3rd Circuit Affirms Kerchner Dismissal & Orders Appellants to Show Cause (Possible Sanctions)

U.S. 3rd Circuit Court of Appeals ^ | 07/02/2010 | Judges: Sloviter, Barry and Hardiman

[BuckeyeTexan]

SLOVITER, Circuit Judge.

Charles F. Kerchner, Jr., Lowell T. Patterson, Darrell J. LeNormand, and Donald H. Nelsen, Jr. (hereafter "Appellants") filed suit in the United States District Court for the District of New Jersey, alleging that President Barack Obama is ineligible to hold his Office as President. They rely on Article II, Section 1, Clause 4 of the United States Constitution which provides that "No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President. ..." U.S. Const., art. II, § 1, cl. 4. Appellants challenge the District Court’s order dismissing their complaint. We will affirm the order of dismissal and direct Appellants’ counsel to show cause why just damages and costs should not be imposed on him for having filed a frivolous appeal.

(snip)

Turning to the argument of Kerchner and Nelsen that their oaths to protect and defend the Constitution “increase[ ] their adversarial posture,” Appellants’ Br. at 56, no court has found that a plaintiff established “injury in fact” simply because s/he had once taken such an oath. Carving out an exception on that basis would still leave an impermissibly large class with unique ability to sue in federal court. See, e.g., 10 U.S.C. § 502(a) (requiring all military personnel to take an oath “swear[ing] . . . [to] support and defend the Constitution of the United States.”). Kerchner’s assertion of standing on the ground that he, who has been retired from the Naval Reserves since 1995, may be required to serve the Commander in Chief as a combatant in the case of an “extreme national emergency,” Kerchner, 669 F.Supp.2d at 483 (quotation and citation omitted), is to no avail because it is conjectural.

(...)

[rocco55]

WOW ! What a great idea to impose possible sanctions for those foolish enough to actually BELIEVE in the Constitution ! Correct me if I am wrong, but isn’t the best way for a defendant to settle a lawsuit is to provide something called ‘evidence’ ?

GOD FORBID any of these sinister judges actually request our mega-million dollar funded Pres__dent to spend $12.00 and produce a real birth ceritficate !

[Lurking Libertarian]

While the 3rd Circuit Panel references Article III requirements, they also agreed with the lower court that there is a requirement for the injury to be “concrete and particularized” and referenced the fact that “the Court has refrained from adjudicating ‘abstract questions of wide public significance’ which amount to ‘generalized grievances,’ pervasively shared and most appropriately addressed in the representative branches.”

All of those requirements were derived by the Supreme Court, in a series of cases starting back in the 1920s, as an attempt to define the words "Cases and Contoversies" in Article III. In other words, if something is an "abstract question" or a "generalized grievance" then, according to the Supreme Court, it is not a "case or controversy."

[editor-surveyor]

WND is done in “newspaper” style, which is the most common style. That is not unusual, it is as usual as can be. Headlines everywhere tend to say something different than the message of the article, sometimes even opposite, as with the NYT, SF Comicle, etc, and it works. If the story is told succintly in the headline, who is going to read on? And when the survival of the medium depends on readership, as is true on the web, what else would you expect?

[Non-Sequitur]

MAYBE IF THEY LISTENED TO THE CASE THEY WOULD SEE THE CAUSE.

Maybe if they had a case the court would listen to it?

[Seizethecarp]

“Plaintiffs’ claims fall squarely into the category of generalized grievances that are most appropriately handled by the legislative branch. The Court acknowledges Plaintiffs’ frustration with what they perceive as Congress’ inaction in this area, but their remedy may be found through their vote.
Id. at 483 n.5. We agree.”

WOW!

I read this to mean:

The Court (the District Court) acknowledges Plaintiffs’ frustration with what they perceive as Congress’ inaction in this area (clarifying Obama’s constitutional NBC status). We (3rd Circuit Appeals court) agree.

In other words, the 3rd Circuit Appeals Court agrees with the District Court's frustration with Congress’ inaction in failing to clarify Obama’s constitutional NBC status.

[little jeremiah]

Thank you for a ray of light in the darkness. There were a couple of others I admit; mostly 0thugga sycophants though.

[thecodont]

In other words, the 3rd Circuit Appeals Court agrees with the District Court's frustration with Congress’ inaction in failing to clarify Obama’s constitutional NBC status.

Well,

May the remedy come through Congress, then!

[Red Steel]

There you go. The courts in a roundabout way is telling you they don’t have the balls to judge whether if Obama is a natural born citizen. Hey they say, we are not going to stick our necks out if Congress won’t. They are setting aside their judicial review of Congress in this case. The word that describes the courts here is cowardice.

[Seizethecarp]

“In other words, the 3rd Circuit Appeals Court agrees with the District Court's frustration with Congress’ inaction in failing to clarify Obama’s constitutional NBC status.”

I believe that the 3rd Circuit was choking in frustration over having to cite again their own ruling on Berg's appeal:

“This court affirmed the order dismissing the suit, agreeing that ‘a candidate’s ineligibility under the Natural Born Citizen Clause does not result in an injury in fact to voters.’”

Yup, having a constitutionally ineligible president sure isn't “an injury in fact to voters.” /s

I think my brain just exploded! (again)

[bvw]

Sickening, but it shows the disease of casebook law for what it truly is.

The over-reliance on case law and stare decisis based on case book law rather than horn book law is an example of a meta social degeneracy that places long and detailed process and ‘expertism’ over rationality and common sense.

I use common sense in its natural law foundation — ‘we hold these truths to be self-evident.’ Common sense is no ‘gimme,’ no easy thing to develop, never to be taken for granted. It takes educated, experienced, serious adults to apply. Sober, mature, educated adults of good standing in the community. It takes maturity, a conservative respect for the wise of the current and prior generations, and the dedication to the truth gained by practical life as an adult to gain the reasoned judgment needed to apply common sense.

Lincoln didn’t become a lawyer based on case law — he became educated in the law enough to practice law by studies of hornbook law. In my opinion Lincoln had a natural gift that inclined him towards developing his common sense. Which he did. With that matured common sense and studies of hornbook law, Lincoln became a very good lawyer.

While ‘experts’ and ‘expertism’ work for a time, some few generations even, it always fails for it comes to be delusional in the most ornate sense of madnesses known to history.

[SunkenCiv]

Thanks hennie pennie.

[Seizethecarp]

“The word that describes the courts here is cowardice.”

They actually wrote in Berg and affirmed in Kerchner:

“This court affirmed the order dismissing the suit, agreeing that ‘a candidate’s ineligibility under the Natural Born Citizen Clause does not result in an injury in fact to voters.’”

I didn't make this quote up. It's in the ruling! This sentence in the ruling “offends the conscience” (well my conscience anyway).

If there is any chance that the En Banque 3rd Circuit Court or SCOTUS might overturn this it could be on this point. Perhaps only SCOTUS has the latitude to overturn precedent on standing when equity demands it.

Kerchner still has the problem that even if he is injured his injury is not “particularized”. Only McCain, Palin or perhaps Keyes (as clearly suggested by Judge Carter) would seem to have a particularized injury in a Quo Warranto action.

Apuzzo has pissed off the 3rd Circuit by failing to cite the Berg case sufficiently and failing to recognize (in the Court's view) that the Berg dismissal on appeal rendered the Kerchner case appeal frivolous as the issues had already been rejected.

[STARWISE]

Yeah, Congress .. I'm sure you're prepared to answer for YOUR failure..

.

.....S A R C !!.....

[STARWISE]

“If the Third Circuit Court of Appeals reverses the Federal District Court’s dismissal of the Kerchner case, the case will most likely return to that lower court for discovery and trial.

On the other hand, if the Court affirms the lower court because of standing and/or political question, we will then file a petition for certiorari with the United States Supreme Court which will in any event provide the final judicial word on Obama’s eligibility to be President and Commander in Chief of the Military.”

Mario Apuzzo, Esq.
June 30, 2010
http://puzo1.blogspot.com/

[BuckeyeTexan]

Correct me if I am wrong, but isn’t the best way for a defendant to settle a lawsuit is to provide something called ‘evidence’ ?

In our legal system, the defendant isn't required to prove anything. The plaintiff always has the burden of proof. (And that's the way it should be.) It's usually in a defendant's best interest to answer the accusations to avoid an unfavorable decision, but he's not required to prove the plaintiff's accusations are incorrect.

[thecodont]

Congress to the courts, the courts to Congress—eventually this will settle at someone’s feet, they can’t keep tossing this hot potato back and forth.

[BuckeyeTexan]

In other words, the 3rd Circuit Appeals Court agrees with the District Court's frustration with Congress’ inaction in failing to clarify Obama’s constitutional NBC status.

That's incorrect. The District Court did not express frustration with Congress. The District Court acknowledged the Plaintiff's frustration with Congress.

The Court acknowledges Plaintiffs’ frustration with what they perceive as Congress’ inaction in this area, but their remedy may be found through their vote.

The 3rd Circuit is not agreeing with the District Court's frustration. (It did not express such.) The 3rd Circuit is agreeing with the District Court's ruling that the

"Plaintiff's claims fall squarely into the category of generalized grievances that are most appropriately handled by the legislative branch."

[Candor7]

Thus is a question of due process of the highest order. Obama was certified as qualified and the forms actually altered from what is traditional, a unilateral change on qualification of a candidate, imposed fraudulently by the Dem party in many states.

And you think it strictly political. Because of people who think like you we will have a remedy that is political.And when that happens you will indeed wish we had accomplished a legal remedy.You won't much like the political one, IMHO. Now the so called president is refusing to secure our borders as required by the constitution. Obviously his attitude is , "in for a penny, in for a pound!"

So we see a clear continuation if the approach taken to get him qualified.Interesting, huh?

Wonder what his next anti-constitution venture wil be, he seems to have several cooking as we post here.

[tutstar]

we hope! In the spirit of ‘never let a good crisis go to waste’ they are more than capable of creating such a crisis in order to establish martial law.

We r n the Twilight Zone, anything is possible.

[Protect the Bill of Rights]

“This court affirmed the order dismissing the suit, agreeing that ‘a candidate’s ineligibility under the Natural Born Citizen Clause does not result in an injury in fact to voters.’”

Alarming. Absolutely alarming.