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Archive | August, 2014

As the tort turns (formerly “Raspberry tort”)

Raspberry Torte

Attorneys and other legal-savvy individuals may have cringed at my recent article titled: “Taitz tries tort tomorrow; Judge jabs Johnson” because what Orly Taitz filed was not a tort claim. I don’t know exactly what to call it, but Taitz was not suing for damages as a result of her getting sick, allegedly as a resulting of treating undocumented immigrant children. The ever-helpful Judge Andrew S. Hanen, as I heard the report from Tomtech, told Taitz that the only way she could gain standing was a a victim in a tort claim. The Federal Tort Claims Act gives an injured party the right to sue the government and includes a waiver of sovereign immunity. One of the problems Taitz will have is that there is an exception in the FTCA that immunizes the United States for acts or omissions of its employees that involve policy decisions (which would seem at the heart of the matter here).

Plus, Taitz is going to have to establish standing, and to do that she will have to show:

  1. an injury in fact (her getting sick should count)
  2. a link between defendant’s conduct and her injury
  3. that the Court can redress her complaint

The first point is fairly easy to show, but how is it possible for Taitz to show why she got sick. People get sick all the time, people who have had no contact with undocumented immigrant children. Doctors treat sick people all the time, and healthcare practitioners generally take reasonable precautions against infection, such as the use of masks, gloves and hand washing. The final point is that it would be purely speculative to assert that Orly would get sick again unless immigration policy changed, so I do not see how the Court could grant the extreme relief Orly Taitz demanded (non transportation of children and quarantine) to redress the damage of her getting sick. The Court cannot provide relief contrary to the law, and this writer thinks that what the government is doing in the way of releasing the children is what the law demands.

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Unfunded mandate

I think most Americans would agree that US Immigration Policy needs change and the law needs reforming. In the current state of gridlock in Congress, that is unlikely to happen, and the resulting fallout is in the news daily.

We see it here in the case of Taitz v. Johnson et al., where Orly Taitz has sued to stop the transportation and release of undocumented immigrant children pending court hearings on their eligibility to remain in the US as refugees. The problem, says a government witness in the Taitz hearing yesterday, is that the US Border Patrol has no jurisdiction outside of the United States, and cannot therefore stop undocumented immigrants from crossing the border and can only arrest them once they cross. A statute passed in the last days of the Bush Administration, the William Wilberforce Child Trafficking Protection Reauthorization Act of 2008, gives unaccompanied minor immigrants the right to a hearing, but the immigration courts are woefully underfunded, resulting in long delays. The legislation requires the government to place these children in the least restrictive setting, which in practice is release to a relative, or foster care.

Judge Andrew S. Hanen, judge of the Brownsville Division of the US District Court for the Southeastern District of Texas, doesn’t seem to like the transportation and and release of these children who are less likely than not to appear at their court hearing, and less likely than not to be allowed ultimately to stay in the US as refugees. Observer Tomtech, who was at yesterday’s hearing in the Taitz case, said that Judge Hanen appeared to be looking for a way to intervene, but concluded that nothing was likely to happen with Orly Taitz as attorney under the complaint she filed and therefore Judge Hanen denied Taitz’s request for a temporary restraining order and her admission to the Court Pro Hac Vice, removing the possibility for Orly to attempt to turn her case into a class action.

The 1:30 PM hearing lasted until almost 6 o’clock. A second hearing was scheduled for October 29th to rule on an injunction.  Judge Hanen has allowed Taitz to file an amended complaint by September 12, followed by the taking of depositions with the Court’s permission.

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Minute order on hearing:

Minute Entry for proceedings held before Judge Andrew S. Hanen. MOTION HEARING held on 8/27/2014. Appearances: O.Taitz, Atty/Plaintiff; D.Hu, AUSA; C.Kisor, AUSA;(Court Reporter: B.Barnard)(01:31-03:44/ 03:55-05:49). All parties present and ready to proceed. Discussion held as to pending motions. Oral argument held. Govts witness K. Oaks sworn in/ testified/ cross. Govts Exhibits #2,#3,#4 admitted. Defts Exhibit #1 admitted. Court Break. Court Resumes. All parties present. Govts Witness T.Brooks sworn in/ testified/ cross. Govts Witness A.Fierro sworn in/ testified/ cross. Govt concludes its presentation. O.Taitz addressed the Court. Court addressed the parties. Court DENIES the termporary restraining order. Plaintiff has until 09/12/14 to file amended complaint. Defendants have until 10/03/14 to respond either by answer or by motion to dismiss. Plaintiff may reply by 11/17/14. Injunction hearing will be held on 10/29/14 at 10:00 am. Initial Conference set for 10/28/14 is cancelled. Depositions to be taken after amended complaint and with Courts permission. Court adjourned., filed.(csustaeta, 1)


Chinese spy in Arpaio’s office?

Pro Publica published a lengthy investigative report yesterday that raises serious questions about how a Chinese national got access to Arizona’s Terror Center and 5 million Arizona drivers records and possibly lists of law enforcement, intelligence analysts and investigators. Why did Arpaio’s second in command, David Hendershott, travel to China with the county’s facial recognition software vendor? The Pro Publica report states that Hendershott gave orders, contrary to law, to cover it all up. It’s a very troubling story.

Here’s a small taste:

The chance that Fan made off with a raft of sensitive material was made possible by a set of cozy relationships – among a tainted sheriff’s official, a dubious technology startup company and a woman who U.S. government officials think is a Chinese spy.

Read the details and let us know what you think.

By the way, have you heard all the news coverage and discussion of military-grade weapons given by the Pentagon to local police? Joe Arpaio’s department got some, and some went missing. The MSCO has been suspended from the program. Watch this at The Arizona Republic.


Did Taitz do a “no no”?

Here’s the documentation:

  1. Orly Taitz filed an August 25th motion in the Taitz v. Johnson et al. case to have 4 subpoenas served. In that motion, she wrote: “Four border patrol officers would like to testify at the August 27, 2014 hearing in this case.” She further wrote: “All of the above is true and correct to the best of my knowledge and informed consent (sic).”
  2. Judge Hanen granted the motion, noting: “It is represented to the Court that none of the individuals for whom Plaintiff is seeking subpoenas is objecting to the limitation found in Federal Rule of Civil Procedure 45(c)(1) (providing that a subpoena may command a non-party to attend a hearing only within 100 miles of where the person resides….).”
  3. One of the 4 named officers, Ronald Zermeno, begs to differ in an affidavit filed in Court today: “Prior to receiving this e-mail [from a Border Patrol union representative on August 25th with a copy of the subpoena attached] I had no interaction with Orly Taitz, whom I understand to be the plaintiff in the present case.” … “I live in Lake Elsinore, California which is more than 100 miles away…” “I never waived the application of Rule 45(c)(1), particularly since I have had no discussions or interactions with Dr. Taitz.” “It is my personal wish not to testify at the hearing….”

That seems to be pretty serious to me. Taitz had previously applied to be admitted Pro Hac Vice in the case, but this was denied at today’s hearing.


Has Orly been shopping?

OC Weekly has a new article suggesting Orly Taitz did just that, titled “Did Orly Taitz Shop for the Texas Judge Who Set Today’s Border-Crosser Hearing?” The idea isn’t new. I got an email August 22 from a reader pointing out the post at Orly’s site about her exchange with a Congressional assistant about the judge in Taitz v. Johnson, Andrew S. Hanen, having strong objections to the government’s handling of immigration issues. Judge Hanen, a 1978 graduate of Baylor University Law School, was appointed federal judge for the United States District Court for the Southeastern District of Texas by President George W. Bush, and joined the court in 2002, his first judgeship.

Judge Hanen became national news through a December 20, 2013 article in National Review that said, in part:

A federal judge in Texas has issued a searing indictment of the Obama administration’s immigration policy. He accuses the government of “completing the criminal mission” of human traffickers “who are violating the border security of the United States” and assisting a “criminal conspiracy in achieving its illegal goals.” The judge calls the administration’s behavior “dangerous and unconscionable” and says that “DHS should cease telling the citizens of the United States that it is enforcing our border security laws because it is clearly not. Even worse, it is helping those who violate these laws.”

That came from his order in the case of U.S. v. Nava-Martinez, published the week before the article.

Prompted by the August 22 email, I published my own article on the 26th briefly mentioning what Taitz said about Judge Hanen, but not alluding to the judge shopping angle.

In fact, the Southeastern District of Texas has no fewer than 14 serving judges (and 5 vacancies); however, the Brownsville Division has only one district judge, Judge Hanen. (It also has a senior judge and a magistrate judge.)  Taitz, who filed in the Brownsville Division could, I suppose, have effectively picked the judge by picking the court.

According to one eyewitness report, Judge Hanen pointedly asked Taitz at today’s hearing why she, a California attorney with witnesses residing in California, didn’t file her case in California.

If my time zone calculator (often awry) is correct, the hearing is scheduled to start in about 10 minutes. There should be a special RC Radio show tonight featuring observer Tomtech with details.

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