Skip to comments.Quo Warranto and the Kerchner v. Obama and Congress Case (atty Mario Apuzzo)
Posted on 11/09/2009 4:05:10 PM PST by STARWISE
Leo Donofrio, Esq. wants the right plaintiff to bring a quo warranto action against putative President Obama under 16 D.C.Code Secs. 3501-3503 in the Federal District Court for the District of Columbia.
He in effect maintains that quo warranto is an exclusive remedy available to remove Obama from office. He maintains that Obama may be removed from office only through a quo warranto action and that the DC District Court is the only court in the United States where such an action may be brought.
I recently wrote an article about this issue, entitled The DC District Court Is Not the Only Court In Which to File a Quo Warranto Action.
I explained that given the causes of action that I have raised in the Kerchner action, I can also file a quo warranto claim in the Third Circuit.
Mr. Donofrio recently posted his disagreement with my article at his blog.
I will now address Mr. Donofrios response to my article.
Before we begin, we must understand that a quo warranto action is a direct attack on an office holder, questioning his qualifications to hold an office and therefore his warrant and authority to occupy that office. It does not challenge any action taken by that person while having been in office.
This type of action is to be distinguished from one where the plaintiff brings an indirect attack (collateral attack) against that office holder, arguing that some action taken by him or her is invalid because he or she is not qualified to hold the office from which the action is taken.
Natl Assn of Greeting Card Publishers v. U.S. Postal Service, 569 F.2d 570 (D.C.Cir.1976) (per curiam), vacated and remanded on other ground, 434 U.S. 884 (1977); Andrade v. Lauer, 729 F.2d 1475 (D.C.Cir.1984). As we shall see below, this distinction is important, for it can be argued that direct attacks must satisfy the requirements of a quo warranto action while indirect attacks must satisfy the requirements of the de facto officer doctrine.
Mr. Donofrio does not explain which one of these approaches he proposes to take against Obama. The Kerchner action does not challenge any action taken by Obama. Rather it challenges his Article II eligibility (that he is not a natural born Citizen) to hold the office of President and Commander in Chief of the Military.
Hence, it is a direct attack on Obama, contending that he is not Article II eligible to occupy the Office of President.
Since Mr. Donofrio is proposing a quo warranto action, he must be planning a direct attack against Obama. Mr. Donofrio fails to recognize the many problems that exist with the quo warranto procedure that he advocates.
It is not realistic that they would file a quo warranto action in the name of the United States against a sitting putative President, their own boss and the same person who appointed them.
It is also unrealistic that they would file such an action in a case in which among the list of defendants are the United States itself along with the U.S. Congress, Senate, and House of Representatives.
Even appointing a special prosecutor would present a problem, for who would appoint him or her?
We have already seen how the Executive and Congressional branches of government are both defending Obamas stance that he is constitutionally eligible to be President. Especially shocking is how the Justice Department has taken the side of Obama rather than support and defend the Constitution and support the plaintiffs who argue that he is not an Article II natural born Citizen and therefore not eligible for the Office of President and Commander in Chief of the Military.
How does Mr. Donofrio expect to get any cooperation from either of these two branches of government which he would need to sanction and support his quo warranto action?
The Kerchner action is now on appeal to the Third Circuit Court of Appeals in Philadelphia where it is hoped the Kerchner plaintiffs will receive the judicial and public attention that their case so rightfully deserves.
Rest @ link
The DC District Court Is Not the Only Court In Which to File a Quo Warranto Action
Judge Carter: The writ of quo warranto must be brought within the District of Columbia because President Obama holds office within that district.
With all due respect to the Judge, isn't the Presidency different than every other office, because it has duties affecting ALL states? A governor, a Senator, or a Congressman have offices in the District of Columbia, and do their work in DC, but are appointed by the voters of their states (or in the case of Representatives, their districts). The President and Vice-President are elected by the voters of all states. Even though they "hold office" within the District of Columbia, they represent the entire populace. I don't get the restriction.
Must admit I’m lost .. and got more lost in all
the legalese in both opinions. And I don’t have
a grasp of the concept of Quo Warranto and its
application for a sitting president .. it’s
apparently used rarely.
Here’s some links
A legal proceeding during which an individual’s right to hold an office or governmental privilege is challenged.
In old English practice, the writ of quo warrantoan order issued by authority of the kingwas one of the most ancient and important writs. It has not, however, been used for centuries, since the procedure and effect of the judgment were so impractical.
Currently the former procedure has been replaced by an information in the nature of a quo warranto, an extraordinary remedy by which a prosecuting attorney, who represents the public at large, challenges someone who has usurped a public office or someone who, through abuse or neglect, has forfeited an office to which she was entitled.
In spite of the fact that the remedy of quo warranto is pursued by a prosecuting attorney in a majority of jurisdictions, it is ordinarily regarded as a civil rather than criminal action. Quo warranto is often the only proper legal remedy; however, the legislature can enact legislation or provide other forms of relief.
Statutes describing quo warranto usually indicate where it is appropriate. Ordinarily it is proper to try the issue of whether a public office or authority is being abused. For example, it might be used to challenge the Unauthorized Practice of a profession, such as law or medicine. In such situations, the challenge is an assertion that the defendant is not qualified to hold the position she claimsa medical doctor, for example.
In some quo warranto proceedings, the issue is whether the defendant is entitled to hold the office he claims, or to exercise the authority he presumes to have from the government. In addition, proceedings have challenged the right to the position of county commissioner, treasurer, school board member, district attorney, judge, or tax commissioner.
In certain jurisdictions, quo warranto is a proper proceeding to challenge individuals who are acting as officers or directors of business corporations.
A prosecuting attorney ordinarily commences quo warranto proceedings; however, a statute may authorize a private person to do so without the consent of the prosecutor. Unless otherwise provided by statute, a court permits the filing of an information in the nature of quo warranto after an exercise of sound discretion, since quo warranto is an extraordinary exercise of power and is not to be invoked lightly.
Quo warranto is not a right available merely because the appropriate legal documents are filed. Valid reason must be indicated to justify governmental interference with the individual holding the challenged office, privilege, or license.
Search - Quo Warranto Cases
I wonder who he thinks the "right" plantiff is?
I'm not smart enough to figure this out.
The US District Court for Washington DC currently has 11 judges appointed by Carter or Clinton and 5 judges appointed by Reagan or Bush.
Good luck getting quo warranto out of one of the most liberal courts in the nation.
Not only that - the liberal judges in the District court - but Leo is not going to find a prosecutor to take the case before the liberal judge.
I don’t know how serious Leo is in all this. I know he has demonstrated a serious intention to shoot down all the other cases while he has done nothing with a plan that will go no where if he should ever act upon it - which I doubt he will. For me, at this point, seeing is believing with Leo and otherwise it is all a bunch of circular mental masturbation.
Mario Apuzzo is doing a good job. I hope he can get a hearing soon given the importance of the allegations if true. Tomorrow is Veteran’s Day. Plaintiffs are veterans. They, as Oath takers to the Constitution, should have standing in this case.
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