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General agreement

Federal filings flutter

There are four new filings in Taitz v. Democrat Party of Mississippi, defendant’s ECF documents 98-101, in response to the Taitz’ 11th-hour hail Mary notice of new information.

In Document 98, the Mississippi Democratic Executive Committee representing the Democratic Party, filed a detailed argument as to why Taitz’ “Notice of new information” is neither admissible, nor relevant to the pending rulings in the case. Document 99 is a joinder with the Democrat’s argument from the Mississippi Secretary of State.

New yesterday was a response from the Hawaii Defendants, Document 100. In addition to arguing that Taitz’ “Notice” has no bearing on the pending motions, the Hawaii defendants call the Court’s attention to the Taitz claim (which was based on a punking email sent to her) of a conversation allegedly involving Judge Wingate, pointing out that this is not the first time Taitz has irresponsibly and falsely raised the claims of improper ex parte conversations, citing Rhodes v. MacDonald in Georgia, the case in which Taitz was sanctioned $20,000. From the sanctions decision in that case (Exhibit 4 in the Hawaii response):

In response to the court’s order to show cause why she should not be sanctioned with a financial penalty, counsel continued her attacks on the court, as well as her political grandstanding. …

Counsel sought recusal for the following reasons: baseless speculation that the judge might have engaged in ex parte communication with the Attorney General of the United States …

The Court found that a monetary penalty of $20,000 was imposed upon counsel as punishment for her misconduct, as a deterrent to prevent future misconduct, and to protect the integrity of the court.

The Mississippi Democratic Party promptly filed a joinder with the Hawaii defendants’ brief (ECF 101). I am sure that the Mississippi Democratic Party appreciated the not-too-subtle injection of the topic of sanctions into the proceeding.


Completing the agreement, defendants Obama, Obama for America and Pelosi have joined in the opposition of the Hawaii Defendants and the Mississippi Democratic Party (ECF 102), and the Mississippi Secretary of State has joined in the opposition of the Hawaii Defendants (ECF 103).

Read more:

Orly dinged for $4,000

With this article, I am introducing a new topic category on the blog: Sanctions. Up until now, there haven’t been many legal penalties levied against birthers for frivolous lawsuits, the most notable being the $20,000 sanction against Taitz by federal judge Clay D. Land in Georgia in the Rhodes v. MacDonald case. Taitz received a minor $250 sanction in the birther-related case of Liberi v. Taitz. Minor costs were assessed against Carol Greenberg in Greenberg v. Brunner. Sanctions have been awarded, but the exact amount not yet determined in Liberty Legal Foundation v. National Democratic Party of the USA, Inc.

In the case of Taitz v. Obama filed in Orange County Superior Court, Taitz bizarrely filed a motion to compel Occidental College to provide copies of Obama’s college records before she had even bothered to subpoena them. Occidental College was not amused and asked the Court to award them costs for having to appear in this frivolous matter. The Court agreed to the tune of $4,000. Attorney for Occidental College Carl A. Botterud told the Court in a declaration that Taitz had threatened him with criminal action for “committing treason and obstructing justice.” (Taitz seems to think that the RICO statute makes her a free-lance prosecutor.) The court said that this sanction was not a “punishment” but cost shifting, which I believe means she doesn’t have to report it to the California Bar. See report at The Fogbow.

On her web site Taitz reportedly said, “As of now I need your help to pay … the $4,000 for the crazy decision to protect the non-existant (sic) college records of the Kenyan usurper.” Is she admitting that there are no college records to get?

This isn’t the first time that Occidental College has been demanded to violate federal education privacy law (FERPA) to disclose Obama records; this happened in Keyes v. Bowen. A request for sanctions was threatened (but not made) in the Keyes case.

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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Who does Orly Taitz represent?

There is a legal adage that goes: “He who is his own lawyer has a fool for a client.” I don’t quite have a snappy way to put this variation, but it might go something like: “He who has Orly Taitz for a lawyer should get a lawyer.” To Orly Taitz, a client is nothing more than a ticket to get her into a courtroom to argue her delusions and to bask in front of the TV cameras afterwards. She only represents herself.

Capt. Connie Rhodes (Rhodes v. MacDonald) learned that the hard way and scrambled to protect her military career by the advising the Court that she didn’t authorize the appeal Orly Taitz filed, and that Taitz no longer represented her.

Now Taitz has done it again, in the case of Farrar v. Obama in Georgia. When Orly Taitz presented her case in Atlanta, she didn’t even acknowledge the other plaintiffs in the case: Lax, Judy, Malaren and Roth; and she didn’t argue for their interests in her Proposed order.

While David Farrar was gracious in defeat, Orly Taitz wrote a most inflammatory letter to Georgia Secretary of State, Brian Kemp, on his behalf in which she accused administrative court judge Michael Malihi of “gross abuse of judicial discretion and in flagrant violation of the law,” and even worse:

This behavior of judge Malihi was so outrageous, that not only his advisory opinion needs to be set aside, as not grounded in any fact or law, but state and county grand juries and the Attorney General of Georgia need to launch a criminal investigation into actions of judge Malihi and possible direct or indirect undue influence by Obama.

Are these Farrar’s sentiments? Apparently not. He said:

I[t] was unauthorized. I am in the process of addressing this issue with my attorney even as we speak.

Much more silliness appears in Taitz’s Emergency Appeal to Secretary of State Kemp, including a claim that it was unfair for Judge Malihi to use a citation from another court that the defense didn’t cite. A real lawyer would have known better.

2012-02-04 Farrar v Obama Emergency Appeal to Secretary of State Kemp

Taitz pays up

Despite what you may have heard, erstwhile attorney Orly Taitz, her appeals exhausted, has paid the $20,000 in sanctions imposed by federal judge Clay D. Land in Georgia, for her misconduct in the Rhodes v. MacDonald case after the the federal government filed a lien on all her real property.

Taitz still hopes to get her money back, having asked the District Court to reconsider (again) in a filing last Wednesday (Aug 26, 2010). I must say that she does a much better job redacting her bank account number than she does Barack Obama’s social-security number.

On the back of the check she wrote:

paid under protest as illegal extortion to cover obama’s fraud

Orly crosses line, fined $20,000

Sanction doubled in Georgia military case.

In a lengthy order, federal Judge Land ordered Orly Taitz to pay $20,000 as punishment for abusing the court system and her position as an attorney. The order states:

Adoption of counsel’s legal theory would make the judiciary the arbiter of any dispute regarding the President’s constitutional qualifications. Our founders provided opportunities for a President’s qualifications to be tested, but they do not include direct involvement by the judiciary. In addition to the obvious opportunity that exists during a presidential campaign to scrutinize a candidate’s qualifications, the framers of the Constitution provided a mechanism for removing a President who “slips through the cracks,” which is how counsel describes President Obama. Upon conviction by the Senate of treason, bribery, or other high crimes and misdemeanors, the President can be removed through impeachment. U.S. Const. art. II, § 4; see also id. art. I, §§ 2 & 3. Thus, if the President were elected to the office by knowingly and fraudulently concealing evidence of his  constitutional disqualification, then a mechanism exists for removing him from office. Except for the Chief Justice’s role in presiding over the trial in the Senate, that mechanism does not involve the judiciary. Id. art. I, § 3, cl. 6.

Read the Full Order.

TPM Muckraker article.

Warning to ORLY! A frivolous appeal to sanctions can lead to further sanctions!