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In fact the appellees do not cite a single other case that asserted jurisdiction based on the Interpleader Act.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.
I am not an attorney, but if it is so that: "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" why is it so hard for the court to render some sort of clarification, in the matter of what constitutes a Natural born Citizen, as regards Obama?
I understand the delicacy that must be exercised in such a rendering but, be that as it may, if the court can't clarify this matter, what authoritative body can?
Obama has 2 Perkins Coe attorneys including Bauer.
Is John Heminway working with or for Phil Berg?
| Is John Heminway working with or for Phil Berg?
No, Hemenway (and Hollister) are trying to distance themselves from Berg. Berg handled the Interpleader case around the time of the Inauguration for Hollister earlier this year.
Hemenway is a Conservative. Here's the list of his filed political contributions:
$250 to Buchanan For President on March 5, 1992
As for the Dubai $1+ trillion ponzi scheme...I believe the state of California is part of a bigger ponzi scheme at something like 1.5+ trillion.
IMO, fear ... or judges who put party politics above the Constitution. Some of that "fear" may be subsiding now though.
And yeah...if the courts don't have jurisdiction, nor the willingness, to interpret a Constitutional requirement...then who does? I mean, isn't that what the courts do...interpret the Constitution and subsequent laws under it? Sheesh.
Also, how does Nuremberg (the post-WWII trials of the Nazi war criminals) apply to this case, as argued in the plaintiff's brief?
I agree with this summation too. But - this one is weird.
I inadvertently shortened that title a bit (check the original link in the first post). If I'm not mistaken, this is a correction due to an "ECF error" with the previous MOTION.
As far as the Nuremberg trials go with relation to this case, basically, a defense of "I was only following orders" is not an acceptable defense if brought up on war crimes type charges.
Col. Hollister maintains that if he were to be called into action (a distinct possibility, no matter how seemingly small) and he were to "follow orders" given to him by his chain of command which includes Barry, if it turns up later that Barry gave unlawful orders because he's a usurper POTUS...Col. Hollister would STILL be personally accountable for following those unlawful orders. If I'm not mistaken, officers are supposed to question an order if they believe that order is an unlawful one. Col. Hollister raises the question via the lawsuit.
The dismissal of the lower court was explicitly under Rule 12(b)(6) for failure to state a claim after it found that it did have subject matter jurisdiction. A dismissal for lack of standing would have been under Rule 12(b)(1) rather than Rule 12(b)(6). A rule 12(b)(6) dismissal in effect says that you do have standing but the claim that you have made, even if true, does not entitle you to relief whereas if you had stated a claim under the merits of the subject matter jurisdiction that was found you could go forward into discovery.
WOndoer if the Dubai Ponzie schene is the one referred to in the paper from India a couple of months back:...”An International Ponzi scheme that would make Made-off look like an amateur”...
Exactly! A foreign national parent “passes” their foreign citizenship on to the child. The framers never intended (post “grandfather” clause) someone owing foreign allegiance to become the Commander in Chief of the armed forces. For obvious reasons I would add.
While researching for Orly Taitz, I found that Judge Carter’s clerk misinterpreted Ashwander vs. Tennessee Valley Authority (the third case cited in the dismissal) in order to assert that Barnett had no standing.
Natural Born Citizen, as a term of art, appears only once in U.S. law, Article II of the constitution. It is not a naturalization issue, and therefore not covered under congressional uniform naturalization law powers of Article I. Note, that the 14th Amendment mentions a child born on U.S. soil to a U.S. citizen mother and father is a citizen at birth, but does not define it as a ‘natural born citizen.’ Cf. 14th Amendment author Sen. Bingham’s comment on what a natural born citizen is, ‘according to the constitution.’.
Similarly, ‘natural born citizen’ appears nowhere in naturalization and nationality statutes. It is not defined in 8 USC 1101, nor enlarged upon in 8 USC 1401 (1952 INA 301).
In addition, in “general law” or case law/common law, natural born citizen has been discussed from Minor v Happersett to Perkins v Elg, but the cases are not specifically on point and are noncommittal to the terms accurate use.
Therefore, under Ashwander, the court’s subject matter jurisdiction is not discretionary under ‘statutory or general law,’ but mandatory as an alleged violation of constitutional law.
My contribution is in #11 of the Barnett Motion to Reconsider.
For more of my research on the ‘birther’ issue, see http://paralegalnm.wordpress.com/2009/11/29/diagramming-the-grammatical-structure-of-article-ii-%c2%a7-1-cl-4/
The only native born sons of British subjects eligible to be president were born prior to the adoption of the constitution. Thus, the subordinate adjective clause after the main clause describing ‘natural born citizen.’
Let's hope that Judge Carter does see that his court must hear the case...although, I'm betting he doesn't.
Regarding the work on your web site, I'd like to follow up with some questions on the issue of weather or not his parent's marriage was bigomous.
1. Do we have proof (that would hold up in court) that Sr. was in fact still married in Kenya to another woman(s)? Proof that would "override" the court documented divorce record for Sr. and SADO?
2. If there is such proof in #1, do we know for a fact that the marriage between Sr. and SADO took place in HI and not in Kenya (or "similar" country)?
3. If there is proof that the marriage took place in HI, do we have proof that it was a bigamous marriage and not a polygamous marriage? Is there a difference in 1961 British (for oversea's citizens) and HI marriage law?
Or, is much (all?) of the above based on assumptions and/or hearsay(aside from the court divorce document)?
That really should read "Is there a difference in British (for oversea's citizens) and HI marriage law for the time at which the marriage took place?"
My only proof of a bigamist marriage to ‘sado’ is the citation of the Hague Conventions in that blog. Britain in Kenya was highly organized. Thus, any marriage, and especially any birth, would be recorded.
If a simple village wedding, as Phil Berg claims, the Hague Conventions would still apply. Obama, Sr. returned to Kezia and had several children.
It is my opinion that Obama, Sr. married ‘sado’ only for purposes of removing appearances of statutory rape in Hawaii. Hawaii did not consider the impregnating of 17-yr old ‘sado’ statutory rape, but other Eastern states such as where Harvard was located might. Sr. did not want to jeapordize his visa.