IT WAS A GOOD TIME; IT WAS THE BEST TIME; IT WAS A PARTY

January 28, 2012

©2012 jbjd

The party in Georgia is over. And now, having been asked several times both here and on other blogs, what I predict will be the outcome of Thursday’s OSAH hearing in Georgia before Administrative Law Judge Malihi and, further, how Secretary Kemp will proceed in light of the ALJ’s determination; I will tell you what I think.

However, I am not privy to the record in this case and so, I am basing any speculation as to the posture of this case; on publicly available documentation. And I have no contact with anyone else who has privy to the record in this case (although this probably makes no difference as to the caliber of my prediction).

(Having access to the people directly involved would not mean that I would obtain reliable information from them, a fact made unambiguously clear when several people directly involved with the case instigated a massive public campaign of misinformation with a self-serving pronouncement that, the judge in a court of law had ordered President Obama to appear, when he had only refused to grant Respondent’s Motion to Quash Petitioner’s Subpoena. Yes, I agree the press can be blamed for their role in disseminating this propaganda by failing to investigate these claims before streamiing them into syndication; but in my opinion, this makes the attorneys involved doubly culpable for ‘blowing’ this incredible opportunity thereby provided, to educate people, instead, converting it into their personal platform to spread paranoid, error laden, hyperbolic rants.)

Finally, of course, is the fact that, notwithstanding all other considerations, when it comes to predicting a decision by any ruling authority; in fact, your guess is as good as mine.

RUMOR ALERT: Some people have insisted that before the hearing, the lawyers present met with the ALJ, who offered to “Default” Obama for not showing up. At that point, any one of the Petitioners – not just Farrar, who had issued a subpoena for him to appear so as to give “sworn” testimony – could have made a request to the ALJ, in the form of a motion, as prescribed by Rule 11; to default Obama. Or, the ALJ could default Respondent, sua sponte, that is, on its own.

But let’s say, an ordinary citizen files a complaint with the SoS that ends up in the OSAH and the Respondent bails the fact-finding hearing. S/he is likely to look up, IN ADVANCE, how this conduct would impact the proceedings.

Starting from the OSAH home page, I first found the hearing calendar and, from there, a link to Frequently Asked Questions (by parties to these proceedings).

In particular, consider that these guidelines indicate, if the Complainant is late to the hearing; the case “can be” dismissed; and if the Respondent doesn’t appear; the case “can be” decided without his input. In other words, where the burden is on Petitioner; showing up late could mean, the case was dismissed before you arrived. (More on “burden” soon.)

I, of course, looked up the section of the Administrative Procedure rule regarding default, which, again, are accessed from the OSAH home page. But before I post this, understand the meaning of the word “party” as used in the statute and corresponding rules. (Note: the statute creating the OSAH is written by the legislature, and signed into law by the governor. A provision of that law tells the head of OSAH to promulgate rules and regulations necessary for that office to carry out its legal mandate, as spelled out in the statute.)

O.C.G.A. § 50-13-2
GEORGIA CODE
Copyright 2011 by The State of Georgia
All rights reserved.
*** Current Through the 2011 Extraordinary Session ***
TITLE 50.  STATE GOVERNMENT
CHAPTER 13.  ADMINISTRATIVE PROCEDURE
ARTICLE 1.  GENERAL PROVISIONS
O.C.G.A. § 50-13-2  (2011)

§ 50-13-2.  Definitions

As used in this chapter, the term:
…
(2) ”Contested case” means a proceeding, including, but not restricted to, rate making, price fixing, and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing.

…

(4) ”Party” means each person or agency named or admitted as a party or properly seeking and entitled as of right to be admitted as a party.

(5) ”Person” means any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character other than an agency.

(5.1) ”Record” means information created, transmitted, received, or stored either in human perceivable form or in a form that is retrievable in human perceivable form.

(6) ”Rule” means each agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of any agency. …

Now, here is the Administrative rule on Default. (Again, I reached these rules through the OSAH home page.) All emphasis is mine.

RULES
OF
OFFICE OF STATE ADMINISTRATIVE HEARINGS
CHAPTER 616-1-2
ADMINISTRATIVE RULES OF PROCEDURE

616-1-2-.30 Default. Amended.
(1) A default order may be entered against a party that fails to participate in any stage of a proceeding, a party that fails to file any required pleading, or a party that fails to comply with an order issued by the Administrative Law Judge. Any default order shall specify the grounds for the order.
(2) Any default order may provide for a default as to all issues, a default as to specific issues, or other limitations, including limitations on the presentation of evidence and on the defaulting party’s continued participation in the proceeding. After issuing a default order, the Administrative Law Judge shall proceed as necessary to resolve the case without the participation of the defaulting party, or with such limited participation as the Administrative Law Judge deems appropriate, and shall determine all issues in the proceeding, including those affecting the party in default.
(3) Within ten (10) days of the entry of a default order, the party against whom the default order was issued may file a written motion requesting that the order be vacated or modified, and stating the grounds for the motion.
(4) The Administrative Law Judge may decline to enter a default or may open a default previously entered if the party’s failure was the result of providential cause or excusable neglect, or if the Administrative Law Judge determines from all of the facts that a proper case has been made to deny or open the default.
(5) If a party fails to attend an evidentiary hearing after having been given written notice, the Administrative Law Judge may proceed with the hearing in the absence of the party unless the absent party is the party who requested the hearing, in which case the Administrative Law Judge may dismiss the action. Failure of a party to appear at the time set for hearing shall constitute a failure to appear, unless excused for good cause.

Respondent’s absence from this hearing despite an in effect subpoena to appear could have triggered the sanction of Default, but only with respect to Respondent. This would mean, the record would have been foreclosed as to him, absent a successful appeal of the Default Order. And all of Petitoners’ evidence would have been submitted into the record without objection from the other side.

(Or, in the alternative, Petitioners could have sought an Order to Appear. We already know that only the Superior Court can issue such an Order, on Motion of Plaintiff (who in the OSAH is the Petitioner). Petitioner’s/Plaintiff’s Motion to the Superior Court can be accompanied by the ALJ’s certification as to the facts which led to this point.)

616-1-2-.22 Hearing Procedure. Amended.

…

(5) Upon application by a party, the Administrative Law Judge shall certify the facts to the
superior court of the county in which a party, agent, or employee of a party:
(a) disobeys or resists any lawful order or process;
(b) neglects to produce, after having been ordered to do so, any pertinent book, paper, or
document;
(c) refuses to appear after having been subpoenaed;
(d) upon appearing, refuses to take the oath or affirmation as a witness;
(e) after taking the oath or affirmation, refuses to testify; or
(f) disobeys any other order issued by an Administrative Law Judge
for a determination of the appropriate action, including a finding of contempt.

Rumor is, ALJ Malihi asked whether Petitioners wanted him to enter such Default; but, reportedly, they said, ‘No.’

Supposedly, although they have entered this same ‘evidence’ into dozens of other records, they did not want to waste this opportunity to submit testimonial evidence into this record, providing ALJ Malihi with a first-hand opportunity to gauge the credibility of their witnesses, under some mistaken belief, submitting this evidence into the record of this administrative hearing without objection from Respondent, automatically validated their submissions. Then, if they won, they could file yet another suit in a real judicial court based on ‘evidence’ certified by the OSAH (but which was outside of the scope of that forum’s expertise or authority) President Obama is Constitutionally ineligible for the job.

616-1-2-.22 Hearing Procedure. Amended.
(1) The Administrative Law Judge shall conduct a fair and impartial hearing, take action to
avoid unnecessary delay in the disposition of the proceedings, and maintain order. The
Administrative Law Judge may, among other things:

…
(3) Whenever any party raises issues under either the Georgia or United States Constitution,
the sections of any laws or rules constitutionally challenged and any constitutional provisions
such laws or rules are alleged to violate must be stated with specificity. In addition, an allegation
of unconstitutionality must be supported by a statement either of the basis for the claim of
unconstitutionality as a matter of law or of the facts under which the party alleges that the law or
rule is unconstitutional as applied to the party. Although the Administrative Law Judge is not
authorized to resolve constitutional challenges to statutes or rules, the Administrative Law Judge
may, in the Administrative Law Judge’s discretion, take evidence and make findings of fact
relating to such challenges.

…

Or, if they lost; they could use this record as the basis for an appeal filed in a subsequent judicial proceedings.

616-1-2-.39 Judicial Review. Amended.
Pursuant to the APA, a copy of any petition for judicial review of a Final Decision shall be filed
with the Office of State Administrative Hearings by the party seeking judicial review
simultaneously with the service of the petition upon the Referring Agency. The Referring
Agency shall submit the hearing record as compiled and certified by the Clerk to the reviewing
court.

Of course, they would be very very wrong.

Assume the ALJ allowed all of Petitioners’ materials into the record AND, believing their witnesses genuinely believed everything they said AND reviewing the record, took all evidence as true, and issued findings of fact based on this record. And assume Petitioners subsequently used this administrative record in a real judicial proceeding. Any judge would toss this tripe based on a finding, by crediting this ‘evidence’ the previous tribunal had acted in a manner that was both “capricious and arbitrary” and “contrary to law.”

Then again, maybe petitioners didn’t end the proceedings when ALJ Malihi gave them the option; just so as not to let the cameras go to waste.

At any rate, if this rumor is true that Petitioners could have moved for an Order of Default which would have been granted and which still would not have foreclosed the opportunity to provide live testimony as well as additional documentation then, these people are more incompetent than even I thought. More about that below.

Now,  about what actually happened and what will be the result.

When state law requires that all candidates whose names are printed on the ballot must be qualified for office; in theory, exercising a state ballot challenge will work to keep off the ballot the name of an unqualified candidate in that state, depending on the language of the laws in that state. That’s why I proposed this venue for redress (in those states with candidate eligibility laws) in the first place. And, by using a ballot challenge, the crazies who appeared at the OSAH hearing in Georgia yesterday before Administrative Law Judge Malihi, for the first time were not barred from proceeding because of a procedural flaw, such as lack of standing. Indeed, it was this new-found feeling of not being kicked out before the proceeding which produced this nonsensical elation from Petitioner Farrar’s counsel – “I won!!! I won!!!”

But the ballot challenge they presented in this case won’t work not just because they have no idea what they are doing; but because they made the wrong case.

For example, as I have been saying for years now, you cannot win an eligibility case based on a claim Barack Obama is not a NBC. Instead, you can only claim no documentary evidence available in the public record evidences he is a NBC; or that others, including D party officials who claimed he was a NBC refuse to disclose the documentary basis for such claim..(Even better, you can charge that such official with a duty to disclose refused your request!) You cannot charge Barack Obama is not a NBC because his father was not a U.S. citizen. (As I recall, this ‘legal’ fiction originated in 2008 or 9 with Leo Donofrio.) You cannot use non-experts as experts; or printouts of internet postings as documentary evidence. (You CAN, however, use these postings as evidence of other claims in your case, such as the fact, the candidate posted an image.)

A ballot challenge will not succeed where the Petitioner mistakes the forum (referring to the Executive session as a Judicial proceeding); or where he misstates the law (the court in Minor v. Happersett does not limit a definition of NBC to citizens with 2 citizen parents). It won’t succeed where Petitioner or his associates, colleagues, and attorneys have filed multiple challenges; or have a history of failure at such challenges; or a history of bizarre conduct in public; or have earned a reputation as kooks. (Give up, if your lawyer puts herself on the stand.)

But let’s assume, in Thursday’s hearing, Petitioners had miraculously cured all of these infirmities. The question then is, what does it mean to Farrar’s ballot challenge that President Obama ignored his subpoena to appear as his – Farrar’s – witness – I already told you, that’s exactly what he did – and to bring documents that presumably would tend to support his – Farrar’s – case, after ALJ Malahi denied Obama’s Motion to Quash (that subpoena)? Here goes.

Again, I want to clarify who are the parties in that Georgia ballot challenge case heard Thursday by Administrative Law Judge Malihi. Complainant Farrar, Respondent Obama, and the GA Office of Secretary are all parties.  Here’s a picture of the docket (calendar) for Thursday’s OSAH hearing. Notice, it lists the Case Name as David Farrar, and not Farrar v. Obama. It provides a box for the name of the Non-Agency Attorney, that is, Farrar’s attorney. That space is empty. It also has a box for the Case Official.  Know who that is? The person from the agency who is responsible for representing the (position of the) agency at the hearing. That box is also empty. (Note: I checked the docket for other hearings; the caption for Case Name was always the person seeking redress; and, usually, both the names of non-agency attorneys and case officials were filled in.)

Here is the downloadable subpoena from the GA OSAH web site. Notice in the case caption, that is, the section in the beginning listing the forum – OSAH – and the attached administrative agency – Secretary of State – the words “Petitioner” and “Respondent” appear in lieu of “Plaintiff” and “Defendant.”

http://www.osah.ga.gov/#

Notice that the heading lists the parties as Petitioner and Respondent. Further down, in the section beginning with “YOU ARE HEREBY COMMANDED, to appear in court on behalf of” notice that the party issuing the subpoena, Petitioner or Respondent, identifies itself to the recipient by checking the appropriate box. Also notice, ALJ Malihi’s signature and the OSAH seal are pre-stamped on the downloadable document. (Finally, notice the word “court” as used here refers to this administrative hearing of the Executive branch and not to a Judicial proceeding.)

Notice in particular that the party issuing the subpoena selects whether s/he commands the recipient either to appear and testify as a witness; or to produce a document; or both. (The word “document” here is singular.) Thus, the subpoena allows the party to compel this witness, presumably possessing knowledge as to a specific matter which will help to support his case, to provide such aid, either in the form of sworn testimony, or a document, or both.)

Now, here is the subpoena as filled in by Petitioner Farrar directed to Respondent Obama.

View this document on Scribd

Notice here, Petitioner has checked off, he is both Petitioner and Respondent. And, he is commanding Mr. Obama, who actually is the Respondent; to both be sworn in as a Witness on his – Petitioner’s behalf – but also to produce the several (categories of) documents he lists to support his case.

(On the other hand, when Complainant Swensson wanted documents, he produced a Notice to Produce, as provided for by OSHA Rules of Procedure, cited in his notice.) (Notice that like his fellow Petitioners, he asks for numerous documents, too. Also, see that in the caption he refers to the parties as Plaintiff and Defendant. But, he correctly lists the SoS office as the applicable agency attached to this OSHA hearing.)

View this document on Scribd

Here is Respondent’s Motion to Quash (Petitioner Farrar’s subpoena). (Notice in the caption that, he, too refers to the parties as Plaintiff and Defendant. But, he also correctly lists the SoS office as the applicable agency attached to this OSHA hearing.) Also notice that while the heading is Motion to Quash Subpoenas, plural; Respondent only addresses one Petitioner, Farrar; and mentions the only subpoena issued in this case, by Petitioner Farrar.

View this document on Scribd

And here is ALJ Malahi’s denial of that Motion. Notice he raises only 2 narrow grounds: failure to cite support to claim of hardship to attend; and 2) failure to establish grounds to find improper service. Interestingly, he calls the Petitioners “Plaintiffs,” and Respondent, “Defendant.” But he gets the SoS office right. Notice that he copies the plural Subpoenas in his heading. But, for some reason, he lists all Petitioners in the caption, whereas by this time, the cases had been severed.

View this document on Scribd

(I will not comment in depth as to whether ALJ Malahi should have granted the Motion to Quash except to say, given the limited purpose for which the OSHA subpoena form was obviously intended, that is, to compel a witness to testify as to a specific fact or circumstance supported perhaps by a corresponding document under his or her control; and given Petitioner’s obvious attempt to expand that scope; I think ALJ Malihi had ample grounds to support a decision to quash based on Obama’s objections, Petitioner was impermissably trying to bolster its case by subverting the narrow aim of the subpoena in order to circumvent rules prohibiting Discovery.)

616-1-2-.38 Discovery. Amended.
Discovery shall not be available in any proceeding before an Administrative Law Judge except to
the extent specifically authorized by law. Nothing in this Rule is intended to limit the provisions
of Article 4 of Chapter 18 of Title 50 or Rule 37.

So, when Respondent/Witness (Obama), ignoring a subpoena still in force; absented himself from these proceedings; in what way did this failure to appear impact Petitioner’s case? In other words, just because he didn’t show up; did Farrar win?

Well, that depends on a lot of things, including who bears the burden of proof. That is, in a proceeding the purpose of which is to obtain a (non-binding) recommendation from the ALJ to the SoS to take Obama’s name off the ballot; did Farrar need to prove, he is not a NBC? Or did Obama need to prove he is a NBC?  Or, did the SoS need to prove it had acted in accordance with existing rules and regulations with respect to preparing the ballot?

(Note: For the sake of argument, I assumed that ALJ Malihi was so upset with being ‘dissed’ by counsel for Respondent, he would exercise whatever authority available to lock him out of these proceedings.)

Let’s look at the Administrative Rules.

616-1-2-.07 Burden of Proof. Amended.
(1) The agency shall bear the burden of proof in all matters except that:
(a) in any case involving the imposition of civil penalties, an administrative enforcement order,
or the revocation, suspension, amendment, or non-renewal of a license, the holder of the license
and the person from whom civil penalties are sought or against whom an order is issued shall
bear the burden as to any affirmative defenses raised;
(b) a party challenging the issuance, revocation, suspension, amendment, or non-renewal of a
license who is not the licensee shall bear the burden;
(c) an applicant for a license that has been denied shall bear the burden;
(d) any licensee that appeals the conditions, requirements, or restrictions placed on a license
shall bear the burden; and
(e) an applicant or recipient of a public assistance benefit shall bear the burden unless the case
involves an agency action reducing, suspending, or terminating a benefit.
(2) Prior to the commencement of the hearing, the Administrative Law Judge may determine
that law or justice requires a different placement of the burden of proof.

http://www.osah.ga.gov/documents/procedures/administrative-rules-osah.pdf

Petitioners’ original complaint is that SoS Kemp should not have allowed the name of Barack Obama on the GA D Presidential preference primary ballot because under GA law, only the names of candidates who are qualified for office may be printed on the ballot; AND President Obama is Constitutionally unqualified for the job. Well, (1) says, the agency bears the burden of proof (as to why it acted as it did, in this case, determining to keep Obama’s name on the ballot). Only, the SoS, while a party; was not the named Respondent. And no one from the office of SoS was listed as participating in the hearing. But (2) says, the ALJ can shift that burden before the hearing begins. By naming Obama the Respondent/Defendant, is this what ALJ Malahi did? In other words, did he make Petitioner bear the burden of proof that Obama is not a NBC? If so, Petitioners alone failed to meet that burden.

But what if the office of the SoS had been named the Respondent and, therefore, bore the burden of proof in the case? Watch this.

Look at this rule on Nature of Proceedings.

616-1-2-.21 Nature of Proceedings. Amended.

(1) In a hearing conducted under this Chapter, the Administrative Law Judge shall make an
independent determination on the basis of the competent evidence presented at the hearing.
Except as provided in Rule 29, the Administrative Law Judge may make any disposition of the
matter available to the Referring Agency.
(2) If a party includes in its pleadings a challenge to the regularity of the process by which the
Referring Agency reached a decision, the Administrative Law Judge shall take evidence and
reach a determination on such a challenge at the outset of the hearing. The party making such a
challenge shall have the burden of proof. If the Administrative Law Judge finds the challenge
meritorious, the Administrative Law Judge may remand the matter to the Referring Agency.
(3) The hearing shall be de novo in nature, and the evidence on the issues in a hearing shall not
be limited to the evidence presented to or considered by the Referring Agency prior to its
decision.
(4) Unless otherwise provided by law, the standard of proof on all issues in a hearing shall be a
preponderance of the evidence.

Recall the definition of “rules,” above: “Rule” means each agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of any agency.”

Petitioners’ original complaint, supported by all of the materials they produced to make their case, is that SoS Kemp should not have allowed the name of Barack Obama on the GA D Presidential preference primary ballot because under GA law, only the names of candidates who are qualified for office may be printed on the ballot; AND President Obama is Constitutionally unqualified for the job. That was a fatal mistake. Instead – and I am borrowing this from my work on those citizen complaints of election fraud to state A’sG, in the sidebar – they should have argued this.

The SoS allowed the name of Barack Obama on the ballot using bad rules. That is, he carried out his ministerial duty to oversee elections by using rules that allowed onto the ballot the name of a candidate for whom even the D’s refuse to provide documentary evidence available in the public record; is Constitutionally qualified for the job. Under the Nature of Proceedings, above, this would place the burden of proof back on Petitioner; the standard, a preponderance of the evidence (>50%). And that’s a good thing. If the burden remained on the SoS, he would argue, the rules are fine, and no one could demonstrate they haven’t worked to keep an unqualified candidate off the ballot. (Remember, nothing Petitioners argued could ever establish Obama is not a NBC.)

But with the burden of proof shifted to them, Petitioners could have made their case merely by issuing subpoenas for all of those officials involved in signing the 2008 Certification of Nomination from the DNC Services Corporation swearing the then nominee Obama was “duly nominated,” that is, vetted for Constitutional eligibility under the DNC Charter; and submitting this to the GA SoS in 2008 to get his name printed on the ballot. Again, the blueprint for this argument and the evidence which Petitioners could have submitted into the record to support this argument; is laid out in those citizen complaints.

Do you suppose any of the D witnesses would have shown up?  Again, under the Administrative Procedure rule regarding default (above), if a default issued, this means, the ALJ has the authority to ignore any input from these witnesses. But this absence would actually speak volumes. It would demonstrate for everyone to see what we – I -have been saying all along: everyone else is willing to explain why Barack Obama is a NBC but the official members of the D party. Not when it comes to answering the question for voters and constituents – see the evidence compiled in the citizen complaints to state A’sG – and not  when it comes to explaining his eligibility to an official judicial or administrative body.  No reasonable person could be expected to trust the word of people who refuse to back up their word with their presence at this proceeding.

The Case Official representing the Respondent SoS could only argue back, ‘We did what we always do; accept the representation of the candidate’s (presumptive) qualification, from the Party.’

Finally, GA Petitioners could have asked that the SoS immediately promulgate appropriate rules so as to ensure that from now on, only the names of qualified candidates will appear on the state ballot.

GEORGIA CODE
Copyright 2011 by The State of Georgia
All rights reserved.
*** Current Through the 2011 Extraordinary Session ***
TITLE 50.  STATE GOVERNMENT
CHAPTER 13.  ADMINISTRATIVE PROCEDURE
ARTICLE 1.  GENERAL PROVISIONS
O.C.G.A. § 50-13-9  (2011)

§ 50-13-9.  Petition for promulgation, amendment, or repeal of rule; agency response

An interested person may petition an agency requesting the promulgation, amendment, or repeal of a rule. Each agency shall prescribe by rule the form for petitions and the procedure for their submission, consideration, and disposition. Within 30 days after submission of a petition, the agency either shall deny the petition in writing, stating its reasons for the denial, or shall initiate rule-making proceedings in accordance with Code Section 50-13-4.

And, under the timetable provided for, by law, these rules could be in place in time for the 2012 general election ballot.

That’s my analysis, for what it’s worth.

…………………………………………………………………………………………………………………………………………………………….

Freedom costs.

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Posted by jbjd

MIDNIGHT TRAIN (of THOUGHT) to GEORGIA

January 26, 2012

 ©2012 jbjd

Okay, so now we have confirmation that 1) President Obama will not be attending today’s administrative law hearing in Georgia and 2) neither will Attorney Michael Jablonski, representing him in that matter.

For those of you who, since learning these latest developments, have experienced a sudden descent from the manic phase of the bipolar-like disorder associated with blind belief in the probable success of any ‘legal’ ploy attempted by Attorney Orly Taitz in her quixotic pursuit of exposing President Obama is not a NBC; I offer a little ‘chillin’ out’ music for your listening pleasure.

Now, let’s work.

Here is the letter sent by Mr. Jablonski to Secretary Kemp. (H/T Jack Ryan.)

View this document on Scribd

The most important words are these:

For these reasons, and as discussed briefly below, you should bring an end to this baseless, costly and unproductive hearing by withdrawing the original hearing request as improvidently issued

Here’s the reason why.

In previous posts on the subject, I  cited several portions of the Georgia statutes which apply to the administrative process. In sum, there are 2 ways a challenge to the conduct of the Secretary of State with respect to ballot challenges, can reach the OSAH. 1) The elector aggrieved by an adverse decision of the SoS can appeal that adverse decision to the OSAH. 2) The SoS, on receiving a challenge to his act; can ‘certify’ the challenge directly to the OSAH.

For example, this section of the law describes how to file a ballot challenge.

O.C.G.A. § 21-2-5
GEORGIA CODE
Copyright 2011 by The State of Georgia
All rights reserved.
*** Current Through the 2011 Extraordinary Session ***
TITLE 21.  ELECTIONS
CHAPTER 2.  ELECTIONS AND PRIMARIES GENERALLY
ARTICLE 1.  GENERAL PROVISIONS
O.C.G.A. § 21-2-5  (2011)

§ 21-2-5.  Qualifications of candidates for federal and state office; determination of qualifications

(a) Every candidate for federal and state office who is certified by the state executive committee of a political party or who files a notice of candidacy shall meet the constitutional and statutory qualifications for holding the office being sought.

(b) The Secretary of State upon his or her own motion may challenge the qualifications of any candidate at any time prior to the election of such candidate. Within two weeks after the deadline for qualifying, any elector who is eligible to vote for a candidate may challenge the qualifications of the candidate by filing a written complaint with the Secretary of State giving the reasons why the elector believes the candidate is not qualified to seek and hold the public office for which he or she is offering. Upon his or her own motion or upon a challenge being filed, the Secretary of State shall notify the candidate in writing that his or her qualifications are being challenged and the reasons therefor and shall advise the candidate that he or she is requesting a hearing on the matter before an administrative law judge of the Office of State Administrative Hearings pursuant to Article 2 of Chapter 13 of Title 50 and shall inform the candidate of the date, time, and place of the hearing when such information becomes available. The administrative law judge shall report his or her findings to the Secretary of State.

(c) The Secretary of State shall determine if the candidate is qualified to seek and hold the public office for which such candidate is offering. If the Secretary of State determines that the candidate is not qualified, the Secretary of State shall withhold the name of the candidate from the ballot or strike such candidate’s name from the ballot if the ballots have been printed. If there is insufficient time to strike the candidate’s name or reprint the ballots, a prominent notice shall be placed at each affected polling place advising voters of the disqualification of the candidate and all votes cast for such candidate shall be void and shall not be counted.

(d) In the event that a candidate pays his or her qualifying fee with a check that is subsequently returned for insufficient funds, the Secretary of State shall automatically find that such candidate has not met the qualifications for holding the office being sought, unless the bank, credit union, or other financial institution returning the check certifies in writing by an officer’s or director’s oath that the bank, credit union, or financial institution erred in returning the check.

(e) The elector filing the challenge or the candidate challenged shall have the right to appeal the decision of the Secretary of State by filing a petition in the Superior Court of Fulton County within ten days after the entry of the final decision by the Secretary of State. The filing of the petition shall not itself stay the decision of the Secretary of State; however, the reviewing court may order a stay upon appropriate terms for good cause shown. As soon as possible after service of the petition, the Secretary of State shall transmit the original or a certified copy of the entire record of the proceedings under review to the reviewing court. The review shall be conducted by the court without a jury and shall be confined to the record. The court shall not substitute its judgment for that of the Secretary of State as to the weight of the evidence on questions of fact. The court may affirm the decision or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the findings, inferences, conclusions, or decisions of the Secretary of State are:

(1) In violation of the Constitution or laws of this state;

(2) In excess of the statutory authority of the Secretary of State;

(3) Made upon unlawful procedures;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(6) Arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.

An aggrieved party may obtain a review of any final judgment of the superior court by the Court of Appeals or the Supreme Court, as provided by law.

And this section of the law describes the ways an agency dispute can reach the OSAH.

O.C.G.A. § 50-13-41
GEORGIA CODE
Copyright 2011 by The State of Georgia
All rights reserved.
*** Current Through the 2011 Extraordinary Session ***
TITLE 50.  STATE GOVERNMENT
CHAPTER 13.  ADMINISTRATIVE PROCEDURE
ARTICLE 2.  OFFICE OF STATE ADMINISTRATIVE HEARINGS
O.C.G.A. § 50-13-41  (2011)

§ 50-13-41.  Hearing procedures; powers of administrative law judge; issuance of decision; review

(a)(1) Whenever a state agency authorized by law to determine contested cases initiates or receives a request for a hearing in a contested case which is not presided over by the agency head or board or body which is the ultimate decision maker, the hearing shall be conducted by the Office of State Administrative Hearings, and such hearings shall be conducted in accordance with the provisions of this chapter and the rules and regulations promulgated under this article.

(2) An administrative law judge shall have the power to do all things specified in paragraph (6) of subsection (a) of Code Section 50-13-13.

(b) An administrative law judge shall have all the powers of the referring agency with respect to a contested case. Subpoenas issued by an administrative law judge shall be enforced in the manner set forth in paragraph (7) of subsection (a) of Code Section 50-13-13. Nothing in this article shall affect, alter, or change the ability of the parties to reach informal disposition of a contested case in accordance with paragraph (4) of subsection (a) of Code Section 50-13-13.

(c) Within 30 days after the close of the record, an administrative law judge shall issue a decision to all parties in the case except when it is determined that the complexity of the issues and the length of the record require an extension of this period and an order is issued by an administrative law judge so providing. Every decision of an administrative law judge shall contain findings of fact, conclusions of law, and a recommended disposition of the case.

(d) Except as otherwise provided in this article, in all cases every decision of an administrative law judge shall be treated as an initial decision as set forth in subsection (a) of Code Section 50-13-17, including, but not limited to, the taking of additional testimony or remanding the case to the administrative law judge for such purpose. On review, the reviewing agency shall consider the whole record or such portions of it as may be cited by the parties. In reviewing initial decisions by the Office of State Administrative Hearings, the reviewing agency shall give due regard to the administrative law judge’s opportunity to observe witnesses. If the reviewing agency rejects or modifies a proposed finding of fact or a proposed decision, it shall give reasons for doing so in writing in the form of findings of fact and conclusions of law.
(e)(1) A reviewing agency shall have a period of 30 days following the entry of the decision of the administrative law judge in which to reject or modify such decision. If a reviewing agency fails to reject or modify the decision of the administrative law judge within such 30 day period, then the decision of the administrative law judge shall stand affirmed by the reviewing agency by operation of law.

(2) A reviewing agency may prior to the expiration of the review period provided for in paragraph (1) of this subsection extend such review period by order of the reviewing agency in any case wherein unusual and compelling circumstances render it impracticable for the reviewing agency to complete its review within such period. Any such order shall recite with particularity the circumstances which render it impracticable for the reviewing agency to complete its review within such review period. Any such extension by the reviewing agency shall be for a period of time not to exceed 30 days. Prior to the expiration of the extended review period, the review period may be further extended by further order of the reviewing agency for one additional period not to exceed 30 days if unusual and compelling circumstances render it impracticable to complete the review within the extended review period. Such further order further extending the review period shall likewise recite with particularity the circumstances which render it impracticable for the reviewing agency to complete its review within the review period as previously extended. If a reviewing agency fails to reject or modify the decision of the administrative law judge within the extended review period, then the decision of the administrative law judge shall stand affirmed by the reviewing agency by operation of law.

(3) An agency may provide by rule that proposed decisions in all or in specified classes of cases before the Office of State Administrative Hearings will become final without further agency action and without expiration of the 30 day review period otherwise provided for in this subsection.

As I said, I didn’t know which route got us to ‘here.’

I am not privy to what chain of events preceded this hearing or, to the documents previously presented to the Secretary; I have no idea how this case reached the administrative hearing level. But, obviously, Farrar must have failed to persuade Kemp to remove Obama’s name from the ballot in that state’s 2012 Democratic Presidential primary. Farrar disagreed with that decision. Under GA law, this led to the administrative hearing. Orly subpoenaed Obama to appear at the hearing in order to provide testimonial evidence which would support her client’s claim that by refusing to do as asked, that is, to remove Obama’s name from the primary ballot; the SoS had broken the law.

WITNESS FOR ORLY’S PERSECUTION or MUCH ADO ABOUT ABSOLUTELY NOTHING

Then, I read Mr. Jablonski’s letter to Secretary Kemp, withdrawing from these administrative proceedings; and Secretary Kemp’s reply. (H/T nolu chan.)

View this document on Scribd

Now, I know this case ended up in front of the ALJ not as the result of an adverse decision against Mr. Farrar by the SoS. Evidently, Mr. Kemp had never issued such ruling but only referred the matter directly to the OSAH. How do I know?

Because Attorney Jablonski referred to Secretary Kemp’s “hearing request.” That is, the request for hearing did not come from Farrar but from Secretary Kemp.

And I know why Mr. Kemp wrote what he did.

I regret that you do not feel that the proceedings are appropriate, my referral of this matter to anadministrative law judge at OSAH was in keeping with Georgia law, and specifically O.C.G.A. § 21-2-5.

First, let me remind you that in yesterday’s post, I referenced a part of the law which states, the authority vested in OSAH is limited by § 50-4-3.

O.C.G.A. § 50-13-40

GEORGIA CODE
Copyright 2011 by The State of Georgia
All rights reserved.
*** Current Through the 2011 Extraordinary Session ***
TITLE 50.  STATE GOVERNMENT
CHAPTER 13.  ADMINISTRATIVE PROCEDURE
ARTICLE 2.  OFFICE OF STATE ADMINISTRATIVE HEARINGS
O.C.G.A. § 50-13-40  (2011)

§ 50-13-40.  Office created; chief state administrative law judge

(a) There is created within the executive branch of state government the Office of State Administrative Hearings. The office shall be independent of state administrative agencies and shall be responsible for impartial administration of administrative hearings in accordance with this article. The office shall be assigned for administrative purposes only, as that term is defined in Code Section 50-4-3, to the Department of Administrative Services.
…

Now, since most of you evidently didn’t bother to look up § 50-4-3; I re-print the law here, in its entirety.

O.C.G.A. § 50-4-3
GEORGIA CODE
Copyright 2011 by The State of Georgia
All rights reserved.
*** Current Through the 2011 Extraordinary Session ***
TITLE 50.  STATE GOVERNMENT
CHAPTER 4.  ORGANIZATION OF EXECUTIVE BRANCH GENERALLY
O.C.G.A. § 50-4-3  (2011)

§ 50-4-3.  Assignment for administrative purposes only; authorities to retain separate identities

(a) An agency assigned to a department for administrative purposes only shall:

(1) Exercise its quasi-judicial, rule-making, licensing, or policy-making functions independently of the department and without approval or control of the department;

(2) Prepare its budget, if any, and submit its budgetary requests, if any, through the department; and

(3) Hire its own personnel if authorized by the Constitution of this state or by statute or if the General Assembly provides or authorizes the expenditure of funds therefor.

(b) The department to which an agency is assigned for administrative purposes only shall:

(1) Provide record keeping, reporting, and related administrative and clerical functions for the agency;

(2) Disseminate for the agency required notices, rules, or orders adopted, amended, or repealed by the agency;

(3) Provide staff for the agency subject to paragraph (3) of subsection (a) of this Code section; and

(4) Include in the departmental budget the agency’s budgetary request, if any, as a separate part of the budget and exactly as prepared and submitted to the department by the agency.

(c) Whenever any authority is assigned for administrative purposes, it means only that the state department through which the authority deals with the state shall be that department to which the authority is assigned. Any authority created by state law shall retain its separate identity as an instrumentality of the state and a public corporation. The department to which an authority is assigned is authorized, only with the approval of the authority, to perform for such authority any or all of the functions set forth in subsection (b) of this Code section.

This means that, when the SoS asks (through a referral) the OSAH to issue a finding in a disputed case; it is essentially engaging OSAH as a consultant. In this case, Secretary Kemp merely shifted the burden of addressing the complaint brought to his office by Mr. Farrar; to its consulting branch, OSAH, for reasons about which I will not speculate in this article, which is already too long.

BUT THE EXECUTIVE AUTHORITY TO DETERMINE WHOSE NAME GOES ON THE BALLOT IS ALWAYS VESTED IN THE OFFICE OF THE SECRETARY OF STATE, AND NOT OSAH.

In short, Secretary Kemp tried to avoid dealing with this issue by relying on OSAH, consultants for his office, to provide some political cushioning for his conduct. But now that Mr. Jablonski has opted out of the circus; he is (seemingly) protesting, at least in public, the fact the issue has been tossed right back in his lap.

Trust me; the outcome would have been the same, either way.

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Posted by jbjd

WITNESS FOR ORLY’S PERSECUTION or MUCH ADO ABOUT ABSOLUTELY NOTHING

January 24, 2012

©2012 jbjd

In yesterday’s post, WITH ALL DUE RESPECT to ORLY TAITZ I included a link to the home page of the Georgia Office of State Administrative Hearings (“OSAH”) containing a video explaining the administrative hearing process. Please click on this link now, and watch the video. Pay attention to who is the Petitioner” (or “Plaintiff”)at these hearings, and who is the “Respondent” (or “Defendant”). Then, you will understand what I am about to say.

The ‘person’ on ‘trial’ on January 26 is the Office of the Secretary of State of Georgia, Brian P. Kemp, and not President Obama. Yes, the words “Plaintiffs” and “Defendants” appear on both the ‘pleadings’ and the rulings issued by Administrative Law Judge Michael M. Malihi. But, technically, Farrar is the Petitioner. And, technically, guess who is the Respondent? Yep; Secretary of State Kemp.

Thus, even though the question to be answered through this hearing process tangentially involves Mr. Obama; no question, but for Mr. Farrar’s subpoena, Mr. Obama would not be expected to attend. So, why did he have his attorney, Orly Taitz, issue that subpoena? You won’t believe this: she wants him there as a witness for her client, Petitioner Farrar!

I am not privy to what chain of events preceded this hearing or, to the documents previously presented to the Secretary; I have no idea how this case reached the administrative hearing level. But, obviously, Farrar must have failed to persuade Kemp to remove Obama’s name from the ballot in that state’s 2012 Democratic Presidential primary. Farrar disagreed with that decision. Under GA law, this led to the administrative hearing. Orly subpoenaed Obama to appear at the hearing in order to provide testimonial evidence which would support her client’s claim that by refusing to do as asked, that is, to remove Obama’s name from the primary ballot; the SoS had broken the law.

I cannot predict exactly what will happen at Thursday’s hearing before Georgia Administrative Law Judge Malihi. But I am absolutely certain what will  not: President Obama will not participate in this dog and pony show. For one thing, as I already explained in WITH ALL DUE RESPECT to ORLY TAITZ; he was not ordered to appear, despite the media circus triggered both by Orly’s ‘misinterpretation’ of ALJ Malihi’s refusal to grant Defendant’s motion to quash Plaintiff’s subpoena and the AP’s grossly incompetent reporting of her misinterpretation. In fact, as Orly surely must know, ALJ Malihi has no authority to compel him to appear. How do I know this, given the fact, this is not my case? Because, unfamiliar with the scope of authority vested in Administrative Law Judges in the state of Georgia; I looked this up.

First, a primer on the founding principle of governmental separation of powers or, checks and balances, which produced these 3 separate branches: Executive, Legislative, and Judicial.

The ballot challenge case brought by Orly on behalf of her client, Farrar, originated in the Executive branch, with the Office of the Secretary of State based on that office’s statutory oversight of the function of elections. Basically, Farrar charged, exercising the lawful authority conferred by GA statutes (Legislative branch); the SoS should remove Obama’s name from the D primary ballot in that state on the basis that 1) under GA law, the state may only print on the ballot the names of those candidates qualified for office; and 2) Presidential candidate Barack Obama is not Constitutionally qualified for the job. The office of the SoS referred the matter to the Office of State Administrative Hearings (Executive branch).

Did you catch that? The GA Office of State Administrative Hearings is part of the Executive branch of government and not, as I suspect most of you assumed, the Judicial branch.

O.C.G.A. § 50-13-40

GEORGIA CODE
Copyright 2011 by The State of Georgia
All rights reserved.
*** Current Through the 2011 Extraordinary Session ***
TITLE 50.  STATE GOVERNMENT
CHAPTER 13.  ADMINISTRATIVE PROCEDURE
ARTICLE 2.  OFFICE OF STATE ADMINISTRATIVE HEARINGS
O.C.G.A. § 50-13-40  (2011)

§ 50-13-40.  Office created; chief state administrative law judge

(a) There is created within the executive branch of state government the Office of State Administrative Hearings. The office shall be independent of state administrative agencies and shall be responsible for impartial administration of administrative hearings in accordance with this article. The office shall be assigned for administrative purposes only, as that term is defined in Code Section 50-4-3, to the Department of Administrative Services.
…

The authority of the OSAH is strictly limited to the administration of an office or agency of the Executive branch and does not extend to authority over the person, as spelled out in GA law.

O.C.G.A. §50-13-13

GEORGIA CODE
Copyright 2011 by The State of Georgia
All rights reserved.
*** Current Through the 2011 Extraordinary Session ***
TITLE 50.  STATE GOVERNMENT
CHAPTER 13.  ADMINISTRATIVE PROCEDURE
ARTICLE 1.  GENERAL PROVISIONS
O.C.G.A. § 50-13-13  (2011)

§ 50-13-13.  Opportunity for hearing in contested cases; notice; counsel; subpoenas; record; enforcement powers; revenue cases

(a) In addition to any other requirements imposed by common law, constitution, statutes, or regulations:

(1) In any contested case, all parties shall be afforded an opportunity for hearing after reasonable notice served personally or by mail;

(2) The notice shall include:

(A) A statement of the time, place, and nature of the hearing;

(B) A statement of the legal authority and jurisdiction under which the hearing is to be held;

(C) A reference to the particular section of the statutes and rules involved;

(D) A short and plain statement of the matters asserted. If the agency or other party is unable to state the matters in detail at the time, the notice may be limited to a statement of the issues involved. Thereafter, upon application, a more definite and detailed statement shall be furnished; and

(E) A statement as to the right of any party to subpoena witnesses and documentary evidence through the agency;

(3) Opportunity shall be afforded all parties to be represented by legal counsel and to respond and present evidence on all issues involved;

(4) Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default;

(5) Unless specifically precluded by statute, in addition to the agency, any contested case may be held before any agency representative who has been selected and appointed by the agency for such purpose. Before appointing a hearing representative, the agency shall determine that the person under consideration is qualified by reason of training, experience, and competence;

(6) The agency, the hearing officer, or any representative of the agency authorized to hold a hearing shall have authority to do the following: administer oaths and affirmations; sign and issue subpoenas; rule upon offers of proof; regulate the course of the hearing, set the time and place for continued hearings, and fix the time for filing briefs; dispose of motions to dismiss for lack of agency jurisdiction over the subject matter or parties or for any other ground; dispose of motions to amend or to intervene; provide for the taking of testimony by deposition or interrogatory; and reprimand or exclude from the hearing any person for any indecorous or improper conduct committed in the presence of the agency or the hearing officer;

(7) Subpoenas shall be issued without discrimination between public and private parties. When a subpoena is disobeyed, any party may apply to the superior court of the county where the contested case is being heard for an order requiring obedience. (All emphasis added by jbjd.) Failure to comply with such order shall be cause for punishment as for contempt of court. The costs of securing the attendance of witnesses, including fees and mileage, shall be computed and assessed in the same manner as prescribed by law in civil cases in the superior court;

(8) A record shall be kept in each contested case and shall include:

(A) All pleadings, motions, and intermediate rulings;

(B) A summary of the oral testimony plus all other evidence received or considered except that oral proceedings or any part thereof shall be transcribed or recorded upon request of any party. Upon written request therefor, a transcript of the oral proceeding or any part thereof shall be furnished to any party of the proceeding. The agency shall set a uniform fee for such service;

(C) A statement of matters officially noticed;

(D) Questions and offers of proof and rulings thereon;

(E) Proposed findings and exceptions;

(F) Any decision (including any initial, recommended, or tentative decision), opinion, or report by the officer presiding at the hearing; and

(G) All staff memoranda or data submitted to the hearing officer or members of the agency in connection with their consideration of the case; and

(9) Findings of fact shall be based exclusively on the evidence and on matters officially noticed.

(b) In proceedings before the agency, the hearing officer, or any representative of the agency authorized to hold a hearing, if any party or an agent or employee of a party disobeys or resists any lawful order of process; or neglects to produce, after having been ordered to do so, any pertinent book, paper, or document; or refuses to appear after having been subpoenaed; or, upon appearing, refuses to take the oath or affirmation as a witness; or after taking the oath or affirmation, refuses to testify, the agency, hearing officer, or other representative shall have the same rights and powers given the court under Chapter 11 of Title 9, the “Georgia Civil Practice Act.” If any person or party refuses as specified in this subsection, the agency, hearing officer, or other representative may certify the facts to the superior court of the county where the offense is committed for appropriate action, including a finding of contempt. The agency, hearing officer, or other representative shall have the power to issue writs of fieri facias in order to collect fines imposed for violation of a lawful order of the agency, hearing officer, or other representative.

(c) Except in cases in which a hearing has been demanded under Code Section 50-13-12, subsection (a) of this Code section and the other provisions of this chapter concerning contested cases shall not apply to any case arising in the administration of the revenue laws, which case is subject to a subsequent de novo trial of the law and the facts in the superior court.

Thus, not only did ALJ Malihi not order Mr. Obama to obey Plaintiff’s subpoena to appear but, he could not issue such an order, anyway, lacking the authority to do so, under the law. Nope; his job is to decide whether the agency followed the law.  You want to compel the President’s attendance at an administrative hearing so that he can testify on behalf of your client that by not removing his name from the primary ballot; the Secretary of State had broken the law? Go ask the Superior Court. (And don’t hold your breath.)

Then, there’s this, express limitation on the weight of any ruling resulting from that administrative hearing.

O.C.G.A. § 50-13-41

GEORGIA CODE
Copyright 2011 by The State of Georgia
All rights reserved.
*** Current Through the 2011 Extraordinary Session ***
TITLE 50.  STATE GOVERNMENT
CHAPTER 13.  ADMINISTRATIVE PROCEDURE
ARTICLE 2.  OFFICE OF STATE ADMINISTRATIVE HEARINGS
O.C.G.A. § 50-13-41  (2011)

§ 50-13-41.  Hearing procedures; powers of administrative law judge; issuance of decision; review

(a)(1) Whenever a state agency authorized by law to determine contested cases initiates or receives a request for a hearing in a contested case which is not presided over by the agency head or board or body which is the ultimate decision maker, the hearing shall be conducted by the Office of State Administrative Hearings, and such hearings shall be conducted in accordance with the provisions of this chapter and the rules and regulations promulgated under this article.

(2) An administrative law judge shall have the power to do all things specified in paragraph (6) of subsection (a) of Code Section 50-13-13.

(b) An administrative law judge shall have all the powers of the referring agency with respect to a contested case. Subpoenas issued by an administrative law judge shall be enforced in the manner set forth in paragraph (7) of subsection (a) of Code Section 50-13-13. Nothing in this article shall affect, alter, or change the ability of the parties to reach informal disposition of a contested case in accordance with paragraph (4) of subsection (a) of Code Section 50-13-13.

(c) Within 30 days after the close of the record, an administrative law judge shall issue a decision to all parties in the case except when it is determined that the complexity of the issues and the length of the record require an extension of this period and an order is issued by an administrative law judge so providing. Every decision of an administrative law judge shall contain findings of fact, conclusions of law, and a recommended disposition of the case.

(d) Except as otherwise provided in this article, in all cases every decision of an administrative law judge shall be treated as an initial decision as set forth in subsection (a) of Code Section 50-13-17, including, but not limited to, the taking of additional testimony or remanding the case to the administrative law judge for such purpose. On review, the reviewing agency shall consider the whole record or such portions of it as may be cited by the parties. In reviewing initial decisions by the Office of State Administrative Hearings, the reviewing agency shall give due regard to the administrative law judge’s opportunity to observe witnesses. If the reviewing agency rejects or modifies a proposed finding of fact or a proposed decision, it shall give reasons for doing so in writing in the form of findings of fact and conclusions of law.
(e)(1) A reviewing agency shall have a period of 30 days following the entry of the decision of the administrative law judge in which to reject or modify such decision. If a reviewing agency fails to reject or modify the decision of the administrative law judge within such 30 day period, then the decision of the administrative law judge shall stand affirmed by the reviewing agency by operation of law. (Emphasis added by jbjd.)

(2) A reviewing agency may prior to the expiration of the review period provided for in paragraph (1) of this subsection extend such review period by order of the reviewing agency in any case wherein unusual and compelling circumstances render it impracticable for the reviewing agency to complete its review within such period. Any such order shall recite with particularity the circumstances which render it impracticable for the reviewing agency to complete its review within such review period. Any such extension by the reviewing agency shall be for a period of time not to exceed 30 days. Prior to the expiration of the extended review period, the review period may be further extended by further order of the reviewing agency for one additional period not to exceed 30 days if unusual and compelling circumstances render it impracticable to complete the review within the extended review period. Such further order further extending the review period shall likewise recite with particularity the circumstances which render it impracticable for the reviewing agency to complete its review within the review period as previously extended. If a reviewing agency fails to reject or modify the decision of the administrative law judge within the extended review period, then the decision of the administrative law judge shall stand affirmed by the reviewing agency by operation of law.

(3) An agency may provide by rule that proposed decisions in all or in specified classes of cases before the Office of State Administrative Hearings will become final without further agency action and without expiration of the 30 day review period otherwise provided for in this subsection.

In other words, the Secretary need not adopt the recommendation of the ALJ, anyway!

Phew! That’s enough for now; let’s start with this and then tomorrow, I will spell out what I predict will happen on Thursday.

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Posted by jbjd

WITH ALL DUE RESPECT to ORLY TAITZ

January 21, 2012

(UPDATED 01.22.12, in text)

(UPDATED 01.23.12, at bottom)

© 2012 jbjd

Sometimes during my forays onto other blogs, I am compelled either by request or necessity to clarify or explain misunderstandings making the internet rounds. But this pernicious misinterpretation merits its own post. First, the ‘chase’:

No judge has issued an Order requiring President Obama to appear, all reporting by the AP and web sites quoting the AP; and Orly’s cyberspace victory dance – “I won!!! I won!!!” – notwithstanding.

The comment that first got my attention, posted on CW, included what was ostensibly an email the writer had received from Orly. Having successfully managed to avoid wading into her site for the past several months, I now had to go there to find the ‘original.’ Here it is, in its entirety.

I won!!! I won!!! I won!!! Judge Malihi ruled in my favor. Obama’s motion to quash my subpoena is denied! He has to appear at trial and present all the documents that I demanded to produce in my subpoena! (Note from jbjd: THIS IS NOT A TRIAL! IT IS MERELY AN ADMINISTRATIVE HEARING! The narrow legal question to be answered here isn’t even whether candidate Obama is Constitutionally qualified for President and so may appear on the Georgia ballot; but whether Obama followed the rules set by election officials, to get on the ballot. Know your government. Georgia Office of State Administrative Hearings)

Posted on | January 20, 2012 | 163 Comments

It has been 3 years of 24/7/365 fight. I was defamed, viciously maligned by so many Obots (Obama bots), pro-Obama media thugs, by a few corrupt officials and judges. Recently even people, who claimed to be on my side turned sides and viciously defamed me and attacked me. Among them were Arlen Williams, Dean Haskins, owner of a blog Birther Summit, Bob Nelson-owner of a blog Birther Report or ObamaReleaseYourRecords, Helen Tansey -owner of a blog art2superpac and even attorneys, who should’ve had some professional ethics. Attorneys Gary Kreep and Philip Berg filed insane pleadings, saying that I tried to hire a hit man to kill Lisa Liberi, legal assistant of attorney Berg and kidnap children of a web master Lisa Ostella. It has been 3 years of total nightmare, these people were like a pack of wild dogs attacking me and coming up with each and every accusation in the book. Now I am vindicated. My legal action is with merit. We are going to trial on January 26, 2012. I issued subpoenas.   Barack Obama through his attorney Michael Jablonski filed a motion to quash my subpoena and all the other subpoenas. I was attacked yet again in this motion. Judge Malihi just issued an order. Motion to quash my subpoena was denied. Barack Obama, President of the United States will have to appear in court on January 26 and comply with my subpoena and produce all the documents, that I demanded. Interesting, that two other attorneys are representing plaintiffs on similar matters: Van Irion and Mark Hatfield. They could have an opportunity to examine Obama with me, however either because I was maligned so badly or because they were scared to press the most explosive charges, these attorneys filed motions for their cases to be severed from my case. Their motions were granted. Irion’s case will be heard first. He stated on the record, that his case will take only 10 minutes and will be limited to ascertainment if Obama is legitimate based on the precedent of Minor v Happerset. Obama will not be answering any of his questions. Second will be a case presented by attorney Hatfield. He, also, severed his case and did not issue any subpoenas. In his motion to sever he stated that he did not want to be joined in the same complaint with me, because he did not want to be part of a  case, where I brought forward allegations of elections fraud and social security fraud committed by Barack Obama. Hatfield was saying that he was afraid that his clients will be prejudiced by such explosive allegations.  Yesterday, after I filed an opposition to motion to quash, attorney Hatfield tried to follow suit by filing a notice to appear, however notice does not have as much of a  force as a subpoena and I do not believe Obama will be complying with a notice, particularly since Hatfield’s complaint does not entail the same charges as mine. My case will be heard third.    My case will not be limited to definition of natural born based on a case Minor v Happersett. I will be also presenting a case, showing that elections fraud was committed by Barack Obama, that he is using a forged birth certificate, stolen or fraudulently obtained Social Security number and that there is no evidence to believe that the last name he is using is legally his, due to the fact, that in his mother’s passport he goes under the name Soebarkah and in his school registration in Indonesia he went by the last name Soetoro. There is no evidence of legal change of name.

I wanted to thank people who helped me along the way with donations, who did not stick a knife in my back, like the ones mentioned before. I am asking my supporters to donate to this work, as I am paying for  airfare and hotel of witnesses and a number of other expenses. Also, if you are a CA Republican please, download my nomination for the US Senate and sign and circulate it.

nomination papers (link omitted by jbjd)

Make no mistake about it. This is the beginning of Watergate2 or ObamaForgeryGate.  I believe this is the second time in the U.S. history a sitting President is ordered to comply with a subpoena, and produce documents, which might eventually bring criminal charges to the President and a number of high ranking individuals.

I feel extremely proud to be a part of this historic moment. I guess an American dream is still alive, as this subpoena was issued by an immigrant, who was raised in a communist dictatorship of the Soviet Union and came here with one suitcase with a couple of dresses, who had to study English, to study law at night, while working as a dentist  and raising a family with 3 children. Only in America is this possible.

Humbly,

Dr. Orly Taitz, ESQ

So many of her statements triggered automatic internal rebuttals that I could have written volumes before making the record clear.  But, even before creating “jbjd,” I had written numerous comments on others’ blogs explaining that if Obama becomes the D nominee for POTUS the only way to keep him out of the WH is to keep his name off the ballot. (I posted my epiphany on NoQuarter the first week in August 2008.) So, I knew what to write first.

Here is the response I posted on CW.

I set up my blog at the end of August 2008. One of the first posts instructed citizens, the only way to keep Obama’s name off the ballot if  he takes the D nomination; was to challenge his eligibility in those states that require candidate eligibility to appear on the ballot.

http://jbjd.org/2008/08/31/challenging-bo%E2%80%99s-eligibility-to-get-onto-the-general-election-ballot-as-the-democratic-candidate-for-potus/

GA is one of those states.  And, I know that Orly has known since back in 2008 that GA is one of those states because, at that time, I told her.  That is, I published a memo in which I proposed there are 2 ways to keep Obama out of the WH. First, of course, was the ballot challenge; and I specifically mentioned GA.

For example, here is the requirement to get onto the general election ballot in the State of GA, under the Official Code of GA Annotated (O.C.G.A.), §21-2-5, Qualifications of candidates for federal and state office; determination of qualifications. “Every candidate for federal and state office who is certified by the state executive committee of a political party … shall meet the constitutional and statutory qualifications for holding the office being sought.” (Note: President, U.S. Senator, or U.S. Representative are federal offices.) This means that, according to GA law, when the state Party chair submits the Party nominee to the Secretary of State (“S of S”) to be put onto the general election ballot, that nominee must be eligible for the office sought. But there is no corresponding GA law that says the S of S receiving this paperwork from the state Party chair must verify this eligibility. Under that same law, the State of GA set up a mechanism by which voters may file a challenge with the S of S questioning the eligibility of a candidate to appear on the ballot; and for the S of S to initiate such a challenge on her own. “The Secretary of State upon his or her own motion may challenge the qualifications of any candidate at any time prior to the election of such candidate.” But again, the operative word here is “may.” In other words, even in a state like GA, one of the few states with laws that provide for a mechanism for voters to challenge a candidate’s eligibility to get onto the general election ballot, no law requires the state to investigate the candidate based on that challenge. (Notice that technically, even GA law does not confer power on the S of S to determine whether any candidate is eligible for the office sought but only to determine this: whether he is eligible by virtue of satisfying the requirements of the office sought to get onto the general election ballot.)
http://jbjd.org/2008/11/30/find-out-whether-barack-obama-is-a-natural-born-citizen-as-required-under-article-ii-of-the-us-constitution-and-stop-the-electoral-college-from-voting-for-him-if-he-is-not/

It was this memo, which also included the idea of a complaint filed under the Federal Declaratory Judgment Act, using National Guard Plaintiffs; which first attracted Orly’s attention to my work, and triggered our short-lived collaboration, during which time I drafted the military complaint; and intervened at the request of a soldier who had been trying unsuccessfully to get her to withdraw the waiver he signed to join that complaint. .

So, more than 3 wasted years and countless squandered dollars in contributions and who knows how many frequent flyer miles later; she decided to take my advice and challenge the qualifications of a candidate for office in a state that only allows to be printed on the ballot the names of those candidates qualified for the job. And, given this legal route of redress, she would have you believe, the court has endorsed her methodology.

Further, based on this demonstrated pattern of out-of-control spending and prolongued failure to heed sound legal advice; evidently, she now feels worthy of soliciting your support for the U.S. Senate.

“Humbly”? Yeah, right..

P.S. Of course, this in no way means, I agree with either the substantive case she has brought in GA or, her ‘take’ on the (seeming) success of her case. In the end, she will fail in this effort as always. Please, keep in mind, in real life logic, failing to quash Plaintiff’s requested subpoena for Defendant to appear is not the same as Ordering Defendant to Appear, especially in this case, where the judge specifically wrote, Defendant had merely failed to cite to any sound legal reason the subpoena should not be allowed.

Some readers required further clarification of the true meaning of the court’s latest action in GA.

The GA election code requires that only candidates qualified for the job may have the state print their names on the ballot. The law allows citizens to contest the eligibility of candidates to the SoS and then, to an administrative law judge. (In other words, the process addresses whether the administration of the ballot eligibility law has been followed.) The Plaintiffs, represented by Orly, filed a ballot challenge with an administrative law judge arguing Defendant Obama is ineligible to be POTUS. They issued a subpoena – remember, this is the document they downloaded off the GA court web site but then ‘indicated’ was actually issued by the court – to Defendant Obama, requiring him to appear and answer questions. Under normal circumstances, if a Defendant served by Plaintiff with a subpoena, refuses to comply with the request; the Plaintiff may then ask the court to sign an Order compelling whatever the subpoena requires. Obama’s local (GA) attorney received the subpoena and submitted to the court a Motion to Quash, thereby asking the court not to allow Plaintiff’s subpoena. If granted, this would mean, Orly could not in the future compel such compliance. Orly awaited the judge’s ruling on Defendant’s motion, taking no further action, such as filing an Opposition to Defendant’s Motion to Quash; to advance her position. The judge ruled to reject Defendant’s motion on the narrow specific grounds that he had failed to provide sufficient (read, any) legal precedent or citations to support his motion. (Thus, in effect, by doing absolutely nothing, Orly succeeded for the first time in getting a ‘court’ ruling prolonging her case instead of ending it on the spot.) (UPDATE 01.22.12: I have now found an Opposition to Motion to Quash, dated January 19. However, I find no evidence this was either received or considered by the ALJ before he Denied Defendant’s Motion; and the Denial fails to mention or address Plaintiff’s Opposition.)

In other words, this administrative law procedure is several steps away from producing an Order to appear, Orly’s misrepresentations and cyberspace victory dance – “I won!!! I won!!!” – notwithstanding.

I pointed out to another commenter that considering both law and circumstances; a ballot challenge in SC likely would have had a far greater chance at success.

I absolutely agree, a correctly framed ballot challenge can be successful. But SC would have been the easiest state in which to launch such a challenge. As I have been writing for a couple of years now, primary candidates in that state are submitted to the election commission by the state party, which also certifies explicitly, in writing, the candidates are qualified for the job. In other words, there, the question to the court would have been, the party has failed to provide a basis for such certification. (Recall that, in 2008, the then party treasurer hand-delivered the primary names to the election commission, which refused to accept the list because it lacked that certification. So, she whipped out her pen and, on the spot, certified the candidates’ qualification!) http://jbjd.org/2009/10/10/if-it-looks-like-a-duck/

P.S. It’s still not too late to question the submission of his name as the D party nominee, to the general election ballot in that state!

But what really bothers me about Orly’s polemics is perhaps best represented by this comment from someone who I believe even at this point genuinely retains faith in her motives.
I am composing a special letter to all the VFW posts in our state, as well as other states making all of this known and the most recent progress of Orly. Hopefully some of them will see fit to make contributions. I have provided both her California postal address,and her website as well. Lets see what our vets think!

This intentional marketing of Orly’s defective work product, especially to veterans, prompted my more personalized response.

You just don’t get it.

The vet who contacted me had been trying to get Orly to destroy the representation agreement he had signed to become a Plaintiff in the military complaint she intended to file. Having re-read the language of her agreement, he realized, he opposed the extreme sentiments she had expressed and was quite concerned that by signing that agreement, he was exposing himself to serious legal (read, criminal) liability. Of course, he was absolutely right to be afraid. In fact, I had already objected to the wording in her release. Leo also urged her to recall that release on the grounds of this inflammatory language. Further, I had urged that only National Guard troops subject to recall, join any lawsuit, because until called up, they were not subject to the UCMJ (Uniform Code of Military Justice) and could not be disciplined for questioning Obama’s Constitutional eligibility. She chose to use other Plaintiffs. (She and I seldom agreed on anything.) Anyway, frustrated that he had been unable to get her to destroy his previous signed agreement; he asked for my help getting through to her. I contacted her; and she quite flippantly and, with an air of disgust, replied, ‘What does he want now?’ I hit the roof. He was the Plaintiff, not her; and he was the member of the military her words had placed in jeopardy. I got her to pull his release; and that’s the last time we collaborated on anything.

That you would solicit money for this charlatan evidences a blind faith not sustained by the record.

Perhaps not surprisingly, mimicking the response of so many of Orly’s acolytes, he became angry at reading the truth and then, directed his anger at me because I wrote it.

UPDATE 01.23.12: I found this comment posted 3 years ago, on another blog; supporting my claims that I assisted a veteran in withdrawing the problematic release he had signed to become a named Plaintiff in Orly’s version of my military complaint. 

daddynoz said…
Arlen,
I failed to previously identify the individual I have been conferring with regarding my concerns and intent to rectify the current constitutional crisis. The fellow’s name is “jbjd” (unfortunately I do not know his actual name). He has helped me as if he were my priest or bartender; he’s listened to my reservations regarding potentionally seditious or disloyal language found in a related complaint, addressed my questions of what the actual standing was (while considering what I thought it might be), and looked out for my welfare related to possible repercussions from military authorities.

http://jbjd.wordpress.com/

Thank you.

January 30, 2009 11:38 PM

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FAITHFUL to the FUNDING FATHERS

January 21, 2012

Just listen to this and then, please, tell me why you support any other candidate in this race.

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BUDDY ROEMER GETS “REAL”

January 18, 2012
Today, I received this email from the Roemer in 2012 campaign, which I am passing on to you with the hope that, you will take the time to check out this candidate, who has earned my vote.
Team,
We are marching forward. It is as simple as that. We may not have the K Street or Wall Street money behind us, but we have the people behind us. We are working toward a new kind of politics. A kind of politics that isn’t divisive or about who raises the most amount of money. As Governor Roemer has stated many times, “He hates American politics but loves America.” By working together and saying NO to the special interest money, we can get America on the right track again. Below are a few updates.

Governor Roemer will be hosting an online Town Hall at the Yowie HQ in California this Friday at 4:00pm PT. Please spread this link to all your family and friends: http://www.yowie.com/videochat/5mo-buddy-roemer

Governor Roemer will be a guest this Friday on Real Time with Bill Maher. Since it’s on HBO, anything can happen so expect Buddy to call out the other candidates by name and expose their ties to the special interests.

As you know, our campaign depends a lot on having a free and open internet. Congress is threatening this with two overreaching bills commonly known as Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA). We will be joining Wikipedia, Reddit, and others tomorrow in protest of these bills by turning our website, Facebook, Twitter and other social medial platforms off. Please join the cause and tell Congress to stop restricting our freedoms!

Thank you,

Carlos Sierra
Campaign Manager

P.S. We need help organizing our campaign in all 50 states. If you are interested in helping on the ground or online, please send an email with your contact information to info@buddyroemer.com.

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THE ONLY TRUE REPUBLICAN CANDIDATE of our TIMES

January 10, 2012

I am registered to vote but do not belong to any political party.

I am registered as “Unenrolled.” This does not mean, I am an Independent, as Independent is the name of an actual political party. I do not belong to a party. Being Unenrolled means, during the primary, I can vote for any party. I just declare that I am a member of that party on my way into the voting booth to receive that party’s ballot; I undeclare on my way out. Because that’s the law in my state.

But based on what I know about the R party; I absolutely agree with the sentiment expressed by NetBoots writer, Charles P. Pierce: Buddy Roemer is the only true R candidate of our times. And given what I know about the D party, he is the only true D candidate, too.

THE ONLY TRUE REPUBLICAN CANDIDATE of our TIMES

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PUT YOUR $ WHERE BUDDY’S MOUTH IS

January 6, 2012

© jbjd 2012

For those of you who still haven’t visited the campaign web site of Buddy Romer, who is seeking the (R) nomination for the office of President of the United States; or worse, don’t yet know who he is; I pulled together this sample from videos compiled on that site, which illustrate why the man has earned my support.

And this…

And this…

And this…

If you believe that money has corrupted our political system then, please, lend your support to the only candidate who not only agrees with you but also is determined to do something about it. One small donor at a time.

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CONTRIBUTING to the CORRECT CAMPAIGN

January 2, 2012

©2012 jbjd

I like Buddy Roemer. In fact, I like him so much that for the first time in this general election cycle I donated money to a candidate’s campaign. His campaign. The “American Needs Buddy for President 2012″ campaign. Twice. Well, almost twice. Actually, not at all.

See, I had sat on the fence long enough to lose the excuse, none of the current candidates for President who had reached my radar; merited my vote solely on the basis of ‘anything but Obama.’ Now, I was resigned to having to choose from among the least of all evils. And when I say, ‘evil,’ I do not mean, espousing views with which I disagree, because I am not primarily an issues voter. Everyone has issues; who’s to say, mine should take priority over everyone else’s? (Or theirs over mine.) Besides, who can accurately predict those issues which are yet to occur? That’s why I tend to look first for smart candidates able to think on their feet.

(This is why, as a teacher, I prefer open book tests. That is, for example, memorizing information can enable a user to operate a computerized industrial pneumatic drill. But without the ability to understand how this machine works, and how its work fits into the overall manufacture process; or to read and apply the operation manual; workers confronted with ‘glitches’ in operations, or documentation of software updates that will cure these ‘glitches’ will be  unable to implement these fixes without retraining.)

Then, just when I rationalized, I had to pick someone, anyone for President; Governor Roemer showed up on my screen. And I picked him. Not just because, he is the ‘best of the worst.’  And not because, theoretically, he is this smart comprehensive thinker. He actually has the track record that establishes, it’s true. (That points to another trait that attracts my attention: experience.)

But there is more that elevates Buddy Roemer above the rest of the political pack. Watch this.

Having done my homework with my new best candidate; I then decided to donate to his campaign, just one of the millions of small money donors he will need to offset the windfall contributions from big money contributors he has rejected. So, I went to the donation page on his campaign web site, and filled out the form. I pressed “Submit.” The form reappeared with instructions in bright red letters: ‘You made a mistake; check your information.’ So, I checked and re-checked the information and, again, pressed “Submit.” Same thing happened.

Just in case, I checked my bank account; and both contributions had been debited to my account! Now, I was guardedly upset. My chosen candidate, guilty of a campaign contribution scam? Say it ain’t so! I began searching for an email address and a phone number to the campaign so that I could advise them of the glitch on the campaign web site and, hopefully, reverse the double debit. I left messages explaining what had gone wrong.

That was 2 days ago, Saturday, New Year’s eve. Well, I just received a call back from a very pleasant man identifying himself as the FEC compliance officer for Mr. Roemer’s campaign. He explained, my message about the contribution glitch had been passed on to him; and he was eager to resolve my concerns. While we were on the phone, I pulled up my bank account on the computer. Sure enough, the debits no longer showed; and not because the double debit had been removed but because I hadn’t actually been double debited at all. Or even once.

See, the information relayed by pressing the “Submit” button on Roehmer’s site; appeared on my account moments before it was subsequently erased by the information relayed from Roemer’s site saying, ‘There is a problem with this form.’ And if I had checked the account again minutes later, I would have seen, my donationt had not been recorded at all. (Knowing what I know now, I can hypothesize that the reason my billing information was rejected likely originated at my bank, and was intended to protect the account from unauthorized withdrawals.)

In other words, I hadn’t actually donated at all to Mr. Roemer’s Presidential campaign. But I want to; the man gave me their mailing address so that I can make my contribution via the old-fashioned way.

This incident proved my point. That is, by endorsing Buddy Roemer for President, I had chosen the best candidate for the job. (Actually liking that choice came as a most pleasant surprise!)


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IT’S NOT OFFICIAL UNLESS IT’S SIGNED on the DOTTED LINE

October 29, 2011

©2011 jbjd

(UPDATE 10.30.11, AT BOTTOM)

I make mistakes; but if, after several defenses of my work over time, I continue to insist I am right then, you likely waste your time betting against me that I am wrong.  Especially when the person insisting I am wrong is one of the usual ‘suspects.’

I received an email from PJRieke, the contents of which appeared to be a wholesale copy of a lengthy post from the site naturalborncitizen, authored by Leo Donofrio.  The crux of the email and the post was this.  Since 2006, either the on-line publisher, Justia.com or, as Leo concedes, perhaps a hacker, ostensibly altered versions of the ‘legal’ cases appearing on the Justia.com web site so as to eliminate all references to Minor v. Happersett, the case Leo (wrongly) insists points to the ‘fact,’ Barack Obama cannot be said to be a NBC.

Here was my email response.

From: jbjd
To: PJR…
Sent: 10/22/2011 7:45:24 P.M. Eastern Daylight Time
Subj: Re: JUSTIA.COM SURGICALLY REMOVED “MINOR v HAPPERSETT” FROM 25 SUPREME COURT OPINION

PJR,

Justia.com is a commercial web site and not the official publisher of court cases in any state or the federal bench.  Therefore, crying ‘the sky is falling’ even assuming they are intentionally doctoring the text of ‘actual’ court cases by editing out certain references to force their point of view  is like complaining Bayer is intentionally over-simplifying the human digestive system in the rudimentary diagrams featured in its commercials for Alka-Seltzer.

And I have been saying this about Justia, for months… Do a search for “jbjd” and “Justia”..

jbjd

Well, this prompted an even lengthier email response from PJR, again, imported wholesale from Leo.  But this time, he defended against Leo’s baseless assertion that Justia.com or the hacker did something wrong, by elevating their alleged manipulation of electronically posted court cases into a criminal act, citing a portion of the U.S. Code relating to false publication. (Please note, I am only leaving in these excerpts from Leo’s blog so as to show to what lengths both PJR and he have gone trying to prove the falsehood they are peddling, is true.  Clearly, I neither support not endorse this ‘research.’)

On Fri, Oct 28, 2011 at 12:39 PM, <PJRieke@aol.com> wrote:

jbjd,
Just sayin’…,
and OH, BTW, it appears that “other” (than “most”) folks (that would be the lawyerly types - no offense intended) DO make use of it – also.
As for your comment
“… crying ‘the sky is falling’ even assuming they are intentionally doctoring the text of ‘actual’ court cases by editing out certain references to force their point of view  is like complaining Bayer is intentionally over-simplifying the human digestive system in the rudimentary diagrams featured in its commercials for Alka-Seltzer. “,
it’s considered a crime / felony to conceal, obfuscate or otherwise alter legal renderings…as I’m sure you’re well aware ofTAMPERING WITH OFFICIAL WRITINGS IS A CRIME UNDER 18 U.S.C. 1018.

§1018. Official certificates or writings

Whoever, being a public officer or other person authorized by any law of the United States to make or give a certificate or other writing, knowingly makes and delivers as true such a certificate or writing, containing any statement which he knows to be false, in a case where the punishment thereof is not elsewhere expressly provided by law, shall be fined under this title or imprisoned not more than one year, or both.

The statute covers a “person” authorized by any law of the US to make or give official writings.  Justia.com is authorized – according to the federal Public Domain laws – to re-publish US Supreme Court opinions.
(source):
pjr
“…AUDIO INTERVIEW CONCERNING THE TECH DESIGN OF JUSTIA FROM JAN. 2007

Justia CEO Tim Stanley gave a 21 minute podcast interview to Ken Chan of “Law And Legal Research” in Jan. ’07 after Tim was awarded the Google Enterprise Search Superstar award.  In that interview, Stanley was asked who Justia was created to benefit.  Here is Stanley’s candid reply:

Stanley: The primary users of it tend to be lawyers or attorneys looking for legal information or looking for case-law, or looking for information from some of the legal blogs that are online. And the other sort of major group of users tends to be law students or other students in the college environment or high schools that are looking for information on the US Government and sort of how the court system works.

Chan: The homepage, if you will, mentions the indexing of all of the Supreme Court cases… What would you say is the primary piece of information that somebody is coming to your web site to find, or is there one?  Is it a wide basis of information or is there a particular type of information that somebody is coming to find?

Stanley:  In most cases they’re looking for a variety of types of legal information.There is a large percentage though that are looking for Supreme Court information, and looking at particular Supreme Court cases.  And one of the nice things we’ve done using the Google Mini is we’ve indexed all the Supreme Court cases, and we have a nice sort of inter-linking among the cases, so you can go from one case, you know, quickly link over to a previous case.  And the Google algorithm when it’s indexing the cases does a very good job in terms of prioritizing the cases based on those that sort of have more value to the legal community.

Stanley tells us that the primary users are lawyers, not lay people.  Also, keep in mind that when he gave this interview in ’07, none of the cases had been sabotaged yet.  The cases were in the database with full case names, citations, and no text had been removed.

Here is my response.

PJR,

I am so glad you sent this email, which affords me the opportunity to 1) clarify the misconception you share with several others over the role of “official” publishers of state and federal court decisions versus commercial re-’printers’; and 2) remind you about the uselessness of self-authentication.

Federal law (U.S. Code) governs that U.S. Reports is the official publisher of decisions issued by the U.S. Supreme Court.  http://www.supremecourt.gov/opinions/info_opinions.aspx State laws which govern the operation of state courts, include language that mandates court decisions will be published.  http://www.courts.state.ny.us/reporter/ Official publishers of court decisions, such as Lexis/Nexis work under contract with the state. http://www.lexisnexis.com/clients/CACourts/ States may also contract with publishers such as West to print digests of cases. http://www.courts.alaska.gov/aklegal.htm  While both Lexis/Nexis and West are commercial concerns, when publishing state court materials under state contracts, each is bound by strict protocols and standards imposed by the state, which may include allowing the state to retain rights to prior consultation and approval.

Remember, appellate decisions have precedential effect. That is, what happened in the past sets the standard for conduct in the future. Thus, in order for both judges and lawyers to determine how to present and rule on subsequent cases, they must be able to research prior cases.  Looking through court records is prohibitive and so, these cases are compiled in official publications intended to streamline the process.  In effect, by contracting with legal publishers, the state is actually providing services to state actors, including not only these judges and lawyers but also state legislators.

It is no exaggeration to say, misrepresenting the content of a case, whether by changing the words in the judge’s ruling or, omitting a comma; may mean the difference between life and death.  Ensuring the accurate reproduction of the original court ruling is, therefore, a solemn responsibility.  Only those publishers officially contracted with the state have been given that responsibility.  It is their work which can be trusted, and their work which, therefore, can be cited in subsequent submissions to the court.

Justicia.com is not an official publisher of court cases in any state or issuing from the federal bench.  Therefore, the law you cite related to false publication of official documents, does not apply to them.

The second point I want to make seems to me would have been self-evident.  In the same way we urge people not to look to, say, Barack Obama for self-authentication – after all, he said he was Constitutionally eligible for the job of President but, we don’t just believe him - you are now urging me to believe Justia has some innate value because its owner says, the product his company offers is so good, even lawyers use it (along with high school students).

Again, I want to thank you for this second email insisting I was wrong to fob off hyperbolic charges against Justia.com raised by you and Leo, among others. Because in the past, I had only supported my dismissal of these ridiculous charges against the company by saying, they are not official publishers of state or federal court decisions and so, can post anything they want.  Now, I have taken the time to explain myself more fully and thereby not only validated my position but also, undoubtedly, educated people as to how our government works.

jbjd

Imagine, all of this time spent just to prove the fallacy that a legal definition exists as to what is a NBC; while, since 2008, no new state election laws mandating that the state may only print on the ballot the names of those candidates it determines are qualified for the job; or requiring that Electors may only elect a President whose name the state has printed on the ballot.

UPDATE 10.30.11:  Well, it would appear Leo read my post, which establishes that his hyperbolic campaign of moral outrage against Justia is misplaced.  Then, instead of honing his methodology, he sought to discredit my criticism.

I tried to assuage readers ostensibly outraged by the ‘conspiracy’ Leo has been championing involving Justia, namely, that various on-line versions of Justia cases appear to have edited out references or links which he claims support what I insist is his mistaken opinion, under the language of Minor v. Happersett, President Obama cannot be said to be a NBC. I said that, citations to Justia are not even allowed in legal submissions to the court, as Justia is not an “official” publisher of court cases in any state.  Following my post, Leo posted another article on the subject, vainly trying to shore up his baseless argument by artificially inflating Justia’s position within the legal community.  Specifically, in order to ‘prove’ that lawyers really do count on Justia, he cited to a reference he claims appeared on the web site operated by Perkins Coie, Bob Bauer’s firm, which Leo characterizes as first class legal practitioners. (Of course, notwithstanding the lawyers at PC might be bright, this does not mean, they are honest; or that, if Leo is correct, that is, if Justia is rigging its cases so as to benefit Obama, Perkins Coie would never have assisted such subterfuge by touting their services! (See, for example, COUNSEL for DNC SERVICES CORPORATION PERFORMS 3 CARD MONTE* for FEDERAL COURT; and COUNSEL for DNC SERVICES CORPORATION PERFORMS 3 CARD MONTE* for FEDERAL COURT)  It certainly does not mean, anyone from Perkins Coie would cite to a case published in Justia as legal precedent in a document prepared for submission to the court.)

Yes, Leo, lawyers tout whatever legal publication services they want.  Indeed, I have often steered readers to both cases and statutes which appear on the web site maintained by Cornell Law School’s Legal Information Institute. But even cases and laws posted on Cornell’s site may not be cited (as precedent) in legal briefs.  Of course, if Attorney Courtney Minick, Product Manager at Justia has her way, states will one day abandon their rigid filing requirements and allow citations to their on-line product, abandoning the current practice of allowing into court only citations to those cases published officially by companies contracted with the state.

…

In his recent post, Fastcase CEO Ed Walters called on American states to tear down the copyright paywall for statutes. States that assert copyright over public laws limit their citizens’ access to such laws and impede a free and educated society. Convincing states (and publishers) to surrender these claims, however, is going to take some time.

A parallel problem involves The Bluebook and the courts that endorse it as a citation authority. By requiring parties to cite to an official published version of a statutory code, the courts are effectively restricting participants in the legal research market. Nowhere is this more evident than in those states where the government has delegated the publishing of the official code to a private publisher, as is the situation in more than half of the states.  Thus, even if the state itself or another company, such as Justia, publishes the law online for free, a brief cannot cite to these versions of the code.

…

http://blog.law.cornell.edu/voxpop/2011/09/01/universal-citation-for-state-codes/

See, even Attorney Minick isn’t saying, Justia’s work merits the award of such state contracts!

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REVOLVING DOOR, REVOLUTION, or just PLAIN REVOLTING

February 23, 2011

©2011 jbjd

Ever since Electors elected Barack Obama President of the United States, many of those of you who are convinced he is Constitutionally ineligible for the job, unable to forestall his inauguration, alternatively determined to elect new public officials and enact new laws intending to forestall his election in 2012.  I have rejected this response as taking a sort of ‘revolving door’ approach.   That is, as I have reasoned many times, if we are impotent to get our current elected officials to enforce existing ballot eligibility laws then, we will not achieve a different outcome by electing new officials or writing new laws.

Instead, I have been pushing for citizens in applicable states, that is, states with existing ballot eligibility laws, to file with their A’sG the citizen complaints I drafted charging  various members of the D party committed election fraud by swearing to state election officials in 2008, Barack Obama was qualified for the office of President, without ascertaining beforehand he is a NBC; and, if necessary, to lobby these A’sG to exercise their discretion to investigate these complaints.  What I envision to be a true people’s ‘revolution.’

Now, the official conduct of Texas State Representative Leo Berman (R-Tyler) has necessitated a third description that could be applied to efforts to shore up our electoral process with respect to guaranteeing Presidential candidates are Constitutionally eligible for the job:  just plain revolting.

Rep. Berman recently introduced a bill specifying “the secretary of state may not certify the name of a candidate for president or vice-president unless the candidate has presented the original birth certificate indicating that the person is a natural-born United States citizen.” http://lubbockonline.com/local-news/2010-11-17/birth-certificate-bill-filed-presidential-candidates

Yep; here’s the text of that bill.

http://www.legis.state.tx.us/tlodocs/82R/billtext/pdf/HB00295I.pdf#navpanes=0

Right off the top, this wording presents many obstacles to fulfilling the function for which it is ostensibly written. For example, how can a birth certificate identify whether a person is a NBC?  And then, there is this word, “entitled.” In the situation called to my attention in TX, wherein Bob Barr challenged the printing of the names of both the R and D nominees on the ballot, I pointed out, even if one is not entitled to something, this does not mean, one cannot get what he wants, anyway.

Submitted on 2009/09/11 at 22:45 | In reply to juriggs.

If you look at what I posted, I posted all the docs I received from the SoS with respect to the Certifications…5 docs. The Republicans actually used a “form” and I queried the SOS with respect to whether there was a specific “form” required and they responded “no”. The Deomcrats sent in two docs. One, the Official Certification, and the other more of a letter form. I believe the letter was in effect a cover sheet and as much as a form was not required, there was intent to comply with guidance from the State with respect to an “Official Certification”.
I am also reading some stuff into this as both Parties missed the filing deadline. The pre-certification on my site from the republicans is I believe a way of showing thier “intent” to comply with the law which required Official Notification 70 days prior to the election.

redhank: Yes; you are absolutely right. And Libertarian candidate Bob Barr filed a lawsuit arguing both the D’s and the R’s had missed the filing deadline. The court dismissed the case, noting that Barr had waited to file his suit until 2 or 3 days before the absentee ballots, already printed, were scheduled to be sent out. (cite omitted) (The suit would have failed, anyway, because the law merely says, the party is “entitled” to have its nominee on the ballot if it gets the name in on time. This does not mean, the state cannot exercise its discretion to include late names on the ballot, anyway.) ADMINISTRATOR

Again, just because a candidate is not entitled to be on the ballot does not prohibit the state from putting his name there anyway.

To say nothing of the conflict between this proposed change to Texas Election Code 192.033; with  192.031, which section entitles party nominees qualified for office to appear on the ballot.  http://law.onecle.com/texas/election/192.031.00.html And as we have already seen, in 2008, Boyd Richie, Chair of the Texas Democratic Party (“TDP”) swore Presidential nominee Obama was “duly nominated,” making him the qualified nominee.

And did you catch the last line?  ‘Effective date September 1, 2011.’ To paraphrase my Reply to a Comment submitted by gregnh, passing a bill that would alter the 2012 election assumes  the law survives any legal challenges and that regulations/rules instructing the SoS how to carry out this law; take effect in time for the 2012 general election (if not the primary/caucus contests).  (This still does not mean Electors will elect a President who is Constitutionally eligible for the job unless 1) the law (or a law) includes a provision, Electors may only elect a President whose name appeared on the ballot; and 2) the NPVI does not pass.)

But here’s the biggest overall problem I have with Mr. Berman’s ‘efforts’ to shore up the integrity of the election process in Texas:  Texas law already provides ample remedy to redress the fraud from 2008.

As I have detailed in several articles and accompanying Comments, as well as the citizen complaint of election fraud against Boyd Richie, Chair of the TDP:  current Texas state laws offer some of the strongest remedies to the election fraud related to candidate ballot eligibility, that tainted the 2008 election, from subjecting the TDP to the state’s Open Records law to subjecting Boyd Richie to Mandamus.  Just for example, see JUDGE ABBOTT WOULD ORDER TDP CHAIR BOYD RICHIE TO DECLARE PRESIDENTIAL CANDIDATE BARACK OBAMA IS INELIGIBLE FOR THE JOB; CLOWNS to the LEFT of ME; JOKERS to the RIGHT (1 of 2); CLOWNS to the LEFT of ME; JOKERS to the RIGHT (2 of 2); OPEN LETTER to GREG ABBOTT, ATTORNEY GENERAL of TEXAS; A ROADMAP to ELECTION FRAUD in TEXAS in the 2008 PRESIDENTIAL (ELECTORS) ELECTION; TEXAS TWO-STEP; REMEMBER the ALAMO?; and IDIOMS!.

So, we have 3 approaches to fixing our electoral process so as to ensure the Constitutional eligibility of our Presidential nominee.  Let’s compare and contrast their success.

The revolving door policy has resulted in the election of several new state (and federal) officials.  But none of them has publicly raised the issue of election fraud viz a viz ballot eligibility.

Several hundred citizens from 6 (six) states have downloaded and filed my citizen complaints.  But their conduct can hardly be characterized as revolutionary when, ignored by their A’sG, they have not publicly petitioned for a fair hearing on the steps of their state seats of government.  Ha, I cannot even persuade citizens in all 50 states to examine their own laws so as to determine whether they are applicable states for my citizen complaints!  Worse, azgo looked up laws in some other states and was able to identify AL and MO are applicable states – this information first appeared on this blog months ago now – yet no one from MO or AL has contacted me to get the ball rolling in either of those states!

Then, there’s Mr. Berman’s flawed proposed legislation which, according to the article in Lubbock Online, likely won’t pass, anyway.

These are bills that Berman has unsuccessfully filed in previous sessions.

In the 2007 session, for example, then Rep. David Swinford, R-Dumas, chairman of the House State Affairs Committee, single-handedly killed all of Berman’s bills on the advice of Texas Attorney General Greg Abbott.

Committee chairmen have the power to kill bills they consider harmful to the state. Swinford killed Berman’s bills because Abbott advised him that if the Legislature passed them, they would not survive court challenges and the state would spend millions of dollars on legal fees, like California did in the mid-1990s.

(So much for my idea of inviting suit by any candidate aggrieved as to the state’s definition of who is (Constitutionally) “qualified” for office and, therefore, may have his name printed on the ballot; so as to fix on a legally binding definition of NBC!)

Oh, and for your information, Representative Berman just became a member of the House Elections Committee!

http://www.house.state.tx.us/members/member-page/?district=6

Revolting.

Given my extensive research into and knowledge of these issues in general and TX law in particular, perhaps citizens in Tyler, TX, the district represented by Mr. Berman, can suggest that if he is determined to propose new laws to address candidate eligibility, he should review the provisions in HOW to WRITE SMART CANDIDATE ELIGIBILITY LAWS in your STATE (and make applying to get on the ballot harder than applying to get into Harvard).

Or, Tyler residents could ‘vote with their feet.’  Because besides being the simplest and quickest means to the eligibility end, I am still convinced, carried out as I envision, it will work.

Here is the last paragraph in that Reply to gregnh I posted earlier:

On the other hand, if even one AG in a state with an existing ballot eligibility law, however flawed, acted to initiate an investigation pursuant to one citizen complaint of election fraud, then once the targeted D could not come up with a reasonable basis for swearing Obama was Constitutionally eligible for the job in 2008, this alone would signal the end to Obama’s candidacy, even without an ensuing prosecution for election fraud, or the enactment of any other laws. ADMINISTRATOR

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Posted by jbjd

FALSE ADVERTISING

February 26, 2011

©2011 jbjd

Based on the dozens of story lines featured on the subject on the site, DRUDGE REPORT clearly knows, for years now, citizens convinced Barack Obama is not a NBC crave his impeachment.  (Actually, most have called for ‘something’ other than impeachment that will get him out of office, mistakenly believing, assuming he is Constitutionally ineligible to be President, he was unlawfully elected, anyway and, therefore, cannot be removed as the CiC through the only process prescribed in the Constitution.)  So, one could naturally assume, Mr. Drudge printed for their benefit these banner headlines, in red, replete with dome light, announcing, “‘ Gingrich gives Obama ‘impeachment’ warning’.”  Indeed, the link to the Newsmax article died through overuse.  Even I, chuckling as I clicked, knowing, had Gingrich mentioned “impeachment” in the context of “ineligibility” Drudge would have said so on his site; nonetheless joined the presumably millions of others, like lemmings to the sea, to confirm I had been intentionally misdirected.

I had confirmed on other sites, Gingrich’s use of the word ‘impeachment’ was in no way related to Obama’s Constitutional eligibility for office – no surprise there – but to instructions to the DoJ to decline to actively defend against challenges to the DoMA. Then, I got through to Newsmax.  Here was their headline:

Gingrich: If Palin

Took Obama Actions,

There Would Be Calls

for Impeachment

Gingrich: If Palin Took Obama Actions, There Would Be Calls for Impeachment
Disingenuously clarifying, he wasn’t suggesting Obama should be impeached, anyway, Gingrich complained that when it comes to the conduct of the left versus the right, there is a lot of hypocrisy.  Okay; but then, he went ‘a bridge too far.’

Gingrich slammed Obama for his decision, telling Newsmax that he is not a “one-person Supreme Court” and his decision sets a “very dangerous precedent” that must not be allowed to stand…. Gingrich adds: “I don’t think these guys set out to create a constitutional crisis. I think they set out to pay off their allies in the gay community and to do something that they thought was clever. (Emphasis added.) I think they didn’t understand the implication that having a president personally suspend a law is clearly unconstitutional.”

See, here’s the problem with hyperbole.  It is so easily verifiable as untrue.  “Very dangerous precedent” (as in, happening for the first time)?  And, heaping insult onto injury, characterizing the decision not to spend more money defending against a law some federal courts have already ruled is unconstitutional (Gill et al v. Office of Personnel Management et al) as deciding to”personally suspend a law”?

Gingrich again exposes his ethical vacuity by aiming this garbage to gullible receivers.  Of course, I only characterize him as the scoundrel he is in this instance, because I can prove it.

For example, I find absolutely no evidence in the public record that U.S. Representative Gingrich mentioned the word impeachment in relation to the decision of President George H. W. Bush, in 1992 to refrain from defending an FCC policy “to give minorities an edge when it came to the awarding of radio and television broadcast licenses.” http://www.washingtonpost.com/wp-dyn/content/article/2005/09/07/AR2005090702394.html (The FCC’s policy was adopted at the urging of Congress, and the solicitor general’s office usually defends agencies such as the FCC against legal challenges.” Id.)

Ha, when the case finally reached the SCOTUS – Metro Broadcasting v. FCC -  the U.S., on the legal advice of (Acting) Solicitor General John Roberts, actually argued against the government policy, claiming it violated the Equal Protection clause of the 14th Amendment. Id. The SCOTUS disagreed.  (Mr. Roberts was later nominated to the SCOTUS by President George W. Bush.)

But neither refraining from prosecuting a challenge to an existing law nor arguing against an existing law is illegal.

“Presidential Authority to Decline to Execute Unconstitutional Statutes,” drafted in 1994, is a memorandum to the Honorable Abner J. Mikva, Counsel to the President (George H. W. Bush), written by Assistant Attorney General Walter Dellinger,  discussing the President’s constitutional authority to decline to execute unconstitutional statutes.  Here are just a few findings and conclusions:

The President should presume that enactments are constitutional. There will be some occasions, however, when a statute appears to conflict with the Constitution. In such cases, the President can and should exercise his independent judgment to determine whether the statute is constitutional. In reaching a conclusion, the President should give great deference to the fact that Congress passed the statute and that Congress believed it was upholding its obligation to enact constitutional legislation. Where possible, the President should construe provisions to avoid constitutional problems.The Supreme Court plays a special role in resolving disputes about the constitutionality of enactments. As a general matter, if the President believes that the Court would sustain a particular provision as constitutional, the President should execute the statute, notwithstanding his own beliefs about the constitutional issue. If, however, the President, exercising his independent judgment, determines both that a provision would violate the Constitution and that it is probable that the Court would agree with him, the President has the authority to decline to execute the statute.

“…we do not believe that a President is limited to choosing between vetoing, for example, the Defense Appropriations Act and executing an unconstitutional provision in it. In our view, the President has the authority to sign legislation containing desirable elements while refusing to execute a constitutionally defective provision.”

Summing up, Gingrich did not propose impeaching President George H. W. Bush either for refusing to defend against a race-based preference policy in awarding broadcast licenses or for opposing the existing policy in the U.S. arguments to the high court.  And based on his assumption Obama’s conduct is wedded in support for equal rights for gays and lesbians; he suggests the left would call for impeachment if President Palin ‘unilaterally’ ordered the DoJ to refrain from enforcing a law to which she was philosophically opposed. 

But as history shows, Presidents do this all the time. And Dr. Gingrich (Ph.D., History) knows this.

P.S.

The DRUDGE REPORT proudly boasts its daily hits are in the millions – “VISITS TO DRUDGE 02/25/11, 031,840,693 IN PAST 24 HOURS" - presumably netting significant commercial revenues.  Imagine how much smarter Mr. Drudge (and his colleagues) could leave the body politic if only he would spend some of that money educating his readers instead of just titillating us.  

I haven’t reached 1,000,000 hits since I started this blog in August 2008!  Yet I spent hours putting together this post, all by myself, for free.

Enjoy.

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Posted by jbjd

SUBORNING SYNDICATION

March 3, 2011

©2011 jbjd

Add syndicated columnist Cal Thomas to the ever growing list of disingenuous town criers who, in the wake of President Obama’s decision the Executive branch will refrain from defending against court challenges to DoMA, are shouting a proverbial ‘the sky is falling’ warning to a captive audience ignorantly unaware in this instance, the sky is not only intact but also precisely in the place Congress (the Legislative branch of government) intended it to be.

Here are some snippets from Mr. Thomas’s latest tirade against Obama, “Obama’s duty is to enforce the law”:

President Obama has said his view of same-sex “marriage” is “evolving.” Apparently he thinks that the law should be based on a kind of Darwinian jurisprudence which allows it to “evolve” and become whatever the ruling politicians at a given moment say it is (or isn’t).How else to explain the decision by the president and his attorney general, Eric Holder, not to defend the Defense of Marriage Act, signed into law by President Clinton in 1996?

Now, you have to be real careful reading this double slight of hand.  See, Mr. Thomas begins this article by telling readers right there in the title, Obama has a duty to “enforce” laws.  But here, in the meat of his offering, he changes the word “enforce” to “defend,” correctly stating in simplest terms, Obama has decided not to defend against (court) challenges to the law (filed by aggrieved parties).  In other words, the fed will still define marriage as between same sex partners, for example, when it comes to doling out spousal benefits.

Then, he hurdles a leap and a bound by pointing readers to the false narrative, Obama based his decision that ‘this law means what he says it means’ because his ‘views on gay marriage are evolving.’  On what documentary basis did Mr. Thomas conjure up this ’cause’ and ‘effect’?

Given his recent history, it appears far more likely, Mr. Obama still opposes equal rights when it comes to sexual orientation but is just exercising this tactic because he is gearing up for the 2012 election and, having alienated a good percentage of his gay base, was ordered by his handlers to take steps to herd them back into the D fold.

For example, it took 2 (two) years to even sign into law a bill that indicates an intention to repeal DADT, notwithstanding strong bi-partisan support for the repeal from all political comers, including both  military brass, and military chaplains. Anyway, DADT is still the law of the land; and Obama has not ordered the DoJ to refrain from defending against court challenges to that law.

Despite the big congressional vote in December to repeal DADT, the law is actually still in effect. The repeal legislation doesn’t stop its implementation until 60 days after top Pentagon brass say they’re ready — and the brass say they’re still working on it, and it could take a few more months.

“The appeal is still alive and kicking because Don’t Ask Don’t Tell is still the law of the land,” said Dan Woods, a lawyer representing the Log Cabin Republicans.

“On behalf of our client, we suggested to the government that we would be willing to stay the appeal on one condition: that the government agree not to discharge any service member under Don’t Ask Don’t Tell in the meantime,” Woods told HuffPost. “And the government refused.”

Woods said the Pentagon “is continuing to investigate and process discharges under Don’t Ask Don’t Tell.”

The DOJ lawyers filed their brief Friday even though President Obama, speaking directly to gay service members when he signed the repeal legislation, hailed that December day as marking “the end of a particular struggle that has lasted almost two decades.”

http://www.huffingtonpost.com/2011/02/25/obama-court-uphold-dadt_n_828488.html

Yep, Obama failed to rescind DADT even as he answered a question regarding his views on same sex marriage by mentioning he had ‘evolving’ views.

In December, the president scored a major legislative victory (with the help of Sens. Joe Lieberman, I-Conn., Susan Collins, R-Maine, and Harry Reid, D-Nev.) in signing the repeal of the “don’t ask, don’t tell” policy, ending the practice of banning gays and lesbians from serving openly in the military.

That was quickly followed by this widely noted answer to a question about same-sex marriage at his year-end news conference in December.

“[M]y feelings about this are constantly evolving. I struggle with this. I have friends, I have people who work for me, who are in powerful, strong, long-lasting gay or lesbian unions. And they are extraordinary people, and this is something that means a lot to them and they care deeply about,” President Obama said.

“At this point, what I’ve said is, is that my baseline is a strong civil union that provides them the protections and the legal rights that married couples have. And I think — and I think that’s the right thing to do. But I recognize that from their perspective it is not enough, and I think is something that we’re going to continue to debate and I personally am going to continue to wrestle with going forward,” he added.

http://www.pbs.org/newshour/rundown/2011/02/-continued-resolve-with-eight.html

(Note that PBS gets it wrong, too, giving credit to Obama for ending DADT when the bill he signed into law only states an ‘intention’ to end the policy.  As I said earlier, the military is still enforcing the current DADT policy and the DoJ is still defending the military’s use of this policy in court.)

Then, Mr. Thomas gets really dishonest.
Imagine the reaction from the Left had George W. Bush announced his administration would no longer defend Roe v. Wade because he thought it unconstitutional and it would eventually be overturned by the Supreme Court.

As regular “jbjd” readers now know,  President Bush nominated to the SCOTUS as Chief Justice, the former Solicitor General who, under his father, President George H. W. Bush, had not only refused to defend against a court challenge to an existing government policy, but also argued against the government policy in federal court, claiming it violated the Equal Protection clause of the 14th Amendment.  See FALSE ADVERTISING.  And he had every right to do so.  Id. Not only that, in 2002, President Bush signed into law legislation which created a formal mechanism for reporting to Congress those cases in which the Executive determined to refrain from defending or enforcing any law.

This is from my Reply to a Comment by markcon, on FALSE ADVERTISING.

markcon, you (and millions of others like you) are being played. In acknowledgment that, from time to time, the Executive decides to refrain from defending (or enforcing or administering) what it considers are unConstitutional laws, Congress passed this law requiring the Executive to report its decision(s).

TITLE 28; PART II; CHAPTER 31; § 530D
§ 530D. Report on enforcement of laws
(a) Report.—
(1) In general.— The Attorney General shall submit to the Congress a report of any instance in which the Attorney General or any officer of the Department of Justice—
(A) establishes or implements a formal or informal policy to refrain—
(i) from enforcing, applying, or administering any provision of any Federal statute, rule, regulation, program, policy, or other law whose enforcement, application, or administration is within the responsibility of the Attorney General or such officer on the grounds that such provision is unconstitutional; or
(ii) within any judicial jurisdiction of or within the United States, from adhering to, enforcing, applying, or complying with, any standing rule of decision (binding upon courts of, or inferior to those of, that jurisdiction) established by a final decision of any court of, or superior to those of, that jurisdiction, respecting the interpretation, construction, or application of the Constitution, any statute, rule, regulation, program, policy, or other law whose enforcement, application, or administration is within the responsibility of the Attorney General or such officer;
(B) determines—
(i) to contest affirmatively, in any judicial, administrative, or other proceeding, the constitutionality of any provision of any Federal statute, rule, regulation, program, policy, or other law; or
(ii) to refrain (on the grounds that the provision is unconstitutional) from defending or asserting, in any judicial, administrative, or other proceeding, the constitutionality of any provision of any Federal statute, rule, regulation, program, policy, or other law, or not to appeal or request review of any judicial, administrative, or other determination adversely affecting the constitutionality of any such provision; or
(C) approves (other than in circumstances in which a report is submitted to the Joint Committee on Taxation, pursuant to section 6405 of the Internal Revenue Code of 1986) the settlement or compromise (other than in bankruptcy) of any claim, suit, or other action—
(i) against the United States (including any agency or instrumentality thereof) for a sum that exceeds, or is likely to exceed, $2,000,000, excluding prejudgment interest; or
(ii) by the United States (including any agency or instrumentality thereof) pursuant to an agreement, consent decree, or order (or pursuant to any modification of an agreement, consent decree, or order) that provides injunctive or other nonmonetary relief that exceeds, or is likely to exceed, 3 years in duration: Provided, That for purposes of this clause, the term “injunctive or other nonmonetary relief” shall not be understood to include the following, where the same are a matter of public record—
(I) debarments, suspensions, or other exclusions from Government contracts or grants;
(II) mere reporting requirements or agreements (including sanctions for failure to report);
(III) requirements or agreements merely to comply with statutes or regulations;
(IV) requirements or agreements to surrender professional licenses or to cease the practice of professions, occupations, or industries;
(V) any criminal sentence or any requirements or agreements to perform community service, to serve probation, or to participate in supervised release from detention, confinement, or prison; or
(VI) agreements to cooperate with the government in investigations or prosecutions (whether or not the agreement is a matter of public record).
(2) Submission of report to the congress.— For the purposes of paragraph (1), a report shall be considered to be submitted to the Congress if the report is submitted to—
(A) the majority leader and minority leader of the Senate;
(B) the Speaker, majority leader, and minority leader of the House of Representatives;
(C) the chairman and ranking minority member of the Committee on the Judiciary of the House of Representatives and the chairman and ranking minority member of the Committee on the Judiciary of the Senate; and
(D) the Senate Legal Counsel and the General Counsel of the House of Representatives.
(b) Deadline.— A report shall be submitted—
(1) under subsection (a)(1)(A), not later than 30 days after the establishment or implementation of each policy;
(2) under subsection (a)(1)(B), within such time as will reasonably enable the House of Representatives and the Senate to take action, separately or jointly, to intervene in timely fashion in the proceeding, but in no event later than 30 days after the making of each determination; and
(3) under subsection (a)(1)(C), not later than 30 days after the conclusion of each fiscal-year quarter, with respect to all approvals occurring in such quarter.
(c) Contents.— A report required by subsection (a) shall—
(1) specify the date of the establishment or implementation of the policy described in subsection (a)(1)(A), of the making of the determination described in subsection (a)(1)(B), or of each approval described in subsection (a)(1)(C);
(2) include a complete and detailed statement of the relevant issues and background (including a complete and detailed statement of the reasons for the policy or determination, and the identity of the officer responsible for establishing or implementing such policy, making such determination, or approving such settlement or compromise), except that—
(A) such details may be omitted as may be absolutely necessary to prevent improper disclosure of national-security- or classified information, of any information subject to the deliberative-process-, executive-, attorney-work-product-, or attorney-client privileges, or of any information the disclosure of which is prohibited by section 6103 of the Internal Revenue Code of 1986, or other law or any court order if the fact of each such omission (and the precise ground or grounds therefor) is clearly noted in the statement: Provided, That this subparagraph shall not be construed to deny to the Congress (including any House, Committee, or agency thereof) any such omitted details (or related information) that it lawfully may seek, subsequent to the submission of the report; and
(B) the requirements of this paragraph shall be deemed satisfied—
(i) in the case of an approval described in subsection (a)(1)(C)(i), if an unredacted copy of the entire settlement agreement and consent decree or order (if any) is provided, along with a statement indicating the legal and factual basis or bases for the settlement or compromise (if not apparent on the face of documents provided); and
(ii) in the case of an approval described in subsection (a)(1)(C)(ii), if an unredacted copy of the entire settlement agreement and consent decree or order (if any) is provided, along with a statement indicating the injunctive or other nonmonetary relief (if not apparent on the face of documents provided); and
(3) in the case of a determination described in subsection (a)(1)(B) or an approval described in subsection (a)(1)(C), indicate the nature, tribunal, identifying information, and status of the proceeding, suit, or action.
(d) Declaration.— In the case of a determination described in subsection (a)(1)(B), the representative of the United States participating in the proceeding shall make a clear declaration in the proceeding that any position expressed as to the constitutionality of the provision involved is the position of the executive branch of the Federal Government (or, as applicable, of the President or of any executive agency or military department).
(e) Applicability to the President and to Executive Agencies and Military Departments.— The reporting, declaration, and other provisions of this section relating to the Attorney General and other officers of the Department of Justice shall apply to the President (but only with respect to the promulgation of any unclassified Executive order or similar memorandum or order), to the head of each executive agency or military department (as defined, respectively, in sections 105 and 102 of title 5, United States Code) that establishes or implements a policy described in subsection (a)(1)(A) or is authorized to conduct litigation, and to the officers of such executive agency.
http://www.law.cornell.edu/uscode/uscode28/usc_sec_28_00000530—D000-.html

(FYI, Congress passed this ‘reporting’ law back in 2002. http://www.copyright.gov/legislation/pl107-273.html) (Following this link and its successor, above; you can see, first the text appears in the numbered “public law” and then, the law is codified into the appropriate spot in the U.S. Code.)

ADMINISTRATOR

I zealously try to post information that will inform but not titillate.  Then again, with all due deference to Mr. Thomas, I am only a blogger and not a syndicated columnist.

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Posted by jbjd

DEFINITION on DEMAND

March 16, 2011

©2011 jbjd

The Supreme Court has the final authority to interpret the Constitution.  It can set aside any law – federal, state, or local – that a majority of the justices believes conflicts with any part of the Constitution.

http://www.america.gov/st/usg-english/2008/April/20080415234710eaifas0.2570917.html

(For a more legalistic discussion of the authority of Article III courts, see http://www.law.cornell.edu/anncon/html/art3frag14_user.html#art3_sec2)

No matter how many times or how strenuously people repeat the absurd claim that the definition of NBC in the U.S. Constitution is fixed by reference to any other written work, nothing fixes a definition of NBC until the ‘fat lady holding the scales of justice sings.’

In other words, until justices on the federal appellate court weigh in with a definition in a holding in a case specifically on point.  All else is cacophony.

Lie number 1. We know what NBC means because this term is defined in Vattel’s Law of Nations.

Just for the sake of argument, let’s say, this man Vattel wrote a book entitled Law of Nations in which he pontificated as to which of the laws of various nations he would incorporate into his Utopian country, and that the term NBC is unambiguously defined within this text.  Let us further assume that before deliberating on their own treatise, better known as the U.S. Constitution, the original drafters had access to Vattel’s tome, considering such variables including the date and place of publication, language, and availability; and that they did, indeed, read his definition of NBC before drafting our Constitution.

Assuming all that, it is nonetheless absurd to make the leap of logic that says with certainty, the Drafters, having read Vattel’s definition of NBC and understood his meaning, thereby adopted his definition into their text.  Because based on this logic that insists, any subject mentioned in the Constitution evidences a  concurrence with its counterpart in Vattel’s Law of Nations; we would also have state sponsored mandatory public worship of God and banishment of minority practitioners, instead of “Congress shall make no law respecting an establishment of religion…”

…

http://books.google.com/books?pg=PA140&vq=religion&dq=vattel+law+of+nations&id=pBwMAAAAYAAJ#v=onepage&q&f=false

Lie number 2. We know the Drafters meant for us to follow Vattel’s definition of NBC in Article II, section 1 because they specifically referenced “Law of Nations” in Article I, section 8 (“To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations”)

Setting aside the colonial custom of capitalizing nouns, let’s assume, again, this reference in Article I, section 8 adopts Vattel’s treatment of piracy exactly as laid out in his book (as opposed to a generic standard of responding to piracy on the high seas, according to laws of various nations sailing the seas).  According to the rules of statutory interpretation, this would not only not mean,  the Drafters intended the definition of NBC to echo Vattel’s definition; but it would mean precisely the opposite!  That is, by using the reference to Law of Nations in one place in the document but not the other, the court would find the Drafters intended not to mean the definition proffered by Vattel.

“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U. S. 16, 23 (1983) (internal quotation marks omitted).  http://www.supremecourt.gov/opinions/08pdf/08-5274.pdf

That is, given that the Drafters obviously knew how to reference Vattel in one part of the Constitution, this means, if they had wanted to reference his work in another part of this legal document, they likely would have.  Yet, they failed to repeat the phrase either in Article II or anywhere else in the document.

But definitively attributing the phrase “Law of Nations” in Article I to Vattel’s text and not to a general world standard of laws, is absurd on its face.

John Jay, Alexander Hamilton, and James Madison wrote the Federalist Papers so as to persuade the special Constitutional panels in the 13 states to ratify the newly drafted U.S. Constitution to replace the inadequate Articles of Confederation.  In Paper 83, Mr. Hamilton addresses the construction of Article III, the federal judiciary, arguing for a right to trial by jury in all criminal cases but not in civil cases.  (All emphasis added.)

But this is not, in my estimation, the greatest objection. I feel a deep and deliberate conviction that there are many cases in which the trial by jury is an ineligible one. I think it so particularly in cases which concern the public peace with foreign nations that is, in most cases where the question turns wholly on the laws of nations. Of this nature, among others, are all prize causes. Juries cannot be supposed competent to investigations that require a thorough knowledge of the laws and usages of nations; and they will sometimes be under the influence of impressions which will not suffer them to pay sufficient regard to those considerations of public policy which ought to guide their inquiries. There would of course be always danger that the rights of other nations might be infringed by their decisions, so as to afford occasions of reprisal and war. Though the proper province of juries be to determine matters of fact, yet in most cases legal consequences are complicated with fact in such a manner as to render a separation impracticable.

http://thomas.loc.gov/home/histdox/fed_83.html

Or, just scroll back to Vattel’s own text, in which the phrase “law of nations” and permutations appear generously.

Lie number 3. We know what NBC means because this term is defined in a law review article; and the Boston Globe°; and dicta in several Supreme Court cases not directly on point.

See lie number 1.

° This lie is especially pernicious, for 2 (two) reasons.  First, it falsely implies the theories of the speaker are supported by the imprimatur of the editors of the Boston Globe! In truth, an advice column appearing in the newspaper more than 100 years ago,contained what the writer stated was his personal opinion, namely, the words “native born” and “natural born” appearing in the Constitution in relation to the word “citizen” mean two different things.  Second, it disingenuously sustains a fabricated claim that the words “native born” and “natural born” can honestly be conflated to mean the same thing and then uses the personal off-the-cuff opinion of the columnist to hyperbolically deflate such contention.  Ha, the ‘legal’ pundit pedaling this tripe calls the Globe piece a “crucially relevant article.”  Straw dogs.  As I indicated in the beginning of the present post, following  the basic rules of statutory interpretation necessarily leads to the conclusion that, because the Drafters used “native born” in one section of the document and “natural born” in another section; the courts would assume they intended “native born” and “natural born” to mean two different things!

******************************************************************************************

I cannot say what the Founders intended by the term NBC.  But I am troubled by the willingness of so many purported “patriots” to supplant reason with their interpretation of the document those Founding Patriots created. Of course, I have studied history; of course, I have studied the law. Naturally, I have opinions. But I am not the arbiter of the Constitution’s truth; and neither are any of those internet pontificators, lawyer and layperson alike, who claim otherwise.

I could not care less as to the individual interpretations people ascribe to the original intent of the Drafters; or whether they adopt a Constitutional methodology of original intent or ‘living document,’ to reach their conclusions. But I am as fearful of becoming enslaved by zealots on one side as on the other.  Let me emphasize, just because a particular lay interpretation appears to make sense to lay people does not mean it could survive critical judicial scrutiny. (Keep in mind, many of the people involved with founding this government were trained as lawyers.) If I point to a flaw with the legal methodology, this does not mean, I am pointing to a flaw in the character. That people continue to label theories of statutory construction as ‘belonging’ to one person or another scares the hell out of me. Practically speaking, the meaning of the Constitution is only ascertained when the federal bench rules, this it what it means. This is why I seldom express my personal views as to what the document means; or engage in endless speculation as to what the Constitution means. I am too busy doing actual work aimed at changing the status quo.

While there are few absolutes in interpretation, certainly we can all concede that no interpretation is valid or invalid based only on who is espousing that view.  So, in conclusion, I want to repeat my strenuous objections that some people, expressing an opposing view to the positions discussed in this article, continue to direct such dissent to me and not to the work.  I suspect these bullies are intentionally misleading people by clinging to discredited theories of Constitutional interpretation in order to sidetrack attention and energies which could be better utilized to challenge the legality of those Certifications of Obama’s nomination submitted in several ballot eligibility states.

Because in the end, Obama will not be removed from office on the basis of a legal definition of NBC, anyway.  Even if  documents available in the public record could establish the facts of his birth, which facts could then be fit into such legal definition of NBC.   Because no law required the Electors to only elect a President who meets the Constitutional eligibility for office, anyway.  But we have no such facts of birth or legal definition of NBC.  However, we definitely know the definition of “C.”  Because the SCOTUS has previously ruled on this issue in several cases directly on point.  This means, we can confront anyone who Certified to state election officials in applicable states, candidate Obama was qualified for office, with this question: on what documentary basis did you ascertain beforehand he was a U.S. Citizen?

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Posted by jbjd

TRUMPED by TRUMP (Updated 04.10.11)

April 4, 2011

©2011 jbjd

(04.10.11):  See update at bottom.

Several well-read blogosphere pundits, among them Ben Smith at Politico, have been soundly outplayed by Donald Trump in the Obama birth certificate round robin; and for that, I have to give “The Donald” his props.

Donald Trump, a salesman in the mold of P.T. Barnum – “There’s a customer born every minute” – is selling himself once again by reprising the guise of a possible Presidential candidate.  Trump’s White House con began 24 years ago:  How The Donald discovered that pretending to run for president can be good for business

This time around, he fixes his faux pitch to head the Executive branch of government, on a new gimmick:  President Obama’s birth certificate.  At first, I scoffed at the tactic of focusing the campaign on producing a document he claims would establish Obama’s Constitutional eligibility.  Because in so doing, he only confirmed a craven compulsion to hog publicity, this time trivializing the otherwise somber issue of election fraud that corrupted the 2008 general election cycle.   In other words, I thought his antics undermined real attempts underway for some time now, to expose actual crimes committed by Mr. Obama and his sales and marketing team, during their bona fide con to occupying the Oval Office.

But even though I have identified and initiated many of these efforts to ‘out’ the crimes of Team Obama which, on first glance, I thought were being trivialized by his campaign; before I finalized the original version of this article, events occurred which caused me to change my mind.  Indeed, after closer inspection I am not at all angry at “The Donald” for potentially gumming up the works.  Because whether he intentioned, by engaging in this latest sales initiative, he not only has exposed some of the intricacies of document identification which have been the subject of many articles posted here on “jbjd” – “Certificate” versus “Certification,” for example, or “issuing authority” – but also simultaneously has ‘outed’ the complicity of the press in giving Obama’s deceit on this front, a blanket pass.  And I have to give props where these are due.

As I have stated all along, the main reason for going after those D’s who committed election fraud viz-a-viz swearing to state election officials in applicable states,which are those states with ballot eligibility laws; that Barack Obama was Constitutionally eligible for POTUS notwithstanding they had failed to ascertain whether he is a NBC, just to get these officials to print his name on the ballot, is this.  Get the attention of Congress.  Because  under the Constitution, the way to get rid of an ineligible President (for criminal acts related to his ineligibility) is through Impeachment, carried out by Congress.  But many legislators have reassured their frantic constituents, in writing, ‘don’t worry, Mr. Obama is eligible for the job.’  So, how do we get them to change their minds?  I anticipated that when confronted with the well-documented possibility, Obama’s eligibility has been a scam all along, (and no longer able to get away with insisting otherwise) the House would introduce Articles of Impeachment so as to enable the Senate to get on with eligibility hearings.

I hoped to trigger this ‘awareness’ through the citizen complaints of election fraud to state A’sG.  But if Trump’s shenanigans effect Impeachment hearings, more power to him.

So, what aspect of his birth certificate campaign will compel sufficient scrutiny of Obama’s election fraud so as to trigger Impeachment?  The fact that the press is giving Trump’s efforts in this regard more scrutiny even before any decision to run; than they did Mr. Obama’s, on his march all the way into the White House. The disparity is striking.  And, as a result, the only pundits who at this point cling to the laughable insistence, Obama has already proven, he is for real; expose themselves as paid shills of the O.D. party.

Take Ben Smith at Politico, whose attempts at satire hardly disguise the acknowledged impossibility of equating an on-line electronic image produced by the person whose name appears on that image; with an official hard copy document produced by the “issuing authority.”

Trump fails to produce birth certificate

Donald Trump made headlines earlier today when he provided what he said was a copy of his birth certificate — but a quick check reveals it’s actually not an official document.

The paper that Trump released says “Jamaica Hospital” on top and lists the date and time of what he says was his birth to “Mr. and Mrs. Fred C. Trump.” The piece of paper has a seal at the bottom.

But after several New York City-based readers contacted POLITICO’s Maggie Haberman, her call to city officials revealed that an actual birth certificate, which is issued by the Department of Health, would have the agency’s seal and also a signature of the city registrar – neither of which the Trump document has. Officials said the city Health Department is the “sole issuing authority” of official birth certificates in New York, and that the document would clearly say so, and “city officials said it’s not an official document.”

It appears instead to be a hospital “certificate of birth,” meaning the piece of paper the hospital gave to his family saying he was born. Such a document typically has the signature of the hospital administrator and the attending physician.

Trump lawyer and advisor Michael Cohen didn’t respond to Haberman’s question about the document.

Trump’s mother, it should be noted, was born in Scotland, which is not part of the United States. His plane is registered in the Bahamas, also a foreign country. This fact pattern — along with the wave of new questions surrounding what he claims is a birth certificate — raises serious doubts about his eligibility to serve as President of the United States.

UPDATE: On a second attempt, Trump produces what appears to be a real one.

After that analysis, why would anyone accept Mr. Smith’s apparent continued belief, the COLB image that is the centerpiece of Obama’s paid political electronic ad campaign is real?  And, by continuing to insist Obama is for real, why does he now definitively expose himself as a paid shill or, in the alternative, a fool?  Because if he admits he is wrong about Obama’s on-line COLB – and, according to the accreditation in the footer, this image is now the property of the DNC Services Corporation – then, he also admits he participated in efforts to throw the 2008 D Presidential primary to a candidate who was Constitutionally ineligible for the job.

Barack Obama’s Constitutional con hinged on the public’s buying into his “Fight the Smears” web site, the focal point of which electronic advertising platform was the photographed mockup of a redacted Hawaiian COLB, conceived and copyrighted in 2007, more than 6 (six) months before the launch date, in June 2008.

If only Hillary Clinton hadn’t been such a strong contender for the D Presidential nomination, the FTS roll-out could have been delayed forever.

Questions as to Barack Obama’s Constitutional eligibility for POTUS likely would have  remained largely unasked and certainly, as a result, unanswered if the 2008 D Presidential nominee wannabe and his accomplices could have confiscated enough pledged delegate votes through the disproportionally weighted and then subsequently co-opted caucuses by February’s Super Tuesday, to make running away with the nomination a(n eventual) fait accompli.  Instead, even after March 4, when both TX and OH voters handily chose her over him, his agents were still fertilizing the false meme to D’s throughout the country, Hillary Clinton had no chance to win the nomination.  Including the press. http://abcnews.go.com/Politics/Vote2008/story?id=4385756&page=1

Like Ben Smith, at Politico.

In 2008, Ben Smith, Carrie Budoff, and Jonathan Martin were named in the byline of an article appearing on March 8, just after Clinton had taken the TX, OH, and RI primaries.  The article featured the individual opinions of each with regard to one of the 3 (three) candidates remaining in both the R and D primaries: Obama, Clinton, and McCain.  But the introduction to these individual pieces is not specifically attributed to any one of the 3 (three) authors.  This unattributed introduction contains the following line:

Sen. Barack Obama will need a new strategy to defend his narrow delegate margin.

http://www.politico.com/news/stories/0308/8870.html

Then, in the segment on Hillary Clinton, under just Mr. Smith’s byline, comes this:

But Clinton also faces obstacles, and not just the daunting mathematics of overcoming Obama’s delegate lead.

Id.

Which is it, “narrow delegate margin” or “daunting mathematics of overcoming Obama’s delegate lead”?  Well, let’s look at the figures. Going into the contests she won on March 4, (even) the NYT reported Obama was only 86 pledged delegates ahead of her, or less than .04% of total delegates required at that time to win the nomination!

As I have said before, Obama’s financial backers knew if their agent was to secure the D Presidential nomination, the D primary had to end as early as possible.  Because the more time this flawed candidate remained in the national public eye, the more scrutiny he had to endure.  Including questions as to his Constitutional eligibility for the job.  Until finally, with the primary/caucus season finally ended and no clear winner in sight, the candidate was finally compelled to concede the rising wave of questions as to his Constitutional eligibility for POTUS, and do damage control.

The FTS ad was desperately released in June 2008 to stem the late spring ineligibility tide only because even the cadre of well compensated co-conspirators fixed to rig August’s nominating convention were unwilling to publicly endorse the man if the country still doubted he was Constitutionally eligible for the job.

Gambling that the obvious political ad would sufficiently distract the public from the facts, paid off.  Three years later, people were still claiming Obama’s birth certificate is posted on line.  Plus, when they were questioned by constituents as to Obama’s eligibility, the advertisement provided both ignorant and dishonest politicians alike, with plausible deniability.

But no more.  Because thanks to Donald Trump, everyone, including Ben Smith, now knows, which on-line ‘document’ at least appears to have all of the attributes of a real birth certificate.  And which does not.

(04.10.11):  Update.

My, my, my. It would appear that I was right to come down on the side of the birth certificate showing put on by Mr. Trump.  Cue the ‘MSM’ with  gift wrapped disinformation that confirms, he has hit his mark.

Michael Isikoff, posting today at MSNBC on-line under the moniker “National investigative correspondent,” apparently is among those reporters who continue to assume that anyone still reading the drivel produced under a purported ‘news’ banner like MSNBC; is either too stupid or too gullible, or both, to discern fact from hype.   How else to explain his latest article, Ex-Hawaii official denounces ‘ludicrous’ birther claims in which he now seemingly tries to redeem those same HI election officials who failed miserably in 2008 to parse their validation of Obama’s Constitutional eligibility for POTUS sufficiently so as to assuage genuine concerns the man might not even be a U.S. citizen, let alone natural born.  jbjd, BIRTHER

Especially Dr. Chiyome Fukino, the ex-Director of the HI State Health Department.

Isikoff claims in his article, this time around, Dr. Fukino has clarified, via an admission, that before making those statements in 2008, she had unlawfully accessed the protected privileged confidential records of Barack Obama without first obtaining either a written waiver of liability from Mr. Obama (or his legal representatives) for such otherwise unlawful conduct or, written instructions permitting her to publicly advertise what she had learned from this unlawful breach.

(Mr. Isikoff did not actually refer to this peek at Obama’s birth records as illegal.  But, if what he wrote about Dr. Fukino’s conduct is true then, she did break the law.)

Here are just a couple of ‘facts’ Isikoff reported in this story which those of you regularly reading “jbjd” already know signal his information sounds fishy.

  • He says FactCheck confirmed 2 contemporaneous newspaper birth announcements.  (But see, for example, RUMORS, LIES, AND UNSUBSTANTIATED ‘FACTS’)
  • He says when Dr. Fukino was Director of HI’s Department of Health, before making a public statement as to Obama’s HI birth,  “she wanted to inspect the files — and did so, taking with her the state official in charge of vital records.”  However, for some unknown reason, he fails to provide readers with the name that state official.
  • He ‘reports’ Dr. Fukino claims she saw “the original so-called “long form” birth certificate — described by Hawaiian officials as a “record of live birth” … located in a bound volume in a file cabinet on the first floor of the state Department of Health.”  The logical inference then, is that this bound Certificate is indexed in some fashion, by number or letter or a combination of both.  And that such index number can be verified at least as to the volume she describes.  However, the only document Isikoff links in his article, is that same COLB which is the centerpiece of the FTS paid political advertisement, the one with the identifying index number prominently redacted. DE-CODER RINGS (1 of 2) and DE-CODER RINGS (2 of 2)
  • He reports that “Joshua Wisch, a spokesman for the Hawaii attorney general’s office, noted that a public index of vital records, available for inspection in a bound volume at the Health Department’s Office of Health Status Monitoring, lists a male child named “Obama II, Barack Hussein” as having been born in the state.”  Again, for some reason, Mr. Wisch fails to provide any identifying information that would aid retrieval.  And Mr. Isikoff fails to point out Mr. Wisch’s omission to his readers.

In sum, while I found very little basis for the descriptor “Investigative” before the moniker “reporter” in Mr. Isikoff’s byline; I was certainly entertained by his failed efforts to discredit the ever rising crescendo of non-believers now challenging the authenticity of anything closely associated with Obama.

Including Mr. Isikoff and MSNBC.

P.S.  Question to Mr. Isikoff:  Given that your article points to the lack of identifying information available in the public domain that would allow people to physically inspect any of the documents mentioned therein; how do you suppose all of those prominent members of the D party who Certified in 2008 that Obama was eligible for office, to state election officials in applicable states, that is, states requiring candidates to be eligible for the office sought in order to get their names printed on the ballot; were able to ascertain in advance, he is a NBC?  (We have asked all of them but they refuse to tell us. See, for example, MEMORANDUM of COMPLAINT of ELECTION FRAUD against LT. GOV. BRIAN E. SCHATZ, ACTING in a NON-GOVERNMENTAL ROLE as CHAIR, DEMOCRATIC PARTY of HAWAII; and REQUEST for INVESTIGATION by the ATTORNEY GENERAL of HAWAII, in ALOHA OBAMA and SHALOM.)

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Posted by jbjd

RIGHT REJECTS RELIGIOUS ALTERNATIVE DISPUTE RESOLUTION

March 20, 2011

©2011 jbjd

Over the past couple of days, dozens of internet sites with a political bent decidedly to the right have erupted with a collective ‘whoa is us (read, U.S.)’ cry that the interplay between the courts, and Alternative Dispute Resolution (“ADR”) practice carried out according to principles enshrined in religion; signals we are allowing religious fanatics to take over our Republic.  And they are up in arms at that American prospect.

The focus of their ire is a case in FL involving a business deal (contract) gone bad.  Evidently, the parties had agreed in advance to resolve any disputes that might arise under their contract, in some type of ADR which would be conducted according to Sharia law.   Seems one of the parties now refused to live by the terms of that agreement, denying the other the benefit of their bargain.  The aggrieved party asked the court to memorialize the terms of the contractual agreement to arbitrate in an Order to Enforce the Arbitrator’s Award. (I have been unable to find the original contract between the parties, or any documents other than the court order compelling the parties to abide by the terms of that contract.)  A picture of the court order can be  found on AtlasShrugs. Sharia Becomes Law in Florida

Parties routinely rely on the courts to resolve contract disputes.  So, asking the court to enforce this contractual dispute alone, is hardly newsworthy.  And, many contracts contain a provision to settle prospective disputes arising under the contract, outside of the court, through a specific process using rules agreed upon by the contracting parties.

ADR seems unlikely to be the cause of such consternation.

The Cornell University Law School’s Legal Information Institute (“LII”) defines Alternative Dispute Resolution is “[a]ny method of resolving disputes other than by litigation.  Abbreviated as ADR.  Public courts may be asked to review the validity of ADR methods, but they will rarely overturn ADR decisions and awards if the disputing parties formed a valid contract to abide by them.  Arbitration and mediation are the two major forms of ADR.”  http://topics.law.cornell.edu/wex/alternative_dispute_resolution

In other words, parties to a contract are entitled to the ‘benefit of their bargain.’

Here is a pamphlet which describes court connected ADR services in Massachusetts.  http://www.mass.gov/courts/formsandguidelines/ccadr0601large.pdf This points out some of the advantages of using ADR to settle disputes, including process control and enforcability.

Process Control

In most court-connected dispute resolution processes except for dispute intervention, the parties have more control over the process. They may decide where and when to hold the proceeding, which methods to employ, who will be the neutral, which issues will be addressed, when each party will have a
chance to speak and whether the outcome will be binding or or nonbinding. With court connected dispute resolution, the parties can agree to a mutually acceptable resolution, thereby avoiding the uncertainty related to trial.

Enforceable Agreements

A mutually accepted agreement reached through mediation may be written and signed by both parties. The agreement is usually enforceable as a binding contract but is sometimes subject to judicial review. Other court-connected dispute resolution processes may also provide for submission of accepted written terms of settlement to the court.

Again, contracting parties are entitled to the benefit of their bargain.

Florida has enacted several ADR statutes.  For example,

682.03. Proceedings to compel and to stay arbitration (1) A party to an agreement or provision for arbitration subject to this law claiming the neglect or refusal of another party thereto to comply therewith may make application to the court for an order directing the parties to proceed with arbitration in accordance with the terms thereof. If the court is satisfied that no substantial issue exists as to the making of the agreement or provision, it shall grant the application. If the court shall find that a substantial issue is raised as to the making of the agreement or provision, it shall summarily hear and determine the issue and, according to its determination, shall grant or deny the application.  Id.

So let’s say, parties to a business transaction in FL contract to settle all disputes arising under this transaction through binding arbitration, and that the Arbitrator will be chosen through the American Arbitration Association (“AAA“).  Subsequently, a dispute arises but one party to the contract refuses to undertake such arbitration.  Under this law, the offended party has the right to petition the court for an order to proceed to arbitration under the rules previously agreed to by the contracting parties.  Because contracting parties are entitled to the benefit of their bargain.

And this is what appears to have taken place in the FL case that has sparked this outcry from the right.

So what is it about this case that makes it special?  Here, those mutually agreeable rules for ADR were based in religion.

Now, what heretofore existed as a benign contractual provision has evoked headlines like Florida judge orders Muslims to follow sharia law, against their will; and Say What!?! Florida Judge Rules A Case Should Proceed Under Sharia Law; and SHARI’A (Islamic) LAW now being practiced in Florida. Yes, FLORIDA!.

But choosing to conduct ADR by using agreed upon religious standards is really not that unusual.

Parties wishing to arbitrate their disputes “using an alternative dispute resolution process that is biblically faithful” can get help from Peacekeeper Ministries’ The Institute for Christian Conciliation and conducted under Christian Conciliation Rules, whose decisions are judicially enforceable.

The arbitrators’ decision shall be legally binding on the parties, except as provided by law, and may be filed as a judgment and enforced by a court of law. It shall be the sole responsibility of the parties to file a decision with the court and, if necessary, to have it enforced.

Beth Din of America , providing services “[f]irmly anchored in the principles of halacha (Jewish law),” explains solutions they are able to achieve for the parties are “enforceable in civil courts as they conduct proceedings “in a manner that is consistent with the requirements of secular arbitration.”

Prior to having a case heard by the Beth Din, litigants are required to enter into a binding arbitration agreement. The Beth Din conducts its proceedings in a manner that is consistent with the requirements of secular arbitration law, so that the rulings of the Beth Din are legally binding and enforceable in the secular court system.

Nevertheless, it appears that editors of the organization calling itself Congress.org, a project of the CQ-Roll Call Group, the largest news organization on Capitol Hill, had never heard of ADR grounded in religious beliefs before the present FL case involving Sharia.  Consistent with their stated mission “in facilitating civic involvement,” they incorporated their unreasonable interpretation of these events in FL into a letter posted for use by constituents to send to their state legislators throughout the country, urging laws that would prohibit U.S. courts from adopting Sharia law!  (Talk about facilitating civic ignorance…)  The letter asks officials rhetorically whether civil courts engage in the practice of remanding cases between Christians to the Christian churches for resolution, reasoning, therefore, it makes no sense to order matters involving Muslims to Sharia law.  (Such rhetoric stupidly implies that the reason the court in FL ordered arbitration to be conducted under Sharia was that the contracting parties were Muslim, rather than that they had both contracted to resolve their dispute under Sharia law in the first place!)

Letters To Leaders
All messages are published with permission of the sender. The general topic of this message is Women’s Issues:
Subject:
ExampleTo:
Governor Christine Gregoire
Rep. Ross Hunter
Rep. Deb Eddy
Sen. Rodney TomMarch 19, 2011

The case of Mansour v. Islamic Education Center of Tampa, Inc., (Case No. 08-03497, 13th District Court for Hillsborough County, Florida) is an example of Sharia law being imposed in the U.S. Paragraph 2 of the Court’s dispositive Order is a quote originally from the Christian Bible that says if someone sins go to that person to discuss it first, and if they do not listen then bring another witness. If they still do not listen, bring it before the church and (basically) excommunicate them from the community if they remain obstinate in sin. The Christian Bible also says it is shameful to have to go to court and sue fellow Christians, not being able to resolve conflicts within the church community which is the body of Christ. Mohammad rewrote (dictated actually as he was illiterate) the Bible in the 7th Century from what he knew of the Bible; THAT is why the Quran has similar-sounding passages.

Even so, do the civil courts remand cases between Christians to the Christian churches for resolution? No, the civil law upholds ethical BEHAVIOR and punishes unethical BEHAVIOR. The case herein is not asking the Court to interpret Islamic doctrine but to reasonably decide a contractual dispute. How can a civil judge tell the parties to figure it out for themselves as if U.S. law did not govern contractual obligations? The Judge is basically saying that Sharia law governs contracts between Muslims. That Judge is an enabler and enforcer of Sharia law and should be taken off the bench.

Please be vigilant in eliminating this kind of judicial betrayal and pass legislation prohibiting the use of Sharia law as an alternative to U.S. law.

As you can see, this letter posted by Congress.org evidences an ignorance of the accepted role religious arbitration already plays in ADR, throughout the country.  On that basis, I extrapolate that the other pundits incensed over the FL court order in the binding arbitration conducted according to mutually agreed upon Sharia law, could be similarly unaware, religious based ADR is nothing new and, therefore, are opposed to the use of Sharia law to decide this dispute in FL, and to the use of the courts to enforce an arbitration award, on the basis of ignorance of the facts and commonly accepted legal practice.

Or maybe they just hate Muslims.

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Posted by jbjd

BECAUSE I SAY SO

April 14, 2011

©2011 jbjd

Compared to the number of people who click on the latest article posted here on “jbjd,” I have relatively few subscribers, either to the articles or, to the Comments.  But sometimes, the article only begins the dialogue; the Comments, and my Replies to this input from my readers, are often ‘where the action is.’  Occasionally, I review older Comments and my Replies, especially when this involves a new Comment to an old Post.  In retrospect, it appears to me that the articles I post evidence perhaps a more fully developed explanation of the point I want to make – some might call this rambling – or a greater attention to detail; but this only reflects the nature of the blog.  That is, I generally write the article in a way I hope will maximize the likelihood, readers will understand what I am saying; and I Reply to Comments so as to clarify any misunderstanding.

This morning, I Replied to a Comment sent in by “Mick” on DEFINITION on DEMAND, which was originally posted 1 (one) month ago.  In hindsight, I think the ideas we expressed in our exchange merit their own post.

In the interest of time, instead of writing that Post, I will re-Post that conversation.

Micksays:

Your “update”, of course, is nonsense. Pontifications of a sharp mind dulled by relativism. True, SCOTUS is the ultimate arbitter of Constitutional terms, but the Constitution was written to be understood by the common man. 200 years of lawyers playing telephone with it, and their own inflated egos that insist that stare decisis overrides any original meaning, have rendered it mush. Any law that is against the Constitution is null and void. If there is no meaning of the term natural born Citizen that is actionable, then the states have nothing to base any vetting of a candidate, and A2S1C5 is uninforcable. Thus is the end result of your relativist, circular firing squad logic. I would expect no less from one who admires both Howrd Zinn and Hillary Clinton. The meaning is well known from over 200 years ago, and is expressed consistantly over that time. I laugh at the nonsense you write, but it is also a sad commentary on the state of both the law profession and teaching profession.

Mick: Howard Zinn was a WWII combat veteran, which conduct I would imagine most citizens of this country would agree has more than earned him the ‘right’ to be free of the scorn of the ‘thought police.’

You write, “Any law that is against the Constitution is null and void.” Okay; but who gets to decide? For example, assume those states that formerly provided public ‘facilities’ (train cars) to its citizens stratified on the basis of their color, actually believed the definition intended by the term “equal protection” expressed in the 14th Amendment to the Constitution was not violated by such conduct. Of course, many of those citizens affected by this conduct believed otherwise, and so challenged the prevailing view of the Constitution. Based on the case brought before the SCOTUS, it ruled, “separate” can still mean, “equal.” (Plessy v. Ferguson).

For the next 6 decades, many citizens still believed the SCOTUS had gotten it wrong. And an argument was re-submitted to the court, using better evidence, in a case involving public education services. This time, rejecting stare decicis, the court ruled, “equal” cannot exist when the government provides services to people separated by their race. (Brown v. Board).
http://www.loc.gov/rr/program/bib/afam/afam-brown.html

This is what “checks and balances” is all about. According to the Constitution’s delegation of power to the SCOTUS to interpret what the document means; separate was equal during the 6 decades between Ferguson and Brown. Of course, this does not mean, states engaged in separating the provision of services by race, notwithstanding Plessy; or that, state constitutions did not prohibit such segregation.

You mistakenly conflate defining NBC for the purpose of establishing eligibility for POTUS; with establishing eligibility for having the state print a name on the ballot. I have been advocating that states set ballot eligibility, only. In fact, I maintain, absent a Constitutional amendment; this is the only way to finally get a legal definition of the term (which must come from the federal appellate court, which includes the SCOTUS).

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(FORMER) CHAIR of CA D PARTY CONFIRMS “jbjd” CORRECT: 2009 PRESSER WAS a DOG-and-PONY SHOW

April 21, 2011

©2011 jbjd

Why, in April 2011, is Bill Press, a D among D’s – after all, how many D’s rise to the top of the CA state party? – still touting that July 2009 WH presser when he pretended to ask then WH Press Secretary Robert Gibbs, and Mr. Gibbs pretended to answer, this question:  Why do people still not believe President Obama is a NBC?  (And how was Mr. Press able to recall the date of that session off the top of his head, anyway?)

Watch this.

Did you catch when Mr. Press claimed Barack Obama first released his HI birth certificate in 2007 -  “In 2007, the President produced his birth certificate…” – but then checked himself and said this – “…asked the state of HI to, they did; they put it up on line; that’s what they do in HI, end of story.”

Notice that, in this present exchange, Mr. Buchanan asks Mr. Press for the reason that the WH press corps is not asking Mr. Obama why he chooses not to release his birth certificate; but that Mr. Press responds by saying, ‘I did, a year-and-a-half ago; Google it!’  Actually, in 2009, Mr. Press did not ask why the President does not release his birth certificate.  Because releasing this document was not the point of that dog-and-pony show.  Rather, the point of that charade was to reinforce the meme, such document had already been released and was posted on line.  In fact, Press only asked Gibbs this question:

Is there anything you can say that will make the Birthers go away?

thus cueing Gibbs to repeat that the electronic image of the COLB mock-up appearing on the paid political ad called “Fight the Smears” really is Obama’s birth certificate, which he – Gibbs – told Obama to post to silence questions as to whether he was “born in this country.” Id.

(It’s all here; read this.  PRESS BILL PRESS to EARN his  PRESS CREDENTIALS)

But know what really jumped out at me?  Even after Press caught himself, now crediting HI with producing the COLB rather than Obama; and ambiguously using the pronoun “they” to mean either HI or Obama’s campaign; he still acknowledges, this document that was obtained in 2007 was posted on line.  (Does he mean to falsely imply that, once the document was obtained (however it was either ‘obtained’ or ‘fabricated’) it was immediately posted?)  So, here’s the question I would ask Mr. Press.

Given your acknowledgement that this document was obtained in 2007 and subsequently posted on line; and given the fact that the attribution in the footer of the FTS web site containing the electronic image of this document, evidences this was copyrighted in 2007; and given that Mr. Gibbs claims he asked Obama to release this document; then why did the D’s wait until June 2008 to release it?  (This is a rhetorical question.  As I have answered previously, this tripe called “Fight The Smears” would never have seen the light of day if Obama and his co-conspirators hadn’t bungled the theft of the D Presidential nomination so that even after the primary/caucus season ended, no clear winner emerged.  If they had been better crooks then, with the over-weighted caucus votes and accompanying shenanigans, they could have wrapped up the nomination before people started asking questions about whether he was Constitutionally eligible for the job.)

P.S.  And when Gibbs said back in July 2009, ‘I asked Obama to post his birth certificate a year and a half ago’; this really jumped out at “Miri.”  (I told you, the Comments here at “jbjd” can be as intriguing as the Posts!)

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MICHELLE GOLDBERG HAMMERS ANOTHER NAIL in the MSM COFFIN

June 4, 2011

© 2011 jbjd

Granted, Michelle Goldberg has her own web site; has written a couple of books which, according to her, were well researched and appear to be selling well (id.); and writes a column for the Daily Beast. But assuming she means what she says in her recent diatribe, “Why Birthers Won’t Die,” that is, taking on face value that she is not writing just for provocation or brainwashing then, I cannot emphasize enough: when it comes to issues related to establishing Barack Obama’s Constitutional eligibility for POTUS, Ms. Goldberg has demonstrated she has absolutely no idea what she is talking about.

It’s not just the fact she repeats the fallacy, the hard copy of the electronic image President Obama calls a birth certificate and recently ‘released’ to the press, is actually a long form birth certificate, that makes any information coming from her suspect.  (I will write another article focusing on the lunacy of anyone’s continued bona fide belief, photocopying any electronic image adds to its authenticity.) Obama’s Director of Communications, Daniel Pfeiffer, posted this image on the WhiteHouse.gov blog. Ms. Goldberg even links her readers to that image effectively reasserting its authenticity.  But Pfeiffer’s job is to shape the President’s message and not to communicate news, which is the job of the Press Secretary (notwithstanding Robert Gibbs, Director of Communication of Obama’s Presidential campaign and former Press Secretary for President Obama often conflated those 2 positions).  Unlike Ms. Goldberg, Mr. Pfeiffer was doing a good job, by shaping the message.

Or that, she uses Mr. Corsi’s refusal to buy into this lie (that a bona fide birth certificate has been released) as a weapon against his motives and intellect.  In spades.

Much of Where’s the Birth Certificate? rehashes old, debunked stories meant to cast doubt on Obama’s birth in Hawaii. But the book also claims that even if Obama was born in the United States, he still might not be a “natural-born citizen” because of his father’s foreign citizenship, which would make him ineligible for the presidency. To make this argument, Corsi dredges up a constitutional theory popular in white supremacist and anti-immigrant circles, making an invidious distinction between those granted citizenship by the 14th Amendment and those who were citizens under the Constitution as originally written.

What?  Only those identified with “white supremacist and anti-immigrant circles” espouse that a bona fide difference exists between the terms “natural born citizen” in Article II, section 1 of the Constitution; and the term “citizen” as used in the 14th Amendment?  (Of course, I reject claims by Corsi or anyone else that citizens of non-citizen parents are not natural born citizens; and this only makes sense, since I maintain that no ‘legal’ definition of NBC exists absent a ruling by a federal appellate court, in a case on point.)

Worse, adding insult to injury, Ms. Goldberg justifies her political stereotyping using flawed reasoning, thereby additionally exposing her Constitutional  ignorance.

But Corsi’s ideas about the 14th Amendment, if taken seriously, wouldn’t just affect the children of immigrants—they could disqualify all black people from the presidency. “Obama defenders who want to define him as a natural-born citizen because he is native-born and a citizen under the 14th Amendment are engaged in an effort to redefine Article 2, Section 1, away from its original natural law meaning,” Corsi writes. The original meaning, of course, did not encompass black people. That’s why we needed the 14th Amendment in the first place.

Let me point to the absurdity of just one segment of this drivel:  Ms. Goldberg’s mistaken focus on Corsi’s phrase, “effort to redefine Article 2, Section 1, away from its original natural law meaning,” to mean that, Mr. Corsi rejects Obama’s Presidency based on his race.  She reasons, it is this focus on race which motivates Corsi to object to any attempt to steer the conversation toward 14th Amendment inclusion of blacks as eligible to become President, and away from the original intent, which clearly excluded blacks. But whether he is racist; she doesn’t know her Constitution and, based on her ignorance, obviously misconstrued the ‘plain meaning’ of Corsi’s words.

The phrase “natural born citizen” is listed in Article II, section 1, as a condition of Presidential eligibility.  And, the word “citizen” is listed in Article I, sections 2 and 3, as the eligibility requirements for Representative and Senator, respectively, put there almost 100 years before the 14th Amendment.

No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.

No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States and who shall not, when elected, be an inhabitant of that state for which he shall be chosen.

Get it?  The Drafters used the word “citizen” in 2 (two) different contexts of eligibility for office, one to be President; and the other to be a member of Congress. (Technically, the wording for President applies to eligibility; whereas the term for Congress applies to actual holding of the position.  This makes sense since members of Congress are elected directly – perhaps the Drafters did not trust the average citizen to choose the right person for the job – whereas Presidents are chosen by Electors who, it would appear safe to predict at the time, could not be anticipated to elect a President they were not certain was eligible for the job .) Since the Drafters used these 2 (two) different phrases, the tenets of statutory construction require that, we must assume, therefore, the Drafters meant 2 (two) different things.  “When Congress includes a specific term in one section of a statute but omits it in another section of the same Act, it should not be implied where it is excluded.” Arizona Elec. Power Co-op. v. United States, 816 F.2d 1366, 1375 (9th Cir. 1987); see also West Coast Truck Lines, Inc. v. Arcata Community Recycling Ctr., 846 F.2d 1239, 1244 (9th Cir. 1988), cert. denied, 488 U.S. 856 (1988). http://www.lectlaw.com/def2/s104.htm

See, contrary to Ms. Goldberg’s wishful projection; Corsi wasn’t at all waxing nostalgic, harkening back with longing to a time in our history when no blacks were counted as citizens and thus, could not be elected President (or Representative or Senator).  Rather, his use of the phrase “original natural law meaning” referenced the requirement of eligibility for President in Article II – natural born citizen – as opposed to, say, the original requirement in Article I for holding the office of U.S. Representative or U.S. Senator – citizen – which excludes the modifier, natural born.  Both of which applications of the term “citizen” he undoubtedly would agree should presently be read to include all citizens now Constitutionally defined as such, through the 14th Amendment.  Even those whose skin color is black.

In other words, even assuming a preference for color; Corsi just wants people to stop conflating “citizen” with “natural born citizen.” Get it?

But that excerpt points to my biggest objections to Ms. Goldberg’s hit piece on Mr. Corsi: her disingenuous diatribe against the man for what she paints as a racially motivated focus on the 14th Amendment. Those of you who have dissected the information on this blog probably already ‘get’ that she reverses cause versus effect. In fact, the eligibility argument only arose because Obama raised it by calling himself a “native” citizen and not “natural born.”  Indeed, he set up this false dichotomy, way back in 2007, when he – or perhaps more accurately, his campaign’s Director of Communications, Robert Gibbs – wrote “Fight the Smears,” the propaganda piece I have argued they would never have made public had he stolen the D nomination before the D Corporation Presidential Nominating Convention.  And in that same electronic advertising campaign, he posted the red herring argument about the 14th Amendment, couching it in racial terms, perhaps to misdirect the attention of astute citizens who otherwise might have noticed, he had conflated the 2 (two) Constitutional terms; and suspected a likely reason to be, he was trying to mask his ineligibility.

Want to see the evidence that supports my hypothesis, Ms. Goldberg?  IF DROWNING OUT OPPOSING FACTS IS “un-AMERICAN” THEN IGNORING UNPLEASANT FACTS MUST BE un-AMERICAN, TOO; or  TOO IGNORANT TO LEAD Of course, I am only a blogger.  (Then again, so was Dan Pfeiffer, in the context of posting that electronic image of the ‘document’ entitled, “Certificate of Live Birth” on the White House blog.)

Granted, maybe I am holding Ms. Goldberg to too high a journalistic standard.  After all, in the context of writing for the DB; she wears the hat of “columnist,” arguably absolving her from the profession’s constraints of both accurate and impartial reporting.

(In the interest of full disclosure, I am reporting that, evidently, Mr. Corsi’s book endorsed the work originating here on “jbjd” focused on filing citizen complaints of election fraud with state A’sG in those states with existing laws requiring candidate eligibility for office in order to access the ballot.  However, I have not read his book.)

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TESTING, 1, 2, 3

June 23, 2011

©2011 jbjd

Here is part of a Comment submitted by long time loyal “jbjd” reader, Al, on the previous post:

Submitted on 2011/06/23 at 07:05

…

To date, jbjd–am drawing upon your sharp legal prowess here, Have you developed any specific language that State representatives around the country may chooose to use in introducing legislation in their respective States to enact/pass candidate eligibility laws?

In fact, having first focused the ‘eligibility’ debate on the states back in 2008; I have subsequently posited in several places on this blog, various solutions to the Constitutional eligibility conundrum.  But I want to see if I have made my point.  So, I am asking all of you to please, write in with answers to Al’s question, even if you can only come up with some good guesses.  Because for me, figuring out solutions to this dilemma and, posting these on the pages of this blog; is not enough.  I am greedy; that is, I want to communicate these solutions in a manner that educates my fellow citizens, who cannot read my mind.

If you don’t want me to post your response, just say so; all comments are in moderation.

Thank you.

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THERE COULD BE a LOGICAL EXPLANATION

June 29, 2011

© 2011 jbjd

Not every procedural inconsistency that occurred between the 2008 election cycle and previous elections, is definitive evidence of fraud, let alone proof that such fraud occurred.

I received this comment today from HawaiiSurfer, bemoaning the fact that HI Lt. Gov. Brian Schatz (D), formerly Chair of the HI Democratic Party in 2008; has gotten away with election fraud in relation to the wording of the 2008 D Certification of Obama’s Nomination.  But, HawaiiSurfer got it wrong; and those of you who regularly read my blog know s/he got it wrong.  Here’s that comment, in its entirety.

Brian Schatz should not be allowed to waltz scot-free on his signature and wording on the 27 August 2008 memo in question.  Our country has gone down a road where our children look up and wonder if anyone in leadership has integrity.  Few leaders have touched an honest approach to the shadowy skullduggery surrounding the 2008 election…And the world is just suppose to be okay with it.  Someone needs to call Brian out publicly for signing this form and the wording he knew was in it.  As now our Lt Governor in Hawaii, Brian needs to come clean on why he approved and authorized this release.  Where has the ethical conscience and compass of our government gone?  Forget what the media calls the birth issue, this has to do with why Brian validated for our state the national democratic presidential candidate while “clearly omitting” the authentication that the candidate was Constitutionally qualified.  In stark contrast, two predecessors from Brian’s party, Brikwood Galuteria and Alfred Lardizabul, did the right thing by clearly certifying John Kerry in 2004 and Al Gore in 2000 as Constitutionally qualified candidates.  If we went back further in time, we’d probably find Brian’s actions as Democratic Party Chair here are in clear contrast to far more than just documentation of the last few presidential elections.  Brian most likely is not to fault in everything related to this.  Many hands across our nation appear to have been deep in the cookie jar.  The democratic party was fed a bad deal with what is most likely one of the biggest frauds in American history.  Good people should have stopped it.  Brian Schatz seems like a wonderful person.  I’m sure Brian has done many great things for our communities and state, but that does not excuse any elected or appointed leader from actions of this weight and consequence.

Brian Schatz signs official campaign document showing missing statement that presidential candidate was Constitutionally qualified.
(link omitted by jbjd)

Our children and neighbors deserve much better.  Our country dies when we let go of our conscience.  Unfortunately, Brian may end up like Blago.  Behind bars.

I began responding to this comment when I realized, I had written all of this before. After a brief search I found BACK UP, BIRTHERS! which contained a well-developed explanation of the inconsistencies related to the 2008 HI Certification, none of which lends itself to a presumption of fraud, certainly not on a state level.

*******************************************************************************************************************************************************

(beginning of excerpt)

…

Not understanding my work or the context of these Certifications, she, too, invented a cottage conspiracy industry related to the mistaken uniqueness of the HI Certification of Nomination, with a twist.  See, she uses the fact the DNC Certification of Nomination contains the line that Obama is Constitutionally eligible for the job; to support her argument, the HI D Party refused to put that line in their state Certification because they knew Obama is not a NBC.  How does she know this?  Well, she retrieved both the DNC and the HI D Party Certifications for 2000, 2004, and 2008.  In 2000, the DNC document began without the eligibility line, which was obviously typed in after the original document was completed.  The HDP document in 2000 contained the same eligibility line.  In 2004, the DNC document did not contain the eligibility line; the HDP document did.  In 2008, the DNC document did; the HDP document did not.

butterdezillion points out all of the variables were the same – the election law was the same, Brian Schatz was the HI D Party Chair; and Joseph Sandler was the General Counsel to the DNC – and argues, on this basis, one would expect that the Certifications would have been processed in the same manner.  Since they were not, she concludes, Mr. Schatz “refused” to swear to Obama’s Constitutional eligibility for President because he knew the man was not a NBC.

Only, she is wrong.  For one thing, all of the material variables were not the same.  But that fact has not stopped the ‘usual suspects’ from piggy-backing on her mistakes.  Even worse, her work now specifically contains a reference to research done by “jbjd,” thus arguably giving the false impression, again, my work is the basis for her soon-to-be-exposed-as-discredited findings.

Basically, here is her argument.  Looking at the dates of these Certifications, she found, in 2000, the DNC Certification was dated 08.17.00; HDP 09.08.00.  In 2004, DNC 07.29.04; HDP 08.31.2004.  In 2008, DNC 08.28.08; HDP 08.27.08.  Following is her invented rationale as to what happened in 2008:

So instead of acting independently a month after the National Convention and confirming Constitutional eligibility as in the past, the HDP acted before the Convention to take out the eligibility language from their standard certificate, signed it, and gave it to Joe Sandler before Pelosi had signed anything – signaling to the DNC that they were not going to certify eligibility. They coordinated their efforts with Joe Sandler, who sent both documents together to the HI Elections Office. Apparently Sandler, Pelosi, and Germond all knew that Hawaii’s special certification was necessary because the HDP refused to certify Obama’s eligibility.

Let me just point out one of butterdezillion’s most glaring mistaken presumptions.  Joseph Sandler did not submit both the DNC and the HDP documents “together” to the HI Elections Office.   (This probably explains why his cover letter only references the DNC Certification and not the HDP Certification, and why he uses the word “Certification,” in the singular.)  And how do I know this?  Because way back in January 2009, I asked the HI Election Office.  That is, I asked Justin Riggs to ask them.

See, in December 2008 I learned that Justin Riggs had been corresponding with elections officials in various states asking them to provide the paperwork submitted by the D and R parties to get their respective Presidential nominees on the general election ballot.  Justin posted his paperwork.  I looked at the HI documents – these are now posted on my web site, along with Justin’s correspondence – and had questions.  So, I asked Justin to ask HI election officials, since he had already established a rapport. Especially I was interested in learning when they had received these Certification documents.  Because among those documents I got from him were just the DNC Certification; the HDP Certification; and the HDP cover letter.  Joseph Sandler’s cover letter was missing.  And as you can see from the documents posted on butterdezillion, his cover letter is the only one with a ‘date received’ stamp.

(Actually, the 2008 documents butterdezillion posted on her blog in September 2010 are linked to this blog, http://moniquemonicat.files.wordpress.com/2008/12/hawaii-response.pdf, where they were first posted almost 2 (two) years ago.  The date, January 06, 2009 01:17p in the upper left corner, designates a FAX transmission.)

Mr. Sandler’s cover letter, dated August 28, was stamped received by the HI Elections Office on September 03.  And that cover letter was the only one of those DNC/HDP Certification documents received by the HI Election Commission for Obama that received a Date Stamp.  Consequently, as the documents I received from Justin did not contain Mr. Sandler’s cover letter, none of his documents had a stamp evidencing it had even been received by the HI Elections Office!  But obviously, the documents were received, as election officials did print Obama’s name on HI’s general election ballot.  (The date these documents were received didn’t matter, for the same reason, that is, I knew they had been received in time.)  Just to satisfy my curiosity, I asked Justin to ask officials how they received these DNC and HDP documents.  Here is his reply to me.

jbjd,
Here you go… it looks like the HI Democratic party forwarded both documents to the Elections Office.
Hope that helps. Keep me posted on your progress.
Justin—
From: Carolyn.L.Roldan@hawaii.gov <Carolyn.L.Roldan@hawaii.gov>
Subject: Re: Response to December 12, 2008 Request
To: “Justin Riggs” <juriggs@.xxxxx.com>
Date: Friday, March 6, 2009, 1:44 PM
Dear Mr. Riggs,
Both documents were forwarded by the Democratic Party of Hawaii.

Sincerely,

Kevin B. Cronin

Now that I see Mr. Sandler’s cover letter, Mr. Cronin’s answer makes even more sense.  That is, between his use of the singular “Certification”; and the delay between the date his letter was written and the date this was received by the HI Election Office’ it would make sense that the DNC gave the documents to the HDP who then forwarded these to the HI Elections Office.

When butterdezillion wrote her ‘seminal’ Certification article on September 10, 2010, she knew none of this.  Thus, based on her faulty assumptions about how the DNC and HDP letters of Certification reached the HI Election Office, she asks, “The question that begs an answer is: Why did the Hawaii Democratic Party refuse to certify Obama’s eligibility as they had always done to successfully place presidential candidates on the ballots before?”  And answered it with that contrived story.

A more plausible answer as to why the HDP did not add the line about Constitutional eligibility in 2008 like they had in 2004 and 2000 likely could come from anyone reading the work produced on my blog.  Here’s a hint:  what information highlighted in COUP (2 of 3) and (3 of 3) led to my conclusion, Obama and the DNC had identified which Clinton pledged delegates were from vote binding states?  Yep; it’s those state Delegate Selection Plans.  As I told you, provisions in the DNC Model Delegate Selection Plan for 2006 required, in order to obtain final approval from the RBC for state delegate selection plans for use in the 2008 election cycle, state parties were required to submit those plans to the RBC accompanied by all state statutes reasonably related to the delegate selection process. (Emphasis added by jbjd.) http://s3.amazonaws.com/apache.3cdn.net/e824f455b24c7782dc_jjm6ib44l.pdf In this way, the DNC could monitor any idiosyncratic requirements in individual states so as to ensure Obama’s name would qualify to get onto every general election ballot.

I assumed this provision was not included in the 2002 DNC model delegate selection rules to be used in the 2004 election, and that’s why the HI state party (and, presumably, state parties in other states) handled their special Certifications on their own.  Finally, I had time to check my hypothesis; and I was right.

View this document on Scribd

In other words, where changes would be required in the language of the Certification of Nomination to satisfy the law of individual states, in 2006, the DNC began assuming responsibility for all such changes.

And that would explain why in 2008 the HDP did not certify Obama’s Constitutional eligibility for office but the DNC did.

…

(end of excerpt)

*****************************************************************************************************************************************************

If your bona fide concern is shoring up the electoral process then, please, stop wasting time on ferreting out fraud and conspiracy where 1) none exists; and 2) this won’t make a difference to ensuring the next President is a NBC, anyway. And, do all of us a favor.  Stop buying into anything coming out of the hyperbolic factually vacuous blogs the links to which I continue to edit out on my blog!  Especially steer clear of any of those blogs which feature the people who have stolen and then, misrepresented the point of my work.  I wonder whether after yet another episode of emotional investment in a gambit which not only has no basis in fact but also was dispelled long ago on this blog; people will have become sufficiently angry to stop crediting another word from their ‘poison pens,’ anyway.

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SELF-PROCLAIMED “BIRTHER DEBUNKER” CHARGES NYT REPORT on ROSA PARKS is “RACIST REVISIONIST HISTORY”

July 9, 2011

© 2011 jbjd

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SENSE and non-SENSE

July 1, 2011

UPDATE:  Please read my Comment below, containing an excerpt from the Supreme Court’s ruling in the Slaughterhouse Cases, which emphasizes this point with relation to the 14th Amendment’s language on citizens.  In short, if the 14th Amendment can be said to be conferring citizenship rather than merely codifying those definitions already understood in law and practice then, it does so only by establishing the distinction between the rights accruing to citizens as citizens of the U.S.A. which rights are now uniform; versus the rights of citizens as citizens of the states (in which they reside), which vary according to the state.  

© 2011 jbjd

No legally binding definition exists of the phrase “natural born citizen” as written in Article II, section 1 of the U.S. Constitution; and no such definition will be forthcoming until a federal appeals court, including the U.S. Supreme Court, rules, this is the definition, in the holding of a case or controversy directly on point, that is, one which requires the court to formulate such definition so as to reach resolution of the matter properly before the court.

I have said this a ‘million’ times, with only slight variation, since I began blogging in 2008. And, as I have also indicated, for a couple of reasons, at this point, that is, now that President Obama has been elected; I couldn’t care less whether he is a NBC; and I have been saying this for a long time, too. What difference does it make whether he is a NBC when we enacted no laws that required our state Electors to elect only a President who is Constitutionally eligible for the job!  (This would explain my insistence that present calls for Impeachment cannot be predicated only on his Constitutional ineligibility for office.) And, regardless of the absence of documentary evidence available in the public record that, he is even a C, which status certainly was well defined and accepted by the aforementioned legal authorities even before this definition was codified in the 14th Amendment for the purpose of qualifying who is entitled to “privileges and immunities”; it appears true that, millions of my fellow citizens who voted for (Electors for) the man, could not have cared less whether he is a NBC, either, even before his election.

Thus, I have steered clear of substantively addressing the ‘legal’ arguments out there which insist, a binding definition of NBC exists.

However, obviously, this recognition of the status quo, that is, no legally binding definition exists of NBC; and my present indifference to Obama’s Constitutional eligibility for office; have had little to do with my continuing efforts to identify a mechanism for determining whether he is a NBC, for those people who want to know. Indeed, my mission has always focused on the larger issue of understanding how our government, in general; and particularly our electoral system works and, where it does not work, how we might fix it.  (Yes, in so doing, I figured out how to spark the court case that could result in a legally binding definition of NBC but, that is not the focus of this post.)

And it is because my focus is on fixing what is broken in our system that, notwithstanding I have refused to enter the ‘legal definition of NBC’ fray in the past; for the moment, I changed my mind.  Because now, 3+ years into our national discussion about Constitutional eligibility; about to dive into a new general election cycle; we are still being sidetracked by such folly.  So, responding to a comment from long-time “jbjd” reader, Mick; I decided to weigh in, once and for all, on the case most often cited to sustain this drivel.

From Mick:

Again, a circular firing squad you present. If there is no judiciable definition of natural born Citizen, as you say, then how can the Secretary of State of any state verify whether a POTUS candidate is eligible? As usual, many words in this post saying nothing, except the whining about someone stealing your “work”. How about this definition, straight from SCOTUS in Minor v. Happersett: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.” Pretty plain to most people with any sense.

Here is my response.

Mick: The legal case you mention – Minor v. Happersett – does not rest on defining what is meant by the term “natural born citizen.”  Indeed, the case is not at all concerned with distinguishing from among “natural born citizen”; or “native citizen”; or “naturalized citizen.” Rather, this is a (state) voting rights case to determine only whether MO law can rightly prohibit women from voting, brought under the “rights and privileges” clause of the 14th Amendment. In other words, is suffrage a “right” or “privilege” that now must be protected for female citizens otherwise prohibited under state law from voting on account of their gender?  But as a threshold matter, the court must first determine whether the word “citizen” as this is used in the 14th Amendment; means women, too.

Thus, the court conducts an extensive analysis (non-binding dicta) of the legal posture of historical authorities, both in common law, statutes, and state constitutions, with respect to the meaning of citizen, as this applies  generically.  It acknowledges, these authorities have always been consistent in saying, the child born in this jurisdiction, of citizen parents is a natural born native citizen; but inconsistent on whether the same can be said of children born here of non-citizen parents. Both of Ms. Minor’s parents were citizens at the time of her birth.  The court wrote, therefore, there was no need to “reach” the question as to whether she would still be a native natural  born citizen if her parents were not citizens.

Here is the whole quote from that same passage you excerpted in your comment. Now, see if this makes more sense.

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.

Then, having determined, Ms. Minor is by all other means, a citizen; the court similarly conducts an extensive analysis (non-binding dicta) of the legal posture of historical authorities, both in common law, statutes, and state constitutions, with respect to the meaning of citizen, as this applies  to women.  And, it concludes, women were always historically considered citizens (who satisfied the uniformly accepted threshold requirement of birth in this jurisdiction to citizen parents).  Thus, the word “citizen” in the 14th Amendment as this relates to the “privileges and immunities” clause, means, women, too.  (The court makes clear that, as she is a natural born native citizen, her citizenship, and impliedly the citizenship of all women and men similarly situated, (though not necessarily the citizenship of people born here to non-citizen parents, or who achieved citizenship through naturalization because, as the court had already pointed out, the authorities had heretofore been mixed as to whether these were citizens and, it would not resolve that issue here) was not newly conferred by the 14th Amendment but only newly codified as entitling them as citizens to the same “privileges and immunities” as all citizens of the several states. That is, the 14th Amendment does not create a new definition of citizen.)

Then, having determined, Ms. Minor is by all other means, a citizen; and that, citizen means, women; the court similarly conducts an extensive analysis (non-binding dicta) of the legal posture of historical authorities, both in common law, statutes, and state constitutions, with respect to whether suffrage can be said to be a “right” or “privilege” under the 14th Amendment.  And that’s where Ms. Minor’s case fails. Because voting in the several states had always been largely exclusive to men.  Even when it was not exclusive to citizens.

Besides this, citizenship has not in all cases been made a condition precedent to the enjoyment of the right of suffrage. Thus, in Missouri, persons of foreign birth, who have declared their intention to become citizens of the United States, may under certain circumstances vote. The same provision is to be found in the constitutions of Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Minnesota, and Texas.  Id.

In other words, Ms. Minor was entitled to all of the privileges and immunities of all citizens; and voting wasn’t one of those privileges and immunities.

Finally, you ask, how can the Secretary of State of any state verify whether a candidate for President is eligible for the job?  S/he cannot.  Because, right now, no law says, s/he must, even in those states that require candidates to be qualified for office to appear on the ballot.  Yep; even in those states where the legislature has already acted, no SoS had promulgated rules and regulations defining such ballot eligibility, let alone identifying whose job will be, to check.

In conclusion, Mick, no legally binding definition exists of the phrase “natural born citizen” as written in Article II, section 1 of the U.S. Constitution; and no such definition will be forthcoming until a federal appeals court, including the U.S. Supreme Court, rules, this is the definition, in the holding of a case or controversy directly on point, that is, one which requires the court to formulate such definition so as to reach resolution of the matter properly before the court.  And, absent a legally binding definition of NBC; no state with a law requiring candidate eligibility to appear on the ballot, has even (attempted) to enact rules and regulations to define NBC for the sole purpose of determining ballot eligibility.

Make sense?  ADMINISTRATOR

****************************************************************************************************************************************************

For those of you who will not read the whole case, here is a syllabus, prepared by the court.

Syllabus

SUPREME COURT OF THE UNITED STATES

88 U.S. 162

Minor v. Happersett

Argued: February 9, 1875 — Decided: March 29, 1875

ERROR to the Supreme Court of Missouri; the case being thus:

The fourteenth amendment to the Constitution of the United States, in its first section, thus ordains; [n1]

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States. Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction, the equal protection of the laws.”

And the constitution of the State of Missouri [n2] thus ordains:

“Every male citizen of the United States shall be entitled to vote.”

Under a statute of the State all persons wishing to vote at any election, must previously have been registered in the manner pointed out by the statute, this being a condition precedent to the exercise of the elective franchise.

In this state of things, on the 15th of October, 1872 (one of the days fixed by law for the registration of voters), Mrs. Virginia Minor, a native born, free, white citizen of the United States, and of the State of Missouri, over the age of twenty-one years, wishing to vote for electors for President and Vice-President of the United States, and for a representative in Congress, and for other officers, at the general election held in November, 1872, applied to one Happersett, the registrar of voters, to register her as a lawful voter, which he refused to do, assigning for cause that she was not a “male citizen of the United States,” but a woman. She thereupon sued him in one of the inferior State courts of Missouri, for wilfully refusing to place her name upon the list of registered voters, by which refusal she was deprived of her right to vote.

The registrar demurred, and the court in which the suit was brought sustained the demurrer, and gave judgment in his favor; a judgment which the Supreme Court affirmed. Mrs. Minor now brought the case here on error.

1. The word “citizen” is often used to convey the idea of membership in a nation.

2. In that sense, women, of born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment to the Constitution as since.

3. The right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the fourteenth amendment, and that amendment does not add to these privileges and immunities. It simply furnishes additional guaranty for the protection of such as the citizen already had.

4. At the time of the adoption of that amendment, suffrage was not coextensive with the citizenship of the States; nor was it at the time of the adoption of the Constitution.

5. Neither the Constitution nor the fourteenth amendment made all citizens voters.

6. A provision in a State constitution which confines the right of voting to “male citizens of the United States,” is no violation of the Federal Constitution. In such a State women have no right to vote.

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NOTE TO READERS:  Those trusted legal sites on which I have been relying for much of the research I conduct on your behalf have, up to now, provided unlimited access to their voluminous holdings, for free.  But I donate money to those sites, anyway; because it’s the right thing to do.  After all, someone at the other end of the computer is working hard to compile and maintain the library and operate the site.  I pass on the results of this research, without charge, to you; but, this does not mean, the work is free. It only means, up to now, I could maintain the quality of the blog by absorbing all of the cost.  This is becoming prohibitive; and I will not sacrifice quality.  Please, hit one of the PayPal buttons in the sidebar of the blog; because it’s the right thing to do.

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AGAIN with the 14th AMENDMENT!

July 31, 2011

© 2011 jbjd

Members of President Obama’s junta have again successfully fomented confusion among the masses by their invocation of the 14th Amendment as affording legal justification to Order our way out of the most current ‘crisis’ involving the debt ceiling.  As is the case when considering so much of the man’s conduct; asking whether this is ‘legal’ posits the wrong question.  Rather, here is the more accurate inquiry:  if he issues an Executive Order to raise the debt ceiling, which order is predicated on the 14th Amendment, in legal terms, is there anything those who object to his conduct, can do about it?  And, the answer is, ‘no.’

Basically, issuing an EO is a political move; even if asked to weigh in, the courts, for the most part, will not.  http://topics.law.cornell.edu/wex/executive_power All the President has to do is, declare the situation is an “emergency.”  http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001621—-000-.html

(For some interesting reading, see John Dean, former Counsel to the President (Nixon):

While our constitution contains no express provision for “emergency” or “crisis” situations, such a provision is not necessary. The U.S. Supreme Court made clear in Ex Parte Milligan, following the Civil War, that “the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence.” Or as one commentator has added, “self-preservation is the first law of any nation.”

http://writ.news.findlaw.com/dean/20020607.html)

So, given that, in general, the President can issue an EO to cover just about anything; and that, generally, there’s nothing anyone can do to stop him; I only looked into the 14th Amendment excuse so as to determine whether this might provide him with the patina of legitimacy that would placate citizens not fond of such unilateral Presidential action, who are otherwise apt to be sufficiently outraged as to register their dissent at the polls.  Because so many people, including Nancy Pelosi, Steny Hoyer, Jim Clyburn, Barbara Boxer, and Tom Coburn, purport to think, the Amendment does give the man an ‘honest’ way out.

From the outset, the most pertinent question as to what is the significance of section 4 of the 14th Amendment as it applies to the debt ceiling issue was this:

While the enactment of that section seems incontrovertibly tied to any debt that was incurred relative to the Civil War; can “debt” be defined as occurring outside of the Civil War context?

And, the answer from the Supreme Court is, yes.

The Fourteenth Amendment, in its fourth section, explicitly declares: ‘The validity of the public debt of the United States, authorized by law , … shall not be questioned.’ While this provision was undoubtedly inspired by the desire to put beyond question the obligations of the government issued during the Civil War, its language indicates a broader connotation. We regard it as confirmatory of a fundamental principle which applies as well to the government bonds in question, and to others duly authorized by the Congress, as to those issued before the amendment was adopted. Nor can we perceive any reason for not considering the expression ‘the validity of the public debt’ as embracing whatever concerns the integrity of the public obligations.

PERRY v. UNITED STATES, 294 U.S. 330 (1935),

Perry tried to redeem a U.S. bond for an amount of gold to which, under the original terms of the purchase, he was entitled.  In the meantime, Congress, with the power to ‘control’ the value of money; had lowered the rate of exchange.  Perry, directly impacted by Congress’ act, had standing to sue in federal court.  The SCOTUS agreed, Perry was entitled to the full value of his bargain with the U.S.

But, again, it is immaterial to the analysis that 4/14 could presently be used, when the President can issue an EO, anyway.

Interestingly, In reviewing this situation, I came across references to the ‘fact,’ President Truman had used 4/14 to issue an EO that raised the debt ceiling.  Here from Jim Clyburn:

“I believe that something like this will bring calm to the American people and will bring needed stability to our financial markets,” Clyburn added, noting that President Harry Truman did it once during his presidency after Congress was unable to pass a bill to raise the debt ceiling.

Read more: http://www.politico.com/news/stories/0711/60038.html#ixzz1TRF8RrrY

Rep. Clyburn once again proves, in relation to his daughter, Mignon, a Commissioner on the FCC; that acorn could only have fallen from this tree. If we are to believe his claims of being a college graduate; we can only wonder at the educational standards in the palmetto state.  Because President Truman never never never invoked authority under the 14th Amendment to raise the debt limit by Executive Order.  Never.  However, he did issue an EO to integrate the armed services, citing as his authority, the 14th Amendment.

Adding insult to injury, Mr. Clyburn likened issuing an EO to raise the debt ceiling, to the Emancipation Proclamation!  (azgo, thanks for this RCP link.) As usual, he only has a fraction of an idea what he is talking about.  The Emancipation Proclamation did not free the slaves; well, not all the slaves, that is.  Just those behind Confederate lines.  And then, only in those states that hadn’t surrendered to the Union by January.  (The EP was issued 4 months earlier, in September.) http://www.pbs.org/wgbh/aia/part4/4p2967.html Of course, the 13th Amendment (and subsequent amendments and Congressional action) solidified the edict of freedom for all.

And it was a comment by Kristen from VA, under this article in RCP, which for me summed up the meaning of 4/14 insofar as it could relate to present day practice viz a viz raising the debt limit by EO.

The 14th Amendment compels Obama to pay interest on EXISTING debt.  ”The validity of the public debt of the United States, authorized by law,  … shall not be questioned.”

It does not permit him to issue NEW debt.   That is a power delegated by the States solely to the federal Congress under Article I, Section 8 of the U.S Constitution.   “The Congress shall have the Power … To borrow money on the credit of the United States”

Finally, why this omnibus misdirection when it comes to the otherwise rudimentary Presidential authority to issue an EO?  ‘Check’ the usual suspect topics, such as high unemployment; low growth; and who profited from the stimulus payoffs and the ‘mandatory purchase of private health insurance’ sleight of hand.

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WHAT IT IS, WHAT IT BE

September 7, 2011

©2011 jbjd 

In the past few weeks, several blogs have posted articles critical to the campaign spearheaded by President Obama, to transform the 10th anniversary commemoration of 9/11 around the world into what I believe he and his handlers intend is a whitewash of actual horrific circumstances surrounding the event. The WH has issued 2 separate guidelines for conversation and commemoration, one to domestic public officials and government employees and one to embassy staff.  (No official has gone on record claiming responsibility for either the content or the tone of these edicts and so, I will not cite to the articles that reference these anonymous instructions.) Basically, we are told to avoid characterizations that what happened in NYC is unique – after all, al Qaeda is attacking all over the world – and, to downplay the involvement of al Qaeda, presumably lest we incite reprisals predicated on the U.S. involvement in his death.

I see these transparent attempts to re-frame the narrative as adding insult to injury.

For starters, citizens from 115 countries were among the approximately 3,000  killed on 9/11.  Thus, by definition, remembering the victims of 9/11 already is ‘international.”  As for toning down the remembrances lest we be mistakenly perceived as considering ourselves special, well, judging by the world reaction to the attack, ‘we’ are not the only ones who ‘get’ the significance of the event, or who were shocked by it.  Even those nations more accustomed to terrorism carried out on their home turf appear to have been equally traumatized.

Rather, what is being proposed here is that the survivors around the world, keep our collective mouths shut about not just the effect of those events but also the causes, in the hope that those responsible for promoting and carrying out such atrocities against humanity avoid well-earned condemnation for their ongoing crimes.  It is this artificial stifling of open honest dialogue that perpetuates such barbaric conduct.  That is, we cannot prevent such calamities in the future unless we understand what went wrong in the past.

Even if this means, ‘bad mouthing’ some Muslims.

Reading the President’s imposed ‘take’ on 9/11 triggered memories of 2 separate conversations which occurred years ago.  In one, a white woman was recounting that she was mugged by a black man at night in the parking lot of our school.  She said, she heard footsteps as he approached from behind, and became nervous.  She even turned around and saw he was following her.  I asked why at that moment, she didn’t yell for help.  She said, the stranger was black, and she set aside her fear he would mug her because she felt guilty that her feelings might evidence she was racist.

In the other, a white woman admitted she was prejudiced against blacks, supporting her feelings by ‘recounting’ an incident in which approaching young black males were accosting passersby.  What ‘saved’ her was an elderly black couple who, seeing her obvious distress, flanked her on either side and walked her down the block. She sounded genuinely grateful for their heroic act. I asked why she hated all blacks because of the marauding youths but didn’t love all blacks because of the courage of the couple. She didn’t answer.

At the risk of oversimplifying, I would say men who approach women alone in a parking lot at night are rightly feared; an elderly couple who intervene to protect a stranger from marauding youths are rightly revered; and self-identified members of the terrorist group, al Qaeda, who commandeer passenger airplanes and,  shouting Allahu Akbar in Arabic, fly them into occupied skyscrapers in NYC, killing thousands, are rightly called Muslim murderers.

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