APPEAL MADE TO NINTH CIRCUIT COURT OF APPEALS

IN WALKER v. MEMBERS OF CONGRESS

January 2, 2005: a NOTICE OF APPEAL was filed in Federal District Court at Seattle thus beginning the appeal process of Walker v Members of Congress, et al. C05-1977RSM. The appeals court clerk sent notice that an opening brief must be filed on February 16, 2005. The suit was designated Walker v. Members of Congress et al., 05-35023.

January 31, 2005: a LETTER was received by Power To The People notifying them that Karen D. Utiger of the U.S. Department of Justice, Tax Division, Appellate Section, Washington D.C. had been assigned to represent "the government" at the court of appeals. Because the letter raised issues in regards to service and appearance of counsel that the district court had failed to address despite motions by the plaintiff to do so, a MOTION was made to the appeals court to deny Ms. Utiger the right to represent the defendants in this matter as no proof was demonstrated by Ms. Utiger that she was authorized under federal statute to do so. In addition, as no representative of the government or any other legal representative made appearance for any defendant at district court, there was no counsel of record for any defendant. Thus, the district court did not "notify" anyone of the appeal except for the plaintiff as there was no one else to notify. The question then is how Ms. Utiger was "notified" of the appeal and whether the government was entitled to make an appearance.

February 14, 2005: Power To The People received an Appeals Court Order related to the MOTION filed against the Department of Justice. The ORDER referred the MOTION to an appeals panel but more importantly the order made it clear that appearance by the Department of Justice was not automatic and would be reviewed by the court.

February 14, 2005: a RESPONSE to appellant's MOTION to deny appearance by the Department of Justice was received by Power To The People.

February 15, 2005; the opening BRIEF by appellant was filed in the Ninth Circuit Court of Appeals.

February 19, 2005: a REPLY to the Department of Justice was filed in appellate court. The REPLY basically showed that the Department of Justice had failed to provide any evidentiary proof of why it should be allowed to appear at appellate level as it did not make appearance at district level.

February 22, 2005: Power To The People received a NOTICE of deficiency from the appeals court concerning the page length of the opening brief submitted to the court. A MOTION for permission to file an oversized brief with the court was filed on February 23, 2005 to correct the error.

March 7, 2005: Power To The People sent a NOTICE OF CORRECTION to the Appeals Court to correct inadvertent errors in the Certificates of Service served in the suit.

March 12, 2005: Power To The People received a LETTER from the Department of Justice stating the a member of the clerk's office of the court of appeals had informed the department "the Court did not want the Government to file a brief" in this suit. The LETTER contains several ambiguities: (1) The letter is dated March 7, 2005 but states that the Department was notified by "Gabriella" of the clerk's office on March 11, 2005; (2) The letter refers to "enclosures" though none were included in the letter. A phone message to Ms. Utiger was made requesting such enclosures be sent and will be posted as soon as they are received; (3) The LETTER stated the Department of Justice "would be informed if the Court later decided that it did want the Government to submit a brief"; (4) Power To The People has received no information whatsoever from the appeals court regarding this "notification"; (6) The court has posted no official docket notice as court rules require.

March 19, 2005: a MOTION FOR INVESTIGATION was filed by Power To The People after it was determined the LETTER sent by the Department of Justice on March 12, 2005 was entirely false. At no time did the appeals court instruct anyone in the clerk's office to the Department of Justice not to file a brief in Walker v. Members of Congress et al.

March 21, 2005: Power To The People received an ORDER from the Ninth Circuit Court of Appeals granting an earlier MOTION to file an oversized brief. Further the court ordered that an answering brief be filed, due 30 days after the date of the order, March 18, 2005. Power To The People will, in all likelihood file a reply brief which is due 14 days after the answering brief is filed. The due date for the answering brief is Saturday, April 16, 2005. The reply brief, assuming the answering brief is filed on the last day, is due on Friday, April 29, 2005.

March 28, 2005: Power To The People received an expected OPPOSITION RESPONSE to its earlier MOTION FOR INVESTIGATION from the Department of Justice. In response, Power To The People filed a REPLY to the OPPOSITION RESPONSE.

April 20, 2005: Power To The People today verified with the clerk's office of the Ninth Circuit Court of Appeals that the United States Government failed to file a reply brief in opposition to Power To The People's BRIEF. The reply brief was due according to court ORDER thirty days after it was filed on March 18, 2005. Court rules specify the thirty day count begins the day after the order is filed, which in this case is March 19, 2005. Because of the number of days in March, this means the last possible filing date for the government was April 18, 2005. Power To The People also verified that no request for an extension of time to file a brief nor any other filing by the government has occurred.

While Power To The People will continue monitor the situation closely, it appears that the government has elected not to file an answering brief in the matter. If this is true, this means neither the individual members of Congress nor the United States Government elected to make a court appearance in opposition to the appeal filed by our group. Members of Congress were accused in Walker v. Members of Congress not only of constitutional violations but criminal and civil violations as well. Failure to appear means neither the United States Government nor the individual members of Congress has availed themselves of their right in court to refute these criminal charges. You can view the specifics of the charges HERE.

The usual interpretation of such an action by a party is for the court to assume a party taking such an action has conceded to its opposition. However, Power To The People cautions the court still has several options open to it which may render the submission of an opposition brief a moot point. We will post further developments as they occur.

April 26, 2005: Power To The People today received an ANSWERING BRIEF and MOTION FOR APPEARANCE from the government. In an obvious attempt to limit the time for a reply brief by Power To The People, the government sent its material by first class mail delaying receipt to Power To The People for several days past the April 18, 2005 court filing deadline. Court rules allow only 14 days for a reply brief to be filed and do not give extra days as a result of delays in the mail, deliberate or otherwise. Court filings are based on the date of service included in the material and not on when the opposition or the court clerk receives the filing. (Note: if you have difficulty in reading the first page of the Answering Brief, there is nothing wrong with your browser. The government printed the page, as required by court rules, on red paper which has poor contrast with black type).

April 28, 2005: Power To The People today filed an REPLY BRIEF to the government's ANSWERING BRIEF. In addition, Power To The People filed a MOTION TO STRIKE the answering brief because it did not address the subject matter of the suit. In addition an OPPOSITION TO MOTION TO APPELLEES TO APPEAR was also filed based on the government's failure to provide statutory proof of representation. Because the government's ANSWERING BRIEF arguments were entirely anticipated, Power To The People was able to compose its two motions ahead of time thus thwarting the government's attempt to deny it time to reply by sending their material by first class mail. Not a single word of the motions required change due to the government's answering brief as what they submitted was exactly as expected. This predictability also helped in writing the Reply Brief as the government arguments presented no surprises.

May 2, 2005: A LETTER from Karen D. Utiger of the Department of Justice was today received by Power To The People. In that letter, Ms. Utiger asserts all members of Congress have requested she represent them. She presented no written evidence of this request. Power To The People sent a REPLY LETTER to Ms. Utiger in which is was pointed out the letter not only proves all members of Congress were properly served, which Ms. Utiger had asserted they had not been, but that the letter proves the state of mind of the members, that they have mental reservations as to supporting the Constitution. Copies of both letters have been sent to the Ninth Circuit Court of Appeals for its records.

May 3, 2005: A SECOND LETTER was sent by Power To The People to Ms. Utiger to clarify a possible point of confusion made in its REPLY LETTER. A copy was sent to the Ninth Circuit Court of Appeals for its records.

May 18, 2005: Power To The People today verified with the clerk of the Ninth Circuit that the government has filed no response to its motions filed April 28, 2005 to strike the answering brief submitted by the government to court. Any response to the MOTION TO STRIKE and OPPOSITION TO MOTION TO APPELLEES TO APPEAR submitted along with PTTP's REPLY BRIEF must have been submitted to the court within 8 days of service which would have been no later than May 9, 2005. Disposition of the motions which, if accepted, would effectively terminate the government from the suit, are currently pending before the court. While it is not automatic by any means, generally motions which are not opposed by counsel are generally presumed by the court to be unopposed.

June 7, 2005: A MOTION FOR AN ADDENDUM was filed today by Power To The People regarding the issue of legal representation by the Government. In a letter presented by the Government, it appears permission for legal representation by the appellees may have given, if at all, after the Government had filed its brief and other legal papers on April 18, 2005. Federal law and common legal practice requires that a legal counsel obtain permission for representation from a party prior to presenting evidence, briefs or other legal materials to a court in the name of that party.

June 13, 2005: The Government today filed a RESPONSE to the MOTION FOR AN ADDENDUM regarding improper actions of Karen D. Utiger of the Department of Justice.

June 16, 2005: On the same day the Government's RESPONSE was received, a REPLY TO RESPONSE was filed by Power To The People.

ANALYSIS

It is unusual that the court would rule so quickly on a motion it received only twenty-fours hours before. Usually such speed is reserved for emergency motions which this was not. However, more significant is the fact the court did not 1) exonerate Ms. Utiger of the charges made against her nor 2) strike the material contained within the motions it denied. The most important part of the ORDER however is that it referred the MOTION TO STRIKE to the merits panel. For whatever reason, Ms. Utiger decided not to oppose this motion. The MOTION TO STRIKE was based on the fact that Ms. Utiger in her ANSWERING BRIEF consistently referred to a "constitutional convention" as the subject matter of the suit, whereas the actual subject is "a convention to propose amendments under Article V." If the court finds that such a reference does not address the actual subject of the suit, it may strike her brief on that basis alone.

This motion is also significant in that the court's ruling on it will determine the tone it will take on the entire suit. If the court holds the terms "constitutional convention" and "convention to propose amendments" are synonymous, it will then be establishing that the terms of Article V, limiting a convention to amendment proposals to the present Constitution only, are void. On the other hand, if the court rules the two terms are not synonymous, it will make the distinction that a convention is limited only to amendment proposals, and will not have the power to overturn the entire constitutional structure--a scenario historically feared by opponents to a convention. It is most important to note that the district court ruled on the term "convention to propose amendments" and never once referred to the term "constitutional convention."

June 21, 2005: One day after receiving the REPLY TO RESPONSE, a motions court consisting of Circuit Judges Tashima and Thomas for the Ninth Circuit Court of Appeals issued an ORDER to deny motions for investigation of Karen D. Utiger. The court also ordered that PTTP's MOTION TO STRIKE the brief submitted by Karen D. Utiger be referred to a merits panel.

July 1, 2005: "Calendar check performed." With this single sentence entry in the docket, the Clerk's Office of the Ninth Circuit Court of Appeals submitted Walker v. Members of Congress for adjudication ending the argument phase of the proceeding. According to the clerk's office, the suit will first be submitted to the court's staff of law clerks who will determine whether or not the suit warrants oral arguments. Once this is determined, the suit will either be sent to a screening panel which consists of three circuit judges who will rule on the suit, or it may be sent to a merits panel who will then hear oral arguments before ruling on the suit. The process of adjudication can take up to a year or more before either panel reaches a decision.

July 8, 2005: Power To The People today received electronic notice that the clerk for the United States District Court for Western Washington had "transmitted to the US Court of Appeals...the clerk's record on appeal (case full electronic)". This transmission is one of the procedural steps the appeals court requires before the suit is submitted to a merits panel for consideration. It allows the panel to examine the full record of the proceeding rather than just whatever material is presented in briefs by the parties.

May 22, 2006: In a brief, two page unpublished memorandum, the Ninth Circuit Court of Appeals agreed with the District Court in Walker v. Members of Congress (05-35023). The ruling stated that the court felt it lacked jurisdiction in the matter. As the District Court ruled that it was a "political question" for Congress to decide regarding the calling of an amendatory convention, the effect of this chilling ruling to amend the Constitution by judicial decree. It is now clear the courts hold that if the government does not wish to obey the actual text of the Constitution, they do not have to do so. Please click here for the decision.


LINKS

Amicus Brief

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First District Court Case

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Letters to the Government

Letter to the Supreme Court

Lois Capps Letter

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References

Second Court Case

Supreme Court Letter

Supreme Court Page

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What The Court Decision Means