Posted on 01/08/2010 7:30:02 AM PST by rxsid
You make an excellent point and you are very likely correct on the matter concerning the two signatures. However, for the sake of discussion, in case the inevitable questions reqarding them arise, allow me to play 'Devil's Advocate' on this.
Could it not at least be conceivable for Madelyn to have gone to the local registrar's office and provided the required information to be typed onto the form. She could then have stated that her co-signer, Martin Blaine E-?-n, was busy with clients, customers, meetings, sickness, or whatever, and could not come in personally. She, however, would be happy to take the form to him for his signature and return the same day to the registrar's office to complete the process.
Regarding the above 'forgery' scenario, IMO -
Loosey goosey and unlikely? Yes!
Impossible? No! (But this wouldn't invalidate the authenticity of the document)
THERE IS NO CERTIFICATION ON THE FORM THAT EITHER OF THE SIGNATURES IN BOXES 18a or 19a WAS WITNESSED BY ANYONE.
I wonder if an image of Madelyn's signature is independently available anywhere on the web? I looked a bit for it but couldn't find anything. It would help authenticate the document if her signature could be shown to match that on the Blaine COLB application.
In my reconstruction of the clerical procedure in the local registrar's office and given to explicit attempt to prevent fraud in the language of HI Law 57, the clerk's signature is, in my view, almost certainly intended to be a witness signature of the employee of the state of HI to the signatures and representations of the witnesses.
As you suggest, obtaining comparison signatures for Madelyn, especially to see whether she dropped the “e” in her name on occasion, would be good!
The first of these assertions is mentioned in several posts. It is the assertion that “`Lack of claim’ is an element of standing applied to the plaintiff, not an element of jurisdiction applied to the court.” See post 95 above. A little bit of inquiry shows that this is not the law. “Lack of claim” under Rule 12 (b)(6) is separate from standing and standing is not an element of lack of claim since the two things, under the law, are distinct.
This can easily seen by examining the opinion of the Supreme Court in the well-known case of Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 37-38 (1976), at a point where it quotes on point regarding standing from the even better known case of Flast v. Cohen, 392 U.S. 83 (1968). Here is what it said about standing to distinguish it clearly from other doctrines such as failure to state a claim:
No principle is more fundamental to the judiciary’s proper role in our system of government that the constitutional limitation of federal-court jurisdiction to actual cases or controversies. See Flast v. Cohen, 392 U.s. 83, 95, 88 S.Ct. 1942, 1950, 20 L.Ed.947, 958 (1968). The concept of standing is part of this limitation. Unlike other associated doctrines, for example, that which restrains federal courts from deciding political questions, standing “focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.” Id., at 99, 88 S.Ct. at 1952, 20 L.Ed.2d at 961.
In the Hollister case Judge Robertson, in his opinion of March 5, 2009, stated that he had jurisdiction because of the interpleader statute and then dismissed the case, he specifically stated, for failure to state a claim under Rule 12(b)(6). Thus, he focused on the issues that Colonel Hollister was seeking to focus the court’s attention on and not on Colonel Hollister as a party. In order to dismiss for that reason he had to consider with the claim of Colonel Hollister was meritorious. As his opinion reveals his principal focus was on what he found to be a lack of tangible property as an interpleader “stake.” This preoccupation was with the merits of the interpleader claim of Colonel Hollister and not with any issue involving Colonel Hollister as a claimant. It was on the claim and not the party.
That Judge Robertson was thus assuming standing by stating that he, as the judge, had jurisdiction, was recognized by Robert F. Bauer, who was at that point counsel for the defendants Soetoro/Obama and Biden on the appeal when he filed his original opposition brief for the defendants as appellees prior to the briefing being rescheduled. This is document 1204814 on the appellate docket in the case, filed September 9, 2009. On page 21 Bauer begins his argument that Colonel Hollister had no standing by claiming that Judge Robertson had assumed he had jurisdiction without analysis and thus, by necessary implication, had failed to analyze standing For Bauer then spends a good deal of argument claiming lack of Article III standing. Of course, any judge at any level may consider standing at any point. But that is not to say that standing is the same as the claim itself or is an element of it.
This distinction between a Rule 12(b)(6) failure to state a claim and standing or any other issue dealing with the claimant rather than the claims has been made in every court that has looked at the issue. There is no law supporting the idea that standing is an element of a claim. It is always addressed as an issue of the right of the claimant to pursue the claim because of the claimant’s status, not the content of his claim. In Peckmann v. Thompson, 966 F.2d 295, 297 (7th Cir.1995) for example, the 7th Circuit found that even if a Rule 12(b)(1) motion were an “indirect” attack on the “merits” of the claim it could be treated as a Rule 12(b)(6) motion for dismissal because of failure to state a claim. This emphasized that Rule 12(b)(6) failure to state a claim motions focus on the merits.
Similarly, in Reeves v. Guifridda, 756 F.2d 1141, 1143 (5th Cir.1985) the 5th Circuit found that a motion, because it went to the merits, had to be treated as a Rule 12(b)(6) motion about whether or not there was a failure to state a claim and considered the merits, finding that a claim had been stated. In an earlier case, Whiting v. Seyfrit, 203 F.2d 773, 774 (7th Cir.1953) the 7th Circuit treated a motion to dismiss a pro se complaint brought charging a conspiracy in violation of constitutional rights where the defendants’ dismissal motion was on the grounds that the complaint “failed to state a cause of action under the Constitution or laws of the United States” as a Rule 12(b)(6) motion to dismiss for failure to state a claim. The Supreme Court again emphasized the distinction between jurisdictional arguments such as lack of standing and claims a few years ago when it held that the statute of limitations defense is not jurisdictional but goes to the merits in the case of Day v. McDonough, 547 U.S. 198, 205 (2006).
For those who wish to see the man in the White House get away with trashing the Constitution and our system of law based on it, of course, the law does not matter, but for those who do claim to be concerned it is imperative that such errors of law not be spread abroad. It is only if judges believe that they are being watched to see if they choose to actually apply the law that we will see the Rule of Law have a chance of prevailing.
Bump for later review....
Thank you for the detailed post. Not being a lawyer myself, it helps to hear these details supported by case law. As we all “hash” this eligibility issue out...it is important for all of us to have accurate information if we are to succeed! Lets hope the court has the fortitude to do what’s right.
But the plaintiff invoking the doctrine does not him or her self ask that the unconstitutional officer be removed. What the plaintiff asks is that the action by that officer which will affect him or her be declared as not lawful.
In the Hollister case the retroactity in question, as discussed by SCOTUS in the case cited by Hollister, the Ryder case, was whether Coastguardsman Ryder had raised the issue before the decision of the panel that affected him by a panel with an unconstitutional member. Thus SCOTUS explained that in order for government to function it was necessary that the party affected raise the issue before the decision in question was made because if every person, after had already been made, could challlenge the constitutional legitimacy of an officer involved in the decsion it would create chaos.
Teh question remains one of whether there is some reason that the doctrine as espoused would not apply to a de facto officer in the White House who is not de jure as oppposed to a lesser officer in that situation. Obviously, if Colonel HOllister succeeds, it will create a serious problem in that other members of the Reserves will wonder whether they should accept a call up order from the One. But Colonel Hollister has not asked for the removal of Soetoro a/k/a Obama only that if the defendant is found to be de facto and not then he must look for a legitimate call up order to Biden as the other interpleadler defendant.
At this point can congress be forced to act by law?
"That Judge Robertson was thus assuming standing by stating that he, as the judge, had jurisdiction, was recognized by Robert F. Bauer, who was at that point counsel for the defendants Soetoro/Obama and Biden on the appeal when he filed his original opposition brief for the defendants as appellees prior to the briefing being rescheduled."
I totally disagree with your conclusion above that Roberson "was thus assuming standing". You are putting words in his mouth, in my view. Your case quote from Flast does not support your contention that Robertson found that Hollister had standing.
Your quote from Flast is a broader definition of jurisdiction over a particular case, which includes the requirements of standing for the plaintiff, as compared to jurisdiction of a court in general over types of cases without regard to particular plaintiffs, such as whether a court can hear quo warranto.
You are in fact making my point that Roberson found that Hollister lacked standing becasue Hollister failed to claim an actual controversy that the court could remedy.
To have an actual controversy that would justify standing, Hollister had to claim an "injury in fact" (an element of standing). To try to satisfy that requirement Hollister put before the judge his interpleader "stake" claiming potential damage to this "stake" if Obama is found to be ineligible.
Robertson denied the validity of Hollister's claim to an injury in fact and thus denied Hollister standing. Without an injury in fact, the court is unable to fashion a remedy for a nonexistent injury. So while Robertson got as far as finding that his court had a general standing to hear the matter, Robertson found that plaintif Hollister's specific claims for injury before the court failed to justify granting Hollister standing.
There is not a shred of legal authority that supports your wrong contention that standing is an element of a claim. You can ignore the clarity of the Supreme Court all you want but it remains an ussupported personsal opinion by you.
I never said that “standing is an element of a claim.”
"Failure to state a claim" as found by Robertson, equals "failure to gain standing".
A plaintiff must have a justiciable claim to have standing, so it is having a justiciable claim that is an element of standing.
A plaintiff's case will be dismissed, as Hollister's was, for failure to state a claim that the court can adjudicate.
You are making the erroneous claim that Robertson granted Hollister standing merely by affirming that his court had jurisdiction. This is false. A court can't reach a determination of a particular plaintiff's standing, without first reaching a determination that the court has general jurisdiction over the type of case or controversy.
That is all that Robertson did. He found general jurisdiction but not specific jurisdiction for Hollister's claims because Hollister failed to state a justiciable claim. If Hollister had made a justiciable claim of an injury in fact that the court could rule to be legitimate, the case would have gone to trial. It did not.
(The real lawyers are doubtless rolling on the floor laughing by now! All corrections from lawyers are welcome.) BTW, this same issue was before Judge Carter. Keyes claimed an injury in fact from being on the ballot with an ineligible candidate, and there was extensive discussion at the Oct. 5 hearing on the issue over whether Keyes was entitled to standing on that issue. Carter said it was not clear where to draw the line on injury in fact when Keyes prospects of winning were so tiny. In the end Judge Carter denied standing and dismissed the case due to failure to state a claim.
Lack of a claim is lack of a claim. By the cases I pointed out it is not an element of standing. As the Supreme Court has clearly said lack of a claim is not standing or part of standing. If there is laughter it wouild be at yourself. Have you ever actually litigated a constitutional case? As, you put it, a “real lawyer,” I have won cert in one, one that involved an election in fact. But obviously you know better than the Supreme Court because you know that lack of claim focuses on the litigant rather than the merits of what is claimed, unlike every reported case on the subject. Judges look at whether they have jurisdiction, which necessarily involves considering standing, then they look to see if there is a claim. They do not analyze the claim and then extrapolate from that to standing. For one thing, jurisdiction and standing analyses are under 12(b)(1) not 12(b)(6). The former goes outside the pleading the latter analysis does not except for taking judicial notice. If you were an experienced federral litigator you would have to know that.
Lack of a claim is lack of a claim. By the cases I pointed out it is not an element of standing. As the Supreme Court has clearly said lack of a claim is not standing or part of standing. If there is laughter it wouild be at yourself. Have you ever actually litigated a constitutional case? As, you put it, a “real lawyer,” I have won cert in one, one that involved an election in fact. But obviously you know better than the Supreme Court because you know that lack of claim focuses on the litigant rather than the merits of what is claimed, unlike every reported case on the subject. Judges look at whether they have jurisdiction, which necessarily involves considering standing, then they look to see if there is a claim. They do not analyze the claim and then extrapolate from that to standing. For one thing, jurisdiction and standing analyses are under 12(b)(1) not 12(b)(6). The former goes outside the pleading the latter analysis does not except for taking judicial notice. If you were an experienced federral litigator you would have to know that.
That’s the big question raised by the case.
You misstate what I said again. I never said "lack of claim focuses on the litigant rather than the merits of what is claimed."
I seem to recall you saying you were not a lawyer.
Your memory is no better than your knowledge of the law. Althouogh not practicing at this time I was a lawyer for a very long time.
Thanks for your pings and information!
If I was a lawyer, I would not push to have the courts remove him from office, I would have the courts open up the case for discovery to see whether he is eligible or not, and have Congress decided on what to do.....
However, they could make a decision regarding original intent of the framers and weather or not he meet's the requirement of NBC.
If he didn't, then it would be up to "some other group with jurisdiction to remove a (criminal) usurper. FBI? Fed Marshals? That, of course, assumes he didn't "step down" like Nixon.
For the record, I have linked below a copy of the September 19, 1940 ‘Application for Social Security Account Number’ for Madelyn Payne Dunham, Barack Obama’s maternal grandmother. Importantly, the SS form contains her signature, which can thus be compared to what is intended to be her signature in the 18a box on the Blaine BC Application. One must remember that approximately 19 years has elapsed between the first and second signatures so evolutionary changes in style are to be expected.
http://www.orlytaitzesq.com/wp-content/uploads/2010/03/MadelynDunham-SSAppl.pdf
The referenced SS Application was obtained from the Orly Taitz, “Defend Our Freedoms Foundation” website. Orly entered a 3/1/10 post titled, “I Need Forensic Document Experts, Signature Experts, Investigators to Work on this and get Any and All Info” The post contains a copy of a letter to Orly from Paula Hoehn with the SS Application attached as a link. The following is an excerpt from the cover letter from Ms. Hoehn to Dr. Taitz.
“Attached are Soc Sec Applications for Obama’s grandparents Stanley and Madelyn Dunham, and a woman named Shirley Jean (Applebee) Dunham born in Washington. Also, attached is the accompanying letter to me from Dawn Wiggins, Freedom of Info Officer, Soc Sec”
I am not a handwriting analysis expert. My conclusion, after examining the two signatures, is they have numerous differences, yet some similarities as well, so I can draw no clear impression either way. Thus, I could draw no definite conclusion, based on the signatures, concerning the authenticity of the Blaine BC document.
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.