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Lindsay oral arguments: peppered with “birther”

Orly Taitz has obtained an unofficial transcript of the oral arguments from the 9th Circuit Court of Appeals in the case of Peta Lindsay, et al v. Debra Bowen. Like 1968 Peace and Freedom Party presidential candidate Eldridge Cleaver1, Lindsay was too young to become President of the United States, and like Cleaver, she was refused a place on the California Ballot because of her age. The lower court dismissed Lindsay’s lawsuit.

Appellants argue that the US Constitution provides that under the 20th Amendment only Congress may decide presidential qualifications, the eligibility of a president-elect to become president. Under the political question doctrine, a court would decline to intervene when the Constitution explicitly assigns a role to another branch of government or to the democratic process. The State of California argues that Congress’ role in deciding eligibility is not exclusive and that case law gives states broad authority in the conduct of elections, including the power to prevent a ballot from being cluttered by frivolous candidates. Both parties cite Elections Code Section 6720, that says:

6720.  The Secretary of State shall place the name of a candidate upon the Peace and Freedom Party presidential preference ballot when the Secretary of State has determined that the candidate is generally advocated for or recognized throughout the United States or California as actively seeking the presidential nomination of the Peace and Freedom Party or the national party with which the Peace and Freedom Party is affiliated.

Appellants say this requires the Secretary of State to place the Peace and Freedom Party candidate on the ballot. Bowen argues that an obviously ineligible candidate cannot be considered “generally advocated.”

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McInnish decision not overdue

Despite what seems a long delay, the Alabama Supreme Court decision in McInnish v. Chapman is not overdue.

The original appellate brief in the case was filed on March 26, 2013, or 307 days ago. According to Table VI of the “Supreme Court of Alabama Annual Statistics For the Fiscal Year Ending September 30, 2013,” the average pending days1 for a case requiring an original decision2 was 315. Alabama Supreme Court opinions are announced each Friday at the Alabama Judicial web site.

This particular case has some level of complication in that a number of amicus briefs were filed. See my article, “McInnish v. Chapman in brief,” for reference to those.

The appellant’s attorney is Larry Klayman.

1According to the Statistical Report:

The number of days pending in this Court includes the time necessary for preparation of the record of appeal and the filing of briefs. These events occur before the assignment of the case to a Justice for preparation and circulation of a proposed opinion. The number of days pending also includes the time expended while awaiting special concurrences or dissents of other Justices after a majority of the Court has concurred in the release of a proposed opinion.

2An original decision is one on a case not previously heard by an appellate court.

Judge Wingate: not in a hurry

Photo of Judge Henry T. WingateThe Court told the parties that Judge Henry T. Wingate was going to issue rulings on the outstanding motions in Taitz v. Democrat Party of Mississippi yesterday. Orly Taitz filed a lengthy brief titled “Notice of new material facts” on the eve of the hearing, and the result was that no rulings were issued, and the Defense was given two weeks to answer Taitz.

I’ve read commentary highly critical of Judge Wingate for letting Taitz get away with this, but I would speak a little in his defense. According to the summary of the hearing I read, Judge Wingate had not had time to read Taitz’ brief. Wingate (who is a judge characterized by taking a long time to resolve cases1 anyway) reasonably postponed issuing the decisions until this new item was briefed. It is also possible that after reading Taitz’ brief, Judge Wingate could decide to throw it out as immaterial, although I do not expect that.

Taitz alleged improper conduct on the part of the judge in her brief. That’s a pretty serious allegation, and Judge Wingate actually defended himself by pointing out that he didn’t even know the person he was supposedly having a conversation with, at an event that didn’t happen. Such allegations, to this lay opinion, would weigh heavily in any future decision of misconduct on Taitz’ part, but also provide Taitz with an avenue for future appeal.

By allowing Taitz to issue subpoenas for the Internet records of the parties who allegedly provided her with the information of these conversations where Wingate was alleged to have said in regard to Taitz: “We’re making the bitch squirm a little first,” [link to comment at Taitz web site] Wingate will get into the trial record (one hopes) a deposition from whomever sent those emails to Taitz that indeed he made them up. This ties up a loose end, and makes the way clear for decisions to be issued in the case, untainted by allegations of bias.

While I am unhappy about the delay in Taitz’ case, I am not critical of the Judge who allowed it, and I for one would be interested in learning a little more about the “punking Orly” story.

1Ref. Judgepedia article on Henry Wingate.

Judge Wingate is a member of the US Navy reserve. A graduate of Yale Law School, he was appointed judge to the Southern District of Mississippi by Ronald Reagan in 1985, and has served as Chief Judge since 2003.

The Fist Amendment right to fight back on a blog

Orly Taitz is always good for a silly. Here’s a screen shot of her latest article:


I wouldn’t take the time to show this trivial typo, particularly as it will probably be fixed quickly (I left a comment), but the topic itself is interesting to folks like me who blog on public matters. The appellate decision in the case of Obsidian Finance Group v. Cox held that under the First Amendment:

[L]iability for a defamatory blog post involving a matter of public concern cannot be imposed without proof of fault and actual damages.

I would point out that the extension of the protections set out by the Supreme Court in New York Times Co. v. Sullivan to non-institutional speech is not new, but it is new for the Ninth Circuit where Taitz practices law. The landmark Times case arose out of reporting on the Civil Rights Movement in the 60’s.

Taitz files in Mississippi on the eve of decision

The day before Judge Wingate’s hearing on Taitz v. Democrat Party of Mississippi, Orly Taitz filed a “Notice of new material facts” with the Court. Well, bless her heart, it contains a new fact that is material: one of the defendants, Loretta Fuddy, died, albeit hardly under what I would hardly call “suspicious circumstances,” given that the death was ruled accidental.

She also brings the conspiracy tableau up to date with these items:

  • Obama had problems registering for health insurance due to ID verification problems.
  • A decision by the District Court in Maryland dismissing Orly’s complaint there (not sure how that is material). Orly says her case wasn’t dismissed (true), but her complaint was dismissed. The judge just gave her another chance.
  • Undocketed opinion (more below)
  • Petition to submit Orly’s criminal claims to a federal grand jury.

The undocketed opinion is the story reported at The Fogbow and commented on here about someone messing with Orly on her web site [link to comment at Taitz web site], claiming that they had talked to the judge and purportedly gotten a copy of tomorrow’s orders, quoting from them to Taitz. Taitz wrote:

Plaintiff Taitz is greatly concerned about those claims, as there should not be any extrajudicial contacts between any employees of this court and any one of the parties. If such contacts exists (sic), that creates a suspicion of bias and lack impartiality. Taitz is requesting an investigation, discovery and administrative hearing on this matter.

It would perhaps have been probative if Taitz had included these alleged quotations from the unpublished decision so that they might be compared to the real decision, but that would really be too much to expect from her. Anyone with a ounce of sense would know that if any of the parties had improper advance notice from the court, the LAST thing they would do is to post it on Orly Taitz’ web site or send it to her in an email. Duh.