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Montgomery demands ACLU off the Melendres case

I did not see this one coming.

Dennis Montgomery has renewed his motion to intervene in the case of Melendres v. Arpaio and for the pro hac vice admission of his attorney Jonathan Mosley in a plea for reconsideration before judge G. Murray Snow. Nothing interesting there, but an attachment to the motion, and the “new information” Montgomery represents as being vital to the reconsideration, contains a memorandum from Larry Klayman to the ACLU demanding that they withdraw as counsel for the Plaintiffs.

The grounds for this demand is “conflict of interest.” Montgomery says that he consulted with the ACLU in 2013 and 2014 about his “legal circumstances.” The ACLU, of course, is not representing Montgomery now, and it seems hard to understand what the conflict of interest is, except that Montgomery claims to have shared confidential information with the ACLU. But, but, but, Montgomery is not even a party to the lawsuit, although he is trying to become one.

Another part of the demand for withdrawal by the ACLU is the curious claim that the ACLU “repeatedly” threatened prosecution of Montgomery. I am struggling here what possible justification exists for this claim. Nothing in the record suggests that the Montgomery did anything against Melendres or the ACLU. What charges could the possibly assert against Montgomery?

I guess this is just another delaying tactic. Heck, it might even be

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In a final stroke of irony, Klayman concludes the letter to the ACLU:

In my entire career as an attorney, as founder of the legal ethics groups Judicial Watch and Freedom Watch, I have never seen a violation of professional ethics and the fiduciary duty between attorney and client of this magnitude and scope.

Says the man who has repeatedly sued Judicial Watch.

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The ephemeral nature of the birther movement

It should be obvious that I’m largely out of things to blog about. I mean, look at the attention I’m giving Cody Judy the kind of coverage that would have been reserved for someone like Orly Taitz just a few years ago. About the only thing going on is the Arpaio trial(s) in Arizona that give a little hope for some birther content.

If the 612 broken hyperlinks (still!) on this web site are any indication, and I think they are, a great deal of Internet birther content now exists only on the Wayback Machine. Birther Report is still going strong, but that’s about it. Orly Taitz hardly mentions birther stuff any more. I can’t remember when the last birther lawsuit was filed. Come my retirement in 2017, we’ll see if there is anything left.

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Arpaio: “because it just is!”

So one of the complex legal concepts that I’ve learned while blogging about these Obama eligibility lawsuits is that when someone moves for the court to do something, the other side gets to respond and then the first folks get to reply. It’s an ABA thing.

Here we have the Defense motion in Melendres v. Arpaio demanding Judge Snow disqualify himself, to which the Plaintiffs objected, and now the Defense (Arpaio) replies. You can read it from the most excellent Jack Ryan collection at Scribd.

When I wrote about Arpaio’s initial motion appealing to 28 USC § 144, I said they had made a mistake. Apparently I was right, since it is thrown under the bus in the reply:

Even presuming that a motion brought pursuant to 28 U.S.C. § 144 may be precluded, the Court must still consider the motion under 28 U.S.C. § 455. Adesanya v. W. Am. Bank, 19 F.3d 25 (9th Cir. 1994). Regardless of § 144, then, Defendants’ Motion must be considered under § 455.

What is troubling about the response is an apparent lie:

First, even Plaintiffs acknowledge that both Arpaio and Sheridan testified that the Montgomery investigation stopped long before the April 2015 OSC hearing after they deemed Montgomery to not be credible.

Arpaio himself testified that they were “finishing up” the investigation at the OSC hearing in April.

Finally, the Defense never explains how Judge Snow’s wife would ever be a witness in the contempt of court process. She might be a witness in some sort of a recusal hearing, but that would be by another judge, and hence no bias.

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Frivolous

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

I was very much offended by a web site I visited listing what it called the “Top Ten Frivolous Lawsuits.”1 My objection to that listing is that some of the plaintiffs listed had won, and almost by definition, a case that wins is not frivolous. Frivolous is not the same thing as silly, or unpopular. The Wikipedia defines “frivolous litigation” as:

…the practice of starting or carrying on lawsuits that, due to their lack of legal merit, have little to no chance of being won. The term does not include cases that may be lost due to other matters not related to legal merit. While colloquially, a person may term a lawsuit to be frivolous if he or she personally finds a claim to be absurd, in legal usage “frivolous litigation” consists of a claim or defense that is presented where the party (or the party’s legal counsel) had reason to know that the claim or defense was manifestly insufficient or futile. The fact that a claim is lost does not imply that it was frivolous.

Dismissal of a lawsuit is one thing that suggests that the suit is frivolous. In the case of recent attention on this blog, Judy v. Obama, both the District Court and the Court of Appeals described the suit as “frivolous.” Judy v. Obama was dismissed, as were the vast majority of birther eligibility lawsuits, for failure to state a claim [that the court can redress], because as a matter of law, the case could not be prosecuted.

In the Tisdale case, for example, the Plaintiff based his lawsuit on the contention that Obama was ineligible because his father was a non-citizen. The court dismissed the case because the legal theory underpinning the suit (that non-citizen fathers disqualify presidents) is false; thereby preventing the court from granting any relief. The court did not call the case “frivolous” but I would.

Phil Berg lost his eligibility lawsuits against Obama because he lacked standing. His claimed injury was not individual. Berg was a lawyer and should have known better. Judge Sloviter, writing for the Third Circuit Court of Appeals in the case of Berg v. Obama, wrote: “Berg’s final claim that the District Court violated his due process rights by dismissing his case is equally frivolous.”

Continue Reading →

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New lawsuit alleges Arpaio retaliation against birther critic’s family

photo of Joe Arpaio with dogs in front of cell doorYet another federal lawsuit is being filed against embattled Arizona Sheriff Joe Arpaio, alleging abuse of process and malicious prosecution. This suit is brought by Austin Flake, son of Senator Jeff Flake, and his wife Logan. The Flakes state in their complaint:

11. Previous to June 2014, Senator Flake had publicly voiced opinions critical of the so-called “birther” movement, of which Defendant Arpaio is a prominent member. Arpaio conducted a bogus six-month investigation into the birthplace of the President of the United States, which culminated in him publicly announcing that “probable cause exist[ed]” to accuse the President of the United States of forgery and fraud.1

then:

13. In summer and fall of 2014, Defendant Arpaio and the MCSO illegally investigated and pressed felony charges against Plaintiffs without probable cause, and in violation of their constitutional rights.

The Flakes allege that this prosecution was intended, in part, to damage Senator Flake, who was running for re-election. The allegations are quite serious, including conspiracy to lie to a grand jury, and providing misinformation to the prosecution. And of course, Sheriff Joe held a press conference.

The lawsuit has been threatened for some time; for example, see this article from last February in the Phoenix New Times. Not all public reaction to the Flakes has been sympathetic, especially because the original issue involved the deaths of some animals.

The charges against the Flakes were eventually dropped.

Read more:


1Arpaio did not actually accuse the President personally of forgery, saying only that the President’s birth certificate was forged by someone unnamed.

News: Supreme Court rejects Judy plea

In a tersely-worded decision earlier today, the United States Supreme Court announced its decision to deny a a request by appellant Cody Robert Judy to file case of Judy v. Obama, in forma pauperis (without paying the normal fees). The case is an appeal from the  Tenth Circuit Court of Appeals. In order to continue the appeal, Mr. Judy will have to pay the filing fee and comply with court rules.

Previously the Utah District Court wrote:

After carefully reviewing Plaintiff’s Complaint, the Court finds that Plaintiff’s suit is frivolous. Plaintiff’s claims lack an arguable basis in law or fact and Plaintiff’s factual allegations border on the irrational and wholly incredible.

The Tenth Circuit concurred:

For substantially the same reasons stated by the district court, we also conclude that the complaint was frivolous and failed to state a claim for relief under § 1915(e)(2).

I found a copy of Judy’s Supreme Court appeal but it is too tangled to understand, so I cannot in all good conscience say that it is frivolous. Here’s a more or less randomly-selected sentence:

In the absence of enforcement of the law of course a precedent is shaped and formed but this one seeking to altar the constitution by attrition uses a scholastic bully format irrespective of the People who elect Leaders to Congress, and have already denied eight times the mixing of terms in a dilution of the national security interest of natural born Citizen into Citizen.

Once the filing fee is paid, I guess somebody has to read the whole thing for a court to rule. Seems like cruel and unusual punishment to me.

Mr. Judy and I had a bet on the result (terms follow). Technically I won the bet due to the way it was worded, but I don’t think the outcome today was what either of us intended. So, unless Mr. Judy objects, we will postpone judging the bet until the Supreme Court decides whether or not to accept the case.

Here’s the bet: I will contribute $100 to your 2016 presidential campaign (must accept PayPal) if the Supreme Court grants you cert this month. And if you don’t get cert, you must agree to come on this blog and say; “I lost the bet.” OK?

Mr. Judy is trying to raise the money to pursue the appeal: