Saturday, October 31, 2009

The DC District Court Is Not the Only Court In Which to File a Quo Warranto Action

I do not agree with the notion that only the DC District Court has general jurisdiction over a Quo Warranto petition. The DC district court would have exclusive original jurisdiction over such a petition only if a party is not able to prove that a district court other than the DC court has original jurisdiction in the case any other way. If a party wants to avoid having to file its action under the DC code in the DC district, that party must show the forum court that it has original jurisdiction by way of some other constitutional or statutory provision. This means that the party cannot rely upon the quo warranto action alone to try to prove that the forum district court has original jurisdiction. If the party can prove that the court has original jurisdiction otherwise by showing that it has an underlying claim based on some other constitutional or statutory provision which gives that court original jurisdiction, the party is neither compelled to use the DC statute nor the DC district court but rather can file the party’s quo warranto petition in any district of the United States seeking relief in conjunction with that underlying statutory or constitutional provision which is the basis for the court to assert original jurisdiction in the first instance. In such later case, the quo warranto jurisdiction is ancillary to the court's original jurisdiction that rests on a separate and distinct constitutional or statutory provision in the first instance. Under such circumstances, the district court would obtain ancillary jurisdiction over the petition for quo warranto under 28 U.S.C. Sec. 1651(a) (the All Writs Act), for the court would already have original jurisdiction over plaintiff’s other claims. See United States of America Ex Rel. State of Wisconsin, Plaintiff-appellant, v. First Federal Savings and Loan Association and Federal Home Loan Bank Board, Defendants-appellees, 248 F.2d 804 (7th Cir. 1957).

In the scenario described, the quo warranto jurisdiction is said to be ancillary to the court's original jurisdiction that rests on a separate and distinct statutory or constitutional provision in the first instance. Under such circumstances, the district court would obtain ancillary jurisdiction over the petition for quo warranto under 28 U.S.C. Sec. 1651(a) (the All Writs Act which authorizes the court to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law"), for the court would already have original jurisdiction over plaintiff’s other claims. Under such circumstances, the All Writs Act may be used because the party is not using the act to augment the jurisdiction of the court but rather only petitioning the court that it issue the quo warranto writ as an aid to the court's already existing original jurisdiction.

As far as showing that the Court has original jurisdiction otherwise than through the quo warranto action, one has to put forward a cause of action based on the Constitution or federal statute that gives the court that original jurisdiction. In the Kerchner complaint, I have included various original jurisdiction constitutional claims. These claims are based on the First (redress of grievances), Fifth (deprivation of liberty, safety, security, and tranquility without procedural and substantive due process of law and denial of equal protection), and Ninth Amendment (denial of rights retained by the people), all of which support the independent quo warranto action and which provide the original jurisdictional foundation on which the quo warranto rests. Quo warranto is an ancient common law writ. The Ninth Amendment, which preserves for the sovereign We the People their ancient common law remedies and writs, takes the place of the D.C. statute.

Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg, New Jersey 08831
http://puzo1.blogspot.com/

October 31, 2009

12 comments:

Robert said...

It would seem that your argument would also be supported by the concept of equal protection whereas confining a justifiable redress of grievances to just one court, especially one not centrally located, would put undue burden on those living far away.

cfkerchner said...

Dittos Mario. We the People are the sovereigns under the new form of federal government we created with the Constitution. The Preamble of the Constitution makes that clear. We created the federal government and under the 9th and 10th amendments we retain the rights and powers to enforce that Constitution via Quo Warranto and/or other actions. The courts have invented rules trying to turn that upside down the last 50-100 years or so. But all those laws and rules are clearly subservient to the Constitution, the fundamental law of our nation. And SCOTUS will set them aside when it reaches them because it is their duty to interpret the constitution and define what an Article II Natural Born Citizen is. That is the crux of the matter we want the case to decide. The legal definition having been made it is then handed to Congress to resolve the issue of dealing with a Usurper. But it will be clarified and corrected soon. The percentages of the People who know that Obama is a fraud is rising each month. Once the courts know that significant percentages of the People know that Obama is a fraud and that We the People will hold them accountable for not upholding their oath to support and defend the Constitution and act as the guardians and interpreters of the Constitution which is their duty, they will likely find their spines and courage again to do what they should have done last year in August 2008, constitutionally disqualify the pretender as not eligible under Aricle II, Section 1, Clause 5. At that point with the mess that has been created by Obama and his fellow grifters from Chicago and in DC, new elections will likely have to be called within 90 days since all those in power there now were complicit in the failures of the last one.

Charles
http://www.protectourliberty.org

William said...

Mario & Charles,



My deepest concern from my research is that appeals can last years. I could be wrong, but it appears that the Circuit court of appeals has no requirement to provide a resolution within any specific period of time (please advise if different). If Obama and the DOJ wish to kill the case, they can simply sit on it indefinitely in the court of appeals, Obama can finish 2 terms before they move and do anything.

I am beginning to believe that in the meantime, possible increased focus on enlightenment to educating the public at large would be an excellent approach. Of course the question becomes how? I know that Charles has written many in the MSM challenging them to a debate, to no avail. I am wondering if those in the past that have offered large sums of money to anyone that could prove Obama was in fact born in Hawaii would be willing to switch their marketing approach?

For example; if WND and such individuals would make a donation to the talk show host if they hold a debate with you (Mario) and themselves, along with another attorney if they chose. If they can prove that Obama is a NBC in the debate with you, then they would receive the donation and apply it to their choice of charity, ie… toys for tots (Christmas is around the corner).. Of course, we know they will not win the debate, but at the minimum, the NBC discussion hit the MSM…

Just trying to put on my marketing hat for a moment! We have a product in which we need to hit a consumer group with. The product is (NBC definition) and the Consumer group is (unaware Citizens). I could be wrong, but I think WND offered 50K and one independent group offered 1 million.

Sallyven said...

See this November 1 post on The Obama File regarding two recent surveys, one in Arkansas and one national, that asked the question: Do you believe Obama was born in the USA?

http://www.theobamafile.com/ObamaLatest.htm

Here again we see the question being framed in a way that implies that "born in USA equals natural born", and in a more subtle way (see the Angus poll that asked questions about Fox News on the same survey) that those who answer "no" have somehow been brainwashed by Republicans or Fox News, or just can't help themselves because they are-- southerners (Hah, I am a southerner!) And we've all seen the attempts to imply that these citizenship questions are somehow racist or conspiracy theories.

We are beginning to see more and more of this type of thing in the mainstream news. I truly do feel that the stage is being set for the release of the long-awaited, long-form Hawaii certificate. Just in time for this important Kerchner case. And attempts will follow to mock and erode the credibility of the "birthers", Republicans, Fox News, southerners, conservatives, etc., on not just this issue, but any of the topics currently being debated in Washington, such as Health Care Reform and Cap and Trade.

I sent emails to both Public Policy Polling and Angus Reid Strategies in response to their surveys and the bias they presented in the way their question was framed, along with a link to this blog. We must continue to take action, even in small ways like this, and try to educate and inform the public. Maybe some of it will not fall on deaf ears, and either enough people will demand action, or maybe somewhere out there is an influential person or persons that our comments reach that can help us. Let's use every opportunity we have to help. We cannot afford to just sit back and wait any longer.

Puzo1 said...

George Mason's University History News Network has a web site at
http://hnn.us/

The lofty and obviously false Mission Statement of the University as stated on their blog is the following:

"Even those who profess utter indifference to history are beholden to it. History is inescapable. Who we are and how we react to events depends, to a great extent, on our past. As Eugene O'Neill has a character in Long Day's Journey into Night exclaim, at a critical juncture, "The past is the present, isn't it? It's the future, too. We all try to lie out of that but life won't let us."

Journalism is said to be the first draft of history. But journalists traditionally have had little use for historians. The list of occasions on which journalists feel compelled to call upon historians is short. Though a select number of historians recently have become media stars, the fact remains that few are publicly quoted, and hardly any are given the public platform regularly awarded economists, political scientists or pollsters. The last historian trusted to take a large and visible role in a national administration was Arthur Schlesinger, Jr., and that was forty years ago.

Given how public opinion is shaped today, whipsawed emotionally on talk shows this way and that in response to the egos of the guests, the desire for ratings by the hosts and the search for profits by media companies and sponsors, historians are especially needed now. They can help remind us of the superficiality of what-happens-today-is-all-that-counts journalism.

Among the many duties we assume are these: To expose politicians who misrepresent history. To point out bogus analogies. To deflate beguiling myths. To remind Americans of the irony of history. To put events in context. To remind us all of the complexity of history.

Because we believe history is complicated our pages are open to people of all political persuasions. Left, right, center: all are welcome.

George Mason University and HNN."

The blog's writer, Rick Shenkman, wrote a book, Just How Stupid Are We? In the blog he mocks Arkansans for not believing that Obama is a U.S. citizen. Today I posted my response to Ed Hale Jr.'s attack of Charles Kerchner and me. I did post a copy of my response in this thread. My early post and Mr. Hale's attack is there but not my response to Mr. Hale. See
http://hnn.us/blogs/entries/115933.html

What is worst, I am now banned from posting on their web site (my first such ban).

Maybe members of the public should tell Mr. Shenkman what we think of him and his web site.

jayjay said...

I can't see that shenkman's site qualifies as a website - it's merely the launch pad for one or more of the Flyijng Monkeys that are trying to keep in power a man who has never shown himself to hold the office he now occupies.

That makes that particular website pusher the stoopiod one!! And banning Mrair from the site will merely keep him from wasting time with an ignoramus who does not realize that WKA says nothing about the NBC circumstance - that means the guy can't read.

jayjay said...

... and my keyboard cqan't spell :-)

equadar said...

Mr. Apuzo and Mr Kerchner,

I sent Leo a comment on the NBC definition, which he did not post. But my reasoning is that NBC is what congress and courts have not defined. Example: citizenship, residents ad infintum. because they lack the authority.
NBC is natural state likened to an embryo. My question to your good minds would be the same to SCOTUS, On what who's and where authority is to usurp the United States of Americas' Constituted prerequiste for POTUS being NBC?
When all that is given the courts and congress authority is to define all other citizens status being it is outside the natural state?

garygs415 said...

Mr Apuzzo, following is a comment and reply left Leo's blog. Could I ask to get your take on this? And if Leo could be correct, would you go after Obama in the DC District Court? Remember, whatever it takes to get the usurper BO taken down.

"Have you seen Attorney Mario Apuzzo’s article entitled “The DC District Court Is Not the Only Court In Which to File a Quo Warranto Action” at http://puzo1.blogspot.com/2009/10/dc-district-court-in-not-only-court-in.html

In the words of my favorite attorney “My Cousin Vinnie”, in your opinion, does Mr. Apuzzo’s argument hold water?

[ed. Mario is wrong. He can make that argument till the cows come home, but he will never prevail. There are separation of powers in this nation and the political question doctrine will stop any District Court in its tracks.

But there's also the small matter of the The president's office being in the District of Columbia and as such Congress has "exclusive" jurisdiction under the Constitution.

Article 1 Section 8 Clause17 states:

The Congress shall have power…To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States,…

Compare the wording of Clause 17 with §16-3501 of the federal quo warranto statute:

A quo warranto may be issued from the United States District Court for the District of Columbia in the name of the United States against a person who within the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States, civil or military. The proceedings shall be deemed a civil action.

When you read the two back to back, it appears Constitutional that the office of President – being in the District of Columbia – should be governed by the federal quo warranto statute.
Mr. Apuzzo, the following was posted on Leo's blog. You have probably seen it, but could I ask you for your take on this. Could Leo be correct, and if so, why don't you go after the usurper, BO, in a DC District Court? Whatever it takes, Mr. Apuzzo. Let's please take this go down.


Furthermore, why doesn't Mario just file the suit in the DC District Court where it belongs? If he fails there then go on and try some exotic concept in another court. It just seems inane to ignore the very statute that covers all US national offices. I mean, after all, the statute actually uses the word "usurps". What's the deal?]"

jayjay said...

garygs415:

I believe that your (and, by inference, Leo Donofrio's) interpretation of the Article I, Section 8, clause 17 passage is wide of the mark and does not offer the sole and exclusive right to JUDICIAL determination in DC but rather LEGISLATION in DC.

Mario's point is, I think, (correctly) that any Federal court - if having jurisdiction of a particular case - has JUDICIAL jurisdiction in DC as well as pertains to the matter at issue.

jayjay said...

garygs415:

Since you seem to be a great fan of what must be called "the Donofrio modus operandi" (aka "all hat and no cattle as they say in Texas) why don't you ask HIM to follow his own advice?

After all, he's a licensed attorney and strenuously believes his odd thought about QW only being allowed in a single court jurisdiction (which is not at all what the Constitution says).

You should insist, then, that he speak with his own words in QW litigation and stop conning his fans into trying to disturb an extremely well-pleaded and well-directed piece of litigation that is well along on its path to a SCOTUS hearing.

In other words, go back to where you came from and agitate there - not here!! Donofrio (if he's truly convinced of the merit of his blatherings) can and SHOULD (assuming that he's truly the patriot he pretends to be) file QW himself instead of just promoting himself.

equadar said...

To jayjay

SHOULD is right. Evenmore he is obligated.