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Mississippi Litigation Accountability Act of 1988

I didn’t find any Internet articles on the Mississippi Litigation Accountability Act of 1988, so I am providing this information on Chapter 55 of Title 11 of the Mississippi Code, cited by President Obama, Nancy Pelosi, and Obama for America in their answer to Orly Taitz’s first amended complaint in the case of Taitz v. Democrat Party of Mississippi in their request for fees and costs to be assessed against Taitz. Here’s the Act:

§ 11-55-1. Title
   This chapter may be cited as the "Litigation Accountability Act of 1988."

§ 11-55-3. Definitions
   The following words and phrases as used in this chapter have the meaning ascribed to them in this section, unless the context clearly requires otherwise:
   (a) "Without substantial justification," when used with reference to any action, claim, defense or appeal, including without limitation any motion, means that it is frivolous, groundless in fact or in law, or vexatious, as determined by the court.
   (b) "Person" means any individual, corporation, company, association, firm, partnership, society, joint stock company or any other entity, including any governmental entity or unincorporated association of persons.
   (c) "Action" means a civil action that contains one or more claims for relief, defense or an appeal of such civil action. For the purposes of this chapter only, an "action" also means any separate count, claim, defense or request for relief contained in any such civil action.

§ 11-55-5. Assessment of attorney fees and costs against attorney or party for meritless action, claim or defense, unwarranted delay, or unnecessary proceedings
   (1) Except as otherwise provided in this chapter, in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorney’s fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification, or that the action, or any claim or defense asserted, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceedings by other improper conduct including, but not limited to, abuse of discovery procedures available under the Mississippi Rules of Civil Procedure.
(2) No attorney’s fees or costs shall be assessed if a voluntary dismissal is filed as to any action, claim or defense within a reasonable time after the attorney or party filing the action, claim or defense knows or reasonably should have known that it would not prevail on the action, claim or defense.
(3) When a court determines reasonable attorney’s fees or costs should be assessed, it shall assess the payment against the offending attorneys or parties, or both, and in its discretion may allocate the payment among them, as it determines most just, and may assess the full amount or any portion to any offending attorney or party.
(4) No party, except an attorney licensed to practice law in this state, who is appearing without an attorney shall be assessed attorney’s fees unless the court finds that the party clearly knew or reasonably should have known that such party’s action, claim or defense or any part of it was without substantial justification.

§ 11-55-9. Limitations of chapter
   Nothing in this chapter shall be construed to prevent an attorney and his client from negotiating in private the actual fee which the client is to pay the client’s attorney. Nothing in this chapter is intended to limit the authority of the court to approve written stipulations filed with the court or oral stipulations in open court agreeing to no award of attorney’s fees or costs, or an award of attorney’s fees or costs in a manner different than that provided in this chapter.

§ 11-55-11. Application of chapter
   This chapter shall apply in all cases unless attorney’s fees are otherwise specifically provided by statute or court rule, in which case the provision allowing the greater award shall prevail.

§ 11-55-13. Severability
   If any section, paragraph, sentence, phrase or any part of this chapter shall be held invalid or unconstitutional, such holding shall not affect any other section, paragraph, sentence, clause, phrase or part of this chapter which is not in and of itself invalid or unconstitutional. Moreover, if the application of this chapter, or of any portion of it, to any person or circumstance is held invalid, the invalidity shall not affect the application of this chapter to other persons or circumstances which can be given effect without the invalid provision or application.

§ 11-59-15. Application to pending actions
   This chapter applies to requests for discovery in cases pending on July 1, 2011.

I note an interesting provisions of the statute: the assessment of costs and fees need not be based on the entire action being frivolous. It can be applied to a claim or to a motion. In order for costs and fees to be assessed under the act, the Court must determine that the party reasonably should have known better, and the fact that Taitz is an attorney weighs heavily against her for this determination.

Je recuse!

I am not a lawyer, so when I see some novel phrase from Orly Taitz, I may not know whether it makes sense or not. I remember when she accused the President of “uttering,” which was the right word for what she was trying to say, even though it wasn’t true.

The Orly Law legal term du jour following last week’s “ex parte,” is “recuse.” Here’s a sample from Orly’s latest filing in Grinols v. Electoral College:

Plaintiffs also moved to recuse the Department of Justice/US Attorney’s office from the representation of Barack Soebarkah, aka Soetoro, aka Obama…

Bryan A. Garner, author of A Dictionary of Modern Legal Usage and editor in chief of the Oxford Law Dictionary Project said:

Disqualify might be used in place of recuse, but the reverse does not hold. Disqualify, the broader term, may be used of witnesses, for example, as well of judges, whereas recuse is applied only to someone who sits in judgment, usually judges or jurors.

… but not in Orly Law. Taitz has moved that the court recuse the US Attorney from representing federal defendants in Grinols.

Specifically, Taitz has moved that the US Attorney be “recused” from representing the Electoral College. Given that there is no Electoral College right now, and that it is not an entity that can be sued, that doesn’t mean a lot. Second, she wants the US Attorney “recused” from representing Joe Biden, the President of the Senate. That’s OK, because Joe Biden isn’t a party to the case. Taitz wants the US Attorney “recused” from representing President Obama, and that’s not an issue either because apparently, until he is served with the complaint, President Obama isn’t a party to the suit either. The issue is with Congress, where the US Attorney has responded.

In this latter matter, Taitz is claiming that the the Congress is properly represented by the Office of the General Counsel of the House of Representatives, who has responded to Taitz that the House members whom Orly Taitz tried to contact directly will not answer her sham subpoenas. Continue Reading →

Missouri proposes anti-birther bill

Representative Lyle RowlandMissouri House Representative Lyle Rowland, looking back over the blight on our national identity that was the “birther movement,” has proposed le­gis­lation to stave off future conspiracy theories about presi­den­tial eligibility.

HB 41 would tackle future birther movements head on by de­le­gi­timi­zing their central two talking points: First, the “never vetted” ar­gu­ment is eviscerated by a simple requirement for candidates for President in the general election to provide documents showing their age and place of birth. The original paper long-form birth certificate that Barack Obama’s attorney showed the Press in an April 2011 briefing, and that the White House subsequently released as a PDF image on its web site, would be exactly what the Missouri bill requires of future candidates. The “Show-Me” state would make the candidate submissions public records so that potential conspiracy theorists could gawk at and slobber over them, but not be able to claim that they hadn’t seen them.

The second major attack on future birthers is to write into law the scholarly consensus and the legal opinion of 10 courts over the past four-and-a-half years, that the con­stitu­tional phrase “natural born citizen” has no requirement for US citizen parents.

My experience is that conspiracy theorists disdain the kind of official documentation that the Missouri bill relies on. They will spin their stories no matter what. Further, they have already rejected scholarly opinions and court decisions on presidential eligibility, and will surely say that the Missouri Legislature has no right to define “natural born citizen” (even though a string of birther court cases have tried to force secretaries of state to do just that). Still, it’s a worthy effort, although unlikely to pass.

Read more:

The return of the birther bill

Now that President Obama has been re-elected, he will not be running for President again. While proposed legislation in a number of states would have added requirements of presidential candidates to prove eligibility in various (sometimes silly) ways, none became law. The supporters of these bills universally claimed that “this is not about Obama,” but of course it was.

Now it is a little easier to make an argument that the bills are not about Obama. They are, however, vindication of the validity of the concerns of the birthers, and so ultimately they are about Obama. To argue for the need for such a bill is to argue that things aren’t just fine the way they are. One might also argue that a presidential vetting bill is not vindication of birthers, but prevention of future birthers. That again falsely affirms that people who think like birthers respond to reason. In fact, the State of Arizona did verify the facts of Obama’s birth in Hawaii, and it made not wit of difference to birthers.

image

Missouri, appropriately named “the show-me state,” has a bill, HB 41, that asks presidential candidates in the general election to show them a birth certificate, and to let the people of Missouri look at it too. It places the burden of proof of eligibility on the candidate. There is a question as to whether any state can make such requirements, essentially adding to the eligibility requirements in the Constitution. However, if this bill becomes law, I find it unlikely that any major party candidate will challenge it.

While the bill offers some small solace to the birthers, it also would be a big win for the Obots, because in addition to requiring documentation from the candidates, it also defines “natural born citizen” as:

…having been declared a national and citizen of the United States at birth under 8 U.S.C. Sections 1401 to 1409, as amended, or having been declared a national and citizen of the United States under federal law as it existed at the time of the nominee’s birth.

Read the bill:

Continue Reading →

The return of the birther bills

A number of states saw attempts in their legislatures to pass some sort of legislation aimed at providing stricter controls over who could run for President of the United States. The Arizona legislature actually passed a bill, but it was vetoed by Governor Brewer.

Many said that those so-called “birther bills” were thinly veiled attacks on Barack Obama, who the birthers have long believed was not born in the USA and hence not eligible to be President. Now that the President is duly installed in the White House for a second term, and constitutionally precluded from ever running for President again, that criticism is harder to make stick, except…

Now, in the post-Obama-election climate, Texas leads the way for perhaps a new string of birther-inspired legislation aimed at ensuring that Presidential candidates have unassailable paperwork. The Texas bill  is sponsored by Arlington State Representative Bill Zedler, who says his bill has “nothing to do with Obama.”

Continue Reading →

May states exclude Presidential candidates for ineligibility?

imageThe Secretary of State of New Hampshire has official forms  that must be filed by all candidates for President, forms that require that the candidate state, under oath, that he or she is constitutionally qualified for the office of President of the United States. Attorneys for the Democratic Party of Mississippi have said that political parties can run whomever they wish for President. (Running an ineligible candidate, who could not actually assume office, would of course be a silly thing for a major party to do.)

In an appeal of Purpura v. Obama before the Supreme Court of New Jersey, attorney Mario Apuzzo argues1 that such laws and regulations are constitutional, citing a decision this year by the New Hampshire District Court in the case of Hassan v. New Hampshire. Mr. Hassan, a naturalized US Citizen born in Guyana, argues that the natural born citizenship requirement for the office of President was implicitly repealed by the equal protection guarantees of the 5th and 14th Amendments. The District Court disagreed and said, as cited by Apuzzo in his appeal:

Accordingly, because the Natural Born Citizen Clause has not been implicitly repealed, New Hampshire state laws requiring all presidential candidates to affirm that they are natural born citizens are constitutional.

While that citation is superficially on point, it is clear from the entire decision that the Court never approached the question generally, but only on the issue of whether the 5th and 14th Amendments repealed the natural born citizenship requirement. The court did not say that such laws are constitutional under any objection. (Hassan v. New Hampshire is currently on appeal before the First Circuit Court of Appeals.)

There have been other cases where ineligible candidates for President were barred from the ballot by states (for example, Eldridge Cleaver by Hawaii, California and New York because of age), but to my knowledge none of the resulting lawsuits that upheld exclusions ever reached the Federal Circuit Court level.

Apuzzo’s appeal argues that if the states don’t check eligibility, no one will. This is a position that I disagreed with in my article: “How we insure our presidents are eligible.” My view is the vetting of a President occurs at many levels and ultimately the responsibility falls on Congress. Judge Alsup wrote in his decision of the California case of Robinson v. Bowen:

Arguments concerning qualifications or lack thereof can be laid before the voting public before the election and, once the election is over, can be raised as objections as the electoral votes are counted in Congress. The members of the Senate and the House of Representatives are well qualified to adjudicate any objections to ballots for allegedly unqualified candidates.

Mr. Hassan, of course, never argued that an ineligible candidate could appear on the ballot, but rather that he himself is eligible. He also requested an advisory opinion from the Federal Elections Commission as to whether he could raise money as a candidate for President. The FEC had previously argued in the case of Berg v. Obama that: “[the FEC] has no oversight over the Constitution’s Presidential Qualifications Clause.” Nevertheless, in its unanimous opinion, the FEC said the Federal Election Campaign Act of 1971 did not preclude Mr. Hassan from becoming a candidate for president, nor from soliciting funds for his campaign2,; however, the FEC did assert that it would deny matching funds to Hassan under The Presidential Primary Matching Payment Account Act, 26 U.S.C. §§ 9031-42 using its discretion under the Act even though a constitutionally ineligible candidate met the formal compliance criteria. Whether intentional or not, there is nothing in the Matching Payment Act requiring that candidates for President must be eligible to office in order to receive matching funds.

I have doubts that the courts would affirm an FEC decision to withhold matching funds in the unlikely event that Hassan would otherwise qualify for them. The FEC tried to use its discretion before in denying funds to Lyndon LaRouche, Jr., and that was overturned by the Court of Appeals for the District of Columbia Circuit in 1993. While eligibility to office was not an issue in the LaRouche case, it seems to me that the Matching Payment Act does not give the Commission any authority to withhold funds based on candidate eligibility to office, any more than it gave the Commission authority to withhold funds on other grounds not explicit in the Act.

The way I read the Constitution, there is nothing whatever therein regarding who may run for President, or who the Electoral College may vote for. Congress did not see fit to include an eligibility requirement to receive matching election funds. On the other hand, the States have long-recognized authority to regulate elections, so long as they do not offend the Constitution.

Today we have 50 states with different laws, and a large number of lawsuits rising from those laws  challenging the eligibility of a candidate for President. It’s a messy process. It would certainly be beneficial if there were an authoritative ruling governing the general question of whether the States have any role in deciding presidential eligibility.


1Mr. Apuzzo’s problem is that there is no state regulation in New Jersey requiring any affirmative action by a candidate for President to appear on the ballot.

2It is interesting to note that under the Federal Campaign Act of 1971, the various birther plaintiffs who claim standing as candidates do not meet (so far as I know) the definition of “candidate”, since they have not received the requisite $5,000 in contributions or made that amount in expenditures.