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Arpaio v. Obama, and other legal stuff

Sheriff Joe Arpaio has not been lucky with attorneys lately.

The Maricopa County Sheriff’s office has been operating under a court-appointed monitor after it was determined that they were guilty of racial profiling. Judge Snow appointed Robert Warshaw as the monitor. According to the Greenfield Reporter,

Snow says he will have Robert Warshaw, who is monitoring the agency on the judge’s behalf, investigate any allegations that he feels the sheriff’s office isn’t examining in good faith.

Warshaw has said his team has never seen more unprofessional interviews than those conducted by Arpaio’s employees who are running the investigation.

Ouch! Judge Snow said in court yesterday (November 21) that Sheriff Joe could be held in contempt of court! Arpaio is appealing the decision by Snow, but he’s run into another snag: the attorney representing him wants out, citing ethics concerns, says the Associated Press:

A lawyer representing Maricopa County Sheriff Joe Arpaio in a racial profiling case says legal ethics compel his firm to step aside.

As one might expect, no details of what the ethics concern is about were made public, although it was detailed in court filing earlier in the week.

The embattled sheriff is trying to take the offensive, by suing the President over his announced new immigration policy, reports Reuters:

Maricopa County Sheriff Joe Arpaio, whose force used racial profiling during a crackdown on illegal migrants last year according to a judge, said Obama has overstepped his powers by bypassing Congress and bringing in the changes himself.

I wonder who’s paying the legal bill, and who Arpaio could get to represent him in the case? The second question is easily answered from court filings: Larry E. Klayman. What is a little difficult for me as a layman to determine is whether Arpaio is suing as a private citizen, or as Sheriff of Maricopa County. Arpaio is described in the complaint caption as  “Elected SHERIFF of Maricopa County,” but the complaint does not use the phrase “in his official capacity,” nor does it suggest that the County is a party to the suit. It looks like Arpaio is suing as a private citizen, and that immediately raises the question of standing. In addressing the issue of standing, the complaint states:

27. Plaintiff Joe Arpaio is adversely affected and harmed in his office’s finances, workload, and interference with the conduct of his duties, but the failure of the executive branch to enforce existing immigration laws, but has been severely affected by increases in the influx of illegal aliens motivated by Defendant Obama’s policies of offering amnesty….

The other defendants are Jeh Johnson, Secretary of the Department of Homeland Security, Leon Rodriquez, Director of Citizenship and Immigration Services and Eric Holder, Jr. Attorney General.

Read more:

KPHO Story on Klayman and the suit

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Hanen to Taitz: Show me case law

I’ve said it before and I’ll say it again. I greatly appreciate it when local newspapers cover local birther events. This time it is the Brownsville Valley Morning Star’s coverage of the Taitz v. Johnson hearing yesterday by reporter Emma Perez-Treveño.

image

The reporter’s posts on Facebook yesterday provided some information on how the hearing progressed. The longer version (paid) of the article provides a little more information including the following (via The Fogbow):

Regarding her request for a travel ban, Hanen said that everyone needs to keep in mind what is within the province of the court, and what is within the province of the United States Congress and the Executive Branch. Noting that while he might or not agree with a ban, she might have to show him where he would have authority to issue one, and referred to the well-known saying that, “judges are appointed, but they are not anointed.”

“If you want to go there, you are going to have to show me,” Hanen told Taitz. Taitz told Hanen that he has the right to issue a writ of mandamus to force Burwell to issue an order of quarantine. But Hanen pointed out that the law authorizes, but does not mandate that Burwell issue such orders.

“Why are we here if you find there is nothing you can do?” Taitz asked Hanen amid his observations. “We are here because you filed a lawsuit,” Hanen told her. “I’ll let you question the witness Dr. Taitz, not me,” he added.

Taitz told Hanen that he was refusing to consider the threat of injury to her. “Show me case law,” Hanen told her. “Does the case law provide that? What is the likelihood that it can happen? There is no certainty with Ebola or that you would be affected by it,” he continued. It was noted that the threat must be actual or imminent, not conjecture or hypothetical. “You’re going to have to show me that it’s not hypothetical,” Hanen told her.

Taitz herself did not testify at the hearing, but her “expert witness” Vera Dolan did. The government stated that “a cough is a symptom, not a diagnosis” and Taitz doesn’t know what caused it, and even if she did catch a respiratory infection from one of the immigrant children, that child could have caught it in the United States.

Taitz should go to law school and learn about this stuff.

I personally think that Judge Hanen is out of line holding this hearing at all, until after the question of standing has been settled. Without standing, he has no jurisdiction. But then, I haven’t gone to law school.

Birther ballot case goes to California Supreme Court

But is the California Supreme Court Constitutional?

That’s what was reported by Gerbil Report™ from a press release of the “American Resistance Party.”1 The article, “Are Part Alien Judges Constitutional?” focuses on one newly-appointed associate justice of the California Supreme Court who was born in Mexico. Mariano-Florentino Cuéllar was recently nominated by Governor Jerry Brown to the Court, and confirmed unanimously by the California Commission on Judicial Appointments. Cuéllar has some impressive credentials that can be read in his Wikipedia article, or at the LA Times.

Because they were unable to find anything showing that Cuéllar was a US Citizen, the ARP assumed that he wasn’t. Curiously, the California Judicial Branch Fact Sheet that describes qualifications for judges does not mention any citizenship requirement, nor is it a requirement for admission to the California Bar. Nevertheless, Cuéllar is, according to his Constitution Project biography, a US Citizen. But even if Cuéllar is a naturalized citizen he is not, argues the ARP, constitutionally qualified to be a judge on the California Supreme Court because of some tortured reading of the US Constitution, specifically the 11th Amendment that precludes foreign persons from suing a state.

They assert:

Mr. Cuéllar has failed to prove in any written statement or eligibility statement in the past to prove beyond a shadow of a doubt that he has refuted (sic) his Mexican citizenship. It is his responsibility to do so, if and when, he attains an office that is under the purview of the U.S. Constitution and California Constitution.

The ARP probably is unaware of the oath that naturalized citizens take:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; …

So while not applicable in this particular instance, the ARP do argue that dual citizens (not 100% citizens) cannot serve in any capacity under the California or US Constructions. Their argument seems nonsense. Where were they when Michele Bachmann (Swiss) and Ted Cruz (Canadian) served in the House and Senate (respectively)?

The case in question is Noonan v. Bowen, a long dismissed ballot challenge, being appealed from the Third Appellate District. Edward Noonan and co-appellant Pamela Barnett are being represented by Nathaniel J. Oleson of the US Justice Foundation. The case number is S221700.

Read More:

Update:

The case was denied review.


1Edward Noonan is founder and National Committee Chair of the American Resistance Party.

Taitz expands Ebola ban

USA Map overlaid with Ebola virus imageOne wonders why a dentist from California, or even a district court judge in Texas, should be setting policy for public health in the United States. Nevertheless, that’s what Orly Taitz wants Judge Andrew S. Hanen to do in an expansion of her motion filed on October 24. There is an upcoming hearing on Taitz’ lawsuit, about which she says:

On Wednesday 29 October, we have what may be our last chance to stop or at least seriously curtain Ebola’s now wide-open entry into the US.

From the filing:

Plaintiff is seeking for this court to extend this partial ban to a full ban and stay travel to the remaining five airports with the goal of stopping proliferation of Ebola in the US, which has 70% death rate and Health Care providers, such as plaintiff, are more affected than others.

That statistic is not true for patients treated in the US; 85% is the cure rate here1, and in any case I cannot imagine how Taitz sees herself as a health care provider at special risk for catching Ebola. Recall that Taitz’ case was about the transportation of undocumented children while they were awaiting their court date. Taitz tried to show standing by claiming that she herself got sick from treating such children. There is no way Taitz can demonstrate that she is in imminent danger of catching Ebola. Judge Hanen has all he needs to dismiss this mess; let’s hope he does.

In terms of the actual death toll, measles is many times more deadly than Ebola. Measles deaths are preventable through vaccination, but junk science linking vaccines with autism have caused the vaccination rates to fall and mortality from measles to climb.


1Since the article cited, nurse Nina Pham has been declared Ebola-free.

Liberty Legal loses

The US Court of Appeals for the Sixth Circuit has affirmed the decision of a Tennessee district court that attorney Van R. Irion and the Liberty Legal Foundation must pay sanctions to the Tennessee Democratic Party in the amount of $10,563.25. The original lawsuit was almost identical to another suit Irion filed in Arizona District Court. After dismissing the case, US District Court Judge S. Thomas Anderson ruled that the lawsuit was frivolous and ordered sanctions to be paid to the Defense. He wrote:

…Plaintiff knew or reasonably should have known that the claims in this case had no basis in law. Specifically, counsel for Plaintiffs reasonably should have known that Plaintiffs lacked standing to pursue their claims…

The Circuit Court affirmed, saying:

…the district court correctly set out the applicable law and correctly applied that law to the case…

SCOTUS dumps birther lawsuit bin

Monday is trash pickup day at my house, and also today the Supreme Court announced dumping of birther lawsuits, most notably an appeal from the Supreme Court of Alabama in McInnish v. Chapman. Also denied was Rudy v. Lee (with amicus brief by Herb Titus).

CERTIORARI DENIED

H/t to gorefan.

Because of the holiday, the next pick-up will be on Tuesday.