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SAYS JUDGE BASED DECISION ON “TRANSFORMATIONAL COCKTAIL”
by Sharon Rondeau
(Apr. 29, 2016) — In a brief but information-packed interview on Friday, New Jersey attorney Mario Apuzzo, who is now representing Republican write-in presidential candidate Victor Williams in his challenge to the constitutional eligibility of Sen. Ted Cruz in New Jersey, explained the steps he has recently taken on his new client’s behalf and those he anticipates taking in the near future.
Apuzzo also recounted the April 11 ballot challenge hearing in Mercerville, where Administrative Law Judge Jeff Masin presided and ultimately opined in a 26-page brief issued the next day that Cruz’s name would remain on the primary ballot for June 7.
Following the hearing, Apuzzo told The Post & Email that he felt the hearing “went well,” “but you just don’t know.”
On Friday Apuzzo related that New Jersey Appellate Division Judge John C. Kennedy twice denied his request for an Emergent Hearing in the Cruz eligibility matter with the rejoinder that “there is enough time” between now and June 7, the date of the New Jersey primary, to properly hear and adjudicate it.
Apuzzo said that Kennedy’s response was baffling.
You file a motion, and the other side can oppose it; then the judge has to grant it or deny it. Then you have to do briefs. The point is that we are not asking for a stay of the ballot because they’ve been printed already. When we argued the Obama case [in 2012], there was no issue about a stay; you accelerate the case because there’s no time. This time around, the judge said, “You didn’t get a stay,” but we didn’t ask for a stay; we’re asking for an acceleration. The ballots are already printed.
So we did that, and he still denied it again.
It was the same thing when he said that there’s no “irreparable injury” shown and we haven’t shown a “likelihood of success.” This does not involve sending briefs or anything; it’s just an application, and it’s very brief, very minimal. The only time that the Appellate Court looks at whether or not you have a likelihood of success or irreparable injury is when you’re doing a trial. On the eve of trial, you submit an Emergent Motion; you’re trying to get out of the trial somehow; you want the Appellate Court to issue some kind of order. Under those circumstances, the court looks at what the likelihood of success is and whether or not there’s irreparable damage.
Apuzzo then offered the following analogy:
Let’s say someone is going be evicted from his apartment and has tried everything with the lower court. Now he files an Emergent Motion; the sheriff is coming in three days, and he says, “Oh, I don’t have anyplace to go; they’re going to throw me in the street; I’ll end up in the shelter where they’ll do terrible things to me…I have children.” So now, there’s no trial or anything; it’s not as if the court is going to look at the likelihood of success. They just look to see if something’s going to happen before and if you have time to handle it.
The only event that’s going to happen here is that there’s going to an election. Asking for a stay of the election would be absurd. With Obama, I filed the same thing; I said, “You have to immediately do this,” and the court issued an order saying, “This appeal is accelerated. File your brief by this day, and then oral argument” before the primary. So we did the same thing this time, and the judge said, “You didn’t ask for a stay” and then said something about “likelihood of success” without having any of the briefs or arguments.
How could Judge Kennedy say “the likelihood of success” when they don’t have any of the arguments? They don’t have the transcript of the hearing, and they have none of the briefs. The only thing they have is Judge Masin’s decision and the Secretary of State’s affirmation of it; she didn’t add anything to it.
When you read Masin’s decision, you’ll notice that he doesn’t make one reference to one point that I raised in my brief or during oral argument.
When we were talking about the 1790 Naturalization Act, the judge said that there were three parts to it. I was impressed that he actually said that, that he actually studied it. So I said, “Yes, there are three parts to it.” The part that applies to Cruz is the third part.
[Editor’s Note: By “third part,” Apuzzo was referring to: “And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens…”]
I have to get the transcript; it has been ordered. Somehow during the hearing we got to discussing the second part (“And the children of such person so naturalized, dwelling within the United States, being under the age of twenty one years at the time of such naturalization, shall also be considered as citizens of the United States. .”) I’m going on memory here, but I’m pretty sure I said, “The second part applies to children whether they’re born in the United States or out of the United States,” and he just looked at me; he didn’t know what I was talking about. I don’t think he understood what that means. That’s very important; the reason that’s important is that it gives us the definition of a “natural born Citizen.” The Framers said that children of naturalized citizens shall become citizens if their parents naturalize during their years of minority.
The First Congress – this is George Washington and many Framers – didn’t distinguish as to whether the children were born in or out of the country. That’s very important to understand. If you’re born in the country and your parents are aliens, the Congress is saying the children are aliens. They will become citizens when their parents naturalize if it’s done during their minority.
A person cannot be made a “natural born Citizen” retroactively; it’s when you’re born, not later on.
The common law, not statutes, was incorporated into the Constitution. Statutes cannot change the Constitution. If you read Minor (v. Happersett), it says “At common law…” It doesn’t say, “Under the statutes…,” so it comes from common law.
What Judge Masin said is what I like to call a “transformational cocktail.” He tells us that the Framers drank a transformational cocktail containing an intoxicating mixture of English common law and Parliament’s naturalization acts which became the meaning of a “natural born Citizen.”
That’s what these revisionists – professors, scholars – are saying: that it’s a mixture of the English common law and Parliament’s naturalization acts, and they call it “the English law,” which became the common law, and the common law was put into the Constitution. So it’s a mixture.
This didn’t exist when we were doing the Obama case. If you were “born in the country,” it was sufficient. There wasn’t a mixture of the English common law, Parliamentary naturalization acts. Now, because you have a different set of facts, they have to change the “law.” They have to change the law now in order to justify their conclusion.
The Post & Email then said, “Yes, when it was John McCain, although born outside the country, he was ‘eligible’ because he was born to two U.S.-citizen parents, one of whom was an admiral in the Navy. When it was George Romney, it was something different. Then with Obama, who was allegedly born in Hawaii, that was enough. Now there’s Cruz, who was born in Canada supposedly to one U.S.-citizen parent, and the judges are saying that is enough because he was a ‘citizen at birth.’ How do we know he was a ‘citizen at birth?'”
Here’s another point now that you brought that up: Judge Masin was trying to get us to stipulate to that, and I said, “I’m not stipulating to that; he has to show that he was born to a citizen parent.” And Professor Williams, when he argued, said the same thing. So we both said that we weren’t stipulating to it, that he had a burden. Then Cruz’s lawyer argued, “Oh, but Judge, you decided that with Obama, there was no burden; we don’t have to show anything.” And the judge said, “Well, no, this is different, because we know that he wasn’t born in the United States.” That doesn’t make sense, because either you have a burden or you don’t. What does it matter where you’re born?
He didn’t address our unwillingness to stipulate, and when he issued his decision he said, “The parties stipulated that Cruz was born to a citizen mother,” which is not true.
Apuzzo said he contacted Lt. Gov. Kim Guadagno, who is also New Jersey’s Secretary of State, to obtain a stay in accordance with Judge Kennedy’s response to his request for an Emergent Motion and was told, “We don’t do stays.” Apuzzo said he responded to Guadagno’s office, “I know that, but the judge said I have to get a stay.” “So they didn’t know what to do; they contacted the New Jersey attorney general and gave me a letter; Secretary of State Guadano wrote me a letter saying, ‘Dear Mr. Apuzzo, we don’t issue stays, and it’s denied,'” Apuzzo said. “That’s all I needed.” He added:
This time Judge Kennedy was satisfied that we asked for a stay because I did that. I sent the application in and he still denied it because he said there’s still enough time to go to the merits.
Going back to the landlord-tenant example, the court doesn’t look at whether or not the tenant will prevail; they only look to see how much time there is to act on it. It’s different if you’re trying to do it in a trial. You don’t do that in a regular Emergent application.
Regarding the status of Williams’s case challenging Cruz, Apuzzo said that the appeal of Judge Masin’s decision “is filed, but I can file another motion which will not be heard on an Emergent basis. It usually takes at least four weeks.”
“Are you asking them to take a look at Cruz’s eligibility?” we asked, to which he responded, “Yes. The mail-in ballots have already been sent out, but not the sample ballots; they haven’t been mailed yet. They’ve been printed. I’m asking that the Secretary of State actually reprint the ballots. If it’s not possible to reprint them, then I’m asking that the Secretary of State advise the voters that Ted Cruz is not a natural born Citizen.”
Apuzzo said that in addition to Williams, he continues to represent the three New Jersey voters for whom he argued on April 11.