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Hanen to Taitz: Show me case law

I’ve said it before and I’ll say it again. I greatly appreciate it when local newspapers cover local birther events. This time it is the Brownsville Valley Morning Star’s coverage of the Taitz v. Johnson hearing yesterday by reporter Emma Perez-Treveño.

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The reporter’s posts on Facebook yesterday provided some information on how the hearing progressed. The longer version (paid) of the article provides a little more information including the following (via The Fogbow):

Regarding her request for a travel ban, Hanen said that everyone needs to keep in mind what is within the province of the court, and what is within the province of the United States Congress and the Executive Branch. Noting that while he might or not agree with a ban, she might have to show him where he would have authority to issue one, and referred to the well-known saying that, “judges are appointed, but they are not anointed.”

“If you want to go there, you are going to have to show me,” Hanen told Taitz. Taitz told Hanen that he has the right to issue a writ of mandamus to force Burwell to issue an order of quarantine. But Hanen pointed out that the law authorizes, but does not mandate that Burwell issue such orders.

“Why are we here if you find there is nothing you can do?” Taitz asked Hanen amid his observations. “We are here because you filed a lawsuit,” Hanen told her. “I’ll let you question the witness Dr. Taitz, not me,” he added.

Taitz told Hanen that he was refusing to consider the threat of injury to her. “Show me case law,” Hanen told her. “Does the case law provide that? What is the likelihood that it can happen? There is no certainty with Ebola or that you would be affected by it,” he continued. It was noted that the threat must be actual or imminent, not conjecture or hypothetical. “You’re going to have to show me that it’s not hypothetical,” Hanen told her.

Taitz herself did not testify at the hearing, but her “expert witness” Vera Dolan did. The government stated that “a cough is a symptom, not a diagnosis” and Taitz doesn’t know what caused it, and even if she did catch a respiratory infection from one of the immigrant children, that child could have caught it in the United States.

Taitz should go to law school and learn about this stuff.

I personally think that Judge Hanen is out of line holding this hearing at all, until after the question of standing has been settled. Without standing, he has no jurisdiction. But then, I haven’t gone to law school.

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Taitz transcribed, with typos

I noticed today that the transcript of the Taitz v. Johnson hearing on August 27 has been made available as part of the Jack Ryan collection at Scribd. As you may recall, the hearing was almost 4 and a half hours, and the transcript runs 170 pages.

The typo on page one was “Dr. Oraly Taitz.”

I trust that interested readers will view the text for themselves. I want to  start out with one quote from page 6 suggesting the effect Orly Taitz has on the legal system:

Let me finish.

— Judge Andrew S. Hanen

One area of interest is a question we have discussed here, exactly how Taitz knows she is treating illegal immigrants. The Court posed the question succinctly (page 27):

How do you – and you know these are alien children because of what? … Do they have some kind of form that’s filled out …

Taitz answers the second part first, saying the patients have a Denti-Cal card. Then she says:

I also take health history where they’re telling me that they just came in.

Taitz claims to have treated hundreds of these kids.

The majority of the transcript regards the questioning of three government witnesses regarding the processing and health screening of unaccompanied minors and family units. The Government, Taitz, and Judge Hanen all had an active role in that questioning.

The next important section is where Judge Hanen denies the motion for a temporary restraining order because he says that the Taitz complaint is not likely to prevail on the merits. Here is his carefully-worded statement:

And that’s – in doing that, I’m actually saying two things. One, questioning, Dr. Taitz, whether you have standing. And, two, while I’m doing that, I’m also questioning it in regards to what I can actually say is a fair reading of your complaint. And the reason I’m going to such lengths to explain that is I’m not positive that you might now, with a better drafted complaint – and I use the word better. I don’t mean that as a criticism. But as a more concise, directed complaint, you might be a good plaintiff or you might standing, but I don’t think you have standing based on what’s before the Court right now.

The Judge further stated that he did not need to hear from Taitz’ witnesses because nothing they could say would “cure your complaint.” Then, remarkably, Judge Hanen give hints (his words) on drafting the complaint. After suggesting she leave out the press reports and the political stuff, he said (having noted early on that Taitz had not alleged negligence):

The only way I see this going forward beyond that – this next stage is kind of what I was talking to Mr. Kisor earlier about, and that is, is if you’re going to have some expert support for your damages. Otherwise I don’t see you having standing even under an amended complaint.

Now, I know that – I actually gave this some thought before the hearing because I was trying to figure out – it’s kind of the cart before the horse. Which do you hear first, the standing issue or – let’s say I rule on standing. The first thing Mr. Hu is going to do – and he’s an old medical malpractice lawyer, and I know what he’s going to do. He’s going to file a motion for summary judgment, saying, hey, you’ve got no proof of this. And unless you have medical proof that somehow these acts caused injuries, you lose anyway.

So, I mean, I’m not necessarily being Carnac the prognosticator to predict that if you get by the motion to dismiss stage, you’re going to get turned around and hit with a motion for summary judgment. Quite frankly, a lot of times in these instances, I’ll just say I’m going to consider the motion to dismiss as a motion for summary judgment. And this is the kind of case I might do it in.

For an index to extended comments by an independent observer, Tomtech, see the end of my article “Unfunded mandate.”

Unfunded mandate

I think most Americans would agree that US Immigration Policy needs change and the law needs reforming. In the current state of gridlock in Congress, that is unlikely to happen, and the resulting fallout is in the news daily.

We see it here in the case of Taitz v. Johnson et al., where Orly Taitz has sued to stop the transportation and release of undocumented immigrant children pending court hearings on their eligibility to remain in the US as refugees. The problem, says a government witness in the Taitz hearing yesterday, is that the US Border Patrol has no jurisdiction outside of the United States, and cannot therefore stop undocumented immigrants from crossing the border and can only arrest them once they cross. A statute passed in the last days of the Bush Administration, the William Wilberforce Child Trafficking Protection Reauthorization Act of 2008, gives unaccompanied minor immigrants the right to a hearing, but the immigration courts are woefully underfunded, resulting in long delays. The legislation requires the government to place these children in the least restrictive setting, which in practice is release to a relative, or foster care.

Judge Andrew S. Hanen, judge of the Brownsville Division of the US District Court for the Southeastern District of Texas, doesn’t seem to like the transportation and and release of these children who are less likely than not to appear at their court hearing, and less likely than not to be allowed ultimately to stay in the US as refugees. Observer Tomtech, who was at yesterday’s hearing in the Taitz case, said that Judge Hanen appeared to be looking for a way to intervene, but concluded that nothing was likely to happen with Orly Taitz as attorney under the complaint she filed and therefore Judge Hanen denied Taitz’s request for a temporary restraining order and her admission to the Court Pro Hac Vice, removing the possibility for Orly to attempt to turn her case into a class action.

The 1:30 PM hearing lasted until almost 6 o’clock. A second hearing was scheduled for October 29th to rule on an injunction.  Judge Hanen has allowed Taitz to file an amended complaint by September 12, followed by the taking of depositions with the Court’s permission.

Read more:

Minute order on hearing:

Minute Entry for proceedings held before Judge Andrew S. Hanen. MOTION HEARING held on 8/27/2014. Appearances: O.Taitz, Atty/Plaintiff; D.Hu, AUSA; C.Kisor, AUSA;(Court Reporter: B.Barnard)(01:31-03:44/ 03:55-05:49). All parties present and ready to proceed. Discussion held as to pending motions. Oral argument held. Govts witness K. Oaks sworn in/ testified/ cross. Govts Exhibits #2,#3,#4 admitted. Defts Exhibit #1 admitted. Court Break. Court Resumes. All parties present. Govts Witness T.Brooks sworn in/ testified/ cross. Govts Witness A.Fierro sworn in/ testified/ cross. Govt concludes its presentation. O.Taitz addressed the Court. Court addressed the parties. Court DENIES the termporary restraining order. Plaintiff has until 09/12/14 to file amended complaint. Defendants have until 10/03/14 to respond either by answer or by motion to dismiss. Plaintiff may reply by 11/17/14. Injunction hearing will be held on 10/29/14 at 10:00 am. Initial Conference set for 10/28/14 is cancelled. Depositions to be taken after amended complaint and with Courts permission. Court adjourned., filed.(csustaeta, 1)

Did Taitz do a “no no”?

Here’s the documentation:

  1. Orly Taitz filed an August 25th motion in the Taitz v. Johnson et al. case to have 4 subpoenas served. In that motion, she wrote: “Four border patrol officers would like to testify at the August 27, 2014 hearing in this case.” She further wrote: “All of the above is true and correct to the best of my knowledge and informed consent (sic).”
  2. Judge Hanen granted the motion, noting: “It is represented to the Court that none of the individuals for whom Plaintiff is seeking subpoenas is objecting to the limitation found in Federal Rule of Civil Procedure 45(c)(1) (providing that a subpoena may command a non-party to attend a hearing only within 100 miles of where the person resides….).”
  3. One of the 4 named officers, Ronald Zermeno, begs to differ in an affidavit filed in Court today: “Prior to receiving this e-mail [from a Border Patrol union representative on August 25th with a copy of the subpoena attached] I had no interaction with Orly Taitz, whom I understand to be the plaintiff in the present case.” … “I live in Lake Elsinore, California which is more than 100 miles away…” “I never waived the application of Rule 45(c)(1), particularly since I have had no discussions or interactions with Dr. Taitz.” “It is my personal wish not to testify at the hearing….”

That seems to be pretty serious to me. Taitz had previously applied to be admitted Pro Hac Vice in the case, but this was denied at today’s hearing.

Has Orly been shopping?

OC Weekly has a new article suggesting Orly Taitz did just that, titled “Did Orly Taitz Shop for the Texas Judge Who Set Today’s Border-Crosser Hearing?” The idea isn’t new. I got an email August 22 from a reader pointing out the post at Orly’s site about her exchange with a Congressional assistant about the judge in Taitz v. Johnson, Andrew S. Hanen, having strong objections to the government’s handling of immigration issues. Judge Hanen, a 1978 graduate of Baylor University Law School, was appointed federal judge for the United States District Court for the Southeastern District of Texas by President George W. Bush, and joined the court in 2002, his first judgeship.

Judge Hanen became national news through a December 20, 2013 article in National Review that said, in part:

A federal judge in Texas has issued a searing indictment of the Obama administration’s immigration policy. He accuses the government of “completing the criminal mission” of human traffickers “who are violating the border security of the United States” and assisting a “criminal conspiracy in achieving its illegal goals.” The judge calls the administration’s behavior “dangerous and unconscionable” and says that “DHS should cease telling the citizens of the United States that it is enforcing our border security laws because it is clearly not. Even worse, it is helping those who violate these laws.”

That came from his order in the case of U.S. v. Nava-Martinez, published the week before the article.

Prompted by the August 22 email, I published my own article on the 26th briefly mentioning what Taitz said about Judge Hanen, but not alluding to the judge shopping angle.

In fact, the Southeastern District of Texas has no fewer than 14 serving judges (and 5 vacancies); however, the Brownsville Division has only one district judge, Judge Hanen. (It also has a senior judge and a magistrate judge.)  Taitz, who filed in the Brownsville Division could, I suppose, have effectively picked the judge by picking the court.

According to one eyewitness report, Judge Hanen pointedly asked Taitz at today’s hearing why she, a California attorney with witnesses residing in California, didn’t file her case in California.

If my time zone calculator (often awry) is correct, the hearing is scheduled to start in about 10 minutes. There should be a special RC Radio show tonight featuring observer Tomtech with details.

Popular Politics Internet Radio with RCRadio on BlogTalkRadio

Read more:

Order to show cause in Taitz v. Johnson

US District Judge Andrew S. Hanen issued an order on August 1 to the Department of Homeland Security (Health and Human Services, Barack Obama and the Brownsville Station of the Border Patrol) to show cause why emergency relief requested by plaintiff Orly Taitz should not be granted. Taitz decided to intervene on behalf of people who are afraid of disease from Guatemalan children who arrived in the US without documentation and turned themselves in at the border. Taitz wants quarantine and other emergency measures as detailed in her complaint.

Certain conservative web sites (for example, Conservative Patriot) are very excited about the progress of this case, Taitz v. Johnson, taking the order to show cause as a strong sign that the judge is on the verge of ruling in Taitz’ favor. The government has until August 11 to respond.

And the winner is for best reason for dismissing a lawsuit (opening sealed envelope): lack of standing.

I returned from Mexico myself last week, and so I know that the time when I had to show my passport to American Immigration officials was after I was already physically in the United States. I understand that these kids are not sneaking across the border, but entering the country and turning themselves in.

Update:

The Government responds