Posted on 04/16/2010 12:06:30 PM PDT by Elderberry
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ORLY TAITZ,
Plaintiff,
v. Civil Action 10-151 (RCL)
BARACK HUSSEIN OBAMA, Defendant.
MEMORANDUM OPINION
Before the Court is the defendant’s motion [18] to dismiss the first amended complaint and Christopher Strunk’s motion [6] to intervene. Also pending before the Court is the plaintiffs motion [17] to consolidate this case with an action currently pending in the United States District Court for the Northern District of Florida. Upon consideration of the motion to dismiss, the applicable law, and the entire record herein the motion will be granted for the reasons set forth below. After consideration of the motion to intervene, the opposition, the applicable law, and the entire record herein the motion will be denied for the reasons set forth below. After consideration of the motion to consolidate, the opposition, and the applicable law, the motion shall be denied without prejudice as this Court lacks jurisdiction to hear it.
(Excerpt) Read more at nativeborncitizen.wordpress.com ...
Perhaps checks and balances in government haven't been discarded but that you weren't taught how they work.
However in Andrade it was noted that if the AG or US Attorney has a conflict of interest “equity” may come into play. In Andrade it was that the AG appointed the public official being challenged with quo warranto while with Obama, it is Obama who appointed the AG and US Attorney.
Here is Andrade link and a quote:
http://bulk.resource.org/courts.gov/c/F2/729/729.F2d.1475.82-1880.html
Applying the de facto officer doctrine would likely leave plaintiffs seeking to challenge the regularity (and, even more important, the constitutionality) of the appointment of government officers without any remedy at all and would thus render the legal norms under which appellants are proceeding unenforceable. Courts that bother to explicate the meaning of “direct” attack for purposes of the de facto officer doctrine usually state that the “direct” attack which the doctrine provides as the exclusive remedy is a quo warranto action. See, e.g., Greeting Card, 569 F.2d at 579 n. 24; Czepil v. Hershey, 425 F.2d 251, 252 (7th Cir.), cert. denied, 400 U.S. 849, 91 S.Ct. 44, 27 L.Ed.2d 87 (1970); Barrett v. Craven County Board of Education, 70 F.R.D. 466, 482-483 (E.D.N.C.1976). Quo warranto actions in federal courts seem to be governed by the provisions of 16 D.C.Code Secs. 3501-3548 (1981), see Newman v. United States ex rel. Frizzell, 238 U.S. 537, 551-552, 35 S.Ct. 881, 885, 59 L.Ed. 1446 (1915) (discussing predecessor of current statute); Application of James, 241 F.Supp. 858 (S.D.N.Y.1965). Yet these provisions place a series of obstacles in the path of any plaintiff. A plaintiff must first apply to the Attorney General or the United States Attorney to bring the action on his behalf in the District Court for the District of Columbia, see 16 D.C.Code Secs. 3501-3502, and these officials have broad discretion—especially in cases involving public officials, as opposed to corporate officers—to refuse to sue, see United States ex rel. Noel v. Carmody, supra, 148 F.2d at 685; Application of James, supra, 241 F.Supp. at 860. If they refuse to act, an “interested person” may petition the court for leave to have the writ issued in his own name, 16 D.C.Code Sec. 3503, but the court, too, has broad discretion to deny the writ, see Columbian Cat Fanciers, Inc. v. Koehne, 96 F.2d 529, 532 (D.C.Cir.1938). Moreover, this court has stated that actions against public officials (as opposed to actions brought against officers of private corporations) can only be instituted by the Attorney General. See United States ex rel. Noel v. Carmody, supra, 148 F.2d at 685.
65
The above procedure is cumbersome and could easily operate to deprive a plaintiff with an otherwise legitimate claim of the opportunity to have his case heard. For instance, the Attorney General was responsible for appointing appellees Diegelman and Lauer to their jobs. Requiring appellants to convince the Attorney General to file a quo warranto action on their behalf in this case would effectively bar their access to court. If appellants attempted to petition the court for leave to have the writ issued under 16 D.C.Code Sec. 3503, they would face the difficult task of persuading the court that they were “interested persons.” In feudal times, when the writ of quo warranto originated, public offices were similar to a form of property right, and a quo warranto action was like an action of ejectment, in which the only party who could bring a lawsuit was a claimant who sued to regain possession from one who was unlawfully in possession. Some courts have continued to insist that only a claimant to the defendant's office is sufficiently “interested” to bring a quo warranto action. See Columbian Cat Fanciers, Inc. v. Koehne, supra, 96 F.2d at 532; Application of James, supra, 241 F.Supp. at 859; cf. Newman v. United States ex rel. Frizzell, supra, 238 U.S. at 544, 35 S.Ct. at 882 (quo warranto “came to be used as a means of determining which of two claimants was entitled to an office”). But cf. id. at 551, 35 S.Ct. at 885 (recognizing that “there might be cases under the civil service law in which the relator would have an interest and therefore a right to be heard”); United States ex rel. Noel v. Carmody, supra, 148 F.2d at 684-685 (in cases involving private corporations stockholder can bring quo warranto action against corporate officer even if stockholder himself does not claim office; distinguishing cases involving public officials).
66
Given these restrictions, quo warranto is an extremely difficult and uncertain remedy for the type of claim at issue in this case. This court has held that equity will not be barred from issuing an injunction to restrain invalidly appointed officers if the alternative remedy of quo warranto is inadequate. Columbian Cat Fanciers, Inc. v. Koehne, supra, 96 F.2d at 532. Although that case involved a private corporation rather than public officers, it suggests the appropriate course to follow in this case: the court should avoid an interpretation of the de facto officer doctrine that would likely make it impossible for these plaintiffs to bring their assumedly substantial constitutional claim and would render legal norms concerning appointment and eligibility to hold office unenforceable.38
67
With the above considerations in mind, we hold that appellants’ action here was not necessarily barred by the de facto officer doctrine,39 for the purposes of the doctrine can be served without causing the above unfortunate results. The core purposes of the doctrine are served if a plaintiff challenging government action on the ground that the officials taking that action improperly hold office meets two requirements. First, the plaintiff must bring his action at or around the time that the challenged government action is taken. Second, the plaintiff must show that the agency or department involved has had reasonable notice under all the circumstances of the claimed defect in the official’s title to office. This does not require that the plaintiff perform any particular rituals before bringing suit, nor does it mandate that the agency's knowledge of the alleged defect must come from the plaintiff. It does, however, require that the agency or department involved actually knows of the claimed defect.
Yawn.
I’m not going anywhere. If you can’t handle it, tough.
It would probably be better for your blood pressure to simply avoid responding to my posts.
Under the Constitution, Congress has exclusive authority to remove the President from office. Just like it has exclusive authority to remove Federal Judges from office, and members of Congress from office.
The fact that Congress won't act exercise that authority in a manner pleasing to Birthers, doesn't allow them to change the Constitution.
The only thing that will do my BP any good would be getting bammie out, you I could care less about.
This is a misstatement of fact by the judge. The suits have not been an "attempt to prove that President Obama is not a natural born citizen." They have been an attempt to force the man known as Obama to prove that he is constitutionally-qualified to be President.
There is a world of difference between these two things.
The judge's inaccurate construction places a burden on the people to prove something they can't prove sans the court's power to force the production of all relevant documents; documents Obama has consistently covered up, when they are easily producible by him.
The latter puts the burden where it belongs: on the office-seeker/holder to prove that he is actually constitutionally-qualified.
No. Just as a number of Freepers have tried to tell Birthers many, many, many, times, the Courts can't do what you are asking them to do.
Even if you could prove, with competent, admissible evidence, that the innuendo, supposition, and speculation, that Birthers recite as facts, are indeed factually correct, the Courts don't have the power to remove the President from office, for any reason. So the courts will not waste time searching for facts that the tribunal that can remove the President from office, Congress, might use to do just that.
You want Obama out of office? Get to work and elect members of Congress who want him out of office.
Doesn’t bother me at all, we all just laugh and point anyway.
The only thing that will do my BP any good would be getting bammie out, you I could care less about.
So if only Biden, the AG or the US Attorney have “standing”, what remedy is there for Quo Warranto? Nothing? End of line?
Help me out here. How is it that Taitz represented Alan Keyes et all. Who is assisting and behind her efforts. Does anyone know? Are others using her as a front b/c no one wants to do it? I”m just confused why someone like Alan Keyes would let her represent him given the incompetence factor that some think she has? Last question I promise...What has become of Berg’s cases and does anyone have a list of cases pending or have all been rejected by the courts?
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Courts that bother to explicate the meaning of “direct” attack for purposes of the de facto officer doctrine usually state that the “direct” attack which the doctrine provides as the exclusive remedy is a quo warranto action. Yep, that's just as I said yesterday on a different thread. The “de facto officer doctrine” is a relatively modern concept created for the convenience and stability of government if for some reason one of their officials is found to be illegitimate. If he is found to be illegitimate and not duly qualified for that office, all of his actions still remain intact ... with the important caveat that the officer MUST have acted in “good faith”. If his authority was derived and applied via fraud, i.e., falsified employment qualifications, then all bets are off. Regardless, similar to the Book of Narnia where the Old Law trumps the law, quo warranto trumps the “de facto officer doctrine”. Again, it literally means, "by what warrant" do you hold your office? The writ of quo warranto first came into prominence in early medieval times, when it was a successful weapon in the hands of Norman Kings for curbing the power of the strong feudal barons. It was inevitable that the action of the king, in requiring all claimants of royal privileges to abandon their claims -or- substantiate them with documentary evidence, should create discontent, but it was not to be denied that such action was proper on the theory of the king's lawyers that every franchise presumed a grant from the crown. It is clear that quo warranto was originally intended solely as a royal weapon, but later it seems to have developed that a private individual could make use of the writ by informing the proper royal officials to PROVE that they legitimately posses the RIGHT of the status and power they wield as a ruler. |
Well we’re waiting. Since you have such a handle on it why not file and do it right? Some body needs to do it.
The DC Court of Appeals said “This court has held that equity will not be barred from issuing an injunction to restrain invalidly appointed officers if the alternative remedy of quo warranto is inadequate.”
I'm not a lawyer, but I believe that the word "equity" in this quote is a specific legal term of art meaning the following:
"The principles of justice used to correct or supplement the law as applied to particular circumstances. For example the judge decided the case by equity because the statute did not fully address the issue. In this sense it is also termed natural equity"
http://definitions.uslegal.com/e/equity/
I think the point the DC Appeals Court was making is that it would be unjust to require an injured interested party to make a quo warranto demand on a public official only from AG or US Attorney if the AG and US Attorney have a conflict of interest. This would create the possibility of an "equity exception" to the ruling of this same appeals court that all quo warranto demands must go through the AG or US Attorney. Such an equity exception would allow the court to go around the AG and US Attorney to grant quo warranto to an interested party with standing.
Here is some of the context that preceded this quote from the passages I posted earlier in this thread:
“For instance, the Attorney General was responsible for appointing appellees Diegelman and Lauer to their jobs. Requiring appellants to convince the Attorney General to file a quo warranto action on their behalf in this case would effectively bar their access to court. If appellants attempted to petition the court for leave to have the writ issued under 16 D.C.Code Sec. 3503, they would face the difficult task of persuading the court that they were “interested persons.” In feudal times, when the writ of quo warranto originated, public offices were similar to a form of property right, and a quo warranto action was like an action of ejectment, in which the only party who could bring a lawsuit was a claimant who sued to regain possession from one who was unlawfully in possession. Some courts have continued to insist that only a claimant to the defendant's office is sufficiently “interested” to bring a quo warranto action.”
“Given these restrictions, quo warranto is an extremely difficult and uncertain remedy for the type of claim at issue in this case. This court has held that equity will not be barred from issuing an injunction to restrain invalidly appointed officers if the alternative remedy of quo warranto is inadequate.”
“Who is assisting and behind her efforts. Does anyone know? Are others using her as a front b/c no one wants to do it? “
I have been trying to answer that question. It looks like Gary Kreep first brought her into the courtroom. Before that, she seemed to just do medical malpractice legal work for her own dental practice. FWIW, she also got a real estate license so she could save the commission on a house sale.
I have suspicions about who is behind it, but I can not find proof. Let’s just say its somebody who has a history of doing smear work and whose associate is located in Laguna Niguel. Maybe one day Orly will tell all.
parsy, who has vibes and zero proof
Like these chaps: http://www.texascherokeenation.org/
Bunch of quitters
I don't know who put together this list but it's updated pretty regularly:
I think “pitchfork and torches” time is getting closer and closer. Then maybe courts, judges and congresscritters will start to realize something needs to be done about the usurper.
Thank you.
Who in the eyes of the court, then, could possibly be an injured interested party? That seems to be the difficulty (legal dancing on heads of pins, I think there millions of injured in reality).
You might say that about somebody else. I was
never a fan of his.
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