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Re: Montgomery Blair Sibley's Lawsuit Naming Barack Obama, et al.,

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  • Jon Roland
    Roland comments: Given the way Sibley has argued this case, the DOJ s response is mostly correct, but not entirely. Without time to analyze the arguments
    Message 1 of 1 , Apr 8, 2012
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      Roland comments:

      Given the way Sibley has argued this case, the DOJ's response is mostly correct, but not entirely. Without time to analyze the arguments thoroughly, the following points should be considered.

      1. It is not correct that a writ of quo warranto is applicable only to someone holding an office. There is adequate precedent that it also covers prospective or past office holders (who might still be receiving benefits from past service).
      2. Although precedent supports many of the DOJ's points, those were wrongly decided.
      3. The prerogative writs, such as quo warranto and habeas corpus, precede and are superior to the 1787 Constitution as part of the due process and Ninth Amendment rights incorporated into it.
      4. The right of any person to make a direct complaint to the grand jury is derived from the first amendment right of petition. It can be regulated for orderly scheduling, like any petition to a court, but a prerogative writ must be docketed ahead of all other matters except another prerogative writ.
      5. A grand jury has the prerogative to investigate anything and report anything. It cannot be restricted on subject matter, although it should be encouraged to confine itself to its territorial jurisdiction.
      6. A writ of quo warranto is a demand, filed with the court and served on the respondant, with the burden on the respondent. It is not some kind of motion, and it is not something for which one should have to apply. The court order is not the writ.
      7. It is correct that the court lacks jurisdiction to remove a sitting president once he has been inaugurated, but it always has jurisdiction to to provide declaratory relief. In other words, it can find the president is ineligible even though it can't do anything about it, and indeed, that finding issues by default if it merely fails to hold a hearing on the merits. Historically, enforcement of a finding by a court that an official lacks authority has often depended on enforcement by militia, acting on custom.
      8. A demand that the name of Obama be excluded from the ballot is improper, because it is not Obama that people would be voting for. It would be a slate of electors pledged to vote for him. The eligibility of the electors might be challenged, but the name used as a label for the electors does not present a question of eligibility, because people aren't voting for him.
      9. There are only three points at which a challenge to eligibility might be made:
          a. When the state secretary of state conveys the votes of the electors to Congress. That is the first point at which Obama enters the process.
          b. When Congress counts the electoral votes and declares the results.
          c. At the point of inauguration.
      It is really only (a) and (b) at which one might challenge the election, especially (b), and a court can't command what Congress does.
      10. The DOJ is correct that the policies the president might implement do not constitute particularized injury that can give rise to a claim for injunction.

      The main thing this and similar cases have accomplished is to get the government to make their desecration of the Constitution explicit. The gloves of tyranny are off. However, it also means there is no judicial remedy unless or until the Constitution is amended to more clearly forbid what that are doing. Another argument that my proposed amendments are the only solution.

      -------- Original Message --------

      Document 12 Filed 04/02/12

      Page 1 of 21

       
       

      UNITED STATES DISTRICT COURT

      FOR THE DISTRICT OF COLUMBIA

      MONTGOMERY BLAIR SIBLEY,

      Plaintiff,

      v.

      BARACK OBAMA, et al.,

      Defendants.

       

      )

      )

      )

      )

       

       

      Civil Action No. 12-cv-00001 (JDB)

      DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT AND

      MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE MOTION

       

      Defendants respectfully move to dismiss Plaintiff’s claims in his Amended Complaint

      (dkt. no. 5), pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6).
       

      BACKGROUND

       

      This case presents the Court with the latest in a series of unsuccessful lawsuits alleging

      that President Obama is not a “natural born citizen” as required by the Constitution. See U.S.

      CONST. art. II, § 1. The federal and state courts, including, on at least two occasions, the United

      States District Court for the District of Columbia, have previously rejected these challenges on

      both procedural grounds and the merits. See, e.g., Taitz v. Obama, 707 F. Supp. 2d 1 (D.D.C.

      2010) (Lamberth, C.J.); Hollister v. Soetoro, 601 F. Supp. 2d 179 (D.D.C. 2009) (Robertson, J.);

      Drake v. Obama, 664 F.3d 774 (9th Cir. 2011); Kerchner v. Obama, 669 F. Supp. 2d 477 (D.N.J.

      2009), aff’d Kerchner v. Obama, 612 F.3d 204 (3rd Cir. 2010); Cook v. Good, 2009 U.S. Dist.

      LEXIS 126144 (M.D. Ga. 2009), appeal dismissed by dkt. no. 09-14698-CC (Feb. 26, 2010);
       

      2

      Tisdale v. Obama, No. 3:12-cv-00036 (E.D. Va. Jan. 23, 2012) (“It is well settled that those born

      in the United States are considered natural born citizens” and challenges to President Obama’s

      eligibility are “without merit”); Ankeny v. Governor of Ind., 916 N.E.2d 678 (Ind. Ct. App. 2009)

      (“persons born within the borders of the United States are ‘natural born Citizens’ for Article II,

      Section 1 purposes, regardless of the citizenship of their parents”), transfer denied 929 N.E.2d

      789 (Ind. 2010). Although Plaintiff frames this action with a slightly-divergent set of legal

      theories – including his affirmation of a “write-in candidacy” for President in 2012 – this case

      largely embodies the same set of allegations, with the exception of the inclusion of a separate

      and apparently-unrelated Bivens claim against the United States Marshals Service and two

      Deputy U.S. Marshal John Doe defendants.1 These minor variations make no difference to the

      ultimate outcome: as with the other claims challenging President Obama’s eligibility for office,

      this action should be dismissed in its entirety.

       

      ARGUMENT

       

      I. Plaintiff’s claims for quo warranto should be dismissed because Plaintiff

      lacks standing to challenge the President’s current term in office and the

      relief Plaintiff seeks is unavailable through quo warranto.

      Although grouped together under the common rubric of “quo warranto,” Plaintiff’s

      amended complaint is properly understood to use that label to pursue two distinct claims against

      Defendant President Obama. First, Plaintiff seeks to bar President Obama from “appearing on

      the ballot for the 2012 Presidential election.” Amend. Compl. at ¶¶ 21, 23; see id. at ¶1(a).

      Second, Plaintiff seeks to “oust[]” the President from the office which he has held since

      1 Plaintiff’s Bivens claim alleges that on September 15, 2009, and on one unidentified previous occasion, he received

      an escort between the entrance of the United States Courthouse and the U.S. District Court Clerk’s Office. See

      Plaintiff’s First Amended Certified Petition for Writs Quo Warranto and Mandamus and Complaint for Declaratory

      Relief and Damages, dkt. no. 5 (hereafter “Amended Compl.”) at ¶ 9.

      Case 1:12-cv-00001-JDB Document 12 Filed 04/02/12 Page 2 of 21

      3

      inauguration on January 20, 2009. See id. Because Plaintiff has no standing to challenge

      President Obama’s current tenure in office and cannot use quo warranto to challenge President

      Obama’s placement on the ballot for the next election, these claims should be dismissed.

      A. Quo warranto is not available to challenge the eligibility of candidates to appear on

      the 2012 election ballot.

      Plaintiff repeatedly invokes the D.C. Code’s quo warranto provisions, see D.C. Code 16-

      3501 et seq., and the common-law writ of quo warranto as the bases for relief “preventing

      [President Obama] from . . . being on the ballot for [President] in 2012.” Amend. Compl. at

      caption; ¶¶ 1(b), 18, 23. This claim cannot succeed because quo warranto – whether understood

      through its current statutory foundation or through its roots as a common law writ – is not a

      method of challenging a candidate’s appearance on an election ballot and cannot be used in lieu

      of the appropriate legal means to do so.

      The writ of quo warranto is a “common-law writ used to inquire . . . if persons who had

      no right to do so were occupying some public office.” Black’s Law Dictionary 1371 (9th ed.

      2009). Issuance of the writ has the effect of having the occupier of such office “ousted from the

      illegal [] office.” Id. Aside from providing historical illustration, however, Plaintiff’s citations to

      the common law background do not provide a basis for the relief he seeks because, “except as

      otherwise specifically provided by statute, there is no original jurisdiction in the federal district

      court to entertain an information in the nature of quo warranto.” U.S. ex rel. State of Wis. v. First

      Fed. Sav. & Loan Ass'n, 248 F.2d 804, 809 (7th Cir. 1957); see also Drake v. Obama, 664 F.3d

      at 784-85 (observing that the D.C. Code contains the statutory authority for modern-day quo

      warranto actions against federal officers).

      Case 1:12-cv-00001-JDB Document 12 Filed 04/02/12 Page 3 of 21

      4

      As noted by Plaintiff, the D.C. Code contains a statutory provision which authorizes

      certain quo warranto actions in this Court. This statute states in part that:

      [a] quo warranto may be issued from the United States District Court for the

      District of Columbia in the name of the United States against a person who within

      the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a

      franchise conferred by the United States or a public office of the United States,

      civil or military. The proceedings shall be deemed a civil action.

      D.C. Code § 16-3501.

      The text of the statute thereby adopts an important facet of the common law quo warranto: that a

      petition for quo warranto is brought against an officeholder to challenge his current tenure, rather

      than in relation to a future term of office. See Broyles v. Commonwealth, 309 Ky. 837, 839

      (1949) (A quo warranto action “will not lie against one who merely lays claim to the office. The

      term must have begun and the defendant have assumed, usurped or taken possession of the

      office.”); Cf. State ex rel. Koshmider v. King, 2000 Ohio App. LEXIS 5566 (Ohio Ct. App.,

      Sixth App. Dist., Huron Cty., 2000) (holding that a suspended city manager could not yet contest

      the office in question until he had been “removed from his office”). President Obama’s presence

      on the ballot for the upcoming election is not equivalent to his tenure in office for the next term,

      beginning January 20, 2013. See U.S. CONST. amend. XX (“The term[] of the President . . .

      shall end at noon on the 20th day of January . . . .”).

      Defendants are mindful that “a pro se complaint ‘must be held to less stringent standards

      than formal pleadings drafted by lawyers.’” Bickford v. Gov’t of the United States, 808 F.Supp.

      2d 175 (D.D.C. 2011) (Friedman, J.), (quoting Brown v. District of Columbia, 514 F.3d 1279,

      1283 (D.C. Cir. 2008)). Nevertheless, it does not appear from the complaint that Plaintiff brings

      any other cognizable challenge to the President’s eligibility to appear on the election ballot.

      Case 1:12-cv-00001-JDB Document 12 Filed 04/02/12 Page 4 of 21

      5

      Importantly, the text of Plaintiff’s amended complaint repeatedly links his ballot-access

      challenge to the quo warranto provision. See Amend. Compl. at caption (describing Plaintiff’s

      “First Amended Certified Petition for Writs Quo Warranto and Mandamus and Complaint for

      Declaratory Relief and Damages”); ¶ 1(a) (seeking a writ “ousting” the President “and/or

      preventing him from . . . being on the ballot for that office in 2012”); ¶¶ 21-23 (stating both that

      he “tests” the President’s “right to (i) public office . . . and (ii) as the nominee . . . appearing on

      the ballot”). Plaintiff does not state any other basis under which this Court could hear his claim

      seeking to remove the from upcoming election ballots in the District of Columbia.

      Moreover, although Plaintiff claims that his interest in seeing the President barred from

      the ballot in the upcoming election stems from Plaintiff’s submission of an “Affirmation of

      Write-in Candidacy” to the District of Columbia Board of Elections and Ethics, see Amend.

      Compl. at ¶5, id. at Ex. A, Plaintiff does not allege that he has brought any election eligibility

      complaint to that body. Under the D.C. Code, it is the responsibility of the D.C. Board of

      Elections and Ethics to, inter alia, “[d]etermine that candidates meet the statutory qualifications

      for office”; “certify” both “nominees and the results of elections”; and “conduct a presidential

      preference primary election” for political parties meeting certain eligibility requirements. See

      D.C. Code §1-1001.05. The D.C. Code also contains provisions for challenging nominations and

      commits responsibility for judicial review of D.C. elections to the D.C. Court of Appeals, not the

      federal courts. See D.C. Code § 1-1001.11; cf. Best v. D.C. Bd. of Elections & Ethics, 852 A.2d

      915, 918 (D.C. Ct. App. 2004) (holding that the statutory authority of the D.C. Court of Appeals

      “extends to correcting any defect in the [electoral] process serious enough to vitiate the election

      Case 1:12-cv-00001-JDB Document 12 Filed 04/02/12 Page 5 of 21

      6

      as a fair expression of the will of the voters.”).2 Nor has Plaintiff named the D.C. Board of

      Elections and Ethics or a political party seeking to nominate President Obama as its candidate as

      defendants in this lawsuit.

      Under these circumstances, it would be inappropriate for the Court to try to save

      Plaintiff’s improper future quo warranto claim by construing the claim as some alternative

      challenge to the President’s appearance on the election ballot. As explained above, Plaintiff’s

      claim seeking this form of relief should therefore be dismissed.

      B. Plaintiff has not suffered a concrete and particularized injury that would provide him

      with standing to challenge President Obama’s eligibility to serve his current term in

      office.

      The question of standing is a threshold determination concerning “whether the litigant is

      entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin,

      422 U.S. 490, 498 (1975). Plaintiff bears “the burden of establishing [the] existence” of standing

      because federal courts should presume they lack jurisdiction “unless the contrary appears

      affirmatively from the record.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 104

      (1998); Renne v. Geary, 501 U.S. 312, 316 (1991). To demonstrate standing, Article III requires

      a litigant to have suffered “personal injury fairly traceable to the [] allegedly unlawful conduct

      and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 750-52 (1984).

      The Supreme Court has “consistently stressed” that a plaintiff lacks standing unless he can

      2 Not that any such challenge would be likely to succeed. Numerous other jurisdictions have heard and rejected

      similar claims brought against President Obama in his personal capacity, state elections officials, or the Democratic

      Party to challenge the President’s placement on 2012 election ballots. See, e.g., Farrar et al v. Obama, OSAHSecState-

      CE-1215136-60-Malihi (Feb. 3, 2012) (Ga. Ofc. Admin. Hearings) (President Obama is eligible to appear

      on the ballot as a natural born citizen); Jackson v. Obama, 12 SOEB GP 104 (Jan. 27, 2012) (ballot access challenge

      rejected because eligibility “clearly establishe[d]” by President Obama’s birth certificate), objection overruled (Ill.

      State Bd. of Elections, Feb. 3, 2012); Freeman v. Obama, 12 SOEB GP 103 (Jan. 27, 2012) , objection overruled

      (Ill. State Board of Elections, Feb. 3, 2012) (same).

      Case 1:12-cv-00001-JDB Document 12 Filed 04/02/12 Page 6 of 21

      7

      “establish that he has a ‘personal stake’ in the alleged dispute, and that the injury is

      particularized as to him.” Raines v. Byrd, 521 U.S. 811, 819 (1997). And standing to litigate one

      claim does not confer standing to litigate others; rather, a plaintiff “must demonstrate standing

      for each claim he seeks to press.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006).

      1. Contrary to Plaintiff’s arguments, members of the public lack the standing to

      challenge public officials using the quo warranto statute.

      The rejection of numerous similar challenges to the qualifications of President Obama

      well establish that the purported injury suffered from doubting the President’s eligibility for

      office is an injury to “the generalized interest of all citizens in Constitutional governance,” and

      thus too abstract to satisfy the requirement of standing. See Schlesinger v. Reservists Comm. to

      Stop the War, 418 U.S. 208, 217, 220 (1974); Drake v. Obama, 664 F.3d 774 (9th Cir. 2011). If

      available to any member of the public, a quo warranto action to remove a public officeholder

      would vindicate only the interest of the public-at-large in the proper conduct of public officials

      and would therefore fail to satisfy this requirement. Thus, Plaintiff cannot successfully

      “maintain[] that he has standing” stemming from “the right, possessed by every citizen, to

      require that the Government be administered according to law.” See Amend. Compl. at ¶ 17.

      Plaintiff’s similar contention that the writ of quo warranto was once “available to strangers

      unable to demonstrate personal injury” is a generalized claim for standing that does not meet

      Article III’s requirements of a “personal stake” and a “particularized” injury. Raines, 521 U.S. at

      819.

      Indeed, in dismissing a similar action in this Court challenging President Obama’s

      eligibility, Chief Judge Lamberth explained that the well-established principle that “a quo

      Case 1:12-cv-00001-JDB Document 12 Filed 04/02/12 Page 7 of 21

      8

      warranto action against a public official may be brought only by the Attorney General or the U.S.

      Attorney” is itself “rooted in the doctrine of standing.” Taitz v. Obama, 707 F. Supp. 2d at 3

      (emphasis in original). Because “challenges to authority by which a public office is held ‘involve

      a right belonging to the whole body of the public,’” and seek to vindicate an injury suffered

      equally by that whole body, only a “public representative” has the unique interest required to

      provide standing for such a challenge. Id. (quoting United States v. Carmody, 148 F.2d 684, 685

      (D.C. Cir. 1945)). In keeping with the requirements for standing, the D.C. quo warranto

      provisions therefore give authority only to the Attorney General and the U.S. Attorney for the

      District of Columbia to institute quo warranto proceedings.3 See D.C. Code § 16-3502.

      2. Plaintiff cannot demonstrate standing for a quo warranto challenge through a

      candidacy in a future election.

      As explained above, a proper quo warranto action is a challenge to the current tenure of

      an officeholder. Chief Judge Lamberth explained in Taitz that the plaintiff bringing such a

      challenge must be “actually entitled to the office” by virtue of his candidacy for office for the

      challenged term. Taitz, 707 F.Supp. 2d at n.1. Notwithstanding Plaintiff’s status as “a declared

      write-in candidate” in the District of Columbia and his belief that this may net him sufficient

      votes in twenty-six states to secure 270 electoral votes, see Amend. Compl. at ¶¶ 6-7; id. at Ex.

      B, there is no allegation that Plaintiff is “actually entitled” to the office of the President at this

      3 As for Plaintiff’s claim that the “Ninth and/or Tenth Amendments” permit him to supersede the role of the

      Attorney General and U.S. Attorney, there is “no basis for th[e] claim” that “the authority to act as a private

      attorney general is authorized pursuant to powers reserved under the Ninth and Tenth Amendments.” Smith v.

      Anderson, 2009 U.S. Dist. LEXIS 108220 at *6 (D. Col. 2009). These amendments reserve rights and powers

      to the states and to the people, respectively, see U.S. CONST. amend. IX; U.S. CONST. amend. X, and cannot

      reasonably be read to enlarge the limited authority of the federal sovereign through its “courts of limited

      jurisdiction.” See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

      Case 1:12-cv-00001-JDB Document 12 Filed 04/02/12 Page 8 of 21

      9

      time, and neither his current statement of candidacy nor the other allegations in his complaint

      provide any basis to believe that he has such an entitlement.

      To be sure, the statutory quo warranto provision does provide a means for a private party

      to apply directly “to the court by certified petition for leave to have the [quo warranto] writ

      issued.” § 16-3503. The text of the statute states that such a petitioner must be an “interested

      person,” and it is that provision that the Court in Taitz found requires an “actual[] entitle[ment]

      to the office.” Taitz, 707 F.Supp. 2d at n.1 (discussing Newman v. United States ex rel. Frizzell,

      238 U.S. 537, 547 (1915)). The Taitz opinion tied this requirement to the Supreme Court’s

      opinion in Newman, which Judge Lamberth explained is “the one case that discusses the

      circumstances under which a private person might be able to challenge a public official's title to

      office.” Id. Reviewing the previous D.C. quo warranto statute (the language of which is

      substantially identical to the statute now in force),4 the Newman Court concluded that Congress

      4 The predecessor statute provided:

      Sec. 1538. AGAINST WHOM ISSUED. — A quo warranto may be issued from the

      supreme court of the District in the name of the United States —

      First. Against a person who usurps, intrudes into, or unlawfully holds or exercises

      within the District a franchise or public office, civil or military, or an office in any

      domestic corporation.

      Second. Against any one or more persons who act as a corporation within the

      District without being duly authorized, or exercise within the District any corporate

      rights, privileges, or franchises not granted them by the laws in force in said District. And

      said proceedings shall be deemed a civil action.

      Sec. 1539. WHO MAY INSTITUTE. — The Attorney General or the district attorney

      may institute such proceeding on his own motion, or on the relation of a third person. But

      such writ shall not be issued on the relation of a third person, except by leave of the

      court, to be applied for by the relator, by a petition duly verified, setting forth the grounds

      of the application, or until the relator shall file a bond with sufficient surety, to be

      approved by the clerk of the court, in such penalty as the court may prescribe,

      conditioned for the payment by him of all costs incurred in the prosecution of the writ in

      case the same shall not be recovered from and paid by the defendant.

      Sec. 1540. IF ATTORNEY GENERAL AND DISTRICT ATTORNEY REFUSE. — If the

      Attorney General and district attorney shall refuse to institute such proceeding on the

      request of a person interested, such person may apply to the court by verified petition for

      leave to have said writ issued, and if in the opinion of the court the reasons set forth in

      Case 1:12-cv-00001-JDB Document 12 Filed 04/02/12 Page 9 of 21

      10

      used the words “interested person” to ensure that the “interest which will justify such a

      proceeding by a private individual must be more than that of another taxpayer. It must be ‘an

      interest in the office itself, and must be peculiar to the applicant.” Newman, 238 U.S. at 550. This

      interest can only be satisfied by a challenger who sought the office at the time as the current

      officeholder: a speculative possibility of future electoral success is not “peculiar” to Plaintiff

      because it would be equally available to anyone announcing their intention to run for office in

      the future.5

      For these reasons, then, Plaintiff’s request for a writ “ousting” the President from office

      must therefore meet the same fate as the claim of the plaintiff in Taitz: “Because [Plaintiff] is

      neither the Attorney General of the United States nor the United States Attorney for the District

      of Columbia, [he] does not have standing to bring a quo warranto action challenging a public

      official’s right to hold office.” Taitz, 707 F. Supp. 2d at 4.

      C. Plaintiff may not use the vehicle of quo warranto to challenge the title of President of

      the United States.

      Plaintiff’s claim seeking the removal of the President from office is also constitutionally

      inform because granting Plaintiff the relief he seeks would require t

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