Kerchner v Obama – SCOTUS Denied
SCOTUS refused, as expected, to hear Kerchner’s case. Mario is licking his wounds with a “perfect record”
10-446 KERCHNER, CHARLES, ET AL. V. OBAMA, PRESIDENT OF U.S., ET AL.
The motion of Western Center for Journalism for leave to file a brief as amicus curiae is granted.The petition for a writ of certiorari is denied.
But the Birthers are, in spite of the facts, still hopeful:
The fact that they accepted the amicus from Western Journalism indicates that SCOTUS is gathering information to rule on the eligibility cases and I expect that they will rule against bo on the eligibility issue, boCare, immigration et al in 2011.
Kerchner v Obama – Scotus – Amicus Brief Filed
The “Western Center for Journalism” has filed an Amicus brief which fails to address in any meaningful manner the issue before the Court: namely does Kerchner have standing.
The ‘argument’ is incredibly circular “Constitutional eligibility is not a political question because it involves political parties who have a direct interest in the outcome”, even though the Constitution clearly assigns the responsibilities here…
Fascinating…
Kerchner v Obama – Scotus – Government waives right to respond
The ultimate show of disdain for the filing 
Nov 3 2010 Waiver of right of respondents Barack H. Obama, President of the United States, et al. to respond filed.
Kerchner Petition for Cert with comments
… what you’ve just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.
Source: Billy Madison (1995)
As I see it, there is only one issue to be decided by the Court: Did the lower Courts make an error in finding that Mario’s clients lacked standing? The rest is just unnecessary ‘dressing’. Sadly enough it appears that Mario has spent more effort on making a poor case for his interpretation of ‘Natural Born’ which goes against Supreme Court Established precedents, than on explaining why his plaintiffs have standing. In fact, Mario has weakened his clients’ case by arguing that the issues he brings have relevance to everyone in the US. As such, the complaint is generalized and thus his clients lack standing.
It will take me a few days to work my way through the 80+ pages, perhaps there are some arguments I have not yet seen. So far nothing new, in fact, Mario has failed once again to explain why his plaintiffs’ injuries are not just hypothetical, and conjectural, or are shared with all others. In either case, the Constitution protects defendants from having to respond to cases where plaintiffs clearly lack in standing. As Mario himself has shown, countless courts have all found the same, thus failing to create a cross circuit disagreement, which could provide the Supreme Court with a reason to grant cert. Now, Mario’s petition for Cert will likely follow the 8 or so petitions for Cert the Court has denied before.
That Mario appears to have missed to cite US v Wong Kim Ark is unfortunate but perhaps he presumed that the Court is familiar with the ruling. Not surprising, as the case has been cited close to a hundred times, approvingly, by US Courts, most recently in Ankeny v Daniels, a state case in Indiana. As far as I can tell, Mario also overlooked this case. But then again, the issue of eligibility is not on the table here. The only issue is: Were the Courts correct or did they err when they ruled that the plaintiffs lack standing.
But I am not a lawyer and I am looking forward to those smarter and better informed than me to provide their feedback, comments, suggestions and even their disagreements.
IN THE
Supreme Court of the United States
_______________________________
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
232184
A
(800) 274-3321 • (800) 359-6859
CHARLES F. KERCHNER, JR., et al.,
Petitioners,
v.
BARACK HUSSEIN OBAMA, II, et al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
MARIO APUZZO
Counsel of Record
QUESTIONS PRESENTED
[NBC: Mario presents 4 questions but there is only really one, and that is "Do the petitioners have standing", the other 3 questions are looking for an advisory opinion from SCOTUS]
1. Whether petitioners sufficiently articulated a case or controversy against respondents which gives them Article III standing to make their Fifth Amendment due process and equal protection claims against them.
[NBC: The courts have been consistent here in finding that plaintiffs lack standing. Mario's brief includes a myriad of such rulings and I doubt that the Supreme Court, which has had the opportunity to rule on several of these cases already and refused, will get involved in an issue which has been so well and consistently resolved at the Federal circuit levels.]
Kerchner v Obama – Petition for Writ of Cert
Finally, and as expected, missing the foundations necessary for success.. More later but Mario fails to establish a foundation for standing, and under Lujan, there is no hope that there is standing to sue Congress for failure to do its duty under the 20th Amendment.
Worse, no mention of US v Wong Kim Ark when discussing natural born status while mentioning Vattel. Of the 4 issues raised, only one is reviewable by the Supreme Court: Standing. The others involve requests for SCOTUS to provide advisory opinion.
What a waste of good paper. But he tried.
Mario: Golden Oldie
Mario Posted:
On June 29, 2010, the U.S. Third Circuit Court of Appeals will receive for decision the Kerchner et al. v. Obama/Congress et al. appeal to that Court of the Federal District Court’s dismissal of the case for what it said was lack of standing and political question. Putative President Obama’s supporters are out and about arguing that the Kerchner v. Obama/Congress case is exactly like the Berg v. Obama case and therefore the Third Circuit Court of Appeals should affirm the District Court’s dismissal of the case for lack of standing. This is not only an incredible statement but an outright lie.
Now that the Court has ruled and found that indeed Berg’s precedential ruling was not just relevant but guiding precedent
Examination of this precedent would have made it “obvious to a reasonable attorney that an appeal from the District Court’s order was frivolous, [as no] law or facts . . . support a conclusion that the District Court judge had erred.”
Will Mario retract his claim of “an outright lie”?
So far the Appeals Court ruling suggest that Mario was too hasty in making his ‘claims’
In their Reply Brief, Appellants assert that their case differs from Berg in several ways, including, among others, that the plaintiff in that case filed his claim against then-candidate Obama before the election and before the “Electoral College and Congress had . . . acted on Obama’s qualifications. . . .” Appellants’ Reply Br. at 25. On the contrary, the Berg court addressed standing based on those same assumed facts. Berg, 586 F.3d at 238-39. Just like the plaintiff in Berg, Appellants’ alleged injuries are too generalized to be cognizable in Article III courts. As the District Court found, the requirement that an injury be “concrete and particularized” precludes claims based on “harms that are suffered by many or all of the American people.” Kerchner, 669 F. Supp. 2d at 481 (quotation marks omitted) (citing Lujan, 504 U.S. at 573-74).
Not only did the Court rule that Berg v Obama was precedential and guiding to Kerchner v Obama, but the Court also asked Mario to explain why the Court should not award him with sanctions for his filing.
Overview Mario’s Legal Arguments
Tes, at politijab.com has provided us with the following, in-depth analysis of:
APUZZO’s SHOW CAUSE LEGAL ARGUMENT
I. The Court should reconsider its opinion and (a) find that the appeal was not frivolous or (b) provide a hearing on the record before finding that he did.
A. The Rule 38 Standard
Discussion here and here
B. The Court should reconsider and find that the appeal was not frivolous.
1. Factual allegations of the complaint must be taken as true.
Discussion here
2. The case law regarding who has standing under Article III is not clear.
Discussion here
3. The Third Circuit’s opinion in Berg was not an absolute bar to filing an appeal in Kerchner.
Short analogy discussion here
a. The facts in Kerchner are substantially different than the facts in were Berg.Discussion here
b. The legal theories advocated in Kerchner are different than the legal theories advocated in Berg. Discussion here
4. The Court must grant due process to Apuzzo before it can order that he pay damages.
Discussion here and here and here
5. The Court’s threat of Rule 38 damages is chilling on Apuzzo’s and others’ right to pursue unpopular political and civil rights cases and, therefore, is unwarranted.
Discussion here
C. Apuzzo is entitled to a hearing on the question of whether he filed a frivolous appeal.
Discussion here
II. Even if Rule 38 damages are appropriate, the Court should not impose such damages without providing Apuzzo (a) a fair opportunity to challenge the amount of damages through discovery and (b) a hearing on the record to show that defendants have failed to mitigate their damages.
Discussion here
III. Apuzzo did not violate N.J. Rule of Professional Conduct 3.3(A)(3) and, therefore, the Court should correct its decision by removing footnote 5.
Discussion here
Apuzzo on Standing and Precedent
A poster on Politijab posted the following analysis which shows that sufficient lower court precedents exist which all addressed the question of a citizen’s standing to enforce Article II’s clause. I found her analysis to be quite insightful as it relates to the issue the Court had placed in front of Mario: to explain why a reasonable attorney would considered filing an appeal given the precedents in both the 3rd Circuit (Berg v Obama) as well as the countless suits filed in other circuits.
Apuzzo Brief at 9 wrote: There is no United States Supreme Court precedent on the question of a citizen’s standing to enforce Article II’s “natural born Citizen” clause.
Well, no, the Supreme Court has not directly addressed whether a citizen (or voter, or oathtaker) has standing to challenge a President’s qualifications under Article II. However …. (I) multiple courts in multiple jurisdictions have squarely addressed the issue; and (II) The Supreme Court (and appellate courts) have ruled on the principles behind Apuzzo’s arguments.
I. More than ten courts, in the First, Second, Third, Sixth, Ninth, Eleventh, and DC Circuits, have dismissed similar Article II challenges on the same grounds as the District Court did in the Kerchner case — and not a single court in any jurisdiction has held that a citizen (or voter or oathtaker) has standing to make such a challenge.*
- *See, e.g., Barnett v. Obama, — F. Supp. 2d —-, 2009 WL 3861788 (C.D. Cal. Oct. 29, 2009) (dismissing case challenging Obama’s eligibility for lack of jurisdiction because plaintiff did not have standing under Article III in case filed on behalf of active and former military personnel, state representatives, taxpayers, relatives, and political candidates), recons. denied (Dec. 4, 2009), appeal pending (9th Cir.); Patriot’s Heart Media Network, Inc. v. Soetoro , No. 1:09-mc-00442-RCL (D.D.C. Sept. 10, 2009) (rejecting request to convene grand jury to investigate Obama’s eligibility; dismissing petition for lack of jurisdiction because plaintiff did not have standing under Article III); Hamblin v. Obama , No. 09-17014, 2009 WL 2513986 (D. Ariz. Aug. 14, 2009) (dismissing case challenging Obama’s and McCain’s eligibility for lack of jurisdiction because plaintiff did not have standing under Article III), appeal dismissed, No. 09-17014 (9th Cir. Nov. 6, 2009); Cook v. Good , 2009 WL 2163535 (M.D. Ga. July 16, 2009) (denying TRO seeking stay of military orders pending confirmation of Obama’s eligibility; dismissing case for lack of jurisdiction because plaintiff did not have standing under Article III), appeal dismissed, No. 09-14698-CC (11th Cir. Nov. 24, 2009); Essek v. Obama , No. 08-379-GFVT (E.D. Ky. Jan. 15, 2009) (dismissing case challenging Obama’s eligibility for lack of jurisdiction because plaintiff did not have standing under Article III); Dawson v. Obama , 2009 WL 532617 (E.D. Cal. Mar. 2, 2009) (dismissing case challenging Obama’s eligibility for lack of jurisdiction because plaintiff did not have standing under Article III); Cohen v. Obama , 2008 WL 5191864, (D.D.C. Nov. 21, 2008) (dismissing case challenging Obama’s eligibility for lack of jurisdiction because plaintiff did not have standing under Article III), aff’d, 332 F. App’x 640 (D.C. Cir. Sept. 8, 2009) (per curiam), reh’g denied (D.C. Cir. Nov. 25, 2009), reh’g en banc denied, slip copy (D.C. Cir. Nov. 25, 2009); Strunk v. N.Y. State Bd. of Elections , No. 1:08-cv-04289-ARR-LB (E.D.N.Y. Oct. 30, 2008) (dismissing case challenging, among other things, Obama’s eligibility and finding that plaintiff lacked standing to sue), appeal dismissed, No. 08-5422 (2d Cir. Nov. 14, 2008); Berg v. Obama , 574 F. Supp. 2d 509 (E.D. Pa. Oct. 24, 2008) (dismissing case challenging Obama’s eligibility for lack of jurisdiction because plaintiff did not have standing under Article III; characterizing various plaintiff’s claims as frivolous), aff’d, 586 F.3d 234, (3d Cir. Nov. 12, 2009); Robinson v. Bowen , 567 F. Supp. 2d 1144, slip copy (N.D. Cal. Sept. 16, 2008) (dismissing case challenging McCain’s eligibility); Hollander v. McCain , 566 F. Supp. 2d 63, (D.N.H. July 24, 2008) (dismissing case challenging McCain’s eligibility for lack of jurisdiction because plaintiff did not have standing under Article III).
Kerchner v Obama – Appeal – Precedential Opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
CHARLES F. KERCHNER, JR.; LOWELL T. PATTERSON; DARRELL JAMES LENORMAND; DONALD H. NELSEN, JR.,
Appellants
v.
BARACK HUSSEIN OBAMA, II, President Elect of the United States of America, President of the United States of America, and Individually; UNITED STATES OF AMERICA; UNITED STATES CONGRESS; UNITED STATES SENATE; UNITED STATES HOUSE OF REPRESENTATIVES; RICHARD B. CHENEY, President of the Senate, Presiding Officer of Joint Session of Congress, Vice President of the United States and Individually; NANCY PELOSI, Speaker of the House and Individually
On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No.1-09-cv-00253) District Judge: Hon. Jerome B. Simandle
Submitted Under Third Circuit LAR 34.1(a) June 29, 2010
Before: SLOVITER, BARRY and HARDIMAN, Circuit Judges (Filed: July 2, 2010)
OPINION OF THE COURT
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. 4.1 Appellants challenge the District Court’s 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.
Kerchner v Obama – Response to OSC
_____________________________________________________________
IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________________________________________________________
Case No. 09-4209 CHARLES F. KERCHNER, JR. et al.,
Plaintiffs-Appellants, v.
BARACK HUSSEIN OBAMA II et al., Defendants-Appellants.
_____________________________________________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY _____________________________________________________________
ATTORNEY MARIO APUZZO’S RESPONSE TO THE COURT’S ORDER THAT HE SHOW CAUSE WHY THE COURT SHOULD NOT IMPOSED DEFENDANTS’ DAMAGES AND COSTS AGAINST HIM FOR FILING A FRIVOLOUS APPEAL _____________________________________________________________
On the Brief:
Mario Apuzzo
MARIO APUZZO
Attorney for Plaintiffs-Appellants
185 Gatzmer Avenue Jamesburg, New Jersey 08831 (732) 521-1900
PROCEDURAL STATEMENT
On July 2, 2010, the Third Circuit Court of Appeals issued its decision affirming the New Jersey Federal District Court’s dismissal of the Kerchner et al v. Obama/Congress et al case for lack of Article III standing. Dkt. Document No. 003110204058. The Court ordered that I show cause in 14 days why the Court should not find me liable for just damages and costs suffered by the defendants, not in having to defend against the merits of plaintiffs’ underlying claims that Putative President Obama is not an Article II “natural born Citizen,” that he has yet to conclusively prove that he was born in Hawaii, that Congress failed to exercise its constitutional duty to properly vet and investigate Obama’s “natural born Citizen” status, and that former Vice President and President of the Senate, Dick Cheney, and current Speaker of the House, Nancy Pelosi, were complicit in that Congressional failure, but rather in having to defendant against what the court considers to be a “frivolous” appeal of the District Court’s dismissal of their claims on the ground of Article III standing. Opinion at p. 3 and 9.
Kerchner v Obama – Appeal – Response to order to show cause
07/19/2010 Open Document ECF FILER: Response filed by Appellants Charles F. Kerchner, Jr., Darrell James Lenormand, Donald H. Nelsen, Jr. and Lowell T. Patterson to court order no relief list. Certificate of Service dated 07/19/2010. (MA)
Fascinating ‘arguments’ nevertheless, and I am looking forward to a more thorough analysis. Arguing that standing requires analysis of the merits is an interesting one. So far I am not too impressed by Mario’s suggestion that in order to determine standing one has to first look at the merits of the case. Standing logically precedes the merits. Mario provides an example of someone hurt in an automobile accident bringing a case under the doctrine of civil rights. The case would not be rejected based on the concept of standing.
[I]t may be said that [j]urisdiction is a question of whether a federal court has the power, under the Constitution or laws of the United States, to hear a case …; standing is a question of whether a plaintiff is sufficiently adversary to a defendant to create an Art. III case or controversy, or at least to overcome prudential limitations on federal-court jurisdiction …; cause of action is a question of whether a particular plaintiff is a member of the class of litigants that may, as a matter of law, appropriately invoke the power of the court; and relief is a question of the various remedies a federal court may make available. A plaintiff may have a cause of action even though he be entitled to no relief at all, as, for example, when a plaintiff sues for declaratory or injunctive relief although his case does not fulfill the “preconditions” for such equitable remedies./1/
[1] Davis v. Passman, 442 U.S. 228, 239-40 n.18 (1979)
Source: Federal Practice Manual
Remember that under Lujan v Wildlife standing requires
There are three requirements for Article III standing: (1) injury in fact, which means an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal relationship between the injury and the challenged conduct, which means that the injury fairly can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, which means that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative.
Kerchner v Obama – Reply to Order to Show Cause nearing deadline
Although the original deadline was last Friday, the Court’s electronic filing system was off line and the deadline for filings was extended to Monday, July 18th, 2010. We are nearing the filing deadline and so far the docket shows no evidence of any filings. In addition, Mario’s blog fails to provide any updates on this.
Popcorn anyone?
Kerchner v Obama – Judgment Affirmed
Ouch, poor Mario… Not only was the lower court’s ruling affirmed but the court has asked Mario to explain why he should not be sanctioned. What a great present so close to the 4th of July…
07/02/2010 Open Document NOT PRECEDENTIAL OPINION Coram: SLOVITER, Authoring Judge, BARRY and HARDIMAN, Circuit Judges. Total Pages: 9. (TMK)
07/02/2010 Open Document JUDGMENT Affirmed. Costs taxed against Appellants. (TMK)
,Edit: As a separate document I am adding the Entry of Judgment07/02/2010 Open Document ORDER (SLOVITER, Authoring Judge, BARRY and HARDIMAN, Circuit Judges) Appellant’s counsel shall show cause in writing within fourteen days of the date of this Order why he should not be subject to an order pursuant to FRAP 38 setting just damages and costs for pursuing a frivolous appeal, filed. (TMK)
Is Mario confused about standing?
Mario seems rather upset at those who have pointed out that the only issue before the Court of Appeals is the issue of standing and political question.
On June 29, 2010, the U.S. Third Circuit Court of Appeals will receive for decision the Kerchner et al. v. Obama/Congress et al. appeal to that Court of the Federal District Court’s dismissal of the case for what it said was lack of standing and political question. Putative President Obama’s supporters are out and about arguing that the Kerchner v. Obama/Congress case is exactly like the Berg v. Obama case and therefore the Third Circuit Court of Appeals should affirm the District Court’s dismissal of the case for lack of standing. This is not only an incredible statement but an outright lie.
Mario may not have realized that the lack of standing will end ANY legal proceedings, no matter what claims are raised. In fact, when the Court observes that there exists a lack of subject matter jurisdiction, it has no choice but to dismiss the case.
In other words, the issue of standing has no relevance to the actual claims raised, standing either exists or it doesn’t and when it does not exist, no case can exist and no claims can survive. In fact, when deciding on standing, the Court has to presume that all the claims are true and determine if the case meets the requirements of standing.
In both cases, there appears to be a lack of a “concrete and particularized injury” and hypothetical rather than actual. Under Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), both cases fail.
The argument is not that the two cases are the same at the level of the claim, the argument is that in both cases the plaintiff is lacking standing.
Glad to help…
Educating Mario – Oral arguments and the Standing Issue
Mario Apuzzo is spinning the ruling that the court is not interested in oral arguments in his Appeal of Kerchner v Obama
The court can call for oral argument when it has questions. As we know, the Federal District Court granted Obama’s/Congress’s motion to dismiss the complaint/petition for lack of standing and political question. The Kerchner plaintiffs have appealed that decision to the Third Circuit Court of Appeals. On a motion to dismiss the complaint on its face for lack of standing and political question, both the trial and the appeals courts are supposed to accept the facts alleged in the complaint/petition as true and in a light most favorable to the non-movant. We have alleged and shown that Obama is not and cannot be an Article II “natural born Citizen” because he was born a subject of Great Britain through descent from his British subject/citizen father who was never a U.S. citizen, making Obama born with dual and conflicting allegiances if he was born in the U.S. or with sole allegiance to Great Britain if he was born in Kenya. We have also alleged and shown that Obama has not conclusively proven that he was even born in Hawaii. Obama and Congress have presented no evidence or argument to the Federal District Court or to the Court of Appeals contesting these arguments. The issues of standing and political question are well briefed. We have presented in our briefs how the Kerchner plaintiffs have standing and how the Obama eligibility issue does not present any objectionable political question for the Court. Hence, the Court might not have any questions and so it did not see any need for oral argument.
Why did the Government not present any evidence about president Obama’s eligibility? Because they understand that this was not the issue in front of the court. Remember that the lower court rejected the case based on lack of standing and political question. While Mario was wasting the Court’s time (and patience) with his filings, he only incidentally focused on the real issue. Lack of standing.
The Court realizes that the question before them does not require an oral argument about Vattel’s influence on the US Constitution and other novel arguments that Mario may have hoped to present.
As Mario explained, in reaching the conclusion to dismiss, the Court had to accept all the ‘arguments’ presented by Mario, so there was no need to further expand on them in the brief to the appeal’s court.
Kerchner v Obama – No Oral Arguments
Letter of Notification dated 2010-06-15 – No Oral Arguments. Appeal to be Decided on Briefs Filed
Mario and Kerchner on DrKate
Tonight Mario appeared on Dr Kate.I will present my own observations later. This one is from Politijab
Mario finally admitted tonight that the “merits” question, the only issue in the appeal, is standing (injury-in-fact and political question). That’s a significant concession on his part, because he barely touched on the issue in his opening brief, completely ignored standing in his reply brief, and yet the U.S. Attorney’s brief covered the issue of standing extensively. Much to the disappointment of his nutjob fans in the BTR chat, Mario admitted that the NBC/eligibility issue is not before the Third Circuit.
Although he tried to minimize it, when asked directly how the Ramsay-Smith debate was ultimately resolved, Mario also had to admit that Congress came down on Smith’s side. Mario mentioned that James Madison submitted an argument that natural born citizenship is based on jus soli, which Mario dismissed as “wrong.”
Oh the comedy…
Another Set-Back for Mario
Mario recently quoted from a paper by Ramsay in which Ramsay attempts to argue that his political rival who had defeated Ramsay, was not eligible since he was not a citizen of the United States. Not surprisingly, Ramsay argued the matter from a perspective that would benefit his case to have Smith removed. However, history was not kind on Ramsay (and Mario) as Congress voted against the Arguments presented by Ramsay. Included in those who voted against was James Madison who stated that allegiance by birth is determined by place rather than parentage, thus rejecting Vattel and thus rejecting Mario’s claim that it was Vattel and not Common Law which determines the meaning of the terminology “natural born”. What is it with Mario and quoting the losing side… First Wong Kim Ark and now Ramsey…
The debates of the early Congresses were written down, and are available online through the Library of Congress. Thus, we know that James Madison voted against Ramsay and for Smith, and that in doing so, he noted that in the United States, “allegiance” by birth is determined by place of birth rather than by parentage. In other words, he rejects the “de Vattel” formulation. The debate on Ramsay vs. Smith is at pages 412 to 425:
and at Dr C we also hear from:
Ballantine says:
April 3, 2010 at 1:26 pm BallantineThe same paper had a pro-Smith editorial a few days later:
“Observations upon that clause – A Natural Born citizen here clearly means a person born in the American colonies, while they were under the British government.” City Gazette, South Carolina, November 24, 1788.
Kerchner v Obama – Appeal – Letter to Merrits Panel
Mario still does not seem to get it. He is trying to argue his case when the ONLY issue on appeal is whether or not his client has standing.
Hilarious… Arguing for an interpretation of the 14th Amendment which was so clearly rejected in Wong Kim Ark… Poor Mario…
04/02/2010 Open Document ECF FILER: Letter dated 04/02/2010 , filed pursuant to Rule 28(j) from counsel for Appellants Charles F. Kerchner, Jr., Darrell James Lenormand, Donald H. Nelsen, Jr. and Lowell T. Patterson. This document will be SENT TO THE MERITS PANEL, if/when applicable. (MA)
Kerchner v Obama – Appeal- Doc 3- Appellant’s reply brief
You can’t blame Mario for trying even though the arguments are getting worse and worse.
03/23/2010 Open Document ECF FILER: ELECTRONIC REPLY BRIEF on behalf of Appellants Charles F. Kerchner, Jr., Darrell James Lenormand, Donald H. Nelsen, Jr. and Lowell T. Patterson, filed. Certificate of Service dated 03/23/2010 by US mail. (MA)
Educating Mario – Virginia Law and the Virginia Supreme Court
Mario Apuzzo, counsel in Kerchner v Obama (dismissed and appealed to 3rd Circuit Courts of Appeal) has “argued” that the evidence continues to support his position that children born on US soil to aliens are not natural born citizens. Amongst his ‘references’ we find: “what Thomas Jefferson told us in his Virginia citizenship statutes of 1779 and 1783″
Greg, on Obama Conspiracy, always ready to help out Mario, has provided him with much needed updates:
What is your reading of Virginia’s law, Mario? Here’s how the court read the law:
But the appellant, in this case, was born in Virginia. The laws of the state declare, that every free person born within it, shall be considered a citizen of it, and shall enjoy all the privileges of a citizen, until he relinquishes that character in the manner prescribed by law.
Custis v. Lane, 3 Munf. 579 (Va. 1813)
and
Yes, Custis v. Lane was talking about the 1792 Virginia law which was nearly idential to the 1783 law. And here is the poor deluded Virginia Supreme court a few years later calling children of aliens “natural born citizens.” Seems no one got the memo.
“John, Eve, Chary and Raper, children of the alien John Raper, and natural born citizens ; and Mary and Jane Raper, children of the alien William Raper, and natural born citizens of the U. States…The question was, Whether the whole estate descended to John Jackson, the naturalized brother of the intestate or whether the natural born citizens, descendants of his alien sister, Ann Walton, who was yet living, were entitled by descent to one equal Leigh, for the appellants.” Jackson v. Sanders, 2 Leigh’s Hep. 109. (1830)
Kerchner v Obama – Appeal – Request for Oral Arguments
Although the case’s Appeal is only about the straightforward concept of Standing, Mario has requested the Court for oral arguments. None of the issues raised in the request appear to have any relevance to the issues of the Appeal which are limited to the lack of Standing. Our friends at Politijab are predicting not only that there will be no oral arguments, but that the rejection will be short and brief:
“For the reasons set forth in Berg v. Obama, …..”
03/20/2010 Open Document ECF FILER: Request by Appellants Charles F. Kerchner, Jr., Darrell James Lenormand, Donald H. Nelsen, Jr. and Lowell T. Patterson for Oral Argument. [SEND TO MERITS] (MA)
WND – Eligibility lawyer says ‘standing’ a no-brainer
Eligibility lawyer says ‘standing’ a no-brainer
Mario may indeed be telling the truth her, the standing issue should be a no-brainer. After all, over 60 Courts have ruled now that the plaintiffs lack standing.
But then we read this
But Apuzzo, whose case is pending before the 3rd U.S. Circuit Court of Appeals and in which he will file a further brief within the next few days, says the federal standard for having standing – a concrete and particularized injury potential imminent for an individual – should be a no-brainer for judges.
“How can you deny he’s affecting me?” he asked during an interview with WND. “He wants to have terror trials in New York. He published the CIA interrogation techniques. On and on. He goes around bowing and doing all these different things. His statements we’re not a Christian nation; we’re one of the largest Muslim nations. It’s all there.”
In other words, Mario believes he and his client have standing because they do not approve of what the President is doing and are thus ‘injured’. I doubt that Mario understands the ruling in Lujan and the meaning of concrete and particularized…
First, the plaintiff must have suffered an “injury in fact”-an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical,’” . . . . Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be “fairly . . . trace[able] to the challenged action of the defendant, and not. . . th[e] result [of] the independent action of some third party not before the court.” . . . Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”
As the ruling explains
By particularized, we mean that the injury must affect the plaintiff in a personal and individual way.
Since the injury is at best hypothetical it also lacks in being personal and individual.
And the court in Kerchner also clearly outlined, as explained by the DOJ:
The court explained that “‘a plaintiff raising only a generally available grievance about government–claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large–does not state an Article III case or controversy.’” App. 9 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-74 (1992)). Plaintiffs’ allegations of insufficient investigation and proof of President Obama’s eligibility for office were harms that, if valid, would “apply equally to all United States residents” and thus were inadequate to establish standing under Article III. App. 10. Plaintiffs could not remedy this deficiency merely by taking “oaths to protect and defend the Constitution,” or by asserting that they possessed above-average concern over the President’s qualifications. App. 10-11. Nor was the possibility that plaintiff Kerchner might be recalled to active military duty at some future date sufficiently actual or imminent to constitute a cognizable injury. App. 11. Because plaintiffs lacked “an ‘injury in fact’ necessary for Article III standing,” the court concluded that it was without jurisdiction to entertain plaintiffs’ claims and dismissed the suit. App. 11-12.
Then we find out what motivates Mario
Of course, he said, not everyone across the nation has the same “concrete and particularized” danger of injury. He said those who support Obama don’t care “he’s not a natural born citizen. … His Marxist-communist buddies have full faith in the guy. They want him to trash the whole country, punish the country for the ills of the past.”
And
“The Founders told us a foreigner in that office could cause tremendous havoc on our country,” he said. “There’s the standing.”
It’s clear that indeed, the issue of standing is a no-brainer, but perhaps not in the sense Mario envisioned…
Kerchner v Obama – Mario Confused
Mario stated:
In all my 27 years of law practice, I do not believe that I have come across a more absurd, ridiculous, and frivolous legal argument. The United States Department of Justice has told the United States and the world that in America if all Americans are injured, which necessarily means that my clients are injured, no one can sue to vindicate their injuries. It is unbelievable to what extent some people will go to protect their politicians.
Seems to me that Mario fails to understand the Constitutional concept of Standing. The Appeals Court will remain unimpressed by him failing to address the Standing issue, which was the only issue for appeal. For the sake of those confused, here is a simple overview
Standing is the legal right to start a lawsuit, without standing the Court must dismiss the lawsuit. There are three requirements for article III standing
(1) injury in fact, which means an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical;
(2) a causal relationship between the injury and the challenged conduct, which means that the injury fairly can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and
(3) a likelihood that the injury will be redressed by a favorable decision, which means that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative. Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992) (Lujan). The party invoking federal jurisdiction bears the burden of establishing each of these elements.
So it is clear that it is up to Mario to establish standing.
Lujan explains why Mario’s client fails to have standing
This Court has consistently held that a plaintiff claiming only a generally available grievance about government, unconnected with a threatened concrete interest of his own, does not state an Article III case or controversy. See, e. g., Fairchild v. Hughes, 258 U.S. 126, 129-130. Vindicating the public interest is the function of the Congress and the Chief Executive. To allow that interest to be converted into an individual right by a statute denominating it as such and permitting all citizens to sue, regardless of whether they suffered any concrete injury, would authorize Congress to transfer from the President to the courts the Chief Executive’s most important constitutional duty, to “take Care that the Laws be faithfully executed,” Art. II, § 3. Pp. 15-23.
Simple really.
Kerchner v Obama – Apuzzo not pleased
Mario is not pleased with the Government’s response in the appeal of Kerchner v Obama
The brief does not even acknowledge our factual allegations against Obama which are that he is not and cannot be an Article II “natural born Citizen” because his father was a British subject/citizen and not a United States citizen and Obama himself was a British subject/citizen at the time Obama was born and that he has failed to even show that he is at least a “citizen of the United States” by conclusively proving that he was born in Hawaii. It is strange as to why the brief does not even contain these factual allegations within it, giving the appearance that the Justice Department does not want such allegations to be even included in any official court record.
When the plaintiff lacks standing, there is no reason to acknowledge or address the claims. Since the lower Court dismissed based on lack of Standing, this is the only issue before the Court.
Mario’s client is also not too pleased, blaming it all on the Marxists…
What a lame and empty defense. Basically they’re saying Obama and Congress can totally ignore the U.S. Constitution and there is nothing We the People can legally do about it. No one has standing to right the wrong when Obama & Congress illegally violate Article II of the Constitution and seat illegally an ineligible person as President and Commander in Chief of our vast military power. We the People created the federal government and We the People are going to fix this totally broken and runaway federal government. These Progressive/Socialist/Marxists have gone a bridge too far in the disgraceful and unconstitutional 2008 election. This will not stand. We the People will not permit it.
Charles Kerchner
Commander USNR (Retired)
Lead Plaintiff
Kerchner v Obama & Congress
Kerchner v Obama – Appeal Doc 31 – Brief for Defendants/Appellees
03/08/2010 Open Document ECF FILER: ELECTRONIC BRIEF on behalf of Appellees Dick Cheney, Congress of US, House Represenatives, Barack Obama, Nancy Pelosi, US Senate and USA, filed. Certificate of Service dated 03/08/2010 by email. (EF)
No. 09-4209
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________________
CHARLES KERCHNER, JR., et al.,
Plaintiffs-Appellants,
v.
BARACK OBAMA, et al.,
Defendants-Appellees.
_______________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
________________________
BRIEF FOR DEFENDANTS-APPELLEES
________________________
Kerchner v Obama – Appeal – Motion for leave to file overlength brief to Motions Panel
The motions panel is a set of judges who will rule on whether or not the motion for leave to file Apuzzo’s overlength brief to be granted. My prediction is that they will deny it, my hope is that they will allow it.
01/26/2010 Open Document ORDER (Clerk) referring to a motions panel the Motion by Appellants for Leave to File Overlength Brief Containing 20,477 Words, filed
The Source of Mario’s ‘quote’ of Howard
It was pointed out to me that the source is Document 34 in Kerchner v Obama… How did I miss that filing…
Given the fact that there were two problems, one was the reference to the page number, the other the addition of an extraneous ‘or’, I decided, based on a hunch by Dr C, to search the web and found the following references: [1] Poster by Lawyer #1 on Tuesday, Oct. 27 2009 @ 2:30AM and [2] by Poster Attorney, posted on October 30th, 2009 at 9:16 am and [3] by a poster named Bruce on October 27th, 2009 at 5:11 pm
Kerchner v Obama – Appeal – Motion for leave to file an overlength brief
Note: Mario filed a motion for leave, asking the Court to allow him to file an overlength brief.The Court had granted Mario extension to 01/19/2010 for filing his brief. Since the Court already granted an extension, the Court may wonder why the motion for leave to file an overlength brief was delayed until 2 days after the filing of the brief.
01/21/2010 ECF FILER: Motion filed by Appellants Charles F. Kerchner, Jr., Darrell James Lenormand, Donald H. Nelsen, Jr. and Lowell T. Patterson for Leave to File an Overlength Brief. Certificate of Service dated 01/21/2010.–[Edited 01/21/2010 by MS] (MA)
Recent Comments