Exclusive: Atty. Mario Apuzzo Files Amicus Brief with Court of Appeals in Eligibility Case

FEDERAL JUDGE RENDERED DECISION ON THE MERITS WITHOUT A HEARING

by Sharon Rondeau

(Apr. 2, 2012) — A civil rights lawsuit was filed on January 12, 2012 by Charles Tisdale pro se in the U.S District Court for the Eastern District of Virginia at Richmond naming Barack Hussein Obama; Neil H. MacBride, the U.S. Attorney for the District; and Don Palmer, Secretary of the Virginia State Board of Elections, and the Federal Election Commission as defendants.  The case was decided and dismissed on the same day that it was filed by Judge John A. Gibney without notification to the defendants or the customary scheduling of motions.

Atty. Mario Apuzzo had represented Charles F. Kerchner, Jr. in the case Kerchner v. Obama & Congress, et al, which had been denied at the state and appeals levels, arrived at the U.S. Supreme Court, after which a request for a Writ of Certiorari was denied without comment.

On March 20, 2012, Apuzzo petitioned the Fourth Circuit Court of Appeals for leave to file an Amicus Curiae brief in the Tisdale case, which had been filed with the Appeals Court after its unusually quick dismissal by Gibney.

Apuzzo told The Post & Email that what makes the Tisdale case different from other lawsuits which have challenged the eligibility of Barack Hussein Obama is that it was decided “on the merits” at the federal level.  While the Ankeny v. Daniels case in Indiana also was heard on the merits and determined that Obama met the criteria of a “natural born Citizen” by virtue of his alleged birth in Hawaii, Apuzzo stated that a federal decision carries more weight than a state-level decision. 

Ankeny was used as the basis for the decision rendered by Judge Michael Malihi in Atlanta, GA, following several ballot challenges filed against Obama and heard on January 26, 2012, after which Malihi stated that evidence of fraud and forgery was not “compelling” while the Indiana decision was.

Since Malihi’s decision, the Cold Case Posse working for the Maricopa, AZ County Sheriff’s Department has determined that the long-form birth certificate and Selective Service registration card released to the public are “computer-generated forgeries,” which casts doubt on Obama’s claim of having been born in Hawaii.  Officials at the Hawaii Department of Health have refused to release the original birth record belonging to Obama if, in fact, they possess it.  Therefore, it is uncertain that Obama was born on U.S. soil, upon which judges and ballot commissions appear to be relying in their decisions to place Obama’s name on the 2012 presidential ballot.

The Post & Email spoke to Atty. Apuzzo about his Amicus Curiae brief and his thoughts on the presidential eligibility question.

ATTY. APUZZO:  The DC Circuit Court of Appeals is the only federal case in which the court reached the merits of what is meant by Article II “natural born Citizen.”  All the other cases that we’ve had were state cases.   The issue will ultimately be decided on the federal level, which should be the U.S. Supreme Court.  So whatever the federal court does is very, very important.  That’s why I thought that it was very important to present an argument on what I and many others believe to be the correct definition of “natural born Citizen.”

MRS. RONDEAU:  Did the District Court reach the conclusion that “natural born Citizen” equates to “Citizen?”

ATTY. APUZZO:  That’s correct.  They basically said that it doesn’t matter what the citizenship of your parents is.  If you’re born in the United States, you’re a “natural born Citizen.”  That is not the correct definition of a “natural born Citizen;” that’s the definition of a citizen under the 14th Amendment and under a statute which mirrors the 14th Amendment, 8 USC 1401(a).

The 14th Amendment has nothing to do with “natural born Citizen;” it was passed to enable freed slaves to be able to have the status of a citizen so that they could enjoy the privileges and immunity provided by the Constitution.  Then, of course, it gave other protections, the equal protection that applies to any person; you don’t have to be a citizen to get equal protection; and also the protection of life, liberty and property for which you need be only a person.  But in order to get the immunities and privileges provided in the Constitution, you have to be a citizen.  So that’s what the 14th Amendment was all about.  It had nothing to do with Article II or “natural born Citizen,” which has always been a child born in the country to citizen parents.  That’s always been the definition; it’s never been changed.  It was confirmed in Minor in 1875 and also confirmed in Wong Kim Ark; they mentioned a “natural born Citizen” as defined by Minor, which they didn’t have to deal with because they were looking to make Wong a citizen under the 14th Amendment.

MRS. RONDEAU:  I didn’t realize that in Wong, they went back to Minor and affirmed it.

ATTY. APUZZO:  They didn’t say they affirmed Minor, but the reason they cited to Minor was that the court in the Slaughterhouse case said that in order to be a citizen, you can’t be born to alien parents.  A few years later, we had this case called Minor, and you had every judge that was in the Slaughterhouse case except one, and they said, “Maybe you can have a citizen born in America of alien parents, but we’re not going to say that you can or you can’t, but there have been doubts.”  So Wong basically says that the Supreme Court wasn’t really committed to saying that if you’re born in America to alien parents, you can’t be a citizen.  So that’s why they cited Minor, but Minor said that there have been doubts with respect to whether that child was a citizen, not whether her was a “natural born Citizen.”  So Wong Kim Ark did cite Minor and the exact definition of a “natural born Citizen” provided by Minor but Minor didn’t have to deal with that, because Virginia Minor was born in the country to U.S.-citizen parents.  Wong went one step further and said, “Now let’s deal with the citizenship question,” but not the “natural born Citizen” question.

MRS. RONDEAU:  So the question was whether or not Wong’s birth here was enough to make him a citizen, given that his parents were citizens of China?

ATTY. APUZZO:  Yes.  The stumbling block was that they were not citizens, and you have to satisfy the “subject to the jurisdiction” clause, which Minor didn’t deal with because they were more concerned with the 14th Amendment.  You never do “subject to the jurisdiction” analysis if your parents are citizens; it’s not part of the definition.  You deal with that only if your parents are aliens.  The amendment said if you’re “born” here, so of course you’re going to be born here.  Then “subject to the jurisdiction…” If the parents were citizens, you’d never have that question.

MRS. RONDEAU:  When was the Tisdale case dismissed?

ATTY. APUZZO:  It was dismissed on January 23, 2012.

MRS. RONDEAU:  Were you surprised that the court actually heard the case on the merits?

ATTY. APUZZO:  Yes.  This is a very unusual case.  We don’t have a lot of dates, but they’re important.  On January 17, 2012, he filed a Motion to Proceed in Forma Pauperis.  Then, on January 23, six days later, the judge dismissed the case.  You’re probably saying, “How could that happen?”  Tisdale filed his complaint on January 23, 2012 and hand-delivered it there.  So the court, on the same day as the complaint was filed, dismissed it without an answer form anybody.

MRS. RONDEAU:  I didn’t know that that could be done.

ATTY. APUZZO:  It’s very, very unusual It’s called “sua sponte,” which means the court did it on its own.  They didn’t wait for an answer from Obama or the government; they just went ahead and filed the order before the complaint was filed on the docket.  The order dismissing the complaint got docketed before the complaint was docketed.  So the order was put in, and the court acts electronically.  I don’t know how the judge got it so fast, the same day.  They assigned it immediately, and the same day that they got it, the complaint got to the judge, and that judge wrote an order dismissing the complaint.  So that’s how quickly they acted, without even hearing from the defense.

The next day, January 24, Mr. Tisdale filed his appeal.  This is really unbelievable!  The judge dismissed it without any answer or briefs from anybody; he dismissed it on the complaint, because the complaint said that Obama cannot be a “natural born Citizen” because he was not born to two citizen parents.  So just because it said that, the judge, on his own, without any motions, dismissed the complaint.  But the problem is that we have an order which is being cited all over the internet saying that the federal court has decided this issue.

MRS. RONDEAU:  Didn’t other judges, e.g., Judge Carter in California, say it wasn’t in their jurisdiction to decide?

ATTY APUZZO:  Yes.  And when a court has no jurisdiction, it cannot decide the merits of anything.  He didn’t even look at standing or jurisdiction.  He just went ahead and decided the merits.  That’s how serious this case is.  It’s a federal case, the only one we’ve had so far.

MRS. RONDEAU:  Tell us about your Amicus brief.

ATTY APUZZO:  I needed to make sure that the issue to be decided by the court was covered by the Amicus brief.  The Elections Boards and courts are relying on Wong Kim Ark to make their decisions about Obama.  That’s the key right there.  They’re relying on it simply because it’s convenient for Obama to use Wong Kim Ark…it’s his only hope!  There’s not one other case that comes close to being in his favor.  Ankeny was the first court in the whole nation to decide on the merits based on Wong Kim Ark that anybody born here is a natural born Citizen.

MRS. RONDEAU:  Is it true that a newer case decision takes precedent over an older case decision?

ATTY. APUZZO:  Yes, if the newer case is not consistent with an earlier one, or if the older case is overruled.  It would have to be done by a high court:  let’s say, two Supreme Court cases.  But Wong Kim Ark is not inconsistent with Minor.  It’s an outgrowth of it, a next-step from it.  Because Minor said, “We don’t know if somebody born here of alien parents is even a citizen.  We don’t know that.  There are doubts about that.”  But it has nothing to do with “natural born Citizen,” other than if you’re going to make those people citizens, then you’ve increased the amount of people who can make natural born Citizens because you have more parents.  But Wong Kim Ark in 1898 does not overrule Minor from 1875 because they’re talking about two different things.  Wong even cites Minor.

MRS. RONDEAU:  What is the timeline for your brief?

ATTY APUZZO:  I filed a motion that I be allowed to file it, and the court has to grant the motion.  Now I’ve been absolutely shocked at some of the things that have occurred in the legal system.  Under normal circumstances, there should be no reason why the Amicus brief cannot be accepted.  You have Mr. Tisdale who is in forma pauperis; he has no lawyer.  He has no legal representation, so there should be no reason why the brief cannot be accepted.  But I’ve been shocked at some of the things I’ve seen happen.

MRS. RONDEAU:  I recall during our first interview I had asked you if you believed that the courts were still functioning as they were intended to by the Framers.  Your response had been that until you had seen proof that they were not, you had to believe that justice would be served. How do you feel about that now?

ATTY. APUZZO:  I can’t speak for all courts and all judges, but my personal involvement has been shocking. In the Kerchner case, they had issued an order stating that I had to show cause as to why I shouldn’t have to pay damages.  It was discharged.  They were satisfied that the case was not frivolous, because I explained it to them.  How could this issue be frivolous? It’s not frivolous.  The question there was standing.  We’ve never had a case like this ever in the United States where people are trying to enforce Article II.  As to “standing,” there is no U.S. Supreme Court case on it. If you look at the “standing” decisions, they are always 5-4.  They’re always split; they never agree,  and they wanted me to show cause as to why I shouldn’t be sanctioned on the issue of standing.  OK, fine; they let me go on that, but still…

In Pennsylvania, Karen Kiefer wanted me to help her in that case pro hac vice.  So she filed a motion – standard, pro forma, never a problem-type thing – and the court denied it.  They denied my pro hac vice in Pennsylvania.

MRS. RONDEAU:  What was the reason?

ATTY. APUZZO:  They didn’t give one.  No reason.  Then we filed a motion for reconsideration.  Guess what Obama’s attorneys argued as to why I shouldn’t be allowed in Pennsylvania?  Because the Third Circuit wanted to assess damages against me.

MRS. RONDEAU:  But then they dropped it.

ATTY. APUZZO:  Yes, but you know what they said?  That the decision was still there.  They were trying to block me from going into Pennsylvania.  So the court goes ahead and denies Karen Kiefer’s motion to have me admitted pro hac vice.  Then we filed a motion for reconsideration which we hand-delivered on the day of the hearing, and the judge didn’t even address it.  Everybody was arguing the case then, and Karen got up after the other lawyer was done…there wasn’t an empty chair that time.  They filed all these papers saying that I shouldn’t be allowed there, which was absolutely absurd.  And the judge denied Karen Kiefer’s motion that I be admitted there to help her in the case.  Then she filed a motion for reconsideration, and when she asked the judge about it, he said, “Oh, I denied that” really abruptly.  She said, “We filed a motion for reconsideration,” and he said, “Denied.”

MRS. RONDEAU:  Why do you think some of these judges are dismissing things out-of-hand like this?

ATTY. APUZZO:  You go to law school; you study the law, and they tell you, “The law is the law.”  You don’t play politics with it; you decide the facts based on the evidence, and you find the law that exists out there in the heaven of law reports.  It’s there.  You pick it and present it and ague it, but politics is not supposed to be an element in any of that.  The Lady of Justice is blindfolded, and the scale is even.  It’s not tipped.  The 14th Amendment says “equal protection.”  So we’re all supposed to be equal; we’re all supposed to be judged on our merits.  Dr. Martin Luther King said “based on our character.”  It’s not supposed to be who you are or where you came from, whether you’re from some big law firm or you’re a little solo country lawyer.  It doesn’t matter who you are or what you are; we want to listen to what you have to say.  We’re not going to be impressed because your boss is the president of the Bar Association.  The Founding Fathers got rid of all that:  the privilege, nobility, titles, and influence.  The Founding Fathers were big on merit, virtue and merit.  If you merit it, then it’s yours.  Don’t tell me who your daddy or who your granddaddy was or that you’re born to be a brain surgeon.  You’re not born to be a brain surgeon; you have to work hard to become one.  But here we are:  it’s almost as if we’re into a hereditary environment of some sort, maybe not like kings and queens, but due to influence.

Even the Obots out on the net, right away, they’ll say that if somebody is with a firm, it’s as if he’s some big-shot or something.  But if you’re a lawyer, you still have a license.  They’ll ridicule you and say you’re an ambulance-chaser, but that’s downright false.  That’s the type of elitism going on here.  It’s totally hypocritical.  These Obots are supposed to be the ones fighting for the little guy, and it’s as if we’re the bad guy trying to take rights away from people.  That is false.  They are so elite-driven, and that’s what we have going on here:  how can the people go against the “president” and his lawyers.  His lawyers have to be geniuses!  Nobody has a chance…that sort of thing.

MRS. RONDEAU:  Even the person sitting in the White House is not supposed to be above the law.  Richard Nixon was a case in point.

ATTY. APUZZO:  That’s right.

MRS. RONDEAU:  How often have you seen the judges and lawyers cite the Constitution or the Framers in their decisions and statements?

ATTY. APUZZO:  Zero. That’s been one of my arguments.  I said, “How can you tell me what the ‘natural born Citizen’ clause means if you haven’t even analyzed what the intent was, what the Founding Fathers said, what happened during the founding, if there’s any evidence that’s contemporaneous to the founding?” They cite Wong Kim Ark!  Wong Kim Ark was decided in 1898, and it doesn’t even discuss the ‘natural born Citizen’ clause.  It doesn’t even analyze why it’s there, who put it there…It doesn’t link it back to the founding; there is no historical analysis whatsoever, because that wasn’t the issue.  So how can you tell us what the “natural born Citizen” clause means without going back and analyzing what is contemporaneous to the founding?  There wasn’t any of that.  Zero, zero…Believe me when I tell you zero.