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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.

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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.

Why the Cold Case Posse was doomed from the start

The Cold Case Posse hasn’t achieved anything in the “real world”—there are no indictments, there is no Congressional investigation, and there is no interest from the Media. It has been a total bust. However, stepping back to take the broad view, they never had a chance.

One notes immediately that the Cold Case Posse never had any resources. While the CCP has a loose association with the Maricopa County Sheriff’s Office, the resources of the Office were not made available to the CCP. Public funding was not provided and the CCP had to rely totally on volunteers and private donations. You never see any “crime lab” staff in the CCP reports, nor any expertise borrowed from the MCSO. The most they got was one Deputy who got a free vacation in Hawaii to babysit Mile Zullo.

The second major handicap was lack of expertise. While the actual membership in the Cold Case Posse has never been disclosed, its leader Mike Zullo was a low-level member of a small-town police force, and that a long time ago. The CCP has relied on volunteers who know a little about computers (promoted to forensic document examiners). Only after a year and a half of embarrassing reports did they hire someone with real certification, and that report was not released.

The most serious problem, though, was that what the CCP was trying to prove was false. We already have certifications from the State of Hawaii, and the Selective Service System that the documents they are trying to prove fake are really legitimate. One simply cannot find real proof of a fake premise.

From the beginning, the Cold Case Posse was doomed.

Doomed!

Taitz will lose the Grinols case

Orly Taitz is going to lose the Grinols v. Electoral College case. Is this because “the fix is in?” No, it is because “the broken is in.” Taitz’ case is obviously and fatally flawed.

One might be tempted to rail against the case, saying that it is doomed because of the monumental incompetence of Orly Taitz as a lawyer. She waited over a month after the election to file the case, making significant parts of it moot before the court could hear it. She bungled service of the complaint. She failed to follow court rules in multiple instances. She basically didn’t do anything right (here are the details); however, most of that could in theory be fixed.

What cannot be fixed with Grinols, as has been the story with most of the birther eligibility lawsuits, is that Grinols, Noonan, Judd and the other guy lack standing. The first question the court will ask is not whether Barack Obama is eligible to be president, but whether Grinols is eligible to bring suit, and he is not. One can go all the way back to Berg v. Obama in 2008 for precedent. A person not directly and individually harmed has no case. The voter in general doesn’t have a right to litigate in federal court anything that he doesn’t like unless directly and individually involved. The Plaintiffs in Grinols were presidential candidates who weren’t on the ballot and presidential electors who didn’t get elected. This issue of standing is not a fiat of the court, but is based in Article III of the US Constitution that defines the jurisdiction of the federal courts.

The second issue with Grinols is that the Constitution gives absolute independence to the Congress in the execution of its legislative function. Taitz is asking the Court to enjoin the Congress from certifying the election, something the Constitution says they cannot do.

This is why Taitz’ subpoenas to half a dozen federal agencies are nonsense; they go to the complaint Taitz presented, and not the the more fundamental problem that the Court cannot hear the case. If the Court cannot hear the case, it cannot hear the evidence.

Birthers have lost 190 straight cases in court. Someone would have to be crazy to think Grinols will come out any different.

Closing the barn door

Hearing today!

Orly Taitz filed a motion yesterday, December 19, for a temporary restraining order (TRO) in the Eastern District of California federal court. She wants the Court to enjoin several parties, the first 3 of which I list briefly here:

  1. Enjoin the Secretary of State and Governor from certifying the Certificate of Ascertainment.
  2. Enjoin the Electoral College from tallying their votes.
  3. Enjoin the Governor of California from forwarding the Certificate of Electoral Vote to the President of the Senate

It’s a little late. The governor’s Certificate of Ascertainment must be done and forwarded to the National Archives before the Electors vote on December 17. The tallying of the votes was done on December 17 (Obama got all 55 from California).

I don’t see that it is the Governor of the state who is responsible for transporting the tally of the votes to the President of the Senate for counting on January 6, but in any case according to the National Archives, the distribution of the 6 copies of the Certificate of Ascertainment and the votes must be done “immediately.” Since the copies have already been received by the Archives, one reasonably presumes that the copy for the President of the Senate has been sent as well.

Apparently Orly doesn’t want these facts known:

comment left at Taitz web site about the vote already having been tallied. Comment in moderation.

In addition, Orly wants to the court to enjoin the “President of the Senate from presenting the Certificates of the Electoral Vote to the U.S. Congress,” “U.S. Congress from confirming the elections results” and “Defendant Barack Hussein Obama from taking the oath of office as a U.S. President on the inauguration day.” It must take monumental chutzpah1 to do something like that.

Under the Constitution, it is the Congress, not the Judiciary who decides the election results. The Judiciary has no power to intervene. Any high school civics student should know that (of course Orly never had a high school civics class in the US).

According to Taitz [link to Taitz web site] there is a hearing scheduled for today before Chief Judge England on her TRO. I wish I could be there.2


1First time I ever used that word in a sentence.

202:00 PM in Courtroom 7 (MCE) assuming that there will be any oral arguments.

Suing Congress

I am reminded of Leo Donofrio’s memorable comment: “you can’t save the Constitution by destroying it,” when reading Orly Taitz’ latest lawsuit in California that attempts to get a court to meddle with Congress certifying the 2012 election, something that the Constitution mandates that they do. Taitz calls Congress a “government agency” and names it as a defendant in her Grinols et al. v. Electoral College et al. lawsuit.

As I said in a comment on another thread: “I suppose in the history of whack-job lawsuits, someone has tried to sue Congress before” and it turns out that I was correct that Taitz is not the only lawyer that thinks outside the box, way outside the box. Another is Mario Apuzzo who filed a lawsuit against Congress on behalf of Charles Kerchner in 2009, Kerchner v. Obama. Indeed, not only did Kerchner sue the House, the Senate and the Vice President (then Dick Cheney) he even sued The United States itself! That lawsuit was ultimately dismissed but I wondered if anything in that process would shed light on the instant case suing Congress.

In the Kerchner case, the United States Attorney replied on behalf of Defendants. In its motion to dismiss, the Government argued that the Congressional Defendants had immunity. The government argued sovereign immunity (you can read the Wikipedia article for more on that). In addition, the Government argued “absolute immunity” for the Vice President under U.S. Const. art. I, § 6, cl. 1, noting that the courts have broadly interpreted the debate immunity to preclude the courts from interfering with the function of Congress. In dismissing Kerchner, Judge Simandle did not reach the immunity argument, dismissing rather for lack of standing; however, he did cite one other reason that the suit could not be brought—the “political question doctrine”—writing:

…it appears that Plaintiffs have raised claims that are likewise barred under the “political question doctrine” as a question demonstrably committed to a coordinate political department. See Baker v. Carr, 369 U.S. 186, 216 (1962). The Constitution commits the selection of the President to the Electoral College in Article II, Section 1, as amended by the Twelfth Amendment and the Twentieth Amendment, Section 3. The Constitution’s provisions are specific in the procedures to be followed by the Electors in voting and the President of the Senate and of Congress in counting the electoral votes. Further, the Twentieth Amendment, Section 3, also provides the process to be followed if the President elect shall have failed to qualify, in which case the Vice President elect shall act as President until a President shall have qualified. None of these provisions evince an intention for judicial reviewability of these political choices.

So this brief nostalgic look back at another lawsuit from 2009 informs us that the Grinols case is:

Doomed image

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