Skip to comments.HOLLISTER v SOETORO updates - Joint Motions (incl. request for oral argument), Joint Response.
Posted on 12/02/2009 1:47:50 PM PST by rxsid
Some updates in the HOLLISTER v. SOETORO case:
HOLLISTER v SOETORO - Joint Motion - To Substitute Reply Brief (Ecf Error)
THE TACTIC OF MISREPRESENTING THE CLASSICAL EXPOSITION OF STANDING UNDER THE FACTS OF THIS CASEhttp://www.scribd.com/doc/23522014/HOLLISTER-v-SOETORO-Joint-Motion-To-Substitute-Reply-Brief-Ecf-Error
The brief of the appellees purposefully creates confusion by continually citing cases involving Article III standing where there is no specific grant of jurisdiction to the federal courts by Congress under Article III as there is if one actually applies the Interpleader Act in this case. Article III, Section 2 of the Constitution states: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the laws of the United States, . Obviously, if the Framers had intended cases in which Jurisdiction of the federal courts was dependent upon the Constitution alone as opposed to the laws of the United States to be lumped together, then the Framers would have worded the Constitution accordingly. They did not do so, but these appellees misrepresent the three elements of the classical exposition of standing by the Supreme Court when one applies the Interpleader Act principles in this case. They do so in the apparent hope that the disregard for the Constitution by those whom they defend would be echoed by members of this court despite their oath to uphold it against all enemies foreign and domestic.
We address these three classic elements of standing in reverse order in order to elucidate the confusion being attempted here by the appellees.
In fact the appellees do not cite a single other case that asserted jurisdiction based on the Interpleader Act. That is apparently because there is not another filed case that invokes its jurisdiction. Thus to maintain that all these other cases are related is to misrepresent, systematically, the facts of the cases and the law, apparently on the belief that this Court can be politically intimidated into ignoring the well established law of issue and claim preclusion and the vast body of such law about res judicata. To invoke, in effect, res judicata, by simply naming cases without putting forth anything that would establish any principle of res judicata is misrepresentative. It is an attempt to improperly influence the Court.
Oral argument is the only way to make clear all the misrepresentation that is involved, there is so much of it. We are, therefore, following on the heels of the filing of this reply brief, filing a motion to have oral argument, which we hereby incorporate by reference.
Having looked extensively at the standing issue which the appellees brought up, we look to the clear language of the Interpleader Act, and why it applies here. In this area also we see a lot of misrepresentation.
The duty to report for active duty if ordered to do so by a purported Commander-in-Chief whose eligibility under the Constitution to give such an order is, by the admitted facts of his life, in doubt is not a single part of an enormous interlocking series of complex litigations. Nor is it an inchoate obligation. It is clear cut and simple. Either one is obliged to obey the order when it comes or one is not.
On p. 9 of their brief, the appellees argue that the complaint of Colonel Hollister does not allege facts to support his claiming Interpleader. This is simply incorrect. It is misrepresentative. Colonel Hollister has named two defendants, one of whom he has reason to believe in the facts he has alleged, may not be able to give a legitimate order under the principles that we established at Nuremberg and the other of whom would have to give the order to call him up if in fact Soetoro a/k/a Obama is not eligible to legitimately give him an order. Those are the clearly alleged facts of the two conflicting claimants to his obligation.
Our arguments show that, particularly because we have shown that by the holding of the Supreme Court and the facts that the defendant Soetoro has stated throughout his political career, that his father was not a citizen, his status as a natural born citizen is in doubt. At the very least, when the Supreme Court has held that an issue is in doubt, seeking to have that doubt clarified is a good faith extension of existing law.
The appellees cite authority that this Court may take notice of matters in related proceedings, pointing to proceedings that are not truly related. But we take a leaf from their notebook and point out that evidence has surfaced from related proceedings recently. In another case what may be the actual birth certificate has been filed. In an eligibility proceeding proof of deception as to the natural born status has been located.
HOLLISTER v SOETORO - JOINT MOTION - To Schedule Oral Argument
APPELLANTS MOTION FOR ANDSTATEMENT SUPPORTING ORAL ARGUMENThttp://www.scribd.com/doc/23522122/HOLLISTER-v-SOETORO-JOINT-MOTION-To-Schedule-Oral-Argument
In its Order of June 26, 2009, the Court indicated its adoption of a briefing schedule and in doing so noted the following, namely that to the Court it was appearing that this case might be suitable for disposition without oral argument, (emphasis added). In so doing, the Court then requested that the parties consult Fed.R.App.P. 34(a)(2). Upon examining that rule as requested, appellants note that it states that oral argument must be allowed in every< case unless a panel of three judges u>who have examined the briefs and record unanimously agrees that oral argument is unnecessary for any of three reasons that are then listed. (emphasis added).
Since we know from Federal Election Commission filings, of which this Court may take judicial notice, the fees to the appellees law firm now exceed one million and four hundred thousand dollars ($1,400,000) of which the greater amount seem to be fees for defending cases about the eligibility for the presidency of the appellee Soetoro/Obama, Further, such a Rule 11 sanction would be ruinous to the average attorney, particularly one in solo practice. We can understand that the backing off by the judge below leading to his revised Rule 11 sanction was quite substantial. Yet, nonetheless, a Rule 11 sanction remains,
It seems to have been a withdrawal of an attempt by the lower court to ruin an attorney who had the temerity to bring such a suit. We say this because the sanction that was thus initially proposed by the lower court was clearly erroneous in several ways.
Instead of inquiring into, or allowing any presentation of, what the pre-filing inquiry in this case consisted of, the court below instead relied upon the following pronunciamiento:"The issue of the Presidents citizenship was raised, vetted, blogged, texted, twittered, and otherwise massaged by Americas vigilant citizenry during Mr. Obamas two-year-campaign for the presidency, but this plaintiff wants it resolved by a court. App. 218" The question of citizenship was manifestly not what was at issue. Under the clear allegations of the complaint, as well as all of the filings of the plaintiffs/appellants below, what was at issue was whether the defendant Soetoro/Obama met one of the basic requirements imposed upon the person who wanted to legitimately qualify as the President. The Constitution in Article II, Section 1, Clause 5 states that the person who would seek that High Office be a natural born citizen. Clearly if what had been intended by the Founders was to require mere citizenship, they would have said so.
Repeatedly in our history, particularly at the time of the enactment of the 14 th Amendment, it has been made abundantly clear that citizenship is not the same as the specific constitutional requirement of being a natural born citizen. For a United States District Court judge to assert that it is the citizenship of Soetoro/Obama that is at issue is not only error; it would seem to indicate inattention to what has been pled and argued in the case.
[1874 decision in Minor v. Hapersett, 88 U.S. 162]
The court pointed out that at common law it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural born citizens The high court then went on to say that there were those who went further and include as citizens (but not as natural born citizens) children born within the jurisdiction without reference to the citizenship of their parents.
In addition to that decision in 1874, there have been other Supreme Court decisions in which the question of the divided loyalty created by a childs having a parent, particularly the male parent, not be a citizen, have been discussed. In several of these cases the influence of the writer on international law, Vattel, as having been known to and an influence upon our Founders, was discussed. One of the most prominent of these was by no less a figure than John Marshall himself, writing in The Venus, 12 U.S. (8 Cranch.) 253, 289 (1814).
For the importance of the natural born citizenship requirement in this regard in the 19 th Century see also Shanks v. Dupont, 28 U.S. 242, 245 (1830), and, as we have previously pointed out Minor v. Happersett, 88 U.S. 162, 167-68 (1874). And see also, where the significance of Vattel is also mentioned: Ex Parte Reynolds, 5 Dill. 394, 402 (1879) and United States v. Ward, 42 F. 320 (C.C.S.D.Cal.1890). Also see Keith v. U.S., 8 Okla. 446, 58 P. 507 (1899). To see clearly the distinction between citizenship derived from being born in the country and the phrase natural born citizen as used in Article II by the Framers, see the dissenting opinion of Chief Justice Fuller in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), which was only about being naturally born into citizenship under the 14 th Amendment and not about the Article II phrase natural born citizen. Chief Justice Fuller, in his dissent, emphasized that distinction as it was clearly understood in those days.
His [lower court judge] heavy reliance upon blogging and twittering on the Internet having constituted a vet[ting] of the defendant Soetoro a/k/a Obama by Americas vigilant citizenry would seem to those familiar with the history of our founding like kowtowing to the kind of easily susceptible pure democracy that was the Founders inspiration for creating a constitutional republic. Indeed the refusal to face the paramount issue in the case would seem to be the very usurpation of the Constitution that George Washington warned about in his farewell address.
The best cure for such avoidance would be, we submit, vigorous questioning by a panel at an oral argument. Far from being frivolous this appeal presents issues going to our very survival as a constitutional republic. They echo Ben Franklins reported concern at the close of the constitutional convention when he said to a woman on the street, We have given you a Republic, Madam, if you can keep it?
The lower court, echoing the defendants, recited other cases, including another case brought by the attorney Berg pro sebut it made no actual analysis of actual issue or claim preclusion, not could it have under the circumstances. Thus that too was more evidence of bias and error than an actual legal analysis. It is self evident that blogging and twittering and vetting on the internet do not preclusion make. This has resulted in the Judge below being characterized across the conservative and constitutionalist internet (as opposed to the Soetoro/Obama, Soros financed astroturfing internet) as the blogging and twittering judge. We would suggest that to deny oral argument under these circumstances and certainly to do so without a unanimous panel decision based upon sound and rational and transparent analysis would not contribute to public respect for the neutrality of the courts but rather to the opposite conclusion.
As we have seen, the fact here that the defendant Soetoro a/k/a Obamas father was Kenyan is not even denied. And that alone casts his status as a natural born citizen under Article II, Section 1, Clause 5 in doubt. Further as far as the evidence cited in the complaint that he was not born in Hawaii, to make this case comparable it would have to be the case that the plaintiff and his counsel, prior to filing, could have ferreted out the actual long form birth certificate of Soetoro a/k/a Obama. Since he has expended hundreds of thousands of dollars keeping anyone from seeing it and has refused to reveal it this is not a comparable dilatation at all to that in Banov.
Even though the finding of the lower court here that there was subject matter jurisdiction and, hence, necessarily standing, and even though the defendants Soetoro a/k/a Obama and Biden sought dismissal for lack of standing under Rule 12 (b) (1) and failed, they did not appeal that decision against them. So, at this point standing is not an issue that has been placed before this Court. Nonetheless, undeterred, the defendants/appellees argued it in their now superseded Opposition. And in doing so, as we might expect, they engaged in misrepresentation.
If the defendant Soetoro a/k/a Obama is not constitutionally eligible to hold the office he claims and is in fact only a de facto officeholder and not de jure, and, therefore, cannot give a lawful order to a member of the individual ready reserve, then the interpleader defendant Biden is obliged to obey the Constitution and give the order. There is not another party that need be involved.
In their opening Opposition brief, for example, at p.2, there is such a reference where the defendants/appellees Soetoro a/k/a Obama and Biden refer to the plaintiff as an alleged Colonel who is retired and a member of the Individual Ready Reserve. Yet these facts are clearly established as such by the DOD Form 214 which is the attachment to the complaint. App. 30-31 Thus this is the sort of snide misrepresentation that also cries out for oral argument. In fact the entire assault of these appellees, like much of their activity on the Internet and through the media that are subservient to them, consists of name calling and ridicule, as if taking the Constitution and the oath to uphold and protect it were frivolous just because these appellees have their counsel call the charges made here by that and similar adjectives.
HOLLISTER v SOETORO - JOINT RESPONSE in Opposition FILED - To Motion to Participate as Amicus Curiae(s)
OPPOSITION OF THE APPELLANTS GREGORY S. HOLLISTER AND JOHN D. HEMENWAY TO THECORRECTED EMERGENCY MOTION OF LAWRENCE J. JOYCE, ESQUIRE and PHILIP J. BERG, ESQUIRE TO FILE A BRIEF AMICUS CURIAEINSUPPORT OF APPELLANTS HOLLISTER AND HEMENWAY, SUPPORTING REVERSALhttp://www.scribd.com/doc/23522249/HOLLISTER-v-SOETORO-JOINT-RESPONSE-in-Opposition-FILED-To-Motion-to-Participate-as-Amicus-Curiae-s
The primary reason for this opposition is that the proposed Amicusbrief would bring into this case issues that were not in the record in this case in the lower court and were not appealed to and put before this Court.
Both the plaintiff Hollister and the undersigned, as co-appellants at this point, wish to state that there has been a divergence between the interests of the attorney Berg in particular and those of the appellant and plaintiff Hollister, and inattention to plaintiff Hollisters case by the attorney Berg since the inception of this case.
Colonel Hollister states that that was the case for a year until attorney Joyce offered for Joyce and Berg to be removed from the case and that at that time the attorney Joyce mentioned their, Joyce and Bergs, motives of making money on this case.
Ultimately the undersigned, in viewing the Berg web site noted by the court below, found that a legal position was being taken on it that was contrary to the positions of the undersigned and Colonel Hollister with regard to the meaning and importance of the Article II, Section 1, Clause 5 requirement that a President be, in order to be eligible for that office, a natural born citizen.It was contrary efforts of Berg and Joyce that created two divergent arguments that required this Court to order Hemenway and Hollister to coordinate their submission.
In the case of the undersigned, he has had to advance considerable funds to keep the Hollister case going and has never received any offer to reimburse any of those additional funds for expenses from Attorney Berg or Joyce, despite their months of soliciting funds on the Berg web site ostensibly for the support of this case, among others. Thus, for both Colonel Hollister and the undersigned, this is but the last of actions that diverge from the best interests of Colonel Hollister and the undersigned.
The undersigned and Colonel Hollister mention these details and differences to emphasize their strong reason for opposing adoption by the Court of the proposed Amicus brief.
Newly filed court docs in the HOLLISTER v. SOETORO case.
Heads up all y’all!
I have always found that the number of responses in inversely proportional to the length of the source article. Could you please summarize? There are so many suits out there that it’s hard to keep track of them!
So now lets take a poll of what Obamas next “crisis” will be for media diversion?
A) Aliens have landed.
B) Jesus reappears.
C) The sun explodes in two weeks.
Its a weekly thing with Obama, every week there has to be a crisis or emergency so everyone does not notice his lack of responsibilty, I have seen people like that at work, every day they actually work harder trying to get off doing any actual work.
Lincoln was called The Great Emancipator.
Obama will become The Great Goldbricker.
Thanks for the ping. Bump and pinging others.
I'll give it my best (in a "nut-shell") non-lawyer attempt...
In "HOLLISTER v SOETORO - Joint Motion - To Substitute Reply Brief", they argue that not only do the plaintiff's have standing (citing case law), but the lower court in this case did in fact find they have standing (not word for word). They also bring up the publically known "fact" that Barry's father was never a U.S. citizen and that should bring into question he NBC status (as the show why in the motion)
In "HOLLISTER v SOETORO - JOINT MOTION - To Schedule Oral Argument", they go into the reason's why the court should allow for an oral argument (something that the courts in these eligibility cases have not been "fond" of to say the least). Attorney Hemenway also bring up the harsh rule 11 sanctions he received from the lower court judge, and how ridicule and name calling in abundant in all circles (i.e. the lower court, the media) objecting to the questioning of Barry's NBC status).
And in "HOLLISTER v SOETORO - JOINT RESPONSE in Opposition FILED" they state (& why) they don't want the Amicus Curiae(s) of Berg (Joyce) to be allowed in the case.
Hope that helps some.
“I have always found that the number of responses in inversely proportional to the length of the source article.”
You raise a good point. Post something that requires time and thought, poof, the readers/posters are gone. Tiger? MJ? Thread after thread after thread.
Serious legal briefing gets a few responses, while rants of a CA attorney draw hundreds. Odd.
Thanks. So Berg is the lawyer?
I have read elsewhere, through a fairly authoritative source, that Berg was warned repeatedly that his approach to the Obama eligibility was fundamentally flawed and would be rejected and possibly lead to censure. At least since the appeal is based on arguing existing judicial principles and precedents, it may be seen as more favorable for review.
Still, I fear that every judge or appellate court will take the simple path of a purported lack of standing to deep six the appeal, especially given the poor track records of the “birthers. What has upset me most about the decisions that I have read is that the judges have often thrown in material that they “dug up” on their own or, were often quoting material such as affidavits, which should not be referred to in the decisions according to standard legal doctrine.
I just don’t know where we can go from here. Everything is so unusual — a standard reading of NBC should indicate that BHO is ineligible for his job — so that even the “Quo Warranto” doctrine does not apply, as far as I can tell.
Even Carter admitted that election opponents may have standing. I think that any military officer should have standing, though Carter seemed to say that there was existing precedent in the 9th Circuit which would preclude such a defense.
BHO and his cronies have scoured the globe to eliminate, purge, and make unavailable almost all details of his life. I read a reliable account that his cronies showed up in Indonesia circa 2006 with the specific task of eliminating or making unavailable vital personal records. Newspaper articles have been scrubbed after the fact to remove any references to foreign allegiances or births.
The one thing that has struck me about the “questionable” Kenyan birth documents, is their consistency. The present the same hospital, real individuals who were in the specified role at the referred to time, and exact details with regards to name and birth details of the parents. Occam’s razor tells me that, despite the alleged forensic shortcomings of these documents, they remain, at worse, “fake, but accurate.”
Where the article appears in the “system” here at FR, and also if there are pings to an article or not make a big difference as to the amount of responses. In some cases it’s a good thing — at least this thread isn’t filled with trolls telling everyone that even discussing these issues are a waste of time (yet...).
Just curious if you were the one who tagged this as “History”? Seeing as these are new filings how is it that this ends up under History and Society - but no mention of Crime/Courts or Government (Can’t remember the exact choices as it’s been a while since I’ve posted an article, myself). I’m just curious if these are the original tags you put with the article or if they’ve been changed? The comments on how little reply there was on this thread just made me curious.
In any event, thanks for posting these docs for us. I would comment more about the content itself, but I’m battling a cold at the moment and deep thinking (or reading legal papers) just makes my head swim! LOL
One has already showed up, just a question of WHEN others join in???
No, not on this one (anymore).
So this is in the DC District Court of Appeals? I think the next step is SCOTUS.
If what I think is going to happen with America due to Dubai then maybe the public will wake up. The market may crash and the next leg down in the Depression may occur. Dubai was a $1+ trillion ponzi scheme. It may turn out to be 9/11 Part 2.
| This brief is well-written, although some of the references attorney Hemenway uses regarding the “blogosphere” will likely go right over the judges’ heads. Also, recalling some of the "tips" Judge Carter gave in a different eligibility case, it might have been good for Hollister's attorney to have addressed quo warranto more directly. However, this may not be an issue the way this is written.
One of the primary case laws that Hemenway references is the 1874
Note that this case does NOT discuss the validity of the birth certificate like Berg and Orly have, rather Obama/Soetoro’s eligibility as a "Natural Born Citizen" and the public vetting of his “credentials” in the blogosphere in 2008, which Congress and most of the American people blindly accepted on face value. Donofrio’s approach is similar in this regard.
Hollister, as some may remember, is the retired colonel who challenged Obama/Soetoro via an Interpleader case in the DC Court system. Having spoken to him on the phone a couple of times earlier this year, Hollister comes off as a very credible plantiff.