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Archive | February, 2012

Apuzzo appearance in PA: CANCELED

The Commonwealth Court of Pennsylvania has denied a motion to admit pro hac vice the celebrated New Jersey birther attorney Mario Apuzzo to represent Charles Kerchner and Dale Laudenslager in their challenge to Barack Obama’s position on the PA Primary ballot.

Apuzzo was already deeply involved in the case, churning out 199 pages in a Brief supporting the challengers.

Obama attorney John P. Lavelle, Jr. opposed the pro hac vice appearance on the grounds that Apuzzo had appeared in a similar case that the Circuit Court of Appeals labeled “frivolous.”

I don’t think this matters too much for the chances of Kerchner and Laudenslager. They are represented by a Pennsylvania attorney, and nothing prevents Apuzzo from providing assistance in the background. There is also a Motion to Dismiss pending which could moot the issue.

In other case news: The Objector’s  (Kerchner/Laudenslager) motion to allow audio and video recording has been denied. The court will allow the Objector’s unspecified “expert witness” to testify via telephone (but not by Skype). The Objectors submitted an additional number of documents yesterday that I haven’t seen yet.

Note: I have given up being snotty towards Mr. Apuzzo for Lent.


Sunahara v. Fuddy

I open with the usual caveat, I am not a lawyer. Very early in this blog’s history, long before President Obama obtained under a special waiver a certified copy of his long-form birth certificate, we discussed the question of whether such a document could be obtained. I said from the beginning, based on my reading of the law, that Obama could obtain a certified copy of his original hospital-signed certificate. I said that it might not be a straightforward procedure, and it might even involve a lawsuit, but that it could be obtained.

My reading of the statutes (338-13 and 338-18) back then is the same as my reading today, and that reading informs me that Duncan Sunahara has a material interest in his deceased sister’s original birth certificate and is entitled to a certified copy of it. He’s suing to get it.

I have scanned the the State’s Motion to Dismiss and their position seems to rest on what the definition of “or” is.  When they cite 338-13, they underline the word “or” so that it appears:

     §338-13  Certified copies.  (a)  Subject to the requirements of sections 338-16, 338-17, and 338-18, the department of health shall, upon request, furnish to any applicant a certified copy of any certificate, or the contents of any certificate, or any part thereof.

     (b)  Copies of the contents of any certificate on file in the department, certified by the department shall be considered for all purposes the same as the original, subject to the requirements of sections 338-16, 338-17, and 338-18.

     (c)  Copies may be made by photography, dry copy reproduction, typing, computer printout or other process approved by the director of health.

The State contends, if I follow correctly, that they may chose what parts of the contents they disclose and that providing “any part” of their choosing satisfies the whole list of things separated by “or.” It would seem to me that the intent of the first paragraph is a grant of rights to those making requests, not a list of options the State may select from in meeting requests.

My reservation about the issuance of a computer-generated copy to fulfill all requests is that thy current computer copy issued by the State of Hawaii does not contain all of the information on the original certificate, for example, it does not contain the parents’ birthplace, hospital and attending physician.

The CRS report on statutory interpretation  provides this interesting discussion:

Similar principles govern use of the words “and” and “or.” Ordinarily, as in everyday English, use of the conjunctive “and” in a list means that all of the listed requirements must be satisfied, while use of the disjunctive “or” means that only one of the listed requirements need be satisfied. Courts do not apply these meanings “inexorably,” however; if a “strict grammatical construction” will frustrate evident legislative intent, a court may read “and” as “or,” or “or” as “and.” Moreover, statutory context can render the distinction secondary.

In my mind, the clear legislative intent is to provide all of these options to the requester, not one of them.

I do not, however, support Sunahara’s request to watch the certificate being copied. It seems to me that the statute gives the State broad leeway in the methods they use to make copies.

In any case, this is why we have courts – to decide these things.

Following is Sunahara’s motion for declaratory judgment.

SUNAHARA v HAWAII DOH, et al. (HI CIR CT) – Complaint for Declaratory Judgment


Milk: a study in fallacy

This is from Mario Apuzzo’s brief in the Kerchner nomination challenge in Pennsylvania:

…some person’s argument regarding the Minor definition of “natural-born citizen” is the equivalent to one arguing that the definition of milk which is:

an opaque white or bluish-white liquid secreted by the mammary glands of female mammals, serving for the nourishment of their young.
this liquid, as secreted by cows, goats, or certain other animals and used for food or as a source of butter, cheese, yogurt, etc.
any liquid resembling this, as the liquid within a cocoanut, the juice or sap or certain plants, or various pharmaceutical preparations” [ ].

does not provide the limits, parameters, basic qualities, essential qualities, the variables of what milk is because in the definition itself it is not stated that other liquids cannot be milk. Hence, even orange juice can be milk. So these persons are basically saying that because Minor did not say that any other person cannot be a “natural-born Citizen,” any other person can be. This example easily shows the fallacious nature of this argument.

Actually this excerpt exhibits the fallacy of “begging the question,” that is, assuming in advance what one is arguing. Here, Apuzzo assumes that Minor gives a definition “natural born citizen” which is what he is trying to show. He then gives an obvious dictionary-style definition that is totally unlike what we see in the Minor decision. Apuzzo goes on to say things like “when a court decision or a statute provides a definition, the elements of the definition given are not provided with an additional statement that they are each necessary and sufficient conditions …” Here again, Apuzzo begs the question by asserting that Minor provides a definition.

If you’ve ever looked at legislation, you will see a section at the top titled “Definitions” such as this example from the Health Insurance Portability and Accountability Act of 1996:


In contrast, nowhere in the Minor decision is there anything labeled a definition. The text relied on by Apuzzo from Minor says:

The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.

This is about as un-definition-like as I could imagine, talking about some authorities saying one thing and others saying something else, about doubts, and the non-necessity of deciding certain situations. In the Minor case, it was only necessary for the court to determine the citizenship of Virginia Minor, and that’s as far as they went. They did not define “natural born citizen”.

If Minor is not providing a definition (and I have no doubt that it is not), Apuzzo trying to use it as a definition is the fallacy of denying the antecedent. The formal fallacy is symbolized:

  • P –> Q
  • not P: therefore not Q

It’s like saying:

  • The people who own 100,000 share of Microsoft the the very rich.
  • Warren Buffett does not own 100,000 shares of Microsoft; therefore he is not very rich.

Of course, normal people already understand this and Birthers probably never will.


The occasional open thread: Leap Day edition

Did you realize that every time there’s a US presidential election, the year has an extra day? That day is today, February 29, 2012.

Place your comments not related to the open articles here. This discussion will close in two weeks.

Speaking of elections, here’s a new case for your iPhone 4. Just print it, cut out the black area and tape it on.

Obama campaign iPhone 4 case


Rules of Interpretation and Construction

I want to thank a commenter very early in this blog’s history for pointing me to the “No Points” video. I was reminded of one bit of it when reading Mario Apuzzo’s Brief in the Pennsylvania ballot challenge by Kerchner and Laudenslager. It goes:

Everyone in this room is dumber for having listened to it.

It was apparent that the Brief was not intended for the court – it was intended for the public. A good example of this is the section titled “Rules of Interpretation and Construction.” No judge needs to have interpretation and construction explained to him. Indeed there are no hard and fast “rules” of interpretation and construction1. There are general principles and maxims, but not rules (a lawyer told me that). Leo Donofrio, and now Mario Apuzzo have undertook to “reeducate” the public in their own unconventional methods of how laws are interpreted and constructed so as to make other parts of their unconventional arguments sound better.

No one with a legal education is going to buy any of this for a moment, and so I conclude that the Brief is not for the Court but is rather a publicity stunt in the guise of a lawsuit (as are many birther lawsuits).  After all, Kerchner is the same guy who takes out half-page advertisements in the Washington Times newspaper to sell his theories. This ballot challenge is just another marketing tool. Kerchner isn’t even eligible to file a real challenge in Pennsylvania according to Obama’s attorney.

Anyone who naively reads the Brief will be dumber for having listened to it.

However, no bait and switch with the article’s title this time. If you would like to learn about statutory interpretation, I can think of no better place to go than the Congressional Research Service’s report for use by the Congress that actually constructs those statutes. Here is the report: “Statutory Interpretation: General Principles and Recent Trends” (August 31, 2008) by Legislative Attorney Yule Kim of the American Law Division:

Continue Reading →


Apuzzo v. Lavelle

The battle in Pennsylvania is joined. On one corner Mario Apuzzo and Karen Kiefer for Kerchner/Laudenslager; and  in the other John P. Lavelle, Jr. for President Obama.

Briefs were flying today from both sides. (Check my Pennsylvania page for updates.)

The President’s side is giving no quarter, opposing Mario Apuzzo’s admission pro hac vice. Jablonski didn’t even challenge Orly Taitz in Georgia! This looks like a no-holds-barred battle with no empty chairs.

Update 3:

I’ve finished reading the Obama memos, and in particular the Motion to Strike and Dismiss. I must say that it looks to me like this case will be dismissed right out of the gate without any necessity to reach the question of President Obama’s actual eligibility.

The cute thing is that Lavelle argued that in Pennsylvania a candidate’s nominating petition can only be challenged by members of his own party. Kerchner is a registered Republican and Laudenslager switched from Republican to Democrat after the deadline for filing a challenge had passed. Oops!

Lavelle declares that challengers totally wrong in their claim that Obama submitted any document in Pennsylvania declaring himself eligible and so the court can as a matter of law cannot find any defect relating to a claim that is is not eligible. Lavelle further argues that since there is no valid allegation of a defect in the nominating papers, the court could only make some general ruling on the candidates eligibility which state courts are not constitutionally able to do, the sole responsibility for presidential eligibility lying with the Congress.

And finally Lavelle argues that Obama is eligible anyway and it was interesting that he cited the very three cases, Ankeny, Farrar and Tisdale, that just this morning I added to the Wikipedia article on the Natural-born-citizen clause of the U.S. Constitution. I was pleased to know that I hadn’t missed something important. I didn’t look to see of the quotations were identical, but they were independently selected.