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Admitting you’re wrong

I get things wrong from time to time. It happens more often when I try to predict the future. A case in point is when I said that I thought Mario Apuzzo would be sanctioned by the Third Circuit Court of Appeals for filing a frivolous appeal in Kerchner v. Obama. It didn’t happen; I was wrong.

Admitting you’re wrong is not enough

It’s all well and good to admit that you’re wrong, but the more important thing is live and grow from the experience, and that involves understanding why you’re wrong. In my case, the Court had issued an Order to Show Cause why it shouldn’t make Apuzzo pay damages, a few lawyers over at Politijab expressed the opinion that Apuzzo would be sanctioned, and I wasn’t impressed by Apuzzo’s response to the Order. Where I went wrong was in predicting the future, and in reading between the lines in the Court’s order. As part of my process to understand where I went wrong, I wrote an article on Reading between the lines.

The question, though, is what Mario Apuzzo has learned from losing the appeal. Has he learned something about standing? Has he learned that the President’s eligibility once in office is not justiciable? Or am I wrong about that?

118 Responses to Admitting you’re wrong

  1. avatar
    Reality Check July 24, 2010 at 9:52 am #

    I was also wrong but I had predicted sanctions would be lower than many folks on the forums were anticipating. I was not surprised by the outcome. I think folks were equating the situation with with the the Kerchner case in the Third circuit with Taitz case in Georgia. In Rhodes v McDonald Taitz had already been denied twice by Judge Land for nearly identical claims and she had filed a MTR when Judge Land told her not to file anything else. In her disrespectful reply to the OSC she accused Land of an improper ex parte meeting with USAG and practically accused him of treason.

    In Mario’s case he at least tried to address some of the issues the court had that caused their discomfort with his briefs in the appeal. He was verbose and tried to re-argue the case too but it was apparent that the judges wanted to get his attention and felt that they had accomplished that. I infer from the speed that they ruled that they were just looking to see if Mario would pull a Taitz and when he didn’t they were satisfied and ready to be done with him.

    Now Mario has touted this as a huge victory on NBC’s blog. I congratulate him and look forward to him filing another eligibility case in the Third Circuit immediately after Kerchner is denied cert at SCOTUS (as it surely will be).

  2. avatar
    Jules July 24, 2010 at 10:34 am #

    Reality Check: I congratulate him and look forward to him filing another eligibility case in the Third Circuit immediately after Kerchner is denied cert at SCOTUS (as it surely will be).

    I did not bother predicting whether Apuzzo would be ordered to pay costs and damages. I join in saying mazel tov to Apuzzo.

    I also join in your prediction that Apuzzo’s cert petition will be denied in the event that he files one. (For the avoidance of doubt, I make no prediction as to whether Apuzzo will file a cert petition.) I would not expect Apuzzo to respond to a denial in such a ridiculous manner as Orly Taitz did when her stay application was denied.

    I assume that an order for Apuzzo to pay costs and damages would have imposed a further burden on the court in assessing the defendants’ costs and reasonable damages. If this understanding is correct, then discharging the order to show cause has avoided a further waste of the court’s time.

  3. avatar
    HORUS July 24, 2010 at 10:53 am #

    Doc, no one thinks you are a Profit.
    We know that it was just your opinion.

  4. avatar
    Jules July 24, 2010 at 10:58 am #

    HORUS: Doc, no one thinks you are a Profit.
    We know that it was just your opinion.

    If he were a prophet, then he would make a large profit.

  5. avatar
    heron July 24, 2010 at 11:00 am #

    Mario hasn’t learned a single thing….and the truly sad part is, he’s all over the internet trumpeting his huge win…….ugh…..he manages to be almost competent, cite a few cases which are tangentially related to his argument, which, i’ll admit is more than kooks like taitz can muster, and he’s everywhere ACTUALLY GLOATING ABOUT NOT BEING SANCTIONED….i guess that passes for a big victory…..when will these fools realize that the power to assess the credentials of a sitting president lies solely within the hands of Congress according to the Constitution, and no court in the land will touch these cases with a ten foot teabagger.

  6. avatar
    Majority Will July 24, 2010 at 11:44 am #

    heron: Mario hasn’t learned a single thing….and the truly sad part is, he’s all over the internet trumpeting his huge win…….ugh…..he manages to be almost competent, cite a few cases which are tangentially related to his argument, which, i’ll admit is more than kooks like taitz can muster, and he’s everywhere ACTUALLY GLOATING ABOUT NOT BEING SANCTIONED….i guess that passes for a big victory…..when will these fools realize that the power to assess the credentials of a sitting president lies solely within the hands of Congress according to the Constitution, and no court in the land will touch these cases with a ten foot teabagger.

    “I’m an incredibly lousy attorney and I lose all of my cases but I just got away with not being fined for incompetence. Yay ! ! !”

  7. avatar
    born912 July 24, 2010 at 1:31 pm #

    Regarding: “I’m an incredibly lousy attorney and I lose all of my cases but I just got away with not being fined for incompetence. Yay ! ! !”
    You confuse “lose” with being denied standing. Mario simply made it clear that the courts have been inconsistent as to the application of standing and thus holding Mario responsible for their imposed confusion lacks merit. Regardless of your political leaning, could you not agree that it is in everyone’s best interest to know the court’s interpretation of “natural born Citizen” within the context of the Constitution Article 2 section 1 and any amendments the court deems relevant?
    The question will still be relevant after President Obama leaves office. Mr Jindal of Louisiana likely has aspirations of being POTUS and the same question remains. Given the 3rd district has defined standing to require specific injury and the 3rd district implies there can be no injury before confirmation, thus no standing, and post confirmation it is not within the courts purview, thus no standing. This leaves us with no avenue to simply ask the court to define the meaning of NBC. As for relief the court could simply define NBC and stop. It would then be in the hands of the executive branch to enforce along with congress and the media to raise a stink should the definition be adverse to the president’s position.
    It is likely the SCOTUS will denied the presumed appeal based again on standing. This will keep intact a perfect record of avoiding the merits. On the other hand the court may also have been waiting for a case to fully develop and drop at their door something with meat having been through all the prescribed steps vice the judicial leapfrogging we have seen thus far. Regardless of the ruling I’d like SCOTUS to rule on the meaning of NBC so as to avoid this circus when Bobby Jindal (or similar) becomes a candidate.
    It matters little what I think NBC means. It only matters what SCOTUS rules, and hopefully not by a 5-4 ruling!

  8. avatar
    Majority Will July 24, 2010 at 1:38 pm #

    born912:
    You confuse “lose” with being denied standing.

    No, I don’t. But I do resent concern trolls with poor grammar, a feeble attempt at spin and a thinly veiled ulterior motive.

  9. avatar
    Sef July 24, 2010 at 2:05 pm #

    born912: This leaves us with no avenue to simply ask the court to define the meaning of NBC

    If someone had appealed Ankeney to SCOTUS you would have gotten your answer. But that would have established certainty, thus cutting off the reason for the PayPal buttons & the suits.

  10. avatar
    Jules July 24, 2010 at 2:05 pm #

    born912: This leaves us with no avenue to simply ask the court to define the meaning of NBC. As for relief the court could simply define NBC and stop.

    Regardless of the ruling I’d like SCOTUS to rule on the meaning of NBC so as to avoid this circus when Bobby Jindal (or similar) becomes a candidate.

    Although the courts of some countries (and at least the supreme court of one state) can issue advisory opinions, the federal courts of the United States have no such power. The jurisdiction of the federal courts is limited by the constitution to “cases and controversies”, not advice to allow other branches of government decide how to conduct themselves in hypothetical future situations.

  11. avatar
    Majority Will July 24, 2010 at 2:08 pm #

    Jules:
    Although the courts of some countries (and at least the supreme court of one state) can issue advisory opinions, the federal courts of the United States have no such power. The jurisdiction of the federal courts is limited by the constitution to “cases and controversies”, not advice to allow other branches of government decide how to conduct themselves in hypothetical future situations.

    Perhaps the concern trolls and DUI and dog bite lawyers skipped the class on where amendments to the Constitution come from.

  12. avatar
    G July 24, 2010 at 2:59 pm #

    born912: You confuse “lose” with being denied standing. Mario simply made it clear that the courts have been inconsistent as to the application of standing and thus holding Mario responsible for their imposed confusion lacks merit. Regardless of your political leaning, could you not agree that it is in everyone’s best interest to know the court’s interpretation of “natural born Citizen” within the context of the Constitution Article 2 section 1 and any amendments the court deems relevant?

    Sorry, you are wrong. Mario can “spin” his nonsense all he wants, but the courts have been extremely consistent with these cases and how they apply standing.

    Eventually, one would think that with a 0-71 record, the lesson might get through to you people…

  13. avatar
    Dave July 24, 2010 at 3:05 pm #

    born912: Regardless of the ruling I’d like SCOTUS to rule on the meaning of NBC so as to avoid this circus when Bobby Jindal (or similar) becomes a candidate.
    It matters little what I think NBC means. It only matters what SCOTUS rules, and hopefully not by a 5-4 ruling!

    Given that the Constitution gives Congress the sole power of impeachment and removal of Presidents, and also gives Congress the power of accepting the vote of the electoral college, it seems unlikely that what SCOTUS thinks matters. This is an unusual situation, since it almost every case SCOTUS is a final authority on interpretation of the law. But even if we knew what SCOTUS thinks, Congress would not be bound by it.

    The reason the Senate bothered to pass a resolution that McCain was eligible was because a) his eligibility was questionable and b) if the Senate declared they weren’t going to do anything about it, the subject was effectively dead.

    On the plus side, Jindal’s eligibility is not questionable. (His fitness for the job is another matter.) If he were running for President I doubt the number of people questioning his eligibility would be any more than the small number questioning Obama’s.

  14. avatar
    FUTTHESHUCKUP July 24, 2010 at 3:53 pm #

    I am at a loss to explain the court’s ruling in light of their order dismissing the appeal. They excoriated Apuzzo for filing a frivolous lawsuit in that order yet failed to sanction him. It’s almost as if they said, “You should have known better than to file a lawsuit that is clearly frivolous.” However, they not only did not follow through on that claim, they also told Apuzzo that if he wanted to have the court revisit it’s decision in the denial, he could file a request for that, essentially telling him that although they claimed his case was frivolous, he could have it heard again if he desired. This just doesn’t make a whole lot of sense.

  15. avatar
    charo July 24, 2010 at 4:17 pm #

    FUTTHESHUCKUP: they also told Apuzzo that if he wanted to have the court revisit it’s decision in the denial, he could file a request for that, essentially telling him that although they claimed his case was frivolous, he could have it heard again if he desired. This just doesn’t make a whole lot of sense.

    You are the only one I have seen to point that out. I thought maybe I was misinterpreting what seemed obvious to me. If he did refile, I don’t see how he could be in danger of a sanction from this court again. At worst, the claim would just get “re-thrown” out. Now, this is reading between the lines, but maybe the judges saw something in his response to the rule to show cause that they wanted to address. I don’t necessarily mean it would be favorable to Apuzzo.

  16. avatar
    Sef July 24, 2010 at 4:23 pm #

    charo:
    You are the only one I have seen to point that out.I thought maybe I was misinterpreting what seemed obvious to me.If he did refile,I don’t see how he could be in danger of a sanction from this court again.At worst, the claim would just get “re-thrown” out. Now, this is reading between the lines, but maybe the judges saw something in his response to the rule to show cause that they wanted to address.I don’t necessarily mean it would be favorable to Apuzzo.

    Naw, they’re just saying “We don’t want you to hang yourself, but there’s that length of rope over there.”

  17. avatar
    Jules July 24, 2010 at 4:24 pm #

    charo:
    You are the only one I have seen to point that out.I thought maybe I was misinterpreting what seemed obvious to me.If he did refile,I don’t see how he could be in danger of a sanction from this court again.At worst, the claim would just get “re-thrown” out. Now, this is reading between the lines, but maybe the judges saw something in his response to the rule to show cause that they wanted to address.I don’t necessarily mean it would be favorable to Apuzzo.

    It could also be that they were simply noting that a motion for reconsideration was the only appropriate form to ask the Third Circuit to revisit the case and that they would not under any circumstances entertain a request to do so that was submitted within a response to an order to show cause.

  18. avatar
    FUTTHESHUCKUP July 24, 2010 at 4:30 pm #

    charo:
    You are the only one I have seen to point that out.I thought maybe I was misinterpreting what seemed obvious to me.If he did refile,I don’t see how he could be in danger of a sanction from this court again.At worst, the claim would just get “re-thrown” out. Now, this is reading between the lines, but maybe the judges saw something in his response to the rule to show cause that they wanted to address.I don’t necessarily mean it would be favorable to Apuzzo.

    Exactly. They are saying that it’s frivolous but he can ask for reconsideration of an appeal they have already called “frivolous.” I think Sef is right though. They may just be giving him the rope. If he asks for reconsideration, and they again call it frivolous, he may not be so lucky on an order to show cause for not paying costs when they label it frivolous on reconsideration.

  19. avatar
    FUTTHESHUCKUP July 24, 2010 at 4:36 pm #

    I also think Jules is right. They have to advise him of the proper course of action to pursue for reconsideration since he raised that issue in his filing.

  20. avatar
    charo July 24, 2010 at 4:45 pm #

    Sef:
    Naw, they’re just saying “We don’t want you to hang yourself, but there’s that length of rope over there.”

    I wouldn’t want to believe that the court sets up people. He could have been sanctioned the first time around. But that is just my opinion.

  21. avatar
    Dr. Conspiracy July 24, 2010 at 5:03 pm #

    born912: Regardless of your political leaning, could you not agree that it is in everyone’s best interest to know the court’s interpretation of “natural born Citizen” within the context of the Constitution Article 2 section 1 and any amendments the court deems relevant?

    But we do know the court’s interpretation at least insofar as President Obama’s eligibility goes, and that is why Mario Apuzzo’s case is misguided both on standing and on the merits.

    The US Supreme Court expressed its view in 1898 in the case of US v Wong Kim Ark. An Indiana appeals court (in Ankeny v. Daniels) recently made this clear when it said:

    Based on the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are “natural born citizens” for Article II, Section 1 purposes, regardless of the citizenship of their parents.

    The US Constitution does not allow the federal courts to give advisory opinions, but the executive branch relies on official opinions issued by the United States Attorney General. AG Bates in 1862 wrote again that natural born citizens where those born in the country without regard to the status of their parents. He said:

    … it follows that every person born in the country is, at the moment of birth, prima facie a citizen; and he who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the “natural born” right as recognized by the Constitution in terms the most simple and comprehensive….

    This is not a matter of controversy or debate. Gabriel Chin, Professor of Law at Arizona State University, writing in the Michigan Law Review, opened his article on the eligibility of John McCain by saying (as do many law review articles on presidential eligibility):

    Those born in the United States are uncontroversially natural born citizens.

    Or Professor Charles Gordon of the Georgetown Law Center writing in the Maryland Law Review in 1968:

    Under the presidential qualification clause of the Constitution, only “natural-born” citizens are qualified for this highest office. It is clear enough that native-born citizens are eligible and that naturalized citizens are not.

    So, there is no controversy except in the minds of the uninformed.

  22. avatar
    AnotherBird July 24, 2010 at 9:01 pm #

    born912: Regarding: “I’m an incredibly lousy attorney and I lose all of my cases but I just got away with not being fined for incompetence. Yay ! ! !”
    You confuse “lose” with being denied standing. Mario simply made it clear that the courts have been inconsistent as to the application of standing and thus holding Mario responsible for their imposed confusion lacks merit. Regardless of your political leaning, could you not agree that it is in everyone’s best interest to know the court’s interpretation of “natural born Citizen” within the context of the Constitution Article 2 section 1 and any amendments the court deems relevant?
    The question will still be relevant after President Obama leaves office. Mr Jindal of Louisiana likely has aspirations of being POTUS and the same question remains. Given the 3rd district has defined standing to require specific injury and the 3rd district implies there can be no injury before confirmation, thus no standing, and post confirmation it is not within the courts purview, thus no standing.This leaves us with no avenue to simply ask the court to define the meaning of NBC. As for relief the court could simply define NBC and stop. It would then be in the hands of the executive branch to enforce along with congress and the media to raise a stink should the definition be adverse to the president’s position.
    It is likely the SCOTUS will denied the presumed appeal based again on standing.This will keep intact a perfect record of avoiding the merits. On the other hand the court may also have been waiting for a case to fully develop and drop at their door something with meat having been through all the prescribed steps vice the judicial leapfrogging we have seen thus far. Regardless of the ruling I’d like SCOTUS to rule on the meaning of NBC so as to avoid this circus when Bobby Jindal (or similar) becomes a candidate.
    It matters little what I think NBC means. It only matters what SCOTUS rules, and hopefully not by a 5-4 ruling!

    The definition of Natural Born Citizen is quite clear now. Anyone who is a citizen by birth is a Natural Born Citizen. This is irrelevant on the citizenship of the child’s parent for children born in America. The SCOTUS ruled on this over 100 years ago.

    It has been about 2 years since those who doubted Obama’s citizenship have been wrong. There is absolutely no consistency in their arguments. All the time ignoring the current laws of America.

  23. avatar
    Rickey July 25, 2010 at 12:32 am #

    born912:
    You confuse “lose” with being denied standing.

    No, you are the one who is confused. A loss is a loss is a loss. Civil cases are lost for all sorts of reasons, whether the reason is procedural or a defense verdict. The end result, however, is still the same – the plaintiff hasn’t gotten what he or she wanted, so it’s a loss.

    Mario simply made it clear that the courts have been inconsistent as to the application of standing and thus holding Mario responsible for their imposed confusion lacks merit.

    Mario did no such thing. He lost the case precisely because the Federal courts have been entirely consistent as to the application of standing. Those of us who have seen how consistently the Federal courts have applied the rules of standing never had a doubt that the Kerchner case (like all of the other birther cases) would be dismissed.

    Given the 3rd district has defined standing to require specific injury

    Actually, it is all of the Federal districts, but standing requires more than a specific injury. It also requires particularized injury (i.e., injury which not shared by the general public). And then there are the issues of justiciability, the political doctrine, etc.

    This will keep intact a perfect record of avoiding the merits.

    The “merits” were addressed in the Ankeny case, as others have pointed out. But this is no longer about the merits. The birthers are 0-71 in courts cases, and by now even the most obtuse of them must realize that they are never going to prevail in court. It’s all about de-legitimizing Obama and ginning up the opposition to him, keeping the far right fired up, and keeping the PayPal donations flowing.

  24. avatar
    AnotherBird July 25, 2010 at 1:14 am #

    Rickey:

    This will keep intact a perfect record of avoiding the merits.

    The “merits” were addressed in the Ankeny case, as others have pointed out. But this is no longer about the merits. The birthers are 0-71 in courts cases, and by now even the most obtuse of them must realize that they are never going to prevail in court. It’s all about de-legitimizing Obama and ginning up the opposition to him, keeping the far right fired up, and keeping the PayPal donations flowing.

    Birthers have made various claims though various court cases. The judges must rule on the various claims and the merits each claims. The standard haven’t changed. As pointed out to me by Jules, and address by others, there are various methods of making claims.

    Imagine born912 making the statement

    You confuse “lose” with being denied standing.

    A person either haves “standing” in the legal sense or doesn’t. A person can lose with standing and can lose without standing. It is the same mentality that doesn’t understand what a dual citizen is.

  25. avatar
    Jules July 25, 2010 at 9:27 am #

    born912: It is likely the SCOTUS will denied the presumed appeal based again on standing.

    No, it is most likely that the Supreme Court will deny the cert petition without comment. That is how it deals with the overwhelming majority of appeals brought to it.

  26. avatar
    Rickey July 25, 2010 at 10:59 pm #

    AnotherBird:

    A person either haves “standing” in the legal sense or doesn’t. A person can lose with standing and can lose without standing. It is the same mentality that doesn’t understand what a dual citizen is.

    And the continued whining about cases not being heard “on the merits” allows them to downplay (in their own minds) the significance of batting 0 for 71.

  27. avatar
    Lawyerwitharealdegree July 26, 2010 at 1:10 am #

    born912: Regarding: “I’m an incredibly lousy attorney and I lose all of my cases but I just got away with not being fined for incompetence. Yay ! ! !”
    You confuse “lose” with being denied standing. Mario simply made it clear that the courts have been inconsistent as to the application of standing and thus holding Mario responsible for their imposed confusion lacks merit.

    Nobody is confused. Except you birthers.

  28. avatar
    Gregory July 26, 2010 at 8:51 pm #

    Dr C:

    Admitting that you’re wrong might be premature – because that’s the great thing about these Birther lawsuits: there is always a next time….

  29. avatar
    DCH July 27, 2010 at 9:12 am #

    Mario will do a fruitless SCOTUS request for cert to extend the drama (the actual CASE ended 18 months ago when the first judge dismissed it) the appeal was just a bit of phony drama to keep Mario current in Birtherstan Bar Association.

    The Cert request, of course, will fail and be “Denied Without Comment”.
    He will then likely refile some other version of this case and start over. Rinse, repeat…
    Mario has never reported how much he has raised with the paypal. Now that would be interesting to know.

  30. avatar
    JoZeppy July 27, 2010 at 10:16 am #

    DCH: Mario will do a fruitless SCOTUS request for cert to extend the drama (the actual CASE ended 18 months ago when the first judge dismissed it) the appeal was just a bit of phony drama to keep Mario current in Birtherstan Bar Association.The Cert request, of course, will fail and be “Denied Without Comment”.He will then likely refile some other version of this case and start over. Rinse, repeat…Mario has never reported how much he has raised with the paypal. Now that would be interesting to know.

    I’m not conviced it’s more ego than money. The only evidence we have about how much money birthers can raise is Orly’s campaign finance statments, and those were pretty sad. My guess is except for what Orly and Mario can squeeze out of their clients, there isn’t that much money pouring into the coffers. But after a career of mediocrity and defedning DWI defendants, getting the praise and worship of an army of birthers is the first time he gets to feel like a big time lawyer.

  31. avatar
    Majority Will July 27, 2010 at 10:36 am #

    Is the New Jersey Bar Association just as apathetic as the California Bar Association when comes to admonishing lawyers for frivolous lawsuits?

  32. avatar
    Jules July 27, 2010 at 11:21 am #

    JoZeppy: My guess is except for what Orly and Mario can squeeze out of their clients, there isn’t that much money pouring into the coffers.

    One wonders what their malpractice insurance premiums must be. The birther litigation can’t give their insurers much confidence.

    Taitz has been talking in particular about the order for costs made against Rhodes and the fact that this has not yet been enforced. In the event that it is enforced, I think that Rhodes may well have a claim against Taitz for negligence.

    Stefan Cook may also have a claim for negligence against Taitz. He lost his security clearance and job as a result of his allegation that all military orders issued after 12pm EST on 20 January 2009 are invalid.

  33. avatar
    Black Lion July 27, 2010 at 12:19 pm #

    I think the bigger point is that in reality it is open season on Obama and the administration. The birthers are just the public face of the campaign to discredit the President and take the country back….as in back in time to the so called heyday of the ultra right wingnuts…(and I am not including all conservatives)….

    Good article from Mediamatters….

    http://mediamatters.org/research/201007260051

    Rinse, repeat: Right-wing media just can’t stop pushing fake stories

    After their smear of Shirley Sherrod dissolved, the right-wing media moved on to two new fake stories: that Mexican gangs had “invade[d]” Texas and taken over two ranches, and that President Obama “backed the release” of the Lockerbie bomber. Indeed, the right-wing media regularly embarrass themselves by running with entirely fabricated stories.

    -Right-wing media eagerly spread absurd claim that Obama plans to “ban sport fishing.” 3/9/2010

    -Fox, right-wing blogs snared by satire post about a global warming activist freezing to death. 3/29/2010

    -Right-wing smear machine falls for fake Obama quote labeled as “satire.” 8/25/2009

    -Right-wing media adopt “insane conspiracy theory” that Obama lied about attending daughter’s soccer game. 4/13/2010

    -Right-wing media apply quote about Obama inauguration crowd size to tea party rally. 9/13/2009

    -Breitbart burns right-wing media with false claim of Community Organizers Pray[ing] TO” Obama. 9/29/2009

    -Fox Nation, Drudge Report, CNS distortion: White House requested “Jesus” be hidden during speech. 4/15/2009

    -Claim that alleged bomber is a registered Democrat collapsed — after Limbaugh boosted it. 5/4/2010

    -Fox & Friends forwards Hoft’s debunked suggestion that NAACP president was in attendance at Sherrod speech. 7/21/2010

  34. avatar
    Black Lion July 27, 2010 at 12:32 pm #

    Mario is still posting nonsense over at NBC’s site….Still afraid to post here after his last eviseration at the hands of the legal experts at this site….

    http://nativeborncitizen.wordpress.com/2010/07/23/kerchner-v-obama-no-sanctions/comment-page-1/#comment-18135

    A recent example….

    Gorefan says:
    July 25, 2010 at 21:51
    Mario – More questions. In earlier comments you said that the Framers used law of nations not English Law as their guide. Is it possible they used both?

    In 1689, King William III and Queen Mary declared war on Frnace. In the declaration of war they listed their grievences including the following: “But that which must nearly touch us, is his unchristian prosecution of many of our English Protestant subjects in France, for matters of religion, contrary to the law of nations, and express treaties;”.

    The “English Protestant subjects” talked about in the declaration of war, would they need to have two English citizen parents under English Law in order to be covered by the law of nations?

    Mario Apuzzo, Esq. says:
    July 25, 2010 at 22:27
    Before you ask me why he did you have to first show me that Jefferson did model his 1779 citizenship laws on the English common law. I doubt that your premise is correct for the following reasons.

    Jefferson grandfathered adults like the Framers did in Article II, providing that “white persons” who were born in the territory (jus soli) were citizens of Virginia. Regarding infants, Jefferson made no distinction between whether the infants were born in Virginia or out of it. His main concern was that the infant be born to a citizen father or mother if the father was dead. Hence, this rule also applied to infants born in Virginia. Under English common law, a child who was born in the dominion and allegiance of the King was a “natural born subject.” It did not matter what the condition of his parents was, unless they were diplomats or members of invading armies. Hence, we can see that Jefferson’s model was surely not anything like the English common law. Rather, it followed the law of nations which provided that no matter where a child was born, and subject to the municipal laws of a nation regarding place of birth, he or she would be a citizen by birth if he or she were born to a citizen father and mother (it also meant mother because of the citizenship of the wife merging into that of her husband).

    Now why do you not show me how Jefferson modeled his 1779 law on the English common law.

    RetiredLawyer says:
    July 26, 2010 at 08:33
    Putzo,

    I don’t believe I’ve raised questions about whether you went to law school, I believe I raised a question about whether you were present for or paid attention in evidence class.

    The reason I’ve raised this question is your utter failure to explain how any of the alleged “facts” contained in your complaint or briefs or posted by you on this site would be relevant and admissible under the Federal Rules of Evidence — other than the one conceded fact known by everyone before the election that Obama’s father was not a US citizen.

    So, one more time. Please explain on this site how you would have gotten into evidence anything that would be relevant to a claim that Obama was not born in HI. Please give the evidence, who the witness is, how the witness has personal knowledge, and if the witness does not have personal knowledge which exception to the hearsay rule applies.

    Mario Apuzzo, Esq. says:
    July 26, 2010 at 13:15
    Professor,

    1. You said: “I don’t believe I’ve raised questions about whether you went to law school . . . ”

    My response: I see. Very typical. Throw the stones and hide your hand. Let me refresh your selective memory about our little exchange:

    Professor: “Wherever it was you went to law school?”

    Apuzzo: “You are the one who raised question about what law school I went to.

    Professor: “I don’t believe I’ve raised questions about whether you went to law school . . .”

    So you see, there is a difference between the words “what” and “whether,” a difference with which you are very familiar. There is a big difference between the questions, “Did Mike go to law school?” (the “whether” question) and “Where did Mike go to law school?” (the “what” question). Surely you could not use the first question to ridicule me since you know, among many things, that I have a pending case before the Third Circuit and I would have to be a lawyer to be able to do that. But you could use the second question for your ridicule which is typical for you.

    2. You said: “The reason I’ve raised this question is your utter failure to explain how any of the alleged “facts” contained in your complaint or briefs or posted by you on this site would be relevant and admissible under the Federal Rules of Evidence — other than the one conceded fact known by everyone before the election that Obama’s father was not a US citizen.

    My response: On a motion to facially dismiss the complaint for lack of standing, all well-pleaded facts of the complaint are accepted as true. At that stage, there is no hearsay issue. So none of what you raise is relevant so far. If there were to be a trial, then we would get into, among many things, burden of proof on the underlying merits and the rules of evidence. I do not see what the big hullabaloo is about whether my evidence is relevant and admissible under the rules of evidence. To satisfy plaintiffs’ discovery demands, Obama simply needs to produce this 1961 contemporaneous birth certificate showing where and when he was born. Surely you do not contend that such a document is not both relevant and admissible in evidence.

    3. You said: “So, one more time. Please explain on this site how you would have gotten into evidence anything that would be relevant to a claim that Obama was not born in HI . . . . ”

    My response: I filed the Kerchner complaint before and after Obama became the President. I do not contend in the Kerchner action that Obama was not born in Hawaii. Article II, Section 1, Clause 5 puts the burden of proof on candidate Obama, not me. This clause tells us what he has to show once he wins the general and electoral college elections if he wants to assume the office and powers of the President. He has to show that he is qualified for the job by producing, among other things, proof of place and date of birth. This is a rather simple concept. Obama looks like he is more than 35 years old and he most probably is. I have therefore maintained that he has not conclusively proven that he was born in Hawaii. I did not say he was not born in Hawaii. Being a man or woman of the law, I am sure you can appreciate these subtleties.

  35. avatar
    Black Lion July 27, 2010 at 12:36 pm #

    Gorefan says:
    July 26, 2010 at 17:47
    Mario – Where do you get a grandfather clause out of Jefferson’s citizenship law of 1779?

    1) “all white persons born within the territory of this commonwealth….shall be deemed citizens of this commonwealth”

    and

    2) “all who have resided therein two years next before the passing of this act…shall be deemed citizens of this commonwealth”

    and

    3) “all who shall hereafter migrate into the same….and shall before any court of record, give satisfactory proof by their own oath or affirmation that they intend to reside therein..shall be deemed citizens of this commonwealth”

    and

    4) “all infants wheresoever born, whose father if living, or otherwise whose mother was a citizen at the time of their birth, or who migrate hither, their father if living, or otherwise their mother, becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this commonwealth”

    Sounds like:
    1) jus soli for person born in the territory of the Commonwealth;
    2) a residence requirement for persons not born in the territory but having resided there for several years;
    3) a naturalization process for immigrants; and
    4) a naturalization process for children born outside the territory of the Commonwealth to Commonweath citizens.

    Sef says:
    July 26, 2010 at 17:47
    Mario, you are conflating philosophy with the law. That might work when you are trying a DUI case before a JP or jury, but totally fails before a Federal Judge. You are also using the Declaration of Independence as a legal source. Next you will be saying the Preamble to the Constitution takes precedence over anything else in the Constitution. FAIL!

    Mario Apuzzo, Esq. says:
    July 27, 2010 at 01:38
    gorefan,

    To understand Jefferson, you have to consider that he, like the Framers who wrote the Constitution, wrote a citizenship law for an “infant state.” Here is the grandfather clause. “All white person” just needed to be born in Virginia to be citizens. But infants (note Jefferson does not say “white” infants), “wheresoever” born would need a citizen father or mother (if the father was dead) to be a citizen. “Wheresoever” born means born in Virginia or out of it. So, Jefferson grandfathered “white” adults who were born in Virginia and who would have adhered to the Revolution, not requiring that they have any citizen parents to be given citizenship. But for infants, they would need the citizen parent connection. There was no need for Jefferson to require that the infants be “white” because the infants followed the condition of their parents. If the parents could not be citizens because of their color, neither could their children because the children would be missing a citizen father or mother, if the father was dead.

    Except for the inclusion of “white” persons, Jefferson’s citizenship law is consistent with that put forward by Pufendorf, Vattel, Ramsay, The Venus, Minor v. Happersett, Dred Scott, the Slaughterhouse Cases, Elk, and Wong Kim Ark to the extent that it confirmed the original definition of a “natural born Citizen.” Jefferson’s citizenship law is also consistent with our naturalization laws that existed prior to the Wong Kim Ark decision, which allowed for the status of “citizen of the United States” (not to be confused with the status of “natural born Citizen”) to be given to children born in the U.S. to domiciled alien parents.

  36. avatar
    Dr. Conspiracy July 27, 2010 at 3:43 pm #

    Majority Will: Is the New Jersey Bar Association just as apathetic as the California Bar Association when comes to admonishing lawyers for frivolous lawsuits?

    I think the big ethical issue before the Third Circuit Court of Appeals was not so much that the appeal was frivolous as it was the Apuzzo did not cite the Berg case in the Appeal.

  37. avatar
    Dr. Kenneth Noisewater (Bob Ross) July 27, 2010 at 4:05 pm #

    You know I do love when birthers use NBCs website as a source alongside apuzzo, postemail, and worldnetdaily. It just goes to show they rarely pay attention to what they’re reading.

  38. avatar
    PetJake July 27, 2010 at 7:28 pm #

    “What has he learned?”

    That he’s yet to find a judge with the brass balls to hear his case on its merits.

  39. avatar
    PetJake July 27, 2010 at 7:32 pm #

    Any case, any ruling, any sanction against the Plaintiff that may lead to Discovery of Obama’s records is summarily dropped like a hot potato.

    That was the sole reason why the judge dropped the sanctions.

    That is what you have learned from it.

  40. avatar
    Dr. Kenneth Noisewater (Bob Ross) July 27, 2010 at 8:45 pm #

    PetJake: “What has he learned?”That he’s yet to find a judge with the brass balls to hear his case on its merits.

    Considering none of the cases have any merit or standing it has nothing to do with the balls of a judge. What you’re looking for is an activist judge.

  41. avatar
    Dr. Kenneth Noisewater (Bob Ross) July 27, 2010 at 8:46 pm #

    PetJake: Any case, any ruling, any sanction against the Plaintiff that may lead to Discovery of Obama’s records is summarily dropped like a hot potato.
    That was the sole reason why the judge dropped the sanctions.That is what you have learned from it.

    No the judge didn’t file sanctions because he’s most likely waiting for Apuzzo to hang himself with his own rope.

  42. avatar
    SluggoJD July 27, 2010 at 8:52 pm #

    PetJake: Any case, any ruling, any sanction against the Plaintiff that may lead to Discovery of Obama’s records is summarily dropped like a hot potato.
    That was the sole reason why the judge dropped the sanctions.That is what you have learned from it.

    PPPPPolarik, since everyone now knows that is you, you can drop the “petJake” routine.

  43. avatar
    bob July 27, 2010 at 8:53 pm #

    PetJake: Any case, any ruling, any sanction against the Plaintiff that may lead to Discovery of Obama’s records is summarily dropped like a hot potato.

    Except for Taitz and Hemenway, who were both sanctioned; Taitz for $20k and Hemenway was admonished.

  44. avatar
    Dr. Conspiracy July 27, 2010 at 8:54 pm #

    PetJake: Any case, any ruling, any sanction against the Plaintiff that may lead to Discovery of Obama’s records is summarily dropped like a hot potato.

    That was the sole reason why the judge dropped the sanctions.

    This is a good example of conspiracy thinking. The Third Circuit Court of Appeals, in the case of Kerchner v Obama, explained it’s reasoning for not imposing sanctions. But for birthers, where the world is seen reflected in the fun house mirror of Obama denialism, the court has wholly other reasons, reasons based on fear, or pain (hot potato), or collusion–reasons which have no evidence whatsoever to commend them.

    What is silly here, though, is that as far as I know there has never been a case remotely involving sanctions that would have lead to any kind of discovery about Obama’s records. So not only is the motivation of the court fictional, the court decision is fictional too.

  45. avatar
    Dr. Conspiracy July 27, 2010 at 8:58 pm #

    PetJake: That he’s yet to find a judge with the brass balls to hear his case on its merits.

    I’d like so see you try to explain that to Judge W. O. Carter in California to his face. We’d see who has brass balls.

  46. avatar
    Sef July 27, 2010 at 9:26 pm #

    Dr. Kenneth Noisewater (Bob Ross): What you’re looking for is an activist judge.

    Not an “activist judge”, but a judge that wants to get shot down as badly as Orly, etc. Probably not that many around.

  47. avatar
    AnotherBird July 28, 2010 at 1:06 pm #

    PetJake: Any case, any ruling, any sanction against the Plaintiff that may lead to Discovery of Obama’s records is summarily dropped like a hot potato.
    That was the sole reason why the judge dropped the sanctions.That is what you have learned from it.

    Wanna a penny. Please explain to us about Orly Taitz $20,000 sanction? That is the one imposed on her by Federal district Judge Clay, that she still has to pay.

  48. avatar
    Sef July 28, 2010 at 1:20 pm #

    PetJake: Any case, any ruling, any sanction against the Plaintiff that may lead to Discovery of Obama’s records is summarily dropped like a hot potato.
    That was the sole reason why the judge dropped the sanctions.That is what you have learned from it.

    PJ, here’s an analogy for you. Suppose you just got a brand-new nifty digital camera & you want to take a photo of your great-great-great-grandfather’s birth for your records. At some point you come to the realization that you must have a time machine in order to accomplish this task. Your failure to invent a time machine has absolutely nothing to do with your ggg-gf wanting to hide his birth from you, it has to do with the great difficulty, some say impossibility, of creating the time machine. Similarly, with the suits, you must achieve the standing requirement prior to even thinking about what you want to do next. If you don’t have standing you got nothin’.

  49. avatar
    Jules July 29, 2010 at 2:49 am #

    PetJake: Any case, any ruling, any sanction against the Plaintiff that may lead to Discovery of Obama’s records is summarily dropped like a hot potato.
    That was the sole reason why the judge dropped the sanctions.That is what you have learned from it.

    I have already addressed the question as to whether sanctions create standing here and here.

    Part of the problem with the belief that sanctions will lead to discovery is that discovery exists for the purpose of finding information relevant to points of fact and the grounds for finding the claims and appeals frivolous were on points of law. In Rhodes v. MacDonald, the claim was held not to fall within the jurisdiction of the court based on the abstention doctrine. In Kerchner v. Obama, the claim was held to be frivolous because the claimant lacked standing. In both of these cases, it was held that the lawyers should have recognised that the cases were frivolous and not brough a motion for reconsideration and appeal, respectively, even if the facts alleged were true.

  50. avatar
    Mario Apuzzo July 29, 2010 at 12:40 pm #

    Dr. Conspiracy,

    A poster by the name of jamese777 who you probably know posted at freerepublic the following statement: “In fact Mario Apuzzo came very close to being sanctioned for failing to mention Berg v Obama in his legal briefs, but I’m sure anything about that is way over your head.” See http://www.freerepublic.com/focus/news/2558926/posts?q=1&;page=128#128, Comment No. 113, posted on 7/27/10, at 2:13 p.m.

    I responded to jamese777 on freerepublic with the following: ” Why do you not stop posting lies, saying that I did not “mention Berg v. Obama in [my] legal briefs.” Why do you not read my Reply Brief and see for yourself that I fully cited and discussed Berg. How can you make such a ridiculous statement when its written in black and white in my brief? So, just stop repeating the lie.” Id. at Comment No. 125, posted on 7/28/10, at 8:43 p.m.

    jamese 777 then responded with a non-responsive answer. Id. at Comment No. 127, posted on 7/28/10, at 9:29 p.m.

    I then posted the following; “I see that you have been posting here quite a bit. You try to sound as though you know what you are talking about. You are the one who is commenting on what I did and did not do. Why do you not tell me how I did not cite and argue Berg in my “briefs.” You said it so now back it up. I’ll offer you an easy way out. Just admit that you made a mistake and we will be done with it.” Id. at Comment No. 128, posted on 7/28/10, at 10:08 p.m.

    What is strange is that usually jamese777 has an answer on freerepublic to other anti-Obama comments within a short time. Well, it is now 7-29-10, 12:40 p.m. Eastern time, and he still has not answered.

    Now you say on this thread: “I think the big ethical issue before the Third Circuit Court of Appeals was not so much that the appeal was frivolous as it was the Apuzzo did not cite the Berg case in the Appeal.”

    Maybe you can help jamese777 and yourself by responding to my two comments. Your statement that the “big ethical issue” is that “Apuzzo did not cited the Berg case in the Appeal” is much more serious than jamese777’s because you now are saying that I not only acted unethically in the appeal, but that I did so in a “big” way. I believe that you do need to address this matter immediately. I will expect a clear and direct answer. That means no evasive answers. By the way, may I remind you that the name of your thread is, “Admitting you’re wrong.”

    Mario Apuzzo, Esq.

  51. avatar
    bob July 29, 2010 at 12:59 pm #

    Hi, Mario! Welcome back!

    Hundreds of words wasted over not specifying that you failed to cite Berg in your opening brief. Where you should have cited it.

  52. avatar
    Mario Apuzzo July 29, 2010 at 1:12 pm #

    bob,

    Let’s not be dishonest. jamese777 said I did not cite Berg in my appellate “briefs” and Dr. Conspiracy said I did not cite Berg in the “Appeal.” It is rather sickening to receive comments such as yours. You really do need to get a real life somewhere. You and many on this cite are nothing but deceivers in how you have addressed the so-called my ethical issue in the Kerchner appeal. I will expect an immediate answer from Dr. Conspiracy, and not such as I got from you. In default thereof, we will have to take this matter up in a different venue.

    Mario Apuzzo, Esq.

  53. avatar
    Dr. Kenneth Noisewater (Bob Ross) July 29, 2010 at 1:22 pm #

    Mario Apuzzo: bob, Let’s not be dishonest. jamese777 said I did not cite Berg in my appellate “briefs” and Dr. Conspiracy said I did not cite Berg in the “Appeal.” It is rather sickening to receive comments such as yours. You really do need to get a real life somewhere. You and many on this cite are nothing but deceivers in how you have addressed the so-called my ethical issue in the Kerchner appeal. I will expect an immediate answer from Dr. Conspiracy, and not such as I got from you. In default thereof, we will have to take this matter up in a different venue. Mario Apuzzo, Esq.

    Apuzzo I find it ironic that you want to call others deceivers when your whole blog is dedicated to deceiving the few readers you have. You then display sheer cowardice by heavily moderating your site and blocking out comments that don’t share your warped perspective on reality.

  54. avatar
    bob July 29, 2010 at 1:42 pm #

    Mario Apuzzo: You really do need to get a real life somewhere.

    It must be with great irony you discuss “getting a real life” when you yourself are hopping site to site to harangue people about failing to specify that you didn’t cite Berg in your opening brief. Of course, a bigger indicator that one lacks a real life is filing a DOA eligibility lawsuit, dramatically puffing its minutia on your own site, and then trumpeting not being sanctioned for filing a frivolous appeal as some great victory.

  55. avatar
    Dr. Kenneth Noisewater (Bob Ross) July 29, 2010 at 1:58 pm #

    bob: It must be with great irony you discuss “getting a real life” when you yourself are hopping site to site to harangue people about failing to specify that you didn’t cite Berg in your opening brief. Of course, a bigger indicator that one lacks a real life is filing a DOA eligibility lawsuit, dramatically puffing its minutia on your own site, and then trumpeting not being sanctioned for filing a frivolous appeal as some great victory.

    It’s like celebrating not getting Hepititus after having sex with a one legged hooker with herpes.

  56. avatar
    Dr. Conspiracy July 29, 2010 at 2:03 pm #

    Mario Apuzzo:
    I responded to jamese777 on freerepublic with the following: ” Why do you not stop posting lies, saying that I did not “mention Berg v. Obama in [my] legal briefs.” Why do you not read my Reply Brief and see for yourself that I fully cited and discussed Berg.

    Maybe you can help jamese777 and yourself by responding to my two comments. Your statement that the “big ethical issue” is that “Apuzzo did not cited the Berg case in the Appeal” is much more serious than jamese777′s because you now are saying that I not only acted unethically in the appeal, but that I did so in a “big” way. I believe that you do need to address this matter immediately. I will expect a clear and direct answer. That means no evasive answers. By the way, may I remind you that the name of your thread is, “Admitting you’re wrong.”

    You are, of course, quite right to expect a clear and direct answer. That’s what I do; however, I really do not understand your complaint.

    I reviewed your brief in the Kerchner Appeal, specifically the “Table of Cases” on page 5, and I do not see any listing of Berg v. Obama therein. Apparently the Third Circuit Court of Appeals did not find it either, for they said:

    We note with concern that Appellants failed to cite Berg in their opening brief. See, e.g., N.J. Rule of Professional Conduct 3.3(a)(3) (“A lawyer shall not knowingly … fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client ….”).

    Kerchner v. Obama Opinion
    , 7/2/2010, Sloviter, Barry and Hardiman, Circuit Judges (Footnote 5)

    I am not a lawyer, and perhaps my language doesn’t match the professional jargon of the legal profession, but I equate “ethics” with “professional conduct”. When the court considers your oversight to a matter of “concern” then I would label it “big.” Footnote 5 immediately precedes the sentence “We therefore will order Appellants’ counsel to show cause why he should pay just damages and costs for having filed a frivolous appeal.” I think that it reasonable to consider the breech of professional conduct an aggravating factor in the threat of damages and given the Court’s expression of concern, and I think it is a fair conclusion that you risked sanctions by not citing Berg in your brief.

    You are correct that in later briefs you did mention Berg, but this did not assuage the concerns of the court in the opinion cited above.

    [Thanks, bob, for your note.]

  57. avatar
    bob July 29, 2010 at 2:16 pm #

    Dr. Conspiracy: So yes, I was wrong to confuse the district and circuit court filing.

    You had it right. Apuzzo didn’t cite the 3d Circuit’s Berg ruling in the opening brief he filed in the 3d Circuit. (Opening briefs are filed in circuit courts, not district courts.) Apuzzo did cite Berg in his reply brief. Apuzzo’s in a tizzy because some have stated that he didn’t cite the case to the 3d Circuit at all.

    Apuzzo could not have cited the 3d Circuit’s opinion in Berg in his district court filings because he had not been decided by then.

    [The comment to which this not applies has been updated to reflect the content here.]

  58. avatar
    Majority Will July 29, 2010 at 2:35 pm #

    Dr. Kenneth Noisewater (Bob Ross):
    It’s like celebrating not getting Hepititus after having sex with a one legged hooker with herpes.

    Only if she buys breakfast too. There are standards and then there are standards.

  59. avatar
    JoZeppy July 29, 2010 at 2:40 pm #

    Mario Apuzzo: I will expect a clear and direct answer.

    While I do believe we should all correct any inaccuracies in our statements, I do find it rather ironic that Mr. “Pakistani Travel Ban” is making demands of “clear and direct answers.

  60. avatar
    G July 29, 2010 at 2:43 pm #

    Mario Apuzzo: In default thereof, we will have to take this matter up in a different venue.

    LOL! Somehow, legal threats from a birther laywer seem comical. So, what is the actual threat here…that you’ll threaten to file another frivolous lawsuit that you can lose? LMAO!

  61. avatar
    Dr. Kenneth Noisewater (Bob Ross) July 29, 2010 at 3:00 pm #

    G: LOL! Somehow, legal threats from a birther laywer seem comical. So, what is the actual threat here…that you’ll threaten to file another frivolous lawsuit that you can lose? LMAO!

    THE BLACK KNIGHT ALWAYS TRIUMPHS!!!!

  62. avatar
    Sef July 29, 2010 at 3:31 pm #

    Dr. Kenneth Noisewater (Bob Ross):
    THE BLACK KNIGHT ALWAYS TRIUMPHS!!!!

    I wonder when Mario is going to “call it a draw”?

  63. avatar
    brygenon July 29, 2010 at 3:48 pm #

    Losing and frivolously appealing but not sanctioned attorney Mario Apuzzo wrote: Why do you not read my Reply Brief and see for yourself that I fully cited and discussed Berg. How can you make such a ridiculous statement when its written in black and white in my brief?

    Mario discussed Berg only after the defense brought it up. The Court’s concern was with his opening brief. The Court wrote:

    We also note with concern that Appellants failed to cite Berg in their opening brief. See, e.g., N.J. Rule of Professional Conduct 3.3(a)(3) (“A lawyer shall not knowingly . . . fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client. . . .”). Although Berg was filed only some two months before Appellants’ brief, it is unlikely it had not come to their attention given the identity of the issues.

  64. avatar
    BatGuano July 29, 2010 at 3:48 pm #

    Sef:
    I wonder when Mario is going to “call it a draw”?

    i’d say we’re one, maybe two limbs away from that statement.

  65. avatar
    Majority Will July 29, 2010 at 3:57 pm #

    BatGuano:
    i’d say we’re one, maybe two limbs away from that statement.

    “It’s just a flesh wound.”

  66. avatar
    BatGuano July 29, 2010 at 4:03 pm #

    brygenon:
    Mario discussed Berg only after the defense brought it up. The Court’s concern was with his opening brief. The Court wrote:

    http://sadtrombone.com/

  67. avatar
    tes July 29, 2010 at 4:48 pm #

    tes:
    —————————
    I agree.And – while Apuzzo argued that there was no violation because, AFTER he filed his Appellant Brief, the Gov referenced Berg in their brief, he cited no authority whatsoever for his preferred interpretation of the rule.However, as the 11th Circuit stated in Jorgenson v. Volusia County, 846 F.2d 1350, 1352 (11th Cir. 1988):“The appellants are not redeemed by the fact that opposing counsel subsequently cited the controlling precedent. The appellants had a duty to refrain from affirmatively misleading the court as to the state of the law. They were not relieved of this duty by the possibility that opposing counsel might find and cite the controlling precedent, particularly where, as here, a temporary restraining order might have been issued ex parte.”

    So — while Apuzzo is correct that he did, in fact, cite and discuss Berg in his Reply Brief (and, thus, anyone saying that he didn’t cite Berg in “any” of his appeal briefs are incorrect), the undisputed fact is also that Apuzzo cited Berg only AFTER the Gov raised it in their Opposition and .. AFTER he failed to cite Berg in his Opening Brief. And, as Jorgenson makes clear, the duty is to disclose “up front.”

  68. avatar
    Mario Apuzzo July 29, 2010 at 5:43 pm #

    tes,

    I would have expected you to be more honorable. I was wrong. That’s why they say birds of a feather flock together. That is an imutable law of nature and it is true.

    From my response to the Third Circuit Court of Appeals:

    “III.
    THE COURT RECORD CLEARLY SHOWS THAT ATTORNEY APUZZO DID NOT VIOLATE N.J. RULE OF PROFESSIONAL CONDUCT 3.3(A)(3) AND SO THE COURT SHOULD CORRECT ITS DECISION BY REMOVING ANY IMPLICATION THAT HE DID

    On November 12, 2009, about two months prior to my filing my Opening Brief on January 19, 2010, a Third Circuit panel issued its decision in Berg v. Obama, 586 F.3d 234 (3d Cir. 2009). This decision did address the issue of whether plaintiff had standing to bring an eligibility claim against Obama. The Court cites and quotes N.J. Rule of Professional Conduct 3.3(a)(3) as follows: “A lawyer shall not knowingly . . . fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client . . . .”). After citing this ethics rule, the Court “note[s] with concern that Appellants failed to cite Berg in their opening brief.” Opinion p. 9, n.5. Needless to say, that the Court in no uncertain terms has implied that I violated this ethics rule. The Court’s citing of this rule and stating that “Appellants failed to cite Berg in their opening brief” is even more damaging to me given that the court has issued an order that I show cause why the Court should not impose damages and costs upon me for filing what it considers to be a frivolous appeal. To a member of the general public, it would appear that the Court wants to sanction me for having not only filed a frivolous appeal but also for having violated a rule of professional ethics. But an examination of the cited ethics rule in its entirety (not the cut off version provided by the Court in its decision) and the record before the Court clearly show that I did not violate this ethics rule. Because there simply is no factual or legal basis to the ethics rule having any application to anything that I did or did not do in how I prosecuted the Kerchner appeal to the Third Circuit Court of Appeals, I am requesting that the Court correct its decision by removing from it the reference to the rule and any implication therein that I violated the rule.

    LAR 28.1(a)(2) provides in relevant part that an appellant’s brief shall include, among other things, a statement of related cases and proceedings “arising out of the same case or proceeding.” The Kerchner case in the Third Circuit is the only one case ever filed in any court in the United States. Hence, there never have existed any other “same case[s] or proceedings[s]” anywhere. Nevertheless, I did mention in the Opening Brief in my Statement of Related Cases and Proceedings (Opening Brief p. 8) that there were other cases on the Obama eligibility issue already decided but which were distinguishable from our case. It was my belief based on the high notoriety of the Berg case that the Court knew that included in those cases was the Berg case. I also distinguished the facts and legal claims of the Kerchner case from those of Berg and other cases in the Opening Brief. The defendants cited and argued the Berg case in their opposition brief. I also argued the Berg case in our Reply Brief, further distinguishing it. The Court also relied heavily upon the Berg case in its decision. Hence, the Court had the full benefit of the Berg case before rendering its decision in the Kerchner appeal.

    What is more concerning to me is that the Court now intimates that I violated N.J. Rule of Professional Conduct 3.3(a)(3) Candor toward the tribunal. See Opinion at p. 9, n.5. This is most concerning to me because a lawyer cannot take lightly a federal court’s implication that he violated the rules of ethics. Such a finding can do incalculable damage to a lawyer’s career. Such a finding is even more damaging given the highly publicized and politicized nature of the Obama eligibility cases. I have provided above the quote of this ethics rule as provided by the Court in its precedential opinion. What is troubling is that the Court in quoting the ethics rule did not include in its quote a critical part which clearly and without question shows that I did absolutely nothing ethically wrong in how I prosecuted the Kerchner appeal to the Third Circuit Court of Appeals. The full quote is: “A lawyer shall not knowingly . . . fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” (emphasis supplied). We can see that the rule contains two conditions that are both necessary before a lawyer may be cited for having violated the ethics rule. The first condition is that the lawyer knowingly failed to disclose to the court controlling legal authority known to the lawyer to be directly adverse to his client’s position. The second condition is that opposing counsel also did not disclose that controlling authority to the court. Even assuming that the first condition is met, clearly and without question the record before the Court shows the second condition is not met. The defendants did disclose to the Court the actual citation to the Berg case and also argued that case throughout its Opposition Brief. In their Opposition Brief, the defendants cited the Berg case in their Table of Authorities. Def. Br. at ii. They also cited and argued the Berg case in their brief’s Statement of Related Cases and Proceedings and in the Standard of Review. Def. Br. at 5-6. They also cited and argued the Berg case at page 8, 9, 11, and 13 of that brief.

    In my Reply Brief, I cited the Berg case in my Table of Cases and Authorities. Rep. Br. at i. I also cited and argued the Berg case in the argument section of the brief, arguing that the Berg case is inapposite. I explained how the Kerchner case was different from the Berg case. Rep. Br. at 24-26. The Court also relied heavily upon the Berg case in rendering its decision. As can be so clearly seen, the Court had the benefit of both the plaintiffs’ and defendants’ argument on the Berg case before it rendered its decision. The Court also relied heavily upon the Berg case in rendering its decision. The Court record clearly shows that not only did opposing counsel disclose the Berg case to the Court, but I also disclosed and argued the case to the same Court, and the Court relied heavily upon that decision in rendering its decision on July 2, 2010. It should therefore be clear to the Court that I did not violate N.J. Rule of Professional Conduct 3.3(a)(3). The court has rendered a precedential decision which includes its statement that places a cloud upon my ethics. Because of the serious nature of the Court’s ethics violation implication, I am respectfully requesting that the Court issue a corrected Opinion.”

  69. avatar
    BigGuy July 29, 2010 at 6:11 pm #

    Mario —

    I’ve read and reread what you wrote and I’m having trouble seeing where Tes has failed to be honorable.

    Tes says that you failed to cite Berg in your Opening Brief.

    Isn’t that factually correct?

  70. avatar
    bob July 29, 2010 at 6:18 pm #

    As for the specifc argument Apuzzo is attempting to make here, Tes addressed it a week ago on PJ.

    And Apuzzo ought to know that, as he’s a lurker there.

  71. avatar
    Mario Apuzzo July 29, 2010 at 6:39 pm #

    tes,

    I would have expected you to be more honorable. I was wrong. That’s why they say birds of a feather flock together. That is an immutable law of nature and it is true.

    From my response to the Third Circuit Court of Appeals:

    “III.
    THE COURT RECORD CLEARLY SHOWS THAT ATTORNEY APUZZO DID NOT VIOLATE N.J. RULE OF PROFESSIONAL CONDUCT 3.3(A)(3) AND SO THE COURT SHOULD CORRECT ITS DECISION BY REMOVING ANY IMPLICATION THAT HE DID

    On November 12, 2009, about two months prior to my filing my Opening Brief on January 19, 2010, a Third Circuit panel issued its decision in Berg v. Obama, 586 F.3d 234 (3d Cir. 2009). This decision did address the issue of whether plaintiff had standing to bring an eligibility claim against Obama. The Court cites and quotes N.J. Rule of Professional Conduct 3.3(a)(3) as follows: “A lawyer shall not knowingly . . . fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client . . . .”). After citing this ethics rule, the Court “note[s] with concern that Appellants failed to cite Berg in their opening brief.” Opinion p. 9, n.5. Needless to say, that the Court in no uncertain terms has implied that I violated this ethics rule. The Court’s citing of this rule and stating that “Appellants failed to cite Berg in their opening brief” is even more damaging to me given that the court has issued an order that I show cause why the Court should not impose damages and costs upon me for filing what it considers to be a frivolous appeal. To a member of the general public, it would appear that the Court wants to sanction me for having not only filed a frivolous appeal but also for having violated a rule of professional ethics. But an examination of the cited ethics rule in its entirety (not the cut off version provided by the Court in its decision) and the record before the Court clearly show that I did not violate this ethics rule. Because there simply is no factual or legal basis to the ethics rule having any application to anything that I did or did not do in how I prosecuted the Kerchner appeal to the Third Circuit Court of Appeals, I am requesting that the Court correct its decision by removing from it the reference to the rule and any implication therein that I violated the rule.

    LAR 28.1(a)(2) provides in relevant part that an appellant’s brief shall include, among other things, a statement of related cases and proceedings “arising out of the same case or proceeding.” The Kerchner case in the Third Circuit is the only one case ever filed in any court in the United States. Hence, there never have existed any other “same case[s] or proceedings[s]” anywhere. Nevertheless, I did mention in the Opening Brief in my Statement of Related Cases and Proceedings (Opening Brief p. that there were other cases on the Obama eligibility issue already decided but which were distinguishable from our case. It was my belief based on the high notoriety of the Berg case that the Court knew that included in those cases was the Berg case. I also distinguished the facts and legal claims of the Kerchner case from those of Berg and other cases in the Opening Brief. The defendants cited and argued the Berg case in their opposition brief. I also argued the Berg case in our Reply Brief, further distinguishing it. The Court also relied heavily upon the Berg case in its decision. Hence, the Court had the full benefit of the Berg case before rendering its decision in the Kerchner appeal.

    What is more concerning to me is that the Court now intimates that I violated N.J. Rule of Professional Conduct 3.3(a)(3) Candor toward the tribunal. See Opinion at p. 9, n.5. This is most concerning to me because a lawyer cannot take lightly a federal court’s implication that he violated the rules of ethics. Such a finding can do incalculable damage to a lawyer’s career. Such a finding is even more damaging given the highly publicized and politicized nature of the Obama eligibility cases. I have provided above the quote of this ethics rule as provided by the Court in its precedential opinion. What is troubling is that the Court in quoting the ethics rule did not include in its quote a critical part which clearly and without question shows that I did absolutely nothing ethically wrong in how I prosecuted the Kerchner appeal to the Third Circuit Court of Appeals. The full quote is: “A lawyer shall not knowingly . . . fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” (emphasis supplied). We can see that the rule contains two conditions that are both necessary before a lawyer may be cited for having violated the ethics rule. The first condition is that the lawyer knowingly failed to disclose to the court controlling legal authority known to the lawyer to be directly adverse to his client’s position. The second condition is that opposing counsel also did not disclose that controlling authority to the court. Even assuming that the first condition is met, clearly and without question the record before the Court shows the second condition is not met. The defendants did disclose to the Court the actual citation to the Berg case and also argued that case throughout its Opposition Brief. In their Opposition Brief, the defendants cited the Berg case in their Table of Authorities. Def. Br. at ii. They also cited and argued the Berg case in their brief’s Statement of Related Cases and Proceedings and in the Standard of Review. Def. Br. at 5-6. They also cited and argued the Berg case at page 8, 9, 11, and 13 of that brief.

    In my Reply Brief, I cited the Berg case in my Table of Cases and Authorities. Rep. Br. at i. I also cited and argued the Berg case in the argument section of the brief, arguing that the Berg case is inapposite. I explained how the Kerchner case was different from the Berg case. Rep. Br. at 24-26. The Court also relied heavily upon the Berg case in rendering its decision. As can be so clearly seen, the Court had the benefit of both the plaintiffs’ and defendants’ argument on the Berg case before it rendered its decision. The Court also relied heavily upon the Berg case in rendering its decision. The Court record clearly shows that not only did opposing counsel disclose the Berg case to the Court, but I also disclosed and argued the case to the same Court, and the Court relied heavily upon that decision in rendering its decision on July 2, 2010. It should therefore be clear to the Court that I did not violate N.J. Rule of Professional Conduct 3.3(a)(3). The court has rendered a precedential decision which includes its statement that places a cloud upon my ethics. Because of the serious nature of the Court’s ethics violation implication, I am respectfully requesting that the Court issue a corrected Opinion.”

    So as you can see, the Court did not correctly quote N.J. Rule of Professional Conduct 3.3(a)(3). If it had quoted the correct rule, there would have been absolutely no basis for the Court to even bring the rule up. I cited and discussed Berg in my Reply brief. I therefore complied with the New Jersey rule.

    You cite to Jorgenson v. Volusia County, 846 F.2d 1350, 1352 (11th Cir. 1988). First, that case is distinguishable from mine. The court said: “They were not relieved of this duty by the possibility that opposing counsel might find and cite the controlling precedent, particularly where, as here, a temporary restraining order might have been issued ex parte.” My situation was an appeal, not an ex parte application for some type of relief. In an appeal, my adversary files an opposing brief and then the appellant files a reply brief. That is what happened here. The court would not have given me any ex parte relief simply on my Opening Brief.

    Second, Jorgenson was concerned with counsel “affirmatively misleading the court as to the state of the law.” That concern could fall under RPC 3.3 (a)(5) which the Third Circuit did not cite. In any event, I clearly told the Court in my Opening Brief in my Statement of Related Cases and Proceedings that there were other cases on the Obama eligibility issue already decided but which were distinguishable from our case. It was my belief based on the high notoriety of the Berg case that the Court knew that included in those cases was the Berg case. In fact, the Berg case was so known that the Court itself assumed that I knew about the case. Additionally, two of the justices that decided Berg were on the Kerchner panel of three judges. I also distinguished the facts and legal claims of the Kerchner case from those of Berg and other cases in the Opening Brief. Furthermore, I fully cited and argued Berg in my Reply Brief. So I clearly told the Court the state of the law and did not mislead it. There is no evidence that I mislead the Court in any way.

    Third, in Jorgensen, the Court found that the cases not cited by counsel were “controlling” and that counsel made no effort in their original complaint or memorandum of law to distinguish them. In my Opening Brief, I said that there were other cases that had been decided by the court finding no standing. But I also explained that the facts and legal claims of the Kerchner case were different and therefore the Kerchner case was not controlled by those other cases which of course included the Berg case.

    Fourth, the Jorgenson case is not a New Jersey case. That is important because New Jersey has a specific ethics rule that controls and which I have fully quoted above. I am a New Jersey attorney and am bound by the ethics rules of New Jersey. There is no ethical violation in New Jersey under the applicable rule if the other opposing counsel discloses to the Court the adverse controlling legal authority and I then also include citation and argument in my reply brief on that same authority. Under these circumstances, there is absolutely no basis to think that I committed any ethical violation.

    Finally, it appears that you are the one who is not being candid with the “Court.” You have failed to cite to controlling legal authority that applies in New Jersey, authority of which you are well aware. I know that you are aware of Brundage v. Estate of Carl v. Carambio, 195 N.J. 575 (2008). This is a case from the Supreme Court of the State of New Jersey. Both the majority and dissenting opinions of this case exonerate me. This case tells us that one appellate panel is not bound by the decision of another appellate panel. The Supreme Court also exonerated the attorney because it did not conclude that there was a “reasonable certainty” that the court would be mislead by anything the attorney did. What is also important to note is that there was a dissent for the reason that the majority even hinted that the attorney did anything wrong. Justice Albin dissented, stating: “[P]laintiff’s attorney should not be publicly rebuked when, by the majority’s own account, he did not violate the rules of court and professional conduct, and abided by his duty of loyalty to his client, but yet crossed the line of some unwritten code of behavior to which the majority subscribes.” You were aware of this case but yet did not cite or discuss it in your “Opening Brief” and attack upon me. So who should be cited for an ethical violation, you or me?

    Mario Apuzzo, Esq.

  72. avatar
    Reality Check July 29, 2010 at 6:44 pm #

    Is there an echo in here?

  73. avatar
    Dr. Kenneth Noisewater (Bob Ross) July 29, 2010 at 7:02 pm #

    Yeah its mario thinking he’s posting on his own blog

  74. avatar
    bob July 29, 2010 at 7:13 pm #

    Hi, Mario!

    It seems like you are hankering for a debate. RC already has offered to moderate a debate with you as one the panelists. Why not accept the offer?

  75. avatar
    tes July 29, 2010 at 7:22 pm #

    Mario Apuzzo: tes,

    I would have expected you to be more honorable. I was wrong. That’s why they say birds of a feather flock together. That is an imutable law of nature and it is true.

    ————————
    You can call me names, but you haven’t offered anything of substance to indicate that I was wrong.

    The rule at issue (in full relevant part) is:

    “A lawyer shall not knowingly . . . fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”

    You DID discuss Berg in your Reply Brief. And I have never said that you didn’t. In fact, I said that the contention that you never mentioned it in any appellate brief is inaccurate.

    At the same time, I have cited to authority that the failure to cite controlling authority in a party’s OPENING brief violates the duty of candor to the tribunal — that waiting until AFTER opposing party brings it up is insufficient.

    You’ve offered no authority to the contrary.

  76. avatar
    tes July 29, 2010 at 7:26 pm #

    Mario Apuzzo: tes,
    ****

    I responded to your first post. I now see that the second post is not a “dupe” as it first appeared but, rather, you added information at the end of it. I will read through that and respond to the new info soon as possible.

  77. avatar
    Rickey July 29, 2010 at 7:31 pm #

    Mario Apuzzo: tes, I would have expected you to be more honorable.

    I’m still waiting for you to do the honorable thing and admit that there was no ban on Americans traveling to Pakistan in 1981.

  78. avatar
    Mario Apuzzo July 29, 2010 at 7:34 pm #

    tes,

    You said: “At the same time, I have cited to authority that the failure to cite controlling authority in a party’s OPENING brief violates the duty of candor to the tribunal — that waiting until AFTER opposing party brings it up is insufficient.

    You’ve offered no authority to the contrary.”

    Are you kidding me? You are the one who is citing me for some violation. Why do you not cite one case in New Jersey or in the Third Circuit or in the whole United States that supports your ridiculous argument, i.e. that even though I told the court in my Opening Brief that there exists recent case law that holds against my position but that is distinguishable from mine but I did not actual cite the Berg case but then did cite and discuss Berg in my Reply Brief, that I committed some ethical violation? You simply do not have any. The fact that you persist in your baseless accusations only proves to me even more that you are not an honorable person. The only thing that saves you is that you are flying under the cloaking device of anonymity. But I’m sure that some day we will all know who were were in this little game.

  79. avatar
    Keith July 29, 2010 at 7:43 pm #

    Keith reaches for the popcorn…

  80. avatar
    misha July 29, 2010 at 7:55 pm #

    Everyone: I found a legal scholar who agrees with Mario.

    Really.

  81. avatar
    Dr. Conspiracy July 29, 2010 at 8:18 pm #

    tes: I responded to your [Apuzzo’s] first post. I now see that the second post is not a “dupe” as it first appeared but, rather, you added information at the end of it. I will read through that and respond to the new info soon as possible.

    Meanwhile Doc puts up plywood over the windows and makes sure that no loose lawn furniture remains outdoors.

  82. avatar
    tes July 29, 2010 at 8:39 pm #

    Mario Apuzzo: You cite to Jorgenson v. Volusia County, 846 F.2d 1350, 1352 (11th Cir. 1988). First, that case is distinguishable from mine. The court said: “They were not relieved of this duty by the possibility that opposing counsel might find and cite the controlling precedent, particularly where, as here, a temporary restraining order might have been issued ex parte.”

    ———-
    Yes, the court said that this “general rule” applies with particular force when a TRO might have been issued ex parte. Notably, the court did not say that it applies only in such cases. Thus, there is no distinguishing factor on the general rule.
    ———-
    Mario Apuzzo: Second, Jorgenson was concerned with counsel “affirmatively misleading the court as to the state of the law.”
    ———-
    They said that failure to cite the controlling authority in Florida on the issue was wrong:
    ———-
    Mario Apuzzo: [QUOTING THE COURT] The appellants purported to describe the law to the district court in the hope that the description would guide and inform the court’s decision. With apparently studied care, however, they withheld the fact that the long-awaited decision by the Supreme Court of Florida had been handed down. This will not do. The appellants are not redeemed by the fact that opposing counsel subsequently cited the controlling precedent. The appellants had a duty to refrain from affirmatively misleading the court as to the state of the law. They were not relieved of this duty by the possibility that opposing counsel might find and cite the controlling precedent, particularly where, as here, a temporary restraining order might have been issued ex parte.(emphasis added)
    ———-
    In other words, the Court characterized appellant’s actions in failing to cite controlling authority as misleading the court. I fail to see how that is a “distinguishing” factor. It is a different way of saying that appellants were wrong in failing to cite the case.
    ———-
    Mario Apuzzo: In any event, I clearly told the Court in my Opening Brief in my Statement of Related Cases and Proceedings that there were other cases on the Obama eligibility issue already decided but which were distinguishable from our case. It was my belief based on the high notoriety of the Berg case that the Court knew ….
    ———-
    Could not Jorgenson have made the argument that, since the opinion at issue was “a long-awaited decision” by the Florida Supreme Court,” that he thought the Court would know about it? Since when is “I thought you knew already” a sufficient argument to get out of a duty of candor?
    ———-
    Mario Apuzzo: Third, in Jorgensen, the Court found that the cases not cited by counsel were “controlling” and that counsel made no effort in their original complaint or memorandum of law to distinguish them.
    ———-
    How is that different from the Third Circuit’s ruling that Berg is controlling and appellants failed to cite it in their “original” – i.e., opening brief?
    ———-
    Mario Apuzzo: Fourth, the Jorgenson case is not a New Jersey case
    ———-
    Correct. I never said that Jorgenson was a NJ case. Moreover, I never described it as “controlling law.” MOREover, I fully cited it (as being from 11th Circuit) to ensure that no one could be misled into thinking that it might be. That being said, there has been no showing that the applicable rule in Florida at the time was substantively distinguishable from the NJ rule.

  83. avatar
    tes July 29, 2010 at 8:43 pm #

    Mario Apuzzo: Finally, it appears that you are the one who is not being candid with the “Court.” You have failed to cite to controlling legal authority that applies in New Jersey …
    ———-
    “Controlling” ? Well. To be clear, NJ Supreme Court decisions on matters of New Jersey law certainly are controlling on the issues they decide. However, the NJ Supreme Court did not address the question of whether a party is obligated to disclose “controlling law” in an opening brief — the actions that “concern[ed]” the Third Circuit.
    And, since you “know” that I am “aware” of Brundage v. Estate of Carl v. Carambio, 195 N.J. 575 (2008), you also know, because you’ve read the discussion. And, with respect to what “this case tells us,” .. I’ll let the court’s holding on the issue speak for itself:
    —–

    “Both because the Levine decision was unpublished, and because it was the decision of a trial court, it was not “legal authority in the controlling jurisdiction” that Collins was obligated to call to the attention of either the Family Part judge or the appellate panel.” 195 N.J. 575, 593, 951 A.2d 947, 957

    —–
    While not a part of its holding, the court did state that because the decision of one appellate panel in New Jersey is not binding on another appellate panel in New Jersey. (Thus, presumably, the decision of one panel would not be controlling.) To be clear: the reason that one appellate court panel’s decision would not be “controlling” is because one appellate panel is not bound by a prior decision from a different panel. This is similar to the federal appellate circuit courts. A decision by the Ninth Circuit is not controlling on the Third Circuit.

    However …. in the Third Circuit, prior rulings by different panels *are* binding on subsequent panels:
    —–

    “It is the tradition of this court that the holding of a panel in a precedential opinion is binding on subsequent panels. Thus, no subsequent panel overrules the holding in a precedential opinion of a previous panel. Court en banc consideration is required to do so.

    —–
    See 3d Cir. IOP 9.1. See also, e.g., Pitt News v. Papperet, 379 F.3d 96 (3rd Cir. 2004) (recognizing “prior panel” rule); U.S. v. Rodriguez, 359 Fed.Appx. 311, 312 (3rd Cir. 2009) (“Johnson remains controlling precedent in this circuit, and cannot be overruled by an appellate panel. See 3d Cir. IOP 9.1 (“Court en banc consideration is required to [overrule precedential opinions].”).”); U.S. v. Parmelee, 262 Fed.Appx. 416, 419 n.2 (3rd Cir. 2008) (“FN2. We note that our Internal Operating Procedures also prevent panel reconsideration of holdings from prior precedential opinions: ‘[N]o subsequent panel overrules the holding in a precedential opinion of a previous panel. Court en banc consideration is required to do so.'”); Kurniawan v. Attorney General of U.S., 208 Fed.Appx. 164 (3rd Cir. 2006) (“[party] appropriately acknowledges in his brief that his arguments with regard to [statute]’s time bar are “almost identical” to those which were rejected in [prior case decided by different panel]. …We agree. Accordingly, we are bound by the holding in [that prior case] …. Id. at 632; 3d Cir. IOP 9.1.).

    * * *
    Sooo…
    You are correct that I was aware of Brundage v. Estate of Carl v. Carambio.

    Your implication as to why I did not cite it is specious: The reason that I didn’t cite Brundage v. Estate of Carl v. Carambio is because,
    (a) UNLIKE the decision at issue in Brundage, Berg was not an unpublished decision – Berg was a published decision;
    (b) UNLIKE the decision at issue in Brundage, Berg was not a trial court decision – Berg was an appellate court decision; and
    (c) UNLIKE the decision at issue in Brundage, which was not binding on other panels in the New Jersey appellate court, the decision in Berg was binding on the other panels in the Third Circuit.
    * * *
    Query: If Brundage, was so on point, why — nothwithstanding the fact that the Response Brief was 95 pages long — WHY is it that Brundage is not mentioned ? ? ?

  84. avatar
    tes July 29, 2010 at 9:00 pm #

    Mario Apuzzo: tes, You are the one who is citing me for some violation….

    No no no no. I have not and AM NOT “citing you for some violation.”
    I have merely:

    1. DIscussed authority that would support the Third Circuit’s expressed “concern.” (It’s worth noting that the Court did not cite anyone for any violation either. It expressed concern. From the Response, one might think that there was a citation for a violation — but you and I both know that did not happen.)

    2. DIscussed my belief that you have failed to demonstrate that their “concern” was unjustified.

    3. Discussed cases that you rely upon — and cases you don’t cite at all — which bear on the issue of whether failure to cite controlling authority in an opening brief would violate the duty of candor to the tribunal.
    ———————————————-
    TO BE CLEAR: I HAVE NOT AND AM NOT CITING YOU, PERSONALLY OR ACCUSING YOU, PERSONALLY, OF ANY VIOLATION OF ANYTHING.
    ———————————————-
    I have done nothing more than comment on court rulings and briefs filed – and discuss my views of the relative strengths and weaknesses of the courts’ rationale and litigant’s arguments, based on my understanding of the law as an interested citizen. Please don’t misread my commentary undertaking as an interested citizen in the same way that you appear to have misread the Court’s expressed concern.

    It’s not personal. (It is not my practice to attack PEOPLE.)
    .
    It’s theoretical. (I *do* “attack” illogical or misplaced arguments and I *do* attack misrepresentations of cases or facts.)

  85. avatar
    AnotherBird July 29, 2010 at 9:18 pm #

    Keith: Keith reaches for the popcorn…

    Popcorn … Some people can’t admit that they are wrong, and seem to instead bicker about irrelevant facts. Mario seems to just be picking minor points.

  86. avatar
    Majority Will July 29, 2010 at 9:34 pm #

    AnotherBird:
    Popcorn … Some people can’t admit that they are wrong, and seem to instead bicker about irrelevant facts. Mario seems to just be picking minor points.

    Minor v. Happersett? (j/k)

  87. avatar
    BigGuy July 29, 2010 at 9:46 pm #

    AnotherBird: Some people can’t admit that they are wrong, and seem to instead bicker about irrelevant facts. Mario seems to just be picking minor points.
    ______

    That’s absolutely right. Mario is fighting for turf at the very edge of his “victory.” But he would prefer not to talk about his much larger defeat.

    In the response he quoted above, he said:

    “The court has rendered a precedential decision which includes its statement that places a cloud upon my ethics. Because of the serious nature of the Court’s ethics violation implication, I am respectfully requesting that the Court issue a corrected Opinion.”

    and in no way has he gotten his wish. The court decided not to impose monetary sanctions. It did not withdraw one iota from its highly critical assessment of Mario’s lawyering.

  88. avatar
    muldrake July 29, 2010 at 9:48 pm #

    tes sez:

    “Query: If Brundage, was so on point, why — nothwithstanding the fact that the Response Brief was 95 pages long — WHY is it that Brundage is not mentioned ? ? ?”

    Because he didn’t even know about it until he read it in my post on PJ! If he read the New Jersey Law Journal, though, he’d have been aware of it since 2008.

  89. avatar
    NbC July 29, 2010 at 11:01 pm #

    tes: It’s theoretical. (I *do* “attack” illogical or misplaced arguments and I *do* attack misrepresentations of cases or facts.)

    Hear hear…

  90. avatar
    GeorgetownJD July 29, 2010 at 11:28 pm #

    Mario Apuzzo: bob,
    Let’s not be dishonest.jamese777 said I did not cite Berg in my appellate “briefs” and Dr. Conspiracy said I did not cite Berg in the “Appeal.”It is rather sickening to receive comments such as yours.You really do need to get a real life somewhere.You and many on this cite are nothing but deceivers in how you have addressed the so-called my ethical issue in the Kerchner appeal.I will expect an immediate answer from Dr. Conspiracy, and not such as I got from you.In default thereof, we will have to take this matter up in a different venue.Mario Apuzzo, Esq.

    Shouldn’t you be working on that petition for writ of certiorari rather than trolling the ‘Net arguing with bloggers over the whupping the Third Circuit measured out? Hop to it, Mario. The sooner you get it filed, the sooner we can begin watching for those Monday Orders with Chuckie’s name on the “Denied” list.

  91. avatar
    Mario Apuzzo July 29, 2010 at 11:48 pm #

    tes & co.

    Despite all your twisting, turning, and subterfuge, you have not cited to one New Jersey state or federal case or rule of professional responsibility that in any way demonstrates that there is any reason to question or show concern for the ethical propriety of what I did or did not do in the Kerchner appeal. You can dissect ants and worms a’ la Tes all you want, but when we put it all together, any one with an honest understanding of the facts and correct legal standard can see that you have assembled nothing but a hodgepodge of innuendo that all together proves nothing. Your continuing to insist on your baseless position regarding the ethics of how I prosecuted the Kerchner appeal clearly reveals the vindictiveness and baseness of your spirit. This matter is not closed.

  92. avatar
    Reality Check July 29, 2010 at 11:54 pm #

    Mario Apuzzo: … any one with an honest understanding of the facts and correct legal standard …

    Well you just eliminated every birfer right there Mario.

  93. avatar
    Majority Will July 29, 2010 at 11:59 pm #

    AO

    Reality Check:
    Well you just eliminated every birfer right there Mario.

    LMFAO

    I thought Italian American attorneys from New Jersey could not be that possibly . . .

  94. avatar
    Majority Will July 30, 2010 at 12:01 am #

    BWAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA ! !

  95. avatar
    Dr. Kenneth Noisewater (Bob Ross) July 30, 2010 at 12:02 am #

    Mario Apuzzo: tes & co.
    Despite all your twisting, turning, and subterfuge, you have not cited to one New Jersey state or federal case or rule of professional responsibility that in any way demonstrates that there is any reason to question or show concern for the ethical propriety of what I did or did not do in the Kerchner appeal.You can dissect ants and worms a’ la Tes all you want, but when we put it all together, any one with an honest understanding of the facts and correct legal standard can see that you have assembled nothing but a hodgepodge of innuendo that all together proves nothing.Your continuing to insist on your baseless position regarding the ethics of how I prosecuted the Kerchner appeal clearly reveals the vindictiveness and baseness of your spirit.This matter is not closed.

    Wow Mario do you ever have a moment of self reflection there? Everything you accuse Tes of is something you have failed over and over again with your filings against Obama. It shows you have a dishonest lack of understanding of the facts and legal standards involved when you submit your cases in court. That is why you continue to lose. If you had any ethical qualms you would have realized there is no way you would have a case. The courts are not an avenue for you while Obama is President. But I’m sure you’re collecting plenty of donations to continue to lose.

  96. avatar
    misha July 30, 2010 at 12:02 am #

    Mario: Check out this!

    Mario: how can I tell if my cat loves me? Do you think it’s because I feed him, or does he love me for what I am?

  97. avatar
    Keith July 30, 2010 at 12:05 am #

    muldrake:Because he didn’t even know about it until he read it in my post on PJ!If he read the New Jersey Law Journal, though, he’d have been aware of it since 2008.

    ya gonna send him a bill?

  98. avatar
    tes July 30, 2010 at 12:35 am #

    muldrake: tes sez:“Query: If Brundage, was so on point, why — nothwithstanding the fact that the Response Brief was 95 pages long — WHY is it that Brundage is not mentioned ? ? ?”Because he didn’t even know about it until he read it in my post on PJ!If he read the New Jersey Law Journal, though, he’d have been aware of it since 2008.

    Given the incredible emotionally visceral – however nonsubstantive – response, one would not be unreasonable to assume a lack of famiarity with IOP 9.1 and the *multiple* Third Circuit cases referencing it as well. Too. Also.

  99. avatar
    Mario Apuzzo July 30, 2010 at 1:02 am #

    tes:

    tes: Given the incredible emotionally visceral – however nonsubstantive – response, one would not be unreasonable to assume a lack of famiarity with IOP 9.1 and the *multiple* Third Circuit cases referencing it as well. Too. Also.

    Overruling a panel decision is one thing and distinguishing a panel decision is another. Clearly, when one case presents a factual and legal scenario wherein plaintiff fails to allege a concrete and particularized injury in fact, the case lacks ripeness, the case presents a political question and separation of powers problem, and the plaintiff’s claims present 1st Amendment problems,but another case presents none of that, the two cases are distinguishable and there is no need to overrule the former.

  100. avatar
    AnotherBird July 30, 2010 at 1:25 am #

    Mario Apuzzo: tes & co.
    Despite all your twisting, turning, and subterfuge, you have not cited to one New Jersey state or federal case or rule of professional responsibility that in any way demonstrates that there is any reason to question or show concern for the ethical propriety of what I did or did not do in the Kerchner appeal.You can dissect ants and worms a’ la Tes all you want, but when we put it all together, any one with an honest understanding of the facts and correct legal standard can see that you have assembled nothing but a hodgepodge of innuendo that all together proves nothing.Your continuing to insist on your baseless position regarding the ethics of how I prosecuted the Kerchner appeal clearly reveals the vindictiveness and baseness of your spirit.This matter is not closed.

    Sorry Mario, I have little or no concern about “the ethical propriety of what I did or did not do in the Kerchner appeal.” it is not important to the big picture. Dr. Conspiracy has acknowledged where he has made an error. However, that is also not important to the big picture. You seem to still not understand what the real issue is. The issue isn’t the appeal. Court case after court case has been dismissed without going to trail that were similar to yours, but you decided to seek an appeal.

    If this is about your pride, just walk away. Go back to your regular legal practice and drop this conspiracy nonsense. Yes, that is the big picture the conspiracy theory you attempted to advance using the courts. Just walk away.

  101. avatar
    bob July 30, 2010 at 1:41 am #

    Mario Apuzzo: tes:Overruling a panel decision is one thing and distinguishing a panel decision is another. Clearly, when one case presents a factual and legal scenario wherein plaintiff fails to allege a concrete and particularized injury in fact, the case lacks ripeness, the case presents a political question and separation of powers problem, and the plaintiff’s claims present 1st Amendment problems,but another case presents none of that, the two cases are distinguishable and there is no need to overrule the former.

    Standing. S – t – a – n – d – i – n – g. Berg’s injuries were no more particularized than your client’s.

  102. avatar
    brygenon July 30, 2010 at 2:15 pm #

    Losing and frivolously appealing but not sanctioned attorney Mario Apuzzo wrote: Overruling a panel decision is one thing and distinguishing a panel decision is another. Clearly, when one case presents a factual and legal scenario wherein plaintiff fails to allege a concrete and particularized injury in fact, the case lacks ripeness, the case presents a political question and separation of powers problem, and the plaintiff’s claims present 1st Amendment problems,but another case presents none of that, the two cases are distinguishable and there is no need to overrule the former

    We have a ruling on that. Mario, your appeal was frivolous because you should have known from the precedents that your clients lack Article III standing. Some of us had explained that to you months ago, and it turned out that we were right. You got out of paying costs and damages, but you’re not going to be able to fool anyone here into thinking your case is much different from Berg’s after the Court of Appeals so clearly told you otherwise.

    Mario, shortly before the Third Circuit’s ruling you wrote:

    Putative President Obama’s supporters are out and about arguing that the Kerchner v. Obama/Congress case is exactly like the Berg v. Obama case and therefore the Third Circuit Court of Appeals should affirm the District Court’s dismissal of the case for lack of standing. This is not only an incredible statement but an outright lie.

    Now that what you called our “outright lie” has proven to be correct, will you issue the appropriate retraction and apology?

  103. avatar
    NbC July 30, 2010 at 6:33 pm #

    Mario, what about a petition for panel rehearing to amend the judgment?

    Tick tock Tick tock?

  104. avatar
    misha July 30, 2010 at 7:37 pm #

    Mario Apuzzo: Overruling a panel decision is one thing and distinguishing a panel decision is another.

    Mario: my cat is illiterate. Do you think I can teach him to read? Here’s a similar story:

    http://www.theonion.com/articles/are-your-cats-old-enough-to-learn-about-jesus,11206/

  105. avatar
    LMK July 31, 2010 at 5:15 pm #

    Dr. Kenneth Noisewater (Bob Ross):
    Wow Mario do you ever have a moment of self reflection there?Everything you accuse Tes of is something you have failed over and over again with your filings against Obama.It shows you have a dishonest lack of understanding of the facts and legal standards involved when you submit your cases in court.That is why you continue to lose.If you had any ethical qualms you would have realized there is no way you would have a case.The courts are not an avenue for you while Obama is President.But I’m sure you’re collecting plenty of donations to continue to lose.

    Emphasis mine.

    Ramen!

    ____________________________________________________________________

    Mario:

    O . M . G . !!!!

    Before I respond in more detail, I want to challenge you to accept Reality Check’s offer to a formal debate. You seem to strongly believe you are in the right. So prove it. Shut us obots up by engaging in a formal debate. Step up, Mario.

    Mario, seriously, you can’t even give a reasonable response to Tes’ comments and analysis. You responses to her comments bring back memories of Bill Clinton saying ‘It depends on what the definition of “is” is’.

    I haven’t seen such a pathetic attempt to dance around an argument in a very long time. You are downright dishonest and got slapped for trying to pull this crap with the courts.

    0-71, Mario. 2 years of cases for you to try to build an argument from. (Yes, I know, not all of these were completed when you wrote your appeal and OSC). Your reasoning for not including Berg is:

    It was my belief based on the high notoriety of the Berg case that the Court knew that included in those cases was the Berg case. ….. The Court also relied heavily upon the Berg case in its decision. Hence, the Court had the full benefit of the Berg case before rendering its decision in the Kerchner appeal.

    I am an educator. Students like to try to use this kind of excuse to explain why they wrote such a bad research paper. “Well, Freud’s theories are so well known that I assumed that you would understand what I was trying to say.” The point, for my students and for any lawyer is that you must argue your case with integrity. It isn’t the job of the court to imagine what you think should be relevant to your case. It is your job to provide all relevant info and resources in your pleadings. You should have sited Berg initially. Even you know that,.

    The court busted you for professional laziness and for trying to avoid using previous rulings because doing so would hinder your case rather than help your case.

    The bottom line is this; argue your case and quit excusing your professional laziness and purposeful twisting of Berg. Suck it up, learn from your experience and quit whining about this. Seriously, if you had done the stellar job you think you did, you wouldn’t have had to submit an OSC!

    Now, if you respond to my post, I suspect you will resort to your “explanation of ‘is” is”‘ reasoning. Such “reasoning” is just pathetic.

    Stop playing semantics. You lost and the court handed your your ***. The court even threatened you with monetary sanctions. Any decent lawyer would be tremendously embarrassed when a court demands that they provide an OSC.

    Only birthers see an OSC demand as a victory.

  106. avatar
    LMK July 31, 2010 at 5:25 pm #

    Dr. Kenneth Noisewater (Bob Ross):
    Wow Mario do you ever have a moment of self reflection there?Everything you accuse Tes of is something you have failed over and over again with your filings against Obama.It shows you have a dishonest lack of understanding of the facts and legal standards involved when you submit your cases in court.That is why you continue to lose.If you had any ethical qualms you would have realized there is no way you would have a case.The courts are not an avenue for you while Obama is President.But I’m sure you’re collecting plenty of donations to continue to lose.

    Emphasis mine.

    Ramen!

    ____________________________________________________________________

    Mario:

    O . M . G . !!!!

    Before I respond in more detail, I want to challenge you to accept Reality Check’s offer to a formal debate. You seem to strongly believe you are in the right. So prove it. Shut us obots up by engaging in a formal debate. Step up, Mario.

    Mario, seriously, you can’t even give a reasonable response to Tes’ comments and analysis. You responses to her comments bring back memories of Bill Clinton saying ‘It depends on what the definition of “is” is’.

    0-71, Mario.

    It was my belief based on the high notoriety of the Berg case that the Court knew that included in those cases was the Berg case. ….. The Court also relied heavily upon the Berg case in its decision. Hence, the Court had the full benefit of the Berg case before rendering its decision in the Kerchner appeal.

    I am an educator. Students like to try to use this kind of excuse to explain why they wrote such a bad research paper. “Well, Freud’s theories are so well known that I assumed that you would know that I knew them and that they were relevant to my paper.” The point, for my students and for any lawyer, is that you must argue your case with integrity. It isn’t the job of the court to imagine what you think should be relevant to your case. It is your job to provide all relevant info and resources in your pleadings. You should have sited Berg initially. Even you know that,.

    The court busted you for professional laziness and for trying to avoid using previous rulings because doing so would hinder your case rather than help your case.

    The bottom line is this; argue your case and quit excusing your professional laziness and purposeful twisting of Berg. Suck it up, learn from your experience and quit whining about this. Seriously, if you had done the stellar job you think you did, you wouldn’t have had to submit an OSC!

    Now, if you respond to my post, I suspect you will resort to your “explanation of ‘is” is”‘ reasoning. Such “reasoning” is just pathetic.

    Stop playing semantics. You lost and the court handed your your ***. The court even threatened you with monetary sanctions. Any decent lawyer would be tremendously embarrassed when a court demands that they provide an OSC.

    Only birthers see an OSC demand as a victory.

  107. avatar
    The Sheriff's A Ni- August 1, 2010 at 4:13 am #

    I could’ve sworn Mario left here in a huff. Or was that a minute and a huff?

  108. avatar
    Dr. Conspiracy August 1, 2010 at 8:46 am #

    The Sheriff’s A Ni-: I could’ve sworn Mario left here in a huff. Or was that a minute and a huff?

    No, it was a 1937 Huff, with lots of chrome and white sidewalls.

  109. avatar
    misha August 1, 2010 at 10:08 am #

    Dr. Conspiracy: No, it was a 1937 Huff, with lots of chrome and white sidewalls.

    Exactly: http://www.dvrbs.com/camden-cars/CarDealers/McKennaHupmobile-1935-1b.jpg

  110. avatar
    Dr. Kenneth Noisewater (Bob Ross) August 1, 2010 at 11:49 am #

    The Sheriff’s A Ni-: I could’ve sworn Mario left here in a huff.Or was that a minute and a huff?

    I’m sure he’ll be back with his failed legal theories and continued spinning

  111. avatar
    BigGuy August 1, 2010 at 12:13 pm #

    Now, folks, let’s have a little pity on Mario. Every argument he’s made has been shown to be total bunk and he’s lost every case. He’s been put on notice that, ff he appeals this one, at the very least he’s going to lose again — “In response [to the OSC], Mario Apuzzo filed a 95-page statement that contains, inter alia, numerous statements directed to the merits of this Court’s opinion, which the Court finds unpersuasive.”

    His past is total fail, his future is total fail. If he wants to crow about anything, he’s got this tiny window in which to crow about not being subject to monetary sanctions.

    Face it, this is his crowning achievement. Let the poor guy enjoy it.

  112. avatar
    Majority Will August 1, 2010 at 12:21 pm #

    BigGuy: Now, folks, let’s have a little pity on Mario. Every argument he’s made has been shown to be total bunk and he’s lost every case. He’s been put on notice that, ff he appeals this one, at the very least he’s going to lose again — “In response [to the OSC], Mario Apuzzo filed a 95-page statement that contains, inter alia, numerous statements directed to the merits of this Court’s opinion, which the Court finds unpersuasive.”His past is total fail, his future is total fail. If he wants to crow about anything, he’s got this tiny window in which to crow about not being subject to monetary sanctions.Face it, this is his crowning achievement. Let the poor guy enjoy it.

    He can always team up with Jensen. They could be Douche & Douche, LLP.

  113. avatar
    The Sheriff's A Ni- August 1, 2010 at 12:57 pm #

    BigGuy: His past is total fail, his future is total fail.

    That’s not true. I’m sure he’ll still have his fabulous career in handling DWI cases.

  114. avatar
    misha August 1, 2010 at 6:56 pm #

    The Sheriff’s A Ni-: That’s not true. I’m sure he’ll still have his fabulous career in handling DWI cases.

    Or chasing ambulances.

  115. avatar
    Sef August 1, 2010 at 7:03 pm #

    Majority Will:
    He can always team up with Jensen. They could be Douche & Douche, LLP.

    I’m surprised no one has mentioned the obvious change to the firm’s name if Orly joined.

  116. avatar
    misha August 1, 2010 at 7:34 pm #

    Sef: I’m surprised no one has mentioned the obvious change to the firm’s name if Orly joined.

    Dewey, Cheatum and Howe.

  117. avatar
    Sef August 1, 2010 at 7:48 pm #

    misha:
    Dewey, Cheatum and Howe.

    I was thinking more of a change to their original name.

  118. avatar
    Majority Will August 1, 2010 at 8:27 pm #

    Sef:
    I’m surprised no one has mentioned the obvious change to the firm’s name if Orly joined.

    Apuzzo, Jensen, Taitz anagrams to Jazz up zest to inane.