Monday, March 9, 2009

Justice and the American People Not Served by the Hollister v. Soetoro Decision

In the case of Hollister v. Soetoro, the United States District Court for the District of Columbia recently granted Mr. Obama's (Soetoro) and Mr. Biden's motion to dismiss the case. The plaintiff, a retired Air Force colonel, filed his lawsuit as an interpleader action. Such an action is designed to protect someone who does not know to whom the person should pay money by allowing the person to pay the money into a court for later resolution. Plaintiff argued that he is not yet convinced that Obama is qualified to be President under Article II. He said that he has taken an oath to uphold and defend the Constitution and that should he be recalled to military duty he would not be sure whether or not he should follow Obama’s orders, which uncertainty caused him to suffer fear of exposure to multiple claims, hazards, and injury. Basically, plaintiff sought to equate his fear of multiple claims he potentially could face should Obama give him any military orders with someone being conflicted with multiple economic claims.

We have already witnessed so many courts around the country dismiss cases regarding the Obama eligibility question because of standing. Standing is the showing that a plaintiff has to make which convinces a court that he has suffered an injury caused by the defendant’s conduct which the court can remedy by its potential decision. Because of the serious standing hurdle, I am sure the plaintiff’s attorneys used the interpleader argument in their effort to convince the court to find standing and eventually get to the merits of the case which is were the justice lies. Given how courts all over the country have dismissed the eligibility cases because of standing, we cannot fault the plaintiffs’ attorneys for trying something creative in order to overcome the standing issue.

Defendants’ filed a motion to dismiss the complaint, arguing plaintiff did not have standing and that he failed to state a claim upon which the court can grant any relief. They did not challenge the plaintiff on the merits of his law suit (i.e. whether Obama was born in Hawaii) but rather on the threshold question of whether they stated a claim upon which relief could be granted. The defendants argued that the plaintiffs’ potential military duties were not property and that no interpleader action could be maintained.

In its ruling, the court said:

“This case, if it were allowed to proceed, would deserve mention in one of those books that seek to prove that the law is foolish or that America has too many lawyers with not enough to do. Even in its relatively short life the case, has excited the blogosphere and the conspiracy theorists. The right thing to do is to bring it to an early end. “

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

The judge went on to chastise plaintiff’s local lawyer because in his opinion the lawyer who filed the case used the courts to harass the defendant and now threatens to force him to pay the defendants’ attorney’s fees.

It is important to understand that the court did not rule that Obama was born in Hawaii or that Obama is an Article II “natural born Citizen.” The only thing the court did was to rule that the plaintiffs’ potential military duties or orders are not property and therefore no interpleader action could be maintained. Hence, the court never addressed the underlying question of whether Obama is qualified to be President.

The court however went much too far in its opinion in suggesting that Obama has been fully vetted (ridiculing the internet activity regarding the eligibility issue), the courts are not the proper forum to resolve the Obama eligibility issue, and in threatening to impose sanctions against the plaintiff’s local attorney. Additionally, the court unreasonably strayed from the facts and the law and entered into the political arena and in so doing has caused serious repercussions for freedom of expression, participatory democracy, and public access to the courts.

The court’s comments about wanting to avoid the law being perceived as foolish, that maybe there are too many lawyers with nothing to do, that the case has only excited the “blogosphere and conspiracy theorists,” that Obama’s eligibility question has been fully “raised, vetted, blogged, texted, twittered, and otherwise massaged by America's vigilant citizenry,” and that the real plaintiff is on a crusade and does not merit to be taken seriously can do nothing for justice and public respect for the court. If anything, such comments will only mislead the public into thinking that the underlying issue of Obama’s eligibility has no merit when the court never reached that issue. One can see from how the media has reported this case that they only report on the judge’s scathing attack on the plaintiff’s lawyers and his order that he is looking to sanction the attorney, all without telling the public that the court never decided where Obama was born or whether he is a “natural born Citizen.” The court’s comments can only serve to have a chilling effect on plaintiffs who may want to pursue what they in good faith believe to be constitutional challenges to Obama’s eligibility to be President. If the court does not want any such further actions, then it could have decide the merits of the case rather than publicly ridicule the plaintiff and his lawyers which will only cause citizens to fear bringing any other legal actions. Additionally, threatening sanctions against the local attorney will also make it hard for concerned citizens to find lawyers who will take up their cause in the District Court for the District of Columbia. In the end, justice suffers and a backlash is created in the many concerned Americans who have been offended by the court’s words.

There is no way for the court to take back what it said. Nevertheless, those concerned Americans who still want to bring the Obama eligibility question to justice need to understand what the court said and did not say and not be thwarted by such judicial conduct in their effort to learn whether Obama is constitutionally eligible to be President.

Mario Apuzzo, Esq.

P.S. Please feel free to join the discussions and comments in this forum about the subject of the Natural Born Citizenship clause in Article II of our Constitution by [Clicking Here].
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8 comments:

Zapem said...

The birth certificate is completely secondary to the question as to whether or not his dual-nationality, which Britain did not acknowledge at the time of his birth, makes Obama in need of being naturalized or not.

The 14th Amendment does NOT give broad-brush citizenship to anyone born here. That's not what it says. The congressional record of the 14th Amendment states:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
–Citizenship Clause in Sec. 1 of the Fourteenth Amendment (1868)

“What do we mean by ’subject to the jurisdiction of the United States’? Not owing allegiance to anybody else. That is what it means.”
–Judiciary Committee Chair Senator Lyman Trumbull during the Citizenship Clause debate, 39th Congress, 1st Session (1866)

When Obama claimed dual-citizenship, by his own admission, even if that were upheld in a court of law, he can't get past the "not owing allegiance to anyone else" explanation!

He can't fall back on Wong Kim Ark because that court never ruled on the natural born citizen issue and it certainly didn't rule on British claims.

That's the point here. Even if Obama DID produce a birth certificate, the question of law has NOT been answered. The BC is a smokescreen. The 14th Amendment and the British Nationality Act of 1948 are the two things at issue here. The birth certificate is completely secondary to the discovery of the main issue.

That's my opinion about the whole thing.

I'll give you what I wrote Ben Smith next.

Zapem said...

I wrote this on Ben Smith's Politico blog and I'm passing it on to you because I think it's important to point out an inaccuracy in that opinion. Here it is:

========================

I'm not a birth certificate chaser, I would have rather seen the courts review this issue as a matter of law, period, but since they refuse, and find this more entertaining, as does Ben Smith, I will call out one bald-faced inaccuracy in that memo:

The blogosphere, twitter, etc., has NOT been reviewing Obama's citizenship for two years. That is an outright lie. The first time it ever surfaced was around June, 2008after McCain's eligibility was called into question in the Senate. Obama's NEVER was, that's a fact. Show me the congressional record. You can't. It was after McCain's investigation, that Factcheck.org suddenly revealed they had a birth certificate.

Excuse me -- Certificate of Live Birth from Hawaii, somehow proving Obama was born there, even though they admit the seal wasn't showing and you probably could get one of those even if you weren't born in Hawaii because their laws are so screwed up.

Nevertheless, that picture was taken in early March, 2008, per a photographer who stripped out the embedded date in the photo.

Nowhere in March, 2008 was anyone questioning Obama's citizenship, so why did Factcheck.org take a picture of his COLB in March? Furthermore, why did Factcheck.org wait until June/July to post it if, as this Judge contends, it was such a pressing question haunting the entire internet for 2 years?

The truth is, it was NOT a pressing question in March, 2008, because NO ONE was asking about it. I challenge this Judge to show me ONE article up in arms over Obama's citizenship for the two years he CLAIMED was active during and prior to the campaign. I challenge him to find me one prior to McCain's investigation. I challenge Ben Smith to go find me one, too.

That's the problem with this Judge's statements. It contains untruths. Despite Berg's contention, whether you agree with him or not, this Judge was completely biased in his decision, obviously from being selected by Bill Clinton, and shouldn't have made inaccurate statements like he did in an official opinion. The lie he told only makes his opinion tainted. I challenge this Judge to put forth his proof that Obama's citizenship was in question for years during and prior to the campaign and I'd like one of you bozo's in the media to go get it, because I'm sure he won't have an answer.

Ben Smith, go make some use of yourself and do some real research, will ya? This stuff is nonsense and drama. Trolls love it, but some adults around here are still waiting for you guys to grow up and put an end to the questions this Judge is obviously incapable of producing.

The circus you're making of it is obvious. We know, we know. The republicans intend on putting up their own minority candidate in 2012 and making an issue out of this wouldn't do, would it?

In the meantime, the Constitution suffers, because this Judge and the trolls have made a mockery out of qualifying for the presidency. THAT is the reality of this. And if none of you see the importance in that, then you have learned nothing from 9/11 or the framers of the Constitution. It was made this way to protect this country. When you scoff at the Constitution, you may as well hand over your Bill of Rights. You would not have those if it were not for the Constitution. Now keep laughing. It's real funny, isn't it? Stupid people.

Zapem said...

I'm not so sure that the U.S. District Court is the only recourse. Notice the language that says in the Federal Statute that one "MAY", not "MUST".

History has shown us, as Kamira pointed out to the group and on Donofrio's blog, that elected and sworn in, sitting Senators were outsted from office and cites Gallatin and Shields and others in the proof of the congressional record found here:


http://books.google.com/books?id=qkMFAAAAYAAJ&pg=PA223-IA8&lpg=PA223-IA8&dq=Albert+Gallatin+ineligible+Senator&source=bl&ots=GO4Ii8iPv7&sig=NVpzF2CVNYUnIWYpNdjESd9gvYA&hl=en&ei=YIiwSaOeOteitgfYiIHEBw&sa=X&oi=book_result&resnum=5&ct=result#PPA221,M1

Point was taken that the three branches of government are EQUAL, therefore a sitting Senator should be treated no differently than a sitting President - otherwise, we have a monarchy, which we don't.

Under Quo Warranto, I would think that Ralph Nader and Alan Keyes would without a doubt, meet the harsher criteria for standing. However, standing is a rather interpretative concoction, that has its roots in keeping people out of the courts, not in.

You won't see the standing as an issue in the days of the founding fathers. It was designed later, as a political tool and I'm going to be sending you interesting information on that. Compare it to the language in the Federal Statute. I'm sure you'll find it quite the eye-opener as to constitutionality.

kaydee said...

Zapem: Thank you for spelling it out for Mr. Smith and giving him the help he needs Another tinfoil hat journalist; by omission of truth-searching, he is fomenting lies. I wrote to him in the same vein last week when he first peeped his silly blather and haven't heard a word from him. Forgive my not seasoning this commentary with grace, but sometimes the truth cannot be sugared. By the way, did he respond to your latest comments?

Let us move forward said...

I heard that the defense motion referred to the online copy of the Birth Certification as proof of citizenship eligibility.

I think I saw the following story on Berg's site. Lisa, Berg's assistance was run through a wringer on this case. First she was told by the court that a motion to file an interpleader was necessary today. She questioned the supervisor of the person demanding the motion and he told her to file the motion although she did not need to file it. Then the judge throws the book at Berg for filing the motion.

Sounds like Donofrio's experience in NJ. Said he had seen things done by the court that he had never seen in 12 years practice

Also appears that the clerks may have run interference again to derail Berg's suit.

The judge probably had his mind made up before he saw any paperwork.

Is this justice?

Puzo1 said...

I wanted to share with everyone this interesting definition of the word "volunteers."

"Since from time immemorial it had been regarded as the duty of free men to defend their country, governments could scarcely object if, in moments of crisis, volunteers came forward to offer their services. Yet they were not necessarily very efficient, often tiresome in their personal demands, and, as the case of the Irish volunteers suggests, a potential political threat. A number of corps were raised in 1690 to deal with a threat of French invasion, again in 1715 and 1745 to cope with the Jacobite risings, and again in 1779 during the American War of Independence. But the biggest response was during the Revolutionary and Napoleonic wars, and again in 1859 when there was yet another threat of war with France. By 1901 there were 230,000 volunteers, augmented by the Royal Navy and Royal Artillery Volunteers, the militia and the yeomanry. Haldane's reforms of 1907 reorganized them into the Territorial Force, later the Territorial Army." JOHN CANNON. "volunteers." A Dictionary of British History. 2004. HighBeam Research. 10 Mar. 2009 http://www.highbeam.com.

Mario Apuzzo, Esq.

Zapem said...

Kaydee, nope, Ben Smith has been e-mailed dozens of times and he never responds. You only have this little box to reply in that is so horrid, it doesn't even have the capability of making paragraphs so that it's readable. Then they close all comments after 3 days, wait a bit, and then throw out another idiotic article about it.

I got one thought out trying to show that even the 14th Amendment, during the debates, has a confliction with case law and what do I get for a reply? Ballantine whipping out unrelated opinions as if she's a lawyer representing Obama. Of course she had not one thing to say about the point that Trumbull insisted that citizenship did mean, no other allegiance to anyone else. She couldn't answer why that was said. It wouldn't have fit in with her belief-system.

They don't get it! It's not the point. The point is, I've been trying to show that there has been conflicting opinions since the Constitution has been written. By official debate, by Congress, by lawyers, judges, case law - and now blogs, forums, websites, etc.

You could literally drive yourself nuts with the crazy changes in law and opinion that have gone on since the Revolution. It's been 200 years of back and forth on this subject for too long and it really needs an end. I'm not saying that both sides don't have their points, they do - but until the Supreme Court (where this issue belongs) takes the reigns of their responsibility and makes a decision, that's all we are doing also - going back and forth.

I will point to this, they will point to that. There's no end to it. No one here can be right or wrong because we're simply not the Supreme Court. Ben Smith irks me because he doesn't even back up his opinion with any facts. He's done zero research. Who is he anyway? A writer for a blog. Big whoop!

Then we get a judge dismissing a case and threatening costs because he claimed, untruthfully, that the internet has been researching Obama's birth for 2 years. Ben Smith knows damn well that's not true. I researched it along with several other people, using the internet archives as well University data, and that judge is wrong. No one was researching Obama's birth prior to June, 2008. What was even this judge's point in saying that except to promote MOB RULE? There's no other explanation.

Personally, I don't think the framers intended to leave the door this wide open. You've got a man whose father was not even a citizen. You've got a step-father who claimed him as an Indonesian adopted son. You have a name change on official school documents that support a legal adoption, in Indonesia, who would only allow citizenship to occur if no other nationality was active.

http://www.unhcr.org/refworld/docid/3ae6b4ec8.html

Then you have Senator Martinez making ignorant statements to the public that it doesn't matter if he was a natural born citizen or not, once you're voted in by voters, there's nothing anyone can do about it. Like hell there isn't! History shows Gallatin, Shields and others were thrown out of office AFTER they were voted for, sworn in and sitting in that office. Don't tell me we can't do anything about it. I wonder what agenda he had in writing that. What really irks me is that he can get away with spreading lies. There should be laws against that when said by sitting Senators or any member in the major branches of government.

See how disinformation becomes "common law"? That's the problem. Since when did this country start assuming its laws?

What I see are a bunch of people attempting to pull this country into mob rule without a care in the world for the country's laws. It's disrespectful to lie about the law and encourage mob rule to be superior to it. That's what is happening on the internet and through the silence of the courts. The courts are encouraging mob rule. Each of these judges promulgating that, should be thrown off the bench because that is contrary to their job and they took an oath particularly so this wouldn't happen. But it is, and it's disgraceful.

I blame the judges in all these cases and the media for promoting lies about the law.

Threats, intimidation tactics, smears, media bashing and lies is not going to stop people from asking questions. It's only going to serve to divide this country further. This is a free country and the people have a right to not suffer at the hands of the media and the court when they are using lawful means to get an answer.

Stop threatening people. Start answering their questions. It's not that hard and definitely not too much to ask. They're getting paid for that job.

cpabooks said...

Mr. Apuzzo,

Your analysis of the decision and reporting of Hollister v. Soetoro was exactly how I saw it, but was unable to express. It was respectful of Berg's work, unveiled Judge Robertson's lack of professionalism, and communicated the harm that befalls the American people when lawyers are discouraged from taking cases to court.

I was disappointed by the arrogant language used by Judge Robertson and wondered why he, with his experience, allowed himself to stray so far. He may have mocked the fact that Berg used the "wrong" name, totally missing the point of Mr. Obama's multi-national history. It was as if he was writing for another audience, the audience compromised of elite peers. ZAPAM picked up on the "Bevis and Butthead" humor in the previous comment.

All of these eligibility cases deserve respectful consideration. Thank you for your reaction to this case.

I sent you a copy of the mailings I made to electors some weeks ago and hope that it was helpful in some small way. I hope you received the package.