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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:

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.”

Birther vies for Congressional seat in Alabama

The Huffington Post reports that Dean Young, a runoff contender for the Republican nomination in Alabama’s 1st congressional district (where I grew up), went full birther in an interview with The Guardian newspaper, saying, after initial evasion, that he believes President Obama was born in Kenya.

Young also said that his political hero is Judge Roy Moore, writer for WorldNetDaily in 2009, and previously removed as Chief Justice of the Alabama Supreme Court for disobeying a federal court order to remove his “Ten Commandments” monument from the state judicial building (Moore was subsequently re-elected to the post). Young didn’t know who the US Treasury Secretary is, nor the Republican Whip in the House.

Young, who describes his supporters as “pitchfork people,” is trailing in the race.

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McInnish v. Chapman in brief

The lawsuit of McInnish v. Chapman is the birther’s best hope these days.

Sometimes it can take a while to locate exactly what you want. Here are the briefs before the Alabama Supreme Court in McInnish v. Chapman. The issue is whether Alabama Secretary of State Chapman has a duty to verify the eligibility of candidates for President of the United States and whether the Alabama “Jurisdiction-stripping statute” precludes the courts from hearing the case.

There is a long string of cases, going back to Donofrio v. Wells in 2008 where state courts have ruled that their secretaries of state do not have such a duty. Are the laws in Alabama different? Is the presence of birther sympathizers on the Alabama Supreme Court significant? We shall see.


1Spencer Connerat brought eligibility suits against Barack Obama in Florida.

2Jim Zeigler, songwriter and Mobile attorney, is a graduate of the Jones School of Law. The Alabama Republican Assembly is a chapter of the National Federation of Republican Assemblies, who style themselves as the “Republican wing of the Republican Party.”

Not worthy of belief

We’ve not seen many amicus briefs on the defense side in birther lawsuits, but the Alabama Democratic Party chose to submit one to the Alabama Supreme Court in the case of McInnish v. Chapman, now on appeal before that court. McInnish is being represented by noted birther attorney Larry Klayman. The ADP justifies its intervention because it asserts that it has the right to determine that qualifications of its nominees for office and that:

…the Alabama Democratic Party has an interest in ensuring that future Alabama Secretaries of State are not allowed to disqualify a party’s nominees based internet rumors and unfounded assertions regarding their qualifications.

The case is interesting because not only is WorldNetDaily writer and Terry Lakin sympathizer Judge Roy Moore now heading the court, but previously Alabama Supreme Court Justice Parker wrote, in an unpublished concurring opinion in a previous McInnish case:

McInnish has attached certain documentation to his mandamus petition, which, if presented to the appropriate forum as part of a proper evidentiary presentation, would raise serious questions about the authenticity of both the “short form” and the “long form” birth certificates of President Barack Hussein Obama that have been made public.]

It is perhaps these circumstances that led the Democrats to make sure that no stone was left unturned in defending against this appeal, already rejected by the Montgomery Circuit Court.

In addition to the usual arguments as to the inappropriateness of such a suit (with numerous citations and authorities) as that of McInnish, the ADP attacked the merits of the suit’s claims, calling the evidence proffered by McInnish “inadmissible and not worthy of belief” and adding:

A county sheriff from Arizona is not an “official source” of anything in Alabama.

Read the brief:

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McInnish wants oral argument before birther judge

Hugh McInnish’s lawsuit against Alabama Secretary of State Chapman to require her to verify eligibility of presidential candidates was dismissed with prejudice, a dismissal affirmed by a circuit court in Montgomery.

McInnish argues now before the Alabama Supreme Court that the District Court was in error and that Chapman has an “affirmative duty” to verify eligibility. Chapman said no. McInnish argues:

It would be paradoxical beyond measure if the real and grave question of the legitimacy of the de facto President, a question which lies at the very heart of our American Constitutional Government, were left unresolved for want of the simplest of documents, a birth certificate.

This of course ignores the fact that no less than two other secretaries of state (Arizona and Kansas) asked for and received certifications of the facts of Obama’s birth from Hawaii.

The case is now before the Alabama Supreme Court and it’s newly-elected birther Chief Justice Roy Moore. Plaintiffs’ attorneys are L. Dean Johnson of Huntsville and Larry Klayman.

Read the brief:

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