MEMO
TO: Judge Alex Kozinski (supervising)
Ninth Circuit Court of Appeals
P.O. Box 91510
Pasadena 91109-1510
CALIFORNIA, USA
FROM: Paul Andrew Mitchell
c/o MBE PMB #332
501 West Broadway, Suite “A”
San Diego 92101
CALIFORNIA,USA
DATE: January 12, 2003 A.D.
SUBJECT: federal magistrates ultra vires and coram non judice
Greetings Judge Kozinski:
In the course of doing additional research into the Federal Magistrates Act (“FMA”) and its applicability to my appeal now before the Ninth Circuit, I was delighted to come across your concurring opinion inReynaga v. Cammisa, 971 F.2d 414 (9th Cir. 1992). In the space of only one paragraph, you correctly identified procedural quagmires, ultra vires orders, and limited access to legal materials and to the clerk’s office. Each of these has now occurred in my case, in one way or another.
I have taken the liberty of itemizing the key holdings in the Ninth Circuit’s FMA opinions, dating back to the year 1978. As soon as sufficient funds become available, I plan to discuss these cases in a proper MEMORANDUM OF LAW that will be served on all parties.
As you might imagine, my postage expenses are approaching the stratosphere right now, and I have been skipping a few meals to keep the mail moving and arriving on time. Meanwhile, this MEMO to you will be mailed to a much smaller list of recipients, to conserve funds.
In anticipation of that MEMORANDUM OF LAW, which should be forthcoming shortly, permit me to quote each key holding in chronological order, followed by my comments and their relevance to my appeal. Here goes:
... [criminal] defendant did not request additional time to formulate objections [to magistrate’s recommendation] nor object to the procedure followed ....
[U.S. v. Barney, 568 F.2d 134, hn. 6 (9th Cir. 1978)]
Mr. Drozd and Mr. Shubb have both proven their willingness to remain entirely unfair by attempting to sustain the obvious fiction that my objections were not timely. That crude fiction is belied by my firstNOTICE OF REFUSAL FOR CAUSE dated November 3, 2001, thru and including my COMPLAINT OF JUDICIAL MISCONDUCT signed on January 11, 2002.
I also do not think it fair at all to fault me for not having enough money to post that COMPLAINT on January 11, 2002 as well; I did serve it via U.S. Mail as soon as I was able. At that time, I was also recovering from a serious bacterial infection that required a doctor’s supervision, and antibiotics. Mr. Drozd and Mr. Shubb don’t seem to care about these minor details, however.
Moreover, my two letters to the District Clerk, dated January 14 and January 22, 2002, should leave no doubt that I responded to the findings and recommendations as quickly as humanly possible, given the unexplained delay in the delivery of my incoming U.S. Mail.
Clearly, by emphasizing my decision not to consent to civil jurisdiction by any magistrates, I was quite obviously objecting to the procedures that Mr. Drozd attempted to follow. In summary, I did request additional time and I did object to the procedures being followed.
The district court must review the proceedings of a civil trial conducted by a magistrate before it can enter final judgment.
[Small v. Olympic Prefabricators, Inc.]
[588 F.2d 287, hn. 3 (9th Cir. 1978)]
I do realize that we have not even reached trial and, strictly speaking, Mr. Drozd did not enter final judgment. However, this holding in Small is instructive because it mandates that the district court must review the proceedings before final judgment can be entered.
Which “district court” would that be? Answer: the one on which Congress conferred original jurisdiction ‑‑ in the Lanham Act.
I continue to argue, for excellent and well founded reasons, that the District Court of the United States (“DCUS”) has not reviewed any of the proceedings that occurred prior to the appeal. And, the Final Judgments Act forces a conclusion that my case did originate in that Article III court and not in the Article IV USDC. Just use process of elimination on 28 U.S.C. 1291, and compare with ORDER captions!
Please recall now that I did petition you timely for a CERTIFICATE OF NECESSITY, because the record now before us proves that the Article III DCUS remains entirely vacant, for reasons that are likewise fully documented in that record.
Magistrates are not Article III judges, but Congress has nonetheless delegated certain judge-like functions to magistrates.
[U.S. v. Saunders, 641 F.2d 659, hn. 2 (9th Cir. 1980)]
Indeed, although this holding may appear unnecessarily obvious to anyone involved in federal litigation, it needed to be said.
Moreover, you may remember that I cited this particular case in Gilbertson’s OPENING BRIEF to the Eighth Circuit. At the time I mailed your copy, I was once again limited by a severe lack of funds.
I do still intend to serve that seminal BRIEF on all interested parties in the AOL case. Please note that the Internet URL to that BRIEF was listed in my FIRST SUPPLEMENT TO NOTICE AND DEMAND FOR CERTIFICATE OF NECESSITY, executed on January 14, 2002.
As long as the district court engages in a de novo review, statutory and constitutional objections to trial to a magistrate by the consent of the parties are removed; reference to the magistrate must be only for the purpose of aiding the district judge in the exercise of his decision-making authority and the parties must be given an opportunity to submit objections to the district judge, and the judge must make the de novo review. 28 U.S.C. 636(b)(3).
[Coolidge v. The Schooner California]
[637 F.2d 1321, hn. 1 (9th Cir. 1981)]
Here, we find the controlling term “reference.” Once again, I am justified in maintaining that my case was never referred to a magistrate by a proper ORDER OF REFERENCE issued by the DCUS. My objections were always submitted to the DCUS, but no Article III court has yet reviewed those objections ‑‑ de novo or otherwise.
In this context, it is useful here to merge the analysis I did in my recent letters to Chief Judge Schroeder (Dec. 27, 2002) and to the District Clerk (Dec. 30, 2002). General Order 345 obviously violates the Local Rules and the FMA and, to reiterate an all important point, it did not issue from the DCUS either. More discussion will follow below on the subject of “General Orders”.
Where no review of the magistrate’s findings and conclusions was made by the district judge and the district judge’s role in the proceedings was simply pro forma, the procedures did not satisfy the requirements of the Magistrates Act. 28 U.S.C. 636.
[Coolidge v. The Schooner California]
[637 F.2d 1321, hn. 2 (9th Cir. 1981)]
Thus, there has been no review of the findings and recommendations by any Article III district judge. And, the summary fashion with which Mr. Shubb dispatched my case suggests that his role was likewise pro forma, at best, his protestations to the contrary notwithstanding.
On this point, the record clearly shows that neither Mr. Shubb nor Mr. Drozd was ever commissioned by the President of the United States of America to preside on the Article III DCUS. Such inferences assume facts which are simply not in evidence, and they should be in evidence in my case, because I have made every effort to discover that evidence, using the Freedom of Information Act (“FOIA”).
See my proper and lawful FOIA requests for their missing commissions; the legal custodian ‑‑ DOJ ‑‑ responded with written confirmation that those commissions do not exist! If the President did commission Mr.Shubb to any office at all, the latter was commissioned to preside on the Article IV USDC, but that commission is nowhere to be found either. Enter the quagmire primeval.
The district court was, in effect, putting in motion the machinery to set aside felony convictions that had been thoroughly reviewed in the State court system. To do so without strict compliance with the statutory requirement of a de novo determination was a serious breach of the etiquette that must prevail in the federal system if the sovereignty of the separate States is to be accorded its proper respect.
[Moran v. Morris, 665 F.2d 900, hn. 2 (9th Cir. 1981)]
I am very impressed by this holding, in part because it is evidence that the Ninth Circuit did, at one time, do justice to the Tenth Amendment. I wish the same were also true today.
In this context, I believe I have been entirely correct to raise section 6067 of the California Business and Professions Code. In pari materia with the McDade Act at 28 U.S.C. 530B, it is fair to say that Congress does endorse the principle that federal government personnel must obey State laws. See also 28 U.S.C. 631(b)(1).
To argue anything short of that principle is to encourage lawless anarchy. Yes, in softer language, State sovereignty deserves our respect, perhaps now more than ever before.
If the requirements of the statute authorizing magistrates to exercise plenary civil jurisdiction, including entry of final judgment, when so designated by the district courts in which they serve and at the consent of the parties are met, final judgment entered by the magistrate is directly appealable to the Court of Appeals without intervening review by the district judge.
[Alaniz v. California Procesors, Inc.]
[690 F.2d 717, hn. 2 (9th Cir. 1982)]
This case is worthy of note, in part because it is quoted 7 years later by the Ninth Circuit (see San Vicente infra).
I argue that Mr. Drozd attempted ultra vires to exercise plenary jurisdiction, particularly when he attempted to “deep six” my MOTION FOR INTERLOCUTORY JUDGMENT and also my MOTION TO STRIKE ALL PLEADINGS BY ATTORNEYS LACKING CREDENTIALS. Also, the consent of the parties is mentioned once again, with nagging repetition.
And, of course, the actions of Mr. Drozd were not directly appealable to the Ninth Circuit; as such, those actions speak volumes about his usurpation of jurisdiction coram non judice. If and when he got into a serious bind, he played his “frivolous” card, a term which Mr. Shubb also used to sweep a host of fundamental constitutional issues right under the rug (or out the Windows, depending on your metaphor).
For purposes of determining whether magistrates may exercise plenary jurisdiction, including entry of final judgment, when so designated by the district courts in which they serve and at the consent of the parties, the scope of authority to which the parties consented is the appropriate means of determining whether a magistrate acted pursuant to the authority granted to him, and is preferable to a mechanical test such as the date the magistrate assumed jurisdiction over the case.
[Alaniz v. California Procesors, Inc.]
[690 F.2d 717, hn. 3 (9th Cir. 1982)]
Notice “consent of the parties” once again, and “scope of authority to which the parties consented” immediately after that. Let me put it bluntly: the USDC enforces its Local Rules by forcing magistrates onto all Pro Per litigants, even if those litigants do decline to consent to civil jurisdiction by any federal magistrates, even if Local Rules do violate the U.S. Constitution, even if Local Rules do violate federal statutes, even if Local Rules do violate General Orders, and even if General Orders do violate Local Rules. Talk about legislative courts ... whew!
As such, a mechanical test is the rule, contrary to this Ninth Circuit holding. Here’s the rule: if the Plaintiff is Pro Per and the case is politically “hot”, then send in a magistrate to obstruct the case. A territorial judge will then provide all necessary reinforcements.
A clear and unambiguous expression of consent is required to vest a magistrate with plenary civil jurisdiction, including entry of final judgment when a magistrate is designated by the district court.
[Alaniz v. California Procesors, Inc.]
[690 F.2d 717, hn. 4 (9th Cir. 1982)]
Now we encounter some important language further to qualify the required consent of all litigants. Consent to plenary civil jurisdiction by a magistrate must be “clear and unambiguous”. As we shall soon see, this language is reinforced in later holdings by the Ninth Circuit on this very same point.
Even assuming that a magistrate was specially designated to exercise plenary civil jurisdiction, including entry of final judgment, there was no clear and unambiguous statement that the parties consented to that broad authority.
[Alaniz v. California Procesors, Inc.]
[690 F.2d 717, hn. 5 (9th Cir. 1982)]
Now the question gets even more interesting, in my opinion. Here, we are confronted with the terms “special designation”, but without the benefit of defining those terms. Nevertheless, whatever that might be, it is still not possible for a magistrate to enjoy that broad authority called “plenary civil jurisdiction” without a clear and unambiguous statement that all parties consented (read “all parties”). In my case, no parties consented! Zero. None whatsoever.
Where a magistrate is designated to hear a discovery motion, “[a] judge of the court may reconsider any pretrial matter ... where it has been shown that the magistrate’s order is clearly erroneous or contrary to law.” 28 U.S.C. 636(b)(1)(A).
[Rockwell Int’l, Inc. v. Pos-A-Traction Industries, Inc.]
[712 F.2d 1324, hn. 1 (9th Cir. 1983)]
Now we reach an important procedural threshold. Beginning with my first refusal on November 3, 2001, I made a point of objecting timely to Mr. Drozd’s specious “orders” because they were clearly erroneous andcontrary to law ‑‑ the law of jurisdiction, in particular.
Did my MOTION FOR RECONSIDERATION receive anything of the kind of deliberate adjudication it deserved? I say, “No way!”
Realizing that fair play had been violated, Mr. Shubb found it necessary to address the merits of my numerous objections with the “frivolous” card, once again, this time by writing in a footnote: “Plaintiff raises a number of frivolous objections which do not merit discussion.” See ORDER dated February 22, 2002, page 2.
Where do these people learn to play poker, anyway, in a barn?
Consent is thus requisite for jurisdiction. See Pacemaker etc., 725 F.2d 537, 541-543. ... [w]e have held that a clear and unambiguous manifestation of the parties’ consent to the magistrate’s exercise of jurisdiction is required [quoting Alaniz supra at 720].
[In Re San Vicente Medical Partners Ltd.]
[865 F.2d 1128, hn. 1 (9th Cir. 1989)]
As I have already explained in my recent MEMO’s to Chief Judge Schroeder and to the District Clerk, the Pacemaker case is not only consistent with all the other holdings discussed here; it is also quite controlling in the context of the present appeal. Without repeating the details, allow me to itemize the pertinent Pacemaker headnotes: 2, 3, 4, 5, 6, 8, 16, 19, 20, 21, 22.
And, quite to my surprise, Judge Schroeder dissented in Pacemaker! Quoting Justice Brennan, Congress can create federal legislative courts without Article III protections in only three limited settings: (1)territorial courts, (2) courts martial, and (3) courts deciding disputes involving public rights that Congress created in the first instance. Did Congress create the 1866 Civil Rights Act? Why yes!
Wow! Go back and re-read those three exceptions, and focus on the “territorial” imperative: Congress can create legislative courts without Article III protections when those courts are situated inside thefederal territories. My theory is now confirmed: the USDC is a legislative tribunal situated inside the 50 States, in order to perpetrate a legislative democracy throughout those 50 States. Thus, Mr. Drozdand Mr. Shubb are conspiring to violate the Guarantee Clause and the Seventh Amendment, both fundamental Rights of mine.
Downes Doctrine, up parascope (and hide the sputnik, please)!
It gets worse. Judge Schroeder goes on to explain that the Federal Magistrates Act was motivated by Congressional intent to foist economic coercion upon litigants. The Senate Report admits that its intent was to induce the poor to choose magistrates. And, the House Report admits that cases not requiring sophisticated legal knowledge should be given to magistrates.
Does anyone in their right mind really think that my case against AOL and 128 other named defendants, “only” 20 of whom are major American universities, does not require sophisticated legal knowledge? Is this the real reason why it was given to Mr. Drozd? One casual glance at Exhibits “A” thru “L” alone should convince anyone that this case is not one for the county dog catcher, or a bust on lover’s lane.
The district court is in an “appellate” role when reviewing a magistrate’s findings and recommendations, and its function is to correct those findings made by the magistrate when a litigant has identified a possible error.
[U.S. v. Remsing, 874 F.2d 614, hn. 1 (9th Cir. 1989)]
Did Mr. Shubb do anything to correct the numerous errors made by Mr. Drozd? Answer: No! What ever happened to Exhibit A‑1, anyway? Answer: It too was swept under the rug (or out the Windows) along with a host of other “frivolities.” Does the USDC care one bit about the shareware terms and conditions? Answer: No (again). Hey, pal, socialism is about state confiscation of private property? Didn’t you getthat when you studied political science at UCLA and at UCI? It’s Plank Number One in the Communist Manifesto, as in primary first place priority, duuh!
When a party objects to a magistrate’s factual findings based on testimony, the district court must clearly indicate that it is conducting a de novo determination rather than a review under a clearly erroneous standard.
[U.S. v. Remsing, 874 F.2d 614, hn. 7 (9th Cir. 1989)]
There’s another key term: “testimony.” Everyone and his uncle seems to have overlooked the fact that my pleadings have all been verified under penalty of perjury. As such, they are as admissible as any federal tax return. Did Mr. Shubb clearly indicate that he was conducting a de novo determination? Answer: No, unless of course we are inclined to agree that the frivolity card suffices for adequate de novoreview. Mr. Shubb could not play his ace in the hole, because he did not have one.
Failure of the parties to file timely objections to a magistrate’s report relieved the trial court only of its burden to give de novo review to factual findings, and did not relieve the trial court of its obligation to review de novo the conclusions of law.
[Barilla v. Ervin, 886 F.2d 1514, hn. 1 (9th Cir. 1989)]
Even assuming that my objections were not timely, and even assuming that the Local Rules are binding without the interlocutory judgment I did timely request, and even assuming that the Abrogation Clause in theRules Enabling Act is constitutional, and even assuming that the FRCP does bind the DCUS contrary to the strict construction rule, nevertheless the Ninth Circuit maintains that the trial court is stillobligated to review de novo every conclusion of law.
Has Mr. Shubb taken leave of his senses? I confront him squarely on this point, because Mr. Drozd agreed that 60 Stat. 440 was, indeed, the correct citation to the Lanham Act statute which confers original jurisdiction upon the DCUS to litigate my COUNT TWO.
De novo appellate review of a district court’s order rejecting a federal constitutional challenge to a State election provision in a State Constitution was not waived by a failure to file objections to the magistrate’s report.
[Barilla v. Ervin, 886 F.2d 1514, hn. 2 (9th Cir. 1989)]
At long last, we reach a constitutional challenge. Notice that de novo appellate review of a constitutional challenge was not waived by a failure to file objections to a magistrate’s report. This is a very pivotal point, as I have already stressed in my MEMO to Chief Judge Schroeder. Here, the Ninth Circuit must now confront the fact that ‑‑ with or without objections to a magistrate’s report ‑‑ it must conductde novo appellate review of a litigant’s constitutional challenge.
Has this happened here? Answer: No, and Circuit Courts are Art. III!
The constitutionality of the Rules Enabling Act, and of the Act of June 25, 1948, were properly and timely challenged. The Circuit Clerk’s staff provided specific instructions for notifying the Clerk’s Office of its obligations in this regard. I dutifully filed and served the appropriate motion. I notified the Solicitor General myself, later inviting that Office to intervene formally.
Has either court ruled on the constitutionality of either Act? Answer: No! And Circuit Courts are Article III.
Well, I must be right over the target, because the flak is sure getting heavy. Wouldn’t you agree?
The Federal Magistrates Act did not authorize a magistrate to assign priorities among a judgment debtor’s creditors, where no individual district judge designated the magistrate to exercise jurisdiction, and the parties did not consent to the magistrate’s authority.
[Columbia Record Productions v. Hot Wax Records]
[966 F.2d 515, hn. 1 (9th Cir. 1992)]
Almost as if the world has forgotten, here the Ninth Circuit repeats ad nauseam the same, identical themes: a magistrate must be properly designated and the parties must consent. No surprises here, just more of the same. The consistency is notable, and admirable.
Where the parties did not consent to have a magistrate “determine” the matter, the magistrate did not have the authority to enter an order that purported to stay a prisoner’s § 1983 action; imposition of the stay until the prisoner exhausted his State remedies effectively denied the prisoner’s request for an injunction, and essentially amounted to an involuntary dismissal of the action.
[Reynaga v. Cammisa, 971 F.2d 414, hn. 2 (9th Cir. 1992)]
Now we are getting feverishly close to the specific legal merits of my Initial COMPLAINT. That Initial COMPLAINT petitioned the DCUS for declaratory and injunctive relief, pursuant to specific authorities found in the federal Copyright Act, as amended in 1998.
It does not require a rocket scientist to correlate this holding to corresponding points now raised in the record, i.e. denial of my MOTION FOR INTERLOCUTORY JUDGMENT, my MOTION TO STRIKE ALL PLEADINGS BY ATTORNEYS LACKING CREDENTIALS and every other motion essentially amounted to an involuntary dismissal of the entire action. Mr. Drozd did not have the authority to issue dispositive rulings on these motions. And, the overall effect was that I have been denied my request for preliminary injunctions ‑‑ to put a stop to a widespread and continuing wrong that continues right up to the present day.
And, the cases cited in my INFORMAL OPENING BRIEF have already held that copyright infringement is often a continuing wrong that justifies tolling the statute of limitations! See Taylor v. Meirick.
Although a magistrate’s orders staying a prisoner’s pro se § 1983 action was beyond the magistrate’s authority and thus was not a “final order” for appeal purposes, the Court of Appeals could treat the prisoner’s appeal from a stay as a petition for writ of mandamus or prohibition where the lower court had exceeded its jurisdiction, particularly where it appeared that it would be difficult for the pro se litigant to appeal the magistrate’s ultra vires order. 28 U.S.C. 1651; 42 U.S.C. 1983.
[Reynaga v. Cammisa, 971 F.2d 414, hn. 3 (9th Cir. 1992)]
Here, the Ninth Circuit is effectively endorsing my use of the term “ultra vires” in proper context ‑‑ where the lower court exceeded its jurisdiction ‑‑ particularly when it would be difficult for a pro selitigant to appeal an ultra vires order. When is it not difficult for a pro se litigant to appeal an ultra vires order, I ask you, given the obvious prejudice that Local Rules already exhibit towards Pro Perlitigants?
Would it not be difficult for a Pro Per litigant to appeal an ultra vires order, immediately after he was forced to make an emergency 911 telephone call during a near miss lunge at his cranium by an angry 350 lb. gorilla? immediately after he was forced to work outrageous hours on 5 major appellate cases, only to discover that service of the SUMMONS in his own federal case was being obstructed by incompetents, then to be thrown into the street with enough money for one week’s lodging? with a badly sprained right knee that prevented walking?
Of course, the CRIMINAL COMPLAINT required by 18 U.S.C. 4 was summarily “stricken” by Mr. Drozd. So much for judicial notice, eh?
What I also find to be enormously challenging, at this juncture, is the obvious extreme to which the Ninth Circuit has gone here to preserve a litigant’s civil rights claim under federal municipal laws.
Has the Ninth Circuit exerted equal protection of our national laws when a Citizen of California is summarily denied standing to prosecute violations of 18 U.S.C. 241, 242, 1512 and 1513? even when he has expressly reserved his fundamental Right to petition for leave to prosecute? and even when the U.S. Supreme Court encourages private Citizens to prosecute rackets? Didn’t Congress elevate criminal copyright infringement to the level of a RICO predicate act in 1996?
What gives here, anyway? Answer: Genocide against State Citizens, that’s what! That genocide is sponsored and enforced by the United States District Court for the Eastern District of California.
The magistrate’s ultra vires order created a procedural quagmire too deep for someone in petitioner’s position to escape, i.e. access to legal materials and to the clerk’s office was limited.
[Reynaga v. Cammisa, 971 F.2d 414 (9th Cir. 1992)]
[Judge Alex Kozinski concurring]
At last, a breath of fresh air. As my money was running out fast, in Rancho Cordova hotels charging $75.00 per night, I urgently telephoned every name in my address book, fervently begging for housing assistance. During Thanksgiving and Christmas holidays, it’s amazing how selfish people can become.
The only housing I could find was in a run-down shack at the end of dirt roads some 30 miles east of Garberville, in northern California. A gasoline generator was the only electricity available for computing and printing; for heat, an old wood stove was there to burn my fanny.
Fearing more imminent retaliation, I requested that incoming mail be routed through forwarding agents. It is any wonder, then, that the report by Mr. Drozd did not arrive within standard operating deadlines? I remain convinced that a competent and qualified jury needs to hear this entire story and, when they do, I fully expect that their heads are going to hit the ceiling ‑‑ with outrage.
Yes, indeed, 30 miles east of Garberville, access to legal materials and to the clerk’s office was limited, particularly when newly fallen snow had turned those dirt roads into a quagmire of slippery slush. And that’s the understatement of the century!
Where the record contained no written consent by the parties to have a magistrate conduct proceedings in a civil case, the magistrate had no jurisdiction to hear the case, and the resulting judgment was a nullity.
[Aldrich v. Bowen, 130 F.3d 1364, hn. 1 (9th Cir. 1997)]
The resulting judgment was a nullity. I now argue with conviction that all of Mr. Drozd’s actions were legal nullities of the worst kind.
Consent of the parties to a magistrate’s authority must be clear and unambiguous, and explicit; consent will not be inferred from the silence or from the conduct of the parties.
[Nasca v. Peoplesoft, 160 F.3d 578, hn. 1 (9th Cir. 1998)]
Here, the Ninth Circuit addresses the situation when consent to a magistrate has not been clear and unambiguous. It is now standing case law in this Circuit that consent to a magistrate will not be inferred either from the silence of the parties, or from the conduct of the parties.
Thus, absent consent that is expressed in clear and unambiguous terms, a magistrate is barred from exercising civil jurisdiction. Again, this holding merely reinforces the policies that have already been well decided, and well established, by all prior Ninth Circuit precedents already cited above.
Accordingly, because this matter of consent was properly and timely raised in my COMPLAINT OF JUDICIAL MISCONDUCT against Mr. Drozd, and also in my VERIFIED CRIMINAL COMPLAINT against him for practicing law from the bench, in violation of 28 U.S.C. 454, it is a blatant act of gross injustice to pretend that I did not object timely to any actions of Mr. Drozd, particularly his findings and recommendations.
More to the point here, Mr. Procter Hug appears to have exploited this case to retaliate against me, once again, by stretching timeliness to fictitiously absurd dimensions. Never mind that I have alreadycharged Mr. Hug for his complicity in the criminal conspiracy which I witnessed in the United States District Court in Tucson, Arizona, where U.S. District Judge John M. Roll agreed that the USDC was not the proper forum to adjudicate my FOIA request for his credentials. That can only be true because the USDC is not an Article III court. See 5 U.S.C. 552(a)(4)(B).
General orders from the district court that allow the court to infer consent to a magistrate’s authority from a failure to object are insufficient to manifest consent.
[Nasca v. Peoplesoft, 160 F.3d 578, hn. 2 (9th Cir. 1998)]
Now we are getting down to some polished brass tacks. Please recall my discussion of General Order 345 in my MEMO to Chief Judge Schroeder. Here, the Ninth Circuit is holding true to its well established policy: even a General Order cannot overcome the lack of clear and unambiguous consent. On the basis of this one holding, General Order 345 appears to be destined for the scrap heap.
Consent to a magistrate’s authority may not be inferred from the conduct of the parties, even where that conduct, or lack of conduct, may have been invited by a general order of the district court.
[Nasca v. Peoplesoft, 160 F.3d 578, hn. 3 (9th Cir. 1998)]
More of the same here. Consent to a magistrate may not be inferred even if a General Order might invite such a conclusion.
Local district court rules, under which a failure to object to a magistrate’s jurisdiction was deemed to be a waiver of the right to an Article III judge, were invalid and thus not effective to confer authority upon the magistrate in the absence of express consent by all parties, since the local rules were inconsistent with the statute and with the federal civil procedure rules governing the appointment and authority of magistrates.
[Hajek v. Burlington Northern R.R. Co.]
[186 F.3d 1105, hn. 9 (9th Cir. 1999)]
And, Local Rules are also invalid if they equate failure to object to a magistrate, with the waiver of one’s right to an Article III judge. As I have already stated in my recent MEMO to the District Clerk, a Local Rule is likewise invalid if it is inconsistent with the underlying statutory authority and with the rules governing the appointment and authority of magistrates. Along with General Order 345, the USDC’sLocal Rule referring all Pro Per cases to magistrates also appears to be headed straight for the scrap heap of history.
A magistrate has authority to enter a final judgment only where all parties to the litigation have consented to the magistrate’s jurisdiction, and such consent must be explicit, clear and unambiguous and will not be inferred from the silence or from the conduct of the parties.
[Holbert v. Idaho Power Company]
[195 F.3d 452, hn. 1 (9th Cir. 1999)]
There are no surprises here, except to say that the year 1999 is like yesterday in federal litigation history. I emphasize that the Ninth Circuit now recognizes all parties to the litigation must consent to a magistrate’s jurisdiction. To be valid, that consent must be explicit, clear and unambiguous. Finally, that consent cannot be inferred from the silence of the parties, nor can it be inferred from the conduct of the parties. Mr. Drozd should have known about this Ninth Circuit policy. I have certainly not been silent on this point.
The magistrate acted without jurisdiction in purporting to enter a final, appealable judgment, and the magistrate’s lack of jurisdiction a fortiori deprived the Court of Appeals of appellate jurisdiction, where the file failed to disclose an explicit, clear and unambiguous consent by the defendant to the jurisdiction of the magistrate, nor did the defendant do so in the manner required by statute and by rule.
[Holbert v. Idaho Power Company]
[195 F.3d 452, hn. 2 (9th Cir. 1999)]
Perhaps it is appropriate here to consider my offer to prove that numerous adverse substantive consequences have, indeed, already occurred as a direct result of actions taken by Mr. Drozd and by Mr. Shubb, acting jointly and severally. Has my fundamental Right to trial by jury been preserved inviolate? Obvious not!
Consider for the moment the one issue of maximum pre-judgment interest allowable under California State laws. Using the SUMMARY OF DAMAGES from the Initial COMPLAINT, a simple interest rate of seven percent (7%) per annum yields a monthly interest amount equal to $15,288,000.00 (fifteen million, two hundred eighty-eight thousand).
Seventeen (17) months have now passed since that Initial COMPLAINT was first filed on August 1, 2001 A.D. Because simple interest cannot be compounded, California State law allows me to add 17 months of simple interest for a current total of $259,896,000.00 in interest charges alone ($15,288,000 x 17).
Add to these numbers the amounts to be derived from imposing sanctions on all attorneys who attempted to appear without certificates of oath properly indorsed upon their licenses to pratice law, and who also failed to answer proper and lawful SUBPOENA’s for those licenses and for their clients’ computer activity logs and the identities of their clients’ subscribers suspected of infringing my exclusive copyrights.
Is it really $50,000 per day per attorney, since March 15, 2002 A.D.?
These are certainly interesting times, wouldn’t you agree?
Sincerely yours,
/s/ Paul Andrew Mitchell
Private Attorney General and Plaintiff/Appellant
copies: Circuit Clerk docket #02-89005 (5x)
District Clerk, Sacramento (3x)
Chief Judge Mary M. Schroeder, Ninth Circuit, S.F.
Justice Sandra Day O’Connor, U.S. Supreme Court
Dr. John C. Alden, M.D., eyewitness
Attachments:
(1) List of Plaintiff’s Timely Objections to Errors by Dale A. Drozd,
in chronological order
(2) TRANSMITTAL LETTER to Judge Alex Kozinski, Ninth Circuit,
Dec. 18, 2001 A.D.
(3) Letter to District Clerk in re request to re-schedule,
Jan. 14, 2002 A.D., with 2 copies to William B. Shubb
(see Points (1), (3), (4) and (5), in particular)
(4) MEMO to District Clerk in re FINDINGS AND RECOMMENDATIONS,
Jan. 22, 2002 A.D.
(5) MEMO to District Clerk in re missing Consent Forms,
Feb. 11, 2002 A.D.
to Errors by Mr. Dale A. Drozd
Date Objection
------------- ----------------------------------------------------
Nov. 03, 2001 NOTICE OF REFUSAL FOR CAUSE AND OF
(magistrates are not Article III judges)
Nov. 28, 2001 NOTICE AND DEMAND FOR TEMPORARY ASSIGNMENT OF A
(testifying as to vacancy in Article III court)
Nov. 30, 2001 SECOND NOTICE OF REFUSAL FOR CAUSE, BY AFFIDAVIT
(no consent by Plaintiff to magistrate)
(see Miranda v. Arizona, 384 U.S. 436 (1966))
in re Nov. 28 Petition for Certificate of Necessity
pursuant to 28 U.S.C. 372(c)
Jan. 14, 2002 FIRST SUPPLEMENT TO NOTICE AND DEMAND FOR
CERTIFICATE OF NECESSITY (incorporating Dec. 18 letter
and citing Internet URL to Gilbertson’s OPENING BRIEF)
Jan. 15, 2002 FOIA Request for Presidential Commissions
(DOJ is legal custodian)
Jan. 20, 2002 MOTION TO STRIKE FINDINGS AND RECOMMENDATIONS, PART I
(fully detailed objections by Plaintiff)
Jan. 22, 2002 MEMO to District Clerk in re mail delays (attached)
Jan. 30, 2002 MOTION FOR RECONSIDERATION OF USDC’S ORDER
Jan. 31, 2002 MOTION TO STRIKE FINDINGS AND RECOMMENDATIONS, PART II
Jan. 31, 2002 MOTION TO STRIKE FINDINGS AND RECOMMENDATIONS, PART III
Feb. 04, 2002 FOIA Appeal for Presidential Commissions
Feb. 11, 2002 MEMO to District Clerk in re consent forms (attached)
TO: Hon. Alex Kozinski, Judge
Ninth Circuit Court of Appeals
P.O. Box 91510
Pasadena 91109-1510
CALIFORNIA, USA
FROM: Paul Andrew Mitchell, Plaintiff
#CIV. S-01-1480 WBS DAD PS, DCUS Sacramento
DATE: December 18, 2001 A.D.
Greetings Judge Kozinski,
Under separate cover, I have already mailed to you one (1) copy of My petition for a certificate of necessity, to assign an Article III federal judge to My civil case against AOL Time Warner, Inc. and 128 other named defendants (see enclosed).
You may recall that you ordered a similar petition docketed in the case of USA v. Sheila Wallen, Tucson, Arizona, several years ago.
My printing load has been so heavy, and my cashflow has been so severely strained in recent weeks, today is the first day I have been able to complete the task of providing your office with seven (7) more copies of My petition and of the Initial COMPLAINT in the above entitled case.
Please be advised that the Initial COMPLAINT, SUPPLEMENTS, and EXHIBITS are all available in electronic form at Internet URL:
I am also enclosing personal copies for you of certain related pleadings which I have authored on the issue of Article III district courts. In Gilbertson’s OPENING BRIEF, this issue is discussed at Topic “E”. These pleadings are also available at supremelaw.org/cc.
As soon as I can afford to do so, I will print seven (7) more copies of each and incorporate these pleadings properly for the Clerk of the Ninth Circuit.
Judge Kozinski, in closing I would like to take this opportunity to wish you a very Merry Christmas and a very Happy New Year.
Thank you, again, for your professional consideration.
Sincerely yours,
/s/ Paul Andrew Mitchell
Author, Damaged Party and Plaintiff
enclosures: pleadings in following cases
(seven (7) copies to follow):
USA v. Microsoft, USDC, District of Columbia
USA v. Makarian, Ninth Circuit
Warfield v. Edwards, Fifth Circuit
USA v. Holcome, Fourth Circuit
USA v. Gilbertson, Eighth Circuit
copy: Clerk of Court, DCUS Sacramento (2x)
Clerk of Court
District Court of the United States
501 “I” Street, Suite 4-200
Sacramento 95814-2322
CALIFORNIA, USA
Dear Clerk:
I am writing to request that you kindly re-schedule the hearing tentatively set for 10:00 a.m. on February 1, 2002 A.D. in the above entitled case.
The following reasons call for a new date sometime after March 15, 2002 A.D.:
(1) United Parcel Service is presently unable to pinpoint a shipment of U.S. Mail from our Forwarding Agent sent during the month of December. I will need more time to reply to that mail, if and when the shipment is eventually found.
(2) A large number of SUBPOENAS IN A CIVIL CASE were issued by your office on December 14, 2001 A.D., and recently served on Defendants via Priority U.S. and Global Priority Mail. The reply deadlines shown on those SUBPOENAS are February 15 and March 15, 2002 A.D.
(3) The misconduct described in My CRIMINAL COMPLAINT against personnel at CERF in Gold River severely obstructed My ability to stay current with pleading requirements. I am presently the guest of friends who are located quite far from Sacramento, and frequent trips to the courthouse are now a major financial burden for me. I also wish to honor the privacy needs of these generous friends.
(4) During the Christmas holidays, I developed medical conditions that required prescription medication and a doctor’s supervision. I am recovering well, but the doctor advised against any serious think work, due to the side effects of that medication (a 10-day regime).
(5) A COMPLAINT JUDICIAL MISCONDUCT has now been filed with the Clerk of the Ninth Circuit, under 28 U.S.C. 372(c). I believe such a complaint justifies recusal of Magistrate Dale A. Drozd and assignment of an Article III Judge, pursuant to the NOTICE AND DEMAND for a Certificate of Necessity now pending before Judge Alex Kozinski on the Ninth Circuit.
(6) Despite numerous obstacles that have forced reasonable delays, on November 28, December 18 and 20, 2001 A.D., we succeeded in serving all named Defendants with the SUMMONSES and SUBPOENAS you issued, and a second copy of the Initial COMPLAINTS, via Priority U.S. Mail and Global Priority Mail. The completed RETURNS OF SERVICE will be summarized, copied, and filed with your office in a matter of days. I need adequate additional time to respond to all answers that we may receive during the coming weeks.
In light of all the above, please allow me to recommend April 5, 2002 at 10:00 a.m. as the new date and time for SUBPOENA replies, and for the hearing requested by Defendant Cornell University. Any date afterApril 5 will also be okay with us.
Please confirm the new date and time in writing to our Forwarding Agent, as soon as possible, and I will promptly notify all interested parties of the new hearing date and time.
Thank you kindly for your courteous consideration.
Sincerely yours,
/s/ Paul Andrew Mitchell
Paul Andrew Mitchell, B.A., M.S.
U.S. Mail c/o:
Forwarding Agent
350 – 30th Street, Suite 444
Oakland 94609-3426
CALIFORNIA, USA
(no telephone or fax, at present)
copies: Hon. William B. Shubb, U.S. District Judge
Sacramento, California (2 copies)
Stephen J. Hirschfeld
Attorney for Defendant Cornell University
Dr. John C. Alden, M.D., Interim Trustee,
The EyeCare Fund ‑‑ Vision for Everyone
Counsel for other Defendants
TO: Jack L. Wagner, Clerk of Court
501 “I” Street, Suite 4-200
Sacramento 95814-2322
CALIFORNIA, USA
FROM: Paul Andrew Mitchell, Plaintiff
DATE: January 22, 2002 A.D.
SUBJECT: Magistrate Drozd’s FINDINGS AND RECOMMENDATIONS
(filed December 31, 2001 A.D.)
Dear Mr. Wagner:
Happy New Year to you and your entire staff!
I continue to experience unexplained problems receiving UPS shipments of mail from our Forwarding Agent in Oakland, California. One entire shipment with December’s documents remains unaccounted for.
Most urgently, the FINDINGS AND RECOMMENDATIONS authored by Mr. Drozd on December 28, 2001 A.D. were not delivered to me until noon of last Friday, January 18, 2002 A.D.
Because of its importance, I re-scheduled everything else and worked overtime during the past three days writing, editing, signing, collating and printing my reply.
We had planned to file and serve that reply via Priority U.S. Mail tomorrow, but I woke up this morning to several inches of snow on the ground (dead of winter here!)
I am living in the country outside of a small town in Northern California, and the dirt roads become impassible in the hill country, whenever it snows.
So, I am snowed in for a few days, and want you and others to know that we will be posting my finished reply to Mr. Drozd just as soon as humanly possible. If funds are available, we will try to post your 2 copies via Express U.S. Mail.
Also, please be advised of the new destination for my U.S. Mail:
Paul Andrew Mitchell
c/o General Delivery
Phillipsville 95559-9999
CALIFORNIA, USA
Mr. Wagner, I also want to take this opportunity to express my sincere appreciation for all the help I have received to date from your professional staff.
They have been kind, courteous, and most efficient, particularly with the unusually large amount of paperwork that my case has generated.
Thank you very much.
Sincerely yours,
/s/ Paul Andrew Mitchell
U.S. Mail:
c/o General Delivery
Phillipsville 95559-9999
CALIFORNIA, USA
copy: Hon. William B. Shubb
U.S. District Judge
c/o Tim Hinkle (via email)
TO: Jack L. Wagner
Clerk of Court
501 “I” Street, Suite 4-200
Sacramento 95814-2322
CALIFORNIA, USA
FROM: Paul Andrew Mitchell, Plaintiff
DCUS Sacramento #CIV. S-01-1480 WBS DAD PS
DATE: February 11, 2002 A.D.
SUBJECT: Missing Consent Forms (USDC-EDCA Form.9)
Greetings Mr. Wagner:
I am writing to request that you copy and mail to me any and all Consent Forms that have been signed and communicated to your office in the above entitled case.
According to the statute at 28 U.S.C. 636(c)(2), a decision to consent to the exercise of civil jurisdiction by a Magistrate Judge shall be communicated to the Clerk of Court. See also USDC‑EDCA Form.8 (“Notice of Right to Consent to the Exercise of Civil Jurisdiction by a Magistrate Judge and Appeal Option”).
I do not find any requirement that signed Consent Forms be communicated to the parties.
As you may already know, I declined to give my consent to civil jurisdiction by any Magistrate Judges. However, it is possible that someone may have forged my signature.
Also, I desire to know which (if any) of the named Defendants executed this Consent Form as well.
Please expedite copies of all Consent Forms filed in this case by mailing them to me at the mailing location shown below. If no Consent Forms have been filed, please indicate same in your reply.
Sincerely yours,
/s/ Paul Andrew Mitchell
Paul Andrew Mitchell, B.A., M.S.
c/o general delivery
Phillipsville 95559-9999
CALIFORNIA, USA
copy: Cathy Catterson, Clerk of Ninth Circuit
PROOF OF SERVICE
I, Paul Andrew Mitchell, Sui Juris, hereby certify, under penalty of perjury, under the laws of the United States of America, without the “United States” (federal government), that I am at least 18 years of age, a Citizen of ONE OF the United States of America, and that I personally served the following document(s):
MEMO TO CIRCUIT JUDGE ALEX KOZINSKI:
January 12, 2003 A.D.
by placing one true and correct copy of said document(s) in first class United States Mail, with postage prepaid and properly addressed to the following:
Judge Alex Kozinski (supervising) Clerk of Court (5x)
Ninth Circuit Court of Appeals Attention: Cathy Catterson
P.O. Box 91510 Ninth Circuit Court of Appeals
Pasadena 91109-1510 P.O. Box 193939
CALIFORNIA, USA San Francisco 94119-3939
CALIFORNIA, USA
Ropers, Majeski, Kohn & Bentley DeForest & Koscelnik
(failed to exhibit oaths) (failed to exhibit oath)
1001 Marshall Street 3000 Koppers Building
Redwood City 94063 436 Seventh Avenue
CALIFORNIA, USA 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 Quinn Emanuel Urquhart Oliver
Kraemer & Sloan, LLP & Hedges, LLP
(failed to exhibit oaths) (failed to exhibit oaths)
727 Sansome Street 201 Sansome Street, 6th Floor
San Francisco 94111 San Francisco 94104
CALIFORNIA, USA CALIFORNIA, USA
Office of the General Counsel Paul Southworth
(failed to exhibit oaths) 2018 N. New Hampshire Ave.
University of California Los Angeles 90027
1111 Franklin Street, 8th Floor CALIFORNIA, USA
Oakland 94607-5200
CALIFORNIA, USA
Karl Kleinpaste Ram Samudrala
P.O. Box 1551 UW Micro Box 357242
Beaver Falls 15010 Seattle 98195-7242
PENNSYLVANIA, USA WASHINGTON STATE, USA
Laskin & Guenard Rivkin Radler, LLP
(failed to exhibit oath) (failed to exhibit oaths)
1810 South Street 1330 N. Dutton Ave., #200
Sacramento 95814 Santa Rosa 95401-4646
CALIFORNIA, USA CALIFORNIA, USA
Harvey Siskind Jacobs LLP Office of Solicitor General
(failed to exhibit oaths) 950 Pennsylvania Ave., N.W.
3 Embarcadero Center, Ste. 1060 Room 5614
San Francisco 94111 Washington 20530-0001
CALIFORNIA, USA DISTRICT OF COLUMBIA, USA
Register of Copyrights Steinhart & Falconer LLP
Library of Congress (failed to exhibit oaths)
101 Independence Avenue, S.E. 333 Market Street, 32nd Floor
Washington 20559-6000 San Francisco 94105-2150
DISTRICT OF COLUMBIA, USA CALIFORNIA, USA
Matheny Sears Linkert & Long LLP Latham & Watkins
(failed to exhibit oaths) (failed to exhibit oaths)
P.O. Box 13711 633 West Fifth St., Ste. 4000
Sacramento 95853-4711 Los Angeles 90071-2007
CALIFORNIA, USA CALIFORNIA, USA
Courtesy copies:
Clerk of Court Hon. Sandra Day O’Connor (supervising)
Attention: Jack L. Wagner Supreme Court of the United States
501 “I” Street, Suite 4-200 One First Street, Northeast
Sacramento 95814-2322 Washington 20543-0001
CALIFORNIA, USA DISTRICT OF COLUMBIA, USA
[Please see USPS Publication #221 for “addressing” instructions.]
Dated: February 7, 2003 A.D.
Signed: /s/ Paul Andrew Mitchell
__________________________________________________________
Printed: Paul Andrew Mitchell, Relator/Appellant In Propria Persona
