Hollister v. Soetoro - Joint Motion (seeking recusal of Judge Robertson & voiding of his opinions)

scribd ^ | 5/31/2010 | John David Hemenway

[rxsid]

"GREGORY S. HOLLISTER, et al.
v.
Barry Soetoro, in his capacity as a natural person; de facto President in posse; and as de jure President in posse , also known as Barack Obama, et al

MOTION FOR RECUSAL PURSUANT TO 28 U.S.C. § 455

The plaintiffs/appellants jointly move for recusal of the judge below pursuant to and the vacation of his opinions as a consequence of the recognition of his bias and appearance of bias under that statute. They also request of the members of this Court, particularly those who have embraced the bias of the court below, that they consider their obligation to recuse themselves if they present even an appearance of bias under that statute. Details are given below.

...

I. THE STATUTE TODAY

...

Thus, in the present case Judge Robertson was required to himself identify his evident bias which he exhibited freely in the record and the members of this court who wish to or already have adopted that bias are similarly required to recuse themselves.

...

II. THE BIAS IS EVIDENT

The limitations upon the extrajudicial source doctrine are of little significance in the present case, however, because the outrageous bias exhibited in the court below is so overtly derived from extrajudicial sources and, snidely, from the events that occurred in the case itself. This begins at the very outset of the first opinion of the judge below, that of March 5, 2009 (App. 208). He begins the opinion by making it clear that he thinks that the case is absolutely worthless and that he has a clear bias against it. From that point on the reasons that he gives for that opening bias give a clear appearance of bias that history will record, given the very blogosphere outside the record of the proceeding that he then extrajudicially relies upon.

His second paragraph begins with a needlessly snide and less than honest, aspersion cast upon the appellant and plaintiff Hollister. Attached to the Hollister complaint was a copy of Colonel Hollister’s discharge papers showing his honorable discharge from the Air Force after a full career on active duty. Yet rather than acknowledge this fact as thus clearly shown, the lower court feels it has to say that “The plaintiffsays that he is a retired Air Force colonel who continues to owe fealty to his Commander-in-Chief…”

(emphasis added) Clearly the plaintiff Hollister is a retired Air Force Colonel. He does not just say that he is. This gratuitous aspersion and insult starts the internal evidence of bias and certainly an appearance of bias at the very outset. The lower court judge then further continues this needless and insulting bias by the parenthetical phrase: “(because hemight possibly be recalled to duty.)” Surely a judge who himself went through college on an ROTC scholarship and did his time in the Navy is charged with knowing that the Individual Ready Reserve is an important element of our reserve forces, particularly for those with specialized skills like Colonel Hollister.

The facts of the Hollister complaint, if taken as true as is required when dismissing under Rule 12(b)(6), amply allege that the defendant/appellee Soetoro a/k/a Obama is not a natural born citizen as that term is set out in Art. II, Sec. 1, Cl. 5 of the Constitution. Despite that, the lower court judge states, again snidely, that the situation is that the appellee/defendant Soetoro has not proved his eligibility to Colonel Hollister’s “satisfaction.” We call the Court’s attention to our recently filed Rule 28(j) letter. The fact is that by the appellee/defendant’s own public statements he is not qualified under the Constitution, and he knows it.

Next, at App. 208-209 the lower court judge then engages in what has become and will remain his most infamous indulgence in bias and the appearance of bias from an extrajudicial source. We refer to his statement, which has traveled far and wide and repeatedly on the Internet, that:

The issue of the President’s citizenship was raised, vetted, blogged, texted, twittered, and otherwise massaged by America’s vigilant citizenry during Mr. Obama’s two-year- campaign for the presidency, but this plaintiff wants it resolved by a court.

To paraphrase economist Dr. Walter E. Williams: It would not matter if a majority of the citizens wanted the Constitution ignored and violated, it would still be wrong and against the Rule of Law in this country to allow it to be violated. It would be difficult to find a more egregious example of bias with an extrajudicial source than this statement.

...

Then, in completing his opinion of March 5, 2009, the lower court judge further exhibited the bias that was so evident by seeking to assess Rule 11 sanctions in violation of the Rule in a manner that ignored the Rule’s entire focus. He sought to assess the undersigned with the entire cost, including counsel fees,of the appellee/defendant Soetoro’s defense in this litigation. He did this despite the fact that when a court, as opposed to a party, initiates a sanction such assessment is not authorized by the Rule. And he made no inquiry whatsoever into what pre-filing inquiry had been made before suit was filed. Under Rule 11, if followed properly, the entire focus is on pre-filing inquiry. By not making any such inquiry, the lower court exhibited unsupported bias.

The undersigned then submitted a Show of Cause and a supplement to that Show of Cause. As a result the court below issued a second opinion on March 24, 2009. App. 243 ff. Before discussing that opinion, however, we want to point out a feature of the first opinion which is pertinent. At App. 210 the lower court found that it had jurisdiction of the case because of the interpleader statute but then stated that it was dismissing the case for failure to state a claim which is a dismissal pursuant to Fed.R.Civ. Proc. 12(b)(6).

The Supreme Court has made it clear repeatedly that when a Rule 12(b)(6) failure to state a claim is at issue all of the factual allegations in the complaint must be taken as true. See,e.g.,Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). This is the first principle of Rule 12(b)(6). Equally important here is second principle that the Supreme Court has set out:“courts must consider the complaint in its entirety, as well as other sources ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss,…”Tellabs, Inc. v. Major Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 2509, 168 L.Ed.2d 179 (2007).

...

At App. 256 the lower court, in its second opinion, said it had not said anything and would not say anything about the actual constitutional phrase. What it then said was quite illogical: “I have no business addressing the merits, because, having found that Mr. Hemenway’s interpleader suit failed to state a claim upon which relief could be granted, and I have dismissed it.” There is no way to analyze whether a sufficient claim has been made without considering the merits of the claim. The contention to the contrary is an absurdity and illustrates that the lower court was not operating on a study of the facts at issue and an analysis of the law as applied to those facts. By the time of its second opinion it seems to have been operating solely on its evident political bias.

Further evidence of this bias in the second opinion of the court below is found at App. 254 where it says:“Many people, perhaps as many as a couple of dozen, feel deeply about this issue.” Again, we would point out that the importance of a constitutional violation is not a function of popular sentiment. Further, this assertion is factually inaccurate. Major surveys have been conducted for the political left and right by reputable analyst firms and they indicate that the number concerned about this issue has been steadily growing and that something like half of the population feels that there is something suspicious about the appellee/defendant Soetoro’s hiding of the documents of his birth and education and every other aspect of his life.

...

We now see that with the rise of the blogosphere and the springing up of countless independent websites not part of the centralized command media that arose in the initial days of nationalized broadcasting in the 1930’s and 1940’s and 1950’s. We see today meetings in which ordinary citizens know more about what is in the details of a bill than their Member of Congress or Senator does. The dissemination is instantaneous and the rise in independent decision-making about officeholders and their doings is overwhelming. One result is a never before seen, at least since the founding days themselves, interest in the Constitution and adherence to it as a basic principle of our Rule of Law.

This inevitably has an effect upon the insistence upon an objective appearance of an absence of bias which 28 U.S.C. 455 in its present form commands. In this case the court below has become widely known in the country and will go down in history as the “blogging and twittering” judge, one for whom a sort of affirmative action progressivism is more important than protecting and preserving the Constitution sufficiently to actually analyze the issues it presents. However, in the present structure of communications,Orwellian “memory holes” become very difficult to operate despite earnest efforts.

The defendant Soetoro has in a never before seen maneuver, used a State of the Union address to try and openly intimidate the Supreme Court into not carefully adhering to the Constitution, like a Cook County politico with the courts there. He has announced at a prayer breakfast that it is not “allowed” to know about his birth documentation. Mr. Justice Thomas has observed that the issues here are being avoided. So the message has been received. Politically orchestrated “unthinkability” of course, is no substitute for the application of the Rule of Law. It presents at the very least the spectacle of decisions being made on the basis of political bias. History will not be escaped. It will reveal whether this audacious and knowing attempt to get around the Constitution and one of its most specific requirements will succeed through a tactic of seeking to intimidate and control the courts to prevent them from applying a constitutional rule of law or whether its judges will take their oath to preserve and protect the Constitution as seriously as those who have sworn the oath to preserve and protect in the military such as Colonel Hollister do. In a very real sense it is our system of a constitutional rule of law that is on trial here, and that is under attack. Those who will not defend and protect as they have sworn to do should recuse themselves. Their decision, in adopting the opinion below, should they chose to do so, without analyzing the actual issues, is a political one echoing the bias we have set out. As such it presents at least the appearance that violates 28 U.S.C. § 455 and they are, therefore, bound to recuse themselves.

Respectfully submitted,

/s/

JOHN D. HEMENWAY
Counsel for Appellants"

Entire motion can be found here:
http://www.scribd.com/doc/32337931/Hollister-v-Soetoro-Joint-Motion

[EDINVA]

“Appellants have provided no reasonable basis for questioning the impartiality of the district court judge. See Liteky v. United States, 510 U.S. 540 (1994).”

I would say that the brief filed and posted in this thread takes care of THAT. Not that you would notice.

[jamese777]

“To paraphrase economist Dr. Walter E. Williams: It would not matter if a majority of the citizens wanted the Constitution ignored and violated, it would still be wrong and against the Rule of Law in this country to allow it to be violated. It would be difficult to find a more egregious example of bias with an extrajudicial source than this statement.”

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Whoever is on the losing side of any judicial issue whines and complains. That’s simply par for the course. Walter E. Williams is a distinquished economist. He’s entitled to his opinion but it carries no legal weight.

I chuckled at your cartoon. Its good to see that you have a sense of humor about the natural born citizen issue and that you don’t take it too seriously.

Particularly with regard to the frivolousness of Hollister v Soetoro, any attorney who doesn’t even have the good common sense to use the correct, legal name for the defendant deserves to have a reprimand on his record for as long as he practices in the profession and that’s exactly what attorney Hemenway earned himself.

[Red Steel]

Whoever is on the losing side of any judicial issue whines and complains. That’s simply par for the course. Walter E. Williams is a distinquished economist. He’s entitled to his opinion but it carries no legal weight.

It's apparent that the judiciary in this country is willfully evading the issue to whether Obama is eligible for office or not. They evade the merits of the cases with legal and biased and frivolous dodges that have been pointed out to you and to anyone else who tries to understand the issue.

I chuckled at your cartoon. Its good to see that you have a sense of humor about the natural born citizen issue and that you don’t take it too seriously.

That's you we are laughing at by all your cut and pasting that you do. The boy eating the paste in the graphic helps illustrate the point.

Jameseeeeee7777777 says yummy!

[jamese777]

I would say that the brief filed and posted in this thread takes care of THAT. Not that you would notice.

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Psst...the District Court’s decision was already upheld on appeal. Its a wee bit late to be asking the ORIGINAL TRIAL JUDGE to recuse himself!

That’s what I noticed aside from the fact that the word “vacation” of opinion is used incorrectly in the motion for recussal.

“The plaintiffs/appellants jointly move for recusal of the judge below pursuant to and the vacation of his opinions as a consequence of the recognition of his bias and appearance of bias under that statute.”

I think they want Judge Robertson to go on vacation. The correct term would be “vacating.”

[Mr Rogers]

You can post as many pictures as you want, but you are still LOSING in court. And this case was about as maturely presented as your posts...

[Red Steel]

You can post as many pictures as you want, but you are still LOSING in court. And this case was about as maturely presented as your posts...

I'd rather be correct and morally right than win in court. In time, Obama is going down when the truth cannot be hidden about his past.

We've seen your posts that never stand up to logical scrutiny.

[EDINVA]

If you were to read the brief you might notice that it asks that the appellate judges on the panel whose opinion you posted recuse themselves, having ‘embraced’ the lower court’s bias.

It’s the SECOND SENTENCE .. not too deep into the brief:

“They also request of the members of this Court, particularly those who have embraced the bias of the court below, that they consider their obligation to recuse themselves if they present even an appearance of bias under that statute.”

So how much DID you read or comprehend? You caught them out on the improper use of a single word? tsk tsk.

[Mr Rogers]

“We’ve seen your posts that never stand up to logical scrutiny.”

That’s OK. Your cases never stand up in court.

“I’d rather be correct and morally right than win in court.”

Given your success rate, that is a good attitude to have...

[Mr Rogers]

You can’t get far by accusing all the judges of bias. Nor do they present any credible evidence of bias. For example, they cite ““The plaintiff says that he is a retired Air Force colonel who continues to owe fealty to his Commander-in-Chief…”” as proof of bias, since the guy IS a retired officer. However, what the court was referring to in “says” is the “continues to owe fealty to his Commander-in-Chief…” - which is bogus. As a retired officer, I don’t feel any “fealty” to Obama at all. I didn’t feel any “fealty” to Clinton while I was in uniform.

That was a very weak attempt at ‘standing’ and it made the case look stupid...although filing it against “Soetoro” had already done a fine job of that!

[Red Steel]

That’s OK. Your cases never stand up in court.

Never say never. We only need one punch to the Obama glass jaw in court. One of these cases in time will go through. This won't end even when Obama is out of office. The laws that he signed would still be subjected to nullification.

[EDINVA]

“The fact that a three judge panel at the United States Court of Appeals ... rejected the appeal of the plaintiff and affirmed the decision ... by the DC District Court speaks volumes.”

Why don’t you tell that to the New Haven firemen? The Court of Appeals in NY spoke volumes, too. Then the Supreme Court smacked them down. That’s what happens as cases wind their way up through the courts. 3-judge panels’ opinions are never the final word.

[EDINVA]

What fealty you may feel, or not have felt, is not the same as Col. Hollister, obviously, Some people take their oaths more seriously than others. Col. Hollister obviously takes very seriously his oath to uphold the Constitution.

However, you seem to have taken that quote (perhaps intentionally) out of context. The bias referred to is explained thus:

“Attached to the Hollister complaint was a copy of Colonel Hollister’s discharge papers showing his honorable discharge from the Air Force after a full career on active duty. Yet rather than acknowledge this fact as thus clearly shown, the lower court feels it has to say that “The plaintiff says that he is a retired Air Force colonel who continues to owe fealty to his Commander-in-Chief…” (emphasis added) Clearly the plaintiff Hollister is a retired Air Force Colonel. He does not just say that he is.”

If the judge’s intent is as you would have it, he would have written “The plaintiff is a retired Air Force colonel who says he continues to owe fealty .....”

Judges craft every word of their opinions with enormous care. Words mean things in judicial opinions more than in any other writings. This judge knew how to write that sentence to state exactly what he wanted and how he wanted it stated. The qualifier was where he placed it because he wanted it there. His purpose was to diminish the plaintiff Hollister because, it would seem, the judge didn’t like his original attorney or any challenge to the defendant - by any name - as to his eligibility to serve as President of the United States.

[Mr Rogers]

Officers don’t take an oath of allegiance to the CINC. We owe no President “fealty” - “The fidelity owed by a vassal to his feudal lord.”

Hollister knew that.

The judges were not pretending Hollister wasn’t a retired officer (easily proven), but his claim of fealty. THAT was a stupid claim.

[danamco]

It gives such great comfort that Ms. Rogers no longer in active duty, defending and protecting our CONSTITUTION, yet he still has not unstrapped his combat “Knee-Pads”!!!

[danamco]

The meeting with John Roberts on January 14, 2009 fixed it all so he had trouble stammering through the swearing in process and even Clarence Thomas got the “message,” yet you have some fifth column FINOs here popping the Champagne bottle every time the spineless judges are farting!!!

[EDINVA]

Col. Hollister spoke, in the second page of his complaint that I just took the time to read, that he had sworn an oath to “support and defend the Constitution of the United States ... and ... obey the orders of the President of the United States ... .”

It was the judge who introduced the word “fealty,” and its purported relationship to a CinC, into this case, not Col. Hollister. So, you would have to concede, would you not, that the ‘stupid claim’ to which you refer was made by Judge Robertson, not by Col. Hollister?

Perhaps the stupidity to which you refer thus equals bias, as it is otherwise noted in the posted brief that the judge himself served as a naval officer. Judge Robertson himself should have known better, as clearly Col. Hollister does, and as Col. Hollister so stated in his complaint.

The complaint raises the question: under the Constitution of the United States, is the defendant Soetoro/Obama eligible to serve as President of the United States/Commander in Chief. And, if he is not eligible, what is the obligation of those who have sworn to uphold the Constitution of the United states to obey any order he might give?

[AmericanVictory]

You don’t seem to have much grasp of what was held in the case. There was no finding of lack of stsnding. To the contrary, it was clearly assuemd by the finding that the court did have jurisdiction because of the statute. Moreover, the judge clearly relied upon extrajudicial sources for his decesion against Colonel Hollister demonstrating a clear biase based upon those sources rather than pointing to anythin in the complaint itself. You also seem to be saying tha bias statue in question, in its present form, can be ignored because it was ignored in this case. It’s an interesting perspective that judges are free to ignore such a statute, one that tosses the concept of a rule of law, in this case, of a constitutional rule of law.

[browardchad]

Yummmmy I like paste....

I'm sure you do, Red. It would explain quite a bit. :)

[EDINVA]

I agree that any judge ‘texting and twittering’ is absurd for a judge to mention in an opinion. However, he refers to the ‘vigilant’ citizenry having conducted a proper vetting of then-candidate Obama.

I must confess, I didn’t watch all the debates or pressers thru the primaries. Was then-candidate Obama ever questioned in a debate by other candidates or the media panels or moderators, or in any press conference, about his natural born citizen status? And, if so, how did he respond? Is there any evidence the question was ever raised in any venue or circumstance that might be considered semi-official, rather than the “texting/twittering” of an allegedly vigilant citizenry?

It’s hard to imagine that the other candidates (or their staffs) or the media did not read his autobiographical book without some red flags being raised due to his father’s citizenship. I really would like to know if that extent of vetting was ever done.

[jamese777]

Why don’t you tell that to the New Haven firemen? The Court of Appeals in NY spoke volumes, too. Then the Supreme Court smacked them down. That’s what happens as cases wind their way up through the courts. 3-judge panels’ opinions are never the final word.

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Thus far seven Obama eligibility lawsuits have reached the Supreme Court for justices’ “Cert” conferences seeking Writs of Certiorari. All seven have been denied those writs. That’s Berg v Obama, Craig v US, Donofrio v Wells, Herbert v Obama, Lightfoot v Bowen, Schneller v Cortes, and Wrotnowski v. Bysiewicz.
Hollister v Soetoro has not yet been appealed to the US Supreme Court so there’s really nothing to talk about.