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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.

Read more:

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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Zullo irrelevant in Alabama

There are rumors swirling among the birthers that the Alabama Supreme Court will rule on the McInnish v. Chapman case this week. I don’t have any reason to think one way or the other about this prediction, but whatever the Court says, the affidavit of Mike Zullo, submitted to the court, is irrelevant. (On March 12, there was a Zullo Affidavit page on the Cold Case Posse Web site, but it was gone this morning. I don’t know if it was intentionally scrubbed or if it was lost in the recovery from a recent hacking incident.) The Zullo affidavit was submitted by the Appellants as part of a motion to strike an amicus brief from the Alabama Democratic Party because that brief contained items not part of the record of appeal. The Zullo affidavit, of course, is itself full of things not in the record of appeal.

The problem with predicting with certainty what the Alabama Supreme Court will do is that there are at least two birther sympathizers on the court, Chief Justice Roy Moore and Associate Justice Tom Parker. It’s possible there there will be a split decision and it is also possible for them to rule against McInnish, but insert birther-friendly language whining about having their hands tied by the law in an otherwise serious question about Obama. I have confidence in the ultimate victory of right over chaos and so I think the Alabama Supreme Court will look at the merits of the case and affirm the Montgomery Circuit Court’s ruling.

The sole questions to be decided by the Alabama Supreme Court are whether or not the “Jurisdiction Stripping Statute,” prevents the court from hearing this case,1  and if not whether or not the Secretary of State of Alabama had a duty in the last election to investigate President Obamas qualifications to appear on the ballot in Alabama.

The parties to the case and an amicus brief from the Alabama Democratic Party argue the issues upon which the court will rule. Several nut case amicus briefs were also submitted making wild claims about President Obama; they are not relevant to the question of law in this case. (See also my article: “Zullo’s irrelevant affidavit.”)

The first few sentences of the Zullo affidavit show that it is incompetent. Zullo swears that he has personal knowledge of things he’s heard from other people and that’s not how it works. Such testimony would not be allowed in court. One would think that anyone who was familiar with law enforcement would know what is testimony and what is not, but Zullo appears not understand this, nor apparently does he know what’s being decided in Alabama. But whatever opinion one has of the Zullo affidavit, it is irrelevant to this Alabama Supreme Court decision because it does not address the questions of law that the Court is deciding. The Alabama Democratic party references the Zullo affidavit in its response to the motion to strike thusly:

…the ADP assumes that it is unnecessary to further address whether this Court should consider the rambling screed that passes for an “affidavit” attached to the Appellants’ Motion to Strike. Virtually none of the information contained in the affidavit is admissible or credible…. The “affidavit” is inadmissible on its face and is composed of hearsay, speculation, and unsupported conclusions.

Read all of the briefs:

1The Jurisdiction Stripping Statute (Ala. Code 17-16-44) precludes Alabama courts from hearing cases regarding the “legality, conduct or results of any election except so far as authority to do so [is] specially and specifically enumerated and set down by statute.”

McInnish decision not overdue

Despite what seems a long delay, the Alabama Supreme Court decision in McInnish v. Chapman is not overdue.

The original appellate brief in the case was filed on March 26, 2013, or 307 days ago. According to Table VI of the “Supreme Court of Alabama Annual Statistics For the Fiscal Year Ending September 30, 2013,” the average pending days1 for a case requiring an original decision2 was 315. Alabama Supreme Court opinions are announced each Friday at the Alabama Judicial web site.

This particular case has some level of complication in that a number of amicus briefs were filed. See my article, “McInnish v. Chapman in brief,” for reference to those.

The appellant’s attorney is Larry Klayman.

1According to the Statistical Report:

The number of days pending in this Court includes the time necessary for preparation of the record of appeal and the filing of briefs. These events occur before the assignment of the case to a Justice for preparation and circulation of a proposed opinion. The number of days pending also includes the time expended while awaiting special concurrences or dissents of other Justices after a majority of the Court has concurred in the release of a proposed opinion.

2An original decision is one on a case not previously heard by an appellate court.

Court watch

Nothing happening here. Move along.

Alabama Supreme Court decisions were announced this past Friday and the McInnish case was not among them, and while we’re on the “Dog bites man” theme, Orly Taitz fizzled in Hawaii.

I read the order from Judge Mollway saying that Taitz had on January 9 withdrawn her request for an emergency stay of the cremation of Loretta Fuddy, which as far as I know was never intended. In any case, the interment of Fuddy is long passed and the business between Taitz and The Hawaiian Memorial Park Mortuary is over. Since the emergency stay was all there was in the original filing, Judge Mollway dismissed it, noting that if Taitz wants to file something else with different defendants, she will have to file a new case (and this means another $400 filing fee). Taitz said that she did not sleep for 48 hours, and this rebuff of her 135 pages and 30 exhibits must have been disheartening, but it appears that the Federal District Court in Hawaii is not going to let Taitz file lawsuits and tie them to different lawsuits under the same case number events pass her by. The transmogrified lawsuit is directed at the Inspector General of the US Postal Service, where again Taitz wants to be able to present her arguments and zibits to a grand jury, and of course Taitz is already suing the Postal Service

There is of course another reason why any court action regarding the disposition of Loretta Fuddy’s body is moot (at least according to the birthers) because she is still alive and in the federal witness protection program according to commenters at the Taitz site.

Taitz had another reading comprehension failure. Here’s the headline from her web site [link to Taitz web site] regarding the Taitz v. Colvin FOIA lawsuit.

Press release: after Judge Hollander denies motion for summary judgment by the SSA, the feds are replacing the attorney on the case

Well it is true that the government did switch attorneys, but here’s the misunderstanding from the order she linked to:

1. Defendant’s Motion to Dismiss (ECF 7) is GRANTED, without prejudice and with leave to amend;

2. Plaintiff’s Motion for Summary Judgment (ECF 9) is DENIED, without prejudice;

3. Plaintiff shall have 21 days from the docketing of this Order to file a second amended complaint.

It wasn’t the SSA who moved for summary judgment and lost, but Taitz. The government moved for a dismissal of the amended complaint, which was granted. Maybe she should get more sleep.

Worshiping the pile

A few miles from my house there is a hill. It’s a rather large hill, distinctively rising above the trees and visible for quite some distance. It’s a special hill in that unlike other hills around it, it just recently appeared. One might have thought some magic involved in its appearance, and perhaps some primitive people seeing the phenomenon of its growth day by day might imagine the action of the divine. It truth it’s a landfill and it’s full of garbage.

imageI offer the landfill as an analogy to birther collections of proofs and right wing collections of scandals about Obama. An example of the latter appeared just yesterday here in comments. Debunking Obama scandals is outside of my field of study, but a quick run through showed many of them were presented falsely or were based on biased opinion. The size of the list is supposed to overwhelm the one to whom it is presented, and its length is supposed to take the place of substantive argument. I suppose the idea is, “my list is so long, how could you possibly respond?”

Missing and Sealed Records

One of the classic lists from birthers is the missing and sealed records list, a collection of documents that aren’t missing, documents that are protected by law from disclosure and documents that in all likelihood never existed. No less than took on one of these lists last year concluding:

Many records that presidential candidates don’t ordinarily release do remain confidential, but they are not “sealed” by a court. The 16 claims in a widely distributed graphic are mostly false or distorted.

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