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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.

Is there life after Grinols?

One of the amusing side notes coming out of the reports from the Grinols v. Electoral College hearing yesterday was a comment by Orly Taitz that she was picking up a used X-Ray machine in the afternoon, presumably for her dental practice. This indicates that she still has some intention to continue to practice dentistry.

Judge England dismissed Orly’s big eligibility case yesterday, and one has to speculate about what this means for her. (So far, she hasn’t commented on the loss on her blog). It is my view, and one shared by others, that Orly Taitz receives personal validation from her role as the crusading attorney, and indeed she has gotten some serious mileage out of that identity, appearing on national television both here and abroad. And if there were any question about how Orly views herself, just look at the masthead of her web site [link to Taitz web site].

Despite around 30 supporters showing up for Orly’s performance in Court yesterday, interest in Obama eligibility stories is waning. Both birther and Obot web sites have shut down. I suppose Orly will file a motion to reconsider, and perhaps a frivolous appeal in Grinols. She still has a case active in Mississippi, but it’s not doing much right now, and Mississippi doesn’t have the media impact of California (and she’s not licensed to practice law in Mississippi anyway).

It would seem to me that Orly Taitz will keep filing lawsuits. Given that she is branching out on her web site to right-wing crank causes beyond Obama conspiracies, I think it’s quite possible that she will start filing lawsuits on these topics, but she could continue to file Obama lawsuits too. I don’t think the frivolous and abusive lawsuits will stop until she is disbarred and/or declared a vexatious litigant.

Perhaps there is a future for her in talk radio following the model of Alex Jones.

I do not think the birther queen is feenished.

Grinols hearing this morning

An important hearing is scheduled this morning in the case of Grinols v. Electoral College. Oral arguments will be heard on motions to dismiss. You can read more about what’s going to happen today in my article, “Things heat up for Monday face-off in Grinols.” Interested parties are expected to attend the hearing and a special edition of Reality Check Radio will report on the hearing tonight at 9:00 PM Eastern Daylight Time. The Fogbow Boots on the Ground™ thread  for the Grinols hearing has been created for reports from attendees. The hearing is expected to be over by noon Pacific Time (21:00 UTC). Orly Taitz is reprinting a number of letters purporting to be from military officers (presumably retired) urging judge England to hear Taitz’s case “on the merits.”  (I am reminded at this moment by the movie, Dr. Strangelove.) Taitz says in one article that there are 17 letters in all. Of course, the Judge cannot hear a case that he lacks jurisdiction to hear no matter what her fans may want. In the mean time, Taitz seems focused on reprinting every right-wing spin on the Boston Marathon bombing: “Is FBI trying to create a ‘lone wolf’ scenario to cover up involvement of others who trained and financed these 2 Muslim terrorists?” Taitz has been at the forefront of repeating rumors and irresponsible speculation on this story. Read more:

Things heat up for Monday face-off in Grinols

A hearing is scheduled for next Monday, April 22, in the case of Grinols v. Electoral College and the paperwork is arriving in advance of it. The subject of the hearing, according to Judge England’s order is to hear oral arguments on the motions to dismiss, and in particular to the questions:

  • Mootness
  • Standing
  • Political question doctrine
  • Speech and Debate Clause
  • Service of process on defendants

Yesterday, Plaintiff’s attorney Orly Taitz filed an Ex-parte Motion to Strike the Motion to Dismiss. Why ex parte? Because Taitz says she filed the motion too late to give the Defendants proper notice, and that would only be proper in an emergency and for some kind of temporary relief.

Emergency

Taitz does not justify her tardy filing, and I dare say Judge England will have some choice words for Taitz. His order from April 4 suggests that Taitz’s emergency maneuver is unnecessary. The present argument repeats Taitz’ earlier motion to recuse, about which England wrote in his order:

Plaintiffs’ “Motion to Recuse Counsel for Defendants and Motion to Expedite under Local Rule 144” (ECF NO. 102) currently set for April 18, 2013 is VACATED in light of the hearing on the motions to dismiss.

Meanwhile the California State Defendants have filed a brief in support of the motion to dismiss saying:

  • This case is moot as to claims concerning the reelection of Barack Obama.
  • This case presents a nonjusticiable political question.
  • Plaintiffs fail to state an equal protection claim for “invalid” registration.
  • Plaintiffs do not state a claim under 5 U.S.C. § 3328.

Just a word on that last one. Federal law says that people born after 1959 who did not comply with the draft registration cannot be appointed to a position in an “Executive agency.” The California Defendants point out that Obama was elected, not appointed. I would point out that the Office of the President is not an Executive agency. This contention has Taitz all upset, railing that California says Obama can get away with selective-service fraud [Link to Taitz web site]. Taitz is wrong. California didn’t say selective-service fraud is “OK,” just that Taitz is wrong on the law. A President can be prosecuted for fraud after leaving office.

On other fronts, Taitz is dabbling in rumors about the Boston Marathon bombing yesterday, emphasizing her themes of anti-Muslim bigotry and official complicity in crimes.

Court considers reconsidering and decides not to

Yes, the latest motion to reconsider from Orly Taitz in Grinols v. Electoral College has been denied by Judge England. Taitz tried to have the President declared in default for not appearing in the case, but she bungled the service and so he’s not (yet) a party, and so has no duty to respond. Judge England explained to her in great detail how she went wrong when he denied her motion, and taking this to heart, Taitz ignored it, and asked for reconsideration.

No dice, says the Judge. Read the order:

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