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Feds lose Taitz complaint

Orly Taitz reports that she filed a FOIA to find out what happened to two quo warranto complaints she sent the U. S. Department of Justice, and they say they can’t find them.

The Taitz web site is “messed up” in terms of displaying her documentation, but clicking around returns what may be the operative response. It says that the kinds of records she is asking for are either not routinely retained, or that they are exempt from FOIA. The reply is rather dense.

Sibley moves quickly to hold Obama in contempt

Week-old news

Montgomery Blair Sibley describes his recent run for president as “Quixotic;” I can only describe his recent spate of Obama eligibility lawsuits in the District of Columbia as “Orlyesque.” There are three of them:

It is in the Alexander case where Sibley has subpoenaed the original Obama Certificate of Live Birth shown to the press in 2011, and where he claims Obama has refused to respond. The attempts to serve this subpoena, by a professional process server and then by mail, are detailed in the Sibley motion for contempt. The professional process server failed to serve the President. Sibley was told to mail the subpoena addressed in a particular way, which he did, and it was received by the White House on November 27. Sibley filed his motion for contempt on November 29, the date that the Certificate was commanded to be produced. One cannot help comparing this 2-day demand with the 1-day subpoena demand Orly Taitz made of Occidental College.

I could see an Obama argument that he was given insufficient time to respond to the subpoena or to raise an objection to it. DC Rule 45 does not specify the time allowed to respond to a subpoena, but I get from that rule that 14 days is a normal minimum.

From a legal process point of view, we see a great deal more “professionalism” from Sibley, with grammatically correct filings, accurate citations of law and the use of a professional process server. Sibley, however, is as conspiracy crazy as Orly Taitz in describing the birther clown car occupants as “document experts” and decoding what people said into something they didn’t say. In what alternate reality is Mike Zullo an authority on anything besides used cars?

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Sibley at it again X 2

imageWrite-in presidential candidate Montgomery Blair Sibley, who filed and lost a number of federal lawsuits against Barack Obama already, was back in court again yesterday. Which flavor of birther ice cream are we having today? “Please sir, I would like one scoop of quo warranto and one of declaratory judgment.”

Scoop 1: Sibley v. Obama

This is the 4th incarnation of Sibley’s attempts in DC federal court to keep Obama out of office. The case is number 1:12-cv-01832-RLW and the complaint was reported by the press releases web site SBWire. Like some failed birther lawsuits before it, this one is a quo warranto action, a demand that Obama prove he has a right to hold the office of President. Mario Apuzzo failed this gambit in Kerchner v. Obama, and Orly Taitz has also poisoned that well:

Taitz v. Obama, 754 F. Supp. 2d 57, 78 Fed. R. Serv. 3d 207 (D.D.C. 2010) as precedent to say “[o]nly the Attorney General may bring a quo warranto action against a public official.”

Mr. Sibley, a disbarred attorney, ought to have addressed this precedential case from the same DC court where the instant case is being filed. For reference, the complaint alleges that Obama’s birth certificate is a forgery based on a number of false statements of fact, plus he makes the claim that US President must have two US Citizen parents, which is a false statement of law.

Scoop 2: Sibley v. Alexander, Dinan & Lightfoot

The complaint was filed in D. C. Superior court as a class action against the Electoral College members to prevent them from voting for an “ineligible” candidate. The named defendants (Alexander, Dinan and Lightfoot) are members of the EC.

The Electoral College suit is more compact (10 pages). Here the argument is simplified by only claiming the President is not a natural born citizen because his father wasn’t a US Citizen. He wrote:

Accordingly, a priori, Obama is not a “natural born Citizen” as required to be eligible to be President of the United States under Article II, §1, clause 5 of the U.S. Constitution as he is not the child of two United States citizen parents.

The Latin a priori refers to knowledge that precedes experience, and in the context here it is a fancy word for “begging the question.” I think that it is less common for a single plaintiff to sue a class of defendants, but there are examples including the landmark case of Landeros v. Flood that was filed to change the behavior of doctors in California.

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The birther contribution to American jurisprudence

Dealing with frivolous litigation, whether filed by a seasoned attorney or a novice pro se litigant, is a bit like wrangling cats.

Robert J. Davis

Where's the Birth Certificate? billboardWhile one doesn’t usually combine “birther” and “contribution” in the same sentence, the birther phenomenon has left its mark on the US justice system through educational examples, black letter law, and a bit of humor to spice up otherwise dull legal briefs. This article details ways in which the birthers in general, and Orly Taitz in particular, have contributed to the law.

A good example of bad behavior

I don’t know whether they teach this at the William Howard Taft online law school, but there are certain standard reference works that attorneys rely on to inform their practice and to find the citations that they need to make legal arguments. One source is the Practicing Law Institute whose mission is:

To enhance the professionalism of attorneys and other qualified persons by providing, in a cost effective manner, the highest quality and most innovative programs, publications and other services to enable them to practice law competently and ethically, and to fulfill pro bono responsibilities.

In 2010, the PLI published a paper by Koral and Price titled: “Trying the Court’s patience instead of the case: common litigation mistakes” to draw the line between “zealous advocacy” and “impermissible or injudicious tactics.” One way of brightening the line is to give examples of what constitutes “impermissible or injudicious tactics” and the birthers, in the person of Orly Taitz, provide a featured example of being on the wrong side of the line. Writing about Rhodes v. MacDonald, where Judge Clay D. Land sanctioned Taitz:

Attorney Orly Taitz provides a notorious recent example of an attorney’s conduct succeeding more at irritating the judge than at advancing the interests of her client. A member of the “birther” movement, which challenges President Obama’s citizenship on the grounds that he had failed to adequately prove that he was born in the United States, Ms. Taitz filed a motion in connection with this litigation on behalf of a Captain in the United States Army to enjoin her deployment to Iraq. District Judge Clay D. Land held that the motion was frivolous, and further found that “Plaintiff’s motion is being presented for the improper purpose of using the federal judiciary as a platform to espouse controversial political beliefs rather than as a legitimate forum for hearing legal claims.”

Taitz was sanctioned for her conduct in the case because, as Judge Land said:

[t]his pattern of conduct reveals that it will be difficult to get counsel’s attention [and so a] significant sanction is necessary to deter such conduct.

The PLI article was written in 2010, before Orly Taitz brought a federal lawsuit against Judge Land. I wonder what the article would say if it were written today!

Black letter law

The Wikipedia article on Precedent says:

gavelIn common law legal systems, a precedent or authority is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts.

Black letter law is the body of cases that attorneys and courts look to for established precedent. If you have ever read a birther legal decision that involves dismissal for lack of standing, you will almost invariably see Lujan v. Defenders of Wildlife cited. Once the body of birther lawsuits built, one began to see citations on standing to decided birther cases, notably Hollander v. McCain and Berg v. Obama. More recently we see extensive citations to Ankeny v. Governor of Indiana alongside US v. Wong on the question of whether Obama is a natural born citizen and Robinson v. Bowen on ripeness of election challenges.

The precedential value of birther lawsuits now extends beyond the backwaters of birtherism; they have become mainstream precedent in several areas of the law and now appear in the standard reference resources used by attorneys.

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Zombies sighted in California

Long dead case comes to life

When I think of the Keyes v. Obama lawsuit, later named Barnett v. Obama in California, I feel like I’m discussing ancient birther history. It was Orly Taitz’ first birther case, I think, recruited by the unsuspecting Gary Kreep (much bad blood developed between the two). It’s been dead for years.

Orly Taitz has a filed a motion to reconsider the RICO portion of her case, that Judge David O. Carter dismissed, on the basis of new “evidence.” The evidence is Sheriff Joe Arpaio’s affidavit entered in another case saying that he “believes” that fraud has “likely” been committed in Barack Obama’s documents. Of course, what Arpaio believes is not evidence, nor is he even willing to point the finger at Barack Obama as the culprit. It’s a waste of time, but Orly is like the Energizer Bunny, and just keeps on filing and filing and giving me something to write about.

In Orly’s mind, Barack Obama is at the center of a massive criminal conspiracy, and in her RICO action Taitz names the conspirators as defendants:

  • Barack Obama, President of the United States
  • Alvin Onaka, State Registrar of Hawaii
  • Michael Astrue, Commissioner of Social Security
  • Obama for America, official campaign organization
  • Brian Schatz, former chair Hawaii Democratic Party
  • Lynn Matusow, former chair Hawaii Democratic Party
  • Nancy Pelosi, former chair of the National Democratic Convention
  • Alice Germond, former secretary of the National Democratic Convention
  • Eric Holder, Attorney General of the United States
  • Loretta Fuddy, Director of the Hawaii Department of Health
  • William A.  Chatfield, former director of the Selective Service System

While Taitz clearly says that this case is only about the RICO portion of her original suit, she still asks f0r a declaratory judgment.

Choice quotes:

Orly Taitz, attorney in this case brought Quo Warranto in DC, however presiding judge in that case simply twisted the statute and claimed that Quo Warranto can be brought only by the Attorney General [or United States Attorney], which of course is not the case and represents a perversion of the statute. …

New evidence submitted herein is as follows. Plaintiffs are submitting a true and correct sworn affidavit of Sheriff Joseph Arpaio of Maricopa county (sic) attesting to the fact that Obama’s birth certificate, selective service certificate (sic) and Social Security card are fraudulent and forged (Exhibit 1). … [Note: in the barely legible attachment of this affidavit, one page is upside down and the other is sideways.]

Defendant Alvin Onaka, Registrar of the State of Hawaii, aided and abetted Obama and was complicit in the cover up of the fact that Obama is using a forged birth certificate. …

Defendant Michael Astrue, commissioner of the Social Security (sic), aided and abetted Obama by covering up the fact that Barack Obama is fraudulently using a Connecticut Social Security number. …

Here’s her motion:


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A Natural Born Citizen: the novel (reviewed)

No, this is not about Obama. Former newspaperman Don Rosebrock has written a suspense thriller about a hypothetical battle over the eligibility of a President. In this scenario, the vice president is sworn in to succeed  a president who dies in office. The speaker of the house launches a legal attack claiming the new president was born in Mexico. Oops, no birth certificate! The Kindle edition is only $1.99.

Cover of book: A Natural Born Citizen

Here’s my review:

This is an interesting “what if” examination of American government and what might happen if some “evidence” surfaced saying that the President of the United States was really not born in the United States not and eligible to office. The title of the book comes from the specific qualification in the United States Constitution Article II that the President be a “natural born Citizen” (all nouns in the US Constitution are capitalized).

Folks these days have probably heard of conspiracy theories about the foreign birth of the current US President and there is some necessary overlap between current events and this book’s scenario, but the book is really a very different story and the key difference is that the fictional challenge to the President’s legitimacy comes from within the government itself, making the challenge more newsworthy and credible.

As a novel, the book gets off to a slow start, perhaps due to the lack of an initial conflict. In fact, I was wondering whether I would finish the book at all until I got about one-third of the way through it. I remember thinking “hey this is getting interesting” when the Kindle reader said I hit 34%. After that I couldn’t put it down and stayed up until 3 AM when I finished it.

The book has three threads that I identified. The first is the legal thread invoking a lawsuit that attempts to get the President removed from office. Having seen 140-something cases thrown out of court in real life from Presidential eligibility challengers, I found the crazy federal judge Quinn character an unlikely one. The Supreme Court in the book is made up entirely of fictional characters, but even keeping in mind the real-world example of Bush v. Gore in 2000, I still find the Supreme Court’s vote in this book not credible.

The second thread is the media circus. This, I felt was much more true to life and the characters where quite believable. What was missing, and probably missing to build drama make the story work, was one essential character, the “liberal media.” News coverage was entirely characterized from one side, and in the real world there would have been a vocal response from the other side that we don’t see. Nobody took the President’s side.

The third thread, and I’m not going to spoil the suspense, is the action thriller part. In my mind this was the most plausible part of the book and the part that glued me to the pages until the end. Yes, there are machine guns and military-grade explosives employed.

Overall, it was an engaging book and I recommend it and think readers who get past the slow start will find it rewarding.

I personally am somewhat a devotee of the conspiracy theories and legal machinations about the current President, so I read this book with certain specialized interest, knowledge and background. What follows may not be of interest to the general reader.

One of the legal moves in the book is a quo warranto lawsuit, one brought against an office holder challenging his or her right to hold that office. The book notes that federal quo warranto actions, by statute, must be brought in the US District Court for the District of Columbia. The author had to introduce a crazy federal judge to advance the plot past this barrier. What the book does not address is that it has been further held in the federal courts that federal quo warranto actions can only be brought by the US Attorney General or the United States Attorney. It might be possible to argue under the book’s scenario that those precedents could be overruled, but in a realistic scenario the issue would have been raised.

Another legal nit I would pick on is the discussion of “standing.” The book oversimplifies the concept. It says that to have standing, a plaintiff must have a particularized injury and that’s fine as far as it goes; however, standing is described as a three-legged stool, and a particularized injury is only one necessary part, the other two being Causation and Redressability.

Finally, I found the crazy judge’s total lack of regard for a parish baptismal record, particularly in the jurisdiction where he presided, not credible even for a crazy judge and in fact the crazy judge is a plot device that I find a weakness in the faithful playing of the “what if” scenario. How can you have a plausible story when everything the crazy judge does is highly implausible? Perhaps the author has more experience with crazy judges than I do. Further, I found the Appeals Court decision incomprehensible. I guess it’s necessary to “suspend belief” with any fiction.