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Apuzzo deathwatch (progress notes added)

Purpura

Today we remember the Purpura v. Obama ballot objection, born April 5, 2012, in New Jersey and declared terminally ill by Administrative Law Judge Jeff Masin a mere 5 days later. The suit was ill-conceived and born with fatal defects that could not be corrected.

The Purpura lawsuit family representative Mario Apuzzo has sought a second opinion in the case and will be meeting with specialist doctors (juris) Fisher, Baxter and Carchman today. We anticipate bad news and are ready to offer our sympathies to the loved ones during this trying time. In this situation the grieving process may be stymied at the stage of denial and that always makes things more difficult.


Dropping out of allegorical mode, I note that while we haven’t seen the briefs filed by attorneys for Obama and the NJ Secretary of State, they were filed and Apuzzo has filed an answer yesterday, which appears following and from which we might infer some of what the opposition briefs addressed.

 

Purpura-Moran Reply Letter Brief FILED 5-29-12

 

Progress notes:

In a decision issued today (May 31, 2011), the Appellate Division of the New Jersey Supreme Court ruled in favor of defendants Obama and the New Jersey Secretary of State, affirming the decision of Administrative Law Judge Jeff Masin. You can read the decision embedded in my article: “Purpura v. Obama Appeal hearing video 5/31/12: Updated with results!

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36 Responses to Apuzzo deathwatch (progress notes added)

  1. avatar
    JPotter May 30, 2012 at 10:43 am #

    From obscurity to obscurity, bust to busted; as it was so shall it ever be, birf without end …

  2. avatar
    donna May 30, 2012 at 10:52 am #

    In our appeal, we will be arguing that:

    1. The Administrative Law Judge (ALJ) and Secretary of State (SOS) erred in finding that Obama, because he does not have to consent to his nominating petition, does not have any legal obligation to provide any evidence to the New Jersey Secretary of State proving who he is, where he was born, and that he is constitutionally eligible to occupy the Office of President in order to be placed on the New Jersey primary election ballot.

    2. The ALJ and SOS erred in finding that a “natural born Citizen” includes any child who is born in the United States and “subject to the jurisdiction thereof,” regardless of the citizenship status of the parents.

    3. The ALJ and SOS erred in finding that Obama was born in Hawaii, for there is no evidence in the record supporting such a finding.

    4. The ALJ and SOS erred in finding that Obama was born in Hawaii and therefore as a matter of law he is an Article II “natural born Citizen.”

    http://puzo1.blogspot.com/2012/05/purpura-moran-new-jersey-obama-ballot.html

  3. avatar
    Paper May 30, 2012 at 10:53 am #

    I don’t think we should underestimate the resiliance of the birther community. I am confident they can briskly move through the stages of grief, right up to anger.

  4. avatar
    Thomas Brown May 30, 2012 at 11:00 am #

    donna:
    In our appeal, we will be arguing that:

    1. The Administrative Law Judge (ALJ) and Secretary of State (SOS) erred in finding that Obama, because he does not have to consent to his nominating petition, does not have any legal obligation to provide any evidence to the New Jersey Secretary of State proving who he is, where he was born, and that he is constitutionally eligible to occupy the Office of President in order to be placed on the New Jersey primary election ballot.

    2. The ALJ and SOS erred in finding that a “natural born Citizen” includes any child who is born in the United States and “subject to the jurisdiction thereof,” regardless of the citizenship status of the parents.

    3. The ALJ and SOS erred in finding that Obama was born in Hawaii, for there is no evidence in the record supporting such a finding.

    4. The ALJ and SOS erred in finding that Obama was born in Hawaii and therefore as a matter of law he is an Article II “natural born Citizen.”

    http://puzo1.blogspot.com/2012/05/purpura-moran-new-jersey-obama-ballot.html

    Lunacy.
    Lies.
    Loser.

  5. avatar
    RuhRoh May 30, 2012 at 11:08 am #

    While I wish that the Birthers would accept that repeated losses in numerous courts mean that their arguments are completely lacking in substance, I know that will never happen.

    According to Birthers, they only lose because yet another judge, or indeed, entire court system, has been corrupted and added to the ever-growing list of Obama’s co-conspirators.

  6. avatar
    Dr. Conspiracy May 30, 2012 at 11:21 am #

    What I find interesting in Apuzzo’s letter is the legal question, “who decides?” A few judges have commented that the Congress decides, but I don’t see much in the way of precedent. In Apuzzo’s favor, some legal scholars (notably Professor Charles Gordon) have suggested that a case might exist where the courts could decide on the definition of eligibility. Is eligibility justiciable? The trend seems to be towards “no” but it would be interesting to see what the appellate judges in New Jersey have to say on the question.

  7. avatar
    donna May 30, 2012 at 11:40 am #

    congress “decided” on mccain –

    http://www.opencongress.org/bill/110-sr511/text

    The bill was written and submitted by Democratic Senator Claire McCaskill (D-MO), and co sponsored by both Democratic presidential candidates, Sen. Hillary Clinton (D-NY), and Sen. Barack Obama (D-IL).

    the measure only garnered one Republican co-sponsor, McCain supporter Sen. Tom Coburn (R-OK).

    http://www.politicsdaily.com/2008/05/01/clinton-obama-sponsor-mccain-citizenship-bill/

  8. avatar
    Lupin May 30, 2012 at 11:47 am #

    Where you guys see another defeat (& rightly so), what I hear is another k-ching k-ching falling into Meretricious Mario’s pockets.

  9. avatar
    DP May 30, 2012 at 12:37 pm #

    Paper:
    I don’t think we should underestimate the resiliance of the birther community.I am confident they can briskly move through the stages of grief, right up to anger.

    Actually, I don’t think they do grief. It’s just anger, anger, more anger, anger, more anger, etc. Call it the one stage of shock that someone let a black man into the White House.

  10. avatar
    JPotter May 30, 2012 at 12:48 pm #

    Lupin: Where you guys see another defeat (& rightly so), what I hear is another k-ching k-ching falling into Meretricious Mario’s pockets.

    Someone pays him?

    If all the birfs in birftown just birf hard enough, and loooooong enough ….


    Fah who foraze! Dah who doraze!
    Dear sweet Mario, please come this way!
    Fah who foraze! Dah who doraze!
    Welcome Mario, to Birfmas Day …

  11. avatar
    Paper May 30, 2012 at 1:26 pm #

    I can see a potential constitutional crisis *if* Congress certified someone who was clearly and obviously not eligible, say a twenty-one year old. Or someone born in a foreign country without any connection at all to the US, such as Schwarzenegger. In such instances, I can imagine the Supreme Court getting involved one way or another (though such an obvious #fail is not going to happen).

    But in an area somewhat gray, such as a citizen born of citizen parents in Australia? I would think a judicious court would leave that to Congress, but someone would be bound to sue.

    Whatever the Supreme Court did in such a scenario would be precedent setting in terms of judicial involvement in eligibility.

    Dr. Conspiracy:
    What I find interesting in Apuzzo’s letter is the legal question, “who decides?” A few judges have commented that the Congress decides, but I don’t see much in the way of precedent. In Apuzzo’s favor, some legal scholars (notably Professor Charles Gordon) have suggested that a case might exist where the courts could decide on the definition of eligibility. Is eligibility justiciable? The trend seems to be towards “no” but it would be interesting to see what the appellate judges in New Jersey have to say on the question.

  12. avatar
    JPotter May 30, 2012 at 1:36 pm #

    P.S. … Death Watch Beetle

    (not the most exciting clip)

  13. avatar
    Dr. Conspiracy May 30, 2012 at 1:53 pm #

    One of the judges, I forget which, said that if a lawsuit could ever be brought, it would only be timely after Congress certified the election. My sense of the matter is that the Supreme Court would consider it a political question and not get involved. The jurisdictional aspect shouldn’t change depending on how obviously the candidate wasn’t eligible.

    The problem with a a post-certification lawsuit (or any of them for that matter) is the question of standing. The second-place losing candidate/party would have standing and I suppose the Attorney General would.

    Paper: Whatever the Supreme Court did in such a scenario would be precedent setting in terms of judicial involvement in eligibility.

  14. avatar
    Dr. Conspiracy May 30, 2012 at 1:56 pm #

    A good metaphor for the futility of birther lawsuits.

    JPotter: (not the most exciting clip)

  15. avatar
    JPotter May 30, 2012 at 2:14 pm #

    Dr. Conspiracy: A good metaphor for the futility of birther lawsuits.

    Good, but not the best, as the beetles do manage to destroy the wood!

    What I had in mind was the repetitive tapping …. marking time …. in the silence … over a deathbed … or the chambers in which birther litigation is heard (and invariably strangled).

  16. avatar
    Paper May 30, 2012 at 3:16 pm #

    I pretty much agree, though I’m just thinking out loud anyway.

    I suppose any crisis would look something like Bush v Gore 2000. It would take a variety of parties willing to push their authority to the limit and attempt to intervene.

    I think if it were an obvious breach of constitutionally stated requirements, there is the possibility that a certain configuration of Supreme Court justices might be tempted to step in, jurisdiction aside, and possibly hold something like: Congress has constitutional authority to implement the Constitution’s requirements (which includes its own deliberations over whether or not a particular instance meets those requirements), but Congress does not have the authority to breach the Constitution, and certifying a twenty-one year old is clearly such a breach.

    The problem with this thought experiment is the obvious breach is not going to happen. The obviousness of the scenario, though, just highlights the possible thought process of an interventionist court’s rationale in a more nuanced scenario where a party has standing and is willing to push it. I think a judicious court would pass it back to Congress, but a more interventionist court might proceed to weigh in (to the sound of protest perhaps, akin again to Bush v Gore).

    Dr. Conspiracy:

    The problem with a a post-certification lawsuit (or any of them for that matter) is the question of standing. The second-place losing candidate/partywould have standing and I suppose the Attorney General would.

  17. avatar
    dch May 30, 2012 at 3:33 pm #

    “In Apuzzo’s favor, some legal scholars (notably Professor Charles Gordon) have suggested that a case might exist where the courts could decide on the definition of eligibility. Is eligibility justiciable? The trend seems to be towards “no” but it would be interesting to see what the appellate judges in New Jersey have to say on the question”

    The “trend” is 100% in over 100 individual cases – there is zero merit and no need to ask yet another court the obvious. Apuzzo is the last guy to be asking – he has failed with the same basic set of claims in previous cases – and all of his dismissals have been upheld.
    The idiot has had his bites at the apple. The taxpayers are paying for this.

  18. avatar
    RuhRoh May 30, 2012 at 3:49 pm #

    Kerchner’s giving a radio interview right now, so I guess we can’t expect him to write an article on Apuzzo’s hearing for ORYR any time soon.

  19. avatar
    linda May 30, 2012 at 4:06 pm #

    Does anyone know if there is any coverage of Apuzzo’s oral arguments, live or someone posting updates? I have not been able to find anything.

    Thanks.

  20. avatar
    RuhRoh May 30, 2012 at 4:11 pm #

    linda: Does anyone know if there is any coverage of Apuzzo’s oral arguments, live or someone posting updates? I have not been able to find anything.Thanks.

    I don’t think there’s anyone from FB, and I didn’t go though I had considered it. Just didn’t work out to take a half day on an already shortened week.

    There was a guy on Apuzzo’s blog who seemed to have been considering attending but ultimately decided against it.

    No one’s mentioned a videographer.

    As the NJ primary is June 5, the decision will have to be filed very quickly.

  21. avatar
    Keith May 30, 2012 at 6:11 pm #

    RuhRoh:
    Kerchner’s giving a radio interview right now, so I guess we can’t expect him to write an article on Apuzzo’s hearing for ORYR any time soon.

    Perhaps it is already written?

  22. avatar
    Dr. Conspiracy May 30, 2012 at 6:55 pm #

    I got around to reading Daniel Tokaji’s article that Apuzzo cites in his letter (above). Tokaji suggests that the best solution to adjudicating a candidate’s eligibility is in state court because he says that the Congressional review route has a questionable constitutional basis. Charles Gordon in his paper in the wake of George Romney’s brief candidacy also pointed to the state court avenue.

    Generally the problem so far has been one of standing. Tokaji and Gordon envision a suit filed by an opposing candidate, who has standing. In the Purpura case, Apuzzo argues that standing exists because of the particulars of New Jersey law, and the decision against him was based on that law not conveying standing. I’m not qualified to say what the New Jersey law, is except to cite Judge Masin. But that’s what the appeals process is for. The problem for Apuzzo is that even if he gets past standing, Obama is still eligible and should rightly be on the ballot. He ultimately loses. Purpura is doomed no matter how the hearing goes today.

  23. avatar
    realist May 30, 2012 at 7:07 pm #

    Standing is not and was not an issue in the NJ challenge by Purpura and Moran.

    From Judge Masin’s Decision…

    “The petitioners each testified as to the reason for their having filed an objection
    to Mr. Obama’s nominating petition. In essence, they are concerned that a person
    whom they believe to be ineligible to be President would be elected to the position and
    wield the enormous power, influence and authority of the Presidency, with some threat
    to their security and to the democratic institutions of this country. Their standing to file
    the objection was not challenged.”

    And not challenging their standing then, they can’t bring it up on appeal.

  24. avatar
    Tarrant May 30, 2012 at 7:14 pm #

    It would seem to me that Congress can investigate eligibility at any time if it so desires prior to the certification of the electoral vote – now I think they would be ridiculous to do so, but they could.

    In addition, given they have the power of impeachment, if they really, honestly, and truly believed a President had “slipped through the cracks”, I have no doubt that such a President would be pressured to resign by all parties and, should they refuse, be impeached in short order. While the Constitution says they should be impeached for “high crimes and misdemeanors”, I don’t think any court would stop them regardless of reason.

    These are why I really don’t see eligibility as a big issue – I really do think that neither party is stupid enough to put forth a truly ineligible candidate that one, likely wouldn’t win, and two, would likely not be certified by Congress.

  25. avatar
    Scientist May 30, 2012 at 8:05 pm #

    realist: “The petitioners each testified as to the reason for their having filed an objection
    to Mr. Obama’s nominating petition. In essence, they are concerned that a person
    whom they believe to be ineligible to be President would be elected to the position and
    wield the enormous power, influence and authority of the Presidency, with some threat
    to their security and to the democratic institutions of this country

    I’m sorry but that is total b.s. There is NO national security threat simply in a naturalized citizen becoming President. They might be good or bad at the job, but that would have nothing to do with where they were born. Is someone seriously going to argue that had Madeleine Albright been President instead of Clinton that she would have been dangerous? That she would have turned the US over to the Czech Republic, which she left as a child fleeing for freedom (as though a President could do that even if they wanted to)? The Chairman of the Joint Chiefs was a naturalized citizen and I bet he could do more to screw up military operations than any President.

    As far as democratic instiitutions, let’s run down the list of democratic countries where there are no dictinctions between natural born and naturalized citizens-Australia, Canada, France, Germany, Japan, the UK, etc.. Have their democratic institutions been threatened by the possibility that a non-natural born could be President or Prime Miniister? Ridiculous!

    I understand that not fighting over standing might be a reasonable legal strategy, but such foolish rhetoric should not be allowed to go unchallenged.

  26. avatar
    James M May 31, 2012 at 12:08 am #

    Dr. Conspiracy:
    One of the judges, I forget which, said that if a lawsuit could ever be brought, it would only be timely after Congress certified the election. My sense of the matter is that the Supreme Court would consider it a political question and not get involved. The jurisdictional aspect shouldn’t change depending on how obviously the candidate wasn’t eligible.

    The problem with a a post-certification lawsuit (or any of them for that matter) is the question of standing. The second-place losing candidate/partywould have standing and I suppose the Attorney General would.

    Could such a lawsuit be brought *by* Congress or a committee thereof?

  27. avatar
    Thinker May 31, 2012 at 1:44 am #

    There is a video of the hearing up on youtube.
    http://www.youtube.com/watch?v=_rsbd4HVre8

  28. avatar
    Lupin May 31, 2012 at 2:34 am #

    Scientist: I understand that not fighting over standing might be a reasonable legal strategy, but such foolish rhetoric should not be allowed to go unchallenged.

    You are totally right — and again we are confronted by the fact that none of this ever mattered until a n*** was elected to the WHITE house.

    And a venal ambulance-chasing lawyer tired of chasing ambulances saw an opportunity to get a cushy monthly retainer from some loathsome people instead of having to do real legal work.

  29. avatar
    Wilson May 31, 2012 at 2:39 am #

    What I can’t understand is Ms Hill was there at the hearing. I thought she was instantly fired for admitting in Court that the Birth Certificate was a forgery.

    That is what the Birther sites were reporting. They said she was instantly fired for her betrayal.

    We all know that Birthers would never make something up like that they are always honest in their reporting. Must be her twin sister they might want to check her Birth Certificate too.

  30. avatar
    Keith May 31, 2012 at 3:28 am #

    At about 23:30 it is said that the ‘vetting’ should apply to everyone regardless of color, etc. I this means regardless of party as well.

    Why is the talk about Obama all the time? Why aren’t they discussing Romney and Paul and whoever is on the Republican primary ballot too?

    Mario? Can you answer that please? Why does your suit only name Obama? Why isn’t Romney’s lawyer in that room?

  31. avatar
    Dr. Conspiracy May 31, 2012 at 3:58 am #

    I understand that. Standing is usually the issue and always the issue in federal court. The New Jersey statute gives the challengers standing, but not grounds. So they are like standing on air.

    realist: Standing is not and was not an issue in the NJ challenge by Purpura and Moran.

  32. avatar
    RuhRoh May 31, 2012 at 7:38 am #

    Wilson: What I can’t understand is Ms Hill was there at the hearing. I thought she was instantly fired for admitting in Court that the Birth Certificate was a forgery.That is what the Birther sites were reporting. They said she was instantly fired for her betrayal. We all know that Birthers would never make something up like that they are always honest in their reporting. Must be her twin sister they might want to check her Birth Certificate too.

    I hope that after the hearing, Mr. Genova explained to her why one does not re-style her hair during a court proceeding. I realize she is young, but that should have been obvious.

  33. avatar
    bovril May 31, 2012 at 8:21 am #

    DoG Mario reallllllly screwed around on this, truly Orly-esque hopping from irrelevant point to invalid law to outright lies.

    I loved the dodging where, when asked by the court if their had been other state level cases ruling on this matter, mumbles about Georigia et-al but neglects to mention they cases were all thrown out.

    Oh dear, what a shame, Birfoon fail……….again

  34. avatar
    The Magic M May 31, 2012 at 9:24 am #

    Keith: Why aren’t they discussing Romney and Paul

    The funny thing is that whenever they are, most birthers immediately switch to “now liberals (!) are claiming Romney/Rubio isn’t NBC”. The amount of denial is amazing.

    I watched “Religulous” last night, good movie, but birthers make those people appear totally sane and logical.

    Wilson: Must be her twin sister they might want to check her Birth Certificate too.

    Shapeshifters. Leviathans. Let the crazy come out in full. 😉

    James M: Could such a lawsuit be brought *by* Congress

    How could Congress challenge its own (!) certification of the votes? Venire contra factum proprium?

    Scientist: The Chairman of the Joint Chiefs was a naturalized citizen and I bet he could do more to screw up military operations than any President.

    Thanks, excellent point. I’ve added that to my anti-birther arsenal. 🙂

    Dr. Conspiracy: Tokaji suggests that the best solution to adjudicating a candidate’s eligibility is in state court

    But wouldn’t that lead to the absurd situation that, at least in theory, all the “red” states could declare Obama ineligible and Romney eligible and all the “blue” states could do the opposite?
    (I agree this is probably already possible via the “SOS makes decision, state court upholds it” route.)
    Wouldn’t such a decision be better reserved to SCOTUS?

  35. avatar
    nbc May 31, 2012 at 6:04 pm #

    Mario is hiding out in other threads… I wonder why 😉

  36. avatar
    nbc May 31, 2012 at 6:09 pm #

    Just so you realize what a benchslap this actually is, R. 2:11-3(e)(1)(E) states:

    (e) Affirmance Without Opinion:

    (1) Civil Appeals. When in a civil appeal the Appellate Division determines that any one or more of the following circumstances exists and is dispositive of a matter submitted to the court for decision:

    [. . .]

    (E) that some or all of the arguments made are without sufficient merit to warrant discussion in a written opinion;

    Ouch