AND ITS APPLICABLITY TO ELIGIBILITY CASES
Legal Summary & Analysis by John Charlton
(Oct. 8, 2009) — Yesterday, Attorney Leo Donofrio brought again to the attention of the Nation, the existence of a case in the Federal 7th Circuit Court of Appeals, which strangely was not cited by acting Attorney General George S. Cardona, in his Motion to Dismiss, in the case Barnett vs. Obama.
The seemingly appropriate and pertinent arguments in this case, against the claims of the Plaintiffs in Barnett vs. Obama, make it at least worthy of such a citation, despite the fact that precedents in the 7th Circuit do not bind Judge David O. Carter, whose court is under the appellate jurisdiction of the Federal 9th Circuit.
To understand better the arguments advanced in the case United States of America Ex Rel. State of Wisconsin vs. First Federal Savings and Loan Association and Federal Home Loan Bank Board, it will be useful to summarize the arguments of the 7th Circuit Court of Appeals in its Oct. 21, 1957 ruling.
The ruling was written by Judge John Simpson Hastings, a former field lieutenant in the U.S. Army Field Artillery. Judge Hastings was appointed to the bench by President Dwight D. Eisenhower, on March 14th of the same year.
First Judge Hastings explains the facts of the case:
This is an appeal by the state of Wisconsin from an order dismissing an action in the nature of a quo warranto filed by it in the name of the United States, with the consent of the district court, against appellee, First Federal Savings and Loan Association of Milwaukee, Wisconsin.
First Federal is a savings and loan association which operated from 1934 to 1954 at a single office in Milwaukee under a charter granted by the Federal Home Loan Bank Board pursuant to the Home Owners’ Loan Act of 1933, 12 U.S.C.A. § 1461 et seq., and the Board’s Regulations under that Act, 24 C.F.R. 141.13-141.15, inclusive.
In 1954, under authority of the Board’s Regulation No. 145.15, First Federal established three limited agency offices in Milwaukee for servicing its mortgage loans and contracts and managing its real estate. These limited agencies did not accept applications for or negotiate loans and rendered no service in connection with savings accounts, these matters being handled exclusively at the main office.
In 1947, Wisconsin adopted a statute which prohibits its state financial institutions from operating agencies. Section 215.02(20) of the Wisconsin statute reads:
“(20) One office only. No savings and loan association or building and loan association carrying on business in this state shall operate or maintain any branch offices, paying or receiving stations, agencies or branch associations within this state.”
On October 29, 1954, Wisconsin made a formal demand upon the United States Attorney General to institute this action to determine whether or not First Federal was exceeding its charter and operating contrary to the policy of the state. The Attorney General formally replied (citing decisions of the courts supporting the action of First Federal) and refused to have such action instituted in the name of the Attorney General, “even assuming that quo warranto would be the appropriate type of proceeding in such a situation.” (our emphasis).
Then Judge Hastings explains how the case was moved:
Following this refusal, the Attorney General of Wisconsin filed a petition in the United States District Court for the Eastern District of Wisconsin in the name of “United States of America ex rel. State of Wisconsin, Plaintiff”, asking leave to file an information in the nature of a quo warranto to test the right of First Federal to establish the three limited agency offices. After a proper hearing, such leave was granted and the information was filed. Since the proceeding directly challenged the validity of the Regulation under which First Federal established the agencies, 24 C.F.R. 145.15, the Federal Home Loan Bank Board intervened in the action. The facts were stipulated, including the depositions of two witnesses describing the operations carried on at the agencies in question.
Under these facts, Wisconsin moved for summary judgment, having asserted in its information that the Regulation (24 C.F.R. 145.15) “is null and void in that it is beyond the powers delegated to the Home Loan Bank Board by Congress”, “is an invalid subdelegation of the powers of the board itself, and hence is not a part of the charter issued to defendant by the United States”, and that “the establishment of branch or receiving agencies of savings and loan associations in the state of Wisconsin is prohibited by sec. 215.02(20) of the Statutes of the State of Wisconsin.” First Federal and the Board then moved to dismiss the action on the grounds that the court lacked jurisdiction to entertain such an action in quo warranto, that the state of Wisconsin had no authority to use the name of the United States in maintaining such an action, that the state of Wisconsin had not exhausted administrative remedies, and that no claim had been stated upon which relief could have been granted.
Judge Hastings then explains the problems with the District Court’s handling of the case:
The district court assumed, without deciding, that it had jurisdiction to entertain the instant action and, on the merits, found that First Federal had acted lawfully in pursuance of a valid regulation. Accordingly, the court granted the motions for dismissal and denied the motion for summary judgment.
The contested issues are whether the district court has jurisdiction over a quo warranto action filed by the state of Wisconsin in the name of the United States to challenge the assertion of corporate authority by a federally chartered corporation after the United States Attorney General had formally declined to file such an information and whether the Regulation of the Federal Home Loan Bank Board, which authorizes federal savings and loan associations to establish limited agencies, is valid.
We find ourselves in accord with the district court’s well considered opinion on the merits of this case, but the issue of jurisdiction rises to meet us first. As will appear later, we cannot give further consideration to affirmance of the judgment below on the merits if our determination of jurisdiction is adverse to the relator. The question of jurisdiction is basic and fundamental and cannot be ignored. It has been raised by appellees throughout this proceeding. Since we believe its determination is of paramount necessity here we shall give it first consideration.
Then Judge Hastings gives a brief overview of the history of Quo Warranto:
The modern information in the nature of a quo warranto is an extraordinary remedy and has been defined “as an information, criminal in form, presented to a court of competent jurisdiction, by the public prosecutor, for the purpose of correcting the usurpation, mis-user, or non-user, of a public office or corporate franchise * * * and while still retaining its criminal form, it has long since come to be regarded as in substance, a civil proceeding, instituted by the public prosecutor, upon the relation of private citizens, for the determination of purely civil rights.” High, Extraordinary Legal Remedies, 2d Ed., p. 458.
The origin of the original writ itself is to be found in the earliest history of the common law. The employment of the original writ, its subsequent limitation by statute, its lapse into disuse in England, the usurpation of its place by the modern remedy of an information and the recognition of the remedy by constitutional and statutory provisions in the various jurisdictions are all the subject of an interesting historical development to be found in Chapter XIII of High’s treatise on this subject. It is further pointed out that jurisdiction in this country is generally fixed by the constitutions and statutes of the several states. “Since the remedy by quo warranto, or information in the nature thereof, is only employed to test the actual right to an office or franchise, it follows that it can afford no relief for official misconduct and can not be employed to test the legality of the official action of public or corporate officers.” (Our emphasis.) High, supra, p. 485.
Then Judge Hastings explains the statue of Quo Warranto in U.S. Law and jurisprudence:
An examination of several of the statutes authorizing the use of this extraordinary remedy reveals that its application is rather broad but specifically limited to the use therein provided. There have been submitted to this court only two instances in which original quo warranto jurisdiction has been specifically conferred upon federal district courts. The revised statutes of 1878 vested jurisdiction in these courts of proceedings brought by the United States Attorney for the removal of persons holding office contrary to the Fourteenth Amendment. Rev. Stat., Sections 563(14), 626(14), (1786). This Act was repealed in the Judicial Code of 1911, 36 Stat. 1168. In 1901, Congress specifically authorized the United States District Court for the District of Columbia to issue quo warranto in the name of the United States. Act of March 3, 1901, 31 Stat. 1419, Title 16, Section 1601 of the D.C. Code (1940). However, this grant is strictly limited and is confined solely to situations involving franchises and public offices held within the District of Columbia. There is no other specific statutory provision vesting original jurisdiction in the district courts in quo warranto actions. In construing this statute, the Court of Appeals for the District of Columbia held that it did not apply where the plaintiff sought relief from alleged misconduct of a corporation and that quo warranto was not an appropriate remedy for attempted revocation of the corporate charter of a bar association on the ground of alleged abuse and misuse of its charter. United States ex rel. Robinson v. Bar Association of District of Columbia, 1952, 91 U.S.App.D.C. 5, 197 F.2d 408.
Judge Hastings, therefore, turns his argument to a consideration of the jurisdiction of Federal District Courts, and argues thus:
The general jurisdiction of federal district courts is limited and defined strictly by statute. We cannot look beyond Congressional enactments to determine the extent or scope of this jurisdiction. In the absence of specific statutory provision, Wisconsin relies on two sections of Title 28 U.S.C.A. §§ 1345 and 1651(a). Section 1345 provides:
“Except as otherwise provided by Act of Congress the district courts have original jurisdiction of all civil actions, suits or proceedings commenced by the United States or by any agency or officer thereof expressly authorized to sue by Act of Congress.”
This suit is not one commenced by the United States or any of its officers or agencies. In fact, the United States Attorney General expressly refused to institute this action. It is admittedly filed by the state of Wisconsin. While technically it is filed in the name of the United States ex rel. State of Wisconsin, it is in effect a suit by the state of Wisconsin, and not a suit by the United States.
Section 1651(a), supra, provides:
“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.”
This provision does not enlarge or expand the jurisdiction of the courts but merely confers ancillary jurisdiction where jurisdiction is otherwise granted and already lodged in the court. Covington and Cincinnati Bridge Co. v. Hager, 1906, 203 U.S. 109, 111, 27 S.Ct. 24, 51 L.Ed. 111, and Knapp v. Lake Shore and Michigan Southern Ry. Co., 1905, 197 U.S. 536, 25 S.Ct. 538, 49 L.Ed. 870. The statute presupposes existing complete jurisdiction and does not contain a new grant of judicial power. In passing upon the meaning and purpose of this section this court has said:
“[w]hile the section augments the power of the court in cases of existing jurisdiction, it in no wise expands or extends its territorial jurisdiction.” Edgerly v. Kennelly, 7 Cir., 1954, 215 F.2d 420, 422.
And then, after citing related precedents of the 3rd, 5th, 8th and 6th Circuit courts:
There are few authorities touching upon the jurisdiction of a district court to entertain an information in the nature of quo warranto. “No instance is known of the use of writ of quo warranto in a district court of the United States other than the District Court of the District of Columbia.” Cyc. of Federal Procedure, 2d Ed., Sec. 7098. The court, in United States v. Malmin, 3 Cir., 1921, 272 F. 785, 790, indicated that quo warranto is the proper remedy to try the title of a judge of a court of the United States but did not indicate in what court it could be entertained. In a suit to enjoin defendant city from levying taxes the court noted that the state law provided the exclusive remedy in an action for quo warranto and stated, “* * * the federal courts, * * * have not the right to exercise the quo warranto jurisdiction * * *.” (our emphasis). Morin v. City of Stuart, 5 Cir., 1940, 111 F.2d 773, 775. Doubt was expressed that federal courts have quo warranto jurisdiction, except as specifically authorized by statute in Cleveland Cliffs Iron Co. v. Village of Kinney, 8 Cir., 1919, 262 F. 980, 984, and In re Yancey, 6 Cir., 1886, 28 F. 445, 451.
Argues by a comparison to the provisions for mandamus, based on a 1st Circuit ruling:
A parallel may be drawn between quo warranto and mandamus on this question of jurisdiction of the federal district courts. It has been repeatedly held that mandamus may not issue in the district court unless it is necessary for the exercise of independently conferred jurisdiction. In the case of Marshall v. Crotty, 1 Cir., 1950, 185 F.2d 622, 626, 627, the leading cases are cited to this effect. The court goes on to point out that in Title 28 U.S.C.A. § 1331, the phrase “all civil actions” does not enlarge the jurisdiction of the district courts to vest in them general original jurisdiction in cases of mandamus.
Judge Hastings then concludes his ruling thus:
We hold, except as otherwise specifically provided by statute, that there is no original jurisdiction in the federal district court to entertain an information in the nature of quo warranto. This makes it unnecessary for us to pass upon the other questions raised in this appeal. It follows that the district court in this case should have dismissed the action for want of jurisdiction instead of determining it upon the merits. The judgment dismissing the action is therefore modified so as to show that the case was dismissed for want of jurisdiction, and, as thus modified the judgment is
Applicabity of Judge Hastings’ ruling is to formal Quo Warranto
The applicability of Judge Hastings’ ruling is limited to its subject: the nature of a formal quo warranto proceeding undertaken in the name of the United States. Indeed his entire argument centers on this; faulting the District Court for initiating a proceeding in the name of the United States and thus determines the species of quo warranto that is denied.
Judge Hastings’ does this by arguing that District Federal Courts only have a jurisdiction as granted, and that no statute grants other courts outside of D.C. the original jurisdiction to hear a quo warranto action. This is on account of their subordination to Congressional authority, which creates them, as specified in Article III, Section 1, of the U.S. Constitution, which reads:
Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.
The Federal District Courts were created by the Judiciary Act of 1789, which specified which kinds of cases they could hear.
How about informal Quo Warrento proceedings?
But does it apply to an informal quo warranto or quo warranto-like proceeding which is moved by other parties, in their own name, on the basis of the claim of an injury to another right; which is the basis in Barnett vs. Obama?
Such a demonstration would require:
1. That there be, outside of the D.C. Code, a statutory or common law basis for a quo warrento proceeding.
2. That the plaintiffs have some basis to claim a right to move such a proceeding.
3. That the Federal District courts have some sort of jurisdiction which could be invoked for such a proceeding.
Let’s consider each point.
First, there is a pre-existing common law basis for quo warranto, is admitted by the 9th Circuit court in William Richards et al. vs. Juneau Independent School District et al., 9 Cir ., 233 F.2d 138:
The matter concerns jurisdiction. There was a suggestion that the motion was equivalent to a quo warranto. The common law form of this proceeding has been abolished in Alaska, and an action in the nature of quo warranto was substituted.
Note that by saying “an action in the nature of quo warranto was substituted”, the Court refers to an action which now has the force or equivalence to a formal quo warranto proceeding in Alaska.
Second the Federal Courts have jurisdiction to hear cases and controversies regarding the violation of many rights, including those arising under the Constitution.
As Beth Walston-Dunham writes in her book, Introduction to Law, (ed. 2009), chapter “The Courts,” p. 53, regarding the U.S. legal system, the judiciary has broad jurisdiction and powers to hear disputes and uphold the constitution:
The judicial system has several unique characteristics. This branch of government deals with specific cases on an individual and direct basis. It has the authority to overrule an act of the legislature or the executive branch if the act violates the Constitution. When a dispute arises and no statutory law exists, then the judicial branch has power to create law and provide an immediate resolution to the dispute.
The judicial system is set up to clarify and protect the law. The courts must determine whether a broadly written statute or existing precedent applies to an individual circumstance. The courts also have the duty to uphold the U.S. Constitution and see that the other branches of state and federal government honor it as well.
But also those which are not enumerated therein, since the U.S. Constitution expressly affirms that rights not enumerated in the text of the Constitution are retained by the People.
Third, the Federal District Courts have original jurisdiction over cases and controversies involving these aforementioned rights.
In this regard Attorney Mario Apuzzo makes the following argument in the Second Amended Complaint of Kerchner vs. Obama, in New Jersey District Court, before Judge Jerome B. Simandle, p. 65:
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 declared under Article II to be ineligible to hold the Office of President and Commander in Chief and that he be removed from that Office if sworn in and be permanently barred from holding that office.
This court has jurisdiction over this petition because plaintiffs claim that their right to this write emanates from their rights and powers under the Ninth and Tenth Amendment. Additionally, this court has ancillary jurisdiction over this petition for quo warranto pursuant to 28 U.S.C. Sec. 1651(a), for this Court already has original jurisdiction over plaintiffs’ other clams herein.
Note that Attorney Apuzzo cites the All Writs Act, which reads:
§ 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.
“All” here is universal, hence Apuzzo argues that grants the jurisdiction of Federal Courts to issue writs of quo warranto when appopriate in the exercise of the original jurisdiction they are otherwise granted. His argument is reasonable.
The conclusion seems inescapable: there is exists a common law right for a private party to move a complaint which has the force of a quo warranto proceeding — so long as it does not invoke the D.C. Statute or claim to act on behalf of the United States— and District Courts have jurisdiction to hear such an informal quo warrento proceeding, when it is ancillary to a case or controversy touching constitutional rights over which the court already has original jurisdiction. (For more on the history of Quo Warranto see the History of Quo Warranto).
The informal Quo Warranto in regard to questions of Eligibility of the U.S. President
With this understood, one can consider this common law basis or right to move a quo warranto proceeding in regard to the usurupation of the executive branch.
In this regard it does not seem, that in eligibility challenges in Federal Court, that one can sustain the normal restriction of this right to the grant of consent by the executive branch, because according to the Constitution, We the People are the sovereign authority, the creators of the Federal Government.
The 9th Circuit Court, in the same case just cited, briefly describes the nature of this normal restriction of a formal quo warranto:
Such an action required the consent of the Attorney General in England, and in a modified form universally requires the joinder or consent of the executive in some form. This is because of its origin as a prerogative writ, whereby the sovereign sought to reclaim powers unlawfully usurped. Here it would seem to require consent of the Governor of the territory or of the United States Attorney.
Because it is precisely when the executive power is obstructed in principle and in toto, that no such recourse to the Executive Branch can be held. Indeed, it is a public fact that the Executive Branch even in its lesser officers, such as acting Attorney General George S. Cardona, are defending the usurper. And that Eric Holder and the U.S. Attorney General in D.C. refuse to grant leave for a formal quo warranto proceeding. Nor its it reasonable to believe that the D.C. courts would grant leave, hear, or ruly impartially, in this matter, since they have already severely obstructed or threatened those who have challenged Obama’s eligiblity; nor likewise the Supreme Court, which itself has accepted the seating of a justice appointed by the usurper and confirmed by the Congress in league with him.
It follows therefore, that if the Constitution is not radically flawed, such that usurpation of the presidency has no remedy in law, that there must exist a valid basis whereby in such a case of usurpation of the Presidency, this normal requirement of a quo warranto proceeding is dispensed with or substituted by recourse to a more fundamental right of another party. And this more fundamental sovereignty is enunciated in the Preamble to the Constitution, wherein it names We the People as its author and creator.
Now just as the author and creator of a thing has complete power over a thing; and just as he retains his rights where he has not granted them; and just as when a thing breaks down and no longer can repair itself, its maker and creator can intervene, and must intervene, if the defect is to have remedy, so We the People have the preambulatory and pre-eminent right, affirmed by The Preamble to the U.S. Constitution, to make a claim of case and controversy in the case of usurpation of the Presidency, and to be heard by the Judiciary in this extraordinary circumstance in any Federal Court which will hear the case, with all other due-things being observed. If private parties do so, in their own name, in an informal quo warranto or quo warranto-like complaint, this seems to be an adequate and proper remedy to the constitutional problem.
By “with all other due-things being observed”, one must understand that the plaintiffs must meet the threefold test of the standing doctrine, which was featured in a previous article by The Post & Email.
In conclusion, I completely agree with Attorney Donofrio that a formal quo warranto proceeding is brought in the D.C. Court, in accord with terms of the D. C. code, as the United States Supreme Court has clearly stated in the case Newman vs. United States ex. Rel. Frizzell, wherein the Court observed the following:
The President has the power of removal, and there have been few, if any, cases brought to test the title of federal offices. But such cases might arise as to statutory officers attached to the seat of government, and if they did, the Supreme Court of the District could exercise quo warranto jurisdiction, as it now does in cases of mandamus and injunction against appointed federal officers who perform duties in Washington.
This appears from comparing the provisions of Rev.Stat. §§ 1795 and 1796 with § 1538(1) of the District Code. The Revised Statutes declare that the District of Columbia shall be the seat of government, and “all offices attached to the seat of government shall be exercised in the District of Columbia.” The Code (§ 1538(1)) provides that the supreme court shall have jurisdiction to grant quo warranto “against a person who unlawfully holds or exercises within the District a . . . public office, civil or military.”
It was probably because of this fact that national officers might be involved that the Attorney General of the United States was given power to institute such proceedings, instead of leaving that power to the District Attorney alone, as would probably have been the case if only District officers were referred to in the Code.
Manifestly, Congress did not intend that all these officers attached to the executive branch of the government at Washington should be subject to attacks by persons who had no claim on the office, no right in the office, and no interest which was different from that of every other citizen and taxpayer of the United States.
9. This fact also shows that §§ 1538-1540 of the District Code, in proper cases, instituted by proper officers or persons, may be enforceable against national officers of the United States. The sections are therefore to be treated as general laws of the United States, not as mere local laws of the District. Being a law of general operation, it can be reviewed on writ of error from this Court. American Co. v. Commissioners of the District, 224 U. S. 491; McGowan v. Parish, 228 U. S. 317.
As such, I encourage the undertaking of such a formal proceeding by interested persons. For who these might be, see Attorney Donofrio’s blog: naturalborncitizen.wordpress.com.