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Vermont Supreme Court rules birther appeal moot

H. Brooke Paige was one of many birthers who unsuccessfully sought in court to remove Barack Obama from the 2012 ballot. His argument was that Barack Obama was not a natural born citizen because his father was not a US Citizen. The lower court dismissed Paige v. Condos, saying in 2012:

While the court has no doubt at this point that Emmerich de Vattel’s treatise The Law of Nations was a work of significant value to the founding fathers, the court does not conclude that his phrase–”The natives, or natural born citizens, are those born in the country, of parents who are citizens.”–has constitutional significance or that his use of “parents” in the plural has particular significance. This far, no judicial decision has adopted such logic in connection with this or any related issues. In fact, the most comprehensive decision on the topic, Ankeny v. Governor of Indiana, examines the historical basis of the use of the phrase, including the English common law in effect at the time of independence, and concludes that the expression “natural born Citizen” is not dependent on the nationality of the parents but reflects the status of a person born into citizenship instead of having citizenship subsequently bestowed. The distinction is eminently logical.

The Vermont Supreme Court, noting that the election is over, has rejected an appeal from Page to the decision and declared the question moot—Obama cannot run for President again. The Court noted that Paige lacked standing to bring a suit in the first place, because he showed no particular and individual injury, and also that the Court has no power to grant the relief demanded by Paige, writing:

…a declaration by this Court with regards to plaintiff’s “natural born Citizen” argument would have no impact on the qualification-related laws and orders to which plaintiff refers, since a ruling by this Court would bind no other state or federal presidential election authority.  Whatever the merit of his argument, plaintiff’s cure in the form of declaratory relief is futile and so beyond this Court’s constitutional jurisdiction.

In the court of original jurisdiction, defendants argued:

… the Secretary of State does not have the authority to determine a presidential candidate’s eligibility

That is very close to the question before the Alabama Supreme Court of whether the Secretary of State has a duty to determine a presidential candidate’s eligibility. In the Alabama case (McInnish v. Chapman), the question is of a more general nature, and the Court may well not consider it moot. However, contrary to birther expectations, there will be no trial of Obama’s eligibility before any Alabama court.

Read more:

I told you so

It was over three years ago. Mario Apuzzo had commented on several threads on this blog and on one of them, he left this message:

It is not my intent to overturn Wong Kim Ark and I do not know from where you got that notion. Your comment leads me to believe that you do not understand my “natural born Citizen” argument.

On another thread, I commented on my ongoing discussion with Mr. Apuzzo:

I keep telling Apuzzo that he has to overturn Wong.

And I did say that quite a bit back in those days. Now Vermont Superior Court Judge Robert R. Bent says the same:

Mr. Paige has tendered a scholarly article authored by Attorney Mario Apuzzo of New Jersey…. While Mr. Apuzzo mightily attempts to distinguish the conclusion of the United States Supreme Court in Wing Kim Ark, that English common law was adopted as to which model of citizenship was intended by the original framers, this court concludes that his arguments are, in the face of such a decision, academic only.

What the judge is saying is that the Wong decision does apply as binding precedent on his court and whatever Apuzzo thinks about the founders’ intent is academic. To prevail in court Apuzzo has to overturn Wong.

I told you so.

Vermont judge tosses crank “natural born citizen” suit

Superior Court judge Robert Bent found the suit Paige v. State of Vermont “interesting” but fatally flawed for lack of standing and jurisdiction. In addition, the central thesis of the complaint was that US Presidents must have US citizen parents is just wrong, the judge writing:

The expression “natural born citizen” is not dependent on the nationality of the parents but reflects the status of a person born into citizenship instead of having citizenship subsequently bestowed.

Read the article at the Burlington Free Press.

Read the decision here:

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Paige denied injunction

H. Brooke Paige filed a lawsuit to keep Barack Obama off the November ballot in Vermont. Judge Robert Bent of the Vermont Superior Court was having none of it, reports the Burlington Free Press, refusing a request for a preliminary injunction barring Obama from the ballot, saying:

The court has been presented with a radically insufficient basis on which to issue a temporary or even a preliminary injunction

The judge cited, among other reasons, that the Plaintiff hadn’t even served President Obama with the complaint. While not ruling on the substantive argument of Paige’s complaint (the twofer theory that Obama’s non-citizen father makes him ineligible), the judge didn’t seem very sympathetic to the idea, saying:

The myriad versions of the claim that President Obama is ineligible for office because he is not a ‘natural born citizen’ have been litigated throughout the country exhaustively. They have never succeeded, usually on standing or jurisdictional bases.

It’s raining ballot challenges

Birthers all wet

weather map showing rainI commented that I expected a flurry of ballot challenges just in time to get ahead of reports of a flurry of ballot challenges. The election is just weeks away, so the courts and state elections commissions are having to expedite the process. Several prior cases were dismissed because they were premature, Obama not having been officially names as the Democratic Nominee yet.

First we noted Joe Montgomery’s later withdrawn objection in Kansas, plus Orly Taitz on the scene. Next it was three challenges in Illinois, all overruled by the Illinois State Elections Board today. Now another comes to light (filed Sept. 3) in Vermont by by H. Brooke Paige. Paige is was a Republican candidate for the US Senate from Vermont who lost in the primary. Most disturbing to me is that Mr. Paige is a fellow Lutheran.

Paige v. Condos

Paige says on his campaign web site:

imageFor years Vermonters have sent radical Socialist and "Liberals" to Washington, embarrassing our great state with plans and schemes designed to bankrupt Vermont and America.

I suppose Paige (photo right) is expressing his dislike for “radical Socialists” by trying to keep Barack Obama off the ballot in Vermont. Paige is representing himself in his lawsuit because he was “unable to secure competent Vermont counsel.” According to rather interesting narrative in supporting documents, no Vermont attorney will willing to represent Paige.

The 24-page complaint (embedded at the end of this article) indicates Paige is a follower of the Prussian/Swiss jurist Emerich de Vattel. It is unusual in a birther lawsuit citing Vattel to explicitly state the edition from which they take their text, but in this case Paige says that it is from 1797, 10 years after the Constitution was drafted. He doesn’t mention, however, that the phrase “natural born citizen” did not appear in the earlier English translations available to the framers.

Paige tells us that he had previously consulted with birther attorney Mario Apuzzo at length. The present complaint shows a rather clear derivation from Apuzzo’s arguments. (I didn’t check whether it is just copy and paste.) That’s a bad sign because the courts have already told Apuzzo that his legal theory is without merit.

Paige cites the following as authority for bringing suit:

[Doc scratches his head]

One of the problems that birthers have with these lawsuits is showing that the defendant, in this case Secretary of State James Condos, has a duty determine a candidates eligibility and to keep ineligible candidates off the ballot. Paige writes (Paragraph 104):

The Secretary of State has the power and authority to refuse to qualify a presidential candidate who has filed documentation with the State of Vermont seeking to be placed on the primary and general election ballot to be voted upon by Vermont voters when the constitutional eligibility of that candidate is objected to by a Vermont citizen…

However, he makes no citation of law at this point.

The second hurdle, of course, is that Paige’s theory is a collage of losers and misrepresented sources consistently rejected by every court to date that has looked at it. To someone who approaches this document trusting, it looks pretty impressive, but it’s all bunk under the microscope. I can see how someone like Paige could get misled, particularly someone disposed to see socialists running the government.

See for yourself:

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Burden of proof (Vermont 1907)

It is an established principle that the burden of proof in a criminal prosecution lies on the prosecution. A defendant may remain silent and be acquitted if the case against him is insufficient.

There is something a reversal of burden, however, in a quo warranto case, one in which the government, after meeting a threshold of likelihood, challenges the right of someone to hold office; the burden of proof lies with the office holder. Courts have ruled, however, that only the government may bring a quo warranto suit, and those made by private individuals have been summarily rejected by the courts.

That said, should some part of the government bring a quo warranto action against President Obama, would he be obliged to prove his eligibility? Perhaps not. I refer here to a case of the State of Vermont v. S. Hollister Jackson from the Supreme Court of Vermont in 1907, where the eligibility of the states attorney of Washington County was challenged because, it was claimed, he was not a citizen at the time of his election to office.

This is a petition for a writ of quo warranto to test the right of the respondent to hold the office of state’s attorney of Washington county. As the case is presented, the only question for our determination is: Was Mr. Jackson a citizen of the United States at the time of his election to the office in 1904? It is said that we were not in harmony with the authorities when we held, in State ex rel. Danforth v. Hunton, 28 Vt. 594. that in these proceedings persons in possession of an office are presumed to be regularly elected and entitled to hold until the contrary appears; and that the true rule is that in such cases the burden is on the respondent to show legal title to the office [see source for citations]…

However this may be, we regard it of no importance in this case as the citizenship of the respondent is presumed. This presumption arises from the mere fact of his residence here [see source for citations]… It was this rule which Judge Redfield had in mind when he said in Blood v Crandall 28 Vt at page 400 that the general presumption is in favor of citizenship.

The details of the case (which was dismissed) are not of particular interest to the Obama question since Mr. Jackson was not born in the United States.