DonBird.htm

The petitioner requests this Court to show cause why a Mandamus should not be issued commanding the respondents to introduce legislation to repeal the existing wording of the California Penal Code and the language in the California Vehicle Code which in essence denies all persons of this State a choice of a “Trial by Jury” for all Infractions” committed. The Seventh Amendment clearly states:

“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.”

The petitioner shows cause why this Court should issue the Mandamus. The petitioner declares, “I am a sovereign citizen of the United States of America and a sovereign citizen of the State of California”.

Plaintiff alleges subject matter jurisdiction pursuant to Title 28 United States Code [U.S.C.] § 1331, BECAUSE THIS ACTION ARISES UNDER THE LAWS AND THE Constitution of the United States of America and falls within the meaning of Title 28 U.S.C.§§ 2201(a) and § 2202.

The basis for jurisdiction is the fact this case was born in Corning, California, Tehama County. This qualifies under Federal Rule of Civil Procedures Rule 8 and local Rules 8-204.

Plaintiff also alleges jurisdiction in this matter pursuant to Title 18 U.S.C. § 1346. However, plaintiff claims exemption to the procedural requirements of § 1346 pursuant to Title 18 U.S.C. § 2680.

Jurisdiction is further alleged pursuant to the Code of Civil Procedures §§ 395, § 395.5, § 526,§ 527, and § 1060; Civil Code §§ 51.7, § 51(a), § 52.1, § 52.1(a)and § 52.3.

This Writ of Mandamus distinctly defines in shirt sleeve “English” that this petitioner states a qualified “Claim.” The petitioner sternly mentions that the respondents reply to this Writ of Mandamus refrain from railing and otherwise provoking-insulting the petitioner by describing this “Writ” as frivolous or any other ambivalent adjective! It meets the first prong of the legalese term; “Ripe.” Read Exhibit “B”. It has all the required merits of a Bonafide Grievance.

“Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”

“An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never passed.”

“And be it further enacted. That no summons, writ, declaration, return, process, judgment, or other proceedings in civil cases in any of the Courts of the United States, shall be abated, arrested, quashed or reversed, for any defect or want of form, but the said courts respectively shall proceed and give judgment according as the right of the cause and matter in law shall appear unto them, without regarding any imperfections, defects or want of form in such writ, declaration, or other pleading, returns process, judgment, or course of proceeding whatsoever, except those only in cases of demurrer, which the party demurring shall specifically sit down and express together with his demurrer as the clause thereof. The said Court respectively shall and may, by virtue of this act, from time to time, amend all and every such imperfections, defects and wants of form, other than those only which the party demurring shall express as aforesaid, and may at any time, permit either of the parties to amend any defect in the process of the pleadings upon such conditions as the said Court respectively shall in their discretion, and by their rules prescribe (a)”

“Due Process provides that the “rights of pro se (Sui Juris) litigants are to be construed liberally and held to less stringent standard than formal pleadings drafted by lawyers; if the court can reasonably read pleadings to state valid claim on which litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigants unfamiliarity with pleading requirements”

“Right to proceed pro se (Sui Juris) is fundamental statutory right that is afforded highest degree of protection”

The petitioner maintains that any citizen that usurps, or causes any of the rights of any citizen to be infringed does indeed violate the citizen’s Constitutional rights. The petitioner acknowledges that this Mandamus will not lie to control the respondents, Assemblyperson Doug LaMalfa and Senator S. Joseph Simitian, or in the discharge of their ordinary official duties nor to compel the respondents to perform any act over which they have the right to exercise their judgment or discretion.

The petitioner also acknowledges that the respondents cannot be compelled, by Writ of Mandamus to perform a mere ministerial act devolved on them by the laws of the State of California. However the petitioner takes the unchallengeable position that the respondents must and should be ordered to support, defend and adhere to the United States Constitution as it is written, and interpret not this said document whenever it is convenient politically or for personal recognition, or, in a more defining statement, “Obey Their Oath”.

In Marbury v. Madison, 1 Cranch Rep., 170, Chief Justice Marshall said: “It is not by the office of the persons to whom the writ is directed, but the nature of the thing to be done, that the propriety, or impropriety of issuing a Mandamus is to be determined.

The better doctrine seems to be, that the Assemblyman and Senator are not exceptions to the general rule that all public officers may, by Mandamus, be compelled to perform an act clearly defined and enjoined by the law, The Constitution, and which is merely ministerial in its nature, and neither involves any discretion, nor leave any alternative. (Pacific

Railroad v Governor, 23 Miss., 353; Colten v. Ellis, 7 Jones’ Law [N.C.], 545; Chamberlain v. Sibley, 4 Min., 309; 7 O.S.R., 372.)

The petitioner reminds the respondents that they recited an Oath when they become an elected public official/servant. The respondents appear to the petitioner to have ignored the oath of office. This request for a Writ of Mandamus is expressly for one reason and one reason only. The petitioner demands the respondents obey the oath and acknowledge the fact and exact true wording of the 7^th Amendment. It is recognized by the petitioner that the Writ of Mandamus is the ultimate motion a grieved citizen retains to pray for relief.

The petitioner (as well as this Court) should support the view of the Law of Mandamus. It expressly states the Writ shall be grantable where a citizen has a legal right to insist that a certain act shall be done, the performance of which is, by law (The Constitution) made the duty of a public officer.

As it was a remedy introduced to prevent disorder from a failure of justice, in pursuance of the principles of the Common Law, it ought now to be used upon all occasions where the law has established no specific remedy, and where in justice and in good government there ought to be one. If there be a right and no other specific remedy, this Writ should not be denied by our Courts. It may be stated as a general principle that this writ is only granted for public persons, and to compel the performance of public duties. (3 Stephens’ Nisi Prius, 2291.) It can be resorted to only in those cases where the matter in dispute, in theory, concerns the public; and in this instance, it is clear, it is in the public interest. The degree of its importance to the public, is not, however, scrupulously weighed. (1 Swift’s Digest, 564.) A Mandamus gives no right, not even a right of possession, but simply puts a man in a position which will enable him to assert His right, which in some cases he could not do without it.

In order to lay the foundation for issuing a Writ of Mandamus, there must have been a refusal to do that which it is the object of the Mandamus to enforce, either in direct terms, or by circumstances distinctly showing an intention in the party not to do the act required. (3 Stephens’ Nisi Prius, 2292. Redfield on Railways, 441. Note 5.)

And although the power to issue a Mandamus is not in America regarded as a prerogative power yet the writ so far partakes of the nature of a prerogative writ, that the Court has the power to issue or withhold it, according to its discretion. And if issued, it would manifestly be attended with hardship and difficulties, the Court may, and even should refuse it. (Ex-parte Fleming, 4 Hill 581.)

But this discretion is not an arbitrary one; it is a judicial discretion; and when there is a right and the law has established no specific remedy, this writ should not be denied. (The Proprietors of St. Luke’s Church v. Slack, 7 Cushing’s Rep., 226.)

However, therefore, the respondents in the exercise of the Supreme Executive Power of the State may, from the respondents duties, they have a discretion which places them beyond the control of the judicial power, yet in regard to a mere ministerial duty enjoined on them by statute, which might have been devolved on another officer of the state (as of State Senator or Congressman or Assemblymember ) and affecting any specific Private Right they may be made amendable to the compulsory process of this Writ of Mandamus.

The petitioner supports the position that the Constitution is the Supreme Law of the United States of America and no Court is entitled to support any person, public or private, to abridge this cornerstone of our Republic. If the respondents act in a ministerial capacity and they violate any Constitutional Right, they are not exempt from the power of the Writ of Mandamus. Cite case Low vs. Town Georgia 360, People vs. Bissel 19 til 229.

The petitioner states that to simply define and declare what are the Rights of the Citizen is not the only object of Civil Government; and it meets only a part of the wants and needs of a citizenry.

An equally important branch of the civil and criminal juris prudence of a civilized nation is the remedy provided by law for those who have been deprived of their rights. That remedy which comes nearest to restoring to the party that of which has been deprived approaches nearest to any perfect remedy.

The respondents have a “Duty.” First, a preexisting duty that the respondents are legally bound to perform their official duties, one of which is to obey their Oath of Office. This is a requirement of the office to which they were elected and is a Duty to the sovereign citizens of this State of California. Second, the respondents have an affirmative duty. They are required to correct a wrong when they have been duly notified and accused of harming a sovereign citizen.

The respondents have a “Moral” Obligation to the Petitioner and to all the sovereign citizens of the State of California to obey their Oath of Office. The respondents must never make any statements or commit any acts that violate the Supreme Law of this Republic, the Constitution of the United States and the Bill of Rights. As stated in the California State Constitution.

This is a (First impression) Petition. No precedent can be discovered to deny any of these pleadings. Plaintiff has the distinct advantage. He has the United States Constitution and the Bill of Rights to support this request. The Court should also consider the fact that the petitioner has the First Amendment Right to file a grievance. This is a grievance. Black’s Law Dictionary defines a grievance as, “l. An injury, injustice, or wrong that gives ground for a petition for a redress of grievances. 2. The petition itself is required to be answered.”

To sustain the individual freedom of action contemplated by the Constitution is not to strike down the common good, but to exalt it; for surely the good of society as a whole cannot be better served than by the preservation against arbitrary restraint of the liberties of its constituent members.

The First Amendment is not a tool of the press. It is a tool for the people. It is not nearly so much a protector of the media as it is a protector of the people’s right to know, their right to hear the ideas of others, and their right to have their ideas heard without interference from Rules created by the government.

From the day when the first members of councils placed exterior authority higher than interior, that is to say, recognized the decisions of men united in councils as more important and more sacred than reason and conscience; on that day began lies that caused the loss of millions of human beings and which continue their unhappy work to the present day.

The United States Supreme Court has stated that “No State legislator or executive or judicial officer can war against the Constitution without violating his Undertaking to support it”.

Cooper v. Aaron. 358 U.S. 1 78 S.Ct. 1401 (1958). If a judge does not fully Comply with the Constitution, then his orders are void, in re Sawyer, 124 U.S. 200 (1888), he/she is Without jurisdiction, and he/she has engaged in an act or acts of TREASON!

The right to petition the government for redress of grievances, protected by the First Amendment, and by which all judges are bound by “Oath”, carries with it the concomitant right of having such petition (i.e., notice) heard and acted upon by government – i.e., the basic right of notice and hearing which impels the right to Due Process of Law. “The touchstone of due process is protection of the individual against arbitrary action of government.” Dent v. West Virginia (1889) 129 U.S. 114, 123; Parratt v. Taylor (1981) 451 U.S. 527, 549; Daniels v. Williams (1986) 474 U.S. 327, 331. Isn’t that the purpose of the Constitution generally – to protect the individual against arbitrary action of government?

All “amendments to the codes” from 1872 through the present are void on their face. With no official record of the original text of the codes, there was nothing which could be lawfully amended. With regard to this, it is interesting to take note of what the California Supreme Court has to say in 1857:

“Under our form of government, the Legislature is not supreme. It is only one of the organs of that absolute sovereignty which resides in the whole body of the people; like other departments of government, it can only exercise such powers as have been delegated to it, and when it steps beyond that boundary, its acts, like those of the most humble magistrate in the state, who transcends his jurisdiction, are utterly void.”

The petitioner makes this demand to the Judge/Magistrate of this Court. “OBEY” your “OATH”. The petitioner is prepared to absorb the many pages of standard “Godswallow” defending the respondents. The beauty of the Writ of Mandamus is that it applies evenly to all Public Servants (Judges/Magistrates). Obey your Oath. There can be no supporting Precedents that can be used as a “Crutch” to dismiss this “Grievance”. This Petition will be labeled a “First Impression Case”. The petitioner expects criticism since the Petition contains little or no legalese. It may appear to be bloviating but the petitioner has been to the Supreme Court of the United States (twice), which the Court refused to review; so rejection and futility will never be a reason to surrender on this issue. In this instance the thwarting of my attempts from these two Public Servants to wage a battle would be a disgrace to their “Oath”. Hypocrites? You Bet!

The petitioner prays that this Court will “Order” the respondents, Assemblyperson Doug LaMalfa and Senator S. Joseph Simitian, to begin the process to eliminate the infringement of our 7^th Amendment Right. If the genuine efforts put forth by these two Public Servants fail to achieve the repeal of this violation of our 7^th Amendment Rights, the petitioner will expect that these two respondents will continue to introduce the required legislation in the future as many times a necessary to repeal the existing Law. The animus of the respondents should not be misconstrued. The petitioner will be relentless on this matter. It would behoove this Court in the best interests of time and expense to grant this Writ.

By:

DONALD M. BIRD

Pro-Per

P. O. Box 5313

Corning, CA 96021

(530) 585-2779