Posted on 09/24/2008 9:51:59 PM PDT by solfour
Answer to Berg's Complaint Due Today from Obama, DNC
Obama and the DNC have until midnight tonight to serve an answer to Philip Berg's complaint, so keep checking here for updates throughout the day. The first one was really a conglomeration of ideas tossed around my head throughout the morning, hence the "9:00am to 1:00pm" label. Still, as things develop--or perhaps do not--there should be more to see.
-- Jeff
5:30pm
I just got off the phone with Phil Berg, and put in a few questions to the attorney who filed the motion. I'd really like to give the latter a chance to respond, so for a more salient synopsis sometime this evening. Until then, you've got the details below.
The PDF of the motion can be found by clicking HERE (thank you to one of our readers, a self-proclaimed "advocate for constitutional rights").
3:30pm
MOTION TO DISMISS FILED.
A few stream-of-consciousness notes until I've had time to put everything together...
The grounds cited:
(1) Court lacks subject matter jurisdiction. (2) Berg failed to present a claim upon which relief can be granted.
"Plaintiff's allegations regarding Sen. Obama are patently false, but even taking them as true for purposes of this Motion, plaintiff's suit must be dismissed immediately. This Court lacks subject matter jurisdiction because the plaintiff has no standing (emphasis added by me) to challenge the qualifications of a candidate for President of the United States. Plaintiff fails to state a claim in any event because there is no federal cause of action asserted in the Complaint."
NOTE: Don't get all hung up on the "taking [the allegations] as true for purposes of this Motion" stuff. That's completely normal, and nothing to read into.
My gut tells me that Judge Surrick has an order just waiting for this motion to be filed...
I was on the telephone with Berg when the motion appeared on the docket. He declined to comment until he had a chance to look at it himself.
"In order to establish the “‘irreducible constitutional minimum of standing’ under Article III of the Constitution” plaintiff must show, first, an “‘injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, . . . and (b) actual or imminent, not conjectural or hypothetical.’
In this case, Mr. Berg fails to allege an y concrete, specific injur y in fact to [apparent typographical error] In this case, Mr. Berg fails to allege any concrete, specific injury in fact to be ineligible, “plaintiff as well as other Democratic Americans will suffer Irreparable Harm including but not limited to: (1) Functional or Actual, Disenfranchisement of large numbers of Citizens, being members of the Democratic Party, who would have been deprived of the ability y to choose a Nominee of their liking . . . .” It is well-established, however, that a voter’s loss of the ability to vote for a candidate “of their liking” does not confer standing because the actual injury is not to the voter but to the candidate. “[A] voter fails to present an injury-in-fact when the alleged harm is abstract and widely shared or is only derivative of a harm experienced by a candidate.” (emphasis added by me)
This is exactly what I figured it would be. They cited the Jones v. Bush case, where voters sued to challenge the Bush-Cheney ticket because both were inhabitants of the same state (Texas), and that court's finding of a lack of a "distinct and palpable injury."
And, as I thought, they cited the recent Hollander v. McCain decision from New Hampshire.
On the subject matter jurisdiction angle, the defense attorneys cited authority suggesting that the Declaratory Judgment Act cited by Berg "has only a procedural effect" and "does not create subject matter jurisdiction."
Now, we just need to see if my gut--ample as it may be--is correct on the pending order from the Hon. R. Barclay Surrick...
Keep checking here for details, and expect a more finessed approach, hopefully complete with a reaction from Berg--and Obama's folks, if they'll talk to me--at some point tonight.
9:00am to 1:00pm
Today is "Answer Day" with regard to Berg v. Obama, so keep checking back here from time to time should I hear anything from my contacts in the federal courthouse.
I expect something will be filed--motion to dismiss or for motion for extension of time--and probably, for insulation purposes, by the DNC and not by Obama's camp, and will keep everyone here abreast of any changes. On the off-chance that nothing is filed today, I'll do my best to obtain comment from Phil Berg and will attempt to present details, options and analysis later this evening. Still, we might not know anything for sure until tomorrow morning.
Under Rule 12(a)(1)(A) of the Federal Rules of Civil Procedure, a defendant must serve an answer within 20 days of being served with the summons and complaint.
Barack Obama and the DNC were served on September 4. Therefore, pursuant to the FRCP, they have until midnight tonight to file their answer to the complaint filed by Philip Berg on August 21. To quote my very own Pre-Trial Advocacy textbook, "[s]ince a complaint must be answered, failing to answer will constitute an admission of all facts alleged in the complaint."
This is why, when everyone asks me via e-mail whether I think Barack Obama or the DNC will file an answer by the end of today, I say "yes." However, he could technically avoid making any sort of answer for another 40 days. Obama could very well allege, after the fact, that he is an officer of the United States and, according to Rule 12(a)(3), should be given 60 days--rather than the 20 days mandated by Rule 12(a)(1)(A)--on the grounds that he was sued in his official capacity for actions or omissions which occurred in connection with the work he performs on behalf of the nation. It would be up to the judge, I guess, to determine whether campaigning for president is considered a duty "performed on the United States' behalf" as required by the rule.
There are a myriad of defenses with which Obama and/or the DNC could respond. However, I'm inclined to think, due to the nature of this case and of the previous cases against John McCain, that any one of the defendants will fire the first shot with a motion to dismiss on grounds that Berg lacks standing.
For both sides, there are numerous options in terms of strategy. I'll flesh some of those out as things progress today and as it is appropriate to do so.
"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus
I don’t understand why you feel he need to stop in.
Wouldn’t something that wastes bandwidth also waste your time.
No disrespect, but this is last reply because you are wasting mine if you just want to toss a turd in the punch bowl.
I really thought this would be dismissed and over tonight.
From the motion — “...for failure to state a claim upon which relief can be granted...”
For crying out loud, producing the COLB would be the “claim upon which relief could be granted”
"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus
Do you think the judge had to re-consider as a result of this?
"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus
Very true gold, it only matters to those of us who want an American President.
I thought that held true for everyone here but it certainly doesn’t.
Damn, it’s too late for me to take this all in right now and I have to still put out a POST outing YouTube as a commie site that propagandizes for Obambi everyday.
I never thought it would be this nasty and in your face but its international and we know who the “outside” wants.
Yup! The guy that will weaken America the most, apologize daily, and neuter our defenses.
If he is removed, I can picture riots in the streets, that makes the sixtieths' pale in comparison!!!
“The law is an ass.”
This garbage about “standing” is just a way for the courts to avoid getting involved in what they’d rather have decided at the ballot box.
And if a person who is actually ineligible does get elected...? The courts seem to be saying that only a defeated candidate has standing to sue in that situation; and so if McCain didn’t sue after the fact, Hussein reigns as an ineleigible President. And who the hell can do anything about it, because felons and illegal aliens put him over the top...
That might be the plan. Disrupt the nation, cancel the election, force a revolution...
Posters keep asking “why doesn’t Hussein just produce his authentic birth certificate instead of using legal motions and technicalities?”, etc.
One reason is because Berg’s suit is about much more than just where Hussein was born; in fact the complaint says that even if Hussein can prove that he was in fact born in Hawaii, there are a myriad of other disqualifying factors (such as later dual and/or exclusive citizenship in Indonesia due to his adoption/residence there, lying about names used on his Illinois bar application, and so on).
Hussein wants the suit tossed on lack of standing so he doesn’t have to answer all the allegations, and it probably will be thrown out.
The courts seem to say that if a competing candidate doesn’t sue, and if the voters actually elect an ineligible candidate, noone can do anything about it!
This raises numerous questions. First he gets into office basically illegally as he would/could be ineligible. Even though people vote for him knowingly or more likely unknowingly of the real truth.
Flash forward 3-4 years. All this stuff comes out and he is removed from office. Potentially Biden and cohorts are accessories and booted too?
Do all the socialist laws, treatise, etc. become null and void? Sort of like when someone gets married and then finds out the officiant wasn't legally able to marry them?
It's a nuisance suit. The last thing Obama would want to do is do what its demanding he do.
Then prove it.
In order to prove standing he has to show how he is injured by Obama's actions.
Berg also doesn't believe that the 9/11 attack was caused by al Qaida.
Because he doesn't have to.
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