Skip to comments.Jeff Schreiber on Berg Suit Dismissal
Posted on 10/25/2008 7:58:24 AM PDT by Technical Editor
Saturday, October 25, 2008 Lawsuit Against Obama Dismissed from Philadelphia Federal Court
The order came down at approximately 6:15 p.m. on Friday. Philip Berg's lawsuit challenging Illinois Sen. Barack Obama's constitutional eligibility to serve as president of the United States had been dismissed by the Hon. R. Barclay Surrick on grounds that the Philadelphia attorney and former Deputy Attorney General for the Commonwealth of Pennsylvania lacked standing.
Surrick, it seemed, was not satisfied with the nature of evidence provided by Berg to support his allegations.
Various accounts, details and ambiguities from Obamas childhood form the basis of Plaintiffs allegation that Obama is not a natural born citizen of the United States. To support his contention, Plaintiff cites sources as varied as the Rainbow Edition News Letter and the television news tabloid Inside Edition. These sources and others lead Plaintiff to conclude that Obama is either a citizen of his fathers native Kenya, by birth there or through operation of U.S. law; or that Obama became a citizen of Indonesia by relinquishing his prior citizenship (American or Kenyan) when he moved there with his mother in 1967. Either way, in Plaintiffs opinion, Obama does not have the requisite qualifications for the Presidency that the Natural Born Citizen Clause mandates. The Amended Complaint alleges that Obama has actively covered up this information and that the other named Defendants are complicit in Obamas cover-up. A judges attitude toward the factual foundation of a plaintiffs claims is an essential factor in understanding just who indeed has standing to sue. The question running to the heart of the standing doctrine is whether or not the plaintiff indeed has a personal stake in the outcome of the otherwise justiciable matter being adjudicated. As has been discussed before many times here at Americas Right, a plaintiff wishing to have standing to sue must show (1) a particularized injury-in-fact, (2) evidence showing that that the party being sued actually caused the plaintiffs particularized injury-in-fact, and (3) that adjudication of the matter would actually provide redress.
In this case, Judge Surricks attitude toward the evidence presented by Berg to support his allegations figures in heavily because, while there is a three-pronged test to standing in itself, there is no definitive test by which the court can determine whether a certain harm is enough to satisfy the first element of that three-pronged test by showing true injury-in-fact. Traditionally, it hasnt taken much to satisfy the need for an injury-in-fact, but as the plaintiffs claimed injury is perceived as being more remote, more creative, or more speculative, the injury-in-fact requirement becomes more difficult to satisfy.
As it were, much of Bergs basis for injury-in-fact could be considered threatened injuryhe felt that the country was at risk for voter disenfranchisement and that America was certainly headed for a constitutional crisisand, while threatened injury can certainly be injury enough to satisfy the injury-in-fact element, such satisfaction depends upon the threat being perceived by the judge as being not too creative, speculative or remote.
When it came to Philip Bergs personal stake in the matter at hand, Judge Surrick compared his action with those of Fred Hollanderwho sued Sen. John McCain in New Hampshire on grounds that, born in the Panama Canal Zone, he was not a natural born citizenand held that Bergs stake is no greater and his status no more differentiated than that of millions of other voters. The harm cited by Berg, Judge Surrick wrote, is too vague and its effects too attenuated to confer standing on any and all voters.
So, who does have standing? According to the Hon. R. Barclay Surrick, that's completely up to Congress to decide.
If, through the political process, Congress determines that citizens, voters, or party members should police the Constitutions eligibility requirements for the Presidency, then it is free to pass laws conferring standing on individuals like Plaintiff. Until that time, voters do not have standing to bring the sort of challenge that Plaintiff attempts to bring in the Amended Complaint. Judge Surrick not only dismissed Berg's case, but admonished the attorney in several spots in the 34-page memorandum. In one such instance, Judge Surrick noted that Berg had misinterpreted the Federal Rules of Civil Procedure in asking the court to permit him to amend his complaint. The first amended complaint was deemed admitted by Judge Surrick on grounds that, under FRCP 15(a), a party can amend once so long as its done before being served with a responsive pleading and that, just as I had not-so-confidently suggested, the motion to dismiss filed on Sept. 24 by Obama and the DNC was not a responsive pleading. Because Berg perceived the motion to dismiss as a responsive pleading and was waiting on the court to grant or deny the motion for leave to amend, he did not serve the additional defendants added in the amended complaint. This, too, was noted by Surrick.
Bergs attempts to distinguish his own case from Hollander were deemed by Judge Surrick to be [h]is most reasonable arguments, but his arguments citing statutory authority were said by the judge to be a venture into the unreasonable and were frivolous and not worthy of discussion. All in all, the judge wrote, it was the satisfaction of the injury-in-fact requirement which was the problem. Bergs harm was simply too intangible.
regardless of questions of causation, the grievance remains too generalized to establish the existence of an injury in fact. To reiterate: a candidates ineligibility under the Natural Born Citizen Clause does not result in an injury in fact to voters. By extension, the theoretical constitutional harm experienced by voters does not change as the candidacy of an allegedly ineligible candidate progresses from the primaries to the general election.
Berg, disappointed by the decision, plans to appeal to the Third Circuit Court of Appeals and then to the United States Supreme Court.
"This is a question of who has standing to stand up for our Constitution," Berg said. "If I don't have standing, if you don't have standing, if your neighbor doesn't have standing to ask whether or not the likely next president of the United States--the most powerful man in the entire world--is eligible to be in that office in the first place, then who does?"
Here's what SHOULD happen. A secretary of state should inform the candidate that he has until Thursday at noon to prove that he is a "natural born" citizen. If the candidate refuses or is unable to do so, the secretary of state should declare that that candidate's votes will not be counted.
The party has four days to put out the word about writing in another name. I would assume for the dems that would be Hillary Clinton.
The system must work in favor of the voter's rights to an honest election. The elected officials, judges, and candidates must be held to that expectation.
The tragedy of the Penn ruling is that a judge could have done by that by just deciding against a person who ignored the proceedings and refused to produce a simple document. Had 1 judge done so by now, it would have given the party more days to reposition it's messages to the voters.
Is there not ONE Secretary of State willing to stand up and be counted?
This situation is grieving me.
If we let them know we expect a resolution, they will get it done.
I’ll call also. Think I’ll call Feinstein’s office as well. She is “supposed” to represent me too (although I have never voted for her).
The DNC liberals are an incurable disease until death!
My (D) mother-in-law would never allow any black person to be invited to the family Xmas parties, until I married her then also (D) daughter (not anymore) and I refused to show up if I could NOT invite my black prayer partners, which she reluctantly agreed to. (BTW I think granny in Hawaii feels same way about Michelle Ma Bell)!!
My mother-in-law an avid Clinton supporter is NOW voting for a "black" man, go figure!!!
I would say its about a quarter-till “torches and pitchforks”
Actually, although my liberal white brother will be going Obama, surprisingly my very Union, Democrat Father and mother in law are both voting McCain. They have never voted for a Republican in their lives.
Usually at our church there are about 1/3 of the people voting Democrat, but I can’t find a single one of them who are not voting for McCain. I had a lot of long (sometimes loud) conversations regarding Clinton, Kerry, etc. but can’t find ANYONE willing to defend Obama. Even the ones I could just about guarantee would go Democrat are not.
For what it is worth.
Great. We need calls and e-mails to every secretary of state. I don’t know why there aren’t suits in all 50 states. I have noticed that democrats are filing the suits.
Unfortunately I believe that this country will be a socialist country very soon. If not in this election, then certainly soon thereafter. We have allowed ourselves to be battered into submission by all of this politically correct crap, by the minorities taking rights over the majority, by electing lawyers into government instead of business men/women, by subjugating ourselves to those who graduated from the liberal colleges, by allowing liberal professors and teachers to ‘train’ our children, by letting God be moved out of our government and public lives, by allowing history to be rewritten according to the liberal view, by condoning bad behavior in our leaders through apathy or ignorance, by not standing together on important issues such as this one....insuring that our political candidates are qualified, by listening to the brainwashing of the MSM, by being manipulated by force from the liberal side. The only thing I am going to enjoy (should I live long enough) in a socialist society is watching those who have lived their lives off the backs of others having to do community service, etc...because everyone contributes in a socialist society. I am terribly sad that we have lazy people in our society who just will not face the truth and the reality of what is happening. I am very happy in my own selfishness to know that my life happened during the days of the greatest country on earth. I am very very unhappy to know that my child and all like her and their children will not know this wonder....this wonder named the United States of America. God has indeed shown His grace on thee.
Most people don't think that is possible. My wife has certainly experienced that with her divorce case!!!
I am a poll worker and I am considering backing out and not participating in the election. It is something I am thinking about. I have never experienced this type of situation, but I will stand on my own personal ethics and make a decision.
I sent emails requesting help to Rush, Boortz, Hannity, Greta. I said ALL candidates need to produce an accurate and real copy of their birth certificates as filed in their respective states. I am going to email the Florida Secretary of State and the Director of the office of elections and President Bush. I learned a long time ago when trying to get another issue addressed in Washington that unless you are a resident of the state you are writing, they will not pay any attention to what you say.
After hearing the Savage Nation, I e-mailed our Secretary with copy to his boss Charlie Crist with the link to Micheal Savage's interview with Mr. Berg:
If somebody can get this link posted correctly, I will appreciate it!!!
Pretty sad...and sophomoric.
The media calls us "MEAN SPIRITED" on anything we do, yet they can literally destroy a person, humiliate them at will and they never feel any remorse.
This smells of PAYOFF big time for this judge, how conveniently it came when the culprit was out of DODGE, thereby it would not be connected to him. Convenient to that his granny got SO SICK.
Basically this Judge says "WE the people have no constitutional authority to file a case, HUH? Who else but us was the Constitution created for. HE was paid off.
Look what they are doing to SARA and JOE the Plumber, unmercifully attempting to destroying their lives. These little people have to be SHUT UP and NOW, or the little people POWER WILL GROW. The media and hollyweird bastards continue to do their little minion jobs, good little soldiers for the Islamic/Socialist cause.
THIS JUDGE was in my opinion PAID OFF BIG TIME, and Obama has more from where that came from, open spigot.
Time for the LITTLE PEOPLE MOVEMENT TO GROW. GO Joe the Plumber's everywhere, Joe the Electrician, Joe the Fireman, etc, etc., etc. Time for them to run for office and destroy that nest of Washington VIPERS before it is to late. If not perhaps we need to watch Independence Day again and start over.
The judge is saying that only the government can determine if the constitution has been violated.
Our Founders created the Constitution to limit the Government.
The need for US Constitution is the same as the need for Lindburghs plane.
Move the Constitution to the Smithsonian.
The Constitution says that no person below age 221 who is not a naturalized born citizen may become President. It is the right and duty of all citizens to ensure that the Constitution is followed. Unfortunately, courts have for a long time been ignoring that fact in order to shield an increasingly-lawless government from scrutiny.
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