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The birther contribution to American jurisprudence

By on October 10, 2012 in Birthers, Featured Articles, FOIA, Lawsuits, Orly Taitz, Philip Berg, Sanctions, Tutorial

Dealing with frivolous litigation, whether filed by a seasoned attorney or a novice pro se litigant, is a bit like wrangling cats.

Robert J. Davis

Where's the Birth Certificate? billboardWhile one doesn’t usually combine “birther” and “contribution” in the same sentence, the birther phenomenon has left its mark on the US justice system through educational examples, black letter law, and a bit of humor to spice up otherwise dull legal briefs. This article details ways in which the birthers in general, and Orly Taitz in particular, have contributed to the law.

A good example of bad behavior

I don’t know whether they teach this at the William Howard Taft online law school, but there are certain standard reference works that attorneys rely on to inform their practice and to find the citations that they need to make legal arguments. One source is the Practicing Law Institute whose mission is:

To enhance the professionalism of attorneys and other qualified persons by providing, in a cost effective manner, the highest quality and most innovative programs, publications and other services to enable them to practice law competently and ethically, and to fulfill pro bono responsibilities.

In 2010, the PLI published a paper by Koral and Price titled: “Trying the Court’s patience instead of the case: common litigation mistakes” to draw the line between “zealous advocacy” and “impermissible or injudicious tactics.” One way of brightening the line is to give examples of what constitutes “impermissible or injudicious tactics” and the birthers, in the person of Orly Taitz, provide a featured example of being on the wrong side of the line. Writing about Rhodes v. MacDonald, where Judge Clay D. Land sanctioned Taitz:

Attorney Orly Taitz provides a notorious recent example of an attorney’s conduct succeeding more at irritating the judge than at advancing the interests of her client. A member of the “birther” movement, which challenges President Obama’s citizenship on the grounds that he had failed to adequately prove that he was born in the United States, Ms. Taitz filed a motion in connection with this litigation on behalf of a Captain in the United States Army to enjoin her deployment to Iraq. District Judge Clay D. Land held that the motion was frivolous, and further found that “Plaintiff’s motion is being presented for the improper purpose of using the federal judiciary as a platform to espouse controversial political beliefs rather than as a legitimate forum for hearing legal claims.”

Taitz was sanctioned for her conduct in the case because, as Judge Land said:

[t]his pattern of conduct reveals that it will be difficult to get counsel’s attention [and so a] significant sanction is necessary to deter such conduct.

The PLI article was written in 2010, before Orly Taitz brought a federal lawsuit against Judge Land. I wonder what the article would say if it were written today!

Black letter law

The Wikipedia article on Precedent says:

gavelIn common law legal systems, a precedent or authority is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts.

Black letter law is the body of cases that attorneys and courts look to for established precedent. If you have ever read a birther legal decision that involves dismissal for lack of standing, you will almost invariably see Lujan v. Defenders of Wildlife cited. Once the body of birther lawsuits built, one began to see citations on standing to decided birther cases, notably Hollander v. McCain and Berg v. Obama. More recently we see extensive citations to Ankeny v. Governor of Indiana alongside US v. Wong on the question of whether Obama is a natural born citizen and Robinson v. Bowen on ripeness of election challenges.

The precedential value of birther lawsuits now extends beyond the backwaters of birtherism; they have become mainstream precedent in several areas of the law and now appear in the standard reference resources used by attorneys.

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Bad blood boils: Berg blasts birther

By on August 14, 2012 in Lawsuits, Orly Taitz, Philip Berg, Sanctions

It happened to me: I mistakenly believed that Philip J. Berg’s law license had been suspended and even wrote it into an article (now corrected). Apparently I wasn’t the only one fooled.

According to Phil Berg (letter to the Court embedded at the end of this article), defense counsel Kim  Schumann and Jeffrey Cunningham in the Liberi v. Taitz lawsuit bought the story from their client Orly Taitz too, and contacted the court and had Berg removed as counsel for the plaintiffs saying he had lost his license.

Berg states in his letter to the Court that this false statement was “repeatedly posted all over the Internet  and sent through RSS feeds to millions of websites and Individuals; and repeatedly mass Emailed….” (I learned about it from a mass email directly from Orly Taitz.)

Berg demands sanctions and costs for having to respond to the false allegation.

As best I understand the facts, a recommendation was made that Berg be suspended, but no decision has actually been made to do it.

Somebody give Berg a cookie

In a more bizarre part of the story, Berg alleges his computer system was attacked by Taitz, who attempted to put tracking software on it. He shows a screen shot from Norton Internet Security detecting an “intrusion attempt” while visiting her site: Norton rated the threat “high.” Google reports that the Taitz site has been clean for the past 90 days. Recall that the Taitz web site has had problems in the past with malicious software on it and the early days of her web site were accompanied by claims of being hacked, and PayPal contributions stolen, directed against Linda Ostella, another plaintiff in the Liberi suit.

Read all 167 legal documents in the case. What mess!

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Berg should be suspended

By on August 6, 2012 in Philip Berg, Sanctions

Conspiracy theorist1 and former Deputy Attorney General of Pennsylvania Philip J. Berg should be suspended from the practice of law in Pennsylvania for a year and a day, according to the hearing committee reviewing Berg’s  conduct reported on the Pennsylvania Supreme Court Disciplinary Board’s web site.

Berg’s suspension recommendation is not related to his many conspiracy lawsuits against George Bush and Barack Obama, but to the mishandling of another case (see disciplinary complaint). Berg previously received sanctions in the form of a $10,000 fine and 6 hours of ethics training in a separate case.

One could only hope that all courts and bar associations were equally diligent in policing their members.

1While maintaining that Barack Obama was born in Kenya, he did not subscribe to the "two citizen parent” theory of presidential eligibility, nor does he believe that there is anything awry with Obama’s social-security number.

Who benefits from the birther movement?

By on July 6, 2012 in Donald Trump, Joe Arpaio, Joseph Farah, Orly Taitz, Philip Berg, WorldNetDaily

I asked myself that question last night. Supposedly the birther movement started as a comment at the Free Republic web site, a rumor with no hint of why one should believe it. Some people believed it because they wanted to. Early birthers were some Hillary Clinton supporters, the so-called PUMAs. They got a big boost when Phil Berg filed his lawsuit and made it somehow “official.” Birtherism also got a boost from pro-Israel individuals and web sites, like Ron Polland and the Israel Insider, joined with some participation form white supremacists.

Initially birtherism seemed to be a genuine grassroots movement, primarily a creature of the blogosphere. Who benefited? I’d say that in 2008 no one did. Barack Obama won the election handily and became President, and Phil Berg got entangled in a messy lawsuit.

After the election birther bloggers continued to promote various rumors, but I think that it was the full-scale entry of WorldNetDaily in 2009 that was the tipping point that that turned birtherism mainstream, from a basement operation to an industrial polluter. The other major boost to birtherism was the entry of celebrity Donald Trump into the fray. However, President Obama effectively dealt with Trump, and made him a  national laughingstock when Obama released his the long-form birth certificate, and birther numbers were decimated. Clearly Donald Trump didn’t benefit from the birther movement.

The story didn’t end with Trump’s national disgrace. Birtherism came back. It was, again, bloggers, or more precisely YouTubers who who went ape-dip over proving the long form was a fraud, but YouTube is not really a broadcast medium. It was WorldNetDaily again who made birthers front page news with birther coverage 24-7. They developed their on stable of crank experts to analyze the layers of the PDF (in the 60′s there was a TV commercial that posed the question: “Is three enough? Is six too many? You never know with prunes.”). Today if you ask a birther for justification, they will point to Sheriff Arpaio’s Cold Case Posse which is largely a WorldNetDaily/Jerome Corsi production, with WND as writer, director and producer. Also WorldNetDaily’s own attorney Larry Klayman is big news at WND in the Florida Obama ballot challenge case. (I would not be a bit surprised to learn that WND is paying Klayman to represent Voeltz.)

Joseph Farah once said that he created the birther movement. Why do that? The obvious reason is that WND is creating demand for its products. It’s just like commercials that stigmatize dandruff or greasy hair in order to sell products to combat it. I believe the books, the billboards, the streaming videos and the daily run of articles are all not for the purposes of removing President Obama from office, or forestalling his reelection, but rather for the purpose of getting the hoard of conspiracy theorists and Obama-haters to visit WorldNetDaily’s web site and look at their ads.

You can see the WND emphasis in their coverage. Joe Arpaio, with close ties to WND, is featured frequently. Klayman gets prominent mention. Orly Taitz, on the other hand, is mentioned sparsely (and mostly in 2009) and when she is, she’s not the subject of the article, but merely the attorney listed for the case who isn’t quoted. Taitz is competition for those mouse clicks.

Birtherism only exists among people who wouldn’t vote for Obama anyway. The grassroots birther gets no benefit in terms of electoral outcome. It’s toxic to mainstream politicians. Joseph Farah and WorldNetDaily are the ones who really benefit from the birther movement.

Who’s the best of the birther attorneys?

By on June 1, 2012 in Gary Kreep, Leo Donofrio, Mario Apuzzo, Orly Taitz, Philip Berg, Polls

I ask this seriously. Attorneys who have argued for the birther cause obviously vary in ability, although they are all equal in results so far on this particular topic1. I’m interested in your opinion as to which of the attorneys has the best legal skills, writes the best briefs, frames their arguments most logically, understands the law and cites on-point authority most effectively. Candidates are listed alphabetically (since the poll was published, Mark Hatfield and Stephen Pidgeon have been added at the end). The poll closes at midnight on June 5, Eastern US time.

Who's the best of the birther attorneys?

  • Gary Kreep (33%, 24 Votes)
  • Orly Taitz (25%, 18 Votes)
  • Phil Berg (10%, 7 Votes)
  • Leo Donofrio (8%, 6 Votes)
  • Larry Klayman (8%, 6 Votes)
  • Mario Apuzzo (7%, 5 Votes)
  • Mark Hatfield (4%, 3 Votes)
  • Van Irion (3%, 2 Votes)
  • Stephen Pidgeon (2%, 1 Votes)

Total Voters: 72

Loading ... Loading ...

If you want to explain your vote, please leave a comment. I would just ask, since this is a serious poll, that commenters not be insulting to our contestants.

For reference, here are some sample briefs from each entry. The name hyperlinks on the left refer to stories on this web site.

1To my knowledge, Larry Klayman has yet to receive his first decision in a birther case.

Have the birthers figured out that Barack Obama was born in Hawaii?

By on May 5, 2012 in Birth Location, Birthers, Charles Kerchner, Mario Apuzzo, Orly Taitz, Philip Berg

When I started blogging about birthers, the birther story was that Barack Obama’s mother made a quick trip to Kenya, Obama was born there, she hastily returned to Hawaii and registered his birth.

This story circulated for quite some time before there was any reason to believe it  although eventually some reasons (albeit untrue ones) surfaced. The facts are:

  • Obama’s birth certificate says he was born in Honolulu
  • Hawaii didn’t register out-of-state births in 1961
  • Honolulu newspapers listed Obama’s birth in a section of the newspaper that carried information from the health department
  • Obama’s birth certificate shows he was born in a hospital and delivered by a doctor
  • The Hawaii Department of health has repeatedly affirmed that Obama was born in Hawaii and that his birth certificate is legitimate
  • Contemporary written accounts found in State Department files mention him being born in Hawaii
  • Obama’s African relatives say he was born in Hawaii and not in Kenya (Sayid Obama and Sarah Obama).
  • Contemporary statistical reports from the INS show that no American citizen flew from Kenya to the USA that entire year.

While we like to say that birthers are immune to evidence, there is so much evidence that it’s hard to ignore. Have things changed?

Look at birther lawsuits from 2008-9:

  • Berg v. Obama et al. – Attorney Berg alleges birth in Kenya, cites “grandmother tape.”
  • Kerchner v. Obama – Attorney Apuzzo alleges birth in Kenya, cites “grandmother tape.”
  • Keyes v. Obama – Attorney Taitz, alleges birth in Kenya, cites fake Kenyan birth certificate
  • Hollister v. Soetoro – Attorney Berg alleges birth in Kenya, cites “grandmother tape”
  • Rhodes v. MacDonald – Attorney Taitz alleges birth in Kenya

When birther lawsuits started, “born in Kenya” was a mainstay of many of the cases including those prosecuted by Taitz and Apuzzo. Today, while allegations of forged birth certificates abound, I am not seeing affirmative allegations that President Obama was actually born outside the country (Fair v. Obama is the only current case I know that maintains some argument that Obama was born in Kenya). Taitz in Farrar v. Obama in Georgia and Taitz v. Obama in Mississippi avoids mention of a foreign birth. Apuzzo in his recent case of Purpura v. Obama is quick to claim the birth certificate is a fake, but not to offer a claim that Obama is foreign born. New plaintiffs, like Jerry Collette also allege a forged birth certificate from President Obama but stop short of claiming he was born somewhere else and offer no evidence of a foreign birth.

There might be several explanations including that I haven’t read all the cases and what I report isn’t true. It could be that plaintiffs are trying to shift the burden of proof to the President to prove where he was born. Maybe they still believe Obama was born in Kenya, but that they don’t have any evidence of it. It could be that birthers think it’s easier for them to win on the two-parent theory than proving foreign birth.

But is  it possible that birthers have come around to the view that Obama is an American-born socialist, America-hating, fraud, cheat, liar and low-life rather than a foreign one?

PA: Berg ballot challenge rejected

By on March 21, 2012 in Ballot Challenges, Philip Berg

Three ballot challenges were filed in Pennsylvania, challenging Barack Obama’s position on the PA ballot, one from long-time anti-Obama litigant, Phil Berg. The Philadelphia Daily News reports them all dismissed including that of Berg this past Monday.

The court, in a two-page order, said ballot challenges can be based on the authenticity of signatures on nominating petitions, the affidavits of the people who circulated those petitions or the affidavits filed by candidates about their financial interests.

"The sole basis for the objection is [Berg's] contention that President Obama is not a ‘natural born citizen’ eligible for the Office of President of the United States under the United States Constitution," the ruling said, adding that Commonwealth Court does not have the jurisdiction to rule on Berg’s claims about Obama’s citizenship.

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