, USA
Office of Solicitor General
950 Pennsylvania Ave., N.W.
Room 5614
Washington 20530-0001
DISTRICT OF COLUMBIA, USA
Register of Copyrights
Library of Congress
101 Independence Avenue, S.E.
Washington 20559-6000
DISTRICT OF COLUMBIA, USA
Steinhart & Falconer LLP
(failed to exhibit oaths)
333 Market Street, 32nd Floor
San Francisco 94105-2150
CALIFORNIA, USA
Matheny Sears Linkert & Long LLP
(failed to exhibit oaths)
P.O. Box 13711
Sacramento 95853-4711
CALIFORNIA, USA
Latham & Watkins
(failed to exhibit oaths)
633 West Fifth St., Ste. 4000
Los Angeles 90071-2007
CALIFORNIA, USA
Courtesy copies:
Clerk of Court
Attention: Jack L. Wagner
501 “I” Street, Suite 4-200
Sacramento 95814-2322
CALIFORNIA, USA
Clerk of Court
Ninth Circuit Court of Appeals
P.O. Box 193939
San Francisco 94119-3939
CALIFORNIA, USA
Dr. John C. Alden, M.D.
Eye Surgeon and Trustee
350 – 30th Street
Suite 444
Oakland 94609-3426
CALIFORNIA, USA
Hon. Norman L. Vroman
District Attorney
County of Mendocino
100 North State Street
Ukiah 95482
CALIFORNIA, USA
[Please see USPS Publication #221 for “addressing” instructions.]
Dated:
May 27, 2003 A.D.
Signed:
/s/ Paul Andrew Mitchell
___________________________________________________________
Printed: Paul Andrew Mitchell, Relator/Petitioner In Propria Persona
Petition for Writ of Certiorari to the Ninth Circuit:
Page 31 of 31