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Obama attorney answers birther suit at SCOTUS

I believe the anonymous writer at Gerbil Report™ is correct in saying that this is the first time President Obama has responded to a birther petition at the Supreme Court. For whatever reason, attorney Mark Herron, who represented the President in the Florida case of Voeltz v. Obama, has filed a brief in opposition to the petition for a writ of mandamus by Voeltz. Florida Secretary of State Kenneth W. Detzner filed a waiver of his right to respond.

This case, sometimes called Voeltz III (as it is the third one by Voeltz in Florida), was famously dismissed for lack of jurisdiction by judge Kevin J. Carroll, writing:

This Court notes that President Obama lives in the White House. He flies on Air Force One. He has appeared before Congress, delivered State of the Union addresses, and meets with Congressional leaders on a regular basis. He has appointed countless ambassadors to represent the interests of the United States throughout the world. President Obama’s recent appointment of The Honorable Mark Walker, formerly a member of this Court, has been confirmed by the United States Senate. Judge Walker has been worn in as a United States District Court Judge and currently works at the Federal Courthouse down the Street. The Electoral College has recently done its work and elected Mr. Obama to be President once again. As this matter has come before the Court at this time of the year it seems only appropriate to paraphrase the ruling rendered by the fictional Judge Henry X. Harper from New York in open court in the classic holiday film Miracle on 34th St. “Since the United States Government declares this man to be President, this Court will not dispute it. Case dismissed.”

The Florida Supreme Court refused to hear an appeal in this case, citing lack of jurisdiction. (Here, Florida law prevents their Supreme Court from hearing an appeal of a per curiam [in the name of the court] affirming appellate decision without opinion.)

The specific relief being requested by Voeltz is:

Petitioner respectfully requests that this Court issue a writ of mandamus compelling the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida to hear to the case on the merits and issue a declaratory judgment as to the eligibility of Barack Obama to serve as President of the United States.

Attorney Mark Herron responds in his brief in opposition to the petition by arguing that state courts do not have jurisdiction to adjudicate presidential eligibility, that this responsibility is “…committed under the Constitution to the electors and to Congress…” and further that an extraordinary measure such as a writ of mandamus is not justified. A writ of mandamus is an order directing someone to so something that they have an obligation to do, and is issued when no other remedy is available. Herron argues that there is no obligation whatever for the Florida court to vacate its order and try the case on the merits rather than dismissing it.

Voeltz is being represented by birther attorney Larry Klayman. Mark Herron had previously moved for sanctions against Klayman in this case.

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Klayman files appeal of obscure ruling on Alabama law to the US Supreme Court

Late as usual

In a move that left Obots open-mouthed with incomprehension, birther attorney Larry Klayman (who has never been convicted of criminal failure to pay child support), started the process of appealing his loss in McInnish v. Chapman to the US Supreme Court on June 19, reports the Supreme Court docket. Klayman moved for more time to submit his appeal. Perhaps he is hoping to get some momentum by a favorable ruling.

The McInnish case dealt with an obscure provision of Alabama law, called the “jurisdiction stripping statute,” that prevents Alabama courts from getting involved in the conduct of elections. McInnish wanted to force the Alabama Secretary of State to investigate the eligibility of presidential candidates as a duty of office. Klayman lost the case before the Alabama Supreme Court last March on a 7-2 vote, Chief Justice Roy Moore and Tom Parker dissenting.

Klayman’s timing of this request for an extension is odd. An appeal must be filed within 60 days of the judgment (28 U.S. Code § 2101) and Klayman’s motion for more time (which the statute permits) was filed precisely on the 60th day; however, the rules of the Supreme Court require that the request for an extension be filed 10 days before the deadline. Supreme Court Rule 13 (5) states:

For good cause, a Justice may extend the time to file a petition for a writ of certiorari for a period not exceeding 60 days. An application to extend the time to file shall set out the basis for jurisdiction in this Court, identify the judgment sought to be reviewed, include a copy of the opinion and any order respecting rehearing, and set out specific reasons why an extension of time is justified. The application must be filed with the Clerk at least 10 days before the date the petition is due, except in extraordinary circumstances. The application must clearly identify each party for whom an extension is being sought, as any extension that might be granted would apply solely to the party or parties named in the application. For the time and manner of presenting the application, see Rules 21, 22, 30, and 33.2. An application to extend the time to file a petition for a writ of certiorari is not favored.

The request for an extension was not even docketed until June 25, long after the deadline. I don’t even know if it is possible for a Justice to grant an extension after the deadline has expired, and if that’s true then the extension must have been granted on the 19th, or not at all; the Supreme Court docket indicates no extension granted. It is hard to fathom a reason for this case to be considered  having "extraordinary circumstances." Klayman could have filed the request for an extension any time he wanted to. There’s certainly no new evidence in the interpretation of the Alabama jurisdiction stripping statute. The election, which is the subject of the case, is long over, making anything to do with that particular election moot.

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What Ruffley told Taitz about Klayman headed for a jury

Orly Taitz repeated what Judicial Watch office administrator Constance Ruffley said about Larry Klayman. Ruffley reportedly said that Klayman had been convicted of criminal failure to pay child support, when in fact he was only indicted for that offense.

Klayman claimed defamation and sued Judicial Watch for damages. Now a jury will hear the defamation per se portion of the case and decide. Read more at Courthouse News Service.

This is the way March ends

not with a bang but a whimper

Weather lore says that March comes in like a like a lion and goes out like a lamb. Applied to birtherism, March came in with bluster and high expectations of the great denouement of the “O-bots,” the shattering of their universe. Here on the last day of March, let’s take stock of the month:

  • Orly Taitz endorsed by Pastor Manning, only to find herself joined at the hip with his homophobic street sign
  • Tea Party Nation repudiates Taitz claim of endorsement
  • CalGuns repudiates Taitz claim of endorsement
  • Michael Shrimpton video gets no traction
  • FBI evidence of theft by threat, witness tampering and felony obstruction of justice by Maricopa County Sheriff’s Office reported
  • Former Cold Case Posse member Brian Reilly describes unprofessionalism within the Cold Case Posse
  • Congressmen Labrador and Huelskamp express disinterest in Sheriff Joe investigation
  • Doug Vogt’s mysterious “friendly judge” does not come through
  • McInnish appeal denied by Alabama Supreme Court (7 – 2)
  • Larry Klayman faces Bar disciplinary action in DC
  • Birther Walter Fitzpatrick III jailed
  • Birther Lucas Daniel Smith reportedly jailed in the Dominican Republic
  • More delays in Taitz’ Mississippi lawsuit, strengthening Defense case for sanctions
  • Supreme Court declines to hear Robert Laity appeal.
  • Birther Report doesn’t go live with its new super secure server
  • No announcement from the Maricopa County Sheriff’s office about an Obama investigation
  • No press conference, charges, investigative reports, or anything else of substance from Mike Zullo and the Cold Case Posse
  • Dow Jones Industrial Average up 136 points for the month of March
  • Universe pretty much the same

Check out my 2009 poem, “We are the Birthers.”

Now, let’s play the birther theme song!

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Klayman: off to the Supreme Court

why?

According to a new article at WorldNetDaily, attorney Larry Klayman says that he will likely appeal his recent 7-2 loss before the all-Republican Supreme Court of Alabama to the United States Supreme Court. Klayman wrote:

imageOver the last five years, many court challenges have been filed concerning Obama’s eligibility. Indeed, I have filed three in Florida and one in Alabama. In every instance, and I am not just referencing the cases that I filed, these court challenges have been dismissed. (They are currently on appeal.) But what is more troubling than the dismissals is that the judges presiding over these cases have generally refused to even explain the reasons for their dismissals. Apparently, they are so afraid of taking on this issue that they don’t want to go on record for their actions. That is because these dismissals are not legally justified.

That is not true; for example, the Farrar v. Obama case in Georgia was not dismissed, but rather had a hearing with witnesses. While I have not reviewed every case, a great many have detailed explanations of why they were dismissed. I remember one of the first cases, Berg v. Obama et al., accompanied by a lengthy and highly-educational opinion by judge Surrick and I have listed  almost a dozen cases where judges addressed the merits of to the argument that US Presidents most have citizen parents.

It is ironic that Klayman holds up for praise Judge Royce C. Lamberth, saying:

Few other judges in this nation have the courage of Chief Justice Moore. The Honorable Royce C. Lamberth, who held the Clintons to account in the late ’90s and early 2000s and ruled that Bill Clinton had committed a crime1….

Lamberth dismissed several birther cases (and explained why!):

Klayman wrote:

The imposter in the White House must be held accountable, and he should indeed be told to get up off his knees and come out with his hands up.

Klayman seems to be confusing civil and criminal cases.


1Lamberth ruled that Clinton had “committed a criminal violation” of the Privacy Act when he released letters from Kathleen Willey. (CNN Article)

McInnish Appeal denied in Alabama

mighty Klayman has struck out

Today the Alabama Supreme Court issued its 7-2 decision in the case of McInnish v. Chapman, and the decision goes against plaintiffs Hugh Chapman and Virgil Goode, who were trying to force the Alabama Secretary of State to verify Obama’s eligibility to be on the 2102 Alabama presidential ballot. Larry Klayman was the attorney for the Appellants.

The Court’s Majority issued no written opinion, only affirming the lower court decision dismissing the case.

  • Majority decision to affirm dismissal, no opinion (Stuart, Murdock, Shaw, Main, Wise)
  • Concurring opinion (Bolin)
  • Concurring opinion (Bryan)
  • Dissenting Opinion (Moore)
  • Dissenting Opinion (Parker)

Chief Justice Roy Moore issued the major dissenting opinion, and Justice Bolin issued a concurring opinion specifically addressed to Moore’s dissent. Chief Justice Moore states that under Alabama Law, Secretary of State Chapman has an affirmative duty to verify candidate eligibility. Justice Bolin agrees that candidate eligibility is an important public interest, but that Alabama statutes do not place a duty on the Secretary of State to verify it. Further Justice Bolin points out that Secretary of State Chapman is a nonjudicial officer with no subpoena power or investigative authority. Justice Bolin concludes:

Under our current structure, however, the burden of investigating a presidential candidate’s qualifications is best left – unfortunately or not – to the candidate’s political party….

As I understand his position, Justice Bolin is saying that a state statute requiring verification of eligibility for candidates for president is a desirable thing, given his belief that the federal courts are prohibited from adjudicating eligibility because of the Political Question Doctrine.

Justice Bryan also issued a concurring opinion, briefly stating his belief that legislation could be passed to allow verification of candidate eligibility.

Chief Justice Moore’s dissenting opinion goes to the details of the Alabama statutes involved and at a brief reading has no particular high points. It is an analysis on the merits.

Chief Justice Parker also dissents from the majority opinion, supporting the analysis of Chief Justice Moore, but disagreeing on the Secretary of State’s affirmative duty to investigate candidate eligibility.

A text search of all of the opinions affirms my opinion that the Affidavit of Mike Zullo is irrelevant to the decision, being cited not once, except that the dissenting opinion from Justice Parker made reference to materials submitted previously to the Secretary of State that were sufficient, in his mind, to warrant investigation. Those materials reference results of Zullo’s investigation and contain a brief statement from him.

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