DEFENDANT’S, BARACK HUSSEIN OBAMA AND THE DEMOCRATICNATIONAL COMMITTEE’S MOTION

Philip J. Berg filed a response this afternoon to the motion for dismissal filed last week in Berg vs. Obama by Senator Obama and the Democratic National Committee. The response "PLAINTIFF’S OPPOSITION AND BRIEF IN SUPPORT THEREOF TO DEFENDANT’S, BARACK HUSSEIN OBAMA AND THE DEMOCRATIC NATIONAL COMMITTEE’S, MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO RULE 12(b)(1) and 12(b)(6)" asserts that, the defendants' argument to the contrary, Mr. Berg has standing to pursue the case.

Mr. Berg provides precedents which he argues establish his standing and petitions the Court to deny dismissal and order the defendants to produce the documents in the previously requested discovery.

Plaintiff served discovery in way of Admissions and Request for Production of Documents, on Defendants on September 15, 2008 and has attempted to obtain verification of Obama’s eligibility through Subpoenas to the Government entities and the Hospital’s in Hawaii. To date, Plaintiff has not received the requested discovery from the Defendants and two (2) of the locations, which subpoenas were served upon, refused to honor the subpoena. For the above aforementioned reasons, Plaintiff respectfully request Defendants Barack Hussein Obama and the Democratic National Committee’s Motion to Dismiss pursuant to F.R.C.P. 12(b)(1) and 12(b)(6) be denied and order immediate discovery, including but not limited to: 1) a certified copy of Obama’s “vault” (original long version) Birth Certificate; and (2) a certified copy of Obama’s Certificate of Citizenship; and (3) a certified copy of the Oath of Allegiance taken by Obama taken at the age of majority. If the Court is inclined to grant Defendants motion, Plaintiff respectfully requests the opportunity to amend his Complaint pursuant to the findings of this Honorable Court. The complete filing is attached. Due to a problem with the Electronic Filing System, the filing was made via fax and will appear in PACER later this evening or on Tuesday.

On my birth certificate from Florida, there are notations for previous live and still births.

This information could be considered sensitive and something that one might want to keep private.

Whatever may be on Obama's COLB, it is hard for me to have any sympathy for someone who colluded with the press to have has opponent's sealed divorce records made public, as Obama did in his US Senate race.

The more I see of Obama, the more I think he's an arrogant snob, who gives himself props for "slumming it" as a community organizer and who thinks he is above the rules set up for us commoners.

Canedawg said “That can not be his opposition to the motion- that is a proposed order on the motion that he purportedly submitted to be signed. Where is his opposition?”

The proposed order is page 1 of the doc; the rest is his opposition brief.

SlapHappyPappy said “Just tell me he didn’t cite Wikipedia again in the response.”

Uh .. well. Yes, he did. The funny thing is that both pages have changed now

VigilantAmerican said “But it wouldn’t have settled anything ...”

I agree. Berg’s complaint has so many theories in it that even if Obama did attach a verifiable, certified COLB, they would still say that he’s not eligible, and probably add a few more theories.

With respect to “felonius perjury on his application to the Illinois bar” – that claim has been debunked by America’s Right at http://www.americasright.com/2008/08/berg-v-obama-update-wednesday-august-27.html.

Myrddin said: “The lawsuit would be history in minutes. It's not. Obama sent his high powered lawyers. Something stinks.”

That just doesn’t wash because McCain has done the same thing – twice. In Hollander v. McCain (brought by a voter) and in Robinson v. Secy of State et al (including McCain) (brought by a third party on behalf of its candidate, Alan Keyes). In both cases, McCain filed a similar motion to dismiss on grounds of lack of standing. In both cases, the court agreed and dismissed the case.

--------------

One interesting thing I noted about Berg’s response is that his grounds for “standing” all refer to standing to sue federal agencies (or – don’t refer to standing at all).

He cites (a) 5 USC § 702, (b) FEC v. Akins, 524 U.S. 11 (1998), (c) 5 U.S.C. §552(B), and (d) 28 U.S.C. §1343. All of this law relates to standing to sue a federal agency. And – here, the FEC hasn’t even answered yet (or filed a motion to dismiss). Under the provisions, I'm not sure Berg has yet met the standards even to have standing to sue the FEC, but it is -- "odd" -- that he cites all this law to argue that he has standing to sue the DNC and Obama under, e.g., the Freedom of Information Act or the Federal Administrative Procedures Act.

He also cites 8 U.S.C. §1481(b), which does not relate to a federal agency, but also does not provide standing to sue. It’s a provision about who bears the burden of proof in an action regarding loss of citizenship.

He also cites, generally, “federal question jurisdiction.” I think this may be his most viable claim. Although I don’t think he states it very artfully, it seems that he is arguing for an expansion of the law given that, he argues, no statute expressly grants standing to sue a candidate – but should: “Moreover, there are absolutely no statutes or laws which dictates how a person, such as Plaintiff, are to demand proof of our Presidential candidates eligibility in order for Plaintiff to be able to form a proper decision on who to cast his vote for. Each entity contacted, whether Governmental or State has refused such duties, including the DNC and FEC.”

I think that this last argument is his best hope – if the judge doesn’t get really aggravated at all the totally inapplicable “chaff” he’s thrown up before he gets to this argument in his brief.

(Of course, he still has to get past the two McCain cases, Hollander and Robinson - and I don't think he effectively did that in his response.)

Thanks for what appears to be an excellent reply.

I’m exhausted after working all night, and I’m headed to bed now, but will scrutinize your statements later on...especially I support one of your last points—how the hell is anyone who is not a competing or defeated candidate supposed to challenge a candidate’s eligibility (be afforded standing) when the agencies normally responsible for certifying eligibility are derelict at the switch, and reluctant or refusing to even get involved?

McCain v. Hollander seemed to me to be saying, “leave us judiciary out of these questions, we want you voters to just deal with it all at the ballot box, because it’s not our bailiwick really anyway, and even if someone is ineligible you voters can just write-in someone who is eligible, etc...it’s all maddening...zzzzzzzzz

Short answer is that yes, a subpoena could be issued. In fact, Berg attaches a subpoena issued to the State Dept. and to the Kapi’olani Hospital. Both, however, were rejected by the entities. (You can see these at the end of the document as Exs. 6 and 7.)

The Kapi’olani Hospital rejected it, citing (among other things), HIPAA privacy requirements.

The Dept of State rejected it because (among other things), (a) Berg failed to follow the statutory procedures required to obtain the information; and (b) Privacy Act (5 U.S.C. § 552a) prevents disclosure.

Now, one might think that there are exceptions in both rules that could apply - i.e., that a court could order disclosure, say, under seal. On the other hand, there may not be such exceptions applicable here. Have to ask a litigator about that, as I just don’t know. (I’m not a litigator, but I watch them on TV and in movies ::grinning::).

I think that it may be that Berg first — well, first, he has to demonstrate that he has standing and that he has filed a claim upon which relief can be granted. That is the purpose of his opposition papers as I read them.

I he can get past that, he has to produce evidence (which he has not yet done, in the legal sense), to raise the factual issue regarding Obama’s citizenship. Then, Obama will have to present evidence to refut (or rebut?) that evidence. At this time, Obama likely will ask Hawaii for the documents and/or testimony to prove that he was born there (or will need to explain their absence through evidence).

Least that’s how I understand the process from reading a bunch of legal blogs, etc etc.

Philip J. Berg filed a response this afternoon to the motion for dismissal filed last week in Berg vs. Obama by Senator Obama and the Democratic National Committee. The response... asserts that, the defendants' argument to the contrary, Mr. Berg has standing to pursue the case. Mr. Berg provides precedents which he argues establish his standing and petitions the Court to deny dismissal and order the defendants to produce the documents in the previously requested discovery.

Thanks LucyT. We may be witnessing a cracking of the Demonic party analogous to the one in the 19th century which produced the party by that name we know today. I don't think it will be fully analogous, because Andrew Jackson won his election to the Presidency, and I don't think the Obamanation is going to.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.