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Voeltz III lawsuit miraculously dismissed

Photo of Larry KlaymanLarry Klayman filed three lawsuits against Barack Obama in Florida on behalf on an alleged Democrat, Michael Voeltz. Klayman (right) in his briefs indicates a certain frustration with having his cases dismissed because they were filed at the wrong stage in the election process. His response was to keep filing, I guess in hopes that he will find that magic time when some law exists to give him standing to challenge the eligibility of President Obama to office. What Klayman and Voeltz did not understand from their first two attempts in Florida is that the Courts have said that even if they had standing to challenge Obama, they are wrong on the law when they assert that US Presidents must have two US citizen parents.

Whether it was to shock Plaintiffs with what the real world looks like, or express the Courts displeasure at seeing the same lawsuit three times, or just to put a little seasonal cheer into an otherwise drab legal decision, Circuit Court Judge Kevin J. Carroll wrote this remarkable statement in dismissing the case:

This Court notes that President Obama lives in the White House. He flies on Air Force One. He has appeared before Congress, delivered States of the Union addresses, and meets with Congressional leaders on a regular basis. He has appointed countless ambassadors to represent the interests of the United States throughout the world. President Obama’s recent appointment of The Honorable Mark Walker, formerly a member of this Court, has been confirmed by the United States Senates. Judge Walker has been sworn in as a United States District Court Judge and currently works at the Federal Courthouse down the street. Movie photo of Judge HarperThe Electoral College has recently done its work and elected Mr. Obama to be President once again. As this matter has come before the Court at this time of year it seems only appropriate to paraphrase the ruling rendered by the fictional Judge Henry X. Harper from New York in open court in the classic holiday film Miracle on 34th St. “Since the United States Government declares this man to be President, this Court will not dispute it. Case dismissed.”

I am reminded of an early Obama eligibility case where a judge injected a little humor into a decision: Judge James Robertson of the US District Court for the District of Columbia wrote in Hollister v. Soetoro:

The issue of the President’s citizenship was raised, vetted, blogged, texted, twittered, and otherwise massaged by America’s vigilant citizenry during Mr. Obama’s two-year-campaign for the presidency, but this plaintiff wants it resolved by a court.

The birthers didn’t take that well. Rather than respond to the legal analysis presented by Judge Robertson, they focused on that single sentence to claim the dismissal was based on what the Judge found on the Internet. I can imagine that in the Voeltz case, they will say the case was dismissed wholly based on a fictional precedent from a fictional judge in a movie and not for the actual reason, lack of jurisdiction.

Increasing the Voeltzage

It’s alive!

Frankenstein Monster and electrican sparks

Attorney Larry Klayman has attached electrodes to the neck of the Voeltz v. Obama lawsuit, poured on the juice, and re-animated the twice-dead legal action. I’m not sure how the villagers of Tallahassee will respond to this monster stalking it’s courtrooms yet again.

Klayman got into trouble with an earlier argument that Obama had been nominated in the Florida Democratic Primary, when in fact there was no Florida Democratic Primary, and Obama was not “nominated” for office. This time around Klayman attacks the election of Barack Obama in Florida, but technically that isn’t true either. The President of the United States is voted on by the Electoral College, which meets December 17 and the President is not actually elected until the election is Certified by a joint session of Congress, and that happens on January 6 of 2013, and not in Florida.

The complaint is brought pursuant to the Florida statute on the contest of elections, §102.168. Here are the applicable requirements for challenging an election:

(1) … the certification of election … of any person to office … may be contested in the circuit court by … any elector qualified to vote in the election related to such candidacy….

(3) …The grounds for contesting an election under this section are:

(b) Ineligibility of the successful candidate for the nomination or office in dispute….

The issue here, as it was in the first challenge, is whether or not Barack Obama was elected. The election actually chooses members of the Electoral College, and their eligibility is not being challenged.

Certainly allegations of voting irregularities are covered by the statute because in effect members of the Electoral College from Florida are elected. The President, not so much.

The complaint summarizes the usual spurious Vattelist argument that US Presidents must have two US citizen parents. Klayman does one thing so utterly stupid that I could hardly believe it, arguing that Vattel’s book, The Law of Nations, was written into the Constitution in the phrase from Article 1, Section 8:

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

In the US Constitution, every noun is capitalized, but the word “the" is not in this clause, meaning it’s not the title of a book, and of course there is no mention of including Vattel’s book by reference in the Constitution from the records of the debate of the Federal Convention of 1787, any more than it references Blackstone’s chapter, “On Offences Against the Law of Nations.”

I give Klayman marks at least for being concise, 7 pages total.

Voeltz v. Obama Take II dismissed

Thanks to commenter donna (who is not a birther) for the tip. ;)

Attorney Larry Klayman should have known better, since he already lost Voeltz v. Obama, The Journey Begins, and the sequel was a rehash of the original just introducing a new cause of action, declaratory judgment. Circuit Judge John C. Cooper issued his order today dismissing the case.

The Democrats strike back

The Democrats and President Obama are taking the offensive, asking for sanctions in the form of attorney fees in two frivolous birther lawsuits, one in Tennessee and one in Florida.

Van R. Irion filed twin lawsuits in Tennessee and Arizona on behalf of the Liberty Legal Foundation and others. These are the usual birther lawsuits supplemented with two plaintiffs who are write-in candidates for President. In that case the Defendants (Democratic National Committee, Tennessee Democratic Party, Debbie Wasserman Schultz, and Chip Forrester) filed a motion for sanctions with the court under federal Rule 12(b). Judge S. Thomas Anderson of the United States District Court for the Western District of Tennessee court ruled:

…Plaintiff knew or reasonably should have known that the claims in this case had no basis in law. Specifically, counsel for Plaintiffs reasonably should have known that Plaintiffs lacked standing to pursue their claims…

The Court granted sanctions yesterday (August 24, 2012) in the form of reasonable attorney fees.

In Florida, attorney Larry Klayman re-filed his already dismissed lawsuit on behalf of Michael Voeltz, adding another cause of action, declaratory relief. Here too, the second lawsuit has drawn a motion for sanctions from Barack Obama through his attorney Mark Herron, brought under Florida statute 57.105.

Because much of Voeltz’ second lawsuit was already addressed by the Leon County Court, Defendants have a good argument that Voeltz should have known that the additional cause of action under the same allegations was equally frivolous. Herron concludes:

Wherefore, President Obama requests that the Court grant his motion for attorney’s fees and sanctions because the Plaintiff’s Complaint for Declaratory Relief is not supported by the material facts necessary to establish the claim and is not supported by the application of then-existing law to those material facts alleged.

The motion was filed on August 21, 2012.

The birther lawsuit count stands today at 152. To date, defendants have largely had a free ride to entangle the President and the Democratic Party (and in many cases state officials) in frivolous lawsuits. I think it is time for them to take responsibility for their actions and for the courts to mete out some justice.

What a revoeltzin’ development this is!

William BendixAttorney Larry Klayman filed a new case in Florida this past Tuesday on behalf of Michael Voeltz, dedicated advocate of various conspiracy and crank legal theories about Barack Obama. Judge Lewis already threw out one case from Voeltz/Klayman, saying specifically:

Plaintiff suggests the possibility of a declaratory judgment claim, but I don’t see how Plaintiff, as an individual voter, would have standing to seek declaratory relief. In short, I am unable to conceive of any other legal theory upon which the Plaintiff could proceed at this time relative to the relief sought.

Nevertheless, a claim for declaratory judgment is exactly what this new lawsuit asks for. In a declaratory judgment claim, a plaintiff asks for the court to declare the plaintiff has a right to something, or that someone else has an obligation. It’s done in anticipation of some future conflict. The judgment declares equitable or legal relationships between the parties (or the lack thereof).

In this case, Voeltz seeks two declarations:

  • Obama is not eligible
  • The Florida Secretary of State has a duty to “determine” the eligibility of Barack Obama (not any other candidate present or future) before he is placed on the ballot.

While on the surface “Obama is not eligible” sounds like a declaration, I do not think this is the kind of declaration that’s intended by the Statute. It’s rather more like “the earth is round” or “birthers should shut up.” There is no equitable or legal relationship between Michael Voeltz and Barack Obama, nor between him and Secretary of State Detzner.

In the complaint Voeltz isn’t asserting any rights (unlike the Collette case where Collette does claim that he has a right not to be governed by an ineligible President). On the other hand, it is clear that the second relief sought is a declaration of an obligation on the part of the Secretary of State of Florida to “determine” the eligibility of Barack Obama to be on the general election ballot.

In both instances, I fail to see how Voeltz has standing to bring the suit. The authority for declaratory judgments in Florida is in Chapter 86 of the Florida code. Specifically, those who can plead for declaratory judgments are:

86.021  Power to construe.–Any person claiming to be interested or who may be in doubt about his or her rights under a deed, will, contract, or other article, memorandum, or instrument in writing or whose rights, status, or other equitable or legal relations are affected by a statute, or any regulation made under statutory authority, or by municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing may have determined any question of construction or validity arising under such statute, regulation, municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing, or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder.

Continue Reading →

Voeltz case dismissed with prejudice

Circuit Judge Terry P. Lewis has the dismissed the amended complaint in the Florida ballot challenge,  Voeltz v. Obama with prejudice (it cannot be fixed with amendment).  In an 7 page order, Judge Lewis cited several reasons for the dismissal, most importantly that Florida law does not provide for challenges to presidential party primaries in the state.

Judge Lewis made the following additional points:

  • Under Florida law, the Secretary of State has no duty or even authority to inquire as to the eligibility of candidates.
  • As a matter of law, persons born in the United States are citizens at birth and eligible to the Presidency (citing Hollander v. McCain and Ankeny v. Governor of Indiana).
  • Plaintiff does not have standing to bring a claim for declaratory judgment.

Judge Lewis, dismissing the complaint with prejudice, said:

I am unable to conceive of any other legal theory upon which the Plaintiff could proceed at this time relative to the relief sought.

Plaintiff Voeltz previously described Judge Lewis as “professional” and “fair.” The decision follows. Continue Reading →

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