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Burden of proof (Vermont 1907)

It is an established principle that the burden of proof in a criminal prosecution lies on the prosecution. A defendant may remain silent and be acquitted if the case against him is insufficient.

There is something a reversal of burden, however, in a quo warranto case, one in which the government, after meeting a threshold of likelihood, challenges the right of someone to hold office; the burden of proof lies with the office holder. Courts have ruled, however, that only the government may bring a quo warranto suit, and those made by private individuals have been summarily rejected by the courts.

That said, should some part of the government bring a quo warranto action against President Obama, would he be obliged to prove his eligibility? Perhaps not. I refer here to a case of the State of Vermont v. S. Hollister Jackson from the Supreme Court of Vermont in 1907, where the eligibility of the states attorney of Washington County was challenged because, it was claimed, he was not a citizen at the time of his election to office.

This is a petition for a writ of quo warranto to test the right of the respondent to hold the office of state’s attorney of Washington county. As the case is presented, the only question for our determination is: Was Mr. Jackson a citizen of the United States at the time of his election to the office in 1904? It is said that we were not in harmony with the authorities when we held, in State ex rel. Danforth v. Hunton, 28 Vt. 594. that in these proceedings persons in possession of an office are presumed to be regularly elected and entitled to hold until the contrary appears; and that the true rule is that in such cases the burden is on the respondent to show legal title to the office [see source for citations]…

However this may be, we regard it of no importance in this case as the citizenship of the respondent is presumed. This presumption arises from the mere fact of his residence here [see source for citations]… It was this rule which Judge Redfield had in mind when he said in Blood v Crandall 28 Vt at page 400 that the general presumption is in favor of citizenship.

The details of the case (which was dismissed) are not of particular interest to the Obama question since Mr. Jackson was not born in the United States.

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5 Responses to Burden of proof (Vermont 1907)

  1. avatar
    Bob September 30, 2009 at 3:59 pm #

    OT: The cert. list from yesterday’s SCOTUS conference is out. Craig is not on the list.

    From past experience, we know that means the order denying cert. will appear tomorrow.

  2. avatar
    Chris September 30, 2009 at 4:10 pm #

    One issue here is that, contrary to Leo Donofrio’s assertions, there is no quo warranto jurisdiction as to the POTUS. Under the Constitution, removal of the POTUS is allocated to the Congress (the impeachment process) not any Court.

    Where there is a doubt as to jurisdiction, the burden is always on the party invoking a court’s jurisdiction to show that the court has jurisdiction.

  3. avatar
    jvn October 1, 2009 at 6:41 am #

    Should such a case ever be filed, the President would simply have to show that the Electoral College voted for him, the Congress certified that vote and that he took the oath of office.

    The EC and Congress have the constitutional duty to vet and certify the qualifications of the President.

  4. avatar
    Expelliarmus October 1, 2009 at 4:09 pm #

    This is complex, but I think that the issue of burden of proof is not quite a “reversal” of a criminal case.

    Quo Warranto is an “extraordinary writ” — the procedure in writ cases is not quite the same as in an criminal prosecution or civil case.

    An extraordinary writ begins with a party — called a petitioner — submitting an application directly to a Court. At that state of the proceeding there is no obligation for the other side to submit any sort of response or opposition. The petition must be verified — that is, it must set forth facts under oath.

    The Court then reviews the petition to determine whether a prima facie case is made out — that is, do the facts as stated support issuance of the writ, if found to be true? If the court feels the facts are insufficient, it may simply deny the petition — this is what probably happens in the vast majority of extraordinary writ applications.

    If the Court determines to grant the petition, the next step is the issuance of a writ, which is in essence a show cause order. That writ will be served on the opposing side, and commands that side to come to court to show cause why the relief sought in the petition should not be granted. At that point, the burden has shifted to to the “respondent” — the person served with the writ — simply because, by definition, the petitioner has already established a prima facie case.

    So quo warranto follows the same basic steps as other common law writ proceedings. At the outset, the burden lies with the petitioner. The court only issues a writ — whether it is quo warranto, habeas corpus, mandamus, or any other common law writ — after the petitioner meets that initial burden.

    Because quo warranto allows for a jury trial, the authorities you have read about burden of proof likely deal with the burden at trial. But you would not get to the trial unless the Petitioner met its initial burden.

    I suppose you can still see this as a “reversal” because in the prosecution of a felony, the prosecutor must first meet the initial burden of establishing probable cause via a Grand Jury indictment or a court ruling after a preliminary hearing — but the burden remains on the prosecution to again present its case at trial.

    But I just want to clarify for other readers that quo warranto would not be a simple matter of a prosecutor filing a case. The writ simply would not issue in the first place unless the petitioner/prosecutor could convince the Judge that there were valid grounds for such a writ. (Fake, unauthenticated birth certificates from Kenya, or unsupported theories about dual nationality or non-citizen parents wouldn’t be enough.)

  5. avatar
    Bob October 1, 2009 at 4:23 pm #

    But I just want to clarify for other readers that quo warranto would not be a simple matter of a prosecutor filing a case.

    And even then prosecutors do not go about filing cases unless there is some evidence a crime has been committed. Which is why the discretion for filing a petition for writ of quo warranto (for removal of a public officer) lies with the government, and not with some random citizen (I’m talking to you, Apuzzo and Taitz).

    What Expelliarmus says is correct: the petitioner must sufficiently plead and present evidence with the initial petition; if the petition is insufficient, the court may deny the petition without further proceedings (such as an evidentiary hearing or, in this case, a jury trial).