Now go forth and read Phil's brief
, and see if there's anything at all that he could have left out ...
Well, for starters, he could have left out Questions Presented #2-7, as they were not properly raised in the District Court and, thus, will not be considered by the Appellate Court.QP#1:
1. Whether the U.S. District Court Judge abused his discretion when he stated that “Plaintiff would have us derail the democratic process by invalidating a candidate for whom millions of people voted and who underwent excessive vetting during what was one of the most hotly contested presidential primary in living memory,” since this statement indicates the Judge’s bias in favor of Defendant and assumption of facts based on his own beliefs formed outside this case?
The referenced court statement is found at Court Opinion. Berg v. Obama et al, 574 F.Supp.2d 509, 518 n.11 (E.D. Pa. 2008). However, the court expressly stated that " For purposes of this opinion, we take as true the well-pleaded facts of the Amended Complaint." (574 F. Supp.2d at 515); "The court must accept all of a plaintiff's allegations as true, as we have done here." (id., n.6); and " We note that while we take Plaintiff's allegations as true for purposes of this motion (as we must), Defendants Obama and DNC characterize them as "patently false." (id., n.7). As discussed in the Opinion (574 F. Supp.2d at 514-15), the standard adopted by the Court is the appropriate legal standard to apply. Therefore, he could have left this QP out too.QP#2:
Whether, in the absence of legislation providing a mechanism to challenge the qualifications of the president-elect following the counting of the votes in Congress, Petitioner has standing to make such a challenge under the Tenth Amendment of the United States Constitution, which provides that “powers not delegated to the United States by the Constitution nor prohibited by it to the states are reserved to the states or to the people”?
Berg did not raise this issue in his Opposition to Motion to Dismiss, did not raise it in his Complaint or Amended Complaint. The Defendants did not raise it in their Motions to Dismiss, and the Court did not consider it. Therefore, it is not properly before the Appellate Court. He could have left out QP#2.QP#3:
Whether the District Court erred in dismissing Petitioner’s case based on standing when the Supreme Court, in Gregory v. Ashcroft, 501 U.S. 452, 463 (1991) “clearly recognizes the authority of the people of the States to determine the qualifications of their most important government officials, and it is this authority that lies at the heart of our representative government”?
Berg did not raise this issue in his Opposition to Motion to Dismiss, did not raise it in his Complaint or Amended Complaint. The Defendants did not raise it in their Motions to Dismiss, and the Court did not consider it. Therefore, it is not properly before the Appellate Court.
Even if it were properly raised, the argument would fail. Berg misconstrues the holding of Gregory v. Ashcroft
, 501 U.S. 452, 463 (1991) and quotes it out of context. In fact, Gregory
actually upheld the state's right to impose a mandatory retirement age on judges. In other words, Gregory
stands for the proposition that the state (and not citizens within the state) may set the standards for determining the qualifications of their government officials.
The states – each one of them – have set standards for getting on the ballot. As we've learned, in most cases, that standard requires the candidate and/or candidate's party to file an affidavit confirming under oath that the candidate is (or will be) eligible for the Presidency under Article II. Under Gregory
, each state's standard must be respected – unless the standard is deemed to violate some other fundamental right. No fundamental right has been identified which would render any state's law unconstitutional.QP#4:
Whether the District Court erred in denying “standing” under 42 U.S.C. §1983 based on lack of state action, when in fact each State’s action in placing an apparently ineligible candidates name on the ballot and certifying the electoral vote for such candidate constituted state actions which resulted in the infringement on Petitioner’s fundamental right to cast an informed vote for an eligible candidate?
Berg alleged, in his Proposed Amended Complaint, that he had standing under § 1983. (See Proposed Amended Complaint, Count Two, pp. 29-37.) However, he did not
argue that his alleged §1983 standing was based on any "State’s action in placing an apparently ineligible candidates name on the ballot and certifying the electoral vote for such candidate," as he now contends. Rather, he argued that the named " Defendants, acting under the color of law and in concert with one another, engaged in intentional due process and equal protection of the law violations." (Id. at 29.) Berg's argument raised below is a completely different argument than the one he now attempts to make before the Third Circuit. Therefore, this issue is not properly before the Appellate Court.
Even if it were properly raised, the argument would fail. First, the States Berg now charges with a violation of § 1983 were not a party to the action. The Court will not countenance an argument based on allegations against a non-party.
Moreover, as Gregory
makes clear, the Supreme under the Tenth Amendment clearly establishes the "authority of the people of the States to determine the qualifications of their most important government officials, and it is this authority that lies at the heart of our representative government." Berg makes no argument that any state failed to follow its established laws and regulations in the balloting process or the election certification process. QP#5:
Whether under Robinson v. Bowen, et al, 2008 U.S. Dist. LEXIS 82306 (N.D. Ca. 2008) Petitioner is granted automatic standing since the electoral votes were counted on January 8, 2009 pursuant to 3 U.S.C. §15 and no objections were raised by any Senator or Congressman concerning Obama’s qualifications?
Berg did not cite Robinson – or make a Robinson-based argument in the District Court and, as such, this argument is not properly before the Appellate Court.
Even if it were properly raised, the argument would fail. Robinson does not stand for the proposition that a citizen is "automatically" (or otherwise) granted standing after the votes are counted and the Constitutional process for certifying the Electoral College Vote is completed. In rejecting the plaintiff's suggestion to permit the American Independent Party (affiliated with Alan Keyes) to be permitted to intervene, the Court stated as follows:
"Therefore, this order holds that the challenge presented by plaintiff is committed under the Constitution to the electors and the legislative branch, at least in the first instance. Judicial review-if any-should occur only after the electoral and Congressional processes have run their course. Texas v. United States, 523 U.S. 296, 300-02, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998). This circumstance also obviates any occasion to consider plaintiff's standing-cure suggestion that the American Independent Party (affiliated with Alan Keyes) be allowed to intervene."
Robinson, 567 F.Supp.2d at 1147. In other words, in rejecting a suggestion to permit a candidate's party to intervene (given prior cases stating that a candidate would have standing), the Court noted that any such case – "if any
" – could only occur after completion of the Constitutional Process. Berg is not a candidate for any party and, as such, even if any case could proceed, he would not have standing to sue under Robinson
Whether the President of the Senate’s violation of 3 U.S.C. § 15, in failing to call for Objections from Congress, in the counting of the Electoral votes, constituted a per se infringement upon Petitioner’s fundamental right to cast a meaningful vote?
Berg did not cite 3 U.S.C. § 15, or allege any violation thereof. Therefore, this argument is not properly before the Appellate Court.
Even if it were properly raised, the argument would fail. First, Cheney, who Berg now charges with a violation of 3 U.S.C. § 15 is not a party to this action. The Court will not countenance an argument based on allegations against a non-party. Second, there has been no lower court factual finding of any violation of 3 U.S.C. § 15.
Third, there was no violation of 3 U.S.C. § 15. That law provides, in relevant part, as follows:
Upon such reading of any such certificate or paper [relating to the electoral college vote], the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received.
3 U.S.C. § 15 (emphasis added). Thus, the President must call for objections, if any. As the Congressional Record makes clear, there was no such objection and, thus, no need to call for them.
"The VICE PRESIDENT. Madam Speaker and Members of Congress, pursuant to the Constitution and laws of the United States, the Senate and House of Representatives are meeting in joint session to verify the certificates and count the votes of the electors of the several States for President and Vice President of the United States.
After ascertainment has been had that the certificates are authentic and correct in form, the tellers will count and make a list of the votes cast by the electors of the several States.
The tellers on the part of the two Houses will take their places at the clerk’s desk.
The tellers, Mr. SCHUMER and Mr. BENNETT on the part of the Senate, and Mr. BRADY of Pennsylvania and Mr DANIEL E. LUNGREN of California on the part of the House, took their places at the desk
The VICE PRESIDENT. Without objection, the tellers will dispense with reading formal portions of the certificates. After ascertaining that certificates are regular in form and authentic, the tellers will announce the votes cast by the electors for each State, beginning with Alabama."
Congressional Record, H75-76 (Jan. 8, 2008) (emphasis added). Thus, it appears from the record that no written objections were submitted for presentation. Had any representative sought to make an object, s/he would have called for a point of order, and submitted the objection as set forth in 3 U.S.C. § 15. However, not a single representative did so. Because – not a single representative sought to raise an objection. QP#7:
Whether the President of the Senate’s violation of 3 U.S.C. § 15, in failing to call for Objections from Congress during the counting of the Electoral votes constituted an abridgement of Petitioner’s First Amendment right to the Freedom of Speech by denying Petitioner the opportunity to cast his objections through his Representatives to the counting of the electoral votes?
Berg did not cite 3 U.S.C. § 15, or allege any violation thereof. Therefore, this argument is not properly before the Appellate Court.
Even if it were properly raised, the argument would fail. See discussion above, re: Question Presented #6.
Moreover, there is no indication whatsoever that Beg was denied his First Amendment right to freedom of speech. Berg makes no claim that he was denied the right to cast his objections with his representatives. Berg – and apparently hundreds of others – wrote to their representatives, requesting that the representatives file written objections to the Electoral College Vote. The responses of many such representatives have been posted on the Internet. In short – Berg's voice (and the voice of others) was clearly heard by the representatives, who considered – and rejected – their pleas. The right to freedom of speech does not include the right to have one's views accepted by the hearer.QP#8:
Whether the District Court “in taking the facts in Petitioner’s Complaint to be true” abused its discretion in denying Petitioner standing based on the Court’s finding Petitioner’s injury-in-fact was too generalized because other democratic Americans suffered the same harm.
Whether a lower court abused its discretion in making its ruling is a proper question before the appellate court.
However, this argument fails. Berg doesn't even make an attempt to distinguish the standing cases upon which the District Court's ruling was based – because he can't – they're directly on point. Instead, after citing to the District Court's ruling, Berg claims "In taking the facts asserted in the Complaint as true for purposes of determining Defendants Motion to Dismiss, ... it is unjust to deny Petitioner standing just because other voters have suffered the same harm." (Appellate Brief at 16.)QP#9:
Whether the U.S. District Court erred in dismissing Petitioner’s claims under Promissory Estoppel finding the DNC [Democratic National Committee] and Obama’s promise to uphold the United States Constitution are simply statements of principle and intent in the political realm and are not enforceable promises?
Berg did not
make any promissory estoppel argument in his Opposition to the Motion to Dismiss. Moreover, while Berg raised the promissory estoppel theory in his Proposed Amended Complaint (Count Seven, pp. 56-63), he provided no legal support for the application of that theory.
However, the Court fully considered - and rejected – the claim
"Although Plaintiff does not specify the law on which he bases his claim, under any definition of promissory estoppel there must be an enforceable promise. *** The Restatement defines a promise as “a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.” Restatement § 2(1).
The “promises” that Plaintiff identifies are statements of principle and intent in the political realm. They are not enforceable promises under contract law. Indeed, our political system could not function if every political message articulated by a campaign could be characterized as a legally binding contract enforceable by individual voters. Of course, voters are free to vote out of office those politicians seen to have breached campaign promises. Federal courts, however, are not and cannot be in the business of enforcing political rhetoric."
Berg v. Obama et al, 574 F.Supp.2d at 529. (Slip Copy). Therefore, the issue *is* properly before the Appellate Court.
However, this argument fails. Again, Berg fails utterly to distinguish the promissory estoppel cases upon which the District Court's ruling was based. Indeed, the only mention of promissory estoppel is in the section addressing "Questions Presented" – it does not even appear in the argument section of his brief!
In short, he could have left out most everything and, instead, reiterated the claims he made in the lower court - claims that are, mysteriously, mostly missing from his appellate brief.