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Birther appeal of the day

Let us not forget among the detritus1 of failed birther lawsuits, the one filed in Tennessee by John Dummett, the Liberty Legal Foundation (a group who usually works to protect the rights of children to wear Confederate Flags at school2). If not for the high bar for sanctions set by Orly Taitz and now Christopher-Earl : Strunk, we would be celebrating it as the leading example of the consequences of filing a frivolous lawsuit.

Plaintiffs appealed the decision in Liberty Legal Foundation v. National Democratic Party of the U.S.A. (sic) as to the order of the award of $10,565.23 for their filing a lawsuit that they should have know was frivolous for lack of standing (perhaps by having looked at 200 other failed lawsuits). They are not appealing the fact that they didn’t have standing to bring the lawsuit in the first place, just the cash award, which only addresses a small portion of the costs of actually defending the suit ($69,932.50).

Featured following is the defense motion to dismiss the appeal for lack of jurisdiction. I had never heard of a motion to dismiss an appeal before, but here one is and it is based on an argument that the appeal is technically defective (filed wrong) and because it was filed wrong, the Court of Appeals can’t hear it.

LLF – TN – Appeal – 2013-03-21 – Appellees Motion to Dismiss by Jack Ryan


1This is the first time I have ever used this word in a sentence.

2The local high school sports team mascot is the “Rebels.”

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31 Responses to Birther appeal of the day

  1. avatar
    john April 6, 2013 at 11:23 pm #

    If I’m not mistaken, a similar action happen with Judge Mahili case in GA. The decision was rendered by Judge Mahili but never upheld on appeal. Some how, Obama’s lawyer was able to dismiss the appeal and thus dismiss the whole case all together. High courts refused to hear anything.

  2. avatar
    Deborah April 7, 2013 at 12:06 am #

    It seems to be saying that the appellants (Liberty Legal Foundation) appealed an order for them to pay sanctions to the Nat’l Democratic Party of the USA, et al. According to the Apellees (Nat’l Dem. Party of the USA, et at), Liberty Legal Foundation is not allowed to appeal the sanction, they are only allowed to appeal the amount of the sanction…but Liberty Legal Foundation has erroneously brought the appeal as an appeal to the sanction itself.

    What I found most interesting is that the Nat’l Dem Party mentions that hundreds of cases against Obama’s eligibility have been filed and dismissed, and on that basis Liberty Legal Foundation was sanctioned. By that standard, Orly has no chance, and by that standard, sanctions are inevitable. I have noticed in a few of these cases the judges are already very aware of the birther issues, even before the cases are brought to them.

  3. avatar
    J.D. Sue April 7, 2013 at 1:50 am #

    Deborah: It seems to be saying that the appellants (Liberty Legal Foundation) appealed an order for them to pay sanctions to the Nat’l Democratic Party of the USA, et al. According to the Apellees (Nat’l Dem. Party of the USA, et at), Liberty Legal Foundation is not allowed to appeal the sanction, they are only allowed to appeal the amount of the sanction…but Liberty Legal Foundation has erroneously brought the appeal as an appeal to the sanction itself.


    Basically, it is saying that the Appellants’ brief doesn’t match their notice of appeal. Appellants filed a notice to appeal only the amount of fees, but their brief made no arguments against the amount of the fees (so the case should be dismissed, because they made no relevant arguments for the Court to consider). Instead, the Appellants’ brief only has arguments saying their conduct was not sanctionable at all (regardless of the amount), but the Court cannot consider these arguments because this issue was not raised in the notice of appeal.

  4. avatar
    The Magic M mobile April 7, 2013 at 3:08 am #

    Which again begs the question how actual lawyers all suddenly turn incompetent when faced with birtherism. As I said, it’s like they WANT to fail. Maybe because they need to be martyrs, not have their merits rejected.

  5. avatar
    Greenfinches April 7, 2013 at 5:12 am #

    J.D. Sue: Instead, the Appellants’ brief only has arguments saying their conduct was not sanctionable at all (regardless of the amount), but the Court cannot consider these arguments because this issue was not raised in the notice of appeal.

    You must admit that in their incompetence, this lot are worthy contributors to the birther oeuvre. I have to say that I expect to see more from them – alas, birthers don’t go away and the sums involved here are well within their reach.

    Let’s hope that Strunck’s judge has set a trend for realistic costs orders.

  6. avatar
    Dr. Conspiracy April 7, 2013 at 7:54 am #

    As I understand it, Plaintiffs were limited by their own notice of appeal as to what they could appeal. If they have given a different notice, they could have filed a different appeal.

    It is important to note that there is a fundamental difference in the ability to recover fees between a case where the federal government is a defendant and when the case is filed against private individuals and organizations. The former generally cannot recover legal fees. Taitz is vulnerable in her Mississippi case.

    Deborah:
    It seems to be saying that the appellants (Liberty Legal Foundation) appealed an order for them to pay sanctions to the Nat’l Democratic Party of the USA, et al. According to the Apellees (Nat’l Dem. Party of the USA, et at), Liberty Legal Foundation is not allowed to appeal the sanction, they are only allowed to appeal the amount of the sanction…but Liberty Legal Foundation has erroneously brought the appeal as an appeal to the sanction itself.

    What I found most interesting is that the Nat’l Dem Party mentions that hundreds of cases against Obama’s eligibility have been filed and dismissed, and on that basis Liberty Legal Foundation was sanctioned. By that standard, Orly has no chance, and by that standard, sanctions are inevitable. I have noticed in a few of these cases the judges are already very aware of the birther issues, even before the cases are brought to them.

  7. avatar
    Dr. Conspiracy April 7, 2013 at 8:17 am #

    Judge Malihi ruled that Obama was eligible, Orly’s witnesses were unqualified and that US Presidents don’t have to have citizen parents. The Fulton County Superior Court that heard the appeal said that the case should not have been heard in the first place. The Georgia Supreme Court dismissed the appeal (Judy, Weldon).

    john: If I’m not mistaken, a similar action happen with Judge Mahili (sic) case in GA. The decision was rendered by Judge Mahili (sic) but never upheld on appeal. Some how, Obama’s lawyer was able to dismiss the appeal and thus dismiss the whole case all together. High courts refused to hear anything.

  8. avatar
    Andrew Vrba, PmG April 7, 2013 at 8:55 am #

    john:
    If I’m not mistaken

    John, you are ALWAYS mistaken.

  9. avatar
    Reality Check April 7, 2013 at 10:35 am #

    There are some interesting legal arguments in the briefs on this appeal. The Democratic attorneys are claiming in legalese that Van Aryan f–ed up and only appealed the order determining the amount of the sanctions then failed to make any argument on why the amount was excessive and therefore the appeal should be dismissed. Of course Van disagrees. The decision will be interesting.

  10. avatar
    john April 7, 2013 at 2:02 pm #

    Judge Mahili’s decision was never upheld on appeal although the GA SOS supported it and allow Obama on the ballot. The case was dismissed ON APPEAL and the merits were never reviewed.

  11. avatar
    Joey April 7, 2013 at 2:33 pm #

    For John:
    Judge Mahili’s verdict was an Administrative Law Judge’s recommendation to the Republican Secretary of State of Georgia, Brian Kemp. Secretary of State Kemp accepted the Judge’s recommendation and placed Barack Obama’s name on the Georgia ballot.
    In addition to the dismissal of the application for a stay of the Georgia election by the Georgia Superior Court and the state’s Supreme Court, the plaintiffs in Georgia also applied to the Supreme Court of the United States for a stay through Justice Clarence Thomas, the regional Supreme Court Justice for Georgia. Justice Thomas denied the application.
    The plaintiffs then appealed the Georgia ballot challenge to the Supreme Court of the United States via a Petition for a Writ of Certiorari. The petition was denied by the Supreme Court. The plaintiffs then applied for a rehearing of their petition. The petition for rehearing was also denied.
    Mitt Romney won Georgia’s Electoral votes.

  12. avatar
    Deborah April 7, 2013 at 3:23 pm #

    In a “general” appeal (which the appellants did NOT file) you simply check a box on an appeal form that says you are appealing and list the order and date of the order you are appealing, file it with the court clerk and mail copies to parties involved. The court clerk will usually hassle you if you attempt to include reasons on the form or attach evidence. This “general” appeal brings the entire case up to the appellate court.

    In this case,

    a. the appellants seem to have filed a form other than a general appeal.
    b. they did not list the order they were appealing from.
    c. the appeal form only addresses that the amount of sanctions will be argued.
    d. then the appellants argued entirely against sanctions, not simply the amount of sanctions.

    Although in some sense these are “technicalities,” the appellees list case law and precedent where jurisdiction is denied to the appellate court when the appellant fails to list the order being appealed, or even if they list the wrong order.

  13. avatar
    J.D. Sue April 7, 2013 at 3:33 pm #

    Dr. Conspiracy: As I understand it, Plaintiffs were limited by their own notice of appeal as to what they could appeal. If they have given a different notice, they could have filed a different appeal.


    Right. As the Appellee says, “”After all, Appellants, and specifically Appellants’ attorney who is the individual ultimately responsible for paying for the sanctions at issue here, had the opportunity to file a general notice that would have allowed the entire judgment to be taken up on appeal.” But the Appellant’s attorney limited the appeal by choosing to “designate specific determinations in his notice of appeal.”

  14. avatar
    Deborah April 7, 2013 at 3:59 pm #

    I wouldn’t want to jinx the sanction by stating my own opinion of the courts. Just ‘cos I am anti-birther does not mean I agree with “consensus law” that leaves no room for indivudual and/or unique circumstances outside the norm.

    Due to the mass number of cases the birthers are bringing, any possible legitimate complaint in any related area could be subject to prejudice and predetermination, I think.

  15. avatar
    Andrew Morris April 7, 2013 at 4:02 pm #

    Dr. Conspiracy

    As I understand it, Plaintiffs were limited by their own notice of appeal as to what they could appeal. If they have given a different notice, they could have filed a different appeal.

    It is important to note that there is a fundamental difference in the ability to recover fees between a case where the federal government is a defendant and when the case is filed against private individuals and organizations. The former generally cannot recover legal fees. Taitz is vulnerable in her Mississippi case.
    ………………………………………………………………………………

    Taitz is also vulnerable in Grinols, because she’s suing State and other defendants. However, she has now promoted herslf and claims she’s a civil rights attorney. This is interesting because recently there have been other far-right wingnuts playing the civil rights card, on the argument that GOP represents minority values. And perhaps this is why she’s just posted a letter of support from the Council of Conservative Citizens, which is a KKK-like bunch of racist goons. The letter could be fake, but whether it is or not, I guess it’s no surprise that she felt it ok to post something with strongly anti-black comments.

  16. avatar
    charo April 7, 2013 at 4:08 pm #

    J.D. Sue,

    Have you read the Response here (filed April 5th)? I am not going to look at the cases to see if what is alleged is actually true, but it appears well briefed.

    http://www.scribd.com/doc/134229091/LLF-TN-Appeal-2013-04-01-LLF-Opp-to-Motion-to-Dismiss

    Also Doc, regarding footnote 2 in your post:

    In Donalsonville, a town of 3,000 people in Georgia’s southwest corner, the American Civil Liberties Union has sued the Seminole County School District on behalf of nine students who claim their right to free speech was violated when the principal ordered them to wear their T-shirts inside out, hiding the Confederate flag, or face disciplinary action.

    http://www.latimes.com/news/bv-flag010531,0,4474203.story

    I guess it depends if one is a “purist” or not in these matters. I don’t buy my kids t-shirts to make any kind of statement; they can choose to do so themselves when they are of age.

  17. avatar
    bgansel9 April 7, 2013 at 4:11 pm #

    Andrew Morris: And perhaps this is why she’s just posted a letter of support from the Council of Conservative Citizens, which is a KKK-like bunch of racist goons. The letter could be fake, but whether it is or not, I guess it’s no surprise that she felt it ok to post something with strongly anti-black comments.

    Yes, there’s a black man in the “Whitehouse” don’tcha know?

  18. avatar
    Deborah April 7, 2013 at 6:16 pm #

    Page 11/14 of the response (that charo posted) states that it is “contrary to the spirit of Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis or mere technicalities.”

    On the other hand, (though perhaps not related to this case), sometimes when a plaintiff neglects a technicality it is a reflection of a larger error- such as Orly’s incompetence at service reflecting her lack of reasoning as to why the rules of service exist in the first place- that being that SHE is not the judge.

  19. avatar
    JD Reed April 7, 2013 at 7:02 pm #

    john:
    If I’m not mistaken …

    Ypu almost always are!

  20. avatar
    Keith April 7, 2013 at 7:40 pm #

    john: The case was dismissed ON APPEAL and the merits were never reviewed.

    An appeal is not a ‘do over’. It is an objection to something specific about the conduct of the trial.

    The original hearing heard the the testimony, determined that there was no merit in any of it, and made its ruling. The ruling was appealed. During the appeal, the testimony is not done over, if it is required it is available on the record. In this case, there was after hours of testimony in the original hearing not testimony on record because the ‘expert’ witnesses weren’t.

    I repeat: appeals aren’t ‘do overs’. They may result in a ‘do over’ if something is found to have been wrong with the first go. But they are not ‘do overs’ themselves. You don’t get to try the case over and over and over in appeal after appeal after appeal.

  21. avatar
    J.D. Sue April 7, 2013 at 7:46 pm #

    charo: J.D. Sue,
    Have you read the Response here (filed April 5th)? I am not going to look at the cases to see if what is alleged is actually true, but it appears well briefed.
    http://www.scribd.com/doc/134229091/LLF-TN-Appeal-2013-04-01-LLF-Opp-to-Motion-to-Dismiss


    Thanks Charo, I hadn’t read it and am not inclined to take the time to look at the case law either at this point. It does appear well briefed and, without a chance to study it, I don’t have an opinion one way or the other.

  22. avatar
    nbc April 8, 2013 at 12:21 am #

    john:
    If I’m not mistaken, a similar action happen with Judge Mahili case in GA.The decision was rendered by Judge Mahili but never upheld on appeal.Some how, Obama’s lawyer was able to dismiss the appeal and thus dismiss the whole case all together.High courts refused to hear anything.

    The case was dismissed on appeal which means that the case remained as ruled upon by the lower court. You really do not understand what dismissal means, does it…

  23. avatar
    Paul Pieniezny April 9, 2013 at 10:43 am #

    nbc: The case was dismissed on appeal which means that the case remained as ruled upon by the lower court. You really do not understand what dismissal means, does it…

    Not exactly. In fact, what happened was that the appeal court ruled that there was never a case from the beginning. So, it vacated Judge Malihi’s complete ruling AND ruled for the defense anyway. Meaning that Orly Taitz’ schmevidence presented in Malihi’s court was vacated as well, and when she is now including in new proceedings in a new court documents that “prove” the evidence was entered in Georgia, she is in fact committing fraud on that new court. And still she is not getting sanctioned. And still the California Bar is not seeing, hearing or smelling anything.

  24. avatar
    donna April 9, 2013 at 11:06 am #

    Andrew Morris : And perhaps this is why she’s just posted a letter of support from the Council of Conservative Citizens, which is a KKK-like bunch of racist goons. The letter could be fake, but whether it is or not, I guess it’s no surprise that she felt it ok to post something with strongly anti-black comments.

    she deleted the page – the letter was supposedly signed by Dr. Sam Frances [sic] – Dr. Sam Francis died in 2005

  25. avatar
    Kiwiwriter April 9, 2013 at 1:00 pm #

    donna: Andrew Morris : And perhaps this is why she’s just posted a letter of support from the Council of Conservative Citizens, which is a KKK-like bunch of racist goons. The letter could be fake, but whether it is or not, I guess it’s no surprise that she felt it ok to post something with strongly anti-black comments.she deleted the page – the letter was supposedly signed by Dr. Sam Frances [sic] – Dr. Sam Francis died in 2005

    Orly is so stupid, she probably doesn’t know the Council of Conservative Citizens from the League of Nations. She probably just thought it was a great letter of support and went with it. If the letter was signed by a guy who’s dead, she may have been spoofed.

  26. avatar
    donna April 9, 2013 at 1:16 pm #

    Kiwiwriter

    doo doo diligence – the letter was quite supportive, spoke about a bus to the hearing, “cash” raised for tatiz and was filled with disgusting, hate-filled language

    Dr. Orly Taitz, Esq.
    29839 Santa Margarita Pkwy, Ste 100 Rancho Santa Margarita, CA 92688
    6 April, 2013
    Dear Dr. Taitz:
    The Council of Conservative Citizens and the Defend Our Freedoms Foundation evidently share the same goals.
    We at the East Oakland chapter have been following your case for several years, and we agree that we have the wrong president; he’s ineligible and should be brought to justice. Anyone with any sense can see that just by looking at this impostor. It would have been obvious to anyone who viewed the elections of 2008 and 2012, that Obama is a shill for other, more evil powers, and has been inserted in power to advance the goals of those who would institute a truly anti-American multicultural government who will work against the European heritage that we at COCC believe will tear apart this country even more than we’ve seen since the Obama “presidency” began.
    At our meeting at the East Bay Bible Church in Oakland last night, we voted to support your cause, initially, in two ways:
    1) We are working out the details of a fundraiser for DOFF that will allow our members to provide funds for your foundation that will rid our once-free nation of the scourge of the current biracial president. We hope to raise several thousands of dollars for your non-profit, that can be used to help stamp out the multiculturalism that has infected our Whitehouse. As you can understand, most of our members prefer cash transactions, so we will bring what we have to bear when we meet.
    2) We have organized a committee that will bring together members to charter a bus that will bring an estimated 16-35 people to your trial in Sacramento on April 22, 2013. The bus will carry 60 passengers; if we are able to fill it up do you believe there will be room in the court gallery for everyone? It is our belief that the more supporters show up to sit behind you during this important trial, the more knowledge we can bring in our mutual purpose of stamping out the darkness that has stained our Whitehouse.
    There are other initiatives that our members have suggested that we would like to discuss with you in private, possibly in Sacramento after the trial is over.
    Please let me know via email the exact time and location of the courtroom where the trial will take place. We will make the appropriate arrangements to get there and hopefully will have our first fundraising collection out of the way so we can donate to your cause when we meet in Sacramento.
    I look forward to assisting DOFF as we mutually work towards a purified United States of America.
    Very sincerely,
    Dr. Sam Frances
    Council of Conservative Citizens
    East Oakland Chapter

  27. avatar
    misha marinsky April 9, 2013 at 1:22 pm #

    Andrew Morris: perhaps this is why she’s just posted a letter of support from the Council of Conservative Citizens, which is a KKK-like bunch of racist goons

    The Council of Conservative Citizens is the KKK in business suits.

  28. avatar
    Dr. Conspiracy April 9, 2013 at 1:28 pm #

    Trial? Guess again.

    donna: Please let me know via email the exact time and location of the courtroom where the trial will take place.

  29. avatar
    donna April 9, 2013 at 2:16 pm #

    Dr. Conspiracy: Trial? Guess again.

    LOL what do you want from a dead person?

  30. avatar
    Crustacean April 9, 2013 at 3:53 pm #

    donna: Council of Conservative Citizens
    East Oakland Chapter

    East Oakland chapter?? If you’ve ever been to East Oakland, I doubt that “European heritage” is the first thing that came to your mind.

    misha marinsky: The Council of Conservative Citizens is the KKK in business suits

    But how could this be? Didn’t you see where they refer to the “European heritage that we at COCC believe will tear apart this country”? They sound more like Al-Qaeda to me…

  31. avatar
    Northland10 April 9, 2013 at 8:55 pm #

    misha marinsky: The Council of Conservative Citizens is the KKK in business suits.

    The uptown Klan.