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Archive | April, 2012

Mississippi Answers: Take 2

Seal of the Mississippi Secretary of StateOne day after removing the case of Taitz v. Democrat Party of Mississippi to federal court, the attorney for the Mississippi Secretary of State filed a 17-page answer to Taitz’s Amended Complaint.

The Answer is wholly uninteresting in its boilerplate point-by-point denial of the complaint. Nine affirmative defenses are listed. The Answer concludes:

…Mississippi Secretary of State Delbert Hosemann respectfully requests that his foregoing Answer and Defenses to Plaintiffs’ First Amended Complaint be received and hereby moves the Court to dismiss plaintiffs’ claims and assess all costs of this action to plaintiffs.

Here is the actual text of the answer:

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“Thanks for all the help”

I’ve been engaged in an email conversation with Jerry Collette about his Obama eligibility lawsuit in Florida. Today he sent me the “Amended Complaint” that he intends to file in Collette v. Obama and said, “thanks for all the help.”

That comment triggers mixed feelings. It is my firm belief that this lawsuit will be dismissed and that nothing Mr. Collette is able to do or that I could help him do could change that. I don’t believe that anything I did got him closer to his goal of adjudicating Barack Obama’s eligibility. It’s not a matter of degree: either the case is dismissed or it isn’t.

What I did do was to criticize things I found, as you may have seen in my article, MTD filed in Collette v. Obama. Mr. Collette changed some things as a result of my criticism and I guess the Complaint is less flawed than it was before.  When we started he had three causes of action. Now, it’s down to two. If I could convince him to reduce it to zero, then I think the complaint would be perfect 😉

Problems with service, venue and joining parties that I think still exist in the Complaint could be fixed but there are other flaws that I don’t think can be fixed, and the foremost of these is a lack of standing. I got my legal education on standing from reading the scholarly opinion of Judge Surrick in the Berg v. Obama et al. case back in October of 2008. Surrick cautioned:

Standing can be a difficult concept for lawyers and non-lawyers alike.

Mr. Collette believes that some argument he has, but hasn’t shared with me, lets him get around the problem that his grievance is diffuse, no different from any other voter anywhere. I don’t think he understand the concept of standing.

The second uncorrectable flaw is the legal theory that based solely on the US Constitution, “Defendants owed a duty to plaintiff to ascertain that defendant Obama meets the Eligibility Requirements.” The Constitution doesn’t even envision the existence of political parties and I find it hard to imagine that in any construction that it could be construed to place a duty on a party. How ever the framers of the Constitution intended that only eligible Presidents serve, it wasn’t through political parties. I should also point out that even if the Executive Committee of the Democratic Party of Florida did nothing, Obama would still have been elected in 2008 without Florida’s 27 electoral votes.

I am not opposed in principle to some sort of formal determination of the authenticity of any President Obama’s birth certificate, nor am I opposed to the Supreme Court deciding what natural born citizen means in a more explicit way. What I am opposed to is the courts being peppered with lawsuits that are losers from the get go. Already 5 judges, federal and state, have ruled that Obama meets the definition of natural born citizen and Mr. Collette brushes aside all of the over one hundred dismissals of similar lawsuits, believing that all he has to do is find the right judge and he will prevail. Albert Einstein has been quoted as defining insanity as doing the same thing over and over and expecting different results.

Note: Barack Obama’s attorney, Richard B. Rosenthal of Miami, has filed a notice of appearance in the case.

Removing Orly Taitz

imageOrly Taitz in her “Sisyphean quest to prove that President Barack Obama is using a fake Social Security number and a forged birth certificate1” never disappoints when I’m looking for something to write about.

This morning I see that Orly is very upset [link to Taitz web site] over developments in Mississippi, specifically what she calls an “unlawful attempt to remove the case from the Suprem (sic) Court of the State of MS.”

In a Notice of Removal, the Attorney General of Mississippi wrote:

Pursuant to 28 U.S.C. §§ 1331, 1441 and 1446, and without waiving any of his affirmative defenses, Defendant Mississippi Secretary of State Delbert Hosemann gives notice of removal of the First Amended Complaint filed by Plaintiffs to the United States District Court for the Southern District of Mississippi, Jackson Division.

Taitz responded in a letter to the court saying:

In his notice of removal Defendant did not cite any authority or law that would allow it to simply file in the Federal Court a case, which is currently being considered by the Supreme Court of the State. He did not provide this authority, as it simply does not exist.

Now I have never personally removed a case to federal court. I had a mole removed once, but I’m sure that’s different. At least formally it would appear that the Secretary of State is attempting to cite authority in the first words of the notice: “Pursuant to 28 U.S.C. §§ 1331, 1441 and 1446….” 28 U.S.C. § 1331 says that district courts have original jurisdiction over questions of federal law (note that Orly’s amended complaint invokes RICO, a federal law) and 28 U.S.C. § 1441 says:

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. “

According to the Notice, all the properly served defendants agree with the removal; the Executive Committee of the Democratic Party of Mississippi has already filed its notice of concurrence with the removal. Taitz argues that her RICO action does not apply to the MS Secretary of State, so he cannot remove the case to federal court; she ignores the fact that the other defendants concur in the removal. Defendants Fuddy, Onaka, Pelosi and Astrue do not appear to have been properly served yet.

Taitz claims:

[Plaintiff’s] engaged in manipulations to find a friendly court to cover up this crime and act against the interest of the people of the state of Mississippi.

Ignoring the fact that a week ago Taitz demanded removal of the Mississippi state judge for being biased against her.

In a footnote, the Mississippi Attorney General ponders a question that has bothered me too. He wrote:

This action was originally filed by Taitz, who claims to be licensed to practice law in California and has appeared pro se. Taitz herself has not been admitted pro hac vice in Mississippi in this action and no local counsel has appeared on her behalf. No attorney of record has appeared in this action on behalf of Plaintiffs Fedorka, Roth, Lax, or MacLeran. It is not certain whether Plaintiff Taitz purports to appear as attorney on their behalf, or whether they intend to appear pro se. …

It looks like we have a new case number, 3:12-cv-00280.


1Quotation from the Honorable Royce C. Lamberth.

“Update” on Farah v. Esquire Magazine

It’s not much of an update. I checked around yesterday to see if anything had happened in the defamation lawsuit filed by Joseph Farah of WorldNetDaily against Esquire magazine, who had published a spoof article saying that Jerome Corsi’s book, Where’s the Birth Certificate?, was being recalled and pulped.

I speculated whether the District of Columbia’s anti-SLAPP legislation would apply in this suit in my article “The Empire SLAPPs Back.” WorldNetDaily reports that a decision in the DC District Court case of 3M Company v. Boulter concluded that the DC Anti-SLAPP Act of 2010 does not apply in federal cases. WND wrote (clarification added):

A federal court’s recent ruling that the District of Columbia’s anti-defamation statute does not apply in federal cases [sitting in diversity] could help move forward a federal lawsuit brought by WND against Esquire magazine….

Oh by the way, Farah’s lawyer is none other than Larry Klayman.

Update:

Klayman sent the DC Circuit Court notice of the 3M case on February 20. This is what he said:

This is to advise this Court that on February 2, 2012, this Court ruled in 3M Corporation v. Boulter, No. 11-cv-1527 (RLW) (D.D.C.) (Exhibit 1) that the D.C. Anti-SLAPP Act does not apply in this Court, and, as a result, denying the Special Motion to Dismiss under the Anti-SLAPP Act filed by the defendants in that case. It is now the law of this Court that the Anti-SLAPP Act is not applicable. Thus, the Court should respectfully summarily deny Defendant’s special motion to dismiss, which was filed on August 26, 2011, so that discovery may proceed.

Hearst Publishing on February 24 sent the court its own supplemental authority memorandum and commented:

This [Plaintiff’s] conclusion [that SLAPP is inapplicable] is deeply flawed for several reasons, not least that Judge Leon’s opinion [in DC] (and three federal circuits) reached precisely the opposite conclusion.

Judge Leon in Sherrod v. Breitbart had ruled that the DC Anti-SLAPP act was substantive which would lead to the conclusion that the Erie doctrine applies and therefore Anti-SLAPP motions are allowed even though Judge Leon didn’t allow SLAPP in Sherrod for other reasons.

On April 16, plaintiffs moved to have the order staying discovery vacated (removed).

MTD filed in Collette v. Obama

The Florida Democratic Party has filed a Motion to Dismiss the case of Collette v. Obama. This lawsuit is the first exercise of Collette’s “Do it Yourself Ballot Challenge Kit.”

I discussed this case in my two articles:

Jerry Collette was kind enough to send a link to a copy of the Motion to Dismiss, embedded below. He, not being an attorney, seems to have some basic problems getting started with the suit, issues with service and venue.

 

Collette has a Draft Amended Complaint on the web, but it doesn’t appear to answer the technical issues raised in the Motion to Dismiss. I think this case will be over very quickly.

Update:

I sent Jerry this critique of the Draft Amended Complaint:

You say (4) "Plaintiff does not know the true names and capacities of the defendants sued as DOES 1 through 1000, inclusive, and will amend this complaint to allege their true names and capacities when ascertained." This is your amended complaint. You don’t get another shot. Unless you name some names, and serve those people, your case will be dismissed for lack of service.

You say (7) "Plaintiff has standing under Fla. Const. art. I, § 21 (2011)." However, based on the Florida cases I’ve read, you are exactly the kind of person who does not have standing. Your alleged harm (to the extent that you even allege harm) is generalized and not particular.

You say (8) "Causes of action alleged in this complaint accrued in, among other places, Pasco County. Accordingly, under Fla. Stat. § 47.011 (2011), Pasco County is a proper venue for this case." The new section of law that you cite still requires a defendant or a cause of action in Pasco County and I don’t see this in the complaint. 

You say (10) "As set forth below, an actual, present, and justiciable controversy exists between the parties in that…" However, what you describe following is not an actual controversy, but a difference of opinion. An actual controversy is not a disagreement, but something in which one party is damaged by another. The statement of the controversy is exactly the kind of disagreement that is not justiciable. The way this paragraph is written, you are essentially admitting that your complaint is not justiciable.

Have you served Barack Obama? If not, the case will be dismissed as regards to him. (Colette informs me that he served Ashley Walker, FL Director of Obama for America.)

You say (18) "Neither the U.S. Constitution, nor any federal statute enacted thereunder, provide for a procedure to assure that Presidents of the United States and candidates for said office meet the Eligibility Requirements." See my article: How we insure our Presidents are eligible

You say (19) "Therefore, according to the Tenth Amendment of the U.S. Constitution, the states and the people retain the right to make such assurances." However, the Constitution gives the Congress the duty to deal with a President-elect who does not qualify. Therefore, the people do not retain this right except as to their choice in voting.

You say (21) "Nonetheless, nothing prevents this court from adjudicating the issues presented and granting the relief requested in this case." This is a conclusion of law, and an unsupported one. It will be ignored when considering the MTD.

You say (37) "Plaintiff asserts that, even if defendant Obama is a native born citizen, he does not meet the Eligibility Requirement of a natural born citizen due to his being born of foreign paternity." This is a question of law, and so far 5 courts considering Obama challenges have rejected this assertion.

Points 38-58 are irrelevant to the case and do not belong in it.

You say (54) "This is an action for declaratory judgment, injunctive relief, and money damages." How can you claim money damages if you don’t allege particular and individual damage? This goes to the lack of standing because your alleged injury is diffuse.

You say (55) "The Eligibility Requirements, by implication, give plaintiff a constitutional right to not be governed by officials who fail to meet them." However, you are not alleging that the plaintiffs are barring you from having an eligible President. You are alleging that the plaintiffs are allowing an ineligible candidate to appear on the ballot. The Constitution (Amendment XX) clearly assumes that the voters can vote for an unqualified candidate. The Constitution itself makes it clear that you have no right to be protected from an ineligible candidate on the ballot since an unqualified candidate can be elected. If you believe that an ineligible candidate has been elected, then the proper venue for your complaint would be with Congress.

You say (64) "Defendants owed a duty to plaintiff to ascertain that defendant Obama meets the Eligibility Requirements." However, you cite no statute that places an obligation on any defendant you name to ascertain eligibility. Insofar as you rely solely on the Constitution, that argument fails because the Constitution does not require candidates for President to be eligible, and in fact it foresees the case when one is not eligible. Where there is no duty, there is no negligence.

It appears in general that your lawsuit is an attempt to win an argument about whether Obama is eligible or not through a fabricated controversy, non-existent duties, and generalized, non-specific damages. It will never fly.