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.
On June 11th the Constitution Association filed additional motions including an amended response to the government’s ex parte motion, a request for a hearing, and a request for recognition as class status. The latter two motions were docketed along with notices from the court that they contained procedural errors. (See the docket for more details.)
A decision on the ex parte motion to dismiss is pending.
Most of the court documents are available at Court Listener
As was noted in the comments the case was dismissed in the district court sua sponte on September 28, 2021:
ORDER SUA SPONTE DISMISSING COMPLAINT FOR LACK OF SUBJECT-MATTER JURISDICTION
Rather than posting a separate article I will cover the appeal in the Ninth Circuit here. The docket is posted on Justia and is a bit of a mess thanks to the ineptness of the fellows at the Constitution Association and their attorney.
I have two documents from the appeal courtesy of reader Northland10:
The first was docketed as the opening brief by George Rombach:
Initial Rombach Petition filed on January 25, 2022
The second was docketed as an amended complaint filed by attorney Dennis Rasmussen. This filing added the Constitution Association, Inc. as an appellant.
Amended Constitution Association Brief filed on February 3, 2022
Kamala Harris has requested an extension of time until March 28, 2022 to file a response (which will likely be filed by the US Attorney).
The US attorney filed an answer in the appeal on 3/28/2022:
George Rambach filed a reply on 4/15/2022.
The Ninth Circuit denied the appeal on January 18th in an unpublished opinion. A three judge panel consisting of Judges GRABER, PAEZ, and NGUYEN issued the dismissal and upheld the district court ruling. I will add a link when one becomes available.
Here is the order from the Ninth Circuit: https://rcradioblog.files.wordpress.com/2023/01/21-56287-2023-01-26.pdf
Rambach can now request an en banc hearing in the Ninth or petition the Supreme Court to hear the case. Either option has little chance of succeeding.
I just checked the docket and there seems to be no new activity in this case.
Still no activity.
It is as if the court has better things to do than dismiss this neverwas.
Court’s order is up: Dismissed (no jurisdiction), but without prejudice to them filing an amended complaint within 30 days.
Interesting. I guess the default is history. The judge listed all kinds of reasons why the lawsuit is hopeless yet is giving them a second chance. I also notice the judge said the clerk granted the default. Methinks a certain clerk screwed up.
Here is a link to the ruling from 9/27:
Click to access gov.uscourts.casd.694824.18.0.pdf
We have passed the 30 day deadline for the Plaintiffs to file an amended complaint. There is nothing new on Court Listener as of this morning.
Judgment entered. District court case officially over.
(But there’s still time to appeal, if they want that.)
Still dismissed w/o prejudice so I assume that means they could file all over again?
Click to access gov.uscourts.casd.694824.19.0.pdf
The Constitution Association website has not updated the case status. The last entry was posted in April when the Vice President had supposedly been served. You can still donate money if you wish though. 😆
As far as I know this was the last unresolved Harris Birther lawsuit from the 2020 election cycle.
They filed their notice of appeal, so there’s off to the 9th Circuit now.
Indeed, thanks for catching this filing. They must have given up on the Trump appointee. They have no chance in the Ninth Circuit.
So maybe it will be finished during President Harris’s term. The 9th is slow.
It would be great if the Ninth rejected the appeal and sent the case back to DC with instructions to dismiss with prejudice.
The 9th Circuit isn’t happy with the boys: It told them their clubhouse (i.e., their Constitution Association) must be represented by an attorney. So they need to get one, quick.
This attorney could also represent each of the boys well. But if they don’t get an attorney, then the 9th is going to dismiss the association and make the boys go back to the district court, and each file notices of appeal in their own names.
Meanwhile, their opening brief is due in January. Tick tock!
I posted both orders over at the Fogbow earlier. I will add them here later.
Edit: Here are the two orders issued Friday in the appeal:
Order requiring the plaintiffs to have an attorney enter an appearance on behalf of the CA, Inc.
So it appears Constitution Association’s attorney and George Rombach (one of its members) filed substantially similar opening briefs in the 9th. The other named appellants will be dismissed if they don’t file something.
The briefs that were filed are horrible and say nothing new, or even interesting.
I updated the article to reflect the status of the appeal in the Ninth Circuit. The CA fellows kind of made a royal mess of the filings but when the dust settled they finally were able to get the initial complaint docketed under Rombach’s name and an amended brief docketed under the CA, Inc. name with Dennis Rasmussen listed as the attorney. VP Kamala Harris has filed to have the time extended to reply to March 28th.
The two filings are essentially the same nonsense repeated. They argue that Grinols was wrongly decided and that argument will get them exactly nowhere. Why? Because the Ninth Circuit already upheld the ruling in Grinols that the courts cannot undo an election due to the political question doctrine.
George Rambach filed a reply to the US attorney’s filing. I added a link at the end of the article. Nothing from the court on oral argument yet.
Thank you to bob at the Fogbow for pointing out that the latest reply is from George Rombach and not the attorney representing the Constitution Association, Inc. I have edited the article to reflect that. The CA has apparently let time run out to file their own reply.
Rombach accuses the US Attorney of falsely stating that Harris was not served. Of course service was contested and defendant never conceded that point. The lower court never ruled on service since the case was dismissed.
Rombach claims Grinols was improperly decided and that the district court should not have relied on Grinols to invoke the political question doctrine as a reason to dismiss his case. Rombach fails to mention that when the Ninth upheld Grinols in a short unpublished opinion based on the briefs it only mentioned mootness as a reason. The Ninth therefore never ruled on any other part of the Grinols ruling since mootness was an adequate reason.
Rombach would have done well to address mootness instead of wasting time in a page after page discussion of enumeration, an issue that was not argued in Grinols.
Rombach also fails to address Drake v Obama, another Ninth Circuit case that is fatal to him. Of course the US Attorney cites the case.
I predict a similar fate for Rombach. The Ninth will issue I short dismissal w/o oral argument.
I updated the article to reflect the dismissal in the Ninth Circuit on January 18th.
I read the opinion from the Ninth Circuit last night and the three judge panel stuck in a little zinger at the end. They chastised the CA for trying to introduce new material in their appeal. That is not allowed. It reminded me that Kari Lake is doing something similar in Arizona in her appeal except she is using Twitter.