Posted on 11/29/2010 7:37:16 AM PST by Elderberry
(ORDER LIST: 562 U.S.) MONDAY, NOVEMBER 29, 2010
CERTIORARI DENIED
10-446 KERCHNER, CHARLES, ET AL. V. OBAMA, PRESIDENT OF U.S., ET AL. The motion of Western Center for Journalism for leave to file a brief as amicus curiae is granted. The petition for a writ of certiorari is denied.
And, I might add, Lamberth totally blew off Judge Carter’s statements that Taitz’ case would properly be heard as a Quo Warranto in the DC Circuit. Sounds like he gave no legal justification for contradicting Carter. Sounds like he just blew a great big raspberry in all our faces and expects us to treat it as if it’s settled law then.
The arrogance of these SOB’s is incredible. Either that, or Royce C Lamberth was told what the end result had to be and he didn’t want to even bother trying to come up with some mindless blather to cover up that he was just farting in the general direction of the Constitution, as ordered to do.
Take your pick.
It's kind of amazing to what lengths the need to feel outraged will drive people. You'd have thought winning an election would brighten the mood.
As Richard Feynman would say “Bad luck.”
It's simply incredible, isn't it, this massive, unbroken string of bad luck the birthers have. You'd almost think that legally they don't know what they're talking about. But that couldn't be, could it? LOL.
His opinion is linked in post #119 on this thread. He relied on two precedents from the D.C. Circuit (the Court of Appeals over his district) which both held that only the Attorney General has the power to bring a quo warranto suit.
I am simply amazed that anyone is still looking to the courts to determine Obama's eligibility, after every court from the Supreme Court on down has turned them away (which, incidentally, was what every knowledgeable lawyer has been predicting would happen from Day 1). The Republicans now control the House of Representatives; there is not the slightest shadow of a doubt that the House can subpoena all of Obama's birth and citizenship records; but no one is putting their efforts there.
He said she didn’t have standing to bring a QW on her own.
Looking at http://www.constitution.org/writ/quo_warranto.htm , it says:
“The demandant represents the sovereign, the people, and anyone may appear in that capacity, even without a personal stake in the decision.”
It also says:
“The prerogative writ of quo warranto has been suppressed at the federal level in the United States, and deprecated at the state level, but remains a right under the Ninth Amendment, which was understood and presumed by the Founders, and which affords the only judicial remedy for violations of the Constitution by public officials and agents.”
Seems to me that when the First Amendment refers to the “right of the people peaceably to assemble, and to petition the Government for a redress of grievances”, it’s not just talking about individuals but the people as a collective whole - which is what the demandant in Quo Warranto is doing on behalf of “the people”. Sounds to me as if Quo Warranto is specifically intended for situations where no individual necessarily has “standing” but doesn’t HAVE to have “standing” because he/she represents “the people” as a whole - who according to the First Amendment have a right to petition the government for a redress of grievances.
Is there a statute which deals with Quo Warranto? Because if this source is correct, a person doesn’t need to have any personal stake in the case at all, in order to be a demandant.
Lamberth cited DC Code 16-3502 and 16-3503 regarding who can file a petition for Quo Warranto. The whole chapter regarding QW is posted at http://www.oilforimmigration.org/facts/?p=3724 .
This is one of the sections regarding when the AG or US Attorney refused to petition on someone else’s behalf:
Ҥ 16-3523. Refusal of United States attorney or Attorney General of the District of Columbia to act; procedures.
If the United States attorney or Attorney General of the District of Columbia refuses to institute a quo warranto proceeding on the request of a person interested, the interested person may apply to the court by certified petition for leave to have the writ issued. When, in the opinion of the court, the reasons set forth in the petition are sufficient in law, the writ shall be allowed to be issued by any attorney, in the name of the District of Columbia, on the relation of the interested person, on his compliance with the conditions prescribed by section 16-3522 as to security for costs.
(July 29, 1970, 84 Stat. 563, Pub. L. 91-358, title I, § 145(n); 1973 Ed., § 16-3523; May 26, 2004, Mayor’s Order 2004-92, § 4, 51 DCR 6052.)”
The court has to decide “if the reasons set forth in the petition are sufficient in law.”
Lamberth makes a jump in reasoning that doesn’t make sense to me. He cites a 1984 case in which it was decided that only an AG or US Attorney can bring a QW action against a public official. But that 1984 case relies on a decision made in 1945 - before this 1970 statute was written, which clearly says that somebody besides an AG or US attorney CAN initiate a QW proceeding if the AG or US attorney refuses to do so. So it seems like the 1984 case ignored the provisions of the law in effect since 1970.
Lamberth then took that 1984 decision that rested on an obsolete ruling from 1945, and said the basis for that decision was the concept of “standing”; therefore an interested party has to demonstrate “standing”.
But a Quo Warranto itself is issued “in the name of the District of Columbia”, so when a person petitions for a QW they are just giving reasons why the District of Columbia should demand that the official prove by what authority they hold their position. According to the statute, if the person can give good reasons why the District of Columbia should question the legitimacy of the person claiming to hold office, then the court is supposed to give permission for a QW to be issued.
The statute provides for instances where the petitioner definitely has justiciable, particularized harm, but also where a petitioner gets nothing in return except the satisfaction of having the law followed - which flies in the face of the “standing” requirement that Lamberth claims exists.
For instance, a petitioner who claims that the office-holder is not legitimate because the petitioner should actually have the office.... is supposed to set forth in their claim why they believe they are the ones who are supposed to have the office, and the remedy is that they get the office.
But a QW can be brought against persons acting as a corporation even though they’re not lawfully a corporation. In that event there isn’t anybody who’s been necessarily harmed by the non-corporation acting as a corporation, and the remedy for that situation is that the non-corporation has to stop acting as a corporation. It’s sort of like reporting that somebody is speeding and then the cops check it out and issue a ticket if they find the person really was speeding. Their speeding doesn’t have to harm me before I can report it. My reporting it is an aid to law enforcement in knowing when the law needs enforcing.
Can somebody help me understand where Lamberth is getting this “standing” thing?
So our track record in calling these cases remains perfect, for basic legal reasons that have been explained repeatedly. And yet, as also predicted, none of these lawsuit fans will ever countenance the thought, even for a moment, that their understanding of the legal issues involved may be something less than totally correct.
It’s kind of amazing to what lengths the need to feel outraged will drive people. You’d have thought winning an election would brighten the mood.
These cases have foundered not "on the merits" of the pleadings. That is, not one court has laid out for us what "Natural Born Citizen" means. The cases have been tossed on procedural grounds, on "standing," and "jurisdiction;" and in all likelihood, rightly so. It is true that liberal judges have not been able to resist the odd dig at the attorneys involved, some of whose pleadings have been quite frankly, laughable.
Judge Lamberth, as you pointed out, went out of his way to draw a "roadmap" of how the case for a Writ of Quo Warranto must proceed. The map has been ignored by all except Lawyer Donofrio, who has invested his time and energy after his initial rebuff by the SCOTUS in (a) finding the "right" plaintiff, with proper standing, and (b) bringing the case in the right court, the Federal District Court in DC.
Sticky points: The Attorney General must turn down the case before the plaintiffs have cause to go before the court on their own behalf! When they do, permission from the court is far from automatic, but could become a case within itself!
It is possible that Holder has been asked. But I see no answers forthcoming from him. That crucial step alone could stonewall the proceedings until well after he, and Obama, are gone.
I think everyone is correct when they say the courts are ducking this. Unfortunately, the courts have had every legal reason for doing so, so far.
Good question.
I would hope they would join the Patriot side, but with so many Leftists high in the officer corps that may not happen, and you could have a military that disbands to join the various sides in conflict.
This happened in the U.S. Civil War - most of the officers and EM who were Southerners joined the CSA leaving only a shell of a military establishment that they almost destroyed in the first year of war.
I wouldn't say the courts are ducking it, but I agree they have had legal reason to dismiss the cases they have.
It has been amazing to me to watch this unfold and the behavior of people who describe themselves (presumably) as "conservative". And despite that self-description, they advocate relentlessly for an activists role by the Court. The Court has heard these cases and they have applied well-established principles of American jurisprudence in each case. IOW, they have acted within the confines of the limitations the Court, the Constitution and the Legislature have established. This is PRECISELY what any conservative should want.
If a court hears a complaint from a plaintiff with standing, and the case meets the other requirements of justiciability, then the court will hear it on the merits. Thus far, that hasn't happened. The court isn't ducking anything (which is why Thomas laughed while testifying in Committee), they are just applying the law and they AREN'T making it up as they go along. That's what conservatives USED to want from their Judiciary. What happened?
These cases have foundered not “on the merits” of the pleadings. That is, not one court has laid out for us what “Natural Born Citizen” means. The cases have been tossed on procedural grounds, on “standing,” and “jurisdiction;” and in all likelihood, rightly so. It is true that liberal judges have not been able to resist the odd dig at the attorneys involved, some of whose pleadings have been quite frankly, laughable.
Judge Lamberth, as you pointed out, went out of his way to draw a “roadmap” of how the case for a Writ of Quo Warranto must proceed. The map has been ignored by all except Lawyer Donofrio, who has invested his time and energy after his initial rebuff by the SCOTUS in (a) finding the “right” plaintiff, with proper standing, and (b) bringing the case in the right court, the Federal District Court in DC.
Sticky points: The Attorney General must turn down the case before the plaintiffs have cause to go before the court on their own behalf! When they do, permission from the court is far from automatic, but could become a case within itself!
It is possible that Holder has been asked. But I see no answers forthcoming from him. That crucial step alone could stonewall the proceedings until well after he, and Obama, are gone.
I think everyone is correct when they say the courts are ducking this. Unfortunately, the courts have had every legal reason for doing so, so far.
As Judge Lamberth wrote in his opinion: “There are three elements which form ‘the irreducible constitutional minimum of standing’ (Lujan v Defenders of Wildlife, 504US 555, 560 (1962)(Scalia, J). If anyone of these three elements is not met, a plaintiff does not have standing. The first of these is that the plaintiff must have suffered an injury in fact.
Id. That is an injury must be concrete and particularized ad actuaL OR imminent, rather than conjectural or hypothetical. Id. Injuries which are general, rather than particularized, are not sufficient to create standing. Indeed the Supreme Court has ‘consistently held that plaintiff raising only a generally available grievance about government-claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large-does not state an Article III case or controversy.’
Id. at 573-574.”
Can you imagine the political damage to the Obama administration if Eric Holder or the US Attorney for the District of Columbia had turned down a quo warranto claim from McCain, Palin or The RNC?
This statement helps illuminate the ridiculousness of the standing doctrine, particularly when the controversy in question involves issues the Supreme Court has ruled about before and that can be quickly and easily reviewed. Also, the court had said in earlier cases that the standing doctrine only applied to individual statutes, but that the public has a right to government administered according to law. Since then, the doctrine has become a judicial crutch for avoiding controversies the court does not want to rule against.
Can somebody help me understand where Lamberth is getting this “standing” thing?
This statement helps illuminate the ridiculousness of the standing doctrine, particularly when the controversy in question involves issues the Supreme Court has ruled about before and that can be quickly and easily reviewed. Also, the court had said in earlier cases that the standing doctrine only applied to individual statutes, but that the public has a right to government administered according to law. Since then, the doctrine has become a judicial crutch for avoiding controversies the court does not want to rule against.
Find the proper plaintiff for a lawsuit and there are no standing issues to get in your way.
Use the criminal justice system and there are no issues of standing at all.
Find the right plaintiff and you will be granted standing. Use the criminal courts rather than the civil courts and there are no issues of standing at all.
IOW, piss on the unwashed masses. Pardon my french. It’s a repulsive subject altogether.
The whole point of this option is supposed to be for the people to make sure that officials have to obey the rules. To say that only officials can utilize this option defeats the whole purpose, IMHO.
Next thing only the political elites will be able to report a speeding or drunk driver to the police so they can check it out. Heaven forbid what would happen if somebody besides the elite screwing - er, ruling - class had the ability to help effect the rule of law!
I really do need to clean up my language, clean up my thoughts. Just finding out that both my Senators voted to bankrupt my brothers and eventually starve my children is not sitting well with me. NObody in Washington DC has a clue, even after the voters hit them in the face with a 2x4 less than a month ago.
What about the case now up for cert in which standing was found? You think in that case, cert should be granted, right?
Let me guess, you don’t and you’ll give a lame reason why not.
I’ve given lists where I’ve asked how this or that plaintiff had “standing”. By the standards used for the eligibility issue, you tell me how the Muslim in Oklahoma has “standing” to get the anti-sharia Constitutional amendment put on hold and a case put forward.
How the heck can that dude have “standing” for a Constitutional amendment that hasn’t even gone into effect and which applies equally to everybody.... when an army officer who swore to uphold and defend the Constitution against enemies foreign and domestic is forced to choose between the brig or breaking his oath DOESN’T have “standing” to have the issue that caused him that harm heard and genuinely considered on its merits?
Any fool can see how backwards this is. Edge has it exactly right. It’s just an excuse for judges who want to be able to ignore cases at will. If it was applied uniformly it could serve a legitimate purpose I suppose - just like EPA’s stupid rules could serve a purpose if they didn’t exempt only the people who are causing the troubles. But it’s not applied uniformly, which is a violation of equal protection and due process.
But then this is the USSA. Who cares about equal protection and due process any more? God deliver us!
What about the case now up for cert in which standing was found? You think in that case, cert should be granted, right?
Let me guess, you don’t and you’ll give a lame reason why not.
Since you did not mention the name of the case that you are talking about, I have no idea what the legal basis of the appeal to the Supreme Court is.
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