VOL. 18 ISSUE NO. 30   | JULY 28 – AUGUST 3, 2010


Third Circuit backs down from frivolous charge in Obama eligibility case

‘I did not believe that I was precluded from advancing my clients’ rights … because the Third Circuit had decided the Berg case’

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PHILADELPIA, Penn. – As we reported earlier this month, the Third Circuit Court of Appeals affirmed the U.S. District Court for the District of New Jersey’s ruling dismissing Charles F. Kerchner v. Barack Hussein Obama due to lack of standing.

dolores sloviter
Dolores K. Sloviter
However, the Third Circuit panel not only agreed the appellants lacked standing to challenge Obama’s eligibility as a natural born citizen, the opinion, written by Judge Dolores K. Sloviter, stated, “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.”

Attorney Mario Apuzzo, representing the appellants, was given 14 days to respond.

On July 19, Apuzzo submitted his response.

Mario Apuzzo
Apuzzo said he was ordered to explain why the court “should not find me liable for just damages and costs suffered by the defendants, not in having to defend against the merits of plaintiffs’ underlying claims that Putative President Obama is not an Article II ‘natural born Citizen,’ that he has yet to conclusively prove that he was born in Hawaii, that Congress failed to exercise its constitutional duty to properly vet and investigate Obama’s ‘natural born Citizen’ status, and that former Vice President and President of the Senate, Dick Cheney, and current Speaker of the House, Nancy Pelosi, were complicit in that Congressional failure, but rather in having to defend against what the court considers to be a ‘frivolous’ appeal of the district court’s dismissal of their claims on the ground of Article III standing.”

Because the plaintiffs failed to show they had standing, the district court stated it did not need to address their contention that “the original common law definition of an Article II ‘natural born Citizen’ … is a child born in the country to a United States citizen mother and father.”

In the order to show cause why Apuzzo shouldn’t be required to pay damages and costs for filing a ‘frivolous appeal,’ Sloviter wrote, “Appellants had ample notice that this appeal had no merit. They should have been aware that we rejected almost identical claims in Berg, as courts have in other jurisdictions.”

Even though the Third Circuit acknowledged the district court did not “explicitly” state the plaintiffs’ claims were frivolous, Apuzzo said the court believes, nonetheless, that he had “meaningful notice that the appeal was frivolous” based on the decisions of other courts, which dealt with “similar legal theories” and because they “imposed sanctions on those lawyers for bringing forth such claims.”

Apuzzo pointed out the court agreed that the factual allegations of the complaint are to be accepted as true on defendants’ motion to dismiss for lack of standing and stated, “Hense, the court would have accepted as true plaintiffs’ well-pled allegations that Obama has not conclusively proven that he was born in Hawaii and that he is not an Article II ‘natural born citizen.’ The court would also have to accept plaintiffs’ well-pled allegations that Congress failed to properly vet and investigate Obama under its 20th Amendment powers, and that former Vice President and Senate President Dick Cheney, and current Speaker of the House Nancy Pelosi, were complicit in that failure.”

He said it was also telling that defendants, neither in the district court nor on appeal disputed the allegations that Obama does not meet the definition of an Article II “natural born Citizen” and that he has yet to conclusively prove he was born in Hawaii.

“It is also significant that no court in the United States that has rendered any decision on the Obama eligibility issue has granted to any plaintiff any discovery which would show that these allegations are not true. Accepting these allegations as true is important because these accepted facts go to the plaintiffs’ establishing an injury in fact and therefore standing,” wrote Apuzzo.

He stated there is no clear cut guidance for lawyers to follow on standing and no U.S. Supreme Court precedent on the question of a citizen’s standing to enforce Article II’s “natural born Citizen” clause.

And, while there were no Supreme Court standing cases within the Article II presidential eligibility context, Apuzzo said the Supreme Court and lower court cases that do exist on standing “have for various reasons come to different and conflicting conclusions or rested their decisions on very narrow grounds regarding whether a litigant has or does not have standing.”

As far as the Berg case being a block to filing an appeal on behalf of Kerchner, Apuzzo stated, “I did not believe that I was precluded from advancing my clients’ rights through the judicial system because the Third Circuit had decided the Berg case, for precedent may be either distinguished or overruled.”

And, while the court found that the Kerchner case made “almost” identical claims as Berg, Apuzzo questioned how something “almost” identical could be measured by any objective standard.

Apuzzo argued the facts in Kerchner were not “almost” identical to the Berg facts but were, in fact, significantly different.

He also cited Barnett v. Obama, in which the court stated, “There may very well be a legitimate role for the judiciary to interpret whether the natural born citizen requirement has been satisfied in the case of a presidential candidate who has not already won the election and taken office.”

 Apuzzo stated, “The Kerchner case presents just this exact case. So as we can see from all these factors, the Barnett case would not have given me any indication that filing my appeal of the Kerchner case was frivolous. On the contrary, the decision gave me hope that we would get standing because our case did not suffer from the various defects which that case had.”

Apuzzo went on to outline the differences between Kerchner and the various other eligibility cases filed.

In conclusion, Apuzzo said the record clearly shows he did not violate New Jersey Rule of Professional Conduct 3.3(A)(3) and the court should correct its decision by removing any implication that he did.

On July 22, Sloviter issued an order stating, “In response [to the order to show cause], Mario Apuzzo filed a 95-page statement that contains, inter alia, numerous statements directed to the merits of this court’s opinion, which the court finds unpersuasive. His request that the court reconsider its opinion is denied, as the appropriate procedure for that issue is through a petition for rehearing. However, based on Mr. Apuzzo’s explanation of his efforts to research the applicable law on standing, we hereby discharge the order to show cause.”

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