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Klayman files appeal of obscure ruling on Alabama law to the US Supreme Court

Late as usual

In a move that left Obots open-mouthed with incomprehension, birther attorney Larry Klayman (who has never been convicted of criminal failure to pay child support), started the process of appealing his loss in McInnish v. Chapman to the US Supreme Court on June 19, reports the Supreme Court docket. Klayman moved for more time to submit his appeal. Perhaps he is hoping to get some momentum by a favorable ruling.

The McInnish case dealt with an obscure provision of Alabama law, called the “jurisdiction stripping statute,” that prevents Alabama courts from getting involved in the conduct of elections. McInnish wanted to force the Alabama Secretary of State to investigate the eligibility of presidential candidates as a duty of office. Klayman lost the case before the Alabama Supreme Court last March on a 7-2 vote, Chief Justice Roy Moore and Tom Parker dissenting.

Klayman’s timing of this request for an extension is odd. An appeal must be filed within 60 days of the judgment (28 U.S. Code § 2101) and Klayman’s motion for more time (which the statute permits) was filed precisely on the 60th day; however, the rules of the Supreme Court require that the request for an extension be filed 10 days before the deadline. Supreme Court Rule 13 (5) states:

For good cause, a Justice may extend the time to file a petition for a writ of certiorari for a period not exceeding 60 days. An application to extend the time to file shall set out the basis for jurisdiction in this Court, identify the judgment sought to be reviewed, include a copy of the opinion and any order respecting rehearing, and set out specific reasons why an extension of time is justified. The application must be filed with the Clerk at least 10 days before the date the petition is due, except in extraordinary circumstances. The application must clearly identify each party for whom an extension is being sought, as any extension that might be granted would apply solely to the party or parties named in the application. For the time and manner of presenting the application, see Rules 21, 22, 30, and 33.2. An application to extend the time to file a petition for a writ of certiorari is not favored.

The request for an extension was not even docketed until June 25, long after the deadline. I don’t even know if it is possible for a Justice to grant an extension after the deadline has expired, and if that’s true then the extension must have been granted on the 19th, or not at all; the Supreme Court docket indicates no extension granted. It is hard to fathom a reason for this case to be considered  having "extraordinary circumstances." Klayman could have filed the request for an extension any time he wanted to. There’s certainly no new evidence in the interpretation of the Alabama jurisdiction stripping statute. The election, which is the subject of the case, is long over, making anything to do with that particular election moot.

Read more:

Alabama chief justice may have tipped off birthers

Investigation requested

Photo of Moore with US flag in backgroundRC Radio reports that Birmingham Attorney Barry Ragsdale has notified the Alabama Supreme Court of a possible ethics violation. This came after Sharon Rondeau of the Post & Email wrote that Alabama Chief Justice Roy Moore had spoken to someone and told them the future date of the Alabama Supreme Court decision in McInnish v. Chapman. The correct prediction of the date was published at the P&E. Lest we jump to conclusions, Ragsdale in his letter to the court cautioned:

Needless to say, given the tenor and content of the on-line blogs in question, there is reason to doubt the accuracy or veracity of anything reported by them.

Judge Moore was previously an author for WorldNetDaily.

Read the details at RC Radio.

After thinking about this for a while, I feel it more likely that Judge Moore did not have the conversation claimed by Rondeau. The “face to face” detail seems contrived, something added to make the story more believable. This story is a bit like Orly Taitz’ complaint about extra-judicial remarks by Judge Wingate in Mississippi, one that is almost certainly bogus.

McInnish Appeal denied in Alabama

mighty Klayman has struck out

Today the Alabama Supreme Court issued its 7-2 decision in the case of McInnish v. Chapman, and the decision goes against plaintiffs Hugh Chapman and Virgil Goode, who were trying to force the Alabama Secretary of State to verify Obama’s eligibility to be on the 2102 Alabama presidential ballot. Larry Klayman was the attorney for the Appellants.

The Court’s Majority issued no written opinion, only affirming the lower court decision dismissing the case.

  • Majority decision to affirm dismissal, no opinion (Stuart, Murdock, Shaw, Main, Wise)
  • Concurring opinion (Bolin)
  • Concurring opinion (Bryan)
  • Dissenting Opinion (Moore)
  • Dissenting Opinion (Parker)

Chief Justice Roy Moore issued the major dissenting opinion, and Justice Bolin issued a concurring opinion specifically addressed to Moore’s dissent. Chief Justice Moore states that under Alabama Law, Secretary of State Chapman has an affirmative duty to verify candidate eligibility. Justice Bolin agrees that candidate eligibility is an important public interest, but that Alabama statutes do not place a duty on the Secretary of State to verify it. Further Justice Bolin points out that Secretary of State Chapman is a nonjudicial officer with no subpoena power or investigative authority. Justice Bolin concludes:

Under our current structure, however, the burden of investigating a presidential candidate’s qualifications is best left – unfortunately or not – to the candidate’s political party….

As I understand his position, Justice Bolin is saying that a state statute requiring verification of eligibility for candidates for president is a desirable thing, given his belief that the federal courts are prohibited from adjudicating eligibility because of the Political Question Doctrine.

Justice Bryan also issued a concurring opinion, briefly stating his belief that legislation could be passed to allow verification of candidate eligibility.

Chief Justice Moore’s dissenting opinion goes to the details of the Alabama statutes involved and at a brief reading has no particular high points. It is an analysis on the merits.

Chief Justice Parker also dissents from the majority opinion, supporting the analysis of Chief Justice Moore, but disagreeing on the Secretary of State’s affirmative duty to investigate candidate eligibility.

A text search of all of the opinions affirms my opinion that the Affidavit of Mike Zullo is irrelevant to the decision, being cited not once, except that the dissenting opinion from Justice Parker made reference to materials submitted previously to the Secretary of State that were sufficient, in his mind, to warrant investigation. Those materials reference results of Zullo’s investigation and contain a brief statement from him.

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Zullo irrelevant in Alabama

There are rumors swirling among the birthers that the Alabama Supreme Court will rule on the McInnish v. Chapman case this week. I don’t have any reason to think one way or the other about this prediction, but whatever the Court says, the affidavit of Mike Zullo, submitted to the court, is irrelevant. (On March 12, there was a Zullo Affidavit page on the Cold Case Posse Web site, but it was gone this morning. I don’t know if it was intentionally scrubbed or if it was lost in the recovery from a recent hacking incident.) The Zullo affidavit was submitted by the Appellants as part of a motion to strike an amicus brief from the Alabama Democratic Party because that brief contained items not part of the record of appeal. The Zullo affidavit, of course, is itself full of things not in the record of appeal.

The problem with predicting with certainty what the Alabama Supreme Court will do is that there are at least two birther sympathizers on the court, Chief Justice Roy Moore and Associate Justice Tom Parker. It’s possible there there will be a split decision and it is also possible for them to rule against McInnish, but insert birther-friendly language whining about having their hands tied by the law in an otherwise serious question about Obama. I have confidence in the ultimate victory of right over chaos and so I think the Alabama Supreme Court will look at the merits of the case and affirm the Montgomery Circuit Court’s ruling.

The sole questions to be decided by the Alabama Supreme Court are whether or not the “Jurisdiction Stripping Statute,” prevents the court from hearing this case,1  and if not whether or not the Secretary of State of Alabama had a duty in the last election to investigate President Obamas qualifications to appear on the ballot in Alabama.

The parties to the case and an amicus brief from the Alabama Democratic Party argue the issues upon which the court will rule. Several nut case amicus briefs were also submitted making wild claims about President Obama; they are not relevant to the question of law in this case. (See also my article: “Zullo’s irrelevant affidavit.”)

The first few sentences of the Zullo affidavit show that it is incompetent. Zullo swears that he has personal knowledge of things he’s heard from other people and that’s not how it works. Such testimony would not be allowed in court. One would think that anyone who was familiar with law enforcement would know what is testimony and what is not, but Zullo appears not understand this, nor apparently does he know what’s being decided in Alabama. But whatever opinion one has of the Zullo affidavit, it is irrelevant to this Alabama Supreme Court decision because it does not address the questions of law that the Court is deciding. The Alabama Democratic party references the Zullo affidavit in its response to the motion to strike thusly:

…the ADP assumes that it is unnecessary to further address whether this Court should consider the rambling screed that passes for an “affidavit” attached to the Appellants’ Motion to Strike. Virtually none of the information contained in the affidavit is admissible or credible…. The “affidavit” is inadmissible on its face and is composed of hearsay, speculation, and unsupported conclusions.

Read all of the briefs:


1The Jurisdiction Stripping Statute (Ala. Code 17-16-44) precludes Alabama courts from hearing cases regarding the “legality, conduct or results of any election except so far as authority to do so [is] specially and specifically enumerated and set down by statute.”

What case?

Here’s a comment that appeared on The Free Republic forum:

Undoubtedly, the walls are closing in on Obama. Reed Hayes will serve as an unimpeachable witness before Roy Moore’s Alabama Supreme Court and from there the United States Supreme Court will have no options but to declare Obama ineligible.

With Roy Moore on our side and the fact that both of Obama’s appointments to the Supreme Court and the others appointed by Clinton will have to recuse themselves from the case, the outcome is certain.

I was wondering exactly what case is before the US Supreme Court, is going to be. The Alabama Supreme Court is going to decide a narrow question of whether the Alabama Secretary of State does nor does not have an obligation to verify eligibility of candidates for office. The Republican secretary of state says “no.” The original trial court and the court of appeals have said “no.” And they are certainly not going to hear any testimony from anybody.

How is this going to make any difference to Obama. Even if the case went to the U. S. Supreme Court (and I find it hard to believe that a case solely involving Alabama law would be taken up by the U. S. Supreme Court, even if someone appealed it there, and the only way it would get appealed to the U. S. Supreme Court, it seems to me, would be if the birthers LOST at the Alabama Supreme Court headed by Roy Moore.

There’s no rule at the U. S. Supreme Court requiring any justice to recuse themselves; it’s solely a personal decision. Given that there are not any justices on the Supreme Court showing signs of dementia, recusals won’t help. In fact, there has been no report that any U. S. Supreme Court justice has the slightest interest in hearing a birther case, and certainly none of the cases have been selected to be heard.

Birthers are such irrational optimists.

I left this comment for the Freepers; we’ll if it actually appears.

Some confusion there. First, the Alabama Supreme Court is not going to hear any witnesses. Appellate courts don’t do that; they decide questions of law.

The question of law before the Alabama Supreme Court is whether or not the Alabaman Secretary of State Chapman has a duty to investigate the eligibility of candidates for office in Alabama. Chapman says she doesn’t, and the original trial court and a court of appeal agreed. The question of Obama’s eligibility is not before the Alabama Supreme Court, despite attempts to argue that in plaintiffs’ briefs and the amicus brief from the Alabama Democratic Party.

The only way this goes to the US Supreme Court is if McInnish LOSES (your hopes in Roy Moore notwithstanding) and the Alabama Supreme Court affirms that Chapman had no duty to investigate candidates. McInnish could appeal but if he can’t win in Alabama with Roy Moore on the bench, how could you expect him to win before the US Supreme Court?

It is hard to see how the US Supreme Court would hear a case from Alabama that is solely a matter of Alabama law. And even if it were an eligibility case, the Supreme Court has declined on multiple cases to hear them.

As for recusal, and I presume you meant Obama’s appointees and not Clinton’s, there’s no rule that says that any Supreme Court justice has to recuse themselves for any reason. It’s their personal choice. [See update below]

I would suggest that you not be overly optimistic about this lawsuit, which I predict will fare no better than the 200-odd others lost plowing the same ground.

Update:

There actually is a statute about the recusal of federal judges, 28 U.S.C. 455. The problem with applying that statute to the Supreme Court in this case is that there is no higher court to enforce it, basically leaving the decision to the individual justice as I said. Generally, however, justices are not beholden to the president that appointed them, and so this is not a cause for recusal. The Supreme Court decides cases all the time where the administration or the President is a party, and justices do not recuse themselves in those cases.

Thinking about the birthers

thinkerThe photo (right) is of me next to the iconic statue of Rodin’s “The Thinker” at the Rodin Museum in Philadelphia. I posed for the picture with the title of this article in mind, but without a clear idea of when it would appear and what the article would actually say—that answer came last night as I was listening to the Reality Check Radio program when RC noted that there wasn’t much going on with the birthers these last two weeks. The birther movement has no successes to show, and some of the birthers still pushing forward are backing the craziest of the theories, and gaining no traction, even among other birthers.

For those who perhaps didn’t see it, I’ll repeat the pony story from last year:

There is a story about a little girl who was an optimist. The girl wanted a pony for Christmas and was confident she would get one. Her parents, thinking her optimism was so extreme as to be unhealthy, decided to cure her. On Christmas morning the little girl went outside to find a huge pile of manure with a bow on it. The girl grabbed a shovel and started digging frantically. When asked what she was doing, she replied: “with all this manure, there’s sure to be a pony here somewhere.”

You really have to give some of the birthers credit for optimism, having dug in the manure pile saying “any day now” for 5 years. How many times has Mike Zullo promised to produce the real evidence from his investigation? Remember Jerome Corsi’s “mole” in the Hawaii Department of Health? Remember Donald Trump’s investigators finding unbelievable things? How many lawsuits have been “the one?”

Today the birther’s irrational hope is the Alabama Supreme Court. That Court already rejected McInnish’s first case unanimously. Has he somehow magically obtained standing now? Roy Moore or not, this case will go down the tubes just like all the rest, but it’s the birther pony hope du jour.

So, is blogging about birthers as pointless as the birthers themselves? Certainly any effort geared at “curing” the birthers is pointless. That’s a  hope I don’t think I ever had from the beginning of the blog. What I think is not pointless is documenting for posterity this curious appendix to the presidency of Barack Obama, and that’s why I take some extra effort to make the blog a useful research tool. Some have suggested that I write a book. I already did, and you’re reading it. It’s an interactive media project, and I’m glad you’re a part of it.