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Thomas Lamb 15 minutes of fame next week

Thomas A. Lamb of Alaska sued Barack Obama and Mitt Romney in 2012 to get disclosure of records, student loan records form Obama and tax returns from Romney, as reported by the Joe Miller “Restoring Liberty” blog. Lamb cited a 2010 Alaska case where the personnel records of a Senate Candidate were ordered released by a Fairbanks judge and a case in another state about divorce records for Jack Ryan. This lawsuit was totally off my radar, although NBC had an article.

Lamb has an appeal before the Alaska Supreme Court and the birther calendar had his oral argument listed as for today; however, it appears that his 15-minute appearance is scheduled at 9:00 AM on January 15. No attorneys are listed for the case of Thomas A. Lamb v Barack Obama (leading me to assume that appellee Obama didn’t respond and indeed the Court indicated that it hadn’t received a timely reply form him).

Lamb’s case against Obama and Romney demands a range of documents from  candidates Obama and Romney, based on his claimed right to be an informed voter. The original case was filed before the 2012 election. An amended complaint was filed after the election, dropping Romney and adding Obama’s birth records. The case was dismissed for the usual lack of standing, lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. And there was some kind of problem with service.  Lamb petitioned for review of the case to the Alaska Supreme Court and that petition for review was denied as moot a year ago (January 4, 2013). Indeed, one can see how that after the election, Lamb’s need to be an informed voter evaporated and his remedy (getting the records) no longer applies. Lamb failed to reply to the Alaska Supreme Courts order that he explain why it shouldn’t be denied as moot, and so it was. The present appeal (S-15155)  is of the same original case.

There is some peculiar language in the amended complaint, none more so than:

Article 1 to the federal constitution is controlling the Plaintiff’s right to redress Congress through a Congressional inquiry and the use of this court to ascertain the facts herein.

Article I, of course, doesn’t give anyone the right to redress Congress, but rather the right to petition the government, and there is nothing in the Constitution requiring the government to respond, nor are the courts a legitimate vehicle for a private citizen to obtain an investigation.

I present this catalog of birther stuff Lamb bases his doubts on (and I am omitting many things that are irrelevant):

  • Sally Jacobs at the Boston Globe said that the Obamas spoke of putting Barack up for adoption (not sure why that’s relevant).
  • Indonesian school registration
  • Only Indonesian citizens could attend school (not true)
  • Obama said he was an “Indonesian prince”
  • Allen Hulton (the postman) said Obama was a foreign student.
  • There is a claim that Obama’s birth certificate is forged
  • Hawaiian law regarding adoptions, and sealing of the original records.

If I had to list the reasons why, from where I set as a non-lawyer, why this appeal is

DOOMED!

  1. It is well-established in law that the constitutional right to petition the government does not require that the government accede to the petition.
  2. There is no general constitutional “right to know.”
  3. The Full Faith and Credit clause does not grant someone the right to obtain a protected record from another state, even if a similar record is available in their own state. As far as I can determine birth records are only open in Alaska after 100 years anyway. Education records are closed everywhere by Federal law.
  4. Contrary to Lamb’s unsourced assertion, Indonesian law does not restrict school attendance to Indonesian citizens.
  5. Lamb never alleged sufficient facts to infer that Barack Obama was adopted by his step-father, or was ever an Indonesian citizen (and Obama denied this in another case).

If I had to sum up the complaint, Lamb is saying that he has a right not to be confused by the birther controversy. He has my sympathy for being confused, but not my support in the way he attempts to resolve it.

Read more:


1Ah, the dreaded empty chair™ again.

Klayman to take another run at Esquire appeal

Joseph Farah (et al.) sued Esquire Magazine over a spoof article Esquire published online that Farah claims destroyed the salability of the book, Where’s the Birth Certificate? by Jerome Corsi. Farah lost when his case was dismissed under the DC Anti-SLAPP law  (and for other reasons). You can read about the case from my various articles on it.

The real issue in the appeal was not whether Esquire Magazine defamed Farah, but whether the case should have been dismissed rather than tried. Plaintiffs have decided to try again, requesting that the case be heard by the full circuit court, en banc.

A hearing of a case by the full circuit is discretionary (requiring a majority of the judges not recused in favor), not a right, and in the District of Columbia, certain principles apply. Hoping for a better result is not grounds for a hearing by the full circuit. Here are the sorts of things the DC Circuit considers en banc:

  1. resolving an apparent conflict  in the prior decisions of panels of the court;
  2. rejecting a prior statement of law which, although arguably dictum, warrants express rejection to avoid future confusion;
  3. overruling an old or obsolete decision which, although still technically valid as precedent, has plainly been rendered obsolete by subsequent legislation or other developments; and
  4. overruling a more recent precedent which, due to an intervening Supreme Court decision, or the combined weight of authority from other circuits, a panel  is convinced is clearly an incorrect statement of current law.

Klayman’s argument is that this case is of “exceptional importance” dealing as it does with  limits on the protection of satirical speech. He does not make any argument that existing precedent is insufficient, conflicting or outdated. Klayman’s essential argument is that the decision was wrong for various reasons, already rejected by the Circuit Court panel who denied his appeal.

I won’t get into the Lanham Act angle—interested readers can read the briefs. What I do want to mention is that part of an Anti-SLAPP dismissal involves an assessment of the likelihood that a plaintiff could prevail at trial, and I certainly consider it doubtful that Farah and Corsi could show that they were actually damaged by the Esquire article (beyond its satirical purpose that they be laughed at). Klayman argues that the Esquire article is libel per se (and damages need not be proven) because it accuses Farah and Corsi of a crime, citing Raboya v. Shrybman & Associates1; however, Klayman never explains exactly what the crime is when someone writes a book with “factual inaccuracies” (the actual words that Esquire satirically puts into Farah’s mouth). If “commercially defrauding the American Public” means putting “factual inaccuracies” in a book, then this is a crime that Farah and Corsi are arguably guilty of many times, along with a host of other authors.

From my layman’s viewpoint, the issues are clear cut and the DC Circuit will not endorse a hearing en banc. Sometimes there is a published written order with explanation when petitions for hearing en banc are decided.

The word "Doomed " in dripping font


1This is a curious case to cite in that the defendant successfully had the libel per se count dismissed. The Court took a strict view of what constituted a crime. If anything, this decision seems to hurt Klayman’s case.

Taitz v. Obama appeal complete

Birther attorney Orly Taitz moved for reconsideration of her case before the 4th Appellation District Division 3 of the State of California, appealing her loss in Taitz v. Obama. On November 18, 2013, the court denied rehearing of the case. Today the case was marked “complete” in the court docket. Here is a graphic depiction of results to date in Taitz lawsuits against Obama.

Photo of old tombstones

Farah v. Esquire appeal unsuccessful

The Esquire article certainly didn’t fool me, any more than Klayman’s legal briefs fooled the judge.

— Dr. Conspiracy
— Comment at WorldNetDaily

imageIn a satirical article, Esquire Magazine made a birther joke, that since Obama released his birth certificate, Jerome Corsi’s ill-titled book Where’s the Birth Certificate were being recalled. Joseph Farah, perhaps seeing a publicity opportunity sued. He lost under a statute designed to prevent meritless lawsuits from chilling public comment, the court ruling that Farah had no reasonable chance of convincing a jury. Farah’s attorney was the well-known litigator, Larry Klayman.

Farah appealed the decision, and lost. WorldNetDaily announced the loss in an article a few minutes ago.

“It’s dishonest,” said WND’s attorney, Larry Klayman, of the decision. “This is an issue for the jury to decide. They took it away from the jury, and that’s inappropriate.”

Klayman blames the loss on the political ambitions of the judges who ruled against him.

“These judges know that if they make an unpopular decision against the establishment that they will never be able to be promoted to the Supreme Court or any other position they might get through political patronage,” he said.

Well, the purpose of the DC anti-SLAPP (strategic lawsuit against public participation)  statute is to prevent the threat of litigation and its associated costs from chilling public participation. Klayman was unable to show the suit could win.

Is this one destined for the Supreme Court? Do pigs wish they could fly?

Update: This article previously stated, erroneously, and it was reported elsewhere, that there was a 2-1 spit decision by the court. This is not correct. All three judges agreed on the decision, but only two concurred on the opinion.

Related articles:

Media coverage:

  • Courthouse News Service – Warren’s reference to Corsi as an “execrable piece of shit,” is clearly his personal opinion as it “does not appear to convey any factual assertion, but is rather ‘the sort of loose, figurative or hyperbolic language which would negate the impression’ that a factual statement was being made,” Brown wrote (emphasis in original).

Vogt loses, fails to get message

Whether it was a publicity stunt to promote his upcoming book (along with Paul Irey), From Forgery to Treason, or a sincere but profound misunderstanding of the law, Douglas Vogt filed a legal action in federal court that was dismissed. I covered the story extensively on this blog.

Vogt makes error

Before continuing with the progress of the legal action, I wanted to show the following screen shot from the book’s web site. The book is subtitled “Two Typographers Present their Proof of Forgery of Obama’s Long Form Birth Certificate.”

image

One would think that typographers advertising their book, a book relying on claims of typographical expertise, would be at least moderately careful to avoid typographical errors in their promotional material, but there it is writ large: “United Sates.”1

Vogt’s forgery claims are ludicrous, but so was his legal action, an attempt to force a court to declare him “not guilty” of a hypothetical future crime, and to use a civil filing in an attempt to compel a criminal prosecution. Judge Robart explained why the action was ludicrous in his Order to Show Cause.

Vogt makes another error

Nevertheless, it appears that Vogt is going to give it another go with the Ninth Circuit Court of Appeals, itself no stranger to birther lawsuits. I use the future tense because no appeal appears on the court docket as of this writing. Vogt’s appellate petition, a writ of mandamus, appears on the obamaforgerybook.com web site. So let’s examine the document:

image

That helps us sort matters out. The imaging crank is Douglas Vogt and the legal crank is Montgomery Blair Sibley (a former attorney).

Vogt’s petition demands the Court of Appeals direct Judge Robart to do the things he decided not to do for good reason when dismissing the action. Vogt repeats his claim that the district court clerk mischaracterized his action. Finally Vogt gives us his term it, “Miscellaneous matter.” Wow, that certainly makes it clear.

Vogt launches skyward calling the Judge’s characterization of his case as “intentional libel” and suggests that the captioning of his case as Vogt v. Obama in an order may be a felony. (The law cited doesn’t apply to captioning a case.)

For those giving odds as to who Vogt’s Jane Doe #2 is, we get this tantalizing sentence:

Coupled with the clear circumstantial evidence contained in Vogt’s sealed affidavit which links Barack Hussein Obama, II with the forger of his putative Certificates of Live Birth, the “public interest” in having these matters determined is overwhelming.

In any case, there are two important questions raised by the appeal:

  1. How long will it take the Ninth Circuit to affirm the lower court’s action
  2. Will the opinion be long or short?

1At least he didn’t say “United Snakes.”

Winnowing the Grinols 2

Don’t ask me what the title means—I just thought it sounded snappy. The article is about Orly Taitz’ appeal in the case of Grinols v. Electoral College.

The case, involving several issues regarding the 2012 election, was dismissed April 22, 2013 by federal Judge Morris England after hearing oral arguments on the motion to dismiss. You can read more about the grounds for dismissal in my article, “Things heat up for Monday face-off in Grinols.” When a judge dismisses a case like this, it means that the case cannot proceed as a matter of law. Taitz’ only recourse in an appeal is to argue that the judge made an error in the application of the law and should she win the appeal, it would mean that the case would be sent back to the lower court for trial.

You can read her 63-page opening brief filed October 29 for yourself. So what is Taitz’ rationale for the appeal (besides her general tendency to refuse to take “no” for an answer)?

Taitz raises 13 issues in the appeal, which I will catalog here:

  1. The Court shouldn’t have allowed the US Attorney to file a response on behalf of Congress, because some Congressmen weren’t notified about the suit. Taitz says that the “U.S. attorneys defrauded the court.”
  2. The Court should have issued a default judgment against President Obama because he didn’t file a timely response. The issue here is whether he was properly served (and he wasn’t).
  3. The Court should not have said that it lacked jurisdiction (Taitz cites Peta Lindsey [sic] v. Bowen). Peta Lindsay v. Bowen did not involve the court ruling on the eligibility of a candidate. She also cites Cleaver v. Jordan and Fulani v. Hogsett. None of the cases are relevant.
  4. The Court shouldn’t have said the case was moot. Taitz cites Keyes v. Obama where a case was brought on Inauguration Day. The problem with relying on Keyes is that the court of appeals stated that after the election plaintiffs no longer had any standing as candidates, leaving Taitz with no plaintiffs with standing.
  5. The Court should have decided that all the plaintiffs had standing, not just Judd (who had been a candidate).
  6. The Count should have ruled on Taitz’ claim that over one million votes in California were from defective registrations. No explanation is given why the Court should have done this.
  7. Continuation of 6.
  8. The Court should not have followed what other courts did, and not rule on Taitz’ social-security number claims.
  9. The Court should not have found that December 12 is before December 17 (she thinks they did, but …).
  10. The Court should have let Taitz file more stuff
  11. The Court should have recognized that Barack Obama does not legally exist. (There is some guy named Soetoro, Soebarkah.)
  12. See 13.
  13. The Court should have decided Obama can’t be President because his Selective Service application doesn’t have a visible year “19” on it.

In my analysis of the case, there is very little legal substance to it. The most important point is the first one where Taitz claims that the Court failed to follow precedent when it decided that it lacked jurisdiction to rule on a presidential candidate’s eligibility. Taitz is wrong that her citations are on point. The Cleaver case was not in federal court and none of the cases involved the court ruling on eligibility. Gary Kreep, in the appeal of Keyes v. Bowen, did a better job than Taitz, arguing rather that there is no precedent for not deciding the issue in court, and that no statute specifically grants to Congress the right to decide eligibility.

Taitz repeatedly claims that the court “ignored the evidence,” but of course evidence really isn’t at issue when ruling on a motion to dismiss.

The appellees have asked for more time to respond, and their responses are due by December 30, 2013.

Commentary

The only interesting thing about the case is one judicial question that I do not think has ever been answered definitively, namely does any court have jurisdiction to decide on the eligibility of a presidential candidate? Taitz bollixed her citations in favor of the proposition that courts can decide who is eligible and who is not, and keep them off the ballot. The precedent of Robinson v. Bowen from the Northern District of California seems on point for the other side. Judge Alsup wrote:

Arguments concerning qualifications or lack thereof can be laid before the voting public before the election and, once the election is over, can be raised as objections as the electoral votes are counted in Congress. The members of the Senate and the House of Representatives are well qualified to adjudicate any objections to ballots for allegedly unqualified candidates. Therefore, this order holds that the challenge presented by plaintiff is committed under the Constitution to the electors and the legislative branch, at least in the first instance. Judicial review — if any — should occur only after the electoral and Congressional processes have run their course.

Robinson was not appealed. The Ninth Circuit dodged the political question argument in its decision in Keyes | Barnett v. Obama, affirming the dismissal, but on other grounds.