Skip to comments.3rd Circuit Affirms Kerchner Dismissal & Orders Appellants to Show Cause (Possible Sanctions)
Posted on 07/02/2010 1:23:04 PM PDT by BuckeyeTexan
SLOVITER, Circuit Judge.
Charles F. Kerchner, Jr., Lowell T. Patterson, Darrell J. LeNormand, and Donald H. Nelsen, Jr. (hereafter "Appellants") filed suit in the United States District Court for the District of New Jersey, alleging that President Barack Obama is ineligible to hold his Office as President. They rely on Article II, Section 1, Clause 4 of the United States Constitution which provides that "No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President. ..." U.S. Const., art. II, § 1, cl. 4. Appellants challenge the District Courts order dismissing their complaint. We will affirm the order of dismissal and direct Appellants counsel to show cause why just damages and costs should not be imposed on him for having filed a frivolous appeal.
Turning to the argument of Kerchner and Nelsen that their oaths to protect and defend the Constitution increase[ ] their adversarial posture, Appellants Br. at 56, no court has found that a plaintiff established injury in fact simply because s/he had once taken such an oath. Carving out an exception on that basis would still leave an impermissibly large class with unique ability to sue in federal court. See, e.g., 10 U.S.C. § 502(a) (requiring all military personnel to take an oath swear[ing] . . . [to] support and defend the Constitution of the United States.). Kerchners assertion of standing on the ground that he, who has been retired from the Naval Reserves since 1995, may be required to serve the Commander in Chief as a combatant in the case of an extreme national emergency, Kerchner, 669 F.Supp.2d at 483 (quotation and citation omitted), is to no avail because it is conjectural.
(Excerpt) Read more at scribd.com ...
They turn down your case because Obama is “The Won”, then they want you to show cause why you brought the case.
MAYBE IF THEY LISTENED TO THE CASE THEY WOULD SEE THE CAUSE.
Sooner or later zero/$$swipe will be GONE!
Sooner or later zero/$$swipe will be GONE!
Turning to the argument of Kerchner and Nelsen that their oaths to protect and defend the Constitution increase[ ] their adversarial posture, Appellants Br. at 56, no court has found that a plaintiff established injury in fact simply because s/he had once taken such an oath. Carving out an exception on that basis would still leave an impermissibly large class with unique ability to sue in federal court. See, e.g., 10 U.S.C. § 502(a) (requiring all military personnel to take an oath swear[ing] . . . [to] support and defend the Constitution of the United States.). Kerchners assertion of standing on the ground that he, who has been retired from the Naval Reserves since 1995, may be required to serve the Commander in Chief as a combatant in the case of an extreme national emergency, Kerchner, 669 F.Supp.2d at 483 (quotation and citation omitted), is to no avail because it is conjectural. See Lujan, 504 U.S. at 560.
In the meantime...ELECT CONSERVATIVES!!!
That's a knee-jerk response. You should read the full decision. It is very clear that the 3rd Circuit Panel did "listen." They read and considered the briefs, cited each of the appellants' claims in their response, and took care to respond to each claim (citing precedents for their decisions) and even acknowledged the appellants' frustration with the whole process.
Its only ok to sue Palin. What about the part of the lawsuit concerning the lack of vetting ?
“...damages and costs for pursuing a frivolous appeal.”
But....World Nut Daily said “Appeals panel considers whether Obama is even American”
Admittedly, OldDeckHand wrote:
” The 3rd Circuit ISN’T going to “consider whether Obama is even American”. What they are considering is if the trial court erred when it granted defendant’s MTD, based on the lack of standing by plaintiffs. That’s it. If the 3rd Circuit three-judge panel concludes that it (the lower court) did err in granting the MTD, then they’ll remand to the district court. Since they’ve not scheduled oral arguments in the case, it’s not encouraging for appellants.”
But still...they don’t seem to have considered the case on its merits...or even that it HAD merit. Of course, the ‘standing problem’ was described here:
“We reaffirm Levitt in holding that standing to sue may not be predicated upon an interest of the kind alleged here which is held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share. Concrete injury, whether actual or threatened, is that indispensable element of a dispute which serves in part to cast it in a form traditionally capable of judicial resolution.”
Could it be that ODH was right, and the superb WND was...wrong?
They read and considered the briefs, cited each of the appellants’ claims in their response, and took care to respond to each claim (citing precedents for their decisions) and even acknowledged the appellants’ frustration with the whole process.
WND can’t be wrong because Obama is bad.
This constitutes heresy around here. lol
It would be interesting in this case for a judge to explain exactly ‘Who’ has standing.
Then too, I wonder how many laws are written wherein no one has standing to sue.
Maybe it is just the Constitution in which no one can have standing!
The judge must not have been to the supermarket lately:
I also find it perplexing that nation of Mexico has standing to sue in US Courts against the Arizona statute.
But our own citizens have no standing in the court system.
Wing Nut Daily wrong? Say it ain't so! And I've always held in such high regard their "We found it on a blog somewhere and omitted the parts that didn't fit the story" style of investigative journalism.
I remember when that was an insult. :)
Mexico does not have standing to sue. They filed a "friend of the court" brief, which is something very different.
The rule that the Supreme Court has followed since at least the 1920s is, essentially, that if everyone has standing, no one has standing-- if the allegedly-illegal act affects everyone in the whole country, it is up to the elected branches of government to fix it. That is why no court ever ruled on any of the myriad challenges to the constitutionality of the Vietnam War, for example.
Same difference to me in this instance. They have nothing at stake in an Arizona statute vs the Constitution of the USA. Nothing at all. There is no personal loss or personal liability to be lost by them.
Mexico has no standing or should have no standing in this fight, their laws have no standing. Foreign nations should never be allowed to tell us what out Constitution and statutes mean.
They are no friend of the court either. They want to impose their will on a sovereign state, Arizona. They have a parasitic relationship with the USA.
The problem is ... that no branch of government is willing to correct this wrong. Therefore three branches of government are ‘do nothings’!
The panel addressed the issue of Congressional “vetting.”
Congress passed the “Rules Enabling Act” giving the Federal Courts power to establish their rules of procedure, which lead to the Federal Rules of Civil Procedure, Federal Rules of Criminal Procedure, and Federal Rules of Evidence. The Judicial Conference of the U.S. is the policymaking body that presides over changes and additions to the Rules. Congress either ratifies the Rules by inaction or writes specific legislation to enact the Rules they want. (That’s overly simplified for the sake of discussion.)
The Rules exist for good reason and provide a “universal standard” for the Courts to apply in handling cases. However, an important aspect of the Rules Enabling Act is that the procedural rules should/must not “abridge, enlarge, or modify the substantive rights of any litigant.” With so many eligibility cases being filed and subsequently dismissed for lack of standing, it is my humble opinion that the Rules have obstructed a basic right of “The People” to have a grievance addressed and resolved in a forum of last resort. When our elected representation fails or refuses to resolve a political question of such a serious and far-reaching nature, there should be a forum of last resort (i.e. the Courts) for “The People” to be heard. Dismissal based upon standing or lack of jurisdiction is not equivalent to having been heard.
The universal answer from the Legislative and Judicial branches on this issue seems to be “next time, enact proper laws to prevent this conundrum” or “vote them out for ignoring you.” While those answers are appropriate and correct, they leave us with no resolution. That, inandofitself, seems contrary to the basic premise of our legal system.
What can be done to change that? We need to petition the Judicial Conference of the United States to examine the events that took place and enact Rules to establish a forum of last resort for such a serious political question.
I know that FR legal scholars will argue that the Courts do not and should not address issues that fall under the political question doctrine because those issues rightly fall under the authority of elected officials. But when elected officials refuse to act and voting them out after the damage has been done is our only recourse, that’s not a proper remedy.
It would be interesting in this case for a judge to explain exactly Who has standing. Then too, I wonder how many laws are written wherein no one has standing to sue. Maybe it is just the Constitution in which no one can have standing!
The rule that the Supreme Court has followed since at least the 1920s is, essentially, that if everyone has standing, no one has standing— if the allegedly-illegal act affects everyone in the whole country, it is up to the elected branches of government to fix it. That is why no court ever ruled on any of the myriad challenges to the constitutionality of the Vietnam War, for example.
Let me very clear. This case was properly dismissed.
Let me be very clear. This case was properly dismissed.
Mexico doesn’t have standing.
Interested in your thoughts on post #23. Please be gentle ...
Exactly. WND is right up there with Orly Taitz, IMHO.
My feeling is Mexico should not even be allowed in the courtroom on this or any other case.
With the exception of a Mexican national being sentenced for crimes committed.
The dismissals in these cases are not based on the Federal Rules, so amending those Rules will not help. The standing doctrine is older than the Rules Enabling Act-- it is based on the courts' intepretation of Article III of the Constitution, which limits the jurisdiction of federal courts to "Cases and Controversies," which has been interpreted to mean actual, concrete disputes among parties with standing.
The WND article was completely accurate, if you read the body of the article. (who bothers to do that?)
The title, as is usual in all news stories, was designed to hook the reader into reading the article. This is old hat in the news business, but the trolls here, the same ones that hate WND for its vocal Christian philosophy, will try to make an issue whereby they can attack the only site on the www that presents all the relevant news, not just the comfey stuff.
No surprise, huh?
Now I’m thoroughly confused. The dismissal by the lower court on the basis of standing was affirmed. The 3rd Circuit panel said, “we agree.”
Is not “standing” a component of the FRCP?
Or was it the fact that the title did hook you into reading?
FR rules do require that original titles be used, so the postor did no wrong. - Take a tranquilizer or two.
A motion to dismiss for lack of standing is made under Rule 12(b)(1) of the Federal Rules of Civil Procedure-- dismissal for lack of subject-matter jurisdiction--but the word "standing" never appears in the Federal Rules. The doctrine is based on the courts' interpretation of Article III of the Constitution.
While the 3rd Circuit Panel references Article III requirements, they also agreed with the lower court that there is a requirement for the injury to be “concrete and particularized” and referenced the fact that “the Court has refrained from adjudicating ‘abstract questions of wide public significance’ which amount to ‘generalized grievances,’ pervasively shared and most appropriately addressed in the representative branches.”
The phrases “concrete and particularized” and “most appropriately addressed” seem to be made in deference to the Court’s Rules. What am I missing? (Obviously IANAL.)
Fake, but accurate? If you're saying the title is completely erroneous, but the rest of it is pretty good, I'm not sure you're helping your case.
"This is old hat in the news business, but the trolls here, the same ones that hate WND for its vocal Christian philosophy"
I couldn't CARE LESS, that it has a "Christian philosophy", although I'm not entirely sure what that means, nor do I understand how a "Christian philosophy" supports the fabrication of salacious and wholly inaccurate headlines just to "catch someone's eye".
I don't like WND because they always color their stories in the most alarmist and anti-intellectual manner possible. What I look for in a "news" organization is factual accuracy, nothing more and nothing less. If I want a sermon, I'll go to church, but when I want "news", I just want the facts, all the facts and nothing but the facts.
Here’s what I’m trying to understand. This statement is from a 5th Circuit decision in Hunter v Obama et al Mary Lou Robinson 01/16/2009.
“Plaintiff’s failure to show standing leaves this Court without jurisdiction to consider this case and the case must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1).”
Isn’t the Court’s interpretation of Article III requirements defined within the FRCP?
Why wouldn’t changing FRCP 12(b)(1) be a method to provide a “forum of last resort” for The People when elected officials refuse to resolve a political question because it is not in their political interest to do so?
(I know, Congress would never ratify such a Rule ...)
Rule 12(b)(1) says that a court must dismiss a case if there is no subject-matter jurisdiction, but the rule itself doesn't say whether a court has jurisdiction or not. Subject-matter jurisdiction has two components-- first, the case must be within the "judicial power" of the United States as defined by Article III, section 2 of the Constitution; secondly, there must also be a statute passed by Congress giving some specific court jurisdiction. If there is no "judicial power" under Article III, Congress cannot fix the problem. In the case of the standing doctrine, the courts are interpreting Article III, so there is no ready congressional fix.
WOW ! What a great idea to impose possible sanctions for those foolish enough to actually BELIEVE in the Constitution ! Correct me if I am wrong, but isn’t the best way for a defendant to settle a lawsuit is to provide something called ‘evidence’ ?
GOD FORBID any of these sinister judges actually request our mega-million dollar funded Pres__dent to spend $12.00 and produce a real birth ceritficate !
All of those requirements were derived by the Supreme Court, in a series of cases starting back in the 1920s, as an attempt to define the words "Cases and Contoversies" in Article III. In other words, if something is an "abstract question" or a "generalized grievance" then, according to the Supreme Court, it is not a "case or controversy."
WND is done in “newspaper” style, which is the most common style. That is not unusual, it is as usual as can be. Headlines everywhere tend to say something different than the message of the article, sometimes even opposite, as with the NYT, SF Comicle, etc, and it works. If the story is told succintly in the headline, who is going to read on? And when the survival of the medium depends on readership, as is true on the web, what else would you expect?
Maybe if they had a case the court would listen to it?
I read this to mean:
The Court (the District Court) acknowledges Plaintiffs’ frustration with what they perceive as Congress’ inaction in this area (clarifying Obama’s constitutional NBC status). We (3rd Circuit Appeals court) agree.
In other words, the 3rd Circuit Appeals Court agrees with the District Court's frustration with Congress’ inaction in failing to clarify Obama’s constitutional NBC status.
Thank you for a ray of light in the darkness. There were a couple of others I admit; mostly 0thugga sycophants though.
May the remedy come through Congress, then!
There you go. The courts in a roundabout way is telling you they don’t have the balls to judge whether if Obama is a natural born citizen. Hey they say, we are not going to stick our necks out if Congress won’t. They are setting aside their judicial review of Congress in this case. The word that describes the courts here is cowardice.
I believe that the 3rd Circuit was choking in frustration over having to cite again their own ruling on Berg's appeal:
“This court affirmed the order dismissing the suit, agreeing that ‘a candidates ineligibility under the Natural Born Citizen Clause does not result in an injury in fact to voters.’”
Yup, having a constitutionally ineligible president sure isn't “an injury in fact to voters.” /s
I think my brain just exploded! (again)
Sickening, but it shows the disease of casebook law for what it truly is.
The over-reliance on case law and stare decisis based on case book law rather than horn book law is an example of a meta social degeneracy that places long and detailed process and expertism over rationality and common sense.
I use common sense in its natural law foundation we hold these truths to be self-evident. Common sense is no gimme, no easy thing to develop, never to be taken for granted. It takes educated, experienced, serious adults to apply. Sober, mature, educated adults of good standing in the community. It takes maturity, a conservative respect for the wise of the current and prior generations, and the dedication to the truth gained by practical life as an adult to gain the reasoned judgment needed to apply common sense.
Lincoln didnt become a lawyer based on case law he became educated in the law enough to practice law by studies of hornbook law. In my opinion Lincoln had a natural gift that inclined him towards developing his common sense. Which he did. With that matured common sense and studies of hornbook law, Lincoln became a very good lawyer.
While experts and expertism work for a time, some few generations even, it always fails for it comes to be delusional in the most ornate sense of madnesses known to history.