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?"
Ah yes - the tactic of the 9-11 truther.
Name ONE respectable person who is pushing this story.
Perhaps when Governor Palin submits her medical records for examination, she could include her birth certificate, and challange everyone else to do the same.
A public challange for openness seems like a good way to go.
Sorry, Noob, that guy's been here longer than you, has an anti-O tagline, and only linked to something that is probably germane to this discussion.
So, Noob, think I oughta urge the mod squad to toss YOUR butt?
The high level McCain campaign is full of idiots.
And if I were you, I would be very careful who I call names.
You’re not me - so screw.
Somewher there has to be a secretary of state, registrar of voters, or judge that will stand up on their hind legs and say “no votes will be counted in my jusridiction for this candidate until he proves that he is qualified. It is my sworn duty to enforce this requirement.”
He’s an Obama troll. Nothing more, nothing less.
It is not the responsibility of the accuser to prove they are respectible. It is the responsibility of the candidates to prove they are qualified. You have a twisted sense of where the problem is.
That doesn’t answer the question.
The cumulative injury to all voters who oppose Obama is far larger than any other injury I could possibly think of. The total injury far far exceeds the injury suffered by smokers of cigarettes, for example. What a lame determination.
>>>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. <<<
sorry- I;m posting in several related threads.
I asked if anyone could name ONE respected source/person who is pursuing this.
look - I think that this is a waste of time on many levels, so I’m going to stop feeding these threads. np
Berg needs to give us a list of what we can do. We are here to help; but we need guidence.
And those two Constitutional requirements can be firmly established by presenting only ONE piece of evidence, a birth certificate. How can a nation with such a low bar for eligibility for POTUS completely ignore even that low standard?
Well, if he is, this election goes to O by default.
He disparages O in his tagline, parries silly comments by you and your ilk with ease, and remains somewhat above the frantic screaming you seem to prefer.
A dichotomy for sure, but one you are not close to solving.
I think it’s going to be the new media (conservative internet sites like FR, RW talk radio, i.e. Savage, Rick Roberts etc.) that will eventually bring this story to the national stage. What’s going to happen if Obama is elected and than it’s proven that he is not a natural born US citizen? We’ll have a major Constitutional crisis.
John McCain had to provide his. If Sarah Palin provided hers perhaps the finger could be pointed to the Dems to do the same. It is just getting too close now to the election. We just have to somehow create enough doubt in the minds of the people who have not yet voted that Obama is not qualified based on citizenship. I don’t know if we will be able to get that across as the MSM certainly are of no help. Greta VanSustern has called out the candidates to provide their birth certificates. When I saw Obama walking up the street in Hawaii he looked more worried and perplexed to me than sad. I guess I am projecting my belief that he scooted down there to find the birth certificate and either didn’t or saw the information on it and didn’t like what he saw. This whole election has just baffled me. I cannot believe we do not require proof of the basic qualifications for President and Vice President. They are so simple to verify. Age and birth. Amazing!
LAck Standing!How can a citizen of the United States lack standing to prevent a wrong being done against the Constitution of the United States.
Is this Jugdge saying we don’t have to Obey the laws as well?
Do you consider Rush Limbaugh to be "respectable"?
Well, better a Constitutional crisis than ignoring the Constitution is my belief. This needs to be straightened up once and for all because we have too many folks moving in and out of our country and this will happen again if we do not establish the need for proof of natural born citizenship. We, the people, need to stand up on this issue and DEMAND that we know. The press are going to poopoo this hoping it will go away and the weaklings on TV and in the media are going to cave to their ill formed ideas of PC. Look at how words are being changed now to be racial when no racial intent was meant. If we allow this man to be elected without proving he is natural born then we have caved, too. My problem is....how does one start a movement to insist that he produce this document? It has to be a grassroots movement because the courts are obviously not going to uphold the Constitution.
Its a real SAD day on FR when people can't even disagree with something without being labeled a TROLL and O supporter. Seems that that is the case now though with Noobs.
What ad hominem attacks really demonstrate is one's lack of intelligence. They resort to it rather than have a logical debate. It's usually a tactic seen demonstrated by those on the left...but I have seen it more and more here lately by "FReepers."
Since you are a NOOB" rep...perhaps some of your old leftist ways are resurfacing. Anyone on FR who calls a person, who has been here since the days of Clinton, a troll really brings down the quality of this site.
There used to be a time we could have logical debates and disagreements. All you newcomers have squelched that with smear...doing the exact same thing you complain about from the left.
Nothing changes the FACT that Obama WON’T show his COLB and that makes it very suspicious, McCain produced his when a lawsuit was filed against him, Obama won’t do the same, why???? Doesn’t matter who files the suit, the American people have the right to know who we are dealing with and if he was even born here.
I meant he needs LEGAL help. He needs a lawyer with better skills than he possesses.
Are you suggesting that our only recourse is to allow ourselves to be destroyed? I will never accept that.
Your idea is a good one, but the newspapers by and large, with the exception of IBD, Wall St. Journal, and a few others, are really and truly not interested in the truth.
No kidding. It is terrible. Without a free press, how can we hang on to our democracy?
I am concerned that, even with full knowledge, there may now be so many “takers” in this society, along with so many liberal/socalist...etc. that there may not be enough conservatives left to turn the tide. To my liberal brother, there is not one thing I can say that would persuade him away from Obama. He could have committed the most egregious crime, and it seems like it would not matter.
Well, we must continue to fight and do what we can. I want to hand the country over to my kids in good shape, but it sure isn’t looking likely.
I actually mean small, local papers. Even tiny, local papers. Many are short on editors and often invite local people or others to present both sides of an idea.
Our paper frequently does this, and there is a free paper her locally that also invites discussion on both sides of an issue.
These are the ones I am talking about.
It is just that it can’t be too complicated or long, and both sides need to have a fair shot. This is way beyond my skill or capability, but there must be some on FR who could do this. It is just pure information on a topic that is hotly contested and important.
You don’t seem to realize who and what we’re dealing with. These are people equivalent to an invading army. They don’t care about challenges for openness. They are avoiding openness quite openly and don’t care what’s right or wrong. They are soldiers in the army of their cause of world domination.
“Troll” comment withdrawn...
They probably won’t do it without a court ordering them to do it.
Lawsuits should be filed in each state against the person responsible for okaying names printed on the ballot.
Well, I do realize that. However, there are still a lot of low key, middle class, working, honest Americans who do not know about this issue.
When I bring it up, 9 people out of 10 don’t even know what I am talking about - and I live in a very conservative community.
Anyway, I would submit to our local paper a well written pro and con argument on this issue.
Surrick was most likely paid big bucks for this decision.
What you have stated is the *argument* — but there is no existing law that states who is responsible for performing the constitutional test. And because of that, the whole “standing” thing is invalid because there is no standing possible for anyone since there is no law mandating that the constitutional test be applied.
The judge could have ruled on standing within a day or two. Instead he held this thing up for months. Why?
Waiting for granny to sick enough I’m sure. They had to get Obama out of the mainland before they could do their dirt work and pay Surrick off.
What I think is that the Commander-in-Chief needs to defend the United States from the invading army.
I think he needs to step forward and say that it is his responsibility to enforce the laws of the United States and that the Constitution is our most basic law, and further, that he will perform the constitutional test himself.
He has the power to do this, doesn’t he? He is the chief enforcement officer of all the laws of the United States.
He is also the Commander-in-Chief, and I would urge him not to forget about his pledge to protect the Constitution:
“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
George W. Bush is the man who can make this thing right — at least until we get the judges, the media, and the people weaned off the Kool-Aid.
Its a sad day on FR when people who question whether Obama is eligible to be President are labeled as “troothers.”
It is time for Senator John McCain, a person with undeniable standing in this race to file his own lawsuit challenging Obama’s eligibility. This should have been done months ago. That is the only way this issue will get enough media attention to make a difference in this election. The MSM would scream bloody murder, but this is a legitimate argument and would resonate with millions if they knew about it. Obamas COLB wouldnt be enough to get him into Little League in some places. If Senator McCain doesn’t have the KAHONEES to bring this up then maybe Governor Sarah Palin could file the suit.
We decided to set up a new website over this weekend called “The Obama Disaster.com” to highlight all of the reasons why the election of Obama as President is a very, very bad idea!! We need everyone’s help to gather all of the articles and information about the effects upon the stock market, the economy, small businesses, lost jobs, more mortgage defaults, home prices, taxes, your 401(k), mandatory health care, more liberal programs, more government, the Supreme Court, marriage, religious freedom, free speech, less freedom, etc.
...a candidates ineligibility under the Natural Born Citizen Clause does not result in an injury in fact to voters.
***Obama got to him.
I think we have an emergency situation that is life-threatening to our nation. And so I wrote a letter to President George W. Bush:
Dear President Bush:
You are the Commander-in-Chief and chief law-enforcement officer of the United Stages, and I would urge you to immediately act according to your pledge to protect the Constitution: I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.
What I think is that you need to defend the United States from those who are trashing the Constitution.
I think you need to step forward and say that it is your responsibility to enforce the laws of the United States, that the Constitution is our most basic law, and further, that you will perform the constitutional test of Barack Obamas candidacy for president yourself.
Mr. President, you have the power to do this. You are the chief enforcement officer of all the laws of the United States. Please do your duty to stop the trashing of our basic law.
You are the man who can make this thing right at least until we get the judges, the media, and the people weaned off the Kool-Aid. Please let me know if I can help you in any way, but I need YOU to help our country its either that or we can kiss it goodbye.
I am a weird one - I can’t stand Berg’s 9-11 truth crap- but I am convinced Obama is hiding the circumstances of his birth, purposely.
I read a post on America’s Right that this case may get better hearings if brought to different states- rather than Berg’s route.
Time is short- but Berg is appealing.
Why does it matter who Berg is? I think that I read that the same thing happened to McCain. McCain just seems to have brought his documents to the court and resolved the issue.
Why is this one going on and on and on and on. Surely Obama could spare a few lawyers to resolve this instead of dragging it on forever.
Husband, Father, TEACHER... = ...TEACHER; ‘Nuff said!!!
This convoluted thinking is exactly what's wrong with having lawyers, who twist and squirm everything, running the country.
In a sane world, where rights are sacred and protected, the judge would have said, since you did not produce the evidence of your qualifications, your votes will not be counted in the commonwealth of Penn.
We are nye on to an oligarchy in a country where powerful people can do and get away with anything, while their minions and sycophants explain to commoners how lucky we are to have such great people lead us.
LOL. God Bless us old freepers who can handle the silliness around here lately.
You signed up in 1999 just waiting for "the one". LOL.
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