BUT ORDER “IS NOT BINDING PRECEDENT”
by Sharon Rondeau
(Aug. 19, 2017) — On August 15, the Tenth Circuit Court of Appeals in Denver, CO issued an “Order and Judgment” in case number 17-4055 appealed from the U.S. District Court for the District of Utah by plaintiff Cody Robert Judy affirming the lower court’s determination that the case was “frivolous.”
The civil suit first arose in July 2014 when Judy, representing himself, claimed that Barack Hussein Obama, the DNC, Rep. Nancy Pelosi, then-Sen. Harry Reid, and the political action group Organizing for Action (OFA) violated his civil rights under 42 U.S.C. 1983 and provisions of the Clayton Act and Sherman Anti-Trust Act.
In 2008, 2012 and 2016, Judy ran for president as a Democrat. In 2008, he filed dual lawsuits claiming, respectively, that Obama and his Republican challenger, Sen. Jon McCain, were ineligible to seek the office of president because, Judy said, they were not “natural born Citizens.”
McCain was born in Panama to U.S.-citizen parents while his father, a Navy admiral, was stationed in the Central American country.
Obama claims a birth in Honolulu, HI to a U.S.-citizen mother and British-citizen father who later became a Kenyan citizen by virtue of that nation’s declared independence from Great Britain in December 1963.
Both of Judy’s 2008 lawsuits were dismissed without oral argument.
In his 2014 filing, Judy v. Obama, 14-9396, Judy claimed that because Obama is not a “natural born Citizen” and therefore constitutionally ineligible to serve as president, the defendants deprived him of his rights under the aforementioned federal statutes, acting “as a cartel,” and resulting in significant financial damage to his 2012 presidential campaign.
Article II, Section 1, clause 5 of the U.S. Constitution contains three requirements for the nation’s chief executive: that he must have resided 14 years within the country; attained at least 35 years of age at the time he is sworn in; and that he be a “natural born Citizen.”
The Framers did not define in the Constitution their understanding of the meaning of “natural born Citizen,” but Founding Fathers Alexander Hamilton and John Jay expressed in their writings their belief that the president and commander-in-chief of the military must have sole allegiance to the new nation they helped to form.
Judy has often made the point that while the president must be a “natural born Citizen,” U.S. senators and representatives were required by the Framers of the Constitution to be simply “citizens.”
A number of U.S. Supreme Court cases have touched on the “natural born Citizen” clause, with one, Minor v. Happersett, opining in the majority decision that it was “never doubted” that a person born in the United States to U.S.-citizen parents meets that standard. The court was unsure as to whether or not those born in the United States to foreign-citizen parents could be considered “citizens,” although the focus of the case was on voting rights for women rather than “natural born” or other forms of citizenship.
Judy contends that nothing less than a person born in the U.S. to citizen parents is a “natural born Citizen.”
On April 27, 2011, the White House posted what it said was a PDF image of Obama’s long-form birth certificate obtained from the Hawaii Department of Health (HDOH). Within 24 hours, however, experts declared it a forgery on the record, eventually prompting a criminal investigation commissioned by then-Maricopa County Sheriff Joseph M. Arpaio.
In August 2011, Arpaio acceded to the wishes of 242 of his constituents who signed a petition requesting an investigation so that they could be assured that their votes in the 2012 presidential election would not be disenfranchised.
One of Arpaio’s volunteer posses undertook the initial analysis of the image, expecting to disprove the claims that it was not genuine. However, lead investigator and former detective Mike Zullo was forced to inform Arpaio several days later that the group could not reasonably say that the image was not suspect.
The investigation therefore continued. On March 1, 2012, Zullo gave the first of what would ultimately be three press conferences in which he stated that probable cause existed to believe that the long-form birth certificate image is a “computer-generated forgery.”
Also declared fraudulent was Obama’s purported Selective Service registration form, which had been sent by the Selective Service System (SSS) to an unknown number of citizens requesting it through the Freedom of Information Act (FOIA).
At the second presser on July 17, 2012, Zullo reported that the probable cause standard that forgery had been committed was surmounted based on the evidence gathered to that time. Arpaio concluded the press conference by stating that the forgery of a sitting president’s personal documentation posed a “national security threat.”
Inexplicably, neither the press, Congress, nor the FBI would investigate.
At the final press conference on December 15, 2016, Zullo demonstrated that “nine points of forgery” had been identified as having been electronically lifted and placed on the Obama long-form image as it was created on a computer. He additionally revealed that two forensic analysts on different continents approaching the image from different disciplines agreed that the birth certificate image posted on the White House website could not possibly have come from a real, paper document.
Zullo reported that the nine points of forgery were taken from an existing Hawaii birth certificate issued by the HDOH within several weeks of Obama’s claimed birth date of August 4, 1961 and that Zullo had held the paper document in his hands after was provided to him by its owner, Johanna Ah’Nee.
Although Judy’s 2014 case, based on alleged civil rights violations and violations of federal anti-trust acts, had been dismissed by the Utah District Court and Tenth District Court of Appeals after allowing him to proceed in forma pauperis, U.S. Supreme Court Associate Justice Sonia Sotomayor denied him that status, thereby stopping the case in its tracks in early October 2015.
Without recourse, Judy abandoned his efforts until Zullo announced the new revelations at the December 2016 presser.
At that point, Judy believed that the new and credible evidence should be submitted to the court given that federal anti-trust laws allow the inclusion of evidence alleging criminal activity within a civil suit. Therefore, he refiled his case with the U.S. District Court in Utah in late January of this year.
On April 10, Judge Ted Stewart of the District Court dismissed Judy’s petition to reopen without requiring the defendants to submit a response, after which Judy appealed to the Tenth Circuit and the newly-seated U.S. Supreme Court Associate Justice Neil Gorsuch.
Gorsuch, a Tenth Circuit judge before his nomination to the Supreme Court, never issued a response, although the high court returned the certified mail card confirming that the filing was received.
Judy’s appeal to the Tenth Circuit resulted in its upholding of the District Court’s ruling that his case was “frivolous” with the caveat that it would review his petition in greater depth if he were to pay the customary court fee.
Upon receiving the appellate court’s order last month, Judy decided to try to raise the necessary $505 filing fee. He was successful and remitted it to the District Court on July 21.
In an interview on July 25, Judy told The Post & Email:
Just because we haven’t had a successful hearing of a presidential candidate against a presidential candidate doesn’t mean that I’m not right or correct in my facts. For some to keep assuming that I haven’t stated a claim upon which relief could be granted, if I can’t challenge someone with the claim of the Constitution of not being a natural born Citizen, as I said, then nobody can. That just opens the executive branch of our government open to foreigners.
In the Tenth Circuit’s “Order and Judgment” dated August 15, 2017, the three-judge panel contended that “Mr. Judy has failed to show that the district court abused its discretion” and thereby “affirmed” the lower court’s decision to dismiss it.
At the bottom of page 2, the judges stated, “Mr. Judy’s motion for relief from judgment was filed on January 27, 2017. Because this was more than two years after the judgment, we treat it as a motion under Fed. R. Civ. P. 60(b)… But a Rule 60(b) motion based on newly discovered evidence must be made ‘no more than a year after the entry of judgment…'”
Judy took issue with that reasoning, as his Motion to Re-open in 14-9396 was pending at the Supreme Court, signed and dated by him on February 4, 2016.
The Motion to Re-open was never docketed by the Supreme Court. “SCOTUS returned it to me undocketed,” Judy told us on Saturday. “SCOTUS has had two cracks on this: the Motion to Re-open and the Gorsuch petition. I thought they would want it first. When SCOTUS wouldn’t docket it or reopen it, I turned back to the District Court.”
Judy also observed that an asterisk appearing to the right of “ORDER AND JUDGMENT”on page 1 refers the reader to a footnote, which states:
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Of the statement, “This order and judgment is not binding precedent…” Judy said, “It kind-of said to me they know there are flaws in their judgement.”
Judy wishes to thank all who assisted him in raising the filing fee last month.