court informal brief--web version.pdfand irs commissioner everson. on march 23, 2004 appellant...

05-35023, Informal Brief--- p. 6

Question 2: Facts of Case

Walker v. United States, C00-2125C (hereafter Walker v. United States) asking the

court to compel Congress to obey the Constitution and issue a convention call. As

part of his evidence, appellant cited four United States Supreme Court (hereafter

Supreme Court) decisions, which specified Congress, must call a convention. The

Congress, acting through its legal representative, the United States Attorney for

Washington, asserted Congress was not obligated to obey the law of the Constitu-

tion and therefore did not have to call a convention if it did not want to despite di-

rect constitutional language and Founders intent to the contrary. The district court

agreed and dismissed the case stating, “It is unambiguously clear that the Court

does have subject matter jurisdiction in this case due to the fact that Plaintiff does

have standing to bring this suit and his complaint raises political questions that are

more properly the province of Congress.” Walker v. United States was not ap-

pealed to any federal appeals court.

While the Constitution does not require a subject of amendment to be sub-

mitted by a state in its application, most applications by the states concern one or

more amendment subjects. Several individual subjects have received enough

applications to not only cause a convention call under the terms of Article V but

satisfy or exceed the number needed for ratification, three-fourths of the states, as

well. Among these is an amendment proposal to repeal the 16th Amendment, which


Among these is an amendment proposal to repeal the 16th Amendment, which au-

thorizes the collection of federal income tax.

On September 20, 2004 appellant filed a complaint in district court, Walker

v. Members of Congress, C04-1977RSM, (hereafter Walker v. Members of Con-

gress) asserting that in refusing to obey a peremptory clause of the Constitution,

and by advocating this refusal publicly in Walker v. United States, Congress had

violated the Constitution as well as several federal criminal and civil statutes. Ap-

pellant held that as the states have already applied for a convention they have ex-

hausted their constitutional authority and that as the next step in the process which

appellees are obstructing, is the legal election of convention delegates, this obstruc-

tion violates the civil rights of the appellant. Appellant reported the specific crimi-

nal acts of appellees and requested in several motions the district court notify the

proper federal officials of these criminal acts. The appellant requested by motion

the district court compel Congress to obey the Constitution by writ of mandamus.

Finally, appellant, after having already obeyed agency appeal procedures as pre-

scribed by federal law, sought reparation of his federal income tax for the period

prescribed by federal law. He based his action on the fact appellees’ refusal to obey

the Constitution and call a convention to propose amendments, among others, an

amendment to repeal federal income tax constitutes a form of criminal extortion, a


violation of federal and state criminal law, as it permits appellees to continue to

levy income tax by withholding a required official act.

In the process of his agency appeal, which as required by federal law was to

be conducted before filing a complaint in district court, certified letters specifying

the reasons for tax reparation were sent to the Secretary of the Treasury John Snow

and IRS Commissioner Everson. On March 23, 2004 appellant received a letter

from the IRS denying his claim and threatening him with imprisonment should he

continue to pursue the matter. The letter further stated that the courts have ruled

repeatedly against appellant’s arguments. Appellant argued appellees must obey

the Constitution; ergo—the letter asserted appellees do not have to obey the Con-

stitution. Despite this threat, appellant filed his complaint in district court and re-

quested defendants Snow and Everson be cited under federal law for making

threats against an informant, the appellant, and a violation of federal criminal law.

On October 8, 2004 the district court issued a show cause order as to juris-

diction. Appellant submitted a timely response and presented evidence by citation

and legal quote that court jurisdiction was authorized by a statute for each of his

complaints. Appellant presented several other basis of standing including present-

ing evidence that Walker v. United States was in fact a ruling on the part of the dis-

trict court. Therefore appellant had been granted standing in order for the court to

make such ruling. Appellant reasserted such standing in Walker v. Members of


Congress. Despite all evidence presented, the district court dismissed the suit on

November 12, 2004 citing lack of jurisdiction by quoting the same sentence used

in Walker v. United States. Thus the court ruled a second time asserting appellees

could veto the Constitution if they so chose. In response to a motion for reconsid-

eration by appellant, the district court did not deny nor refute that the appellees had

violated federal criminal law; it simply refused to report these criminal acts to the

proper legal authorities. The district court did not deny nor refute that its intent was

to willfully and deliberately establish that as a duty of office appellees could veto

the Constitution at its legislative whim.

On December 2, 2004 appellant submitted to the court a motion of default

based on failure of any defendant to appear or return to the waivers of summons or

summons issued to them by appellant as required by FRCP 4. Appellant did not re-

quest the court vacate its previous order as he had already submitted a motion for

reconsideration, which the court had refused. Merely appellant requested the court,

incompliance with FRCP 4, complete service upon recalcitrant defendants. The

court refused to correct any issue of service. Appellant appeals the district court’s

dismissal on the basis of several grounds of error by the district court more fully

described in his informal brief.

***

Question 3: What was asked of district court?


Writ of Execution for reparation of income tax extorted from the Plaintiff by de-

fendants and; (4) to take all other actions which the court deems necessary and

proper against the defendants in this matter.”

***

Question 4: Claims raised in district court?

Independence which was ratified by treaty and thus incorporated into the Constitu-

tion under the treaty clause (Article VI, § 2) it is the right of the people to alter or

abolish their form of government. Clearly an amendment to the Constitution is a

form of alter or abolish in which the people participate in an indirect but neverthe-

less essential manner i.e., election of delegates to a convention to propose amend-

ments, election of legislators who apply for convention amendments, election of

members of Congress who may propose amendments and determine the method of

ratification for such proposals and election of delegates to a convention to ratify

amendment proposals should Congress so determine this mode of ratification.

Without these elections by the people, the amendment process is impossible. By

refusing to obey the Constitution, appellees violate this right by prohibiting the ap-

pellant from exercising his right of alter or abolish, a right guaranteed in the Con-

stitution in the Ninth Amendment (EOR, Pages 53-55).

(3) Constitutional amendments have altered the doctrine of standing. (A)

Appellant maintained the doctrine of standing is an unconstitutional license, which


violates the First and Tenth Amendments (EOR, Pages 55-57). (B) Standing vio-

lates the Due Process Clause of the Fifth Amendment and is not authorized by

statute as to definition, limits, parameters or application and varies from judge to

judge as to interpretation therefore raising 14th Amendment equal protection ques-

tions (EOR, Page 57). (C) The term “cases and controversies” found in Article III

on which standing rests has been amended by the Seventh and Eleventh amend-

ments which no court rulings on standing have ever recognized thus rendering all

such rulings ineffective (EOR, Pages 58-59).

(4) Appellant is reporting criminal acts committed by the appellees to federal

officials. Such reporting is not dependent on any issue of standing and the court in

refusing to report such acts exposes itself to possible criminal liability particularly

where the court did not refute that appellees had committed criminal acts (EOR,

Pages 59,149,150).

(5) Federal income tax law permits reparation to taxpayers if those taxes are

collected by illegal acts on the part of government officials. Federal law assigns

jurisdiction to the federal courts for resolution such claims thus resolving any issue

of jurisdiction. By withholding a peremptory convention call, an official act, appel-

lees have prevented the repeal of the 16th Amendment by legal constitutional

means. Appellees have continued to levy income tax and thus committed an act of

extortion in that they have withheld an official act in order to acquire tax money,


including that of the appellant, a taxpayer, who now seeks reparation of his income

tax (EOR, Pages 60-61).

(6) Appellant makes claim under the Flast doctrine which in sum permits

court jurisdiction for a taxpayer if he alleges congressional action under its taxing

and spending clause is in derogation of a constitutional provision which operates to

restrict the exercise of that power. All limits in the Constitution on the taxing and

spending clause are found in the amendments. Hence the amendatory process of

the Constitution operates to restrict the exercise of the taxing and spending clause.

In order to continue to be able to levy income tax thus employing the taxing and

spending clause, appellees have refused to obey the Constitution and call a conven-

tion to allow a proposed amendment to repeal income tax which would limit the

taxing and spending clause to constitutionally proceed. This refusal thus derogates

a constitutional provision, which is intended to restrict the exercise of the tax and

spending clause by the appellees (EOR, Pages 61,62).

(7) Appellant asserts the district court established jurisdiction and his stand-

ing in that the action the court termed a “dismissal” was, in fact, a ruling by the

court requiring court jurisdiction. Appellant’s suit was therefore improperly “dis-

missed” by the district court. It is axiomatic no court can claim lack of jurisdiction

over a question presented before it then alter the state of that question to a different

state from what existed before it was presented to the court. Such alteration, if


permitted at all, requires court jurisdiction and hence standing on the part of the

appellant. In this suit, the district court extended the political question doctrine to

appellees in regards to a convention call. The court therefore altered the original

state of the Constitution as to intent and meaning from that a peremptory conven-

tion call which permits no political question doctrine to that of a discretionary con-

vention call allowing veto of the constitutional language at legislative whim (EOR,

Pages 75-91).

(8) While pursuing reparation of his income tax through by use of legal con-

stitutional and statutory means, appellant was threatened in writing by appellees

Snow and Everson, or by person or persons under their direction. Appellant has in

no way violated any income tax law. The threat made was that should appellant

continue his efforts of tax reparation he could face a prison sentence brought by the

IRS which is controlled by appellees Snow and Everson. As is it is not a criminal

act to seek tax reparation, such a statement can only be viewed as a threat. Such

threat violates federal law and may, under the circumstances, also violate state law.

Appellant claims his right to be free of such threats and to seek legal redress

against the violators (EOR, Pages 166-169).

(9) Appellant asserted a claim of court jurisdiction under 42 U.S.C. 1983 in

his district court complaint. The claim was restated in his Response to Show Cause

to the court. The court did not refute this claim of jurisdiction either in its Order to


Show Cause or its Order of Dismissal. The court therefore erred in dismissal of ap-

pellant’s suit in that it did not dispute nor refute a court jurisdiction authorized by

federal statute asserted by appellant. With each state application, the appellees

have repeated the same custom: refusal to obey the Constitution and call a conven-

tion as prescribed. Such custom violates appellant’s right of alter or abolish guar-

anteed by the Ninth Amendment as well as his right to participate in the amenda-

tory process as prescribed in the Constitution by use of his vote to elect delegates

to a convention. Both rights are guaranteed in the Constitution. Therefore, viola-

tions of these rights are protected under 42 U.S.C. 1983 (EOR, Pages 63,120-122).

***

Question 5: Issues raised on appeal?

Error # 1: The district court erred in establishing that a veto of the direct lan-

guage of the Constitution by appellees is a duty of office and in using 28 U.S.C.

2006 and 28 U.S.C. 7429 to raise this “right” to that of a duty of office. The court

failed to obey 28 U.S.C. 7429 in that it failed to allow U.S. Attorney General to as-

sert appellees’ acts were a duty of office as is required by statute and therefore un-

der 28 U.S.C. 2006 took the responsibility for authorizing the actions of appellees

upon itself. In so ruling for the appellees, the court placed appellees in violation of

5 U.S.C. 7311, other applicable federal laws and in violation of the unambiguous

intent of the Founders expressed in the Constitution.


Error # 2: It is an axiom of law that any assertion made in a suit, unless re-

futed or denied, is assumed to be true. The district court did not deny nor refute its

intention to deliberately and willfully establish a right of appellees to veto the Con-

stitution, that such a ruling was made by the court, that such a ruling requires

standing on the part of the appellant for such ruling by the court to occur, that such

a ruling altered the language of the Constitution by judicial decree and that such

ruling relied on extending a Supreme Court ruling to permit advisory opin-

ions/rulings by the district court. Advisory opinions/rulings require neither appel-

lant standing nor court jurisdiction as they are based ultimately on a sovereign au-

thority other than the Constitution, in this instance the sovereignty of appellees.

The court erred in its dismissal of appellant’s suit on the basis of lack of court ju-

risdiction in that no jurisdiction nor standing is required for the court or appellant

once the court extended a Supreme Court ruling creating an advisory opin-

ion/ruling. However, as the court in its ruling asserted appellant standing was re-

quired and determined appellant lacked standing this precluded the court from issu-

ing a ruling granting political question doctrine immunity to appellees as it had no

jurisdiction to make such a ruling. As the court issued such a ruling there are only

two possibilities: (1) the court erred in its dismissal as it created an advisory opin-

ion/ruling which required appellant standing and court jurisdiction which it stated

did not exist therefore no ruling was made, or (2) the court erred in issuing a ruling


granting political question doctrine immunity to appellees as the court had no ju-

risdiction to do so as appellant lacked standing. Either way, appellees are still obli-

gated to issue a convention call as the original intent of the Constitution makes

such a call peremptory and the court lacked jurisdiction to alter that original state

of the Constitution as to intent, meaning and direct language.

Error # 3: The district court erred in that it did not recognize nor refute other

issues of standing brought by the appellant on which he was permitted to proceed

with his suit.

Error # 4: The court misquoted appellant’s complaint in reaching its conclu-

sions. It erred in discussing jurisdiction under 42 U.S.C. 1973(a), for example,

when appellant asserted jurisdiction under 42 U.S.C. 1973i(a) and 42 U.S.C.

1973j(c). Other similar errors were also committed by the court.

Error # 5: The court erred by not addressing, and therefore not refuting, ap-

pellant’s assertion that standing was not required for appellant in this particular suit

due to an earlier ruling of the district court.

Error # 6: The court erred in citing 26 U.S.C. 7214 as the basis for lack of

court jurisdiction regarding appellant’s income tax reparation. Appellant relied on

26 U.S.C. 7422 as well as other applicable federal laws, which clearly support

court jurisdiction.


Error # 7: The court did not deny its jurisdiction in regards to the issuance of

a writ of mandamus authorized under 28 U.S.C. 1361 to compel appellees to obey

the Constitution. The court therefore erred in denying such a writ.

Error # 8: The court did not refute, deny nor address jurisdiction by appel-

lant based on 42 U.S.C. 1983. The court did not refute appellees have committed a

criminal act under 18 U.S.C. 242. The court therefore erred in dismissing appel-

lant’s suit based of lack of jurisdiction.

Error # 9: The court erred in its interpretation of the speech and debate

clause of the Constitution by asserting a convention call is part of the legislative

function requiring a vote of consent by appellees thus allowing them to veto the

convention clause by refusing such consent.

Error # 10: The court erred in failing to recognize jurisdiction under 28

U.S.C. 1343 (1)(3)(4) regarding denial of the right to vote on the part of the appel-

lant.

Error # 11: The court did not deny that crimes alleged to have been commit-

ted by the appellees had, in fact, occurred. Therefore the court erred in failing to

report these crimes to the proper authorities for prosecution.

Error # 12: The court did not refute that appellees Snow and Everson have

committed criminal acts against appellant and therefore erred in failing to report

such criminal acts to the proper authorities.


Error # 13: The court erred in establishing an immunity of exclusive amen-

datory control of the Constitution for appellees allowing them to overthrow our

constitutional form of government in violation of Supreme Court rulings, federal

law and constitutional language, intent and meaning.

Error # 14: The district court erred in dismissal of appellant’s suit in failing

to recognize its authority under 28 U.S.C. 1331 giving it original jurisdiction of all

civil actions arising under the Constitution to district courts.

Error # 15: In its Order of Dismissal, (EOR, Page 242-243) the court relied

heavily upon Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) decision holding

these standards required satisfaction if the court was to extend jurisdiction. Appel-

lant having shown he did so satisfy Lujan, the court erred in dismissing his suit on

the basis he did not satisfy Lujan.

Error # 16: The court erred in failing to allow proper response by appellees

to service made by appellant in compliance with FRAP 4(d).

Error # 17: The court erred in failing to recognize appellant’s standing and

its jurisdiction under federal income tax law.

***

Question 7: Law supporting issues on appeal?

alter their form of government using the amendatory process, by an essential but

indirect part, the election of representative assemblages (EOR, Pages 7-9). The


amendatory process is not part of the legislative function. Hawke, Hollingsworth et

al. v Virginia, 3 Dall. 378 (1798) (EOR, Pages 42-43).

In Walker v United States and Walker v. Members of Congress the court as-

serted appellees have “exclusive”, “undivided” “sole” and “complete” control of

the amendatory process. The court cited Coleman v. Miller 307 U.S. 433 (1939)

(hereafter Coleman) as the basis of its authority to judicially amend the Constitu-

tion from two autonomous amendatory processes to one process exclusively con-

trolled by appellees (EOR, Pages 11-13). Coleman did not refer to the convention

amendatory process. Therefore the district court was required to make a ruling ex-

tending this “exclusive” control of the appellees to entire amendatory process

(EOR, Pages 14-16,39-41). The Supreme Court is explicit: a court cannot issue a

ruling without plaintiff standing. Therefore appellant claimed in Walker v. Mem-

bers of Congress the same standing which had to exist for the court to have ruled in

Walker v. United States (EOR, Page 20). The court rejected this claim in its dis-

missal, therefore issuing a ruling without standing.

The effect of the ruling Walker v. Members of Congress affirming appel-

lee’s veto of the Constitution means the courts no longer have the authority to rule

any action by appellees is unconstitutional. Simply put, the district court nullified

Marbury v. Madison, 5 U.S. 137 (1803) (hereafter Marbury) changing the Consti-

tution from supreme law to subservient advice subject to legislative whim (EOR,


Pages 18-21). This alteration of supremacy in turn terminates the Constitution as

an effective legal document having any legal force (EOR, Pages 20-21).

Appellant holds the court erred in issuing such a ruling. First, the public

assertion by the appellees whether by refusing to call or assertion in a court case,

nevertheless violates 5 U.S.C. 7311 as well as other federal laws (EOR, Pages 21-

24). Second, Supreme Court has expressed itself on the obligation of appellees to

call, which the district court ignored (EOR, Pages 29-34).

Part of appellant’s suit dealt with 28 U.S.C. 1346(a)(b) and 28 U.S.C.

2679(b)(2) (EOR, Pages 44-45). Under these statutes the U.S. Attorney General is

obligated to determine whether the actions of the appellees are a duty of office. By

dismissing appellant’s suit without permitting the attorney general to so determine,

the court assumed this duty and, as it ruled in appellees’ favor by dismissal, deter-

mined appellees’ act of veto of the Constitution is a duty of office. The court as-

serted this under 28 U.S.C. 2006 (2) by assuming the authority of “proper Gov-

ernment officer.” (EOR, Page 47). As appellees never returned any Waivers of

Summons nor proof of their requests for the U.S. Attorney to represent them under

2 U.S.C. 118 at district court, the only legal entry of representation by the U.S. At-

torney at appeal level is 28 U.S.C. 2679(d)(1) which requires the government to

assert the action in question is a duty of office. Hence, the “government” asserts

veto of the Constitution is a duty of office of appellees. Appellant maintains the


court erred as veto of the Constitution is not duty of office of appellees and in fact

violates 5 U.S.C. 7311 as well as other federal statutes and other laws. (EOR,

Pages 172-187).

Error # 2: As described, (supra p. 15) of this informal brief, the district court

did not deny it willfully and deliberately intended to establish the right of the ap-

pellees to veto the Constitution. To accomplish its goal, the court extended a Su-

preme Court ruling, which permits advisory opinions/ rulings giving appellees their

veto of the Constitution. However the court erred in this action because such opin-

ions/rulings require no standing on the part of the appellant. As the court ruled ap-

pellant must have standing in its dismissal, then it follows it could not issue a rul-

ing where the normal rules of standing apply to such a ruling. The court is, as it de-

clared, one of limited jurisdiction. Granting a veto of the entire Constitution to ap-

pellees can in no way be described as exercising “limited jurisdiction.” Appellant

brought this matter to the attention of the district court which erred in ignoring this

fact (EOR, Pages 49-51).

Appellant wishes to correct two typographical errors on EOR, Page 49. The

first error is on line three. The words “and ignore” should be deleted. The second

error on line 15 reads, “Now do they do have to.” Appellant intended this sentence

to read: “Now they don’t have to.”


Error # 3: The district court erred in not recognizing several basis of stand-

ing or issues of standings brought by appellant. (1) All 50 states have applied for a

convention to propose amendments and thus exhausted their power as there are no

more states which can apply. Further, as a convention call by appellees is peremp-

tory, a convention also involves the sovereignty of the people expressed through

their voting of delegates, the next step in the convention process. Clearly the con-

vention to propose amendments is a concurrent right of both the states and the

people. By refusing to obey the Constitution and call a convention, appellees in-

fringe on both sets of rights. Such infringement by appellees includes violating the

right of appellant as a citizen to vote, a right of the people, in an election to elect

delegates to a convention (EOR, Pages 52-54). (2) The veto of the Constitution by

appellees infringes on the right of the people to alter or abolish guaranteed by

treaty and the Ninth Amendment. Such infringement violates several federal laws

intended to protect such rights (EOR, Pages 54-56). (3) The doctrine of stranding

as expounded by the courts fails to account for the affect of the amendments to the

Constitution and therefore is unconstitutional. It is therefore not incumbent upon

appellant as the doctrine’s current interpretation creates a license which the Su-

preme Court has held is void (EOR, Pages 56-60). (4) The reporting of criminal

activity by federal officials does not require any standing on the part of appellant to

proceed (EOR, Page 60). (5) Federal law permits reparation of income tax that is


illegally collected by federal officials and provides standing for appellant to pursue

such reparation. The court erred in not recognizing jurisdiction granted in this re-

gard (EOR, Pages 61-62). (6) As the states have applied for a convention and one

of the most applied subjects is the repeal of the 16th Amendment, appellees have

violated the Flast doctrine in that they have, by refusing to obey the amendatory

process described in Article V of the Constitution, acted to continue to levy income

tax by use of the taxing and spending clause in derogation of a constitutional pro-

vision (an amendment intended to repeal that income tax) intended to operate to

regulate the exercise of that tax and spending power (EOR, Pages 62-63). (7) The

court erred in not connecting the obvious dots. The district court record indisputa-

bly shows appellees have refused to obey the overwhelming number of state appli-

cations required by the Constitution to compel them to call a convention to propose

amendments (EOR, Pages 34-36) thus overthrowing this constitutional clause. The

Supreme Court has emphatically stated there is no constitutional immunity for

anyone attempting to overthrow our constitutional form of government by uncon-

stitutional means (EOR, Page 170). The doctrine of standing is a constitutional

immunity that can be employed by a court immunizing defendants/appellees from

suit as the district court did. However, in this instance lack of standing by appellant

cannot be employed by the court to immunize appellees because of the acts of the

appellees overthrow our constitutional form of government.


(8) Under federal income tax law, appellees are considered employees and

may be sued individually for violations of tax law:

“For purposes of this chapter, the term ‘employee’ includes an officer, em-ployee, or elected official of the United States…”26 U.S.C. 3401(c)).

Appellant asserted court jurisdiction under 28 U.S.C. 1346(a)(1)(2), (EOR,

Pages 109-110) asserting appellees’ act of veto of the Constitution permitted illegal

collection of income tax. Had appellant asserted his claim under 28 U.S.C. 1346(b)

then under the terms of 28 U.S.C. 2679(a):

“The authority of any federal agency to…be sued…shall not be construed to authorize suit against such federal agency on claims which are cognizable under section 1346 (b) of this title.” (Emphasis added).

By statute, the United States is substituted as defendant if the Attorney Gen-

eral determines the employee so named under 28 U.S.C. 1346(b) acted “within the

scope of his office or employment.” However this substitution does not occur if the

claim asserted under 28 U.S.C. 1346(a)(1)(2) as appellant did. Hence, for “the

government” to enter this suit, it must be on the basis it asserts the actions of appel-

lees were a duty of office. The government has conceded such a suit as appellant’s

is “judicially authorized”:

“Federal officials acting with in the scope of their employment are shielded from liability under …28 U.S.C. § 2679(b)(1). However that immunity does not extended to ‘action against an employee of the Government which is brought for a violation of the Constitution of the United States [.]’ Id. § 2679(b)(2). Actions against individual federal officials for certain types of alleged constitutional viola-tions are judicially authorized by Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).” We the People Foundation Inc. et al., v. United States, et al., United States District Court for the District of Columbia, No. 1:04-cv-01211 EGS (2004) Defendants’ Memorandum to Court, p. 13. (Hereafter We the People).


The district court erred in that it acted under 28 U.S.C. 2006 to make the ac-

tion of veto of the Constitution by appellees a duty of office under 28 U.S.C.

1346(b) and employed of 28 U.S.C. 2679(c)(d) to accomplish this when appel-

lant’s jurisdiction assertion was made under 28 U.S.C. 1346(a) which does not

permit such action by the court. Further, 28 U.S.C. 2679(b)(2) makes it clear any

immunity of duty of office for appellees is voided when the civil action is “brought

for a violation of the Constitution of the United States.” This court action also af-

fected appellant’s ability to properly serve appellees in appeal, which shall be dis-

cussed later. As the Supreme Court has held there is no constitutional immunity for

the overthrow of our constitutional form of government, it is clear this suit is au-

thorized under Bivens. The court failed to accept this judicial authority granted un-

der Bivens and therefore erred in its dismissal.

Error # 4: The court reached its conclusion of dismissal based on distortions

of appellant’s submitted material. For example, the court employed 28 U.S.C.

1346(b) to determine appellees’ duty of office immunity whereas appellant as-

serted claim under 28 U.S.C. 1346(a)(1)(2) (see supra, Error # 3). The court stuck

13 motions “filed by plaintiff, asking the Court to refer various matters to the

United States Attorney General for prosecution” when in fact only nine motions

made such a request (EOR, Page 67). The court refused to refer these criminal ac-

tions by appellees for prosecution yet did not deny that appellees had in fact com-


mitted them (EOR, Page 70). The court discussed lack of jurisdiction regarding

appellant’s right to vote under 42 U.S.C. 1973(a) when appellant made claim under

42 U.S.C. 1973i(a) and 42 U.S.C. 1973j(c) (EOR, Page 66,72-75). The court cited

26 U.S.C. 7214 as a basis for lack of jurisdiction and dismissal when appellant as-

serted 26 U.S.C. 7422 and other associated laws (EOR, Pages 64,66,69). The court

referred to 42 U.S.C. 1985(c) which does not even exist, as a basis of lack of juris-

diction (EOR, Page 66). In its Order to Show Cause, the court requested statutory

proof of jurisdiction which appellant presented for each of his complaints. These

statutes were in turn dismissed by the court as “wholly fail[ing] to cure the defects

found in the complaint”(EOR, Page 67). While one error is not individually fatal,

their compilation in light of the serious constitutional questions involved, demon-

strates a level of judicial carelessness worthy of reversal as the dismissal was not

based on the facts and evidence presented to the district court.

Error # 5: The court erred in not refuting appellant’s assertion that standing

was not required for appellant in this suit due to an earlier ruling of the district

court (EOR, Pages 76-90). In sum, in Walker v. United States the district court

ruled a convention call was a political question for appellees to decide. Further it

created new powers for appellees giving exclusive control of the amendatory proc-

ess. If appellees have exclusive control of the process, it is consistent to assert they

are free to act in any manner regarding that process. Hence, they may reject, veto


or ignore any portion of that process at their political whim. As the Constitution

does not permit this, the court eliminated its supremacy. In order for the court to

have made such a sweeping ruling, standing was obligatory on the part of appel-

lant. As the court made this ruling in Walker v. United States and repeated its rul-

ing in Walker v. Members of Congress yet maintained appellant lacked standing in

both instances, such a court ruling was precluded. As there was a ruling, appellant

had standing and therefore for the court to have dismissed for lack of standing in

Walker v. Members of Congress was an error.

Error # 6: The district court cited 26 U.S.C. 7214 as a basis for lack of juris-

diction in its dismissal while appellant asserted 26 U.S.C. 7222 and associated laws

as the basis for reparation of his income tax in his complaint (EOR, Page 97). In

any event, the court erred in dismissal by citing 26 U.S.C. 7214 since, as pointed

out by appellant, repayment is authorized under that statute 26 U.S.C. 7214(a)(9)

when requested by writ of execution which the appellant did submit (EOR, Page

93). Therefore the court had jurisdiction even when it used the wrong statute as the

basis for dismissal. The court further exercised jurisdiction in determining appel-

lees’ action was a duty of office (EOR, Pages 94-96). Further, appellant requested

the illegal extortion by appellees of withholding an official act, i.e., a convention

call, so as continue collecting income tax, be referred to the Attorney General. The

court refused. Such illegal actions fall under 26 U.S.C. 7214(1) (EOR, Page 104-


105). Finally, appellant cited other numerous statutes granting court jurisdiction all

of which the court ignored (EOR, Pages 108-110).

Appellant demonstrated he has legally paid his income tax (EOR, Pages 98-

103) and that the IRS had no tax claim against him whatsoever (EOR, Page 163).

Appellant holds that he, like appellees, do not have the right as citizens to decide

which constitutional provisions they will obey and they have committed, among

other crimes, the act of perjury in taking an oath of office to “support” the Consti-

tution when, in fact, by their actions, they obviously have not done so (EOR, Pages

105-107). Overall, the court was presented repeated examples of statutory jurisdic-

tion and erred in ignoring all of them.

Error # 7: The court erred in denying a writ of mandamus sought by appel-

lant in that it did not deny its jurisdiction to do so and erred by refusing to issue

such writ. Appellant demonstrated to the district court that it had under 28 U.S.C.

1361, “original jurisdiction in the nature of a mandamus to compel an officer or

employee of the United States to perform a duty owed the plaintiff” (EOR, Page

111). Appellant demonstrated a convention call was a ministerial official duty of

appellees in which they had no discretion regarding it (EOR, Pages 112-114). Ap-

pellant demonstrated a writ of mandamus was owed him in order to prevent the

appellees from continuing their extortion of income tax by failing to obey the Con-

stitution, protecting him from illegal threats from the IRS, as well as restoring his


right to vote for election of delegates (EOR, Pages 114,115,163). The writ of man-

damus was further required to restore constitutional supremacy, a concept the dis-

trict court rejected outright despite clear evidence of Supreme Court rulings and

federal law to the contrary (EOR, Pages 116-119).

Error # 8: The court did not refute, deny nor address appellant’s assertion of

jurisdiction under 42 U.S.C. 1983. The court did not refute appellees have commit-

ted a criminal act under 18 U.S.C. 242. The court therefore erred in dismissing ap-

pellant’s suit for lack of jurisdiction.

Appellees have violated 42 U.S.C. 1983 in that their “custom and usage” of

refusal to call a convention as mandated by the Constitution prevents appellant

from voting in a state election that he would otherwise be entitled vote in. Thus, by

their act of veto appellees have also acted under color of Washington State’s voting

law to restrict appellant from voting in an election that he is otherwise entitled to

participate in (EOR, Pages 120-123). Further, such interference violates 18 U.S.C.

242 (EOR, Pages 124-127).

There is a significant difference in regards to immunity between 42 U.S.C.

1983 which discusses: “who, under color of any statute…custom, or usage…of any

state or territory or the District of Columbia, subjects… any citizen to the depriva-

tion of any rights…” and 18 U.S.C. 242 which discusses “[w]hoever, under color

of any law…or custom, willfully subjects any person in any State…to the depriva-


tion of any rights, privileges, or immunities secured or protected by the Constitu-

tion or laws of the United States…shall be fined or imprisoned…” (EOR, Pages

124-127). The word common between both laws is “custom.” Hence, if an act that

deprives any person of any rights, privileges or immunities secured or protected by

the Constitution or the laws of the United States is exercised by appellees, such act

simultaneously violates both statues. 42 U.S.C. 1983 deals with actions taken un-

der color of state law, but 18 U.S.C. 242 addresses both federal and state officials

as it deals with “any” custom in any state, i.e., refusing to call a convention thus

depriving appellant of his right to vote in an election of delegates to such a conven-

tion. As such appellees have violated federal law in that they have subjected appel-

lant to a custom that deprives him of his rights in any state. Therefore they have

committed a criminal act.

However, appellees’ custom of refusing to call a convention also assumes

authority under color of Washington state law. In Washington State, under state

law, an application for a convention to propose amendments may be initiated by an

initiative to the state legislature. The custom of the appellees removes the legal

force of the state initiative process as well as overturns a state supreme court ruling

recognizing the right of the people to exercise their right of alter or abolish at the

state level by causing their legislature to make application for a convention call

through the initiative process (EOR, Pages 128-133). While the actual application


must be made by a state legislature, how that legislature comes to the conclusion to

apply for a convention is determined by the state itself and is clearly a state matter.

Only when the application is actually made does it become a federal matter. Any

intrusion by appellees in this state determination to make an application before the

legislature acts is therefore acting under color of state law because until application

is made, the matter is clearly regulated by state, not federal, law. However, when

appellees refuse to call, such act nullifies the legal force of state law, not federal

law because (1) there are no federal laws governing convention applications and

(2) the application through an initiative is made under the legal force of state law

and state court rulings. Applications are derived under legal acts controlled and

regulated by state laws, not federal laws until actual application is made by the leg-

islature. Finally, the act of veto by withholding a convention call by appellees di-

rectly violates Washington State law. RCW 9A.56.130(1) states extortion in the

second degree is “A person is guilty of extortion in the second degree if he or she

commits extortion by means of a wrongful threat as defined in RCW

9A.04.110(25) (d) through (j).” RCW 9A.04.110(25)(h) defines a “threat” as “To

take wrongful action as an official against anyone or anything, or wrongfully with-

hold official action or cause such action or withholding…” As the Supreme Court

has ruled there is no constitutional immunity for the overthrow of the constitutional

form of government appellees cannot seek refuge in the federal Constitution as


there is no immunity of any description for them (EOR, Page 177). Thus, the fact

they are federal officials who normally operate under federal law offers no immu-

nity in this instance because overthrowing the Constitution is not operating under

federal law or under authority of the Constitution. Appellees are thus liable for

state criminal violations as well as federal criminal violations. As such, appellees

can offer no constitutional defense of any nature, such as standing, political ques-

tion, separation of powers, speech and debate clause, sovereign immunity or any

other immunity granted by the Constitution. All of these immunities only come

into effect if appellees operate within the Constitution, which they have not. Fi-

nally, appellees are liable under 28 U.S.C. 1346(b)(1) which must be applied be-

cause the government has asserted the veto of the Constitution is a duty of office of

appellees. The statute applies as appellees’ extortion is a “wrongful act”, has

caused appellant “loss of property” i.e., money, and such act is a violation of “the

law of the place where the act or omission occurred” in this case the State of

Washington.

Error # 9: The court erred in its interpretation of the speech and debate

clause of the Constitution by asserting a convention call is part of the legislative

function requiring a vote of consent by appellees thus allowing them to veto the

convention clause by refusing such consent (EOR, Page 66). First, the language of

the clause itself does not exempt appellees from acts of felony. Hence, they are li-


able for all criminal acts alleged in this suit (EOR, Page 66). Second, it is indisput-

able the Founders never intended to give or permit appellees any form of consent

in regards to a convention call (EOR, Pages 134-138). Third, the Supreme Court

has made it clear the amendatory process is not part of the legislative function and

hence is not protected by the speech and debate clause (EOR, Page 135). Fourth, as

appellees have acted to overthrow our constitutional form of government, there is

no constitutional immunity including the speech and debate clause (EOR, Page

177). Fifth, the legislative function of appellees is described in Article I, § 8 of the

Constitution together with a general “necessary and proper” clause only pertains to

the “foregoing” powers listed in § 8. Control of the amendatory process is not im-

plied, described nor listed. Hence, consent to a convention call is not a legislative

function as the Constitution limits legislative function to the “foregoing” powers.

Error # 10: The court erred by ignoring its jurisdiction under 28 U.S.C. 1343

(1)(3)(4). As has been demonstrated in this brief the acts of appellees have violated

appellant’s rights including the right to vote. 28 U.S.C. 1343 specifically addresses

and grants court jurisdiction such violations (EOR, Pages 139-140). Further, acts

of appellees satisfy the parameters required under 42 U.S.C. 1985(1) and as the

district court discussed 42 U.S.C. 1985(c), a non-existent statute as a basis for dis-

missal, obviously such parameters were not considered by the court in its dis-

missal; thus the court erred (EOR, Pages 140-141). Appellees’ civil action of deny-


ing appellant’s right to vote also violated federal criminal law (EOR, Pages 141-

148).

Error # 11: The court erred in it did not deny appellees have not committed

criminal acts and in not reporting the same to proper authorities for prosecution.

The court did not exonerate appellees’ criminal acts in its order of dismissal or in

any other court order (EOR, Page 150). In his motion for reconsideration appellant

brought this fact to the attention to the court and thus such omission must be con-

sidered deliberate on the part of the court (EOR, Pages 151-152). Appellant also

noted to the court that under 18 U.S.C. 371 and 18 U.S.C. 1512(e) that lack of

standing does not excuse the court from reporting criminal acts by federal officials

(EOR, Pages 153-154).

Error # 12: As with all other appellees, the court did not refute appellees

Snow and Everson committed criminal acts against appellant and therefore erred in

failing to report such criminal acts to the proper authorities. Unlike some income

tax suits, appellant has paid his income tax regularly, fully, and in a timely fashion.

He has no tax liability whatsoever. In short, he is a legal taxpayer (EOR, Pages

155-160). Therefore for appellant to request reparation under appropriate federal

law of income tax he maintains has been illegally collected is not an illegal act

(EOR, Pages 161-163). For appellees Snow and Everson to state by whatever

means such a request may result in criminal action or imprisonment against the ap-


pellant violates federal law as well as state law as it constitutes a threat made

against him for exercising his right to appeal the government decision in court

(EOR, Pages 164-170).

Error # 13: The court erred in establishing an immunity of exclusive amen-

datory control of the Constitution for appellees allowing them to overthrow our

constitutional form of government in violation of Supreme Court rulings, federal

law and constitutional language, meaning and intent. The district court, in creating

its political question doctrine immunity agreed with appellees’ public assertion re-

jecting “the government must act in accordance with law” when that law is the di-

rect language of the Constitution. This public advocation of the right to veto the

Constitution made by appellees violates 5 U.S.C. 7311 (EOR, Pages 175-183). The

ruling created a unified amendatory process “exclusively” controlled by appellees.

It established the direct language of the Constitution can be “amended” by judicial

fiat. It established the citizens whose actions that language is intended to regulate

can veto the direct language of the Constitution. Overall, the ruling absolutely con-

tradicts the Founder’s unequivocal intent to create two autonomous amendatory

processes (EOR, Page 182) as part of our constitutional form of government. The

ruling nullifies the Constitution as the supreme law of the land subjugating it to

legislative whim (EOR, Pages 18-22). There is no immunity for the overthrow of

our constitutional form of government by such unconstitutional means (EOR,


Pages 176-177, 188). The Supreme Court is unambiguous: appellees must call a

convention if the states apply in proper number, which they have (EOR, Pages 32-

38). The appellees swore an oath of office to obey the Constitution by bearing

“true faith and allegiance” to the same (EOR, Pages 172-173). They have shown

“mental reservation or purpose of evasion” another violation of oath of office, by

their refusal to call a convention as required by Article V. As they swore an oath,

such action constitutes perjury (EOR, Pages 172-174). Appellant maintains appel-

lees do not have the right to veto the Constitution, do not have, nor ever were in-

tended to have, “exclusive” control of the amendatory process, do not have any

consent authority regarding a convention call (EOR, Page 182) and their acts vio-

late the Constitution, as well as federal civil and criminal law. Congress must call.

The district court erred in its ruling granting such unconstitutional authority to ap-

pellees.

Error # 14: The district court erred in dismissal of appellant’s suit in failing

to recognize its authority under 28 U.S.C. 1331 giving it original jurisdiction of all

civil actions arising under the Constitution to district courts.

The Supreme Court has addressed the matter succinctly:

“The federal court’s power to grant relief not expressly authorized by Con-gress is firmly established. Under 28 U.S.C. 1331, the federal courts have jurisdic-tion to decide all case ‘aris[ing] under the Constitution, laws, or treaties of the United States.’ This jurisdictional grant provides not only the authority to decide whether a cause of action is stated by a plaintiff’s claim that he has been injured by a violation of the Constitution, Bell v. Hood, 327 U.S.678, 684 (1946), but also the


authority to choose among available judicial remedies in order to vindicate consti-tutional rights. This Court has fashioned a wide variety of nonstatutory remedies for violations of the Constitution by federal and state officials.” Bush v. Lucas, 462 U.S. 367 (1983).

While this ruling may at first appear to favor the district court’s decision, a

later ruling by the Court clarified is matter:

“In 1971, this Court held that the victim of a Fourth amendment violation by federal officers acting under color of their authority may bring suit for money damages against the officers in federal court. Bivens v. Six Unknown Fed. Narcot-ics Agents, 403 U.S. 388. The Court noted that Congress had not specifically pro-vided for such remedy and that “‘the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages for the conse-quences of its violation.’” Id., at 396. Nevertheless, finding “‘no special factors counseling hesitation in the absence of affirmative action by Congress,’” and “‘no explicit congressional declaration’” that money damages may not be awarded, the majority relied on the rule that ‘“‘where legal rights have been invaded, and a fed-eral statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.’”’ Id., at 396-397 (quot-ing Bell v. Hood, 327 U.S. 678, 684 (1946)).” Schweiker v. Chilicky 487 U.S. 412 (1988).

There is no federal legislation, hence no explicit congressional declaration,

addressing the convention process of amendment. The intent of the Founders is

clear: a convention call is peremptory on Congress and therefore no discretion on

their part is permitted. Hence, there can be no “special factors” in this instance.

Congress has taken no action whatsoever in the form of legislation to deny appel-

lant the right to sue to recover his right of alter or abolish, a right guaranteed in the

Ninth Amendment of the Constitution. Through this right appellant possesses the

right to vote both in the general sense and in the specific; to vote for delegates to a

convention, to seek public office such as convention delegate, to exercise his First


Amendment rights, i.e., to sign initiative petitions which possess the legal force of

law and cannot be nullified by the interference of appellees; in short to exercise

every right, immunity and privilege or citizenship implied or stated in the Constitu-

tion (EOR, Pages 188-191). Therefore appellant has a right to recover any or all of

these rights denied him by action of the government or officials thereof. As the

amendatory process is part of the Constitution, court jurisdiction to recover these

rights is clearly established. The standards set by the Supreme Court which might

preclude court jurisdiction do not apply in this instance because they would pro-

vide constitutional immunities where none are permitted because appellees’ acts

overthrow our constitutional form of government and therefore the district court

erred in dismissal of appellant’s suit.

Error # 15: In its Order of Dismissal, the court relied heavily upon Lujan v.

Defenders of Wildlife, 504 U.S. 555 (1992) decision holding these standards re-

quired satisfaction if the court was to extend jurisdiction (EOR, Page 242-243).

Appellant having shown he did so satisfy, the court erred in dismissing his suit on

the basis he did not satisfy Lujan.

In sum, appellant asserted a concrete and particularized injury, the loss of

tax money as well as individual rights by government officials refusing to obey the

Constitution. He showed there was a causal connection between this act of refusal

and the injury inflicted on appellant in that the refusal to call a convention prevents


the repeal of the tax using legal and constitutional means to do so. Finally, he

showed that a favorable decision by the court would redress the matter in that it

could cause the return of his money and by enforcement of the Constitution as in-

tended by the Founders, cause the process of the removal of the tax by legal and

constitutional means to proceed (EOR, Page 192-193). Thus, Lujan is satisfied.

There is a commonality to all court rulings regarding standing; all have dealt

with government discretionary powers, i.e., the administration of government regu-

lations such as in Lujan. Such is not the case here. The convention clause is not a

general constitutional grievance; it is a constitutional command just as holding an

election for President or the process of how a proposed bill becomes law is a com-

mand. It is part of the structural rights of the Constitution. It is one thing for a citi-

zen to complain generally about the legitimate use of discretionary power by the

government. It is quite another for a citizen to complain against the veto of direct

peremptory constitutional language by federal officials charged with carrying out

that language and who refuse to do so. Such acts have no constitutional immunity

and therefore the standards of Lujan cannot apply whether or not appellant did sat-

isfy them. The district court failed to recognize this fact and there erred in its dis-

missal.

Error # 16: The court erred in failing to permit proper response by appellees

to service made by appellant in compliance with FRAP 4(d). The failure of the


court to enforce the return of service as required by FRAP 4(d) and FRAP 12

leaves doubt as to the status of appellees’ legal representation. While an attorney

from the Department of Justice, Karen D. Utiger, has asserted representation for

“the government,” this “representative” has provided no proof she is empowered to

represent the individuals named in appellant’s district complaint (EOR, Page 199).

No agency of the government is named in this suit, only individuals. Hence, only

certain statutes authorize representation by the U.S. Attorney. Ms. Utiger has not

invoked representative authority under 2 U.S.C. 118. Ms. Utiger has returned no

waivers of summons to appellant for filing in district court as required by FRAP 4.

The forms require signature by the legal representative of the individual[s] served

(EOR, Pages 197-198). As Ms. Utiger has not presented such evidence of represen-

tation either by waivers or 2 U.S.C. 118, the only statutory avenue available is as-

sertion by the government of duty of office under 28 U.S.C. 2679. As such it is

proper for appellant to assert the government maintains appellees have the right to

veto the Constitution as a duty of office as their presence of representation affirms

this assertion.

As appellant did not request the district court to in any way rescind or oth-

erwise effect its order of dismissal and specifically stated this fact to the court

(EOR, Pages 194-196), it is clear his motion was only intended to see that proper

service was completed according to applicable court rules. The district court erred


in refusing to grant his motions to accomplish proper service as specified under

FRAP 4 and related subsections.

Error # 17: The court erred in failing to recognize appellant’s standing and

its jurisdiction under federal income tax law. The district court ignored several fed-

eral statutes all of which grant standing and court jurisdiction in the matter of in-

come tax claims by citizens including:

-28 U.S.C. 1340 granting original jurisdiction “of any civil action arising

under any Act of Congress providing for internal revenue.”(EOR, Page 202);

-28 U.S.C. 1346(a)(1) providing jurisdiction for “any civil action against the United States for the recovery of any internal-revenue tax alleged to have been er-roneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws” (EOR, Pages 201,202);

-28 U.S.C. 1357 calling for “jurisdiction of any civil action commenced by

any person to recover damages for any injury to his property…for the…collection

of any the revenues…” (EOR, Page 200).

In addition 28 U.S.C. 1346(a)(2) and (b)(1) allows claims for illegal or un-

constitutional acts both of which were alleged to the district court by appellant. 28

U.S.C. 1346(b)(1) in turn involves 28 U.S.C. 2679 which makes it clear that im-

munities of suit against appellees do not apply when a violation of the Constitu-

tion, such as refusal to obey a constitutional provision thus permitting continuing

collection of income tax, is involved. The exceptions found in 28 U.S.C. 2680(a)


do not apply as the issue is neither a statute nor regulation but a constitutional

clause that is in no way discretionary; in fact is peremptory thus nullifying any

statutory exception, immunity or privilege of appellees.

Appellant has obeyed all applicable tax provisions before commencing his

suit in district court (EOR, Pages 201, 202). He made application to Secretary of

Treasury Snow and IRS Commissioner Everson (EOR, Page 212, 213) under 26

U.S.C. 7422 and received a negative response indicating the government would be

taking no further action in appellant’s complaint (EOR, Page 215). He obeyed all

statutes as to a waiting period before commencing a suit (See 28 U.S.C. 2675(a). In

short, the district court had no basis under statute by which to deny appellant’s suit

for lack of jurisdiction, as there is a redundancy of court jurisdiction in federal

statute. These jurisdictions were cited to the district court (EOR, Page 203).

Further appellant invoked the Flast doctrine, which in sum permits a tax-

payer suit if it is alleged congressional taxing and spending “is in derogation of

those constitutional provisions which operate to restrict the exercise of the taxing

and spending power…” (EOR, Pages 205, 206). Thirty-nine states have applied for

repeal of the 16th Amendment, the federal income tax amendment, through the

convention process (EOR, Pages 209-211) a number sufficient on its own to cause

a convention call. Congress has ignored all 567 state applications for a convention

(EOR, Pages 207-209). Repeal of federal income tax by constitutional amendment,


a constitutional provision would “operate to restrict the exercise of the taxing and

spending power” of appellees and therefore appellees’ refusal to call a convention

as required by Article V falls under the Flast doctrine. As appellant asserted this

ground of jurisdiction, the district court erred in not recognizing this jurisdiction.

As appellees are employees (EOR, Page 222) who have continued to collect

income tax while unconstitutionally barring the amendment process they have

committed extortion in violation of federal law (26 U.S.C. 7214(1))(EOR, Page

221) and state law (supra, p. 31). Appellant was threatened with imprisonment by

the government for even requesting reparation of tax money as is permitted by fed-

eral law (EOR, Pages 213, 213, 215). This action also falls under acts prohibited

by federal and state extortion laws.

Appellant discussed the threatening letter at length in his suit at district court

(EOR, Pages 216-218). The most significant points were: (1) the form letter shows

appellees had knowledge of the constitutional and criminal violations for at least a

decade; (2) appellant has violated no federal income tax law; (3) the government

does not refute appellant’s constitutional arguments thus leading to the conclusion

they are true and valid; (4) the threatening letter violates federal law; (5) the letter

asserted federal courts have “consistently ruled against [appellant’s] argument; and

(6) the IRS closed the issue thus permitting appellant who was not intimidated by

the threats to begin a federal law.


Appellant asserts there are no federal court rulings which hold the govern-

ment; (1) may violate the Constitution in order to collect income tax; (2) commit

acts of extortion in order to collect income tax; (3) use threats of imprisonment or

other threats against law-obeying citizens who employ that law in an attempt to re-

cover illegally collected income tax.

In this regard, appellant requested the district court report violations of fed-

eral income tax law by federal officials and employees be reported for prosecution

(EOR, Pages 219, 220, 223, 224). The position of appellees is clear in this matter:

they assert the right to veto clauses of the Constitution they find unpalatable or po-

litically inconvenient. The court erred in refusing to report such an issue and in ac-

cepting appellees’ assertion. No one has a right to veto the Constitution.

Based on the actions of extortion and violation of the Constitution, appellant

made a motion for a writ of execution against appellees (EOR, Pages 225-227). As

vetoing the Constitution is not part of the official duties of appellees, it is clear the

court cannot use 28 U.S.C. 2006 to excuse the action of appellees in vetoing the

Constitution. Further, appellees Snow and Everson violated federal law in issuing a

threat against appellant (EOR, Pages 228-230). In sum the court erred in failing to

recognize its jurisdiction under appropriate federal income tax law.

After boiling down all issues of taxes, standing and jurisdiction, this suit

comes down to this: The Constitution mandates a peremptory convention call. All


50 states have applied for a convention submitting a total of 567 applications. The

Constitution only requires that 34 states apply for a total of 34 applications. Appel-

lees have ignored all applications and refused to call thus violating not only the

Constitution but federal and state criminal law as well.

The district court ruled appellees have the authority to decide if it has to

obey a clause of the Constitution, thus giving that body---and presumably every

citizen---the right to veto clauses of the Constitution they disagree with.

The question: Does the government have to obey the Constitution or not? If

the court says it does, there is a convention. If it says no, there’s no longer a Con-

stitution because the Constitution will no longer have legal force. It’s as simple as

that.

The Constitution has two forms of amendatory process and appellees are il-

legally preventing one from happening. There is nothing in the Constitution that

gives appellees the power of consent to a convention nor were they ever intended

to.

The issue is not court jurisdiction. This court will exercise its jurisdiction ei-

ther way just as the district court did. Either it will determine the Constitution must

be obeyed which is an exercise of jurisdiction, or it will not, which modifies the

Constitution by judicial decree, which is also an exercise of jurisdiction. There is

no third choice. Either the Constitution is obeyed or it is not.

05-35023

EXCERPT OF RECORD

05-35023

05-35023

TABLE OF CONTENTS

(Note: All page references herein (Page xx) refer to the page number shown on the lower left hand corner of the Excerpt of Record irrespec-tive of any other page numbers on the page. The numbers in brackets [xx] refer to the documents comprising the U.S. District Court Clerk’s record numbered in conformance with Rule 11(b) of the Federal Rules of Appellate Procedure and as described in the District Court’s Docket Sheet herein attached. The errors herein described (Error # x) in the Ta-ble of Contents refer to issues raised in the Form Brief, infra.) Error # 1, Veto of Is Duty of Office……………………..….Pages 5-48

Brief, [8]; Evidence Appendix, [9]; Motion for Reconsidera-tion, (Motion N) [28]; Response to Order to Show Cause, [7]; Motion M, [25]; Motion L, [24]; Letter of U.S. Attorney.

Error # 2, Willful and Deliberate…………………………..Pages 49-51 Motion N, [28]. Error # 3, Issues of Standing Ignored………………….….Pages 52-63 Brief, [8]. Error # 4, Complaint Misquoted………………………...…Pages 64-75

Complaint, [1]; Order to Show Cause, [7]; Order of Dismissal, [26]; Motion N, [28]; Motion J, [22].

Error # 5, Standing Not Required…………………………..Pages 76-92 Brief, [8]. Error # 6, Income Tax Law Not Addressed………….……Pages 93-110

Motion L, [24]; Motion N, [28]; Motion M, [25]; Complaint, [1]; Evidence Appendix, [9]; Motion I, [21]; Motion G, [19]; Response to Order to Show Cause, [7].

Error # 7, Mandamus Error………..………….…………..Pages 111-119 Response to Order to Show Cause, [7]; Motion A, [13]; Brief, [8].

05-35023

Error # 8, Deprivation of Rights Not Addressed………….Pages 120-133 Complaint, [1]; Response to Order to Show Cause, [7];

Motion D, [16]; State Attorney General Letter and Opinion re: State ex rel. Mullen v. Howell, 107 Wash. 167, 181 Pac. 920 (1919) .

Error # 9, Speech and Debate……….…..………..……….Pages 134-138 Response to Order to Show Cause, [7]; Brief, [8]. Error # 10, Right to Vote………………….………………Pages 139-149 Response to Order to Show Cause, [7]; Motion D, [16];

Motion C, [15]. Error # 11, Refusal to Report Crime……………..….……Pages 150-154 Order of Dismissal, [26]; Motion N, [28]; Brief, [8]. Error # 12, Criminal Acts Not Refuted………………..….Pages 155-171 Evidence Appendix, [9]; Motion F, [18]. Error # 13, Overthrow of Form of Government…………..Pages 172-187 Motion G, [19]; Motion B, [14]; Brief, [8]. Error # 14, Failure to Recognize 28 U.S.C. 1331…………Pages 188-191 Brief, [8]; Response to Order to Show Cause, [7]. Error # 15, Lujan Satisfied…………...………..………….Pages 192-193 Motion N, [28]. Error # 16, Improper Service Procedures Permitted…..….Pages 194-199

Motion P, [31]; Typical Waiver of Service Sample; Notice of Lawsuit Form; Letter of U.S. Attorney.

Error # 17, Error of Jurisdiction re: Income Tax………….Pages 200-230 Response to Order to Show Cause, [7]; Brief, [8]; Evidence Appendix, [9]; Motion E, [17]; Motion I, [21]; Motion L, [24]; Motion N, [28]. Notice of Appeal [33]……………………………...……………Page 231 District Court Complaint [1]..………………………...….Pages 232- 238

05-35023

District Court Orders Order to Show Cause [5]……..…..……………..Pages 239-241

Order of Dismissal [26]…………………………Pages 242-243

Minute Order [29]…………………………………….Page 244 Minute Order [32]…………………………………….Page 245 Entry of Judgment [27]……………………………….Page 246

Certificate of Record…………………………………..Page 247 Docket Sheet…………………………………….Pages 248-251 Certificate of Service………………………………….Page 252

Main Brief, Case No: C04-1977RSM 2

Bill Walker, pro se PO Box 698 Auburn, WA 98071-0698 (253) 735-8860

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

the overthrow of our constitutional form2 of government in violation of federal criminal and civil

laws (hereafter federal law(s)).

This suit seeks relief by: (1) punishment of Congress for these violations as prescribed by

federal law; (2) restoration of constitutional supremacy and authority by Writ of Mandamus; (3)

reparation by Writ of Execution of income tax payments extorted from Plaintiff by Congress un-

der color of law in the amount of $7333.00.3

VENUE, JURISDICTION

Venue is asserted under 28 U.S.C. 1391 (e)(1),(3) and 28 U.S.C. 1402(a)(1),(b). Jurisdic-

tion is asserted under 28 U.S.C. 1331, 1340, 1343(1),(3),(4), 1346(1)(2), and 1361. Further, ju-

risdiction is asserted under all U.S.C. statutes referenced by Plaintiff describing such court juris-

diction in his Response To Show Cause Order issued by this court on October 8, 2004. Beyond

these assertions, it is axiomatic the redress of criminal actions falls under court jurisdiction and

are therefore is also asserted by Plaintiff.

STANDING

Standing4 is asserted or addressed on the following grounds:

(1). The Supreme Court (hereafter Court) has recognized two axioms relating to the

amendatory procedure of Article V. The Court stated:

“The language of the article [5] is plain, and admits no doubt in its interpre-tation. It is not the function of courts or legislative bodies, national or state, to al-ter the method which the Constitution has fixed.” Hawke v. Smith, 253 U.S. 221 (1920) (hereafter Hawke). (Emphasis added).

2 “Form. 4. The particular way of being that gives something its nature or character; the combination of qualities making something what it is; intrinsic character; as, democracy and autocracy are two forms of government.” Web-ster’s New Twentieth Century Dictionary, Second Edition. (Hereafter Webster’s). 3 Under 26 U.S.C. 6511, reparation is requested for the past three years of tax payments, the limit allowed under law. As shown in Evidence Appendix, Summary Of Plaintiff’s Federal Income Tax Payments-Tax Years 2001,2002, 2003 pp.11-16, Plaintiff paid $2809 in income tax in tax year 2001, $2106 in tax year 2002 and $2418 in tax year 2003 for a total of $7333. 4In addition to the issues of standing addressed here, as Coleman v. Miller, 307 U.S. 433 (1939) has substantial ef-fect on standing in this suit, it will be discussed separately later in this brief.

Page 5 05-35023

05-35023



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

number of applying states, a call on the part of Congress for a convention is peremptory, obliga-

tory, and non-discretionary. Furthermore, the text makes it clear there is no other requirement in

the language of the Constitution for the states to satisfy, other than a two-thirds numeric count, in

order to compel Congress to call a convention. Hence, the subject matter of an application, (if

any) its contemporaneous or any other so-called standard is constitutionally invalid. All fifty

states have applied to Congress to call a convention, submitting 567 applications.27 This number

of state applications and the number of states submitting them, more than satisfies the language

of Article V.

Congress has ignored all state applications, refusing to call a convention. Thus, by its ac-

tions, Congress claims the right to veto the meaning, intent and written language of the Constitu-

tion thus overthrowing our constitutional form of government. The Government did not repudi-

ate this fact during Walker deliberations. Indeed, through their legal counsel as part of its de-

fense, the Government asserted Congress’ right to veto by substituting a single amendatory proc-

ess exclusively controlled by Congress. This assertion vetoes the Constitution, “overthrows our

constitutional form of government” and allows Congress to assume dictatorial control of the

Constitution. The assertion violates federal laws.

Terming the convention call a “political question” Judge Coughenour ruled it was the

“province of Congress” to decide if Congress had to obey the Constitution. Thus, Walker estab-

lished Congress is not obligated to obey the meaning, intent or written language of the Constitu-

tion, thus vetoing it. Additionally, Walker established Congress possesses exclusive amendatory

control of the Constitution. As a result of the these new powers, federal courts no longer pos-

lute; conclusive, positive; not admitting of question, delay, reconsideration or of any alternative. Self-determined; arbitrary; not requiring any cause to be shown. Wolfe v. State, 147 Tex.Cr.R. 62, 178 S.W.2d 274, 279.” Black’s. (Emphasis added). 27 See Evidence Appendix, Table Summarizing Applications For A Convention To Propose Amendments, p.6.

Page 137 05-35023

05-35023

Response to Order to Show Cause Case No: C04-1977RSM

8

Bill Walker PO Box 698

Auburn, WA 98071-0698 (253) 735-8860

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

seek the office of delegate to the convention and is prevented from doing so by the criminal and

civil violations of the defendants. Thus he is a member of this group of clearly defined citizens.

Is this action invidious against the Plaintiff? Yes, because the motivations behind these il-

legal acts is continuation of unbridled political power for the defendants. If a convention is held,

political power will have to be shared and indeed the convention might even reduce or limit the

political power of the defendants. Such a situation surely clearly invokes ill will on the part of

the defendants, the very definition of invidious4 as it is axiomatic defendants crave political

power above all other considerations.

As the to court’s discussion of Gravel v. United States, 408 U.S. 606, 624 (1972), the

short answer to this concern is the Speech and Debate Clause of the Constitution, Article I, § 6,

Clause 1 does not exempt the defendants from acts of felony committed by them. Clearly, viola-

tion of the Constitution by criminal action is not protected by the Speech and Debate Clause as

such actions are in no way the “furtherance of the legislative function.”

As to the voting the court refers to in its Order which presumably refers to voting by

Congress, the Founders made it clear the convention call is “peremptory” and that “no consent of

the national legislature” is required for a call. (Brief pp.14, 33; fn. 49). Hence, there is no vote

for a convention call by Congress as there is nothing to vote on. The Speech and Debate Clause

does not apply as there is neither speech nor debate nor any other legislative action in the matter

which Congress has any discretion to vote on. Beyond this, the Supreme Court has made it clear

the amendatory process is not part of the legislative process as proposing amendments cannot

involve the actions of the President thus eliminating the legislative procedure specified in the

Constitution. (See Article I, § 7, clause 2). Hence, the amendatory process is not legislative in

4 Invidious: Like to incur ill will or hatred, or to provoke envy; giving offense, especially, by discriminating un-fairly.” Webster’s

Page 141 05-35023

05-35023



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

judge, lawyer or politician wishes the Constitution to be. This action is justified by asserting the

Constitution is old and requires rapid updating in order to meet the needs of today’s changing

society. The fact the Constitution contains two perfectly workable methods of amendment to cor-

rect such failures due to age is ignored in the name of expediency.

Whenever a law in meaning, intent and written language is ignored by those that law is

intended to regulate, there is no law. Such is the case with the Constitution. The issue Walker

addressed exists strictly within the Constitution. Those it was intended to regulate have vetoed its

law. Those it was intended would preserve the absolute, supreme law have sanctioned the veto.

The “living constitution” concept of constitutional law thus pervades.

As unilateral control of the Constitution has been assigned to a single political body en-

tirely contrary to the meaning, intent, and written language of the Constitution and such change

has been judicially sanctioned, it follows the Constitution’s effectiveness as the supreme law of

the land has been irrevocably terminated. While the Constitution may continue to possess some

intrinsic historic value, as an effective legal document, it is dead. As the Constitution is dead, its

original intent is dead and the court’s authority to review violations of the Constitution also dies.

Judgment can only be rendered when absolute standards on which to base them exist. The court

cannot hold an act of the Government violates standards the Government is not required to obey.

THE PROBLEM WITH ALL THIS

These new powers of Congress overthrow our constitutional form of government and

therefore violate federal criminal and civil law.39 These laws exist in order to preserve our consti-

39 “An individual may not accept or hold a position in the Government of the United States or the government of the District of Columbia if he (1) advocates the overthrow of our constitutional form of government; (2) is a member of an organization that he knows advocates the overthrow of our constitutional form of government…” 5 U.S.C. 7311; “Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability or propriety of overthrowing or destroying the government of the United States…shall be fined under this title or imprisoned not

Page 178 05-35023



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

tutional form of government. Thus, those who violate these criminal laws, in this case Congress,

must be punished according to law in order to safeguard our constitutional form of government.

more than twenty years, or both, and shall be ineligible for employment by the United states or any department or agency thereof, for the five years next following his conviction.” 18 U.S.C. 2385; “Whoever violates the provision of section 7311 of title 5 that an individual may not accept or hold a position in the Government of the United States or the government of the District of Columbia if he (1) advocates the overthrow of our constitutional form of gov-ernment; (2) is a member of an organization that he knows advocates the overthrow of our constitutional form of government; shall be fined under this title or imprisoned not more than one year and a day or both.” 18 U.S.C. 1918.

Any doubt that Congress ignoring the amendatory process of Article V by vetoing its provisions does not fall under the provisions of these federal laws is defeated by Executive Order No. 10450, April 27, 1953 which cites 5 U.S.C. 3333 and 5 U.S.C. 7311 as part of its authority: Executive Order No. 10450 states (in part): “Whereas the interest of the national security require that all persons privileged to be employed in…the Government shall be reliable, trustworthy, of good conduct and character, and of complete and unswerving loyalty to the United States…it is hereby ordered as follows:

(a) The investigations conducted pursuant to this order shall be designed to develop information as to whether the employment or retention in employment…of the person being investigated is clearly con-sistent with the interests of the national security. Such information shall relate, but shall not be limited, to the following:

(4) Advocacy of use of force or violence to overthrow the government of the United States, or of the alteration of the form of government of the United States by unconstitutional means.” (Emphasis added).

There is only one constitutional means by which the form of government of the United States may be al-tered, by formal amendment to the Constitution as specified in Article V. Clearly, ignoring a clause in the amenda-tory process of Article V of the Constitution in order for the defendants to gain exclusive control of that process when such control clearly was not intended by the Founders is an “alteration of the form of government of the United States by unconstitutional means.” Defendants have not offered a formal amendment to Article V granting them exclusive control of the Constitution by one of the two amendatory processes allowed by that article. They have not submitted such a proposition to either state legislatures or conventions for ratification. Instead, they have chosen to veto the Constitution by surreptitious and criminal means instead of availing themselves of the Constitu-tion.

The Court has addressed the matter succinctly: “Nothing new can be put into the constitution except through the amendatory process, and nothing old can be taken out without the same process.” Ullmann v. U.S., 350 U.S. 422 (1956). While not cited in the court’s Order to Show Cause, October 8, 2004, this statute and executive order serves as a statutory limit on judicial authority preventing that branch from amendment by judicial decree. See supra, fn.17,34 and Order to Show Cause, 04-1977RSM, October 8, 2004, p.2. The defendants clearly are subject to 5 U.S.C. 7311. 2 U.S.C. 21 and 2 U.S.C. 25 requires that all members of Congress take oaths of office. 5 U.S.C. 2906 requires that “The oath of office taken by an individual under sec-tion 3331 of this title shall be delivered by him to, and preserved by, the House of Congress, agency, or court to which the office pertains.” 5 U.S.C. 3331 describes the oath of office of the members of Congress which states: “An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: ‘I, AB, do solemnly swear (or affirm) that I will support and defend the Con-stitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.’” (Emphasis added). 5 U.S.C. 3333 states: “…an individual who accepts office or employment in the Government of the United States…shall execute an affidavit within 60 days after accepting the office or employment that his acceptance and holding of the office or employment does not or will not violate section 7311 of this title. The affidavit is prima facie evidence that the acceptance and holding of office or employment by the affiant does not or will not violate section 7311 of this title.” (Emphasis added). Section 7311 referred to in 5 U.S.C. 3333 is of course 5 U.S.C. 7311 refer-enced above.

Page 179 05-35023



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

Federal law requires only a record of public advocacy such as the Congressional Record,

which record all of the applications for a convention by the states, or a court record, such as

Walker, for conviction. Regardless of its legal outcome, Walker is a public record and thus any

position by Congress however represented, is public advocation. The salient fact that Congress

has refused to call a convention to propose amendments despite the clear language of the Consti-

tution is public record. Such public advocation violates federal law.

In this case, actions literally speak louder than words. Simply put, the convention clause

was intended by the Founders to be “peremptory.”40 Because the word is all-inclusive, the Foun-

ders required no text elaboration in the language, meaning or intent of the Constitution. The

clause is the ultimate in legal brevity. Hence, by written design, with regard to the convention

clause, “peremptory” is an integral part of our constitutional form of government. Thus, any ac-

tion by Congress other than a call, even the assertion of political question or standing in a court

suit so as to avoid obeying the Constitution, defeats the explicit language of the Constitution.

Any assertion by the defendants other than a call overthrows our constitutional form of govern-

ment. Any advocacy for the defendants of any description, be it court technicality or state appli-

cation qualification where such assertions prevent a call by Congress violates federal criminal

law.41 A lack of standing on the part of a plaintiff in a civil case does not excuse criminal acts by

Congress nor does it permit a veto of the Constitution by Congress.

The convention call is peremptory. The applications are public record. The refusal to

obey the Constitution as shown in Walker is public record. Under these circumstances, the act 40 See supra, fn. 25. 41 See supra, fn. 39. Violation of 5 U.S.C. 7311 can be either by publicly advocating the overthrow of our constitu-tional form of government or belonging to a group that so advocates such overthrow. As Congress as a group refuses to obey the Constitution, thus overthrowing the Constitution by act of veto, its members, the defendants, have vio-lated the law. If it is urged particular defendants were not original defendants in Walker, this does not matter. These defendants are members of a group that does advocate the overthrow of our constitutional form of government, Congress, As members of that group, that body had continued to refuse to obey the Constitution thus making them equally guilty of violation of 5 U.S.C. 7311 by alteration of the form of government of the United States by uncon-stitutional means.

Page 180 05-35023



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

itself of not calling a convention satisfies the definition of “advocate.”42 But the advocacy of the

overthrow of our constitutional form of government goes even further.

In its Walker arguments, the U.S. Attorney, acting under instructions from his clients to

avoid obeying the Constitution,43 stated it was “well settled that it cannot be successfully urged

the government must act in accordance with law.”44 The convention clause exists exclusively in

the Constitution, the only law discussed in Walker. Thus the U.S. Attorney, the legal representa-

tive of Congress, who is assigned by law45 to present their position on obeying the Constitution,

the supreme law of this nation, asserted Congress was not required to obey the Constitution and

thus not obey its peremptory clause.46 Such public advocation, whether by a legal representative

charged by law to represent Congress in a public lawsuit for public record or by the recalcitrant

refusal of Congress when public record,47 the Constitution and federal law48demands such action,

42 “Advocate, 1. To plead in favor of; to defend by argument before a tribunal or the public; to support or vindicate; be in favor of; as, to advocate total abstinence.” Webster’s; “Advocate. To speak in favor of or defend by argument. To support, vindicate, or recommend publicly.” Black’s. 43 See supra, fn. 37, and p. 26 of this brief: “All members of Congress were defendants in Walker. ...” 44 See Walker, C00-2125C, United States’ Memorandum in opposition to Plaintiff’s motion for Declaratory and In-junctive Relief and in Support of Cross-motion to Dismiss, p.3, ¶ 2, allegedly quoting Allen v. Wright, 468 U.S. 737 (1984) (hereafter Allen). An examination of Allen reveals the Court did not say this so-called quote. What the Court specifically stated was, “This Court has repeatedly held that an asserted right to have the Government act in accor-dance with law is not sufficient, standing alone, to confer jurisdiction on a federal court.” As the Plaintiff in Walker cited several standings, such as disenfranchisement, the record is clear Plaintiff did not rely solely on the criminal acts of the government disobeying the Constitution alone for his standing. Hence the statement by U.S. Attorney does not refer to standing as the facts of Walker refute that meaning. Thus, it is clear defendants interpreted the Allen statement as the right to veto the Constitution carte blanche in regards to disobeying its clauses intended to regulate their acts. Hence, they refuse to call despite an explicit constitutional mandate to do so. This public declaration of disobedience and veto by the defendants is a far cry from the Court’s obvious meaning in Allen that a plaintiff must bring more to the judicial table than just a complaint the government is not obeying the Constitution. However as the convention call was designated by the Founders as peremptory, it is clear the Allen doctrine cannot apply and that an assertion Congress has failed to call is, in this specific constitutional instance, sufficient grounds alone for judicial intervention as the peremptory nature of the clause removes all such legal barriers the court has erected. 45 See supra, fn. 37. 46 If the convention clause is not peremptory on Congress, then the people, who established the Constitution with the objective of limiting government power, have no effective mechanism to regulate their government that is independ-ent of government control. The entire purpose of the Constitution, its limitations and delegation of power (see Madi-son v. Marbury, generally) is defeated. Our nation becomes a dictatorship. As these facts are well known to Con-gress, clearly this result is their objective. 47 All applications by the states for a convention are recorded in the Congressional Record, a public document re-quired to be maintained by Congress under Article I, § 4 (3) of the Constitution. For Congress to refuse to act on these applications as required by Article V of the Constitution is as much a public advocation and thus a violation of

Page 181 05-35023



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

Congress violates federal criminal law which only requires proof of public advocation for con-

viction.

This low standard of proof is reasonable given the constitutional circumstances. The

Founders, as well as earlier sessions of Congress which created these laws intended to preserve

our Constitution, understood the greatest threat to that Constitution were acts of insurgence

against our constitutional form of government by those charged by the Constitution to preserve

it.49 Obviously, by their acts of constitutional defiance, the defendants have rejected this sacred

responsibility in favor of furthering their own political and personal power.

The subject of Walker was the supremacy of law in the Constitution, which describes it-

self as “supreme law of the land.” The convention clause, (hence the law of that clause) exists

nowhere but in the Constitution, the “supreme law of the land.” Thus, an assertion by Congress

they do not have to obey “the law” assumes an entirely new meaning. The assertion of the Gov-

ernment as expressed then becomes one of overthrow of our constitutional form of government.

In any event, Congress’ public action of refusing to call a convention when demanded so by the

Constitution is by itself damning. Because the matter is peremptory, any assertion by the Gov-

ernment, regardless of its basis, simply provides further evidence of the intent of Congress to

federal law (see supra, fn. 39) as an assertion by Congress’ legal representative in open public court of its refusal to obey the Constitution in Walker. Both acts alter the government of the United States by unconstitutional means. 48 See supra, fn.39. 49 The words of Colonel Mason, the delegate at the Constitutional Convention who lead the effort to incorporate the convention amendatory proposal into Article V and opposed congressional consent in order to have a convention called are unambiguous: “The plan [Constitution] now to be formed will certainly be defective, as the confederation has been found on trial to be. Amendments therefore will be necessary, as it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance and violence. It would be improper to require the consent of the Natl. Legislature, because they may abuse their power, and refuse their consent on that very account. The opportunity for such an abuse, may be the fault of the Constitution calling for amendmt.” (Emphasis added). As a result of these remarks, the convention delegates added the convention amendatory process to Article V. Clearly, therefore, the original intent of the Constitution by the Founders was not to allow Congress the power to decide if a convention would be called or have control over it in any manner.

Page 182 05-35023



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

overthrow our constitutional form of government as it attempts to create a premise to refuse to

obey the Constitution.

The courts have spoken on Congress’ advocacy that it is not subject to obey the Constitu-

tion in plain, simple language:

“[I]t is axiomatic that all persons, … are subject to the Constitution and laws of the United States.” Donnell v. Town of Palm Beach et al. (03-81150-CIV) United States District Court Southern District of Florida (2003). The Court has also addressed this matter:

“[C]onvenience and efficiency are not the primary objectives—or the hall-marks—of democratic government… The choices … made in the Constitutional Convention impose burden on the governmental processes that often seem clumsy, inefficient, even unworkable, but those hard choices were consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked. There is no support in the Constitution or de-cisions of this Court for the proposition that the cumbersomeness and delays often encountered in complying with explicit Constitutional standards may be avoided, either by the Congress or by the President. With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted re-straints spelled out in the Constitution.”

Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983). (Footnotes omitted.) (Emphasis added.) As best, in refusing to call as demanded by the Constitution, Congress treats the conven-

tion call as a license it grants to citizens before these citizens can formally propose amendments

to their Constitution by the convention process. Congress, by its actions, asserts it controls the

terms and conditions of this license, taking whatever time it pleases to issue such license, if ever.

Under these circumstances, such prior restrain is unconstitutional, as the courts have made clear:

“As a form of prior restraint, licensing schemes commonly contain two de-fects; discretion and the opportunity for delay. An ordinance that gives public of-ficials the power to decide whether to permit expressive activity must contain pre-cise and objective criteria on which they must make their decisions; an ordinance that gives too much discretion to public officials is invalid. See Shuttlesworth v City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). Licens-ing ordinances must also require prompt decisions. An ordinance that permits public officials to effectively deny an application by sitting on it indefinitely is also invalid. See Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965).” Lady J. Lingerie, Inc. v. City of Jacksonville, 98-2088, 98-2207 U.S.

Page 183 05-35023



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

Court of Appeals, Eleventh Circuit (1999) (Emphasis Added).50 The facts cannot be ignored. The states have applied for a convention. The Constitution

demands a peremptory convention call. Congress refuses to call a convention claiming the right

to veto the Constitution. They have publicly advocated this so-called right in Walker. Walker ad-

dressed whether Congress has a choice in obeying the meaning, intent, and written language of

the Constitution. Judge Coughenour ruled Congress was not constrained to obey the Constitu-

tion, endorsing its claimed veto. Walker allows Congress to amend or veto the Constitution at its

political whim rendering the Constitution meaningless. Such advocation by Congress violates

federal criminal laws. The court’s authority depends on the Government’s obedience to the Con-

stitution, which Walker says the Government may veto. If the court affirms in this suit the

Walker doctrine, it terminates its own authority as well as that of the Constitution itself.

Congress has committed numerous felonies stemming from their refusal to call a conven-

tion. Neither standing nor political question provide immunity for these felonies.51 Simply put,

there is no lack of standing in criminal law permitting courts to dismiss the crime. Political ques-

tion is a court determination of which branch Government shall, within the confines of the Con-

50 This same circuit court has addressed the issue on a federal level, as has the Court. The 11th Circuit said: “A prior restraint on expression exists when the government can deny access to a forum for expression be-fore the expression occurs. See Ward v. Rock Against Racism, 41 U.S. 781, 795 n.5, 109 S. Ct. 2746, 2756 n.5 (1989).” United States v. Frandsen, 98-2174 (2000). In the same case the court referenced FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990) where the Court stated: “The failure to confine the time within which the licensor must make a decision contains the same vice as a statute delegating excessive administrative discretion. Where the licensor has unlimited time within which to issue a license, the risk of arbitrary suppression is as great as the provision of unbri-dled discretion.” 51 Article I § 6 [1] states (in part): “They [members of Congress] shall in all cases, except treason, felony and breach of peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same…” (Emphasis added).

“Legislative immunity. The Constitution grants two immunities to members of Congress, first, that except for treason, felony, and a breach of peace, there are ‘privileged from Arrest during their Attendance’ at session of their body…(Art. I § 6, cl. 1). The first immunity is of little practical value, for its exceptions withdraw all criminal offenses and arrests therefor from the privilege, and it does not apply to the service of any process in a civil or criminal matter.” (Black’s). (Emphasis added). As no immunity for felonies exists, it follows no court doctrine may override the Constitution to permit the commission of such felonies by any member of Congress or to grant immu-nity for their commission.

Page 184 05-35023



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

stitution and federal law, obey that law to execute a constitutional power.52 It does not apply

where criminal acts by federal officials are involved, such as overthrowing our constitutional

form of government.

Walker is of no help either. Walker is based on the Coleman doctrine of exclusive con-

gressional control of the amendatory process.53 Until Coleman, all Court rulings on the amenda-

tory proposal process favored the Founders original intent of two autonomous amendatory pro-

posal processes. Thus, to nullify the convention clause, Judge Coughenour could only employ

the Coleman doctrine, which the Court termed “advisory” in nature. Hence, by its own terms

Coleman is an advisory opinion and therefore has no legal authority. The previous Court deci-

sions, as they were not specifically addressed in Coleman and therefore not overturned are bind-

ing case law and all say Congress must call.

In contrast to the court issuing a binding ruling derived from constitutional authority, in

issuing an advisory opinion a court relinquishes its traditional role of binding interpreter of law

and instead permits the final interpreter to be the addressee of its advice who retains the option of

whether to consent to that advice. Thus, in the final analysis, in an advisory opinion the court de-

rives its authority from the sovereignty of the addressee rather than from the law itself as that

addressee is given the authority by the court to ultimately decide whether or not it will be bound

by the law in question rather than be compelled to obey the law as is usual in court procedure.

Thus, the Walker decision is based not on the Constitution, but instead relies on congressional

sovereignty for its ultimate authority, as reliance on the Constitution would mean obedience to

52 For example, in the area of congressional qualifications for office, in Powell v McCormack, 395 U.S. 486 (1969), the Court determined Congress could not add qualifications for membership in the House or Senate to those con-tained in the Constitution rejecting such political question arguments. 53 As noted earlier in this brief however, (see fn. 17) judicial authority cannot be extended except by statute or con-stitutional clause. There are two distinct and separate methods of amendments proposal created by the Constitution which the Founders obviously intended only one of which would be under congressional control. This is why the convention clause was not discussed in Coleman as it was never intended to be under congressional control.

Page 185 05-35023



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

that sovereignty consequently compelling Congress to obey it and therefore resulting in a con-

vention call.

The problem is that as a legal ruling Walker is invalid. There is no such thing as congres-

sional sovereignty; it is axiomatic sovereignty resides with the people and hence, the Constitu-

tion, not Congress. Further, Walker is void because it entraps Congress to commit criminal

acts.54 Thus, Congress cannot rely on Walker to extract it from the morass its contempt for the

Constitution has created. For whatever reason Judge Coughenour entrapped Congress into think-

ing refusing to call was neither a criminal act nor had any constitutional consequence. Both

premises are false. The evidence55 proves the defendants guilty as alleged by Plaintiff. Any as-

sertion of innocence on their part because of entrapment may be valid, but should they or their

legal representatives persist with any objection of any description which in any way attempts to

permit Congress any option not to obey the peremptory convention clause of the Constitution,

then it is clear they have willfully committed the criminal acts charged, forfeited any innocent

assumption, and leave the court no choice but to refer the matter for prosecution as moved and

requested in this suit.56

The impact of Congress’ position, that an elected official may willfully violate a law or

the Constitution anytime he or she believes it is politically expedient, has profound and unset-

tling implications. This view, if accepted, would mean that Congress is a law unto itself possess-

54 “Entrapment. The act of officers or agents of the government in inducing a person to commit a crime not contem-plated by him… A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if… he induces or encourages another person to engage in conduct constituting such offense by… (a) making knowingly false representations designed to induce the belief that such conduct is not prohibited… Model Penal Code § 2.13” Black’s. 55 See Evidence Appendix, Court Rulings Mandating A Convention Call By Congress, p. 4; Record Of Applications In Regards To Subject Matter, p. 8. 56 In issuing it Show Cause Order of October 8, 2004 the court has already established its recognition of the suprem-acy of the Constitution as the request for proof of court jurisdiction is ultimately based on the Constitution and its obedience by the court to its clauses. It has therefore rejected the premises of Coleman and Walker creating sover-eignties above that of the Constitution in favor of the supremacy of the Constitution which in turn allows no discre-tion regarding the call of a convention nor that Congress may veto the Constitution in any manner.

Page 186 05-35023



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

ing political power that is incompatible with a democratic form of government based on the rule

of law. The defendants took an oath to uphold the law and support the Constitution. They have

knowingly and deliberately violated the plain and unambiguous language of the Constitution re-

garding calling a convention. Any attempt to disregard the plain law of the land by elected offi-

cials should be viewed for what it is- criminal acts that must be brought to justice. The Constitu-

tion must be obeyed or it ceases to exist. No other reason than this need be given for Plaintiff’s

motions to be granted by the court.

Dated this 20th day of October, 2004

/S/Bill Walker, pro se PO Box 698 Auburn, WA 98071-0698

Page 187 05-35023

05-35023

AO 398 (Rev. 12/93)

NOTICE OF LAWSUIT AND REQUEST FORWAIVER OF SERVICE OF SUMMONS

TO: (A)

as (B) of (C)

A lawsuit has been commenced against you (or the entity on whose behalf you are addressed.)A copy of the complaint is attached to this notice. It has been filed in the United States District Courtfor the (D) District of

and has been assigned docket number (E)

This is not a formal summons or notification from the court, but rather my request that you signand return the enclosed waiver of service in order to save the cost of serving you with a judicial summonsand an additional copy of the complaint. The cost of service will be avoided if I receive a signed copyof the waiver within (F) days after the date designated below as the date on which this Noticeand Request is sent. I enclose a stamped and addressed envelope (or other means of cost-free return)for your use. An extra copy of the waiver is also attached for your records.

If you comply with this request and return the signed waiver, it will be filed with the court andno summons will be served on you. The action will then proceed as if you had been served on the datethe waiver is filed, except that you will not be obligated to answer the complaint before 60 days fromthe date designated below as the date on which this notice is sent (or before 90 days from that date ifyour address is not in any judicial district of the United States.)

If you do not return the signed waiver within the time indicated, I will take appropriate steps to effectformal service in a manner authorized by the Federal Rules of Civil Procedure and will then, to the extentauthorized by those Rules, ask the court to require you (or the party on whose behalf you are addressed)to pay the full costs of such service. In that connection, please read the statement concerning the dutyof parties to waive the service of the summons, which is set forth at the foot of the waiver form.

I affirm that this request is being sent to you on behalf of the plaintiff, this day of

Signature of Plaintiff’s Attorneyor Unrepresented Plaintiff

A - Name of individual defendant (or name of officer or agent of corporate defendant)B - Title, or other relationship of individual to corporate defendantC - Name of corporate defendant, if anyD - DistrictE - Docket number of actionF - Addressee must be given at least 30 days (60 days if located in foreign c o u n t y in which to return waiver.

Page 198 05-35023

05-35023

CERTIFICATE OF SERVICE

Case Name: Walker v. Members of Congress et al.

Case No: 05-35023 I certify that two (2) copies of the Informal Brief and Excerpt of Record was served by United States Postal Mail on the person below listed as counsel of record for appellees. ________________________ Bill Walker, appellant, pro- se PO Box 698 Auburn, WA 98071 Karen D. Utiger Attorney Tax Division/ Appellate Section Department of Justice PO Box 502 Washington D.C. 20044

court informal brief--web version.pdfand irs commissioner everson. on march 23, 2004 appellant...

Documents