Posted on 10/25/2008 11:45:25 AM PDT by WmShirerAdmirer
Philip Berg's lawsuit challenging Illinois Sen. Barack Obama's constitutional eligibility to serve as president of the United States had been dismissed by the Hon. R. Barclay Surrick on grounds that the Philadelphia attorney and former Deputy Attorney General for the Commonwealth of Pennsylvania lacked standing.
Lawsuit Against Obama Dismissed from Philadelphia Federal Court
Excerpted from: http://www.americasright.com/
The order and memorandum came down at approximately 6:15 p.m. on Friday. Philip Berg's lawsuit challenging Illinois Sen. Barack Obama's constitutional eligibility to serve as president of the United States had been dismissed by the Hon. R. Barclay Surrick on grounds that the Philadelphia attorney and former Deputy Attorney General for the Commonwealth of Pennsylvania lacked standing.
Surrick, it seemed, was not satisfied with the nature of evidence provided by Berg to support his allegations.
Various accounts, details and ambiguities from Obama’s childhood form the basis of Plaintiff’s allegation that Obama is not a natural born citizen of the United States. To support his contention, Plaintiff cites sources as varied as the Rainbow Edition News Letter … and the television news tabloid Inside Edition. These sources and others lead Plaintiff to conclude that Obama is either a citizen of his father’s native Kenya, by birth there or through operation of U.S. law; or that Obama became a citizen of Indonesia by relinquishing his prior citizenship (American or Kenyan) when he moved there with his mother in 1967. Either way, in Plaintiff’s opinion, Obama does not have the requisite qualifications for the Presidency that the Natural Born Citizen Clause mandates. The Amended Complaint alleges that Obama has actively covered up this information and that the other named Defendants are complicit in Obama’s cover-up.
A judge’s attitude toward the factual foundation of a plaintiff’s claims is an essential factor in understanding just who indeed has standing to sue. The question running to the heart of the standing doctrine is whether or not the plaintiff indeed has a personal stake in the outcome of the otherwise justiciable matter being adjudicated. As has been discussed before many times here at America’s Right, a plaintiff wishing to have standing to sue must show (1) a particularized injury-in-fact, (2) evidence showing that that the party being sued actually caused the plaintiff’s particularized injury-in-fact, and (3) that adjudication of the matter would actually provide redress.
In this case, Judge Surrick’s attitude toward the evidence presented by Berg to support his allegations figures in heavily because, while there is a three-pronged test to standing in itself, there is no definitive test by which the court can determine whether a certain harm is enough to satisfy the first element of that three-pronged test by showing true injury-in-fact. Traditionally, it hasn’t taken much to satisfy the need for an injury-in-fact, but as the plaintiff’s claimed injury is perceived as being more remote, more creative, or more speculative, the injury-in-fact requirement becomes more difficult to satisfy.
As it were, much of Berg’s basis for injury-in-fact could be considered threatened injury–he felt that the country was at risk for “voter disenfranchisement” and that America was certainly headed for a “constitutional crisis”—and, while threatened injury can certainly be injury enough to satisfy the injury-in-fact element, such satisfaction depends upon the threat being perceived by the judge as being not too creative, speculative or remote.
When it came to Philip Berg’s personal stake in the matter at hand, Surrick compared his action with those of Fred Hollander—the man who, earlier this year, sued Sen. John McCain in New Hampshire on grounds that, born in the Panama Canal Zone, he was not a natural born citizen—and held that Berg’s stake “is no greater and his status no more differentiated than that of millions of other voters.” The harm cited by Berg, Surrick wrote, “is too vague and its effects too attenuated to confer standing on any and all voters.”
So, who does have standing? According to the Hon. R. Barclay Surrick, that's completely up to Congress to decide.
If, through the political process, Congress determines that citizens, voters, or party members should police the Constitution’s eligibility requirements for the Presidency, then it is free to pass laws conferring standing on individuals like Plaintiff. Until that time, voters do not have standing to bring the sort of challenge that Plaintiff attempts to bring in the Amended Complaint.
Judge the 34-page memorandum. In one such instance, Surrick noted that Berg had misinterpreted the Federal Rules of Civil Procedure in asking the court to permit him to amend his complaint. The first amended complaint was deemed admitted by Judge Surrick on grounds that, under FRCP 15(a), a party can amend once so long as it’s done before being served with a responsive pleading and that [just as I had not-so-confidently suggested] the motion to dismiss filed on Sept. 24 by Obama and the DNC was not a responsive pleading. Because Berg perceived the motion to dismiss as a responsive pleading and was waiting on the court to grant or deny the motion for leave to amend, he did not serve the additional defendants added in the amended complaint. This, too, was noted by Surrick.
Berg’s attempts to distinguish his own case from Hollander were deemed by Surrick to be “[h]is most reasonable arguments,” but his arguments citing statutory authority were said by the judge to be a venture “into the unreasonable” and were “frivolous and not worthy of discussion.” All in all, the judge wrote, it was the satisfaction of the injury-in-fact requirement which was the problem. Berg’s harm was simply too intangible.
…regardless of questions of causation, the grievance remains too generalized to establish the existence of an injury in fact. To reiterate: a candidate’s ineligibility under the Natural Born Citizen Clause does not result in an injury in fact to voters. By extension, the theoretical constitutional harm experienced by voters does not change as the candidacy of an allegedly ineligible candidate progresses from the primaries to the general election.
Intangible or not, Berg said, we have a case where "an American citizen is asking questions of a presidential candidate's eligibility to even hold that office in the first place, and the candidate is ducking and dodging questions through legal procedure."
In fact, the motion to dismiss and motion for protective order filed by Barack Obama and the DNC were not only proper but also an expected maneuver by the defense attorneys. The very idea behind such motions is to foster the adjudication of the matter with minimal damage to the named defendants, and both are measures used more often than not. Still, Berg believes there is more to it.
"While the procedural evasions may be proper," Berg said, "it only makes me believe more that we were correct in the first place, that Obama does not have the documentation we've requested."
While the evidence presented by Berg was largely circumstantial, the attorney says that he is learning more about this narrative--and about the Democratic Party nominee for president--with each passing day. For example, regardless of whether it could be attached to the proceeding as it goes through the appellate process, Berg said, he is in possession of a native-language audiotape of Sarah Obama, Barack Obama's paternal grandmother, stating on the day of the last presidential debate that her famous grandson was indeed born in Kenya, and that she was present in the hospital for his birth. This is only an excerpt (More of article at: http://www.americasright.com/2008/10/lawsuit-against-obama-dismissed-from.html )
All rights and credit to Jeff Schreiber
Excerpted from: http://www.americasright.com/2008/10/lawsuit-against-obama-dismissed-from.htmlAll rights and credit to Jeff Schreiber
I’m not surprised but Surrick could have made this call 30 seconds after he received the case.
One in a lower court, no way!
Yes, but by waiting, he removes a lot of options until after the election. The bet is, that if 0bama wins, no court, including the Supremes, will want to "go against the will of the people" and the Constitution be damned.
Dr., at this point I will remind you that you are clinically insane, so the above can be interpreted in that light.
Wright is a non-issue. He already got his airtime and the Dems countered with Hagee. Obama was not hurt by Wright in the eyes of the chuckleheads who are enamored with his exterior paint job (they certainly have done no snooping under the hood).
If the serious question of Obama's citizenship were to get major airtime I think even you would acknowledge the likely damage to Obama.
Thank you.
“real silver bullets”
heh heh
very funny
It ain’t over. There are 7 other lawsuits filed.
We also need to slamming Obama on the 401K nonsense that is now before thew House Ways and Means committee. Put him on the spot (on the record) and MAKE HIM DEFEND TAXING EVERYONE’S 401K PLAN. Get John McCain on the record stating he will veto any such bill that appears on his desk. Then play it up for all it is worth.
There is at least one case, however, in southern California, where the candidate/office holder was running for reelection when it was established that she was an illegal alien, with no right even to register to vote, much less to run for public office.
The problem with amateurs in election law bringing cases like this is they do not know and use the prior cases which demonstrate how to establish jurisdiction in a way that the trial court cannot deny it. Of course, any judge wants a case like this to go away without having to decide it. That's exactly why the case has to be set up properly from the get-go.
Berg blew it, and gave the judge an opening to throw the case out. IMHO. I hope the case is better handled when it is filed in all states that Obama wins, to obtain a court order that his Presidential Electors cannot vote for him because he is not qualified to be elected President.
These things are relatively simple. But you've got to KNOW WHAT YOU ARE DOING.
Congressman Billybob
Latest article, "Brides from a War Long Ago"
The Declaration, the Constitution, parts of the Federalist, and America's Owner's Manual, here.
A far more likely path to get the issue into Court would be a suit by a State Secretary of State seeking a Declaratory Judgment as to whether he can properly certify Obama’s candidacy and electors on the November ballot. That should take care of the Standing Issue. A slightly weaker but still possible method might be a suit in Mandamaus, to compel the Secretary of State to determine Obama’s eligibility, etc..
Focus on what you want. And be sure to ping us all on those laser-beamed focused ‘important issue’ threads you want us all to comment on.
Thanks
The Purpose of the Constitution is to limit the government.
If only the government can determine if its been breached then the Constitution become only a piece of useless paper.
Thanks for the information and clarification too. Do you think that the case in Washington and Georgia, (”Lawsuits in Washington and Georgia are seeking state superior courts to force the states’ secretary of state, as the chief state elections officer, to require Obama to produce original birth records from Hawaii, or else decertify him as a candidate for the presidency.” (from: http://www.newsmax.com/headlines/obama_birth_certificate/2008/10/24/143882.html )will have any standing?
It's not over. Berg is appealing it.
BTW, DrHannibalLecter. Welcome to Free Republic.
Does your fortune 50 company offer keyboard short courses to marketing gurus?
Klepto meet COngressman Billybob, BB meet K.
Thought you two might enjoy each other’s posts.
Only a person who could show significant personal damage has standing. For this case, that would be another presidential candidate. If no other candidate raises the issue they are presumed to waive any objection to possible disqualifying deficiencies.
This line of reasoning is, of course, appalling in a democracy. Basicaly, it says only those contending to be among the governing class have standing. The rest of us are assigned to the status of “commoners” or “peasants.”
With public eduation brainwashingthe vast majority it is only a matter of time before we lose all of our freedoms. We are, indeed, on the road to serfdom.
Yes, but also a Hitlery supporter.
Awesome Thanks!!!!!!!
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