WHY PRESIDENT OBAMA RELEASED the LONG-FORM IMAGE of his BIRTH CERTIFICATE in PDF versus JPEG (Updated 11.16.13)

March 29, 2012

© 2012 jbjd

Until the brouhaha over the release of President Obama’s long form birth certificate on April 27, 2011, I had never considered the differences between a document that appeared on the computer screen as a PDF versus a JPEG. (Note, I write here that the President released a long form birth certificate omitting the qualifier that it is only an image of a mock-up of a political campaign advertisement since, as I have made clear for some time now, I have determined, that’s what it is. See, for example, DE-CODER RINGS (1 of 2) and DE-CODER RINGS (2 of 2) and WHY PRESIDENT OBAMA WAITED until APRIL 27, 2011 to RELEASE a FACSIMILE of his LONG FORM BIRTH CERTIFICATE) Indeed, I hadn’t bothered to read any of the myriad narratives dissecting that image, offered by ‘investigators’ whose (stated) intent was to buttress opinions it is both genuine and fake, insofar as it purports to establish Mr. Obama’s Hawaiian birth. Because I know the release of that image, both over the internet and, via hard copy (of that same internet image) to reporters are only part of a real political ad campaign.

But then, I accepted the invitation to appear on Reality Check Radio on March 13, 2012, to discuss what RC wrote is my work as a ‘Birther.’ Having done my homework by listening to past shows; I learned about John Woodman, computer-specialist-cum-author, who had previously appeared on RC to discuss both his analysis of the President’s long-form birth certificate as well as his conclusion, it was real. During his presentation of authenticity on September 1, 2011; Mr. Woodman was asked to explain why (he thought) the President’s long form birth certificate had been released in PDF versus JPEG. Mr. Woodman posited his opinion, which was not surprisingly aided and abetted by the host.

Here is that exchange, which begins at around the 56 minute mark.

RC: One question was asked in the chat room, I want to… I think needs to be addressed is, why did Obama put out such a squirrelly image? But I think you addressed that in the book. You found, you went through Google documents and found equally squirrelly PDFs, didn’t you, that demonstrate the same characteristics with the layering, so is it really a squirrelly image, I guess is my question?

JW: It’s squirrelly in the sense that, it raised a lot of questions, and so I think from that point of view perhaps not a lot of thought went into, at some level, ah, with whoever was responsible for, ah, the technical end of doing things or maybe there was, you know, maybe there was not really … at some level it seems to me there wasn’t necessarily a lot of thought as to, are there potential consequences of the exact kind of image that we present to the public here. Um, so, whoever … it seems to me that whoever put out the image there was perhaps a typical protocol for dealing with documents and it was regarded as a document.  PDF is a format that’s used for documents. Um, and I think, you know, I think they may have thought, well, you know, this image, it’s a big deal, this image is going to be downloaded a bunch of times, ah, let’s optimize it, save some bandwidth, but I don’t think they realized or maybe thought through the implications of having an image out there that was not really in the format that people were typically expecting for a web image. Ah, when it comes to something that is just a simple image on the web, there’s what’s typically used is just a simple JPEG file and it’s the same that’s the same kind of image that you get with a digital camera and you take a photograph. And I can see that, um, the immediate thought would be well, you know, JPEG file, it may not be clear enough for people. Um, it turns out, in this case, that treating it as an image or as…treating it as a typical scanned more photographic image probably would have been a better choice than treating it as a document and making it a PDF and then optimizing the PDF to the degree that they did.

RC: Yeah, one theory that, you know, on this PDF versus JPEG discussion – and I don’t remember whether this was on the fogbow or on the Dr. Conspiracy site – is that PDFs render a lot better across multiple platforms. It’s..sometimes there are problems with JPEGS on web pages. And I don’t wanna also… I think you also can’t underestimate the importance of the file size because I believe the WH probably understood that this document was going to be downloaded tens of millions of times, um, so compressing it to a file size of 300+k versus 2 or 3 megs for a JPEG of the same, you know, of an uncompressed file was a… would have been a big deal as far as bandwidth.  Now I don’t know whether anyone consciously thought about them, but there might have been some protocol that says, ‘hey, for, you know, these things we put on our web, for documents that go on our web site, they shall be PDFs, done this way. It could have been that someone was just following a standard protocol for the WH web site or it could have just been someone said, ‘hey, let’s, ah,  these are the options I chose when I did it.’ I don’t know whether we’ll ever know or not.

JW: In the government you have rules and procedures for doing things a particular way.  Somebody may have simply been following the procedures that somebody had set up. I think they probably could have come up with a JPEG file that would have been just as clear that would have been about the same size as the PDF file, ah, and I think in this case it would have been… for all the hoopla that it caused I think it would have been a better choice for them.

http://www.blogtalkradio.com/btrplayer.swf

For reasons spelled out below; I dismissed outright any explanations suggesting an official reason for the PDF versus the JPEG on WhiteHouse.gov. Nevertheless, the discussion was useful in that it signaled to me; for some reason not explored by either man, releasing the long form BC in PDF but not JPEG was a distinction with a seminal difference. And, if asked on the show, I wanted to be  prepared to comment on this aspect of the release. So, I asked a graphic artist to explain, in simple lay terms, the difference between a document reproduced in PDF versus JPEG. What I took away from her explanation is this: a JPEG of a document is one-dimensional picture, whereas a PDF is easily de-constructed into its component parts. Instantly, I told her why the Obama campaign had released the long form image of his Hawaiian birth certificate as a PDF and not a JPEG.

Before I reveal my answer, I want to show you this comment from elana, a regular poster on Democratic Underground. (At that time, she was credited with 626 posts.) (My emphasis appears in orange.)

elana i am

i just opened the pdf file from the white house site in illustrator myself, and it turns out he’s right. what he is seeing isn’t just clipping paths though, but also bounding boxes (both demonstrated by the blue lines in his example you’ve linked) from placed images that have had clipping masks applied to them.it means that the green patterned background is a seperate image placed into the illustrator file. and not only that’s but it looks like the original copy of the certificate may have been on that paper and they whited it out. it also means that each of those little sections surrounded by a blue bounding box in your top example is also a separate transparent bitmap image (presumably of what was whited out on the green paper) placed in the illustrator file (except that empty bounding box on the lower left). i’m literally sitting here moving all the pieces of this pdf file around. unfortunately your friend is not lying and he does know what he’s talking about.i know this is real, because it came directly from the white house website, but this was a PISS POOR way of presenting this document to the public. and i mean PISS POOR because they couldn’t hardly have done it in a way that made it look more doctored. i could post an image of all the pieces moved around, but i’d rather not unless you need to see it to believe it.obama has got some *real geniuses* working for him…
Wed Apr-27-11 04:06 PM, Response to Original message

Yes, elena, to use your words, Obama does have some “real geniuses” working exclusively for him. And, unlike you, I am not being sarcastic. Because while you see the release of this obviously doctorable document as evidence of ineptitude, I see it for what it is: a guarantor of sorts against criminal sanctions. I mean, God forbid some well-meaning SoS in some state beleaguered by hordes of citizen challenges to the ballot decided to download the ‘document’ and officially pronounce, ‘See, I told you, he is qualified for the job and, therefore, may appear on our ballot,’ entering the downloaded JPEG image into the official records of that office. (Or worse, what if a court of law hearing any one of the several infirm ballot challenges downloaded the JPEG document, sua sponte, so as to dispense with the case.) Under the U.S. Code, passing off a false identification document in this way is a serious crime. Id. But by fashioning a document in PDF, thus making it so easily manipulated that even people with minimal computer savvy can play with the image; its creators can sustain a defense to the crime of document fraud by pointing out that, it is such an obvious fake; no one in his right might could think this wasn’t just the focal point of a paid political ad. And, it is precisely the intent to avoid having the image we created misconstrued as ‘real’ which resulted in our choosing to release it as a PDF and not a JPEG!’

Now, here’s how I knew the explanations posited by RC and Woodman as to why the ‘WH’ released the long form birth certificate were absurd.

White House Communications Director Dan Pfeiffer, who ‘released’ the long-form birth certificate document and posted its launch on WhiteHouse.gov, actually ‘works’ for the President(‘s campaign), and not the American people. Id. Said another way, his position cannot be found in the Constitution, nor does his appointment by the President require Senate confirmation. https://docs.google.com/viewer?a=v&q=cache:9ouvu8Sk2XwJ:www.fas.org/sgp/crs/misc/R41872.pdf+white+house+senate+confirmation+of+appointments&hl=en&gl=us&pid=bl&srcid=ADGEEShLRa8AEal5i5UWgewcw66P0BihTu7regRkGFRdlsWA28hxdZpr79yCtJ2GAHWg9B4gvvc_NJlDl6LgYytEDS3P-TG5rf_ffhBmSaFTXAgAyvjY2KEgXt3NJkmqMyOzK0en3_xM&sig=AHIEtbRX-0wna9T6QqlA8HbPlFS7nt_xmA

And, serving at the pleasure of the President; he can be fired, at any time. http://www.chcoc.gov/Transmittals/Attachments/trans1300.pdf

(I think I have never cited Wikipedia at any time before now; but this article provides a good jumping off point for further investigation of the office of Communications Director, which was only ‘founded’ in 1969. http://en.wikipedia.org/wiki/White_House_Communications_Director)

Additionally, the WhiteHouse.gov web site, which is actually a blog; is not an official government portal, either. (Contrast, for example, USA.gov, which can be accessed from a tiny link in the footer of the WhiteHouse.gov blog.) Here is a section of an email I received after consultation with that same graphic artist referenced above.

And then his people”produced” the deliberately forged “long form” BC, and posted it on the “whitehouse.gov” website in PDF format on April 27th! (http://www.whitehouse.gov/blog/2011/04/27/president-obamas-long-form-birth-certificate) and they still have the link to the actual PDF file of the “long form” BC: http://whitehouse.gov/sites/default/files/rss_viewer/birth-certificate-long-form.pdf
BUT!!!!  On the same whitehouse.gov site, they also provided a link to the original COLB (from 2007/8), which looks NOTHING like what the FTS site posted!  (http://whitehouse.gov/sites/default/files/rss_viewer/birth-certificate.pdf)  Question:  Where’s that ever-famous green security background?!?!
Stay with me, and keep reading…
As for the ‘whitehouse.gov‘ website…  Let’s go down this rabbit hole together, shall we?
According to “alexa” (a popular website information source), it says the following about the domain:
Whitehouse.gov is ranked #3,379 in the world according to the three-month Alexa traffic rankings. We estimate that 67% of its visitors are in the US, where it has attained a traffic rank of 1,119. Roughly 58% of visits to it are bounces (one pageview only). Compared with the overall internet population, this site appeals more to Caucasians; its visitors also tend to consist of childless men aged under 25 and over 45 who browse from school and work and have incomes over $30,000. Whitehouse.gov has been online for at least eleven years.
(Source:  http://www.alexa.com/siteinfo/whitehouse.gov)
According to a “reverse whois” search, I found that activity on this domain is consistent with what ‘alexa’ claims, showing activity that dates back 11 years. What’s interesting, however, is that only two entries are dated in 2003.  The rest are dated from April 8th 2011, and beyond. This means that the domain was set up, but NOT USED in it’s “official” capacity until April 8, 2011.  The domain was simply “acquired” in 2003.
(Source:  http://www.domaintools.com/research/reverse-whois/?all[]=Whitehouse.gov&none[]=)

Then, I dug a little deeper….  here’s where it get’s interesting!
According to another “whois” search, I found a name in Cambridge, MA!  The whitehouse.gov website is hosted on a server belonging to “Akamai” which, according to their web site, also services other government agencies.
(Link: http://network-tools.com/default.asp?prog=express&host=whitehouse.gov)

On this above link, as you scroll down, you’ll notice a name, “Martin Hannigan”, with Akamai. It even lists a phone number: 617-444-2535

According to their “about” page, Akamai handles tens of billions of daily Web interactions for companies like Audi, NBC, and Fujitsu, and organizations like the U.S. Department of Defense and NASDAQ — powering brand new business models that serve the changing online economy.

This is all I have been able to dig up so far, but it’s enough to give you something to chew on, for sure!

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UPDATE: I wrote this article back in March 2012 but just recently received this reply from John Woodman, a self-described “computer guy” who authored a book purporting to establish, Barack Obama’s birth certificate is not a fraud. (Of course, as I have pointed out both in this article and in numerous other articles; by itself, neither the electronic image nor the hard copy mock-up of Obama’s birth documents is accurately described as a fraud. Rather, both constitute bona fide authentic political campaign advertisements, legally governed by specific requirements contained in the U.S. Code.) Mr. Woodman is featured in the present article as a prime example of ‘anti-Birthers’ whose narrative appears to me to be ideologically driven, in the absence of factual support for their claims. Mr. Woodman’s comment is worth reading because as you will see; on becoming aware of my historical criticism of his work, he attempted to rehabilitate that work only by offering new spin on the challenged pronouncements, and not by offering any new facts which would tend to prove me wrong.

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Freedom costs.


WHY PRESIDENT OBAMA WAITED until APRIL 27, 2011 to RELEASE a FACSIMILE of his LONG FORM BIRTH CERTIFICATE

March 18, 2012

© 2012 jbjd

For my next few articles, I will focus on the elusive nature of paid political advertising campaigns. First, a riddle.

Why did President Obama wait until April 27, 2011 to release a facsimile of his long form birth certificate indicating he was born in Hawaii?

As you will see, the answer to each of these questions – why release and why release now – depends on whom you ask.

On April 27, 2011 Ben Smith at Politico posts this rationale he claims was emailed to him by a White House official (although, for some reason, Mr. Smith produces neither the name of the sender of the purported email nor an image of the email which was purportedly sent), answering both questions:

The day was chosen by when they provided it to us, it got here last night, so our belief was we had to do it today. Petraues et al is tomorrow’s announcement

I am not going to argue the politics of doing this are good — they probably aren’t. Allowing the GOP primary to devolve into birther mania probably would be better, but the president felt strongly that this was bad for the country

Why today?

That same day, John McCormack at the Weekly Standard, referencing Smith’s post, adds the following analysis:

Team Obama thought the “birther issue” was politically advantageous for them. By refusing to release the document, they gave the conspiracy theory just enough oxygen to keep it alive and make Republicans look crazy when asked about it by their constituents (obviously, the most die-hard “birthers” will summarily call the “long-form” certificate a forgery or find other excuses to keep their fevered dreams alive).

Why Did Obama Wait Until Today to Release His Long-Form Birth Certificate?

Huffington Post’s Sam Stein reported at 10:13 AM (ET) on the details of the birth certificate launch, but did not speculate as to the answer to either question:

The move came as a surprise to the press corps, many of whom had not shown up for Wednesday’s early-morning White House briefing. By the time word had spread that Obama would be making a 9:45 a.m. statement on the matter, however, the top anchors at all the networks had scurried into the briefing room.

Last Friday, the president himself wrote Loretta J. Fuddy, the director of health at the State of Hawaii, requesting “two certified copies of my original certificate of live birth.” Fuddy complied. Shortly thereafter, the president’s counsel, Judith Corley of the firm Perkins Coie, flew to Hawaii to pick up two copies of the form. The trip was not taxpayer funded but, rather, paid out of the president’s personal account. Corley returned on Tuesday at roughly 4 p.m. with the copies. The White House announced a “morning gaggle” for reporters shortly thereafter. One aide explained that they did not want to “hold” on to the documents for release on a later date.

Many members of the press confessed to being “stunned” as it became clear what was about to be discussed. White House press assistants handed out a six-page stapled packet of photocopies showing the new and old birth certificates as well as the White House’s legal correspondence with Hawaii’s Department of Health.

Obama Birth Certificate Released By White House (PHOTO)

Michael A. Memoli authored more than 1 article for the LA Times on that day. Here’s the one that, being more in line with the underlying theme of this (series of) article(s), most interested me:

Reporting from Washington — The White House released President Obama’s long-form birth certificate to reporters on Wednesday, an extraordinary step in reaction to renewed questions from critics about whether he was born in Hawaii.

The document also was posted on the White House website. President Obama is expected to speak on the subject from the White House briefing room later Wednesday morning. (Here, Memoli clearly indicates that, being a reporter, he received a copy of the President’s long form birth certificate and posted this article before the President spoke. But Sam Stein at HuffPo makes clear in the article he posted immediately after the President’s briefing room launch, that “top anchors at all the networks [who] had scurried into the briefing room” received both the President’s spin and the document he spun, contemporaneously. And that “members of the press [in the briefing room] confessed to being “stunned” as it became clear what was about to be discussed.”)

Amid questions during Obama’s 2008 run for the White House, his campaign released a certificate of live birth to verify he was a native-born citizen, a constitutional requirement of the office. (No; the Constitutional requirement is “natural born citizen”; and he released a “Certification,” not a certificate. It said so right on the mock-up.) So-called “birther” critics called the document insufficient, however, and conspiracy theories about the president’s birth have continued.

Administration officials said they felt compelled to release additional documentation because the continued “distraction” was harmful for the country.

“It may have been good politics and good TV, but it was bad for the American people and distracting from the many challenges we face as a country,” Dan Pfeiffer, White House communications director, wrote on the White House’s blog.

To receive the long-form document, the president personally sent a request to the Hawaii Department of Health. White House counsel Robert F. Bauer traveled to the state to retrieve it. (According to the blog, Attorney Judith Corley of Perkins Coie, traveled to HI for that purpose.)

The state of Hawaii has faced a regular barrage of requests for information about Obama’s birth, but privacy rules barred them from releasing the full birth certificate. The White House said the state granted this exception “in part because of the tremendous volume of requests they had been getting.”

The release comes on the same day that real estate mogul Donald Trump, who has put questions about Obama’s birthplace front and center in recent weeks, travels to New Hampshire as he considers a presidential campaign of his own. (More importantly, this release coincides with the President’s previously scheduled taping of the Oprah Winfrey Show, in Chicago, immediately after this press conference. Obamas Visit Oprah in Chicago Wednesday)

White House releases long-form Obama birth certificate

So, what is my answer to the riddle, why did President Obama wait until April 27, 2011 to release a facsimile of his long form birth certificate? Because both the purported request to HI officials for his long form birth certificate; and the release of that facsimile of his long form birth certificate were part of his 2012 political campaign. (That’s why Stein’s article included the disclaimer, “The trip [to HI to ‘retrieve’ those documents] was not taxpayer funded but, rather, paid out of the president’s personal account.”) And even though questions still “swirled” since he was inaugurated in 2009, that he was Constitutionally ineligible to be President; he couldn’t launch another paid political advertising campaign to counter those concerns until he was actually in another political campaign; and he only launched his 2012 re-election campaign on April 4.

And he launched the paid political ad on April 27 to coincide with his appearances on Oprah and at several high end fundraisers in NY.  http://www.huffingtonpost.com/2011/04/27/oprah-winfrey-show-obamas_n_854232.html

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Freedom costs.


FREE SPEECH

March 11, 2012

© 2012 jbjd

By posting DE-CODER RING (1 of 2) and DE-CODER RING (2 of 2), I had hoped to forever dispel for the benefit of my readers the notion that the image of a birth certificate which appears on the web site, Fight the Smears, copyright 2007; was anything other than the focal point of a paid political ad. (Note, here I use the word “notion” as an homage to President Obama, whose use of that word I have revealed in the past, triggers in my mind the anticipation of a straw dog argument, followed immediately by a perfectly scripted response.)

As you can see, the copyright of the ad is to Barack Obama in 2007; the description of the copyrighted ad materials is “Barack Obama 2008 Presidential Campaign: Fight the Smears”; and the title of the ad campaign is “Fight the Smears: The Truth About Barack’s Birth Certificate.”

And I tried to instill the proposition that, being a political ad; all speech appearing in FTS, whether true, is protected under the 1st Amendment. https://jbjd.org/2011/01/12/de-coder-rings-2-of-2/comment-page-1/#comment-3548

But for some reason, the Washington Post appears determined to perpetuate the myth that, with respect to the nature of Mr. Obama’s FTS political ad campaign, I am wrong.

The Post keeps a political ads database, where they list more than 100 titles of campaign ads connected to Barack Obama appearing on t.v., radio, and the web, in years 2007 and 2008. Guess which one is missing?

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Freedom costs.


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.)

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

Freedom costs.


ORLY TAITZ MISSES the POINT in MISSISSIPPI

February 19, 2012

©2012 jbjd

OMG! My complaint in MS was forwarded to the Supreme Court. Chief Justice appointed a Special Judge to handle my complaint. See order below. Thank God the things started to move, I don’t know, if I can withstand the stress for much longer.

So began the quote from the email sent by Orly to bob strauss, who posted her ‘news’ on CW’s blog, along with a link to her site. Until that point, I had no idea she had filed a ballot challenge in MS, let alone that it had wound its way to the Supreme Court, especially given the fact, as I already knew, MS had no candidate ballot eligibility law for the party’s Presidential preference primary. So, as I had done when bob posted her previous headlines with respect to GA – “I WON!!! I WON!!!” – I clicked on the link.

Here is the entire title of this post announcing the judge’s interlocutory or interim court order in the MS complaint, just as it appeared on her blog.

OMG! My complaint in MS was forwarded to the Supreme Court. Chief Justice appointed a Special Judge to handle my complaint. See order below. Thank God the things started to move, I don’t know, if I can withstand the stress for much longer.

Below is the order. (Note: I embedded this document posted on Scribd by “BirtherReport.com/ObamaReleaseYourRecords.com” because as much as possible, I like to identify and (dis)credit all the co-conspirators promoting this garbage, hoping at some point citizens hold all of them liable for perpetrating this fraudulent industry which purports to be aiming at exposing, President Barack Obama is Constitutionally ineligible for the job.)

View this document on Scribd

What caught my eye immediately was that this time, Orly was the named Complainant! And, it appeared she had misidentified the name of the Mississippi Democratic Party, calling it the “Democrat Party of Mississippi.” Of course, I looked that up; yes, it is the Mississippi Democratic Party. Next, having never examined her underlying case; I now looked for the reason the MS state supreme court had issued this order. I looked up the name of the judge who had signed the order – yes, he sat on the MS supreme court bench – and then, I looked up the law he had referenced as the basis for that order, Mississippi Annotated Code 23-15-961. .

Miss. Code Ann. § 23-15-961
MISSISSIPPI CODE of 1972
*** Current through the 2011 Regular Session and 1st Extraordinary Session ***
TITLE 23.  ELECTIONS
CHAPTER 15.  MISSISSIPPI ELECTION CODE
ARTICLE 29.  ELECTION CONTESTS
D.  CONTESTS OF QUALIFICATIONS OF CANDIDATES
Miss. Code Ann. § 23-15-961  (2011)

§ 23-15-961. Exclusive procedures for contesting qualifications of candidate for primary election; exceptions

(1) Any person desiring to contest the qualifications of another person as a candidate for nomination in a political party primary election shall file a petition specifically setting forth the grounds of the challenge within ten (10) days after the qualifying deadline for the office in question. Such petition shall be filed with the executive committee with whom the candidate in question qualified.

(2) Within ten (10) days of receipt of the petition described above, the appropriate executive committee shall meet and rule upon the petition. At least two (2) days before the hearing to consider the petition, the appropriate executive committee shall give notice to both the petitioner and the contested candidate of the time and place of the hearing on the petition. Each party shall be given an opportunity to be heard at such meeting and present evidence in support of his position.

(3) If the appropriate executive committee fails to rule upon the petition within the time required above, such inaction shall be interpreted as a denial of the request for relief contained in the petition.

(4) Any party aggrieved by the action or inaction of the appropriate executive committee may file a petition for judicial review to the circuit court of the county in which the executive committee whose decision is being reviewed sits. Such petition must be filed no later than fifteen (15) days after the date the petition was originally filed with the appropriate executive committee. Such person filing for judicial review shall give a cost bond in the sum of Three Hundred Dollars ($ 300.00) with two (2) or more sufficient sureties conditioned to pay all costs in case his petition be dismissed, and an additional bond may be required, by the court, if necessary, at any subsequent stage of the proceedings.

(5) Upon the filing of the petition and bond, the circuit clerk shall immediately, by registered letter or by telegraph or by telephone, or personally, notify the Chief Justice of the Supreme Court, or in his absence, or disability, some other judge of the Supreme Court, who shall forthwith designate and notify from the list provided in Section 23-15-951 a circuit judge or chancellor of a district other than that which embraces the district, subdistrict, county or any of the counties, involved in the contest or complaint, to proceed to the county in which the contest or complaint has been filed to hear and determine the contest or complaint. It shall be the official duty of the circuit judge or chancellor to proceed to the discharge of the designated duty at the earliest possible date to be fixed by the judge or chancellor and of which the contestant and contestee shall have reasonable notice. The contestant and contestee are to be served in a reasonable manner as the judge or chancellor may direct, in response to which notice the contestee shall promptly file his answer, and also his cross-complaint if he has a cross-complaint. The hearing before the circuit court shall be de novo. The matter shall be tried to the circuit judge, without a jury. After hearing the evidence, the circuit judge shall determine whether the candidate whose qualifications have been challenged is legally qualified to have his name placed upon the ballot in question. The circuit judge may, upon disqualification of any such candidate, order that such candidate shall bear the court costs of the proceedings.

(6) Within three (3) days after judgment is rendered by the circuit court, the contestant or contestee, or both, may file an appeal in the Supreme Court upon giving a cost bond in the sum of Three Hundred Dollars ($ 300.00), together with a bill of exceptions which shall state the point or points of law at issue with a sufficient synopsis of the facts to fully disclose the bearing and relevancy of such points of law. The bill of exceptions shall be signed by the trial judge, or in case of his absence, refusal or disability, by two (2) disinterested attorneys, as is provided by law in other cases of bills of exception. The filing of such appeals shall automatically suspend the decision of the circuit court and the appropriate executive committee is entitled to proceed based upon their decision unless and until the Supreme Court, in its discretion, stays further proceedings in the matter. The appeal shall be immediately docketed in the Supreme Court and referred to the court en banc upon briefs without oral argument unless the court shall call for oral argument, and shall be decided at the earliest possible date, as a preference case over all others. The Supreme Court shall have the authority to grant such relief as is appropriate under the circumstances.

(7) The procedure set forth above shall be the sole and only manner in which the qualifications of a candidate seeking public office as a party nominee may be challenged prior to the time of his nomination or election. After a party nominee has been elected to public office, the election may be challenged as otherwise provided by law. After a party nominee assumes an elective office, his qualifications to hold that office may be contested as otherwise provided by law.

HISTORY: SOURCES: Derived from 1942 Code § 3151 [Codes, Hemingway’s 1917, § 6431; 1930, § 5904; Laws, 1916, ch. 161; repealed by Laws, 1970, ch. 506, § 33 and 1986, ch. 495, § 346]; en, Laws, 1988, ch. 577, § 1; Laws, 1990, ch. 307, § 1; Laws, 1999, ch. 301, § 14, eff from and after January 15, 1999 (the date the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the amendment of this section.)

Miss. Code Ann. § 23-15-961

Okay, this says, “any person desiring to contest the qualifications of another person as a candidate for nomination in a political party primary election shall file a petition contesting eligibility…” This means, Orly is a “person” notwithstanding she doesn’t live or vote in MS. And it says, ‘If the state party executive board has thus far ignored your request for relief; then, file a petition with the MS Circuit Court, which will petition the Supreme Court to appoint a special judge in the circuit court, to hear your plea.’ Sure enough, I looked up R. Kenneth Coleman, the judge named to hear the case. Who is Mr. Coleman? A retired Circuit Court judge.


http://courts.ms.gov/judiciarydirectory/seniorstatusjudges.pdf

There you have it. Perhaps in making her hyperbolic announcement; Orly did not intend to mislead her captive readers, again, into believing she had brilliantly figured out how to pierce the judicial conspiracy which usually sabotaged her sound legal practice. Rather, she might just have been thinking, ‘OMG! I followed the law and, by following the law, I achieved the exact result spelled out in law!’

Only, of course, unbeknownst to the MS supreme court; she was still using the wrong law.

That same paragraph allowing Orly to name herself a petitioner; also clearly states, this law only applies to a contest of a candidate who is nominated via a primary election. For example, the candidates for, say, U.S. Senator from the R party who want their names to appear on the general election ballot; are nominated for that role in the party’s primary contest. Party nominees for President are not chosen in primary elections but at Presidential nominating conventions. No; only delegates to that convention are chosen in the primary.

(The rest of Orly’s underlying complaint repeats the same tripe knocked out of legal forum after legal forum, both judicial and administrative, which recognizes it as such.)

If you are one of those people who ‘come hell or high water’ still ‘credit the ‘legal’ work of Orly Taitz, which work appears to be loosely focused on the issue of President Barack Obama’s Constitutional eligibility for office; then, I have to say, you are not one of those citizens to whom my work is addressed. Because at this point, if you still don’t understand what she is doing wrong then, you will never understand what I am doing right. Rest assured, while you are praying for the success of your personal savor in this endeavor, literally; and thereby are avoiding your civic responsibility to learn how our political system works and, to fix it, where it does not; I plow on with the heavy lifting, on your behalf.

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Freedom costs.


MISSING the FINE PRINT in GEORGIA

February 6, 2012

©2012 jbjd

I will make this brief, because ever since ALJ Malahi issued the ruling adverse to Complainants at the administrative hearing on the ballot challenge in GA; I have been swamped by disillusioned ‘Minor v. Happersett‘ ex pats now ‘willing’ for the first time to try to shift the burden of proof (and production) as to whether President Obama is a NBC, onto those people who swore he was, the seminal point in the eligibility ‘cures’ I first proposed more than 3 years ago now, before the name Barack Obama was printed on state general election ballots.

(Note to those ‘birthers’ rendered depressed by Malihi’s findings (after raised artificially high by Orly’s ‘false flag,’ ‘I won!!! I won!!!’): just because an ALJ in GA says, MvH’s mention of the phrase NBC doesn’t mean what Leo Donofrio says it means; doesn’t mean, it doesn’t mean what he says it means. Or that Leo generally doesn’t know what he is talking about. Of course, as I wrote in jbjd’s FRENEMIES LIST, MvH’s use of the phrase NBC doesn’t mean what Leo says it means; and Leo doesn’t know what he is talking about. (I wrote this article before ALJ Malihi decimated Complainant’s reliance on MvH; although I believe he overstepped his lawful authority by ‘ruling’ on the meaning of NBC as that term appears in the U.S. Constitution; and by citing as precedent for a decision in a GA (11th circuit) administrative hearing, a decision by an IN (7th circuit) state appellate court, worse, in a state not even in the same (federal) circuit.) http://www.uscourts.gov/court_locator.aspx

At the risk of exposing myself as the only birther in the room able to view the recent events in GA from the ‘glass half full perspective’; I want to point out, in fact, a lot of good news came out of this fiasco. For example, counting down in no particular order of import:

5. Citizens of GA made a modest effort to take control of their state ballots using their state laws. High 5! (Now, if they would only have the self-confidence to do so on their own, that is, without inviting in all of these outside agitators! And speaking of outside agitators, it seems completely incongruous to me that the same people who eschew creeping federalism would invite into a ‘local’ state election law scrimmage; coaches and fans from across the country with the hope that by doing so, they somehow tilt in their favor the decision of the local referee!)

4. By participating at any stage in these ballot challenge proceedings, from formulating the legal cause of action setting off the event as well as the legal theory underpinning the charges; to drafting the documents; to representing the parties, to promoting and providing  coverage of the spectacle, which culminated in a live broadcast of the evidentiary hearing; those involved afforded people across the country the opportunity to see for themselves that the money they had been donating to such ’causes’ was being frittered away by a cast of characters with no business near a hearing room, let alone a courtroom. (Maybe now they will stop funding this litigious juggernaut. NOTE TO THOSE WHO STILL FAIL TO ACCEPT, THESE PEOPLE HAVE NO IDEA WHAT THEY ARE DOING: art2superpac, the same-old-limited-thinkers-in-the-birther-game-disguised-as-the-new-kids-on-the-block; are now soliciting funds to mount a legal challenge to ALJ Malihi’s ruling. Without attacking the credibility of this ‘configuration’ of the familiar cast of birther characters; let me just assure you, a challenge of this decision has even less chance of success than the original action.)

And now – I told you, I am in a hurry – the best news from GA has nothing to do with anything said or done by either Complainants or ALJ Malihi. Can you guess what that is? (HINT: what did I say was the best news coming out of the equally legally infirm Hollister case, from January 2009?)

1. Attorney Jablonski, by submitting a Motion to Dismiss in which he argued the inviolate right of the political parties to choose their candidates for the state election ballot; as opposed to the party’s right to have the name of its chosen candidate printed on that same ballot; confirmed that the way to keep Constitutionally ineligible candidates out of the WH was to keep their names off the state ballot.

View this document on Scribd

Because political parties don’t have a right to put the names of ineligible candidates on the ballot in states that limit ballot inclusion to only those candidates qualified for the job.

Some of you have reported, state officials respond to your complaints by insisting they have no right to tell the parties which candidates they may choose. You have indicated, they appear to be trying to fob you off. I have encouraged you not to argue but, instead, to respond as if they are sincerely misreading your intent. Concede the obvious. ‘Of course, state officials have no right to tell the parties which candidates they may run for office! It would be silly to think otherwise. That’s why I am not complaining they picked an ineligible candidate – they can pick anyone they want; I couldn’t care less – and I am not asking you to countermand their choice. But I do care about my state laws; and in this state, we don’t print the names of ineligible candidates on the ballot. So, I just want to make sure my state officials aren’t printing the names of those ineligible candidates on my ballot.’

Now, stop leaving your democracy in the hands of this crazy cast of characters; and write the damn laws. HOW to WRITE SMART CANDIDATE ELIGIBILITY LAWS in your STATE (and make applying to get on the ballot harder than applying to get into Harvard)  Then, make sure the rules are in place to carry out these laws. (I still can’t believe while these people went to all that trouble to file a ballot challenge on the basis of eligibility; they didn’t bother to ask the SoS to promulgate rules to carry out the GA ballot law.)

If your state already has a candidate ballot eligibility law; petition the SoS to promulgate emergency rules to carry out the intention of the legislation. There is no legitimate reason these cannot be in place by the time these same state officials receive the DNC Service Corporation’s Certification of Barack Obama’s 2012 nomination.

Finally, let me remind you, by writing smart candidate eligibility laws, you will not only guarantee that only the names of eligible candidates will appear on the ballot; but you will also lead the way to reach the federal appellate court with a case on point so as to obtain a legally binding definition of NBC. That is, the parties will, undoubtedly, protest these laws. (‘It’s unConstitutional for you to define NBC!’) And, of course, the state’s reply? ‘We are not defining NBC, as that term is used in Article 2, section 1 of the U.S. Constitution! That would be illegal! We are only defining, the names of which candidates we will print on our state ballots.’

Now, re-read HOW ADOPTING the “NATIONAL POPULAR VOTE INITIATIVE” CAN STEAL an ELECTION ‘BY HOOK’ and ‘BY CROOK’

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Freedom costs.


jbjd’s FRENEMIES LIST

February 3, 2012

©2012 jbjd

For the first time in ages, I got sick. And, for the first time in longer than that, I was too sick to go to work. In fact, I was so sick I didn’t even take advantage of being home; to work on my blog. But that was before I decided to put aside the music playlist I was compiling to peruse the blogosphere to sample materials related to these nationwide ballot challenges. Now, I am so angry that, I am actually angrier than I am sick. Fingers crossed, I will feel better if I write.

I have decided to compile a frenemies list from among those on-line characters spewing their interminable fixes to the glitches implicated either directly or tangentially in undermining our electoral system. The bizarre ‘cures’ championed, accepted by too many unwitting citizens as true, are doing more damage to our political system than was already accomplished in the past by sheer apathy. Because those of us who know better and who truly want our government to work as we presume the Founders intended; and who have been exercising our considerable energies (and finite monetary resources) to educating those of our fellow citizens without access to our information or facts or powers of analysis, often with only psychic remuneration; now are additionally compelled to expend our finite resources de-programming those same citizens who have been indoctrinated with this poisonous tripe.

Here’s how Urban Dictionary defines the word “frenemy“:

An enemy disguised as a friend.The type of “friend” whose words or actions bring you down (whether you realize it as intentional). The type of friend you ought to cut off but don’t cuz…he’s nice… good…you’ve had good times with him. He’s good people you can count on to bring you down again sometime in the near future.The friend you may or may not have cornered about his quicksand-like ways and keep around rationalizing “its in the past”…. The person who will continue to bring you down until you demand better for yourself.

So, who has aroused my ire to the point of becoming the first frenemy on my brand new list, the person who whether intentionally or through a personal character flaw is leading you astray under the guise of helping you to find your way?

Leo Donofrio, Attorney at Law.

And what precisely after all of this time has put me into a ‘I’ve-had-it-up-to-here’ stance with respect to Mr. Donofrio’s seemingly endless deluge of fecal matter-cum-legal critique? That *!*!*!* 200+-page amicus brief he assembled and is submitting to every ballot challenge forum he can find, from the GA OSAH hearing to the IL election commission.

(Note: For the purpose of this article, I am intentionally omitting any discussion as to the propriety of submitting such a brief in the first place.)

At first, I only intended to dismiss the brief as irrelevant, by specifically pointing to Leo’s reliably faulty analyses of so many other issues in the past few years. (Note: I am not charging here that everything Leo writes is legally unsound, but only that assuming it is unsound is safer than a detrimental reliance on its validity.) For example, more than 3 years ago, I drafted those military complaints after seeing those many failed attempts by Plaintiffs to address the issue of Presidential eligibility through the federal courts, whose cases were tossed out on procedural grounds. Looking for a way to get around the ‘standing’ problem they encountered, I found the the Federal Declaratory Judgment Act, which led to the idea that people seeking redress in federal court could ask for a Declaratory Judgment, using state National Guard Plaintiffs subject to federal recall. Naturally, when drafting the military complaint, I cited to the applicable federal law. Yet, Leo criticized my proposal as un-Constitutional, absurdly arguing federal courts could not issue declaratory judgments! Now, it’s true, the Constitution explicitly says, the authority of the federal court is restricted to deciding “cases” and controversies.”  http://www.law.cornell.edu/wex/controversy  But, of course, the Federal Declaratory Judgment Act provides a mechanism for obtaining the court’s opinion within the framework of this restriction.  (His rationale in this instance represented a common flaw that appears in Leo’s reasoning: he looks narrowly to the ‘plain language’ in a passage without considering its practical meaning in the larger legal and political context.) (FYI, here is the Federal Rule of Civil Procedure on Declaratory Judgments. http://www.law.cornell.edu/rules/frcp/rule_57 For a comprehensive explanation as to when the federal court may issue declaratory judgments, see http://www.law.cornell.edu/anncon/html/art3frag21_user.html)

Then, there was the time he argued that he had found a federal law allowing a member of the security division of the Executive branch to withhold ‘secrets’ from the President, the boss of the Executive, based on a determination, this is in the public interest. I spent hours explaining, especially on CW’s blog, this is not what the law means. For definitions of the terms contained in this section of the law, you have to look at another section of the law. And those definitions spelled out, the law Leo claimed applied to the President applied only to contract employees. (Or you can use your common sense!) Indeed, I intended to make my case that any ‘legal’ work produced by Mr. Donofrio is irrelevant; by searching through years of internet postings, in which I refuted such tripe; and even began such a search. But I found the task overwhelming. (Readers of the CW blog familiar with this exchange might look it up and send here; I will post.)

I also figured Leo likely had only reached the 200-page milestone by incorporating into this amicus brief much of that same flawed ‘legal’ reasoning I had already de-bunked over the years. That’s when I decided to skim the brief. And, sure enough, this document contains many of those ‘legal’ arguments conjured up only in Leo’s imagination, which arguments even if they could be said to validate his personal private machinations; nonetheless still detract from the practical approach required to engage an active citizenry in shoring up our electoral system so as to ensure, only the candidate who is a NBC, can be elected for the job.

PLEASE, LEST YOU ARE TEMPTED AT THE OUTSET OF MY ANALYSIS TO COMPARE, CONTRAST, OR CHALLENGE RESPECTIVE CREDENTIALS WHICH HAVE BEEN MADE PUBLIC BY US ON-LINE PUNDITS; STOP! I have asked readers to consider our respective legitimacy only by examining on-line track records based on criteria that include reliability of analysis, and accurate reporting of facts, a feat which can be accomplished even absent full access to the particulars in his or her CV. (Let’s start with this fact. The legal and political analyses of issues related to presidential eligibility which I began in 2008 in response to voter concerns, led me to recommend at that time, given existing state laws, the mechanism for keeping Barack Obama out of the WH was to keep his name off the state election ballot. Leo only accessed this mechanism for redress of the eligibility dilemma, 3 1/2 years after the fact.) CHALLENGING BO’S ELIGIBILITY TO GET ONTO THE GENERAL ELECTION BALLOT AS THE DEMOCRATIC CANDIDATE FOR POTUS)

Leo begins the amicus brief with his assumptions of these facts: 1) Barack Obama was born in HI; and 2) his father was a British subject at the time of his birth. Then, based on these assumptions, he argues, Barack Obama is not a NBC because Minor v. Happersett defines only those citizens born in the U.S. of 2 U.S. citizen parents are NBCs.

No, it does not. And I have explained several times, it does not. For example, see SENSE and non-SENSE, relying on such sources such as the Legal Information Institute of Cornell University School of Law. Nor does Minor in any way limit the definition of NBC to only those people born in the U.S. of 2 U.S. citizen parents.

The decision from the lower courts which was appealed to the Supreme Court in Minor was quite narrow:

The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the constitution and laws of the State, which confine the right of suffrage to men alone.

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0088_0162_ZO.html

Thus, the main focus of this case was not on citizenship; in fact, everyone involved in the case already agreed, based on the wording of the 14th Amendment, she was a citizen. Rather, the question presented to the high court was whether privileges and immunities connected to  citizenship included the right to vote. The lower courts had ruled, it did not. Minor disagreed; that’s why she appealed. But before the high court could issue what would then become a legal “fact” with respect to voting as a privilege and immunity of citizenship; it first had to determine whether those “persons” now classified in the 14th Amendment as (having always been) citizens with a right to privileges and immunities, (historically) included women. If yes; the court would then determine whether voting had historically been treated as a privilege and immunity of citizenship, so as to determine whether it would be a privilege and immunity of citizenship, now. For this analysis, the court looked back at the history of women-qua-persons-who-would-have-been-considered-citizens pre-14th Amendment. Determining Minor was always considered a citizen (and thus, would have enjoyed the privileges and immunities of citizenship) even before the formalization of that designation in the 14th Amendment, was easy. As the court pointed out, given her specific set of circumstances – she was a woman born in the U.S. of 2 U.S. citizen parents – the literature was consistent. Thus, at a minimum, she was a citizen entitled to the same privileges and immunities of all citizens. Then, the court ‘just’ had to consider whether voting was one of these privileges and immunities which had historically been attached to such citizenship.

But you didn’t stop there.

Referring again to the Minor court, you wrote, “Their holding was that natural-born citizens were citizens at birth who do not require the 14th Amendment to establish their membership in the nation.” No, it was not; the holding in Minor had absolutely nothing to do with citizenship. Remember, the lower courts all agreed, Minor was both a citizen of MO and of the U.S.; and that voting wasn’t a privilege and immunity with respect to such citizenship. Minor appealed to the high court on the narrow grounds, she believed voting was a privilege and immunity tied to her citizenship under the 14th Amendment.

Here’s the holding in Minor, again, closely correlated to the narrow question asked:

Being unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon any one, and that the constitutions and laws of the several States which commit that important trust to men alone are not necessarily void, we AFFIRM THE JUDGMENT.

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0088_0162_ZO.html

As for your statement that the court [said] Minor was a citizen before the 14th Amendment, well, of course, it could not say otherwise, since everyone who was a U.S. citizen before the 14th Amendment was still a citizen after its passage; and no one who wasn’t already a U.S. citizen was made a citizen by this Amendment. The court actually said,

There is no doubt that women may be citizens. They are persons, and by the fourteenth amendment “all persons born or naturalized in the United States and subject to the jurisdiction thereof” are expressly declared to be “citizens of the United States and of the State wherein they reside.” But, in our opinion, it did not need this amendment to give them that position. Before its adoption the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several States, yet there were necessarily such citizens without such provision. There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an [p166] association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association.

Id.

Read the legislative history; the 14th Amendment did not confer a new status of citizenship on anyone not already a citizen before its passage, whether native, natural born, or naturalized. It merely had to find that   http://www.law.cornell.edu/anncon/html/amdt14a_user.html#amdt14a_hd1

And then, you really went off the deep end. “The Court determined it was necessary to define the class of natural-born citizens, and the definition remains current legal precedent.”

Leo, for goodness sake, get a grip. The court explicitly only set out to confirm that the word “citizen” appearing in the 14th Amendment also meant women who ‘belonged’ to this country before the 14th Amendment officially codified they were citizens. Because once it confirmed that women had always been considered ‘citizens,’ from the founding of this country and, therefore, that all of the privileges and immunities attached to such citizenship, beginning at that time, should apply now under the 14th Amendment; it could then figure out whether voting had been treated as a privilege or immunity of that citizenship. It made no difference to the analysis rendered by the court whether Minor could be said to be a native, natural born, or naturalized citizen but only whether she could be said to have been a citizen even before that word was codified in the 14th Amendment; and only because the rights enumerated in the 14th Amendment were limited to citizens. Yes, by reasoning that Minor was a citizen before the 14th Amendment the court also confirmed, the amendment did not confer new citizenship status or rights but merely ‘codified’ s status which already existed with respect to Minor. However, it did not, as you would suggest, confirm, in dicta, that the only “citizens” who were citizens before the 14th Amendment were NBCs; rather, it only confirmed that, at least, NBCs (like Minor) were citizens before the 14th Amendment.

Thus, consistent with the lower courts, the Supreme Court agreed, Minor was a citizen according to the language in the 14th Amendment. Then, examining the implications of citizenship before the 14th Amendment, the court found, in fact, Minor rightly could be considered a citizen before the 14th Amendment. But, alas, having examined the historical privileges and immunities ancillary to citizenship before the 14th Amendment; it also agreed, voting appears not to have been one of those privileges and immunities of citizenship. Thus, the court did not have to enforce a right to vote in MO. (Interestingly, the court  virtually invited the electorate to cure this mistake.)

We have given this case the careful consideration its importance demands. If the law is wrong, it ought to be changed; but the power for that is not with us. The arguments addressed to us bearing upon such a view of the subject may perhaps be sufficient to induce those having the power, to make the alteration, but they ought not to be permitted to influence our judgment in determining the present rights of the parties now litigating before us. No argument as to woman’s need of suffrage can be considered. We can only act upon her rights as they exist. It is not for us to look at the hardship of withholding. Our duty is at an end if we find it is within the power of a State to withhold.

Id.

In sum, with respect to the 14th Amendment and citizenship, NO U.S. CITIZENS, REGARDLESS OF WHETHER THEY SATISFIED THE CITIZENSHIP REQUIREMENTS IN THEIR INDIVIDUAL STATES OR THE DISTRICT OF COLUMBIA, NEEDED THE 14TH AMENDMENT TO ESTABLISH THEIR U.S. CITIZENSHIP. BOTH THOSE CITIZENS WHO WERE CITIZENS ON THE BASIS THAT THEY WERE BORN HERE OF 2-CITIZEN PARENTS; AND THOSE CITIZENS WHO WERE CITIZENS ON THE BASIS THAT THEY WERE BORN HERE OF NON-CITIZEN PARENTS; AND THOSE CITIZENS WHO WERE CITIZENS ON THE BASIS THAT THEY WERE NATURALIZED HERE,WERE ALREADY CITIZENS OF THE NATION BEFORE THE 14TH AMENDMENT, EVEN IF THESE SAME U.S. CITIZENS FAILED TO QUALIFY AS CITIZENS OF INDIVIDUAL STATES UNDER THE LAWS OF THOSE INDIVIDUAL STATES OR THE DISTRICT OF COLUMBIA. THUS, ALL OF THESE CITIZENS WHO WERE ALREADY CITIZENS OF THE NATION BEFORE THE 14TH AMENDMENT, WERE MENTIONED IN THE 14TH AMENDMENT ONLY FOR THIS NARROW PURPOSE: TO MAKE SURE THAT EVERYONE NOW KNEW, BEING CITIZENS MEANS, BEING ENTITLED TO THE SAME DUE PROCESS, EQUAL PROTECTION, AND PRIVILEGES AND IMMUNITIES AS ALL OTHER CITIZENS FROM NOW ON.

Got that now? And the only reason the court even reached the analysis of Minor’s citizenship was so as to confirm the word “citizen” and “person” as used in the new 14th Amendment necessarily meant even before the 14th Amendment, women who were similarly situated, that is, women born here of 2 citizen parents, but only because Minor was a woman born here of 2 citizen parents. Once it determined the threshold issue, that is, the new Amendment did, indeed, apply to the woman named in the present case; it stopped the ‘citizen’ aspect of its analysis and reached the voting qua “privileges and immunities” of citizenship core of the case. The Minor court only ruled, for the first time, under this new right vested in citizens by the 14th Amendment, voting cannot be said to be a “privilege or immunity.” It did not rule that only citizens born here of 2 citizen parents are NBCs.

Then, Leo contradicted himself.

The Minor Court’s construction of the natural-born citizen clause was the independent ground by which the Court avoided construing the 14th Amendment’s citizenship clause.Therefore, such construction is precedent, not dicta, despite Presidential eligibility not being an issue in that case. The Court determined it was necessary to define the class of natural-born citizens, and the definition remains current legal precedent.

As I have stated, the Minor court did, in fact, undertake a legal and historical analysis which, as a threshold issue, determined that, as the word “citizen” was used in the new 14th Amendment; Minor was a citizen even before the 14th Amendment. Thus, having considered the issue of Minor’s pre-14th Amendment citizenship (status) in order to “construe” that the word “citizen” in the 14th Amendment means her; the court cannot be said to be simultaneously “avoiding construing the 14th Amendment’s citizenship clause.” It did construe the 14th Amendment’s guarantee to equal privileges and immunities of all citizens, to mean all “persons” who have ‘belonged’ to this country even before the 14th Amendment, including women. At this same time, it did avoid an exhaustive exploration of all of the possible iterations of  ‘women belonging to a country’ which also might rightly have triggered the designation “citizen” that appears in the 14th Amendment and, thereby implicated the “privileges and immunities” clause. And it avoided an exhaustive consideration of these ancillary issues because in the present case, it did not have to reach these issues in order to render its ruling on the case before the court.

Finally, Leo again raises the specter of Vattel. For goodness sake, give up that ghost! DEFINITION on DEMAND

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Freedom costs.


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

January 28, 2012

©2012 jbjd

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

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

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

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

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

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

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

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

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

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

§ 50-13-2.  Definitions

As used in this chapter, the term:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

Of course, they would be very very wrong.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

View this document on Scribd

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

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

View this document on Scribd

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

View this document on Scribd

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

View this document on Scribd

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

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

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

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

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

Let’s look at the Administrative Rules.

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

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

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

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

Look at this rule on Nature of Proceedings.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Freedom costs.


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

January 24, 2012

©2012 jbjd

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

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

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

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

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

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

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

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

O.C.G.A. § 50-13-40

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

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

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

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

O.C.G.A. §50-13-13

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

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

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

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

(2) The notice shall include:

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

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

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

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

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

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

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

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

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

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

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

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

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

(C) A statement of matters officially noticed;

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

(E) Proposed findings and exceptions;

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

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

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

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

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

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

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

O.C.G.A. § 50-13-41

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

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

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

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

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

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

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

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

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

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

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


WITH ALL DUE RESPECT to ORLY TAITZ

January 21, 2012

(UPDATED 01.22.12, in text)

(UPDATED 01.23.12, at bottom)

© 2012 jbjd

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

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

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

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

Posted on | January 20, 2012 | 163 Comments

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

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

nomination papers (link omitted by jbjd)

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

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

Humbly,

Dr. Orly Taitz, ESQ

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

Here is the response I posted on CW.

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

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

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

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

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

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

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

“Humbly”? Yeah, right..

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

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

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

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

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

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

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

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

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

You just don’t get it.

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

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

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

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

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

Thank you.

January 30, 2009 11:38 PM

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