I stirred up quite a hornets nest at Mario Apuzzo’s blog by posting an item that the Democratic Party in Tennessee had cited the infamous Kerchner v Obama case in a motion for sanctions against attorney Van Irion and the Liberty Legal Foundation that was filed in a case in the Eastern District of Tennessee. I mentioned that the defendants had cited the Kerchner case as an example of a case where sanctions had been imposed against the plaintiffs for filing a frivolous case challenging President Obama’s eligibility. Here is what I posted:
Mario got a shout out (along with C. Kerchner) in the Defendant’s motion for sanctions against John Dummett and the Liberty Legal Foundation in Tennessee. The motion for the TN Democratic Party cited Kerchner as an example of a frivolous case where sanctions were imposed:
“As the Court is well aware, this is obviously not the first time that President Obama’s political foes have pursued these frivolous claims. No less than eighteen different cases in various federal and state tribunals have been filed challenging President Obama’s qualifications to hold the office of President of the United States,1 and, as should be abundantly obvious, none of these cases have succeeded. All that have reached a decision have been dismissed on the pleadings or on the merits, and some have resulted in sanctions against those bringing these types of claims. See e.g., Kerchner, 612 F.3d 204 (sanctioning attempts to challenge President Obama’s eligibility to hold the Office of the President); Rhodes v. Macdonald, 2009 U.S. Dist. LEXIS 85485 (M.D. Ga. 2009) (same); see also Ankeny v. Governor, 916 N.E.2d 678, 684-89 (Ind. Ct. App. 2008) (finding that President Obama is a natural born citizen qualified to hold the office of President of the United States); Farrar, et. al. v. Obama, Dkt. No. 1215136-60 (Ga. Secretary of State, 2012) (same)”
This will be your legacy: forever branded as an example of frivolous and vexatious litigant.
Mario then proceeded into a vehement attack upon me and called me a liar. He took offense because he claims he was not sanctioned in Kerchner. (The Third Circuit found his appeal to be frivolous and issued an Order to Show Cause why Apuzzo should not be made to pay damages to the defendants. After Apuzzo filed a long brief claiming he had researched standing diligently they discharged the OSC). If you will notice I essentially repeated what the defendants had said. I was only pointing out to Apuzzo that Kerchner had once again been cited as an example of a completely frivolous case questioning President Obama’s eligibility. Apuzzo’s partner in frivolity Charles Kerchner and other posters jumped in the fray and repeated the lie that I am a professor at the University of Connecticut and that is somehow supposed to make me an evil person.
I have chosen not to post at Mario’s blog any further. It is pointless. Despite the fact that I called him out for defaming Professor Rockwell, who I am not, he continues to push the blatant lie.
Let’s get back to the sanction issue in Kerchner. In a published opinion on behalf of the Third Circuit panel Judge Delores K. Slovitar had this to say:
Because we have decided that this appeal is frivolous, we will order counsel for appellants to show cause why just damages and costs should not be imposed.
An important purpose [of a damages award] is to discourage litigants from unnecessarily wasting their opponents’ time and resources…Appellants had ample notice that this appeal had no merit. They should have been aware that we rejected almost identical claims in Berg, as have courts in other jurisdictions.
The court found the appeal was frivolous, without merit, and that Apuzzo should have known from Berg v Obama that the appeal and the case had no merit. So much for Apuzzo’s diligent research. He failed to even cite Berg in his appellant opening brief. This is weighty stuff. Any reputable attorney would be mortified to have the US Court of Appeals say those things about your case. But not Apuzzo. He zeroes in on the fact that after filing his usual less than concise answer to the Order to Show cause that the court chose to discharge the order for monetary sanctions against him.
What does discharge mean? In legal terms it means that the debt is satisfied. It is not the same as vacating the order. It meant that the main finding that the appeal was frivolous under FRAP Rule 38 stands and remains published but Apuzzo/Kerchner did not have to pay for costs.
This entire exchange got me thinking about Mario Apuzzo’s overall record as a Birther attorney. I put together this list with a small bit of research. The reader is encouraged to send me any additions or corrections. My source for most of the data is the excellent “Birther Scorecard” that was created by Tesibra.
Paige v State of Vermont, SoS Condos, and Barack Obama – Vermont Ballot Challenge -Petition to the Supreme Court of the United States”Petition DENIED”
|2009||Kerchner et al v. Obama et al Charles F. KerchnerD.N.J. (Federal)||Dismissed|
|2010||Kerchner et al v. Obama et al Charles F. Kerchner 3rd Circuit Court of Appeals||DISMISSAL AFFIRMED Published Opinion – Appeal ruled frivolous under FRAP 38. Show Cause (Sanctions) Order Issued|
|2010||Kerchner et al v. Obama et al Charles F. Kerchner Supreme Court of the US||Writ for Certiorari Denied|
|2012||Kerchner et al v. Obama et al Charles F. Kerchner Dale A. Laudenslager – Pennsylvania State Commonwealth Court||Apuzzo application for admission pro vice denied. Amended application for admission denied. Apuzzo filed a 199 page amicus brief. Case dismissed.|
|2012||Tisdale v Obama4th Circuit Court of Appeals (District court in VA dismissed sua sponte)||Apuzzo unable to find sponsor for pro hac vice application. Filed 52 page amicus brief. Dismissal affirmed.|
|2012||Strunk v NY State Board of Elections et al
NY State Supreme Court Kings County, NY
|Apuzzo filed Amicus brief. (It was actually a blog post by Appuzo that Strunk sent to the court and Judge Schack chose to treat is an amicus brief). Case dismissed. Sanctions and fees imposed on plaintiff Strunk|
|2012||Purpura et al v. Obama Nicholas E. Purpura Theodore T.Moran – New Jersey Ballot Challenge||Apuzzo argued before ALJ Jeff Masin Challenge dismissed – “case without merit.”SoS Affirmed dismissal|
|2012||Purpura et al v. Obama Nicholas E. Purpura Theodore T.Moran – New Jersey Ballot Challenge – Appeal to New Jersey Superior Court||Apuzzo argued before three judge panel. Appeal dismissed “case without merit”|
|2012||Purpura et al v. Obama Nicholas E. Purpura Theodore T.Moran – New Jersey Ballot Challenge – Appeal to New Jersey Supreme Court||“Petition for certification denied with costs.”|
|2012||Paige v State of Vermont, SoS Condos, and Barack Obama – Vermont Ballot Challenge – Vermont Superior Court||“Petition Denied”|
|2013||Paige v State of Vermont, SoS Condos, and Barack Obama – Vermont Ballot Challenge – Appeal to Vermont Supreme Court||“Appeal dismissed as moot”|
|Paige v State of Vermont, SoS Condos, and Barack Obama – Vermont Ballot Challenge -Petition to the Supreme Court of the United States||“Petition DENIED”|
|Paige v Condos – Vermont Superior Court, Ballot Challenge against Cruz, Rubio and Two Other Candidates. (Paige pro se but with assistance from Apuzzo)||“Challenge DENIED”|
|Powers v Cruz (Combined with Williams v Cruz) – New Jersey Ballot Challenge||“Challenge DENIED. Ted Cruz is eligible and meets the requirements of Article II”|
|Elliott v Cruz – Petition to the Supreme Court of the United States (appeal of denial of Pennsylvania ballot challenge, Apuzzo wrote petition)||Petition for Writ for Certiorari pending|
So there in all its glory is Mario Apuzzo’s perfect record in Birther cases. He is 0 for
6 7* with one appeal pending in which he filed an amicus brief. That would be the Tisdale case in Virgina that was dismissed sua sponte by a judge in the Virginia district federal court in just days after it was filed. I predict without reservation that 0 for 7 is in his future. This is an attorney who holds himself up as a Constitutional expert on the definition of a natural born citizen. He named his blog “Natural Born Citizen – A Place to Ask Questions and Get the Right Answers“. Are you kidding me? The record would say that the way to get the right answer is to ask Mario and assume the opposite is correct.
*[Updated 6/4/2012: A RC Radio tip of the cap to Intrepid Reporter/Observer who reminded me that Mario filed an Amicus Brief on behalf of Christopher Earl Strunk in esse copyright patent pending in his case against everyone in New York. Apuzzo wrote a blog post in opposition to sanctions and Strunk filed it with the court. The blog post had the usually effectiveness of all of Mario’s briefs. Strunk is saddled with costs it appears. I have updated the case list and totals to reflect the addition. Is it fair to count this case as a loss? I think so and I am the decider. ]
[Updated 6/5/2012: The 4th Circuit just issued an order denying the appeal in Tisdale v Obama. I will be updating the article to reflect this shortly.]
[Updates 9/12/2012: On September 5 the New Jersey Supreme Court denied “denied with costs” the petition for certification of the appeal in Purpura et. al. v Obama. This denial keeps Apuzzo’s record in Birther cases perfect at 0 for 9. ]
[Updated 10/18/2013: The Vermont State Supreme Court dismissed the appeal of the lower court denial of a ballot challenge filed by H. Brook Paige. Attorney Mario Apuzzo had assisted Paige throughout the case and is actually listed on the most current denial by the Vermont Supreme Court. This denial makes Apuzzo’s record a nice even 0 for 10.]
[Updated 5/23/2014: In Paige v Vermont, et. al. The United States Supreme Court denied the Petition for Writ of Certiorari filed by Mario Apuzzo on behalf of Brooke Paige. This denial makes Apuzzo’s record
a nice even 0 for 11.]
[Updated 7/19/2016: I have added Apuzzo’s activity in the 2016 election cycle with challenges against Ted Cruz. With the denials in Vermont and New Jersey Apuzzo’s record in eligibility cases is now 0 for 13!]
[Updated 7/22/2016: I found I had omitted the lower court case in Paige v Vermont in 2012. The score stands at 0 for 14 with 15 pending.]