Kerchner case will test Third Circuit Court’s adherence to the Constitution

APPELLANTS’ BRIEF LEAVES NO WIGGLE ROOM

by John Charlton

(Feb. 13, 2010) — Kerchner et al. vs. Obama & Congress is without doubt a case that will go down in the history books of law, and the Appellate Brief written by Attorney Mario Apuzzo, Esq., is a veritable treasure trove of Constitutional Law and interpretation on the rights of We the People to petition for redress in the most important matter in our form of government, the question of the eligibility of a putative sitting president.

Recently the attorneys representing Barack Hussein Obama and the U.S. Congress have admitted the formidability of the arguments mustered against their clients by requesting an extension on the deadline to file their reply.  The court set that, now, for March 8.  Apuzzo will then have two weeks to file his reply, defending his brief against their counter-arguments.

Without a doubt, Obama’s attorneys will not be able to muster a defense without a direct attack on the very U.S. Constitution and the rights protected by it which are the basis of the case.

In this article I will examine more closely the underlying legal arguments employed by Attorney Apuzzo to show why, with utter clarity, the plaintiffs in this case have the right to be heard, to have Simandle’s ruling rejecting their case overturned, and their ultimate goal of the court declaring Obama invalidly installed as President granted.  You can read the entire brief at Scribd.com.

To win their appeal before the Third Circuit Court of Appeals in Philadelphia, they first must pass several hurdles:

1) show that the court has jurisdiction to hear their appeal,

2) show that their Appeal meets the Standard for Review,

3) show that the Plantiffs meet Article III Standing requirements,

4) show that Simandle erred in finding that the Plaintiffs did not have prudential standing;

5) show that Simandle erred in his determination that the Plaintiffs’ claims represented a political question; and

6) show that Simandle denied the Plaintiffs’ due process rights, as guaranteed by the Fifth Amendment;

These are the points that Obama’s Lawyers will attack, so let’s examine each point with citations from the Appellate Brief.

The Third Circuit Court of Appeals has jurisdiction to hear the Appeal

First, Mario Apuzzo argues (hyperlinks added by The Post & Email) that the District Court had original jurisdiction to hear the case, because it involved a civil action against the United States:

This action is founded upon the Constitution. As such, the district court had jurisdiction under 28 U.S.C. § 1346(a)(2).

The pertinent citation from the US Code is as follows:

§ 1346. United States as defendant

(a) The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of:

(2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States

Then Apuzzo argues that the District Court also had original jurisdiction because the Plaintiffs’ claims represented a Federal Question:

This is a civil action claiming violations of the First, Fifth, Ninth, Tenth, and Twentieth Amendments of the Constitution. As such, the court also had jurisdiction under 28 U.S.C. § 1331.

The pertinent section of the Federal Code is:

§ 1331. Federal question

The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

Then Apuzzo points out that the District Court has authority to grant the declaratory relief sought by the Plaintiffs:

Plaintiffs also seek declaratory relief which gave the court jurisdiction under 28 U.S.C. § 2201(a) and 28 U.S.C. § 2202.

The pertinent section of the Federal Code here is:

§ 2201. Creation of remedy

(a) In a case of actual controversy within its jurisdiction, except with respect to Federal taxes other than actions brought under section 7428 of the Internal Revenue Code of 1986, a proceeding under section 505 or 1146 of title 11, or in any civil action involving an antidumping or countervailing duty proceeding regarding a class or kind of merchandise of a free trade area country (as defined in section 516A(f)(10) of the Tariff Act of 1930), as determined by the administering authority, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

In addition, Apuzzo points out that the District Court has original jurisdiction due to the civil rights violations committed by the defendants regarding their right to vote and their right to a free and fair election process;

This action also seeks injunctive relief which provided the court with jurisdiction under 28 U.S.C. § 1343(a)(3) and 28 U.S.C. § 1343(a)(4).

The pertinent sections of the US Code are, respectively:

§ 1343. Civil rights and elective franchise

(a) The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:

(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;

(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.

Then Mario Apuzzo addresses the nature of the relief sought and how the District Court also has jurisdiction to hear such a claim:

This action is in the nature of mandamus, and seeks to compel those defendants which are branches of the United States Government and “officer[s] or employee[s] of the United States or any agency thereof” to perform their ministerial duties owed plaintiffs under the First, Fifth, Ninth, Tenth, and Twentieth Amendments of the Constitution of the United States. As such, the court had jurisdiction under 28 U.S.C. § 1361.

This section of the US Code reads:

§ 1361. Action to compel an officer of the United States to perform his duty

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

In addition to the claims of original jurisdiction, Apuzzo then adds arguments for ancillary jurisdiction: that is jurisdiction which is dependent and assists the original jurisdiction of the District Court to hear the case:

Additionally, the court had ancillary jurisdiction over this action sounding in mandamus pursuant to 28 U.S.C. Sec. 1651(a), for the court already had original jurisdiction under other statutes already cited herein.   This action is also in the nature of a petition for quo warranto under the Ninth and Tenth Amendment to the Constitution, asking that Obama be eventually declared under Article II to be ineligible to hold the Office of President and Commander in Chief and that he be eventually removed from and be permanently barred from holding that office.   The court also had jurisdiction over this petition because plaintiffs claim that their right to this writ emanates from their rights and powers under the Ninth and Tenth Amendment.  Additionally, the court had ancillary jurisdiction over this petition for quo warranto pursuant to 28 U.S.C. Sec. 1651(a), for the court already had original jurisdiction over plaintiffs’ other claims.  This Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291.

Section 1651 is the All Writs Act and reads thus:

§ 1651. Writs

(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

Apuzzo cites this section of the US Code to rebut the claims made by Simandle that the D.C. Code, quo warranto provision, restricts use of that writ to the D.C. District courts. The final citation to section 1291, simply points out that the Third Circuit Court of Appeals has jurisdiction to hear appeals from all subordinate District Courts.

A Summary of the Kerchner Appeal

First, Apuzzo summarizes the general basis for the Court’s hearing of the case:

The Court’s scope of review of the decision of the district court to grant a Rule 12(b)(1) on a finding that the court does not have jurisdiction is plenary.  Electronics, Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000); In re Phar-Mor, Inc. Sec. Litig., 172 F.3d 270, 273 (3d Cir.1999).

In conducting its review the Court accepts as true plaintiffs’ material allegations, and construes the complaint in the light most favorable to them. Ballentine v. United States, 486 F.3d 806, 810 (3d Cir.2007) (setting forth standards of review for both Rule 12(b)(1) and 12(b)(6) dismissals).

Then, importantly, Apuzzo summarizes the facts of the case.  Since these are often overlooked, I will cite them at length:

Plaintiffs filed a Complaint for Emergency Injunction, Declaratory Relief, Mandamus, and Petition for Quo Warranto at about 2:50 a.m. on January 20, 2009, when Congress had already confirmed Obama’s President Elect status but before Chief Justice Roberts swore him in as President after 12 Noon on January 20, 2009. Dkt. Entry 1 and 21.  While plaintiffs amended that pleading two more times, the Second Amended Complaint/Petition is the only pleading plaintiffs served upon defendants.  Dkt. Entry 7-13.  Who the plaintiffs are is fully set out in the Second Amended Complaint/Petition.  Dkt. Entry 3, para. 8-11.

In the complaint/petition, plaintiffs allege that Obama has not conclusively proven that he was born in Hawaii.  They also allege that even if he was so born, he is not an Article II “natural born Citizen” because his father was a British subject/citizen when Obama was born and Obama himself was born a British subject/citizen, all of which makes him ineligible to be President and Commander in Chief of the Military.  Specifically, they made a claim against Congress based on the First Amendment (by abridging their right to petition the government for a redress of grievances); a claim against Congress based on the Fifth Amendment (deprivation of liberty, safety, security, protection, and tranquility without procedural and substantive due process of law by violating its constitutional duty under the Twentieth Amendment to adequately investigate and confirm whether Obama is an Article II “natural born Citizen”); a claim against Congress based on the Fifth Amendment (denial of equal protection by protecting them and other citizens as to McCain’s “natural born Citizen” status but not as to Obama’s); a claim against Obama based on the Fifth Amendment (deprivation of liberty, safety, security, protection, and tranquility without substantive due process of law by failing to adequately prove and to prove he is an Article II “natural born Citizen” and occupying the Office of President while not being eligible for the that Office); a claim against both Obama and Congress based on the Ninth Amendment (denial of rights retained by the people in failing to address Obama’s lack of qualification to be President); and a claim against Obama based on quo warranto (occupying the Office of President while not being eligible for that office).  They also made claims against former Vice President Dick Cheney and current Speaker of the House for allowing and facilitating the ineligible Obama to occupy the Office of President.

Defendants filed a motion to dismiss plaintiffs’ complaint/petition under Fed.R.Civ.P. 12(b)(1), arguing, among other things, that the district court did not have subject matter jurisdiction because plaintiffs do not have standing.  Def.Br. p. 3.  On October 21, 2009, the district court dismissed plaintiffs’ complaint/petition.   A-2.  The Court ruled that the plaintiffs do not have Article III standing and that therefore the court does not have subject matter jurisdiction. A-3. The Court found that the plaintiffs failed to show that they suffered an “injury in fact.”  A-11.  It added that plaintiffs’ alleged injury is “only a generally available grievance about government” and “is one they share with all United States citizens.”  A-9 to A-11.  By way of footnote, the Court said that even if the plaintiffs could show that the Court had Article III standing, they would not be able to show that the court should exercise jurisdiction because prudential standing concerns would prevent it from doing so. A-12.  Finally, the Court again in a footnote said that it cannot take jurisdiction of the issue of whether Obama is a “natural born Citizen” and whether Congress has acted constitutionally in its confirmation of Obama for President because the matter is a “political question” which needs to be resolved by Congress.  A-12.  The Court said that there simply is no room for judicial review of political choices made by the Electoral College and the Congress when voting for and confirming the President.  The Court added that the plaintiffs’ remedy against Congress may be found at the voting polls. A-12.

Then Attorney Apuzzo cites the facts of the case, which completely undermine all the arguments of Obama’s supporters, that he legitimately holds the office of President:

Obama has not yet conclusively proven that he was born in the United States.  Complaint para. 34-70.  Obama is not an Article II “natural born Citizen, for Obama’s father, Barack Obama Sr., at the time of Obama’s birth in 1961 was a British subject/citizen subject to the jurisdiction of the United Kingdom, and handed down British citizenship to his son, Obama. British Nationality Act of 1948.  His father was never a United States citizen nor was he even a permanent resident. Id. para. 72-74.   They both became Kenyan citizens when Kenya got its independence in 1963.  Id. para 73.  Obama’s  relationship to his Indonesian step-father and move to Indonesia when he was a child with his mother and step-father, and his travels to Pakistan in 1981, also raise doubts to be resolved through discovery about whether Obama is a “natural born Citizen.”  Id. para. 76-78.  If Obama was not born in the United States, there exists a possibility that Obama could be an illegal alien.  Id. para. 79-83.

The Democratic National Committee (DNC) did not adequately vet and verify Obama’s Article II “natural born citizenship” by having a disinterested third party adequately examine his original long-form birth records in the vaults in Hawaii, communicate to the DNC as to its origins and content, and provide to the DNC a certified true copy of Obama’s original long form Certificate of Live Birth (BC).1

Contrary to 3 U.S.C. Sec. 15, Cheney did not openly call for the objections to the votes after the votes from each and every state were presented. Cheney was legally obligated to follow the procedure prescribed by 3 U.S.C. Sec. 15.  Hence, in not properly counting and receiving the electoral votes from each and every state, the confirmation count is not valid.

———————-

ENDNOTE 1 Nancy Pelosi merely signed an affidavit to most states certifying that Obama was nominated.  Nowhere in the nominating documents that Pelosi provided to most States does it say Obama is qualified to serve as President per the Article II Constitutional requirements, if he is elected. See Dkt. Entry 3, Par. 85-91 and n. 16.  On August 28, 2008, Pelosi certified under oath in the Democratic National Committee Official Notification of Nomination that Obama was legally qualified to serve under the provisions of the United States Constitution. Given the importance of the document and that she certified under oath, she had a duty to assure the public that what she said was in fact true.  She so certified when acting as a private person.  Nowhere in Pelosi’s certification does it say that the DNC Party nominated a person who is Article II qualified, i.e., an Article II “natural born Citizen.”

Then after citing pertinent cases which regard the issues raised, Apuzzo states his fundamental argument as to why this Appeal should be granted:

This case concerns the “natural born Citizen” clause found at Article II, Section 1, Clause 5.  Plaintiffs contend that American political, media, and law enforcement institutions did not adequately vet putative President Barack Obama (“Obama”) during his campaign for the Office of President.

Because of such failing, Obama was not compelled to produce his original birth certificate showing.  This case must be heard to settle the meaning of “natural born Citizen” as found in Article II.  To date, no state or federal election official, nor any government authority, has investigated or held hearings and verified that Obama ever established and proved conclusively that he is an Article II “natural born Citizen.” Plaintiffs have filed this action against the non-Obama defendants for their violation of plaintiffs’ First Amendment right not to have their right to petition their government abridged by their failure to address their First Amendment petitions and grievances filed with them regarding Obama’s Article II eligibility to be President.   Plaintiffs are also seeking remedies under the Fifth Amendment for the non-Obama defendants’ denying them a liberty interest without procedural due process of law, depriving them a liberty interest without substantive due process of law, depriving them of equal protection of the law under the Fifth Amendment, and for their violation of plaintiffs’ constitutional rights under the Ninth and Tenth Amendment.  This action is brought against the non-Obama defendants because, in light of the great public outcry and plaintiffs’ petitions for redress of grievances regarding whether Obama is an Article II “natural born Citizen” and otherwise qualified for the office of President, they violated plaintiffs’ Constitutional rights under the Twentieth Amendment by failing on behalf of the plaintiffs as their elected representatives to properly vet and verify pursuant to their Constitutional obligation under the Twentieth Amendment, Section 3  whether  Obama was born in the United States and is an Article II “natural born Citizen”  so as to meet that provision’s citizenship eligibility requirements to be President and to allow and to continue to allow Obama to occupy the Office of President even though he is not qualified to be President under Article II because he is not a “natural born Citizen.” By so failing and given that the non-Obama defendants with much less public demands and grievances, fully investigated, authorized legal scholars to conduct legal research and to present their findings in the form of a legal opinion, held public hearings on the question of whether Republican Presidential candidate John McCain is an Article II “natural born Citizen” and eligible to be President, and even passed Senate Resolution 511 proclaiming that McCain is an Article II “natural born Citizen,” defendants also deprived the plaintiffs of procedural due process and equal protection under the Fifth Amendment in failing to utilize, on their behalf as their democratically elected representatives and through whom plaintiffs speak and assert their constitutional rights, the same procedure they used to investigate McCain and to also use the Constitutional and statutory procedure that exists under the 20^th Amendment and 3 U.S.C. Sec.15, respectively, for the purpose of conclusively verifying that President-Elect Obama was born in the United States and that he is an Article II “natural born Citizen” and otherwise constitutionally qualified for that office and in failing to treat plaintiffs the same as they treated other similarly situated members of the public who had expressed their concerns for whether McCain was an Article II “natural born Citizen.”

By way of mandamus, plaintiffs seek a court order compelling the non-Obama defendants to adequately investigate and hold Congressional hearings under the Twentieth Amendment on the question of whether defendant Obama was born in the United States and is an Article II “natural born Citizen” and otherwise qualified to be President under that Article. This action in the form of mandamus is brought against defendant Obama to compel him to prove that he was born in the United States, that he is an Article II “natural born Citizen,” and that he is Constitutionally eligible to hold the Office of President and Commander in Chief.  This action in the form of declaration of rights and quo warranto is brought for the Court to declare that Obama is not Article II qualified to hold the Office of President and Commander in Chief and therefore that the non-Obama defendants removed and permanently barred him from that Office or at least invite Congress to at least consider doing so.

As one can see, from Apuzzo’s argument, what the Plaintiffs are demanding is nothing more than an objective, formal, and legal examination of Obama’s eligibility by the Congress, and his own disclosure of documents to prove or disprove that.

Considering that Obama supporters are so vociferous to defend that he is eligible, they should not fear such requests; but Obama’s lawyers are fighting this with every legal argument they can.  In this they confess, implicitly, that is he NOT ELIGIBLE — it only takes common sense to see that.

In the remainder of the 95 page Appellant Brief, Apuzzo details his arguments in favor of standing, redressability, and the rights of the Plaintiffs to seek relief.

In summary, it can rightly be said, as it was said of Judge David Carter’s Court in Santa Ana, California, that this Eligibility case will test the integrity of the court itself, and show whether it adheres to the U.S. Constitution in letter and spirit.  It is to be expected that the Motions submitted by Obama’s attorneys in this case will directly attack the same, just as they did in the Barnett vs. Obama case.

Finally, you can follow the docket on this Appeal through this link.

See the tags at the end of this report for more information on these issues.