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Birther judge triggers constitutional crisis

Chief Justice of the Alabama Supreme Court, former WorldNetDaily writer and birther Roy Moore (looking gay after his election to the court) has triggered a constitutional crisis in Alabama after ordering judges not to issue marriage licenses to same-sex couples in defiance of a federal judge’s ruling, that the U. S. Supreme Court declined to review. Probate Judge Al Booth in Autauga County said:

"I have the man who runs this state’s court system telling me not to issue marriage licenses for same-sex couples," Booth said. "I have the federal judiciary telling me I will issue marriage licenses to same-sex couples.

"I want to uphold my oath. But what law do I follow?" he said. "Which constitution do I uphold?"

The head of Alabama’s Republican took the federal order to start issuing licenses to same-sex couples pretty hard:

The State of Alabama and the United States of America will reap God’s wrath if we embrace and condone things that are abhorrent to God, such as redefining marriage as anything other than a union between one man and one woman.

Read more at USA Today.

Are the Honolulu newspaper birth lists admissible in court as evidence of Obama’s place of birth?

Two competing Honolulu newspapers, The Honolulu Star-Bulletin and the Honolulu Advertiser, carried the Health Department list of births, showing a son born to the Obamas August 4, 1961. For some, these are the strongest evidence of President Obama’s birth in Hawaii because they are immune to modern tampering.

Strong as they are, would they be admissible in federal court? Are they excluded by the Hearsay Rule?

I believe that they well may be excluded. An important case on the admissibility of old newspapers is Dallas County v. Commercial Union Assurance Co. 286 F.2d 388 (5th Cir. 1961).  Here’s a summary of the issue:

A clock tower at the Dallas County Courthouse fell, doing $100,000 in damage. The County filed a claim with the insurance company alleging that the structural failure was due to a lightning strike that happened a few days before. The insurance company countered that the damage was due to an existing structural fault in the building caused by a fire that occurred during the building’s construction in 1901. As proof of the fire, the insurance company offered a newspaper article from 1901 reporting the fire. The newspaper article was admitted, and the jury found in favor of the insurance company. The case was appealed on the question of whether the newspaper article was properly admitted. The circuit court said yes and the lower court was affirmed.

The newspaper article was not among the explicit exceptions to the Hearsay Rule, but was admissible because it was more likely to be reliable than someone’s memory after 56 years and it was unlikely that a better source of information could be found. The court said:

it was properly admissible because it of its necessity, trustworthiness, relevance, and materialness

The newspaper accounts of Obama’s birth are trustworthy, relevant and material. They are not, however, necessary. Obama’s birth certificate is prima facie evidence of where he was born, and the newspaper accounts aren’t necessary to establish that fact.1

Since that 1961 case, Rule 807 Residual Exception has been added to the Federal Rules of Evidence and it expands on the concept of necessity in 807(a) allowing the exception when:

(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts;

Obama’s birth certificate falls under an explicit exception to hearsay, in Rule 803:

(9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.

I am not a lawyer and the legal information you get from may may be worth no more than you paid for it. Your mileage may vary. Not responsible for items left in your car. If problems arise, consult your doctor. May contain forward-looking statements. Sold by weight, not by volume. Image enlarged to show details. May contain peanuts.

1This article assumes that President Obama is a defendant and in a position to offer his birth certificate as evidence.

Donofrio’s early views on “natural born citizen”

I’m not breaking any new ground here because I am sure others have noticed this before me; however, I think it should be mentioned because those people who believe that only persons born in the United States to two US citizen parents claim that this view is not novel.

A commenter at Birther Report named “BornTexas” said recently that objections to Obama’s eligibility based on his non-citizen father were made before Barack Obama was nominated as the Democratic Party’s candidate in 2008.


I challenged that assertion, and now 4 weeks later there has still been no response.1 It certainly seems that if there were any widespread belief in the two-citizen-parent theory, that someone would have raised the objection the moment Obama announced as a candidate.

In my reply to BornTexas, I noted that Leo C. Donofrio had written on his blog, NaturalBornCitizen, about the two-citizen-parent theory in December of 2008, the month the blog started.

When Donofrio wrote of it on December 19, 2008, he talked about Minor v. Happersett, and said that the Court “punted the issue.” Donofrio wrote:

For the purposes of Minor and Wong Kim Ark, the Supreme Court didn’t need to reach the “natural born citizen” issue as neither person was running for President, so they rightfully punted by limiting their holdings to the issue of  whether each person was a “citizen”….

Those “doubts” mentioned in Minor needed to be discussed and adjudicated by the current supreme court.

Shortly after, as we know, Donofrio was to assert that the Minor decision definitively defined natural born citizen, and even developed a conspiracy theory surround the first US President with a non-citizen father, Chester A. Arthur.

Continue Reading →

Taitz touts Texas transcript today: Titus tried Tuesday

Orly Taitz published an official transcript of her October 29 hearing in Taitz v. Johnson in Texas on her blog today. It’s an immigration case where Taitz claims she was injured by catching a disease from an undocumented child she treated in her dental office.

In other birther judicial news, birther third-party presidential candidates1 Ed Noonan and John Dummett have appealed their loss in Dummett v. Bowen in California federal circuit court to the Supreme Court. The petition for writ of certiorari was filed yesterday. [Link to case at SCOTUS | Link to Petition] As with many birther ballot challenges, plaintiffs contend that various state officials have a duty to verify the eligibility of candidates for President of the United States. This proposition was rejected by courts in California, New Jersey, Florida, Alabama and other states. Co-plaintiffs John Dummett and Edward Noonan are asking the Supreme Court whether states must enforce the Constitution’s eligibility requirements for candidates for president. Some states have on occasion rejected obviously ineligible candidates (e.g. California, New York and Hawaii), but deny that they must perform investigations of eligibility. The counsel of record is William J. Olson, with the U. S. Justice Foundation and Herb Titus, among others, listed.

1Dummett was a write-in candidate, and Noonan win didn’t the nomination of his party, the American Independent Party.

Universe-shattering: Decision in Judy v. Obama

If I receive a favorable decision this could be the universe shattering decision we have been patiently waiting for.

— Cody Robert Judy

That’s a big Large image of the word IF!

Judy writes about his case in an editorial at the Post & Email and his own web site. He’s has been around the judicial track a few times (not to mention his incarceration) with Obama lawsuits, including a trip (unsuccessful) to the Supreme Court. This time it’s the 10th Circuit Court of Appeals (case 14-4136) where he says that his case1 has been distributed.

The argument before the Court is laid out in Judy’s brief, a document that is somewhat difficult to follow through it’s near page-long sentences and twisted thought process. Still we can glean that Judy (a candidate for President in 2008 somewhere) claims that his civil rights were damaged by Obama’s “Campaign vehicle” because Obama was ineligible and the political parties ganged up to marginalize him.

Judy’s case apparently was dismissed because he did not effect service on President Obama, but Judy disputes this saying that service was valid and that he should have received a default judgment:

At issue is the cold hearted perpetration of criminal wrongdoing or actions of maliciousness being given the wink-wink by those in seats of authority; Federal Rules of Service of Process being violated by the Court’s refusal to recognize a validated witnessed and proof of and in a ‘Return of Service’ and ‘Affidavit’,  actually getting out of its seat of judgment to act as an attorney for the Defendants because the defendants/Appellee’s failed to answer the Courts own demanded 20 Day Summons to file an answer or judgment by default would be taken against them as is stated in the 20 Day Court issued Summons. (sic)

The original lawsuit was based on a number of legal theories and allegations, including a violation of the Sherman antitrust act, which he applies to political parties. Still at the heart it was an eligibility complaint that said:

Defendant Obama is not a natural born citizen having declared from various documents he was born in Kenya and his father was a Kenyan at the time of his birth.

Further allegations in the suit were:

  • Obama is an Indonesian citizen named Barry Soetoro
  • Obama’s long form birth certificate is fraudulent or forged
  • Obama’s draft registration is fraudulent or forged
  • Defendants labeled Judy’s previous lawsuit a “birther action”
  • Obama is not a natural born citizen according to the “definition” in Minor v. Happersett

Maybe I need to buy universe shattering insurance from Mutual of Steve.

Cody v. Obama also names as defendants:

  • Obama for America
  • Nancy Pelosi
  • Mitch Stewart
  • Jeremy Bird
  • Debbie Wasserman Schultz
  • Jim Dabaki
  • Matt Lyon
  • Harry Reid

Judge rules against Obama; Taitz can’t find case

Orly Taitz has an article up titled “I need help in finding this Pennsylvania case of Juarez Escobar (sic), where fed, judge stated that Obama’s amnesty is unconstitutional. Do not see anything in PACER under Juarez Escobar in PA recently.” I like to think of my self as a good person and a helpful one. Taitz, as far as I can tell, auto-deletes my comments, so my attempt to give her the case number and a link to the decision didn’t work. (Awwww.)

This brings me to a point about looking up federal lawsuits online. There is a web site,, where one can lookup federal lawsuits, and this web site is a very useful free public resource for finding cases, one that I use frequently; however, it is not the actual federal court system, PACER, and it does not always have everything in the PACER system. I couldn’t find this case at Justia either, even when putting in the hyphen that Orly dropped (actual name is Elionardo Juarez-Escobar). However, the real PACER Case Locator has the case (2:14-cr-00180-AJS). Use of the PACER Case Locator requires a PACER account. I actually went to PACER first in this instance because I knew Taitz was having trouble.

The case itself is interesting and District Judge Arthur J. Schwab said in his order that President Obama’s Executive Action (not Executive Order) was beyond the Administration’s power of prosecutorial discretion, and therefore unconstitutional. His reasoning, as I read it, was based on the principle that prosecutorial discretion is something applied on a case-by-base basis, and not to classes of people as Obama outlined.

Other legal experts have written that Obama’s action is of the same kind exercised by other presidents for decades.

Taitz writes:

He will be deciding on the aspects of Obama’s immigration dictates being unconstitutional, in the actual case brought by Orly Taitz. Judge Hanen is the SAME ..

Actually, the Taitz case involves transportation of undocumented children and is based on her claim of getting sick through treating one of them. That morphed into a case about Ebola, and that transmogrified into a generalized opposition to Obama’s Executive Action, something that happened after she filed her case.

One might want to tell Taitz to shut up, as she is not the representative of the American people and has no individual standing to bring such a lawsuit. Taitz claims “taxpayer standing,” something I have read many time did not apply to Obama eligibility cases. Taitz, however, cites to a case:

Further, Obama claims that Taitz lacks standing as a tax-payer, however this is patently false, as the Supreme Court in Flast v Cohen, via decision penned by the Chief Justice Earl Warren found that US tax payers have standing to challenge actions by the government, as long as those actions relate to spending allocated by the Congress based on it’s spending and taxing power and those actions  are illegal.

The Court’s decision in Flast v. Cohen does not grant general standing to all taxpayers. The Court set up this test for taxpayer standing:

To maintain an action challenging the constitutionality of a federal spending program, individuals must demonstrate the necessary stake as taxpayers in the outcome of the litigation to satisfy Art. III requirements. Pp. 392 U. S. 102-103.

(a) Taxpayers must establish a logical link between that status and the type of legislative enactment attacked, as it will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute. P. 392 U. S. 102.

(b) Taxpayers must also establish a nexus between that status and the precise nature of the constitutional infringement alleged. They must show that the statute exceeds specific constitutional limitations on the exercise of the taxing and spending power, and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8. Pp. 1 392 U. S. 02-103.

Obama’s immigration initiative is no way a “spending program” or a “statute,” and Taitz has no individual stake in it (not being herself liable for deportation). In order to sue, the legislation challenged must exceed Constitutional limitations, not simply go beyond delegated powers. She fails both tests. The Flast case had to do with state spending to support religious schools in violation of the Constitution’s Establishment Clause.

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