Apuzzo on the D.C. Code's Quo warranto provisions

IN REGARD TO ELIGIBILITY CASES

Attorney Leo Deonofrio has been leading a crusading effort to clarify the understanding of, publicize and advocate the use of the D.C. Quo warranto provisions.  Recently he has commented at his blog, naturalborncitizen.wordpress.com, about the D.C. code and the Barnett vs. Obama case, and responded to Attorney Mario Apuzzo’s previous essay on the non-exclusive nature of the D.C. Code’s quo warranto provisions.  In reply, Attorney Apuzzo published today a long analysis of the weakness of the provisions for an eligibility challenge, of the kind he is making for the Plaintiffs in Kercherner vs. Obama.

Commander Charles F. Kerchner, Jr., is coordinating a fund raising effort to educate the public on the Natural Born Citizenship requirement for the Office of president.  If you would like to constribute to this effort, please click here.

The Post & Email is republishing Apuzzo’s essay, with permission; and it asks its readers to consider making a donation to the publicity effort lead by Commander Kerchner.

Quo Warranto and the Kerchner v. Obama and Congress Case

by Mario Apuzzo, Esq.

Leo Donofrio, Esq. wants the “right” plaintiff to bring a quo warranto action against putative President Obama under 16 D.C.Code Secs. 3501-3503 in the Federal District Court for the District of Columbia. He in effect maintains that quo warranto is an exclusive remedy available to remove Obama from office. He maintains that Obama may be removed from office only through a quo warranto action and that the DC District Court is the only court in the United States where such an action may be brought.

I recently wrote an article about this issue, entitled The DC District Court Is Not the Only Court In Which to File a Quo Warranto Action. http://puzo1.blogspot.com/2009/10/dc-district-court-in-not-only-court-in.html. I explained that given the causes of action that I have raised in the Kerchner action, I can also file a quo warranto claim in the Third Circuit. Mr. Donofrio recently posted his disagreement with my article at his blog, http://naturalborncitizen.wordpress.com/2009/10/29/judge-carter-the-writ-of-quo-warranto-must-be-brought-within-the-district-of-columbia-because-president-obama-holds-office-within-that-district/. I will now address Mr. Donofrio’s response to my article.

The Nature of a Quo warranto is a Direct Attack on an office holder

Before we begin, we must understand that a quo warranto action is a direct attack on an office holder, questioning his qualifications to hold an office and therefore his warrant and authority to occupy that office. It does not challenge any action taken by that person while having been in office. This type of action is to be distinguished from one where the plaintiff brings an indirect attack (collateral attack) against that office holder, arguing that some action taken by him or her is invalid because he or she is not qualified to hold the office from which the action is taken. Nat’l Ass’n of Greeting Card Publishers v. U.S. Postal Service, 569 F.2d 570 (D.C.Cir.1976) (per curiam), vacated and remanded on other ground, 434 U.S. 884 (1977); Andrade v. Lauer, 729 F.2d 1475 (D.C.Cir.1984). As we shall see below, this distinction is important, for it can be argued that direct attacks must satisfy the requirements of a quo warranto action while indirect attacks must satisfy the requirements of the de facto officer doctrine. Mr. Donofrio does not explain which one of these approaches he proposes to take against Obama. The Kerchner action does not challenge any action taken by Obama. Rather it challenges his Article II eligibility (that he is not a “natural born Citizen”) to hold the office of President and Commander in Chief of the Military. Hence, it is a direct attack on Obama’s, contending that he is not Article II eligible to occupy the Office of President.

A Quo warranto action, as a direct attack, is inherently problematic

Since Mr. Donofrio is proposing a quo warranto action, he must be planning a direct attack against Obama. Mr. Donofrio fails to recognize the many problems that exist with the quo warranto procedure that he advocates. Under the common law, only the United States can bring a quo warranto action. Wallace v. Anderson, 18 U.S. 5 Wheat. 291, 292 (1820). Congress can, however, pass a statute allowing a private person to bring such an action. Johnson v. Manhattan Railway Co., 289 U.S. 479 (1933). Hence, it would appear that the DC District Code would solve the problem for a private person wanting to bring such an action against Obama. But the DC District Code presents a cumbersome procedure that has to be followed and which renders the very statute inapplicable to a quo warranto action against a sitting putative President such as Obama.

The Procedure to be followed by the D.C. Code Quo warranto provisions

This procedure starts by requiring that the quo warranto issue in the name of the United States. It compels a concerned citizen to apply to the Attorney General or the United States Attorney to bring the action on his behalf in the District Court for the District of Columbia (16 D.C. Code Secs. 3501-3502. These officials have broad discretion. It is not realistic that they would file a quo warranto action in the name of the United States against a sitting putative President, their own boss and the same person who appointed them. It is also unrealistic that they would file such an action in a case in which among the list of defendants are the United States itself along with the U.S. Congress, Senate, and House of Representatives. Even appointing a special prosecutor would present a problem, for who would appoint him or her?

We have already seen how the Executive and Congressional branches of government are both defending Obama’s stance that he is constitutionally eligible to be President. Especially shocking is how the Justice Department has taken the side of Obama rather than support and defend the Constitution and support the plaintiffs who argue that he is not an Article II “natural born Citizen” and therefore not eligible for the Office of President and Commander in Chief of the Military. How does Mr. Donofrio expect to get any cooperation from either of these two branches of government which he would need to sanction and support his quo warranto action?

Alternatively, the D.C. Code allows an “interested person” standing

It is true that the DC statute provides a private litigant with a mechanism by which he can still bring the quo warranto action even if the government refuses to do so. But if these government officials refuse to institute a quo warranto proceeding as they have thus far so demonstrated, only an “interested person” may petition the court for leave to have the writ issued in the name of the United States on the relation of the “interested person.” 16 D.C. Code Sec. 3503. At common law, a private person had no such right to bring the quo warranto action and this DC statute is the only statute passed by Congress that permits such a procedure. Blackburn v. O’Brien, 289 F.Supp. 289 (D.C.W.D.Va. 1968). Nevertheless, the court has broad discretion to deny the writ.

An “interested person” as defined by Newman vs. United States ex re. Frizzell

Under the standard for being an “interested person” as pronounced by Newman v. United States ex rel. Frizzell, 238 U.S. 537 (1915), in a case involving a public office one would have to have “an interest in the office itself peculiar to himself…” and be filing an action against another who allegedly usurped that office. Indeed, Newman requires that the plaintiff be “actually and personally interested” in the office and that there be another person against whom the action is brought who has unlawfully occupied the office in question. In other words, the plaintiff must himself make a claim to the office in order to qualify to bring the action. Are there any available plaintiffs at this time who fill this bill or will there be any in the future who will do so? I know that Mr. Donofrio is now looking for a plaintiff to retain him to bring a quo warranto action in the DC District Court. But has he advised the public that any would-be plaintiff has to have an interest in the office itself peculiar to himself and that he be actually and personally interested in the office? We must keep in mind that the quo warranto action is only an attack on the title of the office holder and not an attack on any action taken by that person. A suit based on alleged illegal action taken by an office holder provides many more possibilities to establish standing (e.g. illegal firings from employment, illegal takings of property rights, breach of contract, etc.), but as we will see below must satisfy the requirements of the de facto officer doctrine, unless grounded on a constitutional violation in which case it does not. Even if the quo warranto plaintiff could show that he was an “interested person,” the court would still have to grant him its permission to bring the quo warranto action. Can we reasonably expect the DC District Court to give its permission to a plaintiff to bring an eligibility action against Obama whom as we have seen the court views to be a legitimate sitting President? For all of these procedural reasons, it is highly doubtful that the DC District Code even applies to a quo warranto action involving a President.

Constitutional problem with using D. C. Code to attack de facto President

But there is a more serious problem with what Mr. Donofrio proposes and that is one of constitutional dimensions. Mr. Donofrio claims that Congress has delegated it powers to remove a sitting President to the DC District Court by passing the DC District Code statute. First, I maintain that Congress in passing the DC statute did provide private litigants with a statutory mechanism for bringing quo warranto actions in the DC District Court, but it did not intend for it to apply to ousting sitting Presidents. Under the Appointments Clause (Article II, Sec. 2, cl. 2), it is the President that is given the power to make, with the advice and consent of the Senate, appointments of “Officers of the United States” and other positions that are not considered inferior. Given the President’s power to fill these offices, it is doubtful that Congress meant to include the Office of the President itself when it wrote “public office of the United States” in Section 16-3501. Hence, as written and only interpreting it as though the Office of the President is not included in its sweep, the DC statute would pass constitutional muster. Second, if the DC statute were to be read as Mr. Donofrio does so as to be used as a tool to oust from office a sitting putative President, then I doubt such an application of that statute would be constitutional. It is highly doubtful that Congress, a co-equal branch of government to the Executive, has the constitutional power to pass a statute which would allow a federal district court to alone directly remove a sitting President. See Marbury v. Madison, 1 Cranch, 137 (1803) (shows that Congress in enacting laws must do so within the confines of power given to it in the Constitution and held that Congress had no power to give the Supreme Court original jurisdiction in cases not described in the Constitution). Surely, if Congress cannot give the Supreme Court power which the Constitution does not give to that Court, Congress also cannot give to a federal district court any power not belonging to it under the Constitution.

The Constitution itself textually provides the means by which to remove a sitting President and Congress has no constitutional authority to legislate a different way to do it. See Article I, Section 8 which prescribes the legislative powers given to Congress. The Constitution itself does not give Congress any authority to create by legislation any such quo warranto actions that may be used to oust a sitting President let alone any authority to delegate that removal power to the judicial branch of government. It is also doubtful that Congress would attempt such a delegation of power given that the Constitution itself provides for a mechanism to remove a President for misconduct or prevent a person from becoming or continuing as President who is not Article II qualified. The Constitution at Article I, Sec. 2 and 3 gives Congress the power to impeach the President which only applies to a duly elected and confirmed sitting President who is convicted of “Treason, Bribery, or other Crimes and Misdemeanors…” As we can see, impeachment would only apply to a duly elected President who has intentionally committed a serious criminal offense.

The Constitution provides means to remove a sitting President

To prevent an ineligible person who has won the Electoral College vote from becoming President, the Constitution requires that Congress itself qualify and confirm a President Elect under the Twentieth Amendment. To remove a person who may have improperly gotten past Congress’s qualification and confirmation function, who is not eligible for the Office, and who has not necessarily intentionally committed any serious criminal offense, the Twenty Fifth Amendment provides a procedure for the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide to initiate removal of the President should they deem him “unable to discharge the powers and duties of his office.” The amendment does not limit the scope of the President being “unable” to function, suggesting that such inability can included physical, mental, or legal inabilities. Inability to discharge the powers and duties of an office surely includes the lack of legal capacity to perform those powers and duties. Lack of legal capacity in that regard can be established if one is not qualified to hold that office. Lack of qualification surely includes not being eligible for an office. Not being Article II eligible to be President then shows that Obama is not qualified for the office, lacks legal capacity to perform what is required of him while occupying that office, and is therefore unable to discharge the powers and duties of his office.

Hence an Eligibility Case, to avoid constitutional conflicts must seek declaratory relief first

A Court presented with a case or controversy could decided and declare that Obama is currently not Article II eligible to be President and therefore constitutionally unable to discharge the powers and duties of this office and transmit that declaration to the Vice President and a majority of the executive department officers who would then initiate the removal procedure prescribed by the Twenty Fifth Amendment. Such a procedure respects separation of powers concerns that a court may have with a notion as Mr. Donofrio espouses of being asked to directly remove a sitting putative President. This procedure, with both the judicial and legislative branches of government involved in the process, also provides checks and balances which are necessary to prevent one branch of government from abusing or usurping powers at the expense of the People. The Kerchner complaint/petition has asked the court to take this exact approach to the eventual removal of the Article II constitutionally ineligible Obama. This approach to Obama’s removal also shows that there is no redressablity (one of the Article III standing requirements) problem should the court want to act.

Why I do not believe that it is in the interests of my clients to file a Quo warranto in D.C.

Mr. Donofrio insists that I file the quo warranto action in Washington. But as we have seen, Mr. Donofrio’s approach is fraught with procedural and constitutional obstacles which may be very difficult if not impossible to overcome in a case brought by a plaintiff who challenges the Article II constitutional eligibility of a sitting putative President and who brings his action in the United States District Court for the District of Columbia under the District of Columbia Code, but who does not have any personal interest in that Office. Indeed, even if a plaintiff is an “interested person,” such a plaintiff would probably be unsuccessful in utilizing that procedure to remove a sitting putative President because of the procedural requirements it demands. Finally, to use the DC District Code in the manner that Mr. Donofrio proposes is probably unconstitutional for want of power in Congress in passing such legislation if Congress intended the DC statutes to work as Mr. Donofrio would want them to work, for being an illegal Congressional delegation of powers to the judicial branch if Congress has such power and for being a violation of separation of powers. Hence, these obstacles would only prevent persons like the Kerchner plaintiffs and others who may be interested in pursuing the Obama eligibility issue from vindicating their individual constitutional rights under the due process clause of the Fifth Amendment to have only a constitutionally qualified President take action against them that significantly and profoundly affects their fundamental individual constitutional rights to liberty, safety, security, protection, and tranquility. Indeed, the technical statutory requirements and the unconstitutionality of a DC District Code quo warranto action against a sitting putative President would most likely render the constitutional eligibility requirements of Article II virtually unenforceable by a person injured thereby. These virtually insurmountable hurdles show that the DC District Code quo warranto action is not adequate for the Kerchner plaintiffs’ needs. Not being adequate it cannot be the exclusive procedure available to them. United States v. Machado, 306 F.Supp. 995 (D.C.N.D.Cal. 1969).

There are grave Constitutional issues which argue for ancillary jurisdiction in District Courts

Our Constitutional Republic is based on the Constitution and the rule of law which guarantees individuals due process of law. A denial of all judicial forums and remedies may be a denial of due process. Hence, our judicial branch of government should not allow such a result and rather should use its Constitutional and equitable powers to give a deserving plaintiff the requested constitutional relief he or she seeks. Given these virtually insurmountable procedural and constitutional obstacles, I have therefore taken a different approach to the removal of the Article II ineligible Obama which Mr. Donofrio does not address or refuses to recognize. I have shown that the DC District Court would have exclusive original jurisdiction over a quo warranto petition only if a party is not able to prove that a district court other than the DC District 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 Court, a party must show the forum court that it has original jurisdiction by way of some other constitutional or federal statutory provision. 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 federal 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 common law quo warranto petition in any district of the United States seeking quo warranto remedies in conjunction with that underlying or constitutional or federal statutory provision which is the basis for the court to assert original jurisdiction in the first instance. See F.R.C.P. 81(a)(2) (does not provide for a substantive quo warranto proceeding but rather only allows federal courts to use the already existing common law quo warranto action); See also Ames v. State of Kansas ex rel. Johnston, 111 U.S. 449, 471-72 (1884) (holding that quo warranto was a civil action properly heard by any federal court having federal question jurisdiction); Wilder v. Brace, 218 F.Supp. 860, 863-65 (D.Me. 1963) (a federal court with diversity jurisdiction can hear quo warranto action). Because of the unique nature of a Presidential constitutional eligibility action, the court should not require that a plaintiff bring the action in the name of the United States or that the Attorney General or the United States attorney institute the action or that the court itself grant the plaintiff leave to file the action. A quo warranto action when first created was a civil action, became a criminal one, and now is back to being a civil one. Also, the Kerchner plaintiffs are only asking for quo warranto remedies that will be exercised not directly by the Court but rather by Congress with the assistance of the Court in defining the rights and obligations of the parties to the controversy (e.g. defining what an Article II “natural born Citizen” is). Hence, there exists no constitutional problem (no political question or separation of powers problem) in a court proceeding in this fashion.

Mr. Donofrio does not address my argument that 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 plaintiffs’ other constitutional or federal statutory 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 constitutional or federal 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 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 federal 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. Indeed, “[u]nless appropriately confined by Congress, a federal court may avail itself of all auxiliary writs as aids in the performance of its duties when the use of such historic aids is calculated in its sound judgment to achieve the ends of justice entrusted to it.” Adams v. United States ex rel McCann, 317 U.S. 269, 273 (1942). Hence, the court can avail itself of the quo warranto writ to provide the plaintiffs with authority to discover the facts and Obamas’s legal position concerning his Article II eligibility to be President. Finally and critically important, in the Kerchner proceeding the quo warranto action does not stand alone which in the context of attempting to remove a sitting putative President under the DC District Code would present the procedural and constitutional problems that I have explained above, but also with other constitutional causes of action against Obama and Congress that give the court the ability to fashion the appropriate remedy (solving any redressability problems) and to satisfy separation of powers and checks and balances concerns.

The is a Precedent in the Third Circuit Court for ancillary jurisdiction

Use of the quo warranto remedy has already come up in the Third Circuit Court of Appeals in Philadelphia in the case of United States v. Malmin, 272 F. 785 (3rd Cir. 1921). While the Court decided the case by issuing a peremptory writ of mandamus to a federal district court judge sitting in the Virgin Islands of the United States rather than a writ of quo warranto testing his title to the office, it did leave open the possibility that in the future a quo warranto action may be needed to test that title. The Court did not state that such action could not be brought in the Third Circuit and that such an action would have to be brought in the DC District Court under the DC statute.

D. C. Code does not grant “exclusive” jurisdiction for all cases

Mr. Donofrio also argues that Congress through the DC District Code has given the DC District Court “exclusive” jurisdiction over any quo warranto action filed in the federal courts against Obama. He wants to give the DC district court exclusive jurisdiction over any quo warranto action existing in any place of the United States by way of Article I, Sec. 8, cl. 17, which provides: “The Congress shall have power…[t]o exercise exclusive Legislation in all Cases whatsoever, over such District…as may…become the Seat of the Government of the United States…” First, the statutes themselves no where say that Congress gave such exclusive jurisdiction to that court alone over any quo warranto action against any federal officer let alone a sitting President. Mr. Donofrio does not read Article I, Sec. 8, cl. 17 correctly, for it is designed only to establish who shall have jurisdiction over this specially created piece of 10-square-miles piece of land, not to restrict in any way the powers of the federal courts of the United States to that specific location. Starting with the Judiciary Act of 1789, c. 20 (1 St. 73) we can readily see that Congress has always been very careful about how it assigns jurisdiction to the federal courts and if that were its intent, it would have clearly said that the jurisdiction in the DC District Court is both original and exclusive. See Ames v. State of Kansas ex rel. Johnston, 111 U.S. 449 (1884). For example, some state legislatures have put language in their quo warranto statutes indicating that quo warranto jurisdiction is exclusive with a certain court of the State. See Henning v. Village of Waterford, 78 Wis.2d 181, 253 N.W.2d 893 (1977) (Wisconsin). Second, Mr. Donofrio’s argument cannot be correct given that Article III, Section 2 of the Constitution provides that “[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treatise made, or which shall be made, under their Authority….” This broad grant of judicial power extends to all the federal courts in the United States, not to just any specific ones. The Kerchner action is not only based on a federal statutory infraction, but also a constitutional violation. I established jurisdiction in the Third Circuit under, among other statutes, 28 U.S.C. Sec. 1346(a)(2) and 28 U.S.C. Sec. 1331. Moreover, I established venue in the Third Circuit by satisfying 28 U.S.C. Sec. 1391(e). See Ames, 111 U.S. at 462 (it has never been doubted that a case is presented which arises under the laws of the United States, citing Cohens v. Virginia, 6 Wheat. 379, Gold Washing & Water Co. v. Keyes, 96 U.S. 201, Railroad Co. v. Mississippi, 102 U.S. 140). Third, as I have shown above, “original and exclusive” jurisdiction is lodged in the DC District Court only if a litigant does not have any other constitutional or federal statutory cause of action. The Kerchner action does have independent constitutional and federal statutory causes of action and therefore is not bound by the DC District Code to be filed only in the DC district court. Fourth, as I have shown above, it is doubtful that Congress has the constitutional power to pass a statute such as the DC District Code if it were to be used to remove a sitting President.

Constitutional Rights support this alternative route

Mr. Donofrio curtly dismisses the Kerchner action as an “exotic concept.” But there is nothing “exotic” about it. Indeed, in the words of Chief Justice Waite in United States v. Cruiksahank, 92 U.S. 542 (1875): ‘Citizens are the members of the political society to which they belong. They are the people who compose the community , and who , in their associated capacity, have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual as well as their collective rights.” For sure, Obama, if he were a legitimate President and regardless of whether they voted for him or note, would have the constitutional duty to provide for the Kerchner plaintiffs’ general welfare and to specifically provide for their protection. In return, they would consent to submit to his legal authority over them. I have included in the complaint/petition various original jurisdiction constitutional claims. These claims are based on the First (redress of grievances), Fifth (deprivation of liberty, safety, security, protection, 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. The Ninth Amendment to the United States Constitution guarantees to the People rights not granted in the Constitution to the Federal government and reserves to the People certain rights as they were understood at the time that Constitution was adopted in 1789. The guarantee of those rights is a matter of compact or contract between the Federal government and the People of the United States as of the time that the compact or contract with the United States was agreed upon and adopted by the People in 1789. Quo warranto is an ancient common law writ which existed at the time the Constitution was adopted. The Ninth Amendment, which preserves for the People their ancient common law remedies and writs, along with the common law and principles of equity therefore take the place of the D.C. statute which is not needed to give the Kerchner plaintiffs a right to seek quo warranto remedies through the judicial and legislative branches working together, provided the forum court has original jurisdiction otherwise.

Moreover, if quo warranto is not available because of some procedural obstacle, the remedy of quo warranto may be asked for in a declaratory judgment action which also seeks injunctive and mandamus relief. In such a case, declaratory judgment is permitted because the common law requirement that quo warranto be brought by the attorney general (at common law a private individual has no standing to institute a quo warranto action) limits the availability and adequacy of the remedy. Bochard, Declaratory Judgments, 2d ed., p. 362; Anderson, Declaratory Judgments, 2d ed., sec. 195, p. 385; United States v. Machado, 306 F.Supp. 995 (N.D.Cal.1969). Hence, a court can provide a plaintiff with equitable remedies that include those offered by a quo warranto action. There is no reason why the court should not exercise its equitable powers to do justice when warranted by the special circumstances of the case with which it is presented. It is only right that plaintiffs not be left with no remedy should quo warranto relief not be available because of its cumbersome requirements which probably can not be satisfied in a case challenging a sitting putative President. Declaration, mandamus, and injunction based on constitutional violations can include the quo warranto remedies even though the quo warranto remedies might not be available if the quo warranto action stood alone. See United States ex rel. Noel v. Carmody, 148 F.2d 684 (D.C.D.C. Cir. 1945) (if quo warranto does not provide plaintiff with an effective remedy, plaintiff would be limited to relief by way of bill in equity). In the Kerchner action, in addition to quo warranto remedies, I have asked for equitable relief in the form of declaration, injunction, and mandamus. See Andrade, v. Lauer, 729 F.2d 1475 (D.C. Cir. 1984) (in this action challenging an office holder’s action and his title to the office, the court explained that such equitable remedies can replace quo warranto remedies, provided a plaintiff can show he has standing and that he has met the requirements of the de facto officer doctrine by showing that he took timely action against the office holder and that the government agency had reasonable notice of the claimed defect in the officer’s title to the office so as to have the opportunity to remedy any such defects). Even though the Kerchner case is not one that challenges any action taken by Obama but only his Article II constitutional qualifications to hold the title to the Office of President, we nevertheless satisfy any de facto officer doctrine concerns and therefore make a stronger case compelling equitable relief.

First, I filed the Kerchner complaint/petition, seeking declaratory, injunctive, and mandamus relief, before Obama was sworn in as President on January 20, 2009. Hence, my action is surely timely. Second, Obama and Congress have had notice of the challenge to Obama’s Article II eligibility well before the election and even through the Kerchner action itself. Hence, they have had an opportunity to address and remedy the challenge to Obama’s constitutional eligibility to fill the Office of President. But despite this opportunity, they have both refused to acknowledge the “natural born Citizen” issue (that Obama has not conclusively proven that he was born in Hawaii and even if he was he is not a “natural born Citizen” because he was not born in the United States to a mother and father who were at his birth United States citizens) let alone address and remedy this serious constitutional crisis. On the contrary, both Congress and the Executive have sided with Obama, who being sued not only in his official capacity but also in his private capacity has the burden to show that he is constitutionally qualified for the Office of President, and have taken every possible step to deny any plaintiffs their day in court. Additionally, it can be successfully maintained that given that the Kerchner plaintiffs have raised substantial constitutional questions involving whether Obama is eligible under Article II to fill the Office of President, the de facto officer doctrine cannot be used against them in the first place. Glidden Co. v. Zdanok, 370 U.S. 530, 535-38 (1962); Ryder v. United States, 515 U.S. 177 (1995).

On October 20, 2009, the Federal District Court for the District of New Jersey dismissed the Kerchner case on the defendants’ motion to dismiss. The Court did not rule that Obama has conclusively proven that he was born in Hawaii. The Court also did not rule that Obama is an Article II “natural born Citizen.” Rather, the Court dismissed the plaintiffs’ case because of jurisdiction (Article III and prudential standing) and the political question doctrine without commenting on the underlying merits of whether Obama is constitutionally qualified to be President and Commander in Chief of the Military. The Court also did not rule that the plaintiffs’ claims are frivolous. Additionally, unlike in the Keyes/Barnett v. Obama case in California, the defendants did not argue that the Kerchner quo warranto action was filed in the wrong court. Judge Simandle also did not rule that it was incorrectly filed. By the Court finding that plaintiffs do not have standing and that their claims present a political question, the Court was able to avoid having to address the underlying merits of the Kerchner case. With such a decision, the American People unfortunately still do not know where Obama was born and whether he is an Article II “natural born Citizen” and therefore constitutionally eligible to be President and Commander in Chief. The Kerchner action is now on appeal to the Third Circuit Court of Appeals in Philadelphia where it is hoped the Kerchner plaintiffs will receive the judicial and public attention that their case so rightfully deserves.

[Commander Charles F. Kerchner, Jr. is coordinating a fund raising effort to educate the public on the Natural Born Citizenship requirement for the Office of president.  If you would like to constribute to this effort, please click here.]

Read Mario Apuzzo’s blog at http://puzo1.blogspot.com