We learned a few days ago that Birther attorney Mario Apuzzo had passed over the weekend from complications associated with COVID-19. Apuzzo was 65 years old and had been hospitalized with COVID and pneumonia.
Apuzzo filed one of the early Birther lawsuits against then President Barack Obama on behalf a handful of plaintiffs as Obama was about to be inaugurated as the first black president in 2009. The lawsuit, Kerchner v Obama, was of course dismissed at the district court level and failed on appeal to the 3rd Circuit and in the Supreme Court.
You can read Mario Apuzzo’s obituary here. Apparently he was quite active in his local Italian American community.
Apuzzo was the second or third attorney (Orly Taitz may have been the second but Orly was such a copycat it is difficult to tell) to use what was later described as the “two citizen parent” theory for the definition of the term natural-born citizen as used in article II of the US Constitution. New Jersey attorney Leo Donofrio had included this argument in a lawsuit filed in New Jersey about the time of the November 2008 election.
Birther blogs like the Post & Email are praising Apuzzo as an “expert Constitutional attorney”. Let’s get that straight. Apuzzo was no expert on the Constitution. He tried to argue on his blog, in comment streams, and in actual cases his theory that to be eligible to be president one had to have two US citizen parents. He lost every case in which in tried to make this argument.
Apuzzo never wrote or published a single article in a reputable, vetted, law journal. The overwhelming majority of real constitutional experts disagreed with him. In short, he pushed a crackpot theory not accepted by real experts. His appeal in the dismissed Kerchner v Obama case in the Third Circuit was ruled to be frivolous. It was only after Apuzzo groveled before the court in a response to the OSC that monetary sanctions were waived. The ruling that the appeal was frivolous stood.
Now that Robert Laity’s lawsuit against Vice President Harris has been denied and denied again by SCOTUS we can turn our attention to another Harris Birther lawsuit that has been festering in the Southern District of California. A group calling themselves the “Constitutional Association, Inc” filed a complaint asking for an injunction preventing Harris from assuming the office of Vice President citing the Birther invented definition of natural born citizen (requiring that both parents be US citizens at the time of birth) and the usual sources (de Vattel, Minor v Happersett, John Jay’s letter to George Washington, etc.). The plaintiffs go even further and claim that Harris was not even a citizen at birth because her father (Jamaican) and mother (Indian) who both resided in California at the time were not under the jurisdiction of the United States.
The Constitution Association officers are President Douglas V. Gibbs, conservative radio host in San Diego, Dennis Jackson, Vice President, and George Rombach, Treasurer. They are all named plaintiffs in the complaint.
The initial complaint was filed on December 7, 2020 before the Electoral College voted to make Joe Biden President Elect and Kamala Harris Vice President Elect. The plaintiffs tried to serve Harris by mailing a copy of the summons and complaint to the White House. On April 26 the plaintiffs filed for default since Harris had never responded. The same day the clerk entered a default against VP Harris.
Then on May 12th the Vice President through the local US Attorney’s office filed an ex parte motion to set aside the default and dismiss the complaint since Harris had never been properly served under the rules for serving a complaint upon a government employee. On May 17th Judge Todd Robertson issued an order to show cause why the case should not be dismissed the issues of standing and subject matter jurisdiction and gave the plaintiffs until June 3rd to file a response to the ex parte motion filed by the US Attorney’s office.
The plaintiffs filed their response on June 3rd and claimed that the Vice President was not a government employee and had been properly served. On June 10th the acting US Attorney filed a reply to the plaintiffs’ response.
The orders from the SCOTUS conference held last Thursday May 27 contained a one line denial of Robert Laity’s appeal of his loss in the DC Circuit. See page 3.
I have consistently predicted that Laity’s appeal would be doomed for many reasons. In a comment at the Post & Email Laity has said he would file a petition for rehearing. This too will be denied.
Laity’s petition for rehearing was added to the Supreme Court case docket today and is dated June 16. There is a slim chance it could be on the agenda for the conference on Thursday but more likely it will be on the agenda for the first conference of the new term in October.
It is six pages long and merely restates Laity’s previous claims. It will therefore be denied.
Robert Laity’s futile appeal of his DC Circuit denial in Laity v Harris has now been docketed at the Supreme Court. The Clerk assigned case number 20-1503 to the petition for writ for certiorari. Vice President Harris has until May 28th to respond. Past practice would indicate that the right to respond will be waived. That means the case would be scheduled for conference around June 10th or June 17th with the denial showing up on the corresponding following Monday (June 14th or 21st).
Laity covers the same ground that we have seen before. He bemoans that we are suffering under a veritable epidemic of ineligible candidates – Obama, McCain, Cruz, Rubio, Jindal, and Harris. Oh My! He claims Harris is not eligible but never bothers to tell the Court why. I suppose we are to take his word for that. He tries to address standing. He claims the lower courts erred when he was denied on grounds of standing. As for his injury he wrote this:
The injury I have suffered is both concrete, particularized, actual and imminent. There is a nexus between the Injury and the illegal conduct of Kamala Devi Harris in usurping the Vice-Presidency. A favorable and appropriate decision and remedy for the Petitioner by this court will redress the injury.
In other words the fact that Laity does not like Harris or her politics is causing him a great injury. He then goes on to argue that standing is not in the Constitution in the first place and was invented by the courts. (I suppose he has never read Article III where the federal courts are deemed to be courts of limited jurisdiction confined to actual cases and controversies.) I guess Laity knows the argument that he has standing is beyond lame and not likely to succeed so let’s just get rid of that little requirement.
Laity also filed a 64 page Appendix that includes the amicus brief filed at the very last minute in Laity’s case in DC District Court filed by a formerly unknown U. S. Allegiance Institute represented by attorneys William J, Olson and Mario Apuzzo. Yes that Mario Apuzzo.
On March 18th the DC Court of Appeals denied Robert Laity’s request for a hearing in en banc in his quo warranto case against Vice President Kamala Harris. A hearing en banc is a rehearing of an appeal recently rejected by a three judge panel by the full court. The ruling was brief and indicated not one of the members of the court spoke up in favor of the rehearing. In other words the rejection was unanimous.
At the same time the three judge panel discharged the order to show cause why Laity should not be sanctioned for filing a frivolous appeal. This means Laity is off the hook for monetary sanctions but the court said that his appeal was still frivolous and that if he ever brought another frivolous case before the court he would not be so fortunate.
Here are the two orders:
Laity left a comment at the Birther blog Post & Email in which he vowed to press on with an appeal to the Supreme Court. As the old saying goes his chances of success there are slim and none and slim left town.
I thought I would discuss comment moderation in a brief post. First I am against comment moderation in general. I think requiring that every comment be moderated hinders open discussion. Blogs like the Post & Email moderate every comment. Sharon Rondeau unevenly and unfairly IMO allows people who agree with her to make threats and post all sorts of false claims. On the other hand I have seen her not allow through factual and documented comments that contain content that go against Birther memes.
The setting I use here sends your first comment into moderation and if it is approved you should be able to comment without it going into moderation. I have noticed lately some comments are still going into moderation that should not. WordPress.com uses Akismet to filter out comments from known spammers. I have seen rare instances where some legitimate comments were trapped by Akismet. I try to check the spam folder frequently to approve any that get caught wrongly.
Comments that contain too many links will also be flagged and moved to the spam folder. That number is is set pretty high so it should not be an issue with legitimate comments.
If you comment using a different email, WordPress.com ID, or using something like Twitter for logging in then that will be treated as a new comment and placed into the moderation folder.
If I continue to see comments going into moderation I will report it to WordPress.com
The comment policy for the RC Radio Blog remains unchanged:
The views expressed in comments may or may not reflect those of the owner(s) of this blog or the Reality Check Radio program on BlogTalk radio. Comments posted from first time commneters are moderated and additional comments will be moderated until one is approved. After the initial approval comments are not moderated unless they violate this comment policy. Comments may be identified as spam if they contain too many links. Comments that are abusive, profane, or left by those who appear not to be interested in honest discussion may be placed in moderation or deleted. The owner(s) reserves the right to edit or delete comments. Comments become the property of the RC Radio blog. Any edits will be noted in the comments.
I will not post or divulge identifying information such as email addresses and IP addresses without consent of the commenter. However, comments containing threats may be reported to the proper authorities along with identifying information.
This is a list of the election cases still active at SCOTUS. Thanks to SLQ at the Fogbow for adding one I missed. There may be more but this is what I could find yesterday. Three are appeals from state supreme courts. Four are appeals from federal circuit courts.
The only case that might be heard is 20-542. That is the one on the three day extension for receiving mail in ballots in Pennsylvania. Justice Alito issued an order to kept such ballots separated in case plaintiffs prevail. This case will not change the outcome in Pennsylvania.
A link to the docket for each case is provided. If I missed any cases please provide the case number in a comment.
Update January 19, 2021:
Thanks to Marc Elias. I added 20-816, which is the last of the Georgia Kraken cases.
Update February 22, 2021:
The court denied all the remaining petitions except case number 20-883 which is scheduled for conference on March 5. It is an appeal from a case file by Donald Trump against the Wisconsin Elections Commission. Four cases from Pennsylvania were combined and denied with Justices Thomas, Alito, and Gorsuch dissenting.
Updated March 1, 2021:
I added two more Kraken cases one in Arizona and one in Wisconsin that I had missed. Both were denied in the order published today.
Updated March 8, 2021:
Trump’s case against the Wisconsin Election Commission and a petition for mandamus by L. Lin Wood against Georgia were both denied. No other cases are pending as far as I know.
Jake Corman, et al., Petitioners v. Pennsylvania Democratic Party, et al.
Appeal from the Supreme Court of Pennsylvania filed by Republicans in the Pennsylvania Legislature. Whether PA Supreme Court erred in allowing votes received up to three days after election day to count 2/22 Certiorari denied
L. Lin Wood, Jr., Petitioner v. Brad Raffensperger, Georgia Secretary of State, et al.
Appeal from the Eleventh Circuit. December 8th: Petition for a writ of certiorari filed. (Response due January 11, 2021) No response or waiver docketed yet. Updated 1/27: The case is distributed for conference on 2/19. Updated 2/22: Certorari Denied
Kelli Ward, Petitioner v. Constance Jackson, et al.
Appeal from Supreme Court of Arizona. Petition for a writ of certiorari filed. (Response due January 14, 2021) No response or waiver on docket. Motion to expedite denied on January 11. Update on 1/27: Distributed for conference on 2/19. Updated 2/22: Certiorari Denied
Timothy King, et al., Petitioners v. Gretchen Whitmer, Governor of Michigan, et al.
Appeal from Sixth Circuit. December 11: Petition for a writ of certiorari before judgment filed. (Response due January 14, 2021). Responses from Gov. Whitmer and City of Detroit filed on January 14. Updated 2/3: Distributed for conference on 2/19. Updated 2/22: Certiorari Denied
Filed December 11th. Petition for a writ of mandamus filed. (Response due January 14, 2021) January 11th: Motion to expedite denied. January 19th: Joint Stipulation to Dismiss Appeal of Coreco Ja’Qan Pearson, et al. submitted. This one is dead. Updated 2/19/2021: Case dismissed on 2/11/2021 under Rule 46 (Voluntary dismissal by all parties involved).
Donald J. Trump for President, Inc., Petitioner v. Veronica Degraffenreid, Acting Secretary of Pennsylvania, et al.
Appeal from Supreme Court of Pennsylvania on whether PA Supreme Court erred in allowing votes received up to three days after election day to count. Docketed 12/23. Response due 1/22/2021. 1/14/2021 Waiver of right to respond filed by Kathy Boockvar Secretary of the Commonwealth of Pennsylvania. 1/27/2021 DISTRIBUTED for Conference of 2/19/2021. 2/22/2021 Petition Denied
Donald J. Trump, et al., Petitioners v. Joseph R. Biden, et al.
Appeal from Supreme Court of Wisconsin. December 29: Petition for a writ of certiorari filed. (Response due February 3, 2021). Motion to Expedite denied January 11. January 15: Waiver of Joseph R. Biden, et al. of right to respond submitted. Updated 1/25: Distributed for conference on 2/19. Updated 2/22: Certiorari Denied
Donald J. Trump, Petitioner v. Wisconsin Elections Commission, et al.
Appeal from the Seventh Circuit. December 30: Petition for a writ of certiorari filed. (Response due February 3, 2021). January 15: Waiver of Wisconsin Elections Commission, et al. of right to respond submitted. Update: The DNC and other members of the WEC waived their rights to respond this week, aka the kiss of death. Updated 2/9/2021. Trump’s attorneys filed a supplemental brief claiming that some issues in the case are not moot after Biden’s Inauguration. They are obviously trying to head off a dismissal of the case on mootness. Updated 2/19/2021: Distributed for conference on 3/5/2021 Updated 3/8/2021: Certiorari Denied
The appeal was docketed on November 19th. I believe these are the key documents in the case:
Laity submitted a Statement of Issues on November 20th that was docketed on November 25th:
Laity filed a Motion to Expedite on November 23rd that was docketed on November 30th:
Beth Brinkmann entered an appearance for Vice President Elect Harris and on November 30th filed a Motion for Summary Affirmance:
Laity mailed an opposition in response to the Motion for Summary Affrimance on December 1st that was docketed on December 11th.
On December 16th Harris’ Attorney Beth Brinkmann filed a reply to Laity’s response:
Finally on January 3rd Laity filed a copy of a letter he had sent to Acting Attorney General Rosen renewing his notice of quo warranto against Kamala Harris that he had sent to AG Bill Barr in August.
I hope this all makes sense. It took a bit of work to get the documents in order since at least at the beginning Laity was mailing documents while the attorney for Vice President Elect Harris was filing electronically.
I might add some comments on the filings later.
Updated 2/8/2021: Laity’s appeal was dismissed unanimously by a three judge panel. They also issued an order to show cause why sanctions should not be imposed for filing a frivolous appeal. Laity has 30 days to respond.
Updated 2/9/2021: Laity already filed a reply. A copy was made available at the Post & Email blog.
In 21 days Mike Pence will have to be the one. He will have to sit as chair of a joint session of the new Congress that counts the electoral votes to officially “kill” any hope for a second term for Donald J. Trump. Vice President Pence as have all the vice presidents who ran for either president or vice president and failed will preside over his own loss and the loss of his boss. It is largely ceremonial but is has to be done as the last Constitutionally prescribed action of the process by which we choose our president and vice president every four years.
The last time we had this identical situation was in 1993 when Vice President Dan Quayle, from Indiana just like Mike Pence, presided over the loss of his boss George H. W. Bush and himself to Bill Clinton and Al Gore, respectively. I was surprised to find there is actually video of that session.
There have also been similar joint sessions where a vice president had to preside over their own loss when vying for the top job. One of the more memorable was in 2001 when after he had lost Florida by a little over 500 votes Vice President Al Gore had to preside not only over the count but rule several times that objections raised by members of the House black caucus were out of order. For an objection to be valid it has to be submitted in writing and signed by at least one member from each body. In 2001 no senator chose to sign an objection to the Florida slate of electors.
Another session that followers of the Birther movement might recall happened on January 8, 2009 when outgoing Vice President Dick Cheney presided over the session that confirmed Barack Obama as President and Joe Biden as Vice President. Birthers claimed that Cheney failed to call for objections as required in the law. Of course there were no objections because if there were they would have been submitted beforehand in writing and signed by at least one member of each body. Of course facts never got in the way of a Birther conspiracy. The claim that Cheney was in on the fix was included in several Birther lawsuits.
I will be watching on January 6th when Pence takes the chair. We he try to pull some shenanigans? It’s not likely. There are rules and laws in place that would prevent him from going rogue. Will there be any objections? We know there are Republican members of the House who are ready to object. However yesterday Senate Majority Leader Mitch McConnell signaled to his fellow Republican senators that objections would not be welcomed by the leadership.
Even if there are objections filed against electors from states won by Biden and Harris nothing happens unless a majority of each body, voting separately upholds the objection. It is not going to happen so I will not take time to speculate where it goes if an objection is upheld. A majority of Republicans in the Senate would not want to explain to millions of voters in Pennsylvania, Michigan, Wisconsin, Georgia, Nevada, or Arizona why their votes were not counted.
Joe Biden will be certified as the President and Kamala Harris will be certified as Vice President on January 6th. Mike Pence knows that. If he wants any future in politics he knows what he has to do. The kill has to be clean and neat. Estne officium tuum exsequaris Mr. Pence.
Robert Laity from Tonawanda, NY filed a complaint against Joe Biden’s running mate Kamala Harris in which he claims she is not eligible to serve because she is not a natural born citizen. I have written about Mr. Laity before. He had the last active Birther case in the 2016 election cycle. It was a ballot challenge filed against Ted Cruz in New York.
Laity filed his complaint in the US District Court for the District of Columbia. It was docketed on September 4th and assigned to Judge Emmet Sullivan. You might have read about Judge Sullivan in the news lately. He was the Judge in the Michael Flynn perjury case and is taking on the DoJ’s attempt to drop the case against Flynn even though he pleaded guilty twice.
There are other problems with this filing. First, Laity cites no statute in his petition. He claims he is filing whatever this is under his “First Amendment right to petition the government for a redress of grievances”. Does anyone wish to guess how far that will go with this court?
The title of Laity’s complaint is United States, ex rel, Robert C. Laity v US Senator Kamala Devi Harris. This implies Laity is filing a qui tam action under the federal False Claims Act. This is similar to the tactic that Phil Berg tried against Barack Obama. Under the False Claims Act. The False Claims Act was passed during the Civil War to allow whistle-blowers to report fraud being perpetrated on the government and be rewarded with a portion of the damages recovered by the government if fraud is eventually found to have occurred. The term “whistle-blower” was not in use at the time and instead the person reporting the fraud was called a “relator” in the law.
Laity does not seek damages in his action as Phil Berg did. Berg filed his qui tam action to attempt to recover a portion of President Obama’s salary as President. His case was of course dismissed. Instead Laity is asking for the court to issue an injunction prohibiting Kamala Harris from occupying the office of Vice President this election cycle and be permanently enjoined from ever occupying the office.
Federal courts may issue injunctive relief in two forms, a temporary restraining order (TRO), or a preliminary injunction. However, the plaintiff seeking such relief must satisfy a four factor test in either case:
that he or she is likely to succeed on the merits of his claims;
that he or she is likely to suffer irreparable harm without preliminary relief;
the balance of equities between the parties support an injunction; and
the injunction is in the public interest.
Laity meets none of the four requirements for an injunction. He must meet all four. Laity’s complaint fails to address any of these requirements.
The bottom line is that Laity’s complaint is either premature as a quo warranto action or is a request for a TRO without justifications and will be dismissed even if he follows the rules for service and other rules to get that far. The case will fail as has every other case Laity and every other Birther has filed.
Yesterday Attorney Benjamin J. Razi of the law firm Covington & Burlington, LLP, filed a motion to dismiss Laity’s lawsuit on behalf of defendant Kamala Harris. Thanks to commenter “tbfreeman” for posting a link to the Defendant’s Memorandum of Law in Support of the Motion to Dismiss. Here it is
The memorandum is well written and cites several Obama era Birther cases as precedents including Kerchner v Obama, Berg v Obama, Hollander v McCain, Tisdale v Obama, and Ankeny v. Governor of State of Ind.
Mr. Razi also cites Wong Kim Ark:
The seminal case is Wong Kim Ark. There, the Supreme Court addressed whether the U.S.-born child of Chinese parents was entitled to birthright citizenship under the Fourteenth Amendment’s Citizenship Clause, which provides that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States . . . .” United States v. Wong Kim Ark, 169 U.S. 649, 653 (1898).3 The Court answered affirmatively, explaining that, subject to exceptions inapplicable to Senator Harris, “[t]he fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens . . . .” Id. at 693 (emphasis added). The Court held that “[e]very person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization,” regardless of the person’s parents’ citizenship or immigration status. Id. at 704.
The memorandum also addresses Laity’s misreading of Minor v Happersett:
Laity’s citation to Minor v. Happersett is inapposite. That decision, handed down 25 years before Wong Kim Ark, stated in dictum that it was unsettled whether the U.S.-born children of foreign parents are natural born citizens. 88 U.S. 162, 167 (1874). The Court definitively answered that question in Wong Kim Ark; and it reaffirmed its holding in Plyler and Rios-Pineda. Because Laity’s Complaint acknowledges that Senator Harris was born in the United States (of parents who were neither foreign diplomats nor enemy soldiers), and because that is all that is required to be a “natural born citizen,” Laity’s Complaint fails to state a claim on which relief can be granted and should be dismissed.
What a wonderful and appropriate use of the word “inapposite”! Finally Harris’ attorney asks the court to dismiss the case with prejudice:
Dismissal should be with prejudice, which is warranted “when a trial court ‘determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.’” Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996) (quoting Jarrell v. United States Postal Serv., 753 F.2d 1088, 1091 (D.C. Cir. 1985)). That is the case here. There are no other allegations Laity could add to save his claim. The Complaint acknowledges that Senator Harris was born in the United States and, as discussed above, nothing further is required to be a “natural born citizen.” The Court should not permit this frivolous case to proceed any further. See Tilsdale, 2012 WL 7856823, at *1 (dismissing claim that Barack Obama was ineligible for presidency with prejudice because “allowing leave to refile would yield the same result, given the underlying premise of [plaintiff’s] claim”).
I predict this request will be fulfilled fairly quickly.
Two additional documents were filed this week. Laity filed his own “Memorandum of Law in Support of Motion in Opposition to Defendant’s Motion to Dismiss”. Laity finally gets around to citing some actual cases, there are citations of Minor v Happersett and the Venus of course. It’s 12 pages. He also tries to pull a fast one and quote from the 1797 translation of de Vattel and then says Vattel was translated to English in 1760. While that’s technically correct the 1760 version never used the term natural born citizen. The translation available in 1760 left the French term indigenes untranslated.
Here is Laity’s motion, which was docketed on 11/2:
The attorney for Senator Harris filed a quick reply only three pages long on 11/5:
Laity’s case was dismissed due to lack of standing: