AG ABBOTT OPINES, TX PUBLIC RECORDS LAWS not WORTH the PAPER on which THEY’RE WRITTEN

June 25, 2012

UPDATED 06.26.12: See update at bottom of article.

© 2012 jbjd

Disagreeing with me on a point of legal interpretation doesn’t per se mean you don’t know what you are talking about. But when Assistant AG June Harden rejected Kelly Canon’s complaint that the Texas Democratic Party (“TDP”) had violated the Public Information Act (“PIA” or “the Act”) by refusing to produce certain election-related documents; explaining to Ms. Canon that, political parties are not covered by the Act, well, Ms. Harden had no idea what she was talking about.

For the past 12 years, Harden has been the Senior Managing Attorney for Public Outreach in the Open Records Division of the Office of the Attorney General of the State of Texas. Before joining the OAG, she served as Special Counsel to Senator Gregory Luna of Bexar County.  Id. Ms. Harden received her undergraduate degree from Texas A&M University and her J.D. from Texas Tech University School of Law. Id. She has been working at the AG since December 1995; her current annual salary is $80,000. http://www.texastribune.org/library/data/government-employee-salaries/state-of-texas/june-b-harden/1114680/

Judging by her bona fides; by now, she should know her job in and out. But she doesn’t. And I can prove it. First, some background information, which has been covered in previous articles.

The legal standard for getting the name of the Presidential candidate from the major political party on the general election ballot in Texas is spelled out in §192.031 PARTY CANDIDATE’S ENTITLEMENT TO PLACE ON BALLOT.  The first of four prongs to entitlement is, the person must be “federally qualified” for the job. Id. But no law specifically designates whose responsibility it is to determine either in the first instance, whether the candidate is federally qualified; or, at some point after the political party has electronically submitted the name of the candidate to the Secretary of State (“SoS”) and before she certifies the name to the ballot, whether anyone has previously determined s/he is federally qualified for the job. However, we know that the Secretary does not verify Constitutional eligibility; and so, Ms. Canon determined to find out on what documentary basis both the RPT (Republican Party of TX) and TDP had determined their 2012 Presidential candidates’ federal qualifications. The RPT returned their candidate applications which, like those applications designed by the Secretary for Independent and Write-in candidates, contained the Constitutionally qualified self-affirmation. The TDP returned the candidates’ unauthenticated applications. (See BALLOT ENTITLEMENT LAWS should DISQUALIFY PRESIDENT OBAMA in TEXAS.)

But that’s not what Canon asked for; so she filed a complaint with the AG charging the TDP had violated the PIA. Pending receipt of the actual opinion letter; Ms. Harden telephoned her response.

According to Harden, the TDP is not covered by the PIA. Why? Because, as she told Ms. Canon; under Title 5 of 552.003, Definitions, political parties are not identified as government entities. And, technically she’s right. That is, the TDP is not a government entity. But this fact alone does not end the analysis as to whether the documents requested are covered under the Act. For example, had she read section 552.002; she would have seen this.

Sec. 552.002.  DEFINITION OF PUBLIC INFORMATION; MEDIA CONTAINING PUBLIC INFORMATION.  (a)  In this chapter, “public information” means information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business:

(1)  by a governmental body;  or

(2)  for a governmental body and the governmental body owns the information or has a right of access to it.

This means, even granting that sec. 552.003 of the TX Statutes, Government Code, Title 5, Open Government; Ethics, does not explicitly define the TDP as a government entity; one cannot rightly infer that the documents held by the TDP which were the subject of Ms. Canon’s request and subsequent complaint to the AG for non-compliance; are not public documents under other provisions of the Act. Or that, under another legal scheme, either the party or the documents are not covered by the Act. And they are. For example, look at the Elections Code.

Sec. 191.003: NOTICE OF CANDIDATES TO SECRETARY OF STATE. The state chair of each political party holding a presidential primary election shall certify the name of each presidential candidate who qualifies for a place on the presidential primary election ballot and deliver the certification to the secretary of state not later than the 57th day before presidential primary election day.

Thus, in TX, the Presidential candidates representing the major political parties do not apply directly to the Secretary of State (“SoS”) to get their names on the ballot. Instead, they must submit their ballot applications to the chair of the party; and s/he must submit the names of these candidates to the SoS. In other words, under Sec. 552.002, the information “collected, assembled, or maintained” with respect to these applications which are made pursuant to Sec. 191.003, requiring the delivery of the certification of qualified candidates to the SoS; is public information.

But just in case the logic of coverage under the PIA is still unclear; there’s this.

Sec. 141.035.  APPLICATION AS PUBLIC INFORMATION.  An application for a place on the ballot, including an accompanying petition, is public information immediately on its filing.

Indeed; like they had done to several requestors in 2010; the TDP ignored Canon’s first request for documents in 2012, in which she had failed to specify the applicable public records laws.

View this document on Scribd

No; she only received a response after she revised her letter and filed a second request for documents in which she specifically asserted the laws supporting the request.

And she knew if the TDP had any such documents related to the 2012 ballot; these documents would still be held by the TDP.

Sec. 141.036.  PRESERVATION OF APPLICATION.  The authority with whom an application for a place on the ballot is required to be filed shall preserve each application filed with the authority for two years after the date of the election for which the application is made.

However, the party failed to produce the specific documents she requested related to how it had ascertained the candidates’ federal qualification, which refusal had prompted her present complaint to the AG.

Presumably, before Ms. Harden issued her opinion; she researched past opinions issuing on this subject from the office of the AG. We looked; there are none. This means, this was a case of first impression. But this also means that, subsequent complaints as to the refusal of the parties to produce specific election-related information; will be rejected on the grounds of her opinion.

It would appear that AAG Harden repeated the mistakes others have made when interpreting the coverage of the PIA. That is, she was too narrowly focused on the definitions which ruled out political party chairs as ‘public officials,’ ignoring the fact  the section of the law immediately preceding those definitions makes unambiguously clear that documents held by these party officers may still be classified as public records.  Or the fact that other laws may define records as public, making them also subject to the PIA; and spell out that when party officers carry out traditional state functions associated with elections, covered by another section of the law; then, just like other public officials, they can still be ordered to hand over these public records, under an action in Mandamus initiated either by the aggrieved citizen or by the AG.

To say nothing of the fact that the opening provision of the PIA urges its provisions not to be narrowly construed so as to limit public access to records but, on the contrary; to be “liberally construed in favor of granting a request for information.” http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.552.htm

But as of now; the erroneous opinion stands.  This means the TDP has the legal obligation to submit the name of a Presidential candidate to the ballot, which name the SoS, who presumes the candidates named by the parties are federally qualified for the job and thus entitled to appear on the ballot; must certify these names to the ballot.  Sec. 192.033. But neither the SoS nor a private citizen has the right of access to the party documents which were the basis for the TDP’s eligibility determination. And the TDP knows this, having been copied on both the complaint and the opinion letter.

Recall that, in the past, the TDP refused to produce documentary evidence of its candidate applications until the requester cited applicable public records and election laws. Until we can reverse Ms. Harden’s patently erroneous legal interpretation of the scope of PIA jurisdiction; how likely do you suppose will be the TDP to voluntarily disclose such eligibility documentation?

And why would the citizens of TX allow to remain intact, a system of elections that presently permits a political party to maintain access to the ballot notwithstanding it cannot produce any documentary evidence to the public or the Secretary, that its candidates satisfy the threshold to entitlement, of being “federally qualified” for the job?

UPDATE 06.26.12: Well, well, well. AAG Harden’s written response arrived; and it’s even ‘better’ in black and white.

View this document on Scribd

See, in addition to memorializing her illogical opinion that, the TDP is not covered under the PIA inasmuch as they are not identified as a “government entity” in the Definitions section of that law; she now preserves for the record her mistaken assertion that the only records covered are those held by entities explicitly defined as ‘government.’ This, of course, leaves out all of those “records” defined in the law as “collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business … for a governmental body and the governmental body owns the information or has a right of access to it.” Id.

But there’s more. Ms. Canon pointed out to Ms. Harden over the phone; she had filed a PIA request with the SoS seeking all documents the TDP had submitted to that office with respect to the federal qualification of the Presidential candidates whose names they provided to appear on the ballot. The SoS complied with this request. That is, they returned a printout of the electronic spreadsheet that had been submitted by the party, containing the candidates’ names. Because that’s all they had gotten from the party.  But apparently, Harden somehow got the idea that, Canon was perhaps complaining, the SoS had received from the party, documents of federal qualification; but had refused to forward to her that documentation! Now, writing the obvious, Harden advised that the SoS is a government entity under the PIA, and suggested Canon could file a PIA complaint against them!

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CONNED

March 1, 2012

©2012 jbjd

Until recently, the facts which had long ago formed my opinion of Arizona Sheriff Joe Arpaio were rather vague.  I recalled that while in office, he had developed policies and procedures which he intended would humiliate detainees awaiting trial in the several county jails in Maricopa County under his jurisdiction. But even unable to immediately recall the specific facts which were the basis of that opinion; my best recollection was that I had concluded he was an incompetent public official who, assuming his election to the office of Sheriff by the citizens of Maricopa County resulted from a lawful process; should nonetheless be removed from office by appropriate state or federal authorities.

Recently, I learned that, some months ago, Mr. Arpaio had initiated some kind of investigation into the authenticity of the birth certificate released by President Obama in April 2011, the results of which investigation he would unveil at a press conference scheduled on March 1. Actually, a reader of this blog told me. My first thought was, ‘This guy – Arpaio – is a piece of work.’ At the same time, I was relieved to think that most of his ‘supporters’ would, at last, share my sentiment, now realizing it takes a special kind of con to both hint that the investigation he headed had uncovered shocking facts related to the authenticity of that document (which facts are now in his sole possession and are worthy of a press conference) and yet, at this same time, delay, for whatever reason, the release of these facts.

My reader asked my opinion of this latest wrinkle in the birther bonanza. I replied by predicting what would be Arpaio’s ‘magic key’ to unlocking the whole birth certificate puzzle. The reader asked whether I thought he – the reader – should send Mr. Arpaio some of the work he had completed on the nature of that same document. I said no, suggesting that his – the reader’s – work which would otherwise survive public scrutiny would be irredeemably tainted by any such association with Mr. Arpaio; and, besides, he – Arpaio – would likely steal his work.

I decided to write this article predicting what Arpaio could possibly say at the press conference he scheduled on March 1 (tomorrow). And, as a prerequisite, I began to research both the history of the sheriff’s tenure in office and, the circumstances of his latest foray into the public’s consciousness. Sadly, I discovered not only that people are actually hopefully anticipating he might dispel questions as to the Constitutional eligibility of President Obama, once and for all; but also that the same circus of characters – WND/Western Center for Journalism; and artIIsuperpac – have not only joined but also are producing the spectacle.

First, a little about the man, in his own words. I intentionally link here to the site called Maricopa County Sheriff’s Office, a ‘.org’ and not a ‘.gov site.’ excerpted immediately below.  Note the flavor of the narrative presented by Mr. Arpaio, in stark contrast to the facts contained in the additional information which follows, provided by AZ law enforcement officials; the courts; and the U.S. Department of Justice. (I have placed in ‘bold’ those items relating to topics which are further referenced below in those less fawning narratives.)

In 1992, Arpaio successfully campaigned to become the Sheriff of Maricopa County. Since then he has been reelected to an unprecedented five 4-year terms. During his tenure as Sheriff of Maricopa County, Arpaio has consistently earned high public approval ratings.

With over five decades experience in law enforcement, Arpaio knows what the public wants, “The public is my boss,” he says, “so I serve the public.” He has served them well by establishing several unique programs.

Arpaio has between 7500 – 10,000 inmates in his jail system. In August, 1993, he started the nation’s largest Tent City for convicted inmates. Two thousand convicted men and women serve their sentences in a canvas incarceration compound. It is a remarkable success story that has attracted the attention of government officials, presidential candidates, and media worldwide.

Of equal success and notoriety are his chain gangs, which contribute thousands of dollars of free labor to the community. The male chain gang, and the world’s first-ever female and juvenile chain gangs, clean streets, paint over graffiti, and bury the indigent in the county cemetery.

Also impressive are the Sheriff’s get tough policies. For example, he banned smoking, coffee, movies, pornographic magazines, and unrestricted TV in all jails. He has the cheapest meals in the U.S. too. The average meal costs between 15 and 40 cents, and inmates are fed only twice daily, to cut the labor costs of meal delivery. He even stopped serving them salt and pepper to save tax payers $20,000 a year.

Another program Arpaio is very well known for is the pink underwear he makes all inmates wear. Years ago, when the Sheriff learned that inmates were stealing jailhouse white boxers, Arpaio had all inmate underwear dyed pink for better inventory control. The same is true for the Sheriff’s handcuffs. When they started disappearing, he ordered pink handcuffs as a replacement.

Arpaio has started another controversial program on the website WWW.MCSO.org. Mugshots of all those arrested (about 300 per day) are posted on the Sheriff’s website as they are booked and processed into jail. Just under a million hits daily come into the website, making it one of the most visible law enforcement sites on the internet.

In addition to these tough measures, the Sheriff has launched rehabilitative programs like “Hard Knocks High,” the only accredited high school under a Sheriff in an American jail, and ALPHA, an anti-substance-abuse program that has greatly reduced recidivism.

As chief law enforcement officer for the county, Arpaio continues to reduce crime with hard-hitting enforcement methods. His deputies and detectives have solved several high-profile murder cases, including numerous child murders. The posse, whose ranks have increased to 3,000 members under Arpaio, is the nation’s largest volunteer posse. Posse men and women help in search and rescue and other traditional police work as well as in special operations like rounding up deadbeat parents, fighting prostitution, patrolling malls during holidays, and investigating animal cruelty complaints. The posse’s contributions are invaluable and essentially free to taxpayers.

But then, there is this article by Bill Louis, a former El Mirage assistant police chief.

Sheriff Arpaio failed victims of El Mirage, by Bill Louis,

I have first-hand knowledge of the incredible level of neglect on the part of Sheriff Joe Arpaio. I find it difficult to refrain from comment after seeing his “apology” to the victims of the dozens of serious sex crimes and child molestations that he failed to investigate in El Mirage.

His callous comment of “if there were any victims” shows his arrogance and the insincerity of his so-called apology. Arpaio knows full well there were many victims and he knows their identities. In 2008 the sheriff received a full written account of all the cases his office failed to investigate in El Mirage.

The Maricopa County Sheriff’s Office had provided police services in El Mirage for three year. In mid-2007, the new leadership of the El Mirage Police Department took over.

A sheriff’s deputy chief called then El Mirage Police Chief Mike Frazier and told him to get the evidence from the El Mirage cases out of their property impound. The deputy chief also told Frazier he was returning all the police reports (several boxes) from the time period when the Sheriff’s Office had been responsible for providing police services in El Mirage. That deputy chief told the El Mirage police administration that all the reports were “complete” and could just be “filed away.” A few weeks later the boxes of police reports were returned to El Mirage.

At that time, I was the newly hired assistant police chief. For quality control purposes I directed the El Mirage detectives to conduct a random sampling of the serious criminal cases (sex crimes and child molestations) that had been returned from Arpaio’s office. (We were already in the process of reviewing several death investigations Arpaio’s staff had mishandled.)

The cursory review showed that none of the sex crime and molesting cases had been completed. Most had not had any follow up done after the first-responder’s contact.

I ordered a full review of the returned cases. To my dismay our full audit showed that none of the cases had been completed.

We knew the task of re-investigating three years of neglected criminal cases would tax our limited El Mirage police resources. At our request, the El Mirage city manager approved special funding and we temporarily hired some retired Phoenix detectives to re-investigate the neglected cases.

After months of extra work, the El Mirage Police Department staff finally completed the re-investigation of the neglected cases. A comprehensive report was completed including an overview and summary of each case. The report included information about every victim.

This report and a cover letter were sent to Sheriff Joe Arpaio. Although this was the professional and ethical manner to handle this situation, Arpaio had the audacity to criticize the El Mirage police department for preparing this report. He chastised us for “creating a public record” of his negligence. (This is the same Joe Arpaio who publicly questioned whether there really were any victims.)

Many months after we finished re-investigating the cases an Arizona Republic reporter uncovered this negligence by Arpaio and requested a public records request for the El Mirage Police report and the letter to the sheriff. When Arpaio’s negligence on these cases was made public in a subsequent news report, Arpaio announced he was launching an “internal investigation” into the matter.

That was nearly three years ago and Arpaio apparently still has not concluded his internal investigation.

http://www.azcentral.com/members/Blog/WestValleyVoices/150373

There is also this decision in Graves v. Arpaio, handed down by the federal court in 2008. Here’s how the ACLU describes the case.

The ACLU went to trial against Arpaio in August 2008 arguing that deteriorating conditions within each of the jail’s five facilities that house pre-trial detainees – people who have been arrested but not yet tried or convicted – necessitate federal court oversight to ensure that Arpaio and other county officials maintain safe and humane conditions and provide the thousands of detainees held there basic levels of medical and mental health care.www.aclu.org/prisoners-rights/ninth-circuit-court-appeals-orders-sheriff-arpaio-fix-unconstitutional-conditions-m

(The Graves case piggy-backed onto oversight proceedings begun in 1977 with a class action alleging that the civil rights of pretrial detainees held in the Maricopa County jail system had been violated. In a decision several years in the making; the parties entered into a consent agreement with respect to pre-trial detainees, to fix condition in the jail. However, in 1998, Defendant Sheriff Joe filed suit to set aside that agreement as invalid, as a matter of law, under the 1997 federal Prison Litigation Reform Act (“PRLA”), which prohibits court oversight of ‘prisons’ absent specific findings of fact as to the conditions which violate Plaintiffs’ Constitutional and civil rights. Defendants lost that case; and appealed. This took several years. At some point, parties agreed that, the Petition to Vacate the Consent Degree would be withdrawn, without prejudice. Instead, they would engage in Discovery and then submit their proposed findings of fact to the court. If ongoing violations could be established then, these would become part of a new ‘legal’ ruling; and any conditions which were part of the earlier consent agreement but which now would not constitute violations under the new standard, would be dismissed.)

I accessed the actual decision in Graves from the web site of the National Institute of Correction:

We are an agency within the U.S. Department of Justice, Federal Bureau of Prisons. The Institute is headed by a Director appointed by the U.S. Attorney General. A 16-member Advisory Board, also appointed by the Attorney General, was established by the enabling legislation (Public Law 93-415) to provide policy direction to the Institute.

Here’s how the NIC describes the 2008 case:

ANNOTATION: These Findings of Fact and Conclusions of Law and Order address the termination of prospective relief for violating the civil rights of pretrial detainees in Maricopa County jails; termination based on the Prison Litigation Reform Act (PLRA). Termination is granted for some provisions while other provisions remain in effect. Prospective relief is needed for: overcrowding; temperature indoors; housekeeping; health care screening and access; prescriptions; intake areas; recreation time outside; adequate food; visual observation; incident reporting; and reporting requirements.

Graves begins with this explanation.

Termination of Prospective Relief Under the PLRA

Congress enacted the PLRA to prevent federal courts from micromanaging prisons by mere consent decrees and to return control of the prison system from courts to “the elected officials accountable to the taxpayer.” Gilmore v. California, 220 F.3d 987, 996 (9th Cir. 2000). “[N]o longer may courts grant or approve relief that binds prison administrators to do more than the constitutional minimum.” Id. at 999. The PLRA requires that prospective relief regarding prison conditions “extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” 18 U.S.C. §3626(a)(1). Relief must be narrowly drawn, extend no further than necessary to correct the violation, and be the least intrusive means necessary to correct the violation. Id. Further, courts must “give substantial weight to any adverse
impact on public safety or the operation of a criminal justice system caused by the relief.” Id.

Given these legal qualifiers; the court specifically found several conditions evidencing that Sheriff Arpaio was doing less than the Constitutional minimum to correct violations to Plaintiffs’ rights under both the 8th and 14th Amendments.

The Eighth Amendment requires that prisoners be confined in conditions that protect their mental and physical health and draws its meaning from evolving standards of decency that mark the progress of a maturing society. The Eighth Amendment requires that the temperature of the areas in which pretrial detainees are held or housed does not threaten their health or safety. The Eighth Amendment requires that prisoners be provided basic elements of hygiene, sanitation, and safety, including freedom from unreasonable threat of injury from fire and from vermin and rodent infestation. The Eighth Amendment requires that the Maricopa County Jails provide a system of ready access to adequate medical, dental, and mental health care; medical staff competent to examine prisoners and diagnose illnesses; timely treatment for prisoners’ medical problems or referral to others who can; and an adequate system for responding to emergencies. The Eighth Amendment requires that the Maricopa County Jails not be deliberately indifferent to prisoners’ serious medical, dental, and mental health needs, including conditions that are likely to cause serious illness and needless suffering in the
future. The Eighth Amendment requires that pretrial detainees be provided food that is adequate to maintain the pretrial detainees’ health and that is prepared under conditions that do not threaten their health and well being.

The Fourteenth Amendment requires that conditions of confinement for pretrial detainees not constitute punishment, i.e., not impose some harm that significantly exceeds the inherent discomforts of confinement and is excessive in relation to the legitimate governmental objective. The Fourteenth Amendment requires that the temperature of the areas in which pretrial detainees are held or housed must not constitute punishment. The Fourteenth Amendment requires that pretrial detainees be held and housed in conditions that do not constitute punishment, i.e., confinement conditions may be unpleasant, but not excessively unpleasant in light of the legitimate governmental objectives those conditions serve. The Fourteenth Amendment requires that Maricopa County Jails provide pretrial detainees with access to care to meet their serious medical, dental, and mental health needs, which means that in a timely manner, a pretrial detainee can be seen by a clinician, receive a professional clinical judgment, and receive care that is ordered. The Fourteenth Amendment requires that the Maricopa County Jails not withhold or delay medical, dental, or mental health care unless doing so is reasonably related to a legitimate governmental objective. Budgetary constraints do not justify delay in treatment for a serious medical need. The Fourteenth Amendment requires that the taste and appearance of food provided to pretrial detainees not constitute punishment, i.e., not be more distasteful than is inherent in institutionalized confinement.

Here are just some of those findings. (This was an 83-page decision, which I read in its entirety. I spent hours editing the excerpts below, limited to those conditions which require prospective remediation. But I wanted you to see the conditions imposed in some cases, for years, by Sheriff Arpaio on pretrial detainees, meaning, people arrested and awaiting trial, or, in other words, INNOCENT UNDER THE LAW.)

Pretrial detainees who have court appearances while housed in Maricopa County Jails are transported from a housing unit to the court holding cells located in the old Madison jail facility where they may remain for as long as eight hours in crowded, dirty conditions. Although overcrowding itself does not violate pretrial detainees’ constitutional rights, if it is not reasonably related to legitimate governmental objectives and it causes risk of harm to pretrial detainees’ safety and health, it does violate pretrial detainees’ constitutional rights.

At times, the court holding cells are so overcrowded that pretrial detainees do not have room to sit or adequate access to toilet and sink facilities.

Overcrowding in the court holding cells causes sanitation problems and health risks to pretrial detainees.

Although there is no posted maximum occupancy in the intake holding cells, the maximum number of inmates that should be held in each cell is approximately thirty to thirty-five. Often, substantially more than thirty-five pretrial detainees are held in one cell. At times, intake holding cells are so overcrowded that there is not room for all inmates to sit on benches, and at times there is not room for all inmates to sit anywhere, even on the floor. At times, inmates sleep on the concrete floor, and sometimes there is not enough room for inmates to sleep on the floor without coming into physical contact with other inmates. At times, the intake holding cells are too crowded for inmates to move to use the toilet and sink.

Ambient temperatures in some of the Towers cells and peripheral areas have exceeded 85° F. Air temperatures in excess of 85° F. greatly increase the risk of heat stroke and other heat-related illnesses for pretrial detainees who are taking psychotropic medications. Defendant Arpaio does not have a list of all pretrial detainees taking psychotropic medications and cannot readily determine where pretrial detainees taking psychotropic medications are housed. Detention officers generally do not know which pretrial detainees are taking psychotropic medications. 90. Defendant Arpaio does not ensure that pretrial detainees taking psychotropic medications are housed at temperatures that provide healthful living conditions.

Cells are not consistently cleaned and sanitized prior to occupancy by pretrial detainees thereby causing an unconstitutional health risk.

The Maricopa County Jails booked more than 93,000 pretrial detainees from June 1, 2007, through May 31, 2008. It houses approximately 8,000 pretrial detainees daily. Some pretrial detainees remain in the Maricopa County Jails for days, and others for years. Many of the pretrial detainees in the Maricopa County Jails have alcohol and drug addictions, physical injuries, and chronic diseases, such as diabetes, asthma, hypertension, seizure disorders, and Parkinson’s disease. Many pretrial detainees have physical conditions, including dental care needs, caused or exacerbated by their living conditions before incarceration, such as illegal drug use, homelessness, inadequate health care, and inadequate nutrition. It is estimated that twenty percent of the pretrial detainees housed in the Maricopa County Jails are seriously mentally ill. Many of these have schizophrenia, bipolar disease, anxiety disorders, attention deficit disorder, and other serious chronic mental illnesses.

All pretrial detainees entering the jail system, with the exception of self surrenders, are processed through the 4th Avenue jail. All incoming detainees receive a screening when they arrive and prior to booking. It takes eight minutes on average to complete this process. The intake technicians often ask pretrial detainees the screening questions very quickly in a noisy environment that lacks privacy and is not conducive to pretrial detainees giving thoughtful responses to very personal questions. Although the 4th Avenue jail has clinical facilities to allow pretrial detainees following their initial pre-intake screening to proceed to a post-intake area and have a more comprehensive evaluation done by a clinician, a secondary screening at booking often does not occur. The number of pretrial detainees who receive the more comprehensive screening is significantly less than the number of pretrial detainees with serious medical needs who are booked.

During the intake screening, health personnel are instructed to check for a history of substance abuse or intoxication, diabetic care, seizure medications, and wound care. However, the intake screening often does not capture basic and necessary information from detainees, including an adequate history from those suffering from chronic diseases.Screening also is intended to identify persons with mental illnesses, who are to be scheduled for appropriate follow-up consistent with their level of need. Mental health screening questions include mental health treatment history, prescription medications, outpatient treatment provider, history of suicide attempts and self-injury, and current thoughts of suicide, in addition to subjective observations of the pretrial detainee’s appearance and behavior noted. However, many pretrial detainees with serious mental illness are not identified and assessed by a mental health clinician during the intake process. However, incoming pretrial detainees with chronic medical problems, such as diabetes, hypertension, and HIV disease, often do not receive their medications in a timely manner. Many people do not know the name or address of their pharmacy, or they might not have a pharmacy because they were prescribed medication in prison.

Systemic deficiencies in the screening process significantly impair continuity of care and result in failure to identify pretrial detainees with immediate medical needs.

Sometimes pretrial detainees receive medical care because their family members, attorneys, or clergy have requested it. Pretrial detainees seeking medical care must complete sick call request forms and hand them to nursing staff, usually the Licensed Practical Nurse administering medications in the morning. Sick call requests are to be triaged by nurses within twenty-four hours, seven days a week, without actually seeing the pretrial detainees who have submitted the sick call requests. Although the nurses administering medications are expected to talk to pretrial detainees submitting sick call requests and to record additional information for triaging and treatment, they do not consistently do so well. Some pretrial detainees are not literate at all. They have difficulty communicating about their health care needs in writing on the sick call request forms. Pretrial detainees frequently are denied access to adequate medical, mental health, and dental care because they do not receive a timely in-person assessment of the urgency of their need for treatment.

Clinicians at the Maricopa County Jails often cannot provide a professional medical judgment because Correctional Health Services does not have a medical record and information system capable of timely providing health care professionals with the information they need to diagnose and treat pretrial detainees appropriately, including laboratory results and results of specialty consults. Correctional Health Services does not maintain a list of pretrial detainees with chronic diseases and cannot readily determine where they are housed and what medications have been prescribed for them. Correctional Health Services does not maintain a list of pretrial detainees on prescription medications. Detention officers often do not know which pretrial detainees in their custody are on medications that may have adverse side effects. Detention officers often do not know which pretrial detainees in their custody are taking psychotropic medications and may suffer heat-related illnesses if subjected to temperatures exceeding 85° F. Correctional Health Services does not maintain a list of pretrial detainees identified as seriously mentally ill and cannot readily determine where they are housed and what medications have been prescribed for them.

Detention officers often do not know which pretrial detainees in their custody have been identified as seriously mentally ill. There is no jail policy requiring that mental health staff be notified or involved in the disciplinary process of mentally ill detainees, and mental health clinical staff are not consulted about disciplinary actions against mentally ill detainees.  Some pretrial detainees have been punished for behavior related to serious mental illness. The vast majority of seriously mentally ill pretrial detainees are not housed in the Lower Buckeye psychiatric unit, and seriously mentally ill pretrial
detainees may be placed in segregation at other housing facilities without detention staff’s knowledge that the pretrial detainees are seriously mentally ill. Lockdown for twenty-three hours per day, alone or with cellmates, can be seriously detrimental to the condition of a seriously mentally ill pretrial detainee. Although seriously mentally ill pretrial detainees require more supervision when placed in segregation, they usually receive less.

Thorazine is an antipsychotic medication with potentially severe and permanent side effects, including extremely painful involuntary muscle spasms of the neck, tongue, eyes or other muscles, a profound restlessness and constant movement of the feet and legs, drug-induced Parkinsonism (a resting tremor with some muscle rigidity), and tardive diskenesia (potentially permanent and disfiguring involuntary movements around the face). Although Correctional Health Services witnesses testified they would not prescribe thorazine as a first line of treatment, in fact, Correctional Health Services has
prescribed thorazine for many psychotic, and even some not psychotic, pretrial detainees without justification for its use. Correctional Health Services psychiatrists sometimes prescribe thorazine as a sleep aid. Some of the seriously mentally ill pretrial detainees are housed in the psychiatric unit at the Lower Buckeye jail, and the most seriously mentally ill of those are housed in cells that do not permit psychiatrists and pretrial detainees to have visual contact while communicating or to have private therapeutic communications. Mental health staff frequently provide cell-side treatment without privacy in other housing units as well. In some cases, this detriment to therapeutic treatment is necessary to preserve the safety and security of staff and pretrial detainees; in some cases, it is not.

Many of the pretrial detainees housed at the Lower Buckeye jail psychiatric unit need hospital level psychiatric care. Many of the pretrial detainees housed at the Lower Buckeye jail psychiatric unit are maintained in segregation lockdown with little or no meaningful therapeutic treatment, which results in needless suffering and deterioration. Although mental health staff are on site twenty-four hours a day, seven days a week, psychiatrists are not. Therefore, acutely psychotic pretrial detainees, pretrial detainees on suicide watch, and pretrial detainees in restraints or on forced medications, are being treated after hours and on weekends without the personal supervision of a psychiatrist.

Providing pretrial detainees’ prescription medications without interruption is essential to constitutionally adequate medical care. Lapses in medication for certain medical conditions, e.g., HIV, seizure disorders, diabetes, organ transplants, can be life threatening even if the lapse is only a few days. In addition to inconsistencies in obtaining necessary prescription
information during the intake process, Correctional Health Services does not consistently ensure that all pretrial detainees actually receive all prescribed medications as ordered. Prescription orders are recorded in pretrial detainees’ individual paper records, but Correctional Health Services is not able to generate a list of pretrial detainees in each housing facility to whom prescription medications are to be administered. Licensed Practical Nurses administer medications to pretrial detainees on “pill passes” through the jail housing facilities twice a day. During the pill pass, the pill nurse has the individual medical records of pretrial detainees who are to receive medication at a facility, which may number in the hundreds, and he or she records those who come forward when pill pass is called and receive medication. During the pill pass, the pill nurse also receives sick call requests from pretrial detainees and is expected to determine the urgency of any of the sick call requests.

The pill nurse does not have a list of which pretrial detainees are supposed to come for medication. The pill nurse does not know whether a pretrial detainee who is supposed to receive medication is at court, recreation, church, or sleeping. It may take the pill nurse several days to determine that a pretrial detainee has missed or continues to miss his or her prescribed medications. If a pretrial detainee does not come to pill pass to receive medication, when it is noticed, the pill nurse may enter into the pretrial detainee’s medical record that he or she refused medication, even if the pill nurse does not know in fact why the pretrial detainee did not come to the pill pass. Some “evening” pill passes have been conducted as early as 3:00 p.m. even though some of the prescribed medications are to be taken at bedtime and are known to cause drowsiness.

Most pretrial detainees are taken to the 4th Avenue Intake area upon arrest. During the pre-booking stage, pretrial detainees undergo a very short medical screening, are searched, and have their photographs taken. At this point, pretrial detainees are accepted into intake at the 4th Avenue jail and placed in an “identification” holding cell where they are held until they are interviewed by pretrial services. After the pretrial service interview, pretrial detainees typically are placed in “court” holding cells to await their initial court appearance. The booking process from pre-booking through the initial court appearance typically takes two to four hours. After pretrial detainees go to their initial court appearance, they are placed in a “classification” holding cell. Each intake identification and classification holding cell consists of a concrete floor, two concrete benches, one uncovered toilet, and one sink. The classification process typically takes two to six hours. After classification, pretrial detainees typically receive jail clothing within two to four hours. After receiving jail clothing, pretrial detainees are placed in holding cells to wait to be transported to their assigned jail housing units. It typically takes two to three hours to be transported to a housing unit. The jail intake process should take no more than twenty-four hours.

Defendant Arpaio’s records regarding a pretrial detainee’s length of stay in intake document when a pretrial detainee begins the intake process and when he or she is assigned to a housing unit, but they may not indicate how long a pretrial detainee waited in a holding cell to be transported to a housing unit. The records also may not indicate how long a pretrial detainee was physically located at the 4th Avenue Intake if he or she was taken to a hospital or to the United States Immigration and Customs Enforcement. From June 1, 2007, through May 31, 2008, 93,065 pretrial detainees were booked into the 4th Avenue Intake. Of these, 21,987 (24%) were in intake more than twenty-four hours, 1,910 were in intake more than forty-eight hours, and 358 inmates were in intake more than seventy-two hours. 293. Regardless of the length of time a pretrial detainee remains in the intake process, Defendant Arpaio does not provide the pretrial detainee with a bed and blanket unless the pretrial detainee is placed in an isolation cell.

As previously found, intake holding cells often are overcrowded, without room for all inmates to sit, sleep, or move to use the toilet and sink. At times, the intake holding cells are extremely dirty, and the sinks and toilets unsanitary and inoperable. At times, the intake holding cells do not have toilet paper, and pretrial detainees are not provided with toilet paper when they request it. At times, the intake holding cells do not have soap for pretrial detainees to wash their hands after using the toilet. During intake, inmates usually have no access to a shower until they receive their jail uniforms.Some inmates have not been permitted to take a shower in intake before putting on their jail uniforms. When inmates are brought into intake, usually little is known about their mental and physical conditions, sexual orientation, and security threat levels. During intake, repeat offenders charged with serious violent crimes may be placed in holding cells with individuals charged with DUI or criminal speeding. There are no panic buttons or intercom systems in the intake holding cells. Pretrial detainees placed in intake holding cells usually can communicate with a detention officer only when the door is opened to move pretrial detainees in or out of a holding cell. Although security cameras record activity within intake holding cells, detention officers do not continuously watch the security cameras. Security staff provide only minimal visual and audio supervision of the intake holding cells. Detention officers do not conduct routine security walks on a regular basis in the intake areas. Detention officers do not continuously monitor the intake holding cells.

The intake incident reports do not include every incident that occurs in the intake holding cells, even some that require pretrial detainees to receive medical treatment. Defendant Arpaio does not consistently take reasonable measures to guarantee the safety of the pretrial detainees during the intake process.

Maricopa County Jails employ one dietician, who is responsible for ensuring that basic nutritional needs of pretrial detainees are met according to the National Research Council’s recommended dietary allowances. In 2003, the Maricopa County Jails dietician wrote that, in his professional opinion, the activity level of Maricopa County Jail inmates fell between sedentary and lightly active, which indicated that they would require an average of 2400 to 2500 calories daily. Maricopa County Jails wrongfully deny opportunity for most pretrial detainees to have a minimum of four hours outdoor exercise per week, which exercise would take pretrial detainees above a sedentary lifestyle. The United States Dietary Guidelines recommend that males ages 19-30 with a sedentary activity level have 2400 calories daily and that males ages 19-30 with a moderately active lifestyle should have 2600-2800 calories daily. The Maricopa County Jails dietician currently plans menus that he estimates would provide approximately 2400 to 2500 calories daily. Maricopa County Jails do not comply with its policies requiring inmates to be served 2900 calories daily.

Maricopa County Sheriff’s Office Policy DG-1 requires that a written nutritional analysis be prepared annually by a qualified nutritionist/dietician to compare the nutritional values of meals served against national standards. The Maricopa County Jails dietician prepared the annual analysis for the February 2007 menu, but to do so, he substituted specific fruits and vegetables for the items identified only as “fruit” and “vegetable” without knowing what foods actually were served to any pretrial detainees. When the Maricopa County Jails dietician prepared the annual analysis for the June 2008 menu, he learned that Maricopa County Jails kept a sample of meals served for the previous thirty days for quality assurance purposes, and he used those samples to determine what foods had been served to at least some of the pretrial detainees.
Maricopa County Jails provide pretrial detainees two meals each day: a sack meal in the morning and a warm meal in the late afternoon or early evening. Pretrial detainees may purchase additional food from the Canteen, which earned a net profit of $5,144,507.99 in fiscal year 2007.

The morning meal is served to each pretrial detainee in a transparent plastic bag referred to throughout the record as a “Ladmo bag.” The menu for each Ladmo bag in May 2008 and June 2008 is:
2 hoagie rolls (3-oz. each)
5 oz. meat or 4 oz. peanut butter
1 snack item
2 condiment packets or 2 jelly
2 pieces fresh fruit
1 milk
385. The menu for each dinner meal in May 2008 and June 2008 includes:
1 dinner roll (2 oz.)

It is impossible to determine from the menus the nutritional or caloric value of items identified only as “meat,” “fresh fruit,” “vegetables,” “dessert,” or “snack item.” The Maricopa County Jails dietician’s opinion is that there is no nutritional difference among different fruits, vegetables, meats, and starches, and it is unnecessary to distinguish a cup of lettuce from a cup of green beans, a banana from an apple, or a hot dog from turkey. The Maricopa County Jails dietician’s opinion is that French fries, diced potatoes, rice, and macaroni are of equal nutritional value. The Maricopa County Jails dietician’s opinion is that one ounce of beef has the same nutritional value as one ounce of turkey. The Maricopa County Jails dietician’s opinions regarding nutritional equivalents are not credible, and the Court does not believe them.

Maricopa County Sheriff’s Office Policy DG-1 requires that menus of meals actually served be retained for five years to verify the provisions of a nutritionally adequate diet. During the relevant time period, Defendant Arpaio did not keep menus of meals actually served. Pretrial detainees often receive food that is different than that stated on the Maricopa County Jails monthly menus, and not all inmates ordered to receive the same diet actually receive the same food at the same meal. Although Maricopa County Sheriff’s Office Policy DG-1 requires that any substitutions in the planned menu be of equal nutritional value and properly documented, not all substitutions are documented, and none of the menu substitutions from April through May 2008 were approved by the Maricopa County Jails dietician. The snack item included in a Ladmo bag usually is pre-packaged cookies, a snack cake, a Twinkie, cheese and crackers, or a candy bar.

A Ladmo bag may include an artificially flavored drink instead of milk. The fruit provided in the Ladmo Bags often is overripe or bruised and frequently inedible. The bread provided in the Ladmo Bags frequently is moldy and entirely or in part inedible. In 2003, the Maricopa County Jails dietician wrote that Maricopa County Jails receive “a tremendous amount of donated food, which arrives on a daily basis,” and the “calorie content of the menu will change on a daily basis, depending on the types of meats and deserts [sic] and fruit donated.” Maricopa County Jails currently receive a large volume of donated food, which is fed to inmates. Maricopa County Jails staff do not know who donated the food, the circumstances under which it was donated, or the age of the food. Extra meals are prepared and transported to jail facilities to replace meals containing moldy or spoiled food items. Inmates must request a replacement meal before leaving the serving line, but often are not allowed time to inspect their meals before leaving the serving line. If inmates are not permitted to obtain edible food to replace inedible portions of their meals, they have not been provided with all of the food included in the Maricopa County Jails dietician’s nutritional analysis.

Defendant Arpaio cannot establish what edible food inmates actually received during much of the relevant period. Defendant Arpaio cannot establish that pretrial detainees are served adequate nutrition. The Maricopa County Jails dietician’s opinion that pretrial detainees are served adequate nutrition is not supported by the evidence, is contrary to evidence, and is unworthy of belief. The Court does not believe it.

Food served to pretrial detainees is prepared either at the Maricopa County Sheriff’s Office Food Factory or at the smaller Estrella jail kitchen. The warm evening meals often contain a meat and sauce or gravy product referred to as “cook/chill” because it is cooked in 300-gallon tanks, pumped into two gallon bags, and chilled, to be reheated before serving. The evening meals usually contain a starch, such as potatoes, rice, or beans, which have been found to include small rocks.

http://nicic.gov/Library/023393

Thus, the ACLU proved that the sheriff routinely abused pre-trial detainees at Maricopa County Jail by feeding them moldy bread, rotten fruit and other contaminated food, housing them in cells so hot as to endanger their health, denying them care for serious medical and mental health needs and keeping them packed as tightly as sardines in holding cells for days at a time during intake. Id.

The decision in Graves was upheld on appeal in 2010; Plaintiffs were awarded $1.2 million in attorney’s fees.

“Today’s ruling is further confirmation that even a man who likes to brag about being the toughest sheriff in the nation has to follow the U.S. Constitution,” said Margaret Winter, Associate Director of the ACLU National Prison Project and lead counsel for the detainees. “Sheriff Arpaio’s unconscionable treatment of the thousands of pre-trial detainees in his custody has gone on far too long.” Id.

Still, notwithstanding this horrific trail of brutal dehumanization deemed unConstitutional by the courts; Sheriff Arpaio is proud to ‘stand’ on his record of flaunting the Constitution. And, evidently, millions of people endorse unConstitutional conduct as carried out by him. On the other hand, these same people eagerly await word on Thursday from this ‘piece of work,’ that he has found the Rosetta Stone which will once and for all remove from office the “Usurper” they are convinced only got there by violating the Constitutional eligibility requirements for the job.

Of course, he won’t. Too much money at stake for these hucksters by engaging in the truth. So, what is this release of details which, in words couched by Mr. Arpaio (but emphasized by jbjd), “could be a shock”? Simply this. Under the U.S. Code; the (facsimile of an) image entitled “Birth Certificate” and bearing the name Barack Obama which was released by the WH on April 2011 is part of a real political ad campaign, the content of which, whether true, is protected under the 1st Amendment to the Constitution. See, for example, DE-CODER RINGS (1 of 2) and DE-CODER RINGS (2 of 2); and be sure to read the Comments.

(However, beginning in earnest the 2012 Presidential campaign by launching that ad from the WH could be said to be a violation of campaign finance laws.)

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Freedom costs.


PHYSICIAN, HEAL THYSELF

February 25, 2012

©2012 jbjd

On December 21, 2011, the Kansas State Board of Healing Arts (“KSBHA”) upheld the decision it had first entered on November 21, 2011 (after a hearing 1 month earlier) to refuse to grant the application for a license to practice “osteopathic medicine and surgery” in the State of Kansas, submitted by Terrence Lee Lakin, the (former) Lieutenant Colonel who disobeyed orders to deploy to Afghanistan back in 2010.

According to this article on KCTV5 and the included video, Mr. Lakin currently holds licenses to practice in both MD and CO but had applied to obtain the KS license because he had hoped to move to that state to join his brother’s medical practice.

Now, I hope everyone leaves Mr. Lakin alone so that he can get on with the task which is likely to take longer than the rest of his life: recovering from his self-inflicted wounds.

DISCLAIMER: As far as I can tell; a recording of that October hearing cannot be directly accessed through the KSBHA web site. However, I ‘found’ what appears to be an audio recording of that hearing through a link on the Terry Lakin Action Fund website linked to a ‘news’ report containing a link to an audio of the hearing. (Interestingly, that first link on Lakin’s site appeared immediately below a link to a radio show called “Officer’s Oath” broadcast on Terry Lakin Action Fund Radio. This episode featured right wing luminary Carl Swennson (who spells his name with 2 n’s) to discuss “the continnuing question in Georgia of Eligibility…”) (What I could not find anywhere on this site was a link to documents or audio recordings related to his military court martial and conviction for violating the Uniform Code of Military Justice. But those documents can be accessed through links I provided above.)

Anyway, I cannot guarantee the provenance of the recording since I did not obtain this from the KSBHA web site. 19663LakinTerrenceO21Tra…udio.zip

I also found a transcript of the October hearing although, again, this was not through the KSBHA web site and so, again, I cannot vouch for its authenticity. http://ftpcontent.worldnow.com/kctv//Lakin%20Transcript.pdf

The background to the tragedy which befell Lakin is simple enough, and has been broadly addressed. For example, I wrote about Lakin’s travails in HEROES and VILLAINS; and several others in the blogosphere have more than covered any aspects I might have missed. (The entire saga can be (roughly) pieced together from just the titles of the excellent links provided by the blog Oh, for Goodness Sake, arranged here chronologically. And NIMJ Blog-CAA FLOG is an absolutely fabulous site for all things military; a search of “Terry Lakin” yields hours of relevant material.)

Basically, based on political beliefs; the physician and soldier refused an order of military deployment to minister to troops in Afghanistan. He faced a court martial; was convicted, sentenced to 6 months’ imprisonment; and dishonorably discharged from the service. In the words of the KSBHA, his conduct evidenced “a disregard for his professional duties” which “undermines the integrity of the medical profession”; and “potentially jeopardized the health, safety and welfare of the military troops for which [he] was employed to provide medical care.” Id.

Obviously, Lakin disagreed with this interpretation, which is why he asked for reconsideration of the Board’s initial decision, in the first place.

But under the licensing rules in KS, conviction of a felony or a class A misdemeanor means, no medical license; unless the applicant can persuade the Board, he has been “rehabilitated.” (All emphasis is mine.)

(c) The licensee has been convicted of a felony or class A misdemeanor, whether or not related to the practice of the healing arts. The board shall revoke a licensee’s license following conviction of a felony occurring after July 1, 2000, unless a 2/3 majority of the board members present and voting determine by clear and convincing evidence that such licensee will not pose a threat to the public in such person’s capacity as a licensee and that such person has been sufficiently rehabilitated to warrant the public trust. In the case of a person who has been convicted of a felony and who applies for an original license or to reinstate a canceled license, the application for a license shall be denied unless a 2/3 majority of the board members present and voting on such application determine by clear and convincing evidence that such person will not pose a threat to the public in such person’s capacity as a licensee and that such person has been sufficiently rehabilitated to warrant the public trust.

http://www.ksbha.org/statutes/haact.html#2836

Thus, having been convicted of what amounted to a misdemeanor, Lakin could only have received his medical license by convincing 2/3 of the Board, he had been rehabilitated, that is, he has either resolved not to let his politics influence his care; or, he has determined President Obama is a U.S. citizen, thus meriting the public’s trust that his politics will not interfere with his care. But, he could not meet this burden; although, as you will see, he might have.

And, notwithstanding I advocated above a ‘hands-off’ approach when it comes to the man; this fact that he might have prevailed in his hearing before the KSBHA explains why I am writing this piece. In fact, Lakin really isn’t the focus here. Rather, I am focusing on the gang of Lakin apologists who have expressed real (or feigned) outrage that the board based its January decision (not to reverse its November ruling) on an inquiry into what they – the gang – characterize are his political beliefs, bemoaning this as yet another sign of the apocalyptic loss of 1st Amendment rights. But reaching this conclusion is logically possible only when taken out of context, a gyration too often accomplished by these vacuous zealots.

Let’s examine specifically the narrow focus of the board which has spawned this vapid reaction: its questions about the President’s release of what they called his long-form birth certificate and whether this answered the Applicant’s questions as to whether President Obama is a citizen.

First, here is a video recorded at some time before this hearing in which Mr. Lakin explains, the motivating factor for his refusal to serve is the fact, President Obama has not produced a birth certificate evidencing he was born in HI.

(On a selfish note; I cannot help but notice, the language he uses here strongly mimics the language I have been using for years to describe the issues at the heart of any eligibility inquiry, especially his reference to documents “in the public domain.” Nice going, gang! Also note he finally acknowledges that, whether President Obama is a citizen has absolutely nothing to do with whether he was lawfully elected, a fact I have been arguing for years.)

Now, fast forward to the KSBHA hearing. The board asked whether, given the fact, President Obama released his long form birth certificate; Mr. Lakin now believed he was born in America. BUT THEY ALSO ASKED THIS QUESTION: “Say if and when he’s elected again the Health Reconciliation Act becomes law, which it already is, and all of a sudden we have 20 million more people who’ve got healthcare are you going to refuse those people because this is?” Lakin answered, “No, no, no.” Ah, but then, he explained, the only reason he refused to practice medicine in Afghanistan was that his life was on the line, intimating that, since his life (presumably) would not be on the line when treating patients in KS, President Obama’s non-citizenship would not come into play. That is, even faced with the direct question, he did not concede the birth certificate established the President’s citizenship.

By responding in this way, that is, by not correlating his duty to provide care solely to his being a doctor, regardless of whether President Obama’s citizenship has been established to his satisfaction; Lakin was unable to convince the board of his rehabilitation.

But now, read this ‘press release’ posted on the TLAF web site back in April 2011.

Response to the Release of the Barack Obama Birth Certificate from the Terry Lakin Action Fund


Press Release: April 27, 2011


For Immediate Release
Baltimore, MD

Had the Obama administration agreed to allow the document unveiled today and other related documents as requested for discovery in Terry Lakin’s first pre-trial hearing, the matter would have been resolved and soldiers assured their military orders were lawful, given by a lawful Commander-in-Chief.

A good soldier, having played his part in this issue, would have returned enthusiastically to the service for which he is so ably trained.

…This document which was so casually dropped on the news corps could just have easily been provided twelve months ago or two years ago. Even six months ago, it would have prevented LTC Lakin being manacled and hauled away to Fort Leavenworth prison for standing up for the Constitution, consistent with the oath he took as an officer, and the rule of law.

http://www.terrylakinactionfund.com/obamaresponse.html

In short, LTC Lakin admitted last April that, had President Obama released this document before he – Lakin – refused to provide medical care to his fellow soldiers; he would have provided this care. That is, he reaffirmed the level of care he would provide was predicated in the first instance on whether he believed the President was born in the USA. Just like the board imagined he would, judging by their questions and comments at the hearing.

(Seriously, imagine you are the ‘public’ whose best interests the board is ostensibly trying to protect. Would you really want them to license a physician you might need to turn to for care; knowing that care depended on your not saying the wrong thing?)

But in this statement posted on his web site; Lakin also confirmed, he believed the long-form birth certificate released by the President proved he was born in the U.S.A.

So, here’s my question. Even granting for the sake of argument, that the KSBHA improperly inquired into Lakin’s politics; and even disregarding the correlation between Lakin’s belief as to the President’s citizenship and, his willingness to provide medical care; and the public’s right to expect a certain level of care from a licensed physician; why didn’t the Applicant just repeat for the board, the same sentiment he publicly expressed 6 months earlier, that is, ‘As the result of the release of that birth certificate, I now believe the President was born in the U.S.A.’?

I can only guess; and I would rather not speculate. Suffice to say, if the words coming out of his mouth over time evidence his heartfelt convictions and originate with him then, I would have expected more consistency.

As I have always said; I feel so sorry for Terry Lakin. At this same time, I believe he is getting exactly the outcome he deserves.

P.S. Of course, under the U.S. Code, that long form birth certificate released in April 2011 is just a political ad signaling the launch (in earnest) of the President’s campaign for re-election in 2012.

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Freedom costs.


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

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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.


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)

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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.


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.


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!

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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?


STILL ATTACKING the MESSENGER

February 12, 2011

©2011 jbjd

No good deed goes unpunished.

Two years ago, back in March 2009, I posted this remark at the opening of a Reply to a Comment left on this blog by David A:  “Welcome to the site that both supports critical thinking and offers answers to questions you might not want to hear.” March 24, 2009 at 01:42 Judging just by the information printed on “jbjd” since that time, I would say, it is a good thing I have not allowed the constant onslaught of personalized criticism to silence my work ever since.

As you will see from the following exchange, not everyone would agree with me.

FL is not an applicable state for a citizen complaint of election fraud based on the fact pattern, officials of the D party Certified to state election officials candidate Obama was qualified for office notwithstanding no documentary evidence available in the public record evidences he is Constitutionally eligible for the job.  Because FL has no law requiring candidates must be qualified for the job to get the state to print their names on the ballot.  Consequently, in the absence of such ballot eligibility laws, loyal “jbjd” reader Rlqretired, from FL, has lobbied legislators in that state to adopt such laws.  In the past, he has used various arguments to sway these elected officials, which are spelled out on this blog and others.  However, each time he asked me to review his correspondence, I rejected as frivolous his attempts in these petitions to link whether Obama is Constitutionally eligible for office; to the ‘illegitimacy’ of the on-line COLB based on an examination of its physical attributes (notwithstanding he maintains such analysis is a useful tool in his lobbying efforts).  Recently, he composed this lengthy Comment, apparently intending, once and for all, to put to rest my objections to continued focus on the physical characteristics of that FTS COLB in any campaign the stated goal of which is to pinpoint documentary evidence establishing whether Obama is Constitutionally eligibile for office.
Rlqretired says:

jbjd – I think the reason you and I don’t see the value of the visual photographic truth that the Hawaiian State Seal placed upon the online birth certificate candidate Obama placed on the Internet is fake is because our goals are different. Your efforts deal with a bunch of lawyers and your goal, as I understand it, has been to get the AG’s in those states that already have statutes requiring independent eligibility certification to investigate the person that signed their state level certification without having adequate proof available to them to make such certification. If they did so, as I understand it, it would be an alleged crime based upon your hard work.

Florida has no statute requiring independent verification by the political parties and depends strictly upon nominee certification by the political parties to be correct. My, goal for a year now, has been to convenience the Florida Legislature to pass a statute requiring an independent state level certification and the submission of the documents used to make that certification. At the general public level, as well as many in the Florida Legislature, I am dealing with average citizens who do not understand legalese nor will they take the time to study the issue for themselves. Willful ignorance abounds and this is where the photographic evidence that the Hawaiian State Seal placed upon Obama’s birth certificate is an irrefutable fake, is absolutely essential. These photo’s my not convince them to snap completely out of their willful ignorant bliss but it does blow away their argument that the online image of the Obama’s COLB could be a real copy of a real birth certificate and just transferred over into the advertisement in which it is located. Basically, that is what most people in our state and national governments still believe even today.

I can easily accept and understand your point of view and I really wish you could see mine. For your information, the photographic evidence has, at my level and with some legislators, has been very effective and taken them to your web site for additional study.

If I did not make it clear to you in my previous comment above, that the statute I was referring to was Hawaiian Statute 338-18 (g), I certainly apologize as I mistakenly assumed you had received and read my off blog email of 2/8 in which I stated; “My question deals with the authority the Criminal Justice Subcommittee the Florida House has under the Hawaiian Statute 338-18 (g). It appears to this country boy Florida Cracker that it does (apply), possibly on several counts……Your legal opinion of 338-18 (g) in this regard will be greatly appreciated.

A link to that statute is http://www.capitol.hawaii.gov/hrscurrent/Vol06_Ch0321-0344/HRS0338/HRS_0338-0018.htm

You have previously made clear that you have debunked the claim made by another blog that (g) of this statute can be used to the advantage of a lawyer in a criminal case to obtain verification relative to their lawsuits. However, it appears to this layman that under the circumstances I laid out in my previous comment, an authorized legislative committee assigned to investigate the authenticity of the only proof Obama has ever provided that he is even a citizen or either the Department of State whose director is the Chief Election Officer of the State and responsible for reporting possible fraudulent election activities would very likely qualify to receive verification of certain information displayed on the online image or the hard copy FTS made available to FC for examination and taking photographs of the Hawaiian State Seal.

If either of these folks are eligible to obtain verification I can think of a dozen or so questions that I believe will produce answers that will not only be helpful to me in my goals but would help you in your goals as well.

I look forward to your opinion of (g) and I surely hope you can tolerate me and my differing view on that one item.

Before I had completed my reply to this ‘first’ Comment, Rlqretired submitted another lengthy Comment, more caustic than the first.  I will print that second Comment as well.  But first, here is the response I was in the process of perfecting to his ‘first’ comment.

rlqretired: What a great comment. Now, I understand that my remarks about the work of ‘misstickly,’ whom you reference in your correspondence to state officials, mistakenly gave you the impression, I rejected focusing on that COLB qua image only because this took time away from my preferred focus, which is redressing past illegal conduct viz a viz the ballot.  I thought I had stated quite succinctly in my last email to you that, my real objection is this.

“Also, please, trust when I say, continuing to reference whether a ‘seal’ apparent on any particular vision of a document or copy of a document or copy of a mock-up for an ad campaign on the internet, is real or fake, diminishes the credibility of your other well-formulated criticism of that same document or image.”

So, now, I will expand upon that previous statement, with the hope that once and for all, my previously stated explanations become unambiguously clear. The primary reason I continuously advised you to stop referencing in the same correspondence to public officials, both my work and the work produced by “misstickly” is this:  such reference to her work undermines your credibility and, therefore, negates the value of my work.  Because basing a conclusion that Obama is not Constitutionally eligible for office on the physical attributes of a paid political advertising campaign is absurd on its face. Yes, absurd. Ridiculous. Nonsense.  It would be like concluding a physician committed malpractice for endorsing an antacid in a commercial containing a rudimentary drawing of the human digestive system.  Let me see if I can find an artist rendering of what I have in mind. Be right back…

There.  See what I mean?

You ask about HRS ch. 338.  Here are a couple of exchanges that appeared on this blog in April 2009, almost 2 (two) years ago now, discounting the value of 338 in obtaining Obama’s birth documentation from HI DoH.  (I found this merely by searching for “jbjd” and “338”!)

bob strauss says:

jbjd,Was reading a blog @ paraleagalnm and someone published Hawaii statute 0338-14 and 0338-18 (g). If I read it correctly Hawaii will verify what is on the colb or long form BC if you just ask for the information. They will not release the document but they will tell you what is on it. Thanks for answering my questions. Bob

bob: There’s a line in that law you cite which reads in part, “The department shall not issue a verification in lieu of a certified copy of any such record, or any part thereof, unless it is satisfied that the applicant requesting a verification is:…” I can envision that, unless those Republicans paralegalnm envisions could request such verification, actually comprise an impeachment panel, the State of HI will not be satisfied that such request meets the exceptions to HI’s confidentiality laws.

Of course, this procedure proposed by paralegalnm is backwards, anyway. If these Republicans wonder whether he is an NBC, they should begin impeachment proceedings based on BO’s failure to establish, he is a NBC; and, if he wants to fight the charges, let him produce his long firm birth certificate. ADMINISTRATOR

Like you, bob strauss, too, could not accept the fact that my opinion did not support his.

bob strauss says:

April 3, 2009 at 01:49

jbjd,338-18 (g), it says, “shall not issue verification UNLESS”! the applicant seeking verification meets one, of 5 definitions, to qualify as a person allowed to obtain verification of what is on the docs. PLEASE read the definitions, 1 through 5, where it describes the people, who ARE ALLOWED to obtain verification. Sorry to keep bugging you about this but, it looks like Hawaii will verify records if you fit the description listed at 338-18g. 1-5.

bob strauss: No, you are not bugging me! I did read the law, completely, although the only part I thought mattered was that line I quoted, saying, “The department shall not issue a verification in lieu of a certified copy of any such record, or any part thereof, unless it is satisfied that the applicant requesting a verification is:…”. I understood this language to mean that, the discretion of the HI Health Department would rule; and this meant, they would exercise their discretion to maintain privacy. Because HI does not want the world to know that, for several decades, they were giving U.S. identities to foreign born babies. Remember, before it will place the name of the nominee for POTUS from the the major political party onto its general election ballot, HI is the only state that requires the party to not only Certify the name of its candidate but also Certify he is Constitutionally eligible for the job. (jbjd note 02.13.11:  Of course, we now know, at least one other state, SC, also requires this explicit language of eligibility on its ballot application. IF IT LOOKS LIKE A DUCK…) I assume Hawaiians enacted this law because of that earlier law allowing foreign births. That is, they of all people know how easily someone who is not a NBC could be nominated for the job.

Anyway, when I got your follow-up question, I looked up the law again, and found the court ruling in Martin v. Lingle. Not surprisingly, the court had denied Andy Martin’s efforts to obtain BO’s records based on a finding that HRS 338-18 bestows “discretion” and “judgment” to the Health Department, on whether to release such records. http://www.state.hi.us/jud/opinions/sct/2008/29414ord.htm
ADMINISTRATOR

Obama has never offered up to any state official or to the courts, the electronic image of the FTS COLB , as proof of a HI birth. So please, stop saying he has!  Even in Hollister, Attorney Bauer did not say, this image (or its mock-up) was proof of anything!  He only wanted the court to take judicial notice Obama had publicly released his birth certificate!  COUNSEL for DNC SERVICES CORPORATION PERFORMS 3 CARD MONTE* for FEDERAL COURT (How many times have I advised people, when confronted with claims, this FTS COLB evidences to the person making the claim, Obama is a NBC; respond by conceding, ‘Yes, I accept this image provides your basis for believing, he is a NBC.  But on what basis did Nancy Pelosi or Boyd Richie or Alice Germond or Kathy Hensley, for example, determine he is a NBC?  Because they refuse to tell us, when we ask them!’)  

Finally, I want to respond to this statement:

“At the general public level, as well as many in the Florida Legislature, I am dealing with average citizens who do not understand legalese nor will they take the time to study the issue for themselves. Willful ignorance abounds and this is where the photographic evidence that the Hawaiian State Seal placed upon Obama’s birth certificate is an irrefutable fake, is absolutely essential.”

I agree that educating public officials is essential to getting passed the legislation that will clean up the electoral process (if electing officials already up to speed is not accomplished) and have always lauded your efforts in this regard.  But even if you are correct in your base opinions that fellow citizens are loath to become knowledgeable in all things electoral; this still does not mean, in the absence of such civic zeal, you (or WND, or CFP, or P&E, among dozens of others) are justified in filling their heads with factually baseless tripe, just because they will pay attention.  ADMINISTRATOR

But before I could post this Reply to Rlqretired’s ‘first’ Comment, he sent along this ‘second’ Comment.  This time, my response, in orange, is inserted amidst his remarks.

Rlqretired says:

February 12, 2011 at 05:35

This comment is submitted while my previous comment is still in moderation along with your insult.

jbjd – I really wish the bad feelings you currently have for some other bloggers that apparently prevents you from understanding the value of at least some of their work, specifically this irrefutable evidence the Hawaiian State Seal on Obama’s birth certificate is a fake could be moderated. We live in layman land and easily understand such things.  “[B]ad feelings” which “prevents (sic) [me] from understanding the value of at least some of their work”?  If I reject the work product of another blogger as being irrelevant to the stated goal of establishing whether Obama is Constitutionally eligible for the job, then this rejection is based on my reasoned belief, it fails to add value to such pursuit.  Worse, it detracts from the real work of citizen education which must occur before real change will happen.  How many posts (and reads) over how many months were wasted on trying to refute my admonition, there exist no contemporaneous newspaper birth announcements of Obama’s birth?  Common sense said these did not exist, as any claim they did exist failed to reference any evidence of such publication which could be independently verified! RUMORS, LIES, AND UNSUBSTANTIATED ‘FACTS’

Now, finally, one of these practitioners whose work I rejected, has posited that, perhaps the wild goose chase she sent her readers on, was based on a contrived premise.  (That is, she suggests any ‘evidence’ of such announcements was intentionally ‘planted.’) Yet, judging by the references to her nom-de-plume throughout the blogosphere, thousands of people still follow her work.

I gather from your insult that you are unwilling to accept my proposal that we simply agree to disagree on the value of the photographic evidence the Hawaiian State Seal on Obama’s one and only birth certificate is a fake.  I reject your characterization that pointing you away from frivolous pursuits when pursuing the issue of candidate eligibility is an “insult.”  These entreaties to get me to ascribe some value to work I deem valueless is all a waste of time.  So, too, it would seem, were the years I spent showing people what went wrong in 2008 and trying to get them to focus on remediating what went wrong and then, on how to correct the system so as to prevent these wrongs from recurring in 2012.  Sure, now, in 2011, some eligibility charlatans have begun to shift their focus away from judicial ‘Hail Mary’ filings and begun to focus on fixing the ‘system.’  However, efforts up to this point have left states no better positioned to avoid electoral disaster in 2012 than they were in 2008.

It is a considerable disappointment that you completely ignore the primary point of my comment which was my request for you to explain if Hawaiian Statute 338-18 (g) can be used by either a legislative committee investigating the authenticity of the one and only birth certificate ever produced by Obama in pursuit of the need for corrective legislation or possibly the Director of the Department of State (SOS) here in Florida who serves as the Chief Election Officer for the same reason.  As was implied in the response above, Obama never produced a “birth certificate.”

In your response to an off blog email from me that mentioned another bloggers post on the use of 338-18 (g) about how lawyers in legal proceedings could use this part of the statute to obtain verification of specific questions about the birth certificate you wrote “ And, as usual, I completely disagree with her ‘legal’ analysis. I have previously de-bunked this specific ploy, and will gladly repeat my objections, on the blog.”  If you insist on taking the legal advice of a self-described Graphic Artist/Designer then, why bother seeking advice from a self-described lawyer?  Anyone, it seems, will do, as long as you share the opinion offered.

If you will not look at 338-18 (g) and give me your opinion, which I desperately need, if (g) can be used as I have suggested, please fulfill your offer to debunk the idea as you said you would be glad to do.

The last thing in the world I wish to do is to get into a senseless argument with you. I am only seeking a legal opinion for what I, as a lawman, see as a possible beneficial thing to do to get at the legally recognized truth about Obama’s and the DNC collusion.  I have provided that opinion previously, as I stated.  You just had to look for it.

You might also remember that your efforts nor any other legal expert’s efforts have been successful as yet and if (g) can be used as I have suggested, it could possibly be a help to all of our efforts.  Ah, the canard, ‘You have been unsuccessful, too.’  But I have not.  Way back in the summer of 2008, I successfully identified the methodology that must be used to approach issues of Presidential eligibility.  In short, almost 3 (three) years ago now, I pointed everyone to the states.  But unlike almost every other blogger pursuing this topic, I never held myself out as a savior of the Republic.  Rather, understanding that fixing our electoral process was the work of the citizens of the states, I merely provided the tools necessary for the citizenry to carry out their work (sans the hysteria and hyperbole).  Ignoring the voluminous exchanges with readers via email, one need only peruse this blog to find ample evidence of my tangible contributions to my fellow citizens in this regard.  Yet, having sacrificed my life to this endeavor and, endured unceasing slings and arrows on that account; I am still attacked for their failure to finish the job.

And you are not the only loyal “jbjd” reader who, having obtained countless hours of private consultation and advice via email, and more through the blog, still deigns to dismiss my contributions to his endeavors because of a perceived personal slight.  azgo, until recently a stalwart supporter and contributor here at “jbjd,” also determined my ongoing consultation – this time, the proposed AZ ‘eligibility’ legislation – fell short.  He wrote, “Are you working with your state in doing anything, have you met with your state lawmakers or are you just talk like so many bloggers?”

Fortunately, I do not gauge the value of my work perfecting our electoral system, on the number of hits to the “jbjd” blog; or to the PayPal buttons; or to my psyche.


DE-CODER RINGS (2 of 2)

January 12, 2011

©2011 jbjd

DE-CODER RINGS (1 of 2) provided a more sophisticated legal analysis of simple charges I first raised on this blog in 2008 when I advised people investigating Barack Obama’s Constitutional eligibility for POTUS to ignore information posted on the web site “Fight the Smears” (“FTS”), which is just a paid political advertisement.  Now, by taking the facts available in the public record, including that FTS was copyrighted in 2007, and correlating these public facts to specific provisions of the U.S. Code; I spelled out that FTS was devised to promote and support the candidacy of Barack Obama, first, as the Presidential nominee wannabe of the D Party and then as its nominee; and is now used by the DNC Corporation to sustain the image of its current President (and, perhaps to promote and support his future run for office).   But the legal analysis offered in that article still left this question unanswered. Even assuming the COLB posted on FTS was only created as a feature of that on-line advertising campaign; is its appearance on that site proscribed by law?

DECODER-RINGS (2 of 2) addresses this last critical concern.

Here is just a partial index for TITLE 18 > PART I (CRIMES) > CHAPTER 47, FRAUD AND FALSE STATEMENTS.  (We will only use Part 1 for this analysis but here is a link to Part II, FYI.  PART II—CRIMINAL PROCEDURE (§§ 3001—3771).)

  • § 1001. Statements or entries generally
  • § 1002. Possession of false papers to defraud United States
  • § 1003. Demands against the United States
  • § 1004. Certification of checks
  • § 1005. Bank entries, reports and transactions
  • § 1006. Federal credit institution entries, reports and transactions
  • § 1007. Federal Deposit Insurance Corporation transactions
  • § 1010. Department of Housing and Urban Development and Federal Housing Administration transactions
  • § 1011. Federal land bank mortgage transactions
  • § 1012. Department of Housing and Urban Development transactions
  • § 1013. Farm loan bonds and credit bank debentures
  • § 1014. Loan and credit applications generally; renewals and discounts; crop insurance
  • § 1015. Naturalization, citizenship or alien registry
  • § 1016. Acknowledgment of appearance or oath
  • § 1017. Government seals wrongfully used and instruments wrongfully sealed
  • § 1018. Official certificates or writings
  • § 1019. Certificates by consular officers
  • § 1020. Highway projects
  • § 1021. Title records
  • § 1022. Delivery of certificate, voucher, receipt for military or naval property
  • § 1023. Insufficient delivery of money or property for military or naval service
  • § 1024. Purchase or receipt of military, naval, or veteran’s facilities property
  • § 1025. False pretenses on high seas and other waters
  • § 1026. Compromise, adjustment, or cancellation of farm indebtedness
  • § 1027. False statements and concealment of facts in relation to documents required by the Employee Retirement Income Security Act of 1974
  • § 1028. Fraud and related activity in connection with identification documents, authentication features, and information
  • § 1028A. Aggravated identity theft
  • § 1029. Fraud and related activity in connection with access devices
  • § 1030. Fraud and related activity in connection with computers
  • § 1031. Major fraud against the United States
  • § 1032. Concealment of assets from conservator, receiver, or liquidating agent of financial institution
  • § 1033. Crimes by or affecting persons engaged in the business of insurance whose activities affect interstate commerce
  • § 1034. Civil penalties and injunctions for violations of section 1033
  • § 1035. False statements relating to health care matters
  • § 1036. Entry by false pretenses to any real property, vessel, or aircraft of the United States or secure area of any airport or seaport
  • § 1037. Fraud and related activity in connection with electronic mail
  • § 1038. False information and hoaxes
  • § 1039. Fraud and related activity in connection with obtaining confidential phone records information of a covered entity
  • § 1040. Fraud in connection with major disaster or emergency benefits

But to answer the question concerning the legality of the  FTS COLB under the U.S. Code, we will be concentrating primarily on section 1028.

§ 1028. Fraud and related activity in connection with identification documents, authentication features, and information

(a) Whoever, in a circumstance described in subsection (c) of this section—

(1) knowingly and without lawful authority produces an identification document, authentication feature, or a false identification document;

(2) knowingly transfers an identification document, authentication feature, or a false identification document knowing that such document or feature was stolen or produced without lawful authority;

(4) knowingly possesses an identification document (other than one issued lawfully for the use of the possessor), authentication feature, or a false identification document, with the intent such document or feature be used to defraud the United States;

(7) knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law;

shall be punished as provided in subsection (b) of this section.

(c) The circumstance referred to in subsection (a) of this section is that—

(1) the identification document, authentication feature, or false identification document is or appears to be issued by or under the authority of the United States or a sponsoring entity of an event designated as a special event of national significance or the document-making implement is designed or suited for making such an identification document, authentication feature, or false identification document;

(2) the offense is an offense under subsection (a)(4) of this section; or

(3) either—

(A) the production, transfer, possession, or use prohibited by this section is in or affects interstate or foreign commerce, including the transfer of a document by electronic means; or

(B) the means of identification, identification document, false identification document, or document-making implement is transported in the mail in the course of the production, transfer, possession, or use prohibited by this section.

(d) In this section and section 1028A

(1) the term “authentication feature” means any hologram, watermark, certification, symbol, code, image, sequence of numbers or letters, or other feature that either individually or in combination with another feature is used by the issuing authority on an identification document, document-making implement, or means of identification to determine if the document is counterfeit, altered, or otherwise falsified;

(2) the term “document-making implement” means any implement, impression, template, computer file, computer disc, electronic device, or computer hardware or software, that is specifically configured or primarily used for making an identification document, a false identification document, or another document-making implement;

(3) the term “identification document” means a document made or issued by or under the authority of the United States Government, a State, political subdivision of a State, a sponsoring entity of an event designated as a special event of national significance, a foreign government, political subdivision of a foreign government, an international governmental or an international quasi-governmental organization which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals

(4) the term “false identification document” means a document of a type intended or commonly accepted for the purposes of identification of individuals that—

(A) is not issued by or under the authority of a governmental entity or was issued under the authority of a governmental entity but was subsequently altered for purposes of deceit; and

(B) appears to be issued by or under the authority of the United States Government, a State, a political subdivision of a State, a sponsoring entity of an event designated by the President as a special event of national significance, a foreign government, a political subdivision of a foreign government, or an international governmental or quasi-governmental organization;

(5) the term “false authentication feature” means an authentication feature that—

(A) is genuine in origin, but, without the authorization of the issuing authority, has been tampered with or altered for purposes of deceit;

(B) is genuine, but has been distributed, or is intended for distribution, without the authorization of the issuing authority and not in connection with a lawfully made identification document, document-making implement, or means of identification to which such authentication feature is intended to be affixed or embedded by the respective issuing authority; or

(C) appears to be genuine, but is not;

(6) the term “issuing authority”—

(A) means any governmental entity or agency that is authorized to issue identification documents, means of identification, or authentication features; and

(B) includes the United States Government, a State, a political subdivision of a State, a sponsoring entity of an event designated by the President as a special event of national significance, a foreign government, a political subdivision of a foreign government, or an international government or quasi-governmental organization;

(7) the term “means of identification” means any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any—

(A) name, social security number, date of birth, official State or government issued driver’s license or identification number, alien registration number, government passport number, employer or taxpayer identification number;

(C) unique electronic identification number, address, or routing code; or

(D) telecommunication identifying information or access device (as defined in section 1029 (e));

(9) the term “produce” includes alter, authenticate, or assemble;

(10) the term “transfer” includes selecting an identification document, false identification document, or document-making implement and placing or directing the placement of such identification document, false identification document, or document-making implement on an online location where it is available to others;

(11) the term “State” includes any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any other commonwealth, possession, or territory of the United States; and

(12) the term “traffic” means—

(A) to transport, transfer, or otherwise dispose of, to another, as consideration for anything of value; or

(B) to make or obtain control of with intent to so transport, transfer, or otherwise dispose of.

(f) Attempt and Conspiracy.— Any person who attempts or conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

Phew!  To re-cap, it’s a crime to undertake the conduct described in (a) under circumstances spelled out in (c)Attempting or conspiring to commit the crimes spelled out in (a) under circumstances spelled out in (c) becomes a crime according to (f).  In (d), we find definitions for some of the terms in (a) and (c).  But many of the “terms of art” used in 1028, such as “produce,” “transfer,” or “possess” are either defined only in a limited manner or not defined directly in the law.  So, we will look at the U.S. Attorneys Criminal Resource Manual.  (Note:  In the past, I have indicated that when seeking the true meaning of prominent terms within the text of a law, look to the “Definitions” section in that law.  Indeed, finding a word in this section tells the reader, this word is important.   However, §1028 contains only a limited ‘definitions’ section.  So, go to the manual that tells U.S. Attorneys how to practice (investigating and prosecuting) cases brought under this section of the Code.)

US Attorneys > USAM > Title 9 > Criminal Resource Manual 1511
1509 Operative Terms—18 U.S.C. § 1028

Section 1028 of Title 18 has three basic operative offenses. They are to “produce,” “transfer,” or “possess.” With the exception of simple possession of a United States identification document which was stolen or produced without lawful authority, which is prohibited by 18 U.S.C. § 1028(a)(6), possession is always coupled with the purpose to “use unlawfully,” “transfer unlawfully” or “use to defraud the United States.” Hence, it is necessary to understand the scope of the words “produce,” “transfer,” “possess,” “use,” and “defraud the United States.”

A.    “Produce” is defined in section 1028(d)(2) to include “alter, authenticate, or assemble.” Obviously, since the word “include” is used in the definition, the term is not limited to these three concepts but also encompasses all forms of counterfeiting, forging, making, manufacturing, issuing, and publishing. A government employee whose duty is to simply issue identification documents (i.e., he does not manufacture or assemble the documents) is, by issuing the document, authenticating it. If such an employee were to authenticate such documents without lawful authority, it would constitute an offense under section 1028(a)(1).

B.    “Transfer” is not defined in section 1028, but is intended to reach those persons who “traffic” in stolen and false identification. It includes the acts of selling, pledging, distributing, giving, loaning or otherwise transferring. It does not require any exchange of consideration (anything of value) for the transfer. To transfer “unlawfully” means the transfer of an identification document in a manner forbidden by federal, state, or local law.

C.    “Possess” is not defined in section 1028 but is to be construed broadly. It includes the concept of “receipt” but is not limited thereto. Constructive possession would also be included.

D.    “Use” is not defined in section 1028 but is to be broadly construed and includes presenting, displaying, certifying, or otherwise giving currency to an identification document so that it would be accepted as an identification document in any manner. To use “unlawfully” means that the document was used in a manner that violates a federal, state or local law, or is part of a misrepresentation that violates a law. For example, section 1028(a)(3) would be violated if the possessor intended to use five or more documents to make representations in any matter within the jurisdiction of any department or agency of the United States in violation of 18 U.S.C. § 1001.

E.     “Defraud the United States” is not defined in section 1028 but is not intended to be limited to misrepresentations related to financial fraud. It would also include the misrepresentative use of false identification to obstruct functions of the government (e.g., display to a government investigator a false pilot’s license or someone else’s driver’s license for the purpose of trying to deceive or mislead the investigator).

[cited in USAM 9-64.400]

Okay, so assuming the COLB displayed on FTS, the political advertising web site, was knowingly produced, transferred, possessed, and used in relation to the FTS political ad campaign to fool people into believing the state of HI issued a document recording the birth of Barack Obama, is its display on FTS legal under the U.S. Code?  Absolutely.

Both the plain language of the statute – under (d)(3), this image of a COLB cannot be considered to be an “identification document” where it was not “made or issued by or under the authority of” “a State, or political subdivision of a State”; but by a candidate seeking public office and then, his political party – and the SCOTUS’ reverence to political speech guaranteed by the First Amendment, recently renewed in Citizens United – “The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether” – should convince you why.

But why bother to conduct this extended legal analysis as to the legitimacy of any ‘information’ visible on the image of the COLB posted on the  FTS site, when the language therein already plainly warns, (under the laws in the state of HI) “ANY ALTERATIONS INVALIDATE THIS CERTIFICATE“?

In sum, between the clear accreditations in the footer of the FTS internet web site identifying under the U.S. Code, this is a paid political advertisement; recent holdings of the U.S. Supreme Court protecting false political speech; and the obvious redactions on the face of the image of the FTS COLB rendering it invalid as a matter of (HI) law; its appearance as a so-called ‘identification document’ on that site is not illegal, precisely because as a matter of law, it identifies nothing.  Indeed, given the patently obvious worthlessness of the posted COLB, it’s as if the site owners have announced to those voters who have expressed concern as to whether Barack Obama is Constitutionally eligible to be the President of the United States: ‘We are banking the political future of the Democratic Party on the fact you are too ignorant to grasp when we insist the “birth certificate” posted on FTS proves, he is, we are not telling the truth.’

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

Freedom costs.


A COUP, THROUGH and THROUGH (1 of 3)

August 10, 2010

(Note to Readers:  The “COUP” Series is now complete.  See, A COUP, THROUGH and THROUGH (2 of 3), (3 of 3), and EPILOGUE.)

© 2010 jbjd

Introduction

The Democratic National Committee Services Corporation, disguised as the DNC, installed Barack Obama into the Office of President of the United States of America by committing massive election fraud that played out uniquely during each of these 3 (three) phases of the 2008 Presidential election cycle in relation to the company’s August 2008 Presidential Nominating Convention: 1) pre-Convention; 2) Convention; and 3) post-Convention. The fraud committed both before and after the Convention has been dissected in several articles previously posted here on the “jbjd” blog.

This  three-part series entitled, “A Coup, Through and Through” analyzes the fraud pulled off at the Convention.

Keep in mind, not all fraud is created equal. While the record establishes the D’s committed fraud throughout the general election cycle, my work has remained focused almost exclusively only on that fraudulent conduct which both 1) violated laws explicitly or implicitly proscribing such conduct; and 2) arguably altered the outcome of the 2008 Presidential (Electors) election.

Part 1: Prologue to Fraud

Before Barack Obama could be installed in the Oval Office, interested parties both within and outside of the Democratic National Committee Services Corporation had to ensure he would win the DNC Presidential nomination so that his name could appear next to the D on the general election ballot.  Because, as I have previously opined, while Electors voting in December may elect anyone they want; I could not imagine they would dare to elect a President whose name hadn’t even appeared on the November ballot. NEVER LESS THAN A TREASON (1 of 2) and (2 of 2). (Note:  I recently learned the D’s have been pressing state legislatures to pass the National Popular Vote Initiative (“NPVI”).  If this thing gets through, I believe even a candidate who fails to qualify to get on the ballot in one or more states can still be elected.) (See, HOW ADOPTING the “NATIONAL POPULAR VOTED INITIATIVE” CAN STEAL an ELECTION ‘BY HOOK’ and ‘BY CROOK’.)

But given the several problems they knew were inherent to his candidacy, any one of which, if exposed, could prove fatal to his political aspirations, winning the nomination would require that they clinch the nomination as far as possible in advance of the DNC convention. In this way, they could limit the scope of the public examination of the candidate apt to occur in a protracted battle for the nomination.

They were willing to do whatever it took to accumulate enough pledged delegates during the primary and caucus contests to reach the magic number that long before the convention would ensure at that time, he would be handed the nomination. Manufacture chaos at the caucuses and capitalize on the confusion created? Check. Collude with A.C.O.R.N.? Check. Censor critics with charges of racism? Check. Cultivate a compliant press willing to conceal stories unflattering to either the candidate’s character or, their own complicit conduct on the road to his nomination? Check and check.

When the numbers for Hillary Clinton, his toughest competition in the race for the nomination, placed these two in a virtual dead heat with 3 (three) more months until the primary and caucus contests ended and 5 (five) months until the convention, co-opt the free will of the voters by spreading the meme she has already lost the nomination? Check. Co-opt the free will of the candidate by calling her a sore loser if she doesn’t drop out of the race now and throw her support(ers) to him, for the good of the party? Check.

DNC rules provide if voting at the convention fails to support one candidate over the other then, special super delegates will add their votes to the totals to reach the number required for nomination. So they were also furiously pouring money into the PAC’s and war chests of these super delegates, in return for which the candidate received a public pledge of support positively correlated to the superior size of his financial investment.

But even factoring in the votes of those super delegates already expressing support for Obama, with less than 3 (three) months to go before the convention he still had not achieved the superiority in delegates that would secure his nomination. And the delay had taken its costly and anticipated toll.

Despite their best efforts to control the narrative, one of those ‘problems fatal to his political aspirations,’ known as Rev. Jeremiah Wright, had leaked out. And from the time the public learned of the long close relationship between the candidate and his avowed “spiritual adviser,” he had already lost more than 10 (ten) points in the polls.

To understand what they did next, you need to know the difference between being designated a Clinton pledged delegate and an Obama pledged delegate.

Attorney Bob Bauer, then counsel to the DNC and now WH Counsel, explains the delegate selection process to the federal court in DiMaio v. DNC, a case not material to the fraud laid out here.

The DNC is the governing body of the Democratic Party of the United States and is responsible for promulgating delegate selection rules for the 2008 Democratic National Convention…The nominee of the Democratic Party for President of the United States is chosen by the delegates to the Democratic National Convention held in each presidential election year. The National Convention is organized and run by an arm of the DNC. The delegates from each state are chosen through a process adopted by the state’s Democratic Party. For each presidential election starting in 1976, the DNC has established formal Delegate Selection Rules to govern the selection, in each state, of its delegates to the National Convention. These rules require each State Democratic Party to develop a written delegate selection plan and to submit that plan to the DNC’s Rules and Bylaws Committee (“DNC RBC”) for review and approval. The delegate selection process in each state involves two basic functions: (1) the allocation of delegate positions among presidential candidates, i.e., how many delegates from that state will go to the Convention pledged to each candidate; and (2) the selection of the actual individuals to fill those positions, i.e., the selection of the people who will attend the Convention as delegates and alternates. Generally, state parties use either a primary or a caucus/convention system. In a primary system, the state party uses the state-government run or a party-run primary election to allocate delegate positions, and then a party-run meeting (caucus) to fill those positions. In a caucus system, the state party uses a series of party-run meetings — caucuses — both to allocate delegate positions and to select the persons to fill those positions. A caucus/convention system does not involve use of the state’s electoral machinery. Of the 56 states and territories that sent delegates to the 2008 Democratic National Convention, 20 used party run caucus/convention systems.

http://www-lvs13.net.ohio-state.edu/electionlaw/litigation/documents/Dimaio-Brief-9-19-08.pdf

In short, the numbers of votes a candidate receives in a party primary or caucus contest translates into so many pledged delegates awarded, based on the vote:delegate ratio concocted in advance by the party. When the contest is over, the state party meets to select which party faithful, pledging fealty to one candidate or the other, will fill the slot of pledged delegate for his or her preferred candidate and then cast a vote for that candidate at the national nominating convention.

On May 31, the DNC RBC met to finalize their response to the dilemma presented by FL and MI. Legislatures in both states had moved up their primaries in contradiction to the calendar set by the DNC. As punishment, the DNC indicated it would not seat delegates from either state at the convention. (Accused of “pandering” to Iowa, Obama had pulled his name off the ballot in MI. Clinton did not. She won heavily in both states but, the DNC and their allies in the press not only did not count those pledged delegate numbers in her totals, they did not even credit her with receiving the number of popular votes.) DNC Chairman Howard Dean had said in March, he expected delegates were “eventually going to be seated in Florida and Michigan as soon as we get an agreement between the candidates on how to do that.”  In the meantime, each state party had allocated pledged delegates based on the actual popular vote for the candidates whose names appeared on the ballot, including those delegates who filled the slots represented by the ‘name’ “Uncommitted,” a category that received 40% of the MI vote.

The Committee,  whose members were hand-picked by Chairman Dean, heard from both of the states involved, and from representatives of both of the candidates, and then made their decision.  In FL, where both candidates appeared on the ballot, the Committee awarded delegates in accordance with the popular vote, but gave each delegate only half a vote at the convention. But desperate to bolster Obama’s sagging numbers, his allies on the Committee adopted this solution for MI. First, all delegates would be seated at the convention but with only half a vote each. Second, all votes that had been cast for “Uncommitted” were now deemed to have been cast for Obama; and delegates assigned based on votes cast for “Uncommitted” would be reassigned to delegates loyal to him. Third, 4 (four) of those pledged delegates already assigned to Clinton as the result of votes cast for her; would be taken away and re-gifted to him.

In the eyes of many stalwart Democrats, by second-guessing the voters’ intent in this way, the RBC had abandoned the core principle of “fair reflection” enshrined in the DNC Charter. Harold Ickes, an adviser to the Clinton campaign, pulled no punches. “This motion will hijack, hijack, remove four delegates won by Hillary Clinton and most importantly reflect the preferences of 600,000 Michigan voters. This body of 30 individuals has decided that they are going to substitute their judgment for 600,000 voters.”

On June 3, the primary / caucus season ended.  Clinton suspended but did not end her campaign.

Once upon a time – March 28, 2008, to be exact – Chairman Dean announced to the press he thought it would be “nice” if by “July 1,” all of the  superdelegates weighed in with the name of the candidate they would support, implicitly acknowledging even back then that neither candidate would secure the requisite number of pledged delegates throughout the remainder of the primary / caucus contests  to ensure the August nomination.  Top Democrat wants party contest decided by July 1. But on June 4, the day after the primaries ended and just 5 (five) days after the RBC issued its controversial shuffling of the MI delegate deck to sweeten Obama’s hand, the following headlines appeared in the L.A. Times:  “BREAKING NEWS:  Dean, Pelosi, Reid set Friday deadline for superdelegates’ choices, move to force end to Clinton bid

According to the article, DNC Chairman Dean; Nancy Pelosi, (Speaker of the U.S. House of Representatives and 3rd in line of Presidential succession, acting in a civilian capacity as Chair of the 2008 DNC Services Corporation Presidential Nominating Convention); and Senator Harry Reid jointly issued a “carefully worded statement” which was widely interpreted as “a clear step to force an end to the effort by Clinton,” telling superdelegates to make their candidate choices known “tomorrow.”

Tomorrow? Whatever happened to “by July 1″?  Why this sudden (and rather petulant) rush to memorialize Obama’s coronation?  Probably because those pesky problems with his candidacy were about to derail his political aspirations.

For months now, rumors had been swirling that Obama was not Constitutionally eligible for the job.  Specifically, he is not a “natural born” citizen, one of three requirements listed in Article II, section 1 of the U.S. Constitution.  Then Communications Director Robert Gibbs (now WH Press Secretary) had come up with a seemingly brilliant on-line advertising campaign under the banner, “Fight the Smears,” designed to counter these mounting speculations.  The focal point of the ad campaign was an image of a mock-up “Certification of Live Birth,”  listing Obama’s place of birth as “Hawaii.”  (It was even appropriately redacted so as to give the appearance of protecting the candidate’s privacy.)  Ad copy accompanying the image reassured the public, this proves he is a “native” citizen.  At the bottom of the page, in the footer, appeared the sort of attribution required by the U.S. Code for all political advertising expenditures:  “PAID FOR BY BARACK OBAMA.”

Designing a political ad campaign such as “Fight the Smears” ‘to be used only in case of emergency’ was one thing; but actually rolling it out was another.  Because its success gambled on the truth of this one contemptuous statement:  American voters are too stupid to know that there’s a difference between “natural born”  and “native”; and that “Fight the Smears” is nothing more than a PAID POLITICAL ADVERTISEMENT, anyway.  Understandably, the Obama team held back on the nuclear “Fight the Smears” option for as long as it could.

Yet hard as everyone tried, Clinton just would not abandon the nomination. And why should she? Examining the traditional rubrics of success – total number of pledged delegates; popular votes; likelihood to beat the Republican in the general election – the two contenders remained within the ‘margin of error.’ Besides, neither Clinton nor Obama had amassed the requisite number of pledged delegates to wrap up the nomination on the first call of the roll on the floor of the convention.

The Obama campaign launched “Fight the Smears” on June 12.

Up until this point, the ‘dirty tricks’ carried out by operatives tied to the D Corporation to lie and cheat their man’s way into the D nomination were only sinister and underhanded.  But, with the exception of the allocation of votes:delegates in Texas, technically, they were within the letter of the law. (LULAC v. Texas Democratic Party.) All that changed in the summer months leading up to the convention, when Obama and his champions and converts, now clawing at straws, conspired to literally steal the nomination.

The state parties had specifically chosen delegates to fill the number of slots reserved for Clinton or Obama as the result of votes cast for her or him in the primary or caucus contest, based on their loyalty to either one candidate or the other. But DNC rules only insist that pledged delegates voting at the national convention “in all good conscience reflect the sentiments of those who elected them.” (Emphasis added by jbjd.) http://s3.amazonaws.com/apache.3cdn.net/fb3fa279c88bf1094b_qom6bei0o.pdf, p. 23. In other words, under DNC rules, there is no such thing as a “pledged” delegate. (At one time, the DNC did have such a “robot rule,” which required delegates pledged to a candidate to vote for that candidate at the convention. But they eliminated that rule in 1982.)

Which was a good thing for Obama emissaries who now fanned out across the country and harassed her delegates, in person and by wire, to get them to agree to switch their votes to him, before the convention.

Twisting arms to ‘turn’ pledged delegates before the convention was not only not prohibited under DNC rules but also, in 37 (thirty-seven) states, it wasn’t against the law. As for the other 13 (thirteen) states, well, that was quite a different story.

See, voters in 13 states  – AZ, GA, IN, KY, MA, NH, NM, OH, OK, OR, TN, VA, and the delegate mother lode, CA – had enacted this special legislation. ‘In our state, pledged means PLEDGED. This means, delegates pledged to a candidate as the result of votes cast in the political party’s primary or caucus election; must vote for the candidate voters elected them to represent, at the party’s nominating convention.’ (I ‘discovered’ these states in the summer of 2008 and named them “vote binding states.”) In short, extorting Clinton pledged delegates in these 13 vote binding states to commit to switching their votes to Obama before the convention, was against the law.

And they knew what they were doing was illegal.

Because as Mr. Bauer wrote in his submission to the federal court in DiMaio; “[DNC] rules require each State Democratic Party to develop a written delegate selection plan and to submit that plan to the DNC’s Rules and Bylaws Committee (“DNC RBC”) for review and approval.” Id. (The DNC RBC is the same outfit that on May 31 had shuffled the candidate’s delegate count in a blatantly partisan attempt to improve Obama’s numbers and move him closer to the nomination.) And, contained in those DNC delegate selection rules is provision 2.2: Each State Party Committee shall include the following documentation with the submission of its Plan to the RBC:

(I) a copy of all state statutes reasonably related to the delegate selection process. (Emphasis added by jbjd.)

http://s3.amazonaws.com/apache.3cdn.net/e824f455b24c7782dc_jjm6ib44l.pdf

Being “related to the delegate selection process,” the state law that required pledged delegates to vote at the convention for the candidate voters elected them to represent was included in the delegate selection plan each of these 13 states had submitted to and was subsequently approved by the DNC RBC.  In other words, Obama’s agents who began harassing Clinton pledged delegates from vote binding states to switch their votes to him, months before the convention, undoubtedly knew they were breaking the law.

But desperate times called for desperate measures.

(Next:  Part 2:  Lead-up to the Coup)


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