Posted on 06/01/2010 12:36:20 PM PDT by rxsid
"GREGORY S. HOLLISTER, et al.
v.
Barry Soetoro, in his capacity as a natural person; de facto President in posse; and as de jure President in posse , also known as Barack Obama, et alMOTION FOR RECUSAL PURSUANT TO 28 U.S.C. § 455
The plaintiffs/appellants jointly move for recusal of the judge below pursuant to and the vacation of his opinions as a consequence of the recognition of his bias and appearance of bias under that statute. They also request of the members of this Court, particularly those who have embraced the bias of the court below, that they consider their obligation to recuse themselves if they present even an appearance of bias under that statute. Details are given below.
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I. THE STATUTE TODAY
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Thus, in the present case Judge Robertson was required to himself identify his evident bias which he exhibited freely in the record and the members of this court who wish to or already have adopted that bias are similarly required to recuse themselves.
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II. THE BIAS IS EVIDENT
The limitations upon the extrajudicial source doctrine are of little significance in the present case, however, because the outrageous bias exhibited in the court below is so overtly derived from extrajudicial sources and, snidely, from the events that occurred in the case itself. This begins at the very outset of the first opinion of the judge below, that of March 5, 2009 (App. 208). He begins the opinion by making it clear that he thinks that the case is absolutely worthless and that he has a clear bias against it. From that point on the reasons that he gives for that opening bias give a clear appearance of bias that history will record, given the very blogosphere outside the record of the proceeding that he then extrajudicially relies upon.
His second paragraph begins with a needlessly snide and less than honest, aspersion cast upon the appellant and plaintiff Hollister. Attached to the Hollister complaint was a copy of Colonel Hollister’s discharge papers showing his honorable discharge from the Air Force after a full career on active duty. Yet rather than acknowledge this fact as thus clearly shown, the lower court feels it has to say that “The plaintiffsays that he is a retired Air Force colonel who continues to owe fealty to his Commander-in-Chief…”
(emphasis added) Clearly the plaintiff Hollister is a retired Air Force Colonel. He does not just say that he is. This gratuitous aspersion and insult starts the internal evidence of bias and certainly an appearance of bias at the very outset. The lower court judge then further continues this needless and insulting bias by the parenthetical phrase: “(because hemight possibly be recalled to duty.)” Surely a judge who himself went through college on an ROTC scholarship and did his time in the Navy is charged with knowing that the Individual Ready Reserve is an important element of our reserve forces, particularly for those with specialized skills like Colonel Hollister.
The facts of the Hollister complaint, if taken as true as is required when dismissing under Rule 12(b)(6), amply allege that the defendant/appellee Soetoro a/k/a Obama is not a natural born citizen as that term is set out in Art. II, Sec. 1, Cl. 5 of the Constitution. Despite that, the lower court judge states, again snidely, that the situation is that the appellee/defendant Soetoro has not proved his eligibility to Colonel Hollister’s “satisfaction.” We call the Court’s attention to our recently filed Rule 28(j) letter. The fact is that by the appellee/defendant’s own public statements he is not qualified under the Constitution, and he knows it.
Next, at App. 208-209 the lower court judge then engages in what has become and will remain his most infamous indulgence in bias and the appearance of bias from an extrajudicial source. We refer to his statement, which has traveled far and wide and repeatedly on the Internet, that:
The issue of the President’s citizenship was raised, vetted, blogged, texted, twittered, and otherwise massaged by America’s vigilant citizenry during Mr. Obama’s two-year- campaign for the presidency, but this plaintiff wants it resolved by a court.To paraphrase economist Dr. Walter E. Williams: It would not matter if a majority of the citizens wanted the Constitution ignored and violated, it would still be wrong and against the Rule of Law in this country to allow it to be violated. It would be difficult to find a more egregious example of bias with an extrajudicial source than this statement....
Then, in completing his opinion of March 5, 2009, the lower court judge further exhibited the bias that was so evident by seeking to assess Rule 11 sanctions in violation of the Rule in a manner that ignored the Rule’s entire focus. He sought to assess the undersigned with the entire cost, including counsel fees,of the appellee/defendant Soetoro’s defense in this litigation. He did this despite the fact that when a court, as opposed to a party, initiates a sanction such assessment is not authorized by the Rule. And he made no inquiry whatsoever into what pre-filing inquiry had been made before suit was filed. Under Rule 11, if followed properly, the entire focus is on pre-filing inquiry. By not making any such inquiry, the lower court exhibited unsupported bias.
The undersigned then submitted a Show of Cause and a supplement to that Show of Cause. As a result the court below issued a second opinion on March 24, 2009. App. 243 ff. Before discussing that opinion, however, we want to point out a feature of the first opinion which is pertinent. At App. 210 the lower court found that it had jurisdiction of the case because of the interpleader statute but then stated that it was dismissing the case for failure to state a claim which is a dismissal pursuant to Fed.R.Civ. Proc. 12(b)(6).
The Supreme Court has made it clear repeatedly that when a Rule 12(b)(6) failure to state a claim is at issue all of the factual allegations in the complaint must be taken as true. See,e.g.,Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). This is the first principle of Rule 12(b)(6). Equally important here is second principle that the Supreme Court has set out:“courts must consider the complaint in its entirety, as well as other sources ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss,…”Tellabs, Inc. v. Major Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 2509, 168 L.Ed.2d 179 (2007).
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At App. 256 the lower court, in its second opinion, said it had not said anything and would not say anything about the actual constitutional phrase. What it then said was quite illogical: “I have no business addressing the merits, because, having found that Mr. Hemenway’s interpleader suit failed to state a claim upon which relief could be granted, and I have dismissed it.” There is no way to analyze whether a sufficient claim has been made without considering the merits of the claim. The contention to the contrary is an absurdity and illustrates that the lower court was not operating on a study of the facts at issue and an analysis of the law as applied to those facts. By the time of its second opinion it seems to have been operating solely on its evident political bias.
Further evidence of this bias in the second opinion of the court below is found at App. 254 where it says:“Many people, perhaps as many as a couple of dozen, feel deeply about this issue.” Again, we would point out that the importance of a constitutional violation is not a function of popular sentiment. Further, this assertion is factually inaccurate. Major surveys have been conducted for the political left and right by reputable analyst firms and they indicate that the number concerned about this issue has been steadily growing and that something like half of the population feels that there is something suspicious about the appellee/defendant Soetoro’s hiding of the documents of his birth and education and every other aspect of his life.
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We now see that with the rise of the blogosphere and the springing up of countless independent websites not part of the centralized command media that arose in the initial days of nationalized broadcasting in the 1930’s and 1940’s and 1950’s. We see today meetings in which ordinary citizens know more about what is in the details of a bill than their Member of Congress or Senator does. The dissemination is instantaneous and the rise in independent decision-making about officeholders and their doings is overwhelming. One result is a never before seen, at least since the founding days themselves, interest in the Constitution and adherence to it as a basic principle of our Rule of Law.
This inevitably has an effect upon the insistence upon an objective appearance of an absence of bias which 28 U.S.C. 455 in its present form commands. In this case the court below has become widely known in the country and will go down in history as the “blogging and twittering” judge, one for whom a sort of affirmative action progressivism is more important than protecting and preserving the Constitution sufficiently to actually analyze the issues it presents. However, in the present structure of communications,Orwellian “memory holes” become very difficult to operate despite earnest efforts.
The defendant Soetoro has in a never before seen maneuver, used a State of the Union address to try and openly intimidate the Supreme Court into not carefully adhering to the Constitution, like a Cook County politico with the courts there. He has announced at a prayer breakfast that it is not “allowed” to know about his birth documentation. Mr. Justice Thomas has observed that the issues here are being avoided. So the message has been received. Politically orchestrated “unthinkability” of course, is no substitute for the application of the Rule of Law. It presents at the very least the spectacle of decisions being made on the basis of political bias. History will not be escaped. It will reveal whether this audacious and knowing attempt to get around the Constitution and one of its most specific requirements will succeed through a tactic of seeking to intimidate and control the courts to prevent them from applying a constitutional rule of law or whether its judges will take their oath to preserve and protect the Constitution as seriously as those who have sworn the oath to preserve and protect in the military such as Colonel Hollister do. In a very real sense it is our system of a constitutional rule of law that is on trial here, and that is under attack. Those who will not defend and protect as they have sworn to do should recuse themselves. Their decision, in adopting the opinion below, should they chose to do so, without analyzing the actual issues, is a political one echoing the bias we have set out. As such it presents at least the appearance that violates 28 U.S.C. § 455 and they are, therefore, bound to recuse themselves.
Respectfully submitted,
/s/
JOHN D. HEMENWAY
Counsel for Appellants"
Entire motion can be found here:
http://www.scribd.com/doc/32337931/Hollister-v-Soetoro-Joint-Motion
If you were to read the brief you might notice that it asks that the appellate judges on the panel whose opinion you posted recuse themselves, having ‘embraced’ the lower court’s bias.
It’s the SECOND SENTENCE .. not too deep into the brief:
“They also request of the members of this Court, particularly those who have embraced the bias of the court below, that they consider their obligation to recuse themselves if they present even an appearance of bias under that statute.”
So how much DID you read or comprehend? You caught them out on the improper use of a single word? tsk tsk.
I agree that any judge ‘texting and twittering’ is absurd for a judge to mention in an opinion. However, he refers to the ‘vigilant’ citizenry having conducted a proper vetting of then-candidate Obama.
I must confess, I didn’t watch all the debates or pressers thru the primaries. Was then-candidate Obama ever questioned in a debate by other candidates or the media panels or moderators, or in any press conference, about his natural born citizen status? And, if so, how did he respond? Is there any evidence the question was ever raised in any venue or circumstance that might be considered semi-official, rather than the “texting/twittering” of an allegedly vigilant citizenry?
It’s hard to imagine that the other candidates (or their staffs) or the media did not read his autobiographical book without some red flags being raised due to his father’s citizenship. I really would like to know if that extent of vetting was ever done.
It was because of the questioning about his natural born citizen status from his primary opponents and general election opponents, namely the Hillary Clinton campaign and Alan Keyes that Obama launched his “Fight the Smears” website and posted a copy of his Hawaii Certification of Live Birth on that web site.
Here’s a reminder:
http://fightthesmears.com/articles/5/birthcertificate
It was a Hillary Clinton campaign operative who uncoverd the Honolulu Public Library microfiche files of Obama’s birth announcements in both major Honolulu newspapers.
Many of the lawsuits challenging Obama’s eligibility were filed before the 2008 general election but none of them went anywhere. Several states’ Secretaries of State were sued for not properly vetting Obama’s (and even McCain’s) eligibility but none succeeded.
As you correctly point out, Obama wrote about his dual citizenship and his father’s citizenship status in a book that became a number one best seller that was written in 1995, 13 years before he ran for president.
“When was the last time that you heard of ANY case in entire history of American jurisprudence in which a judgement was rendered, an appeal was filed, an appellate level judgement was rendered and THEN the original trial court AND the appellate court recused themselves AFTER THE FACT?”
Your question seems to assume that this case is not still pending in the court of appeals. As long as it is under reconsideration, it is still pending in the Court of Appeals.
Section 455 REQUIRES a judge him/herself to recognize even the appearance of bias to the objective observer. Robertson clearly derived his bias from extrajudicial sources, and he did it in spades. The panel that upheld Robertson aimply adopted his bias without any analysis; the SCOTUS opinion they cited does not uphold them. Therefore, as Col. Hollister claims, they ‘embraced’ his bias.
The very well known Microsoft case in this very court made it very clear that under 28 U.S.C. Sec 455, as opposed to 28 USC Sec 144, a party may raise the issue of bias on the part of the District Court judge as long as the case is pending in the Court of Appeals.
Your question seems to assume that this case is not still pending in the court of appeals. As long as it is under reconsideration, it is still pending in the Court of Appeals.
Section 455 REQUIRES a judge him/herself to recognize even the appearance of bias to the objective observer. Robertson clearly derived his bias from extrajudicial sources, and he did it in spades. The panel that upheld Robertson aimply adopted his bias without any analysis; the SCOTUS opinion they cited does not uphold them. Therefore, as Col. Hollister claims, they ‘embraced’ his bias.
One more time for the slow reading group: “These consolidated appeals were considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties.
See Fed. R. App. P. 34(a)(2); D.C. Cir. Rule 34(j).
It is ORDERED AND ADJUDGED that the district court’s orders filed March 5, 2009, and March 24, 2009, be AFFIRMED. The district court CORRECTLY DISMISSED the complaint
under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted. Hollister v. Soetoro, 601 F. Supp. 2d 179 (D.D.C. 2009).
Moreover, the district court DID NOT ABUSE ITS DISCRETION in determining that counsel had VIOLATED Federal Rule of Civil Procedure 11(b)(2) and in IMPOSING A REPRIMAND as the
SANCTION for his part in preparing, filing, and prosecuting a legally FRIVOLOUS complaint.
Hollister v. Soetoro, 258 F.R.D. 1 (D.D.C. 2009). Appellants have provided NO REASONABLE BASIS FOR QUESTIONING THE IMPARTIALITY OF THE DISTRICT COURT JUDGE.
(Capitalizations for emphasis, mine)
See Liteky v. United States, 510 U.S. 540 (1994).
http://www.scribd.com/doc/28745277/HOLLISTER-v-SOETORO-PER-CURIAM-JUDGMENT-filed-Lower-Court-Affirmed-Transport-Room
And what part of “Petition for Reconsideration and Suggestion for a Hearing En Banc” do YOU not understand?
This case is before the panel for reconsideration in light of their unsupported opinion that is contrary to Supreme Court precedent in many ways, AND is also before the entire panel of the court for consideration by the full court for the first time.
Such a Petiton and Suggestion is the normal course and is, as a practical matter, required before seeking Supreme Court review.
And what part of “Petition for Reconsideration and Suggestion for a Hearing En Banc” do YOU not understand?
This case is before the panel for reconsideration in light of their unsupported opinion that is contrary to Supreme Court precedent in many ways, AND is also before the entire panel of the court for consideration by the full court for the first time.
Such a Petiton and Suggestion is the normal course and is, as a practical matter, required before seeking Supreme Court review.
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