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 ...
I disagree. The words “The Court acknowledges Plaintiffs frustration” leap off the page as atypical and borderline prejudicial.
The Court is supposed to be neutral and apply the facts to the law without any regard whatsoever to the feelings (frustration) of any party. By even mentioning the feelings (frustration) of the Plaintiffs, the Court, in my view, is signaling an empathy of its own as a tiny but notable offset to the adverse ruling.
Didn't we have a big debate during the Sotomayor hearings over whether “empathy” was a proper consideration in judging? Obama said it was, but most conservative legal scholars said “NO.”
Now you are contending that when the Court acknowledges frustration, an act that can only be describes as an expression of empathy for the feelings of the Plaintiff, you contend that this is “typical and studiously neutral.”
I say no. I would not expect the Court address the feelings (frustration) of any party.
Tired of conservatives will never admit to any truth that denotes potential damage to 0thugga.
Yes, the judiciary is the third branch of our government. Google “judicial immunity.”
So to acknowledge that homosexuals perceive they’re being discriminated against and believe they have a right to marry is to express empathy for same-sex marriage and validate their perceived discrimination?
That’s only because you have no idea what you’re talking about. But if it comforts you, by all means believe as you please.
(1) His overbearing handling of the health care issue annoyed a number of people who will vote in November.
(2) The situation in Afghanistan has the potential to fray further, although I hope for the sake of our soldiers it won't.
(3) He has antagonized parts of his base, as every President does when they inevitably start compromising.
(4) His preference for government solutions is still antithetical to a significant part of the country.
(5) He will be poorly positioned to defend his ideological preferences, as he should be, if the economy doesn't turn around by 2010.
That's just off the top of my head. What you folks refuse to grasp is that we are not defending Obama. On the birther subject, we are defending basic rationality and simple sanity.
We may see it come about, but not quickly.
Hundreds of Chrysler dealerships were dealt a death blow by the Obama administration. These people were definitely harmed by Obama.
THEY HAVE STANDING. See the following for further details.
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Re: Chrysler Dealers and Quo Warranto
Posted in Uncategorized on March 11, 2010 by naturalborncitizen
Just a quick update on the Quo Warranto aspect of our representing the Chrysler dealers. Both Steve Pidgeon and I agree that our clients should exhaust all possible remedies pertaining to the Chrysler bankruptcy before seeking Ex Relator status in the DC District Court. Filing a petition now in the DC District Court would be premature as weve recently filed a Notice of Appeal with the Southern District of New York. But we do represent 82 former Chrysler dealers led by James Anderer who support a future quo warranto action.
Furthermore, its important to note that the bankruptcy action does not allege the Government sought dealer rejections. Our case relies on the record of the entire bankruptcy proceeding which unequivocally exhibits that while dealer restructuring was a future goal of New Chrysler all key witnesses, including Old Chryslers CEO and Fiat executive Alfredo Altavilla, testified that neither the US Government nor Fiat ever requested dealer restructuring as a condition precedent to the deal closing. The record is crystal clear on that issue. Judge Gonzalez changed Alfredos answer in his Rejection Opinion by an act of judicial ventriloquism. [Judge Gonzalez committed fraud. He was rewarded by Obama with a promotion.]
Therefore, the record exhibits that the Government was not directly involved in the decision to reject the Chrysler dealers. Whereas, the quo warranto will be based on a but for argument pertaining to unconstitutional use of TARP funds. But for the improper use of TARP funds, the Government would not have gifted Chrysler to Fiat and our clients would not have had their businesses ripped from them.
Its an important legal distinction between the underlying bankruptcy case and the pending quo warranto.
* * * * * * * * * *
To answer your other question, concerning why lawyers don’t go directly to the District Court, it may be due to ignorance of the law.
Turning to the courts may seem like the correct path, but Constitutionaly it is not. Congress has removed usurpers from office before; twice from the Senate during the 19th century.
Thanks again for your response. I googled judicial immunity and read that Judges were gods, I should have known that! The question would be, are you suiing a Judge privately.
I also read the next web page in the search results, Judicial immunity is not absolute. And I read this statement,
“CASE NOTE: “Federal tort law: judges cannot invoke judicial immunity for acts that violate litigants civil rights; Robert Craig Waters. Tort & Insurance Law Journal, Spr. 1986 21 n3, p509-516”
An argument can be made that avoiding the eligibility issue is a violation of one’s civil rights.
I was asking about suiing the Supreme Court as a body, not suiing the Justices personally.
Thanks for bringing that to my attention.
What do you think about the standing issue I raised? The remedy for the injured soldier would be money for his injury he got from the war. It would be the burden of the President to prove that he was eligible to be President when he gave the order for the soldier to go to war.
No matter what anyone says, you are guilty until proven innocent in our court system. When an allegation is made by the prosecution, it is up to the defense attorney to counter it with something very convincing.
Regarding the Justice Thomas thing. There is apparently a running joke between Serrano and the Court regarding Serrano’s eligibility as a Puerto Rican to serve as POTUS ...
On March 13, 2008, the House Appropriations Committee had that year’s hearing on the Supreme Court’s fiscal year budget. Serrano was committee chairman, Thomas was a witness. Here is the transcript.
The relevant excerpts:
SERRANO: Although I must say on a personal level that for about 10 years I’ve been trying to get out of you an unofficial comment on whether or not someone born in Puerto Rico can serve as president. And from what I understand from a California case, you may have to decide on Mr. McCain.
So if you do, I’ll try to get myself included in the same...
It’s nice to have you here.
SERRANO: I’d like to remind you that your full testimony will be inserted into the record, so we would appreciate, to allow for questions during these difficult voting times, if you could keep your remarks down to five minutes.
However, I’m not about to gavel a member of the Supreme Court, especially before the ruling on my presidency...
KENNEDY: Thank you, Mr. Chairman, Mr. Vice Chairman. Justice Thomas joins me in thanking you for the opportunity to appear before the committee, as is our custom and our pleasure....
Oh, incidentally, I can give you a ruling right now. You’re eligible to come to the Supreme Court.
SERRANO: I’m eligible to serve on the Supreme Court? Is that what you just said?
KENNEDY: There’s no problem with that, so if your presidential ambitions subside, you can always (OFF-MIKE)
SERRANO: But president is kind of cool.
And the hearing ended with:
SERRANO: And once again, on behalf of the committee and all members of the Appropriations Committee and the Congress, we thank you for your service to our country. We thank you for your work.
And all I can personally say is if you have to rule on McCain, make sure you include me.
Only Plaintiffs who have had provable and tangible damages as a direct result of Obama’s actions would have standing.
Like the car dealers, for instance.
Or, maybe even the people who have lost jobs because of him.
I'd have to disagree with that. Voting is a privilege. We have a choice for whom we vote.
Regarding the injured soldier - his orders are presumed lawful. Obama's eligibility is irrelevant in that case. (e.g. LTC Terry Lakin court martial)
In our legal system, the burden of proof is always on the plaintiff/prosecution. A defendant isn't required to defend himself. (It's in his best interest to do so but not required.) IANAL, but I don't think a defendant even has to show up in Court to answer the accusations. I'm sure one of our FR attorneys will correct me on that if I'm wrong.
Exactly! Injuries that are a direct result of Obama’s actions.
You old troll! /s
Let me clarify one thing: defendants must show up to answer criminal charges. Otherwise they’ll be arrested.
... and distinctly unique.
“An argument can be made that (the Supreme Court) avoiding the eligibility issue is a violation of ones civil rights.”
“I’d have to disagree with that. Voting is a privilege. We have a choice for whom we vote.”
I don’t follow your logic. I did not choose to vote for the Supreme Court Justices.
On the standing issue. I can only see a fine line between the car dealers, those who lost jobs and an injured soldier. In the first example it was Obama’s policy and in the second example a soldier is injured as a direct result of Obama sending him to war.
The LTC Lakins case appears to be different because he disobeyed orders which caused a court martial. In that case the military does not have to address why he disobeyed orders, just that he did. (Remember the Mike News case with the blue beret thing.)
In the second case, a soldier obeys the order, goes to war and then is injured. He finds out later that there is evidence that President is not eligible to be President. He presents evidence showing that the President is not eligible and that a fraud has been committed. He has a clear case of an injury (literally) and avoids the court martial routine and protects his career. Maybe he is retired from the military at that point. The government cannot make the argument that the order was lawful without addressing the eligibility issue. The government has to show that no fraud had been committed. The soldier did not disobey orders. The military can’t do anything to him. He was injured because he followed Obama’s orders, that he now believes were unlawful due to a fraud that was committed.
Humor me and lets play this hypothetical out.
This standing issue is driving me nuts.
If President Obama or the Congress for that matter passed a law that homes were a threat to the environment and ordered all homes to be burned down or condemed,
we couldn’t do anything because we all suffered the same injury?
To what extent does standing go? Didn’t ALL Chicago residents suffer the same injury when they banned guns there? Didn’t the Supreme Court just rule that it was unconstitutional?
If the Supreme Court rules that it is unconstitutional to limit free speech on the internet. How many were injured waiting for their ruling.
I am not getting something here. When is standing used and when is it not used or required?
See my post here. The eligiability issue is very much alive.Maybe we need to call Rush and point out the facts.
The state electoral commission challenges are coming from Hillery Democrats!
Rush has already received calls and e-mails by the thousands upon thousands concerning Obama’s eligibility.
If he can’t defend the **all** of the Constitution NOW when all he faces is a little ridicule from the mainstream media, I **KNOW** that he can not be counted on to defend the Constitution in the face of firing squads, jack boots, and concentration camps.
When faced with real tyranny, Rush will sell his talents to the fascist oligarchy and lick the jack boots crushing our necks.
Your example is basically what I had in mind, that a direct chain of consequences exist between an injury of fact - not a hypothetical one - and the decision made by CIC Obama to send the soldier out in combat.
Where I have a question is whether Obama illegally acquiring the position of President also means that he illegally acquired the position of CIC.
If the charges are brought by the soldier, would the illegal CIC be tried by a military tribunal, and not Congress?
Now, that would be interesting.
But what the hell, I am just glad to meet someone who really underdtands thet we have a fascist in the White House!
Soon America will have to engage in civil disobedience and more to defeat fascism.Like you say, that will separate ping from pong!
Hm?....I wonder if I could copy this, make the necessary changes to account for my state, and submit it to my state’s attorney general.
Would he be obligated to at least acknowledge it?
Hey, Buckeye- Have you ever heard of the US Trade Court? As I understand it, they are an independent fourth leg of the Judiciary.
Keep wondering if there is a way to put forward a case through that court. Does not have to be a direct Obama case, perhaps actions by his administration- failure to act in accordance with the Oil Protection Act of 1990, having an adverse effect on BP ADR shareholders?
Reporting the **facts** that concerning Obama’s eligibility is NOT advising open rebellion.
Rush and Levine have steadfastly refused to report the facts in any meaningful manner. So?...Why on earth would we ever expect them to be patriots if a little possible ridicule from the mainstream media is enough to cause them to shrink and wither?
These two are loudmouthed phonies and cowards. Their actions with regard to Obama’s eligibility is proof of that.
I am not an attorney. They would likely laugh at it...but..hey! Something needs to be done.
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.
Maybe there should be an argument that it is an injury to TAXPAYERS. After all, those are in limited quantity. And should service people be charged with crimes acting on orders from an ineligible pResident, it is reasonable to expect additional costs to defend said troops to be borne by TAXPAYERS.
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!
That is what I have been wondering, who does have “standing” ?
You have not used a completely parallel sentence construction to the Court ruling, but yes, such an acknowledgment would convey empathy.
Consider the following two examples using the Courts sentence construction:
I acknowledge "birther" frustration with what they perceive as Congress inaction in this area...
I DO NOT acknowledge pedophile frustration with what they perceive as Congress inaction in this area...
I acknowledge frustration of folks that I consider to have valid issues but I DO NOT acknowledge frustration of folks that I consider to have invalid or repugnant issues, even it I may take note of frustration by such folks.
I read the same distinction and use of the word “acknowledges” to convey a degree of validity in context in what the Court said:
The Court acknowledges Plaintiffs frustration with what they perceive as Congress inaction in this area...
The Court acknowledges Plaintiffs frustration with what they perceive as Congress inaction in this area...
You're correct. The court is not saying that "We agree" because they agree that Kerchner and Appuzo "are frustrated," and just to say yeah we see you are frustrated, which I think as silly. Of course they are. That's why they filed suit. The court is acknowledging that they are frustrated at the system that has failed to properly vet Obama. The court in a rare moment of candidness, agree that Congress, the lame press, and whoever else has failed at vetting Obama.
Go for it.Just look up Elections Commission on the web for your state.
I agree, in any normal world.....but we are no longer in a normal world. We are in Obama world, and they would say that stating the facts would be open rebellion. Rush and Levin are waitig for others to heat up the issue to volcanic proportions.
Like I said, you’re so far out in left field that you’ve lost all credibility on this one. That’s one of most absurd birther manipulations of the English language that I’ve ever read. (And I’ve read quite a few ...)
The 3rd Circuit didn’t say “we agree” that the plaintiff is frustrated.
They said “We agree with the District Court’s ruling on page 483” that the plaintiffs do not have an “injury in fact” because their grievances are of a general nature and more appropriately addressed by the legislative branch.
This comment doesn’t exactly make sense in the decision. They say it should be addressed by the legislative branch, but that the ‘remedy’ is through ‘their (plaintiffs) votes.’ How does the legislative branch having anything to do with a remedy obtained through voting?? The legislature doesn’t control voters’ votes. It’s complete gobbledy-gook.
They also admit that Kerchner had distinguished himself as a plaintiff from the Berg case, BUT that “Carving out an exception on that basis would still leave an impermissibly large class with unique ability to sue in federal court.”
Who and how is it decided that a class is ‘impermissibly large’ and how is the complaint too ‘general’ when said class has a ‘unique ability to sue in federal court.’ This court completely undermined its own reasoning for dismissing the case.
No, it makes complete sense. Because a president’s ineligibility affects every voter, there is not a unique injury to one voter - military or civilian. (And in this particular case, the injury is mere conjecture because Kerchner isn’t active military.) So the scope of the issue then falls under the political question doctrine. All such issues should be addressed by the legislative branch. Congress could hold hearings to investigate or even remove the president.
The Court acknowledges that the plaintiffs are frustrated by a perception that Congress has failed to act on this issue. The Court takes no position on whether or not Congress failed to act. They essentially tell the plaintiffs that if they are not satisfied with how the legislative branch has handled this matter, then the remedy to their frustration is to vote the b@st@rds out!
(FR attorneys: If I’ve incorrectly described how this issue falls under the political question doctrine, please correct me.)
No where in the Opinion did they state where Obama was born.
We the people have a contract with our Government that Demands a Natural born citizen with no allegiance to any foreign power. That requires a specific birth location to be public information.
The constitution continues to be violated. We have a Kenyan born citizen putting our country into bankruptcy.
The court fails to document the specifics of our presidents origins ... because they can't.
We can point to the very ground where Lincoln was born in a log cabin in Kentucky. We can see the building where Reagan was born. We can see the home in Massachusetts where Kennedy was born.
But, we must not know where Obama was born. This is antithetical to our constitution. Our constitution demands the answer. This court has spit on that constitution.
The Court acknowledges Plaintiffs frustration with what they perceive as Congress inaction in this area...
Unfortunately, you've quoted out of context. The full quote, in context:
Plaintiffsclaims fall squarely into the category of generalized grievances that are most appropriately handled by the legislative branch. The Court acknowledges Plaintiffs frustration with what they perceive as Congress inaction in this area, but their remedy may be found through their vote.
Furthermore, ackowledging frustration is not the same as agreeing with the cause of the frustration. Ask any psychiatrist.
The President know enslaves future generations to debt that can never be repaid, just as a Slave master burden's his slave with chains.
In November, the slave will grab the whip and wrap it around his masters neck.
You're making an excuse and not following what the judges are saying in this decision, who called the plaintiffs ability to sue "unique." You don't need to make excuses for the judges. The rational behind their decision is infirm.
So the scope of the issue then falls under the political question doctrine.
The Supreme Court has accepted cases that fall under the political doctrine question. If it is motivated to take such a case, it can usually justify a reason for doing so. In this case, the court is not dismissing the case over political question doctrine, so much as they trying to claim that the greivance is too general or abstract for a petitioner to claim standing. IIUC, political doctrine questions aren't about standing.
All such issues should be addressed by the legislative branch. Congress could hold hearings to investigate or even remove the president.
If this is so, then the remedy isn't solely based on the plaintiffs votes as the decision states. This is an entirely different remedy altogether and is NOT specified in this decision. But, from a legal standpoint, it doesn't ring true. A remedy for repealing law exists within the legislative branch, yet courts have never had a problem with declaring laws to be invalid. So for this court to suggest it is powerless to provide a remedy is complete and abject nonsense. They certainly have no problem in other situations with telling the legislative branch it has done too much or not enough.
The Court acknowledges that the plaintiffs are frustrated by a perception that Congress has failed to act on this issue. The Court takes no position on whether or not Congress failed to act.
Neither did I. Not sure what your point is.
They essentially tell the plaintiffs that if they are not satisfied with how the legislative branch has handled this matter, then the remedy to their frustration is to vote the b@st@rds out!
This same 'remedy' would exist for overturning unconstitutional laws, yet the courts have no problem stepping in to do it themselves. It's a poor excuse for this court not to do more when it obviously could. Second, this so-called unique, but generalized grievance needs a one-time only action to resolve the practical question ... it's not just a political question as there is a concrete and particularized situation of a person holding office who may or may not be Constitutionally eligible to do so. Either his appointment and election is validated or invalidated he is removed from office. There are no other necessary remedies nor would there be an onslaught of continous, so-called frivolous, but generalized lawsuits against the defendant after the situation is resolved. It doesn't create a situation where every president will be removed from office because someone doesn't like him or her.
In one sense, the court's inaction does have an impact on the political-question doctrine, because the court's inaction serves to validate the usurper's occupation of the White House. Again, the reasoning of the court is poor and more than a little bizarre.
and a whole lot of others.
If President Obama or the Congress for that matter passed a law that homes were a threat to the environment and ordered all homes to be burned down or condemed, we couldnt do anything because we all suffered the same injury?
yes, according to the myth of "standing" that the legal system uses to dismiss cases that they don't want to rule on.
To what extent does standing go? Didnt ALL Chicago residents suffer the same injury when they banned guns there? Didnt the Supreme Court just rule that it was unconstitutional?
Ahhh -- you just punched a hole in the myth of "standing".
Believing in the myth of "standing" is like believing in the myth that Obama is an Article II natural born citizen. It takes FAITH -- you have to believe in spite of the fact that there is no evidence, no definition, no fixed rules -- merely the pronouncement of someone in a blackrobe saying so.
Before I address the rest of your post, let me ask you one question. What remedy do you think the Court can provide to this problem? They cannot remove a sitting president. And Obamao is the sitting POTUS.
You are promoting the worst kind of judicial activism.
You’re demanding that a few judges and lawyers overturn an election.
The Florida Supreme Court in the 2000 election kept manufacturing mulligans for Gore to help him win the electoral votes.
The courts need to stay out of the elections.
All roads lead to impeachment. Make your best case and good luck.
They can find him ineligible to hold office. If you want to be technical,it would probably still be up to Congress to remove the president, but they would certainly have cause to do so at that point, no??
Wrong. I'm asking them to review Obama's eligiblity. If he turns out to be ineligible, they aren't overturning the election, but upholding the Constitution.
The time for the courts to review Obama's eligibility would have been before the election.
Now that he is POTUS, "upholding the Constitution" means impeachment.
I don’t have a problem with impeachment. Obama has most likely committed criminal fraud over his eligibiity. A court finding would help expedite the matter.
Two quo warranto cases have been filed in the D.C. District Court, and both were rejected (by a Reagan-appointed judge).
Sorry, but this issue is going to be pursued by Congress or not at all.
Judges have judicial immunity-- they cannot be sued for their official acts.
Are they the only branch of government that cannot be held accountable for shirking their responsibility that would not rise to the level of impeachment?
Yes. The Constitution deliberately created a judicial branch that would be immune to popular pressure-- hence life tenure, the inability of Congress to cut their pay, etc. Impeachment is the only remedy.
Justice Clarence Thomas testified under oath that they were avoiding the issue of who is eligible to be President.
I listened to that tape, and I thought he sounded like he was joking, but YMMV.
If a guy that may die if ordered to go to war doesnt have standing, I dont know who does. If that is not a particular injury, I dont know what is. Perhaps the estate of a fallen soldier may have standing??
During the Vietnam War, the courts held that no one had standing to challenge the constitutionality of the war in court, because it was an issue solely for Congress and the voters.
There is one avenue of judicial review that is available, but not until 2012: many states have provisions in their state election laws permitting a voter to sue to remove an ineligible candidate from the ballot. But such a suit can be brought only during a very narrow window of time-- in most states, between the time a candidate files to get on the ballot and the time the ballots are printed. In 2008, no one brought such a suit against Obama during the right time period. I expect that someone will in 2012, if Obama runs for re-election.