|
By sheer coincidence, I was at the courthouse on the same day as yesterday's hearing. Since my matter ended early, I was able to attend it. What follows is my report (edited from an original version that has been circulated in confidence, to remove certain extraneous commentary on my part):
I showed up for the 3:30 hearing around 3pm. Without having any idea who Kenneth Allen was, I felt I recognized him sitting close to the courtroom door waiting for it to open. My suspicion was confirmed when I saw some birther-looking lady walk up to him to shake his hand and say (I think), "Hi, nice to see you again," and then hand him a stack of mysterious papers which seemed to have "notes" typed out on them. (Note: It's also possible that she was his friend or wife, and I misheard what she said.)
Allen looks like a birther. He is a smallish man aged in his late 50s or early 60s. He looked nervous and tightly wound up. He was wearing a shirt and tie that were all but overshadowed by what appeared to me to be a large puffy winter jacket, presumably because he does not own a formal coat that is part of a suit.
The hearing started a few minutes early. Judge Gordon is a surprisingly young-looking judge with a friendly demeanor. In appearance were two lawyers from the Pima County Attorney's Office. Appearing by phone for the Democratic Party was Paul Eckstein from the Perkins Coie firm, Phoenix office. I won't read much into Eckstein's decision to appear by telephone (he says it was due to a dinner he had to attend at 5:30), except to observe that it reflected a certain level of confidence (or arrogance, perhaps deliberately signaled).
The hearing lasted about 40 minutes. The judge started it with a strange comment about his background as a former US Attorney. He felt he did not need to recuse himself because the US Attorney was not a party to this action, but asked the parties if anyone wanted to request that he recuse himself. No one did, including Allen. I disagree that he even needed to bring this up but whatever.
About half of the discussion focused on Arizona's statutory election laws and election procedures. Before diving into them, Eckstein cited to a recent decision from the Northern District of California to support his view that this issue was not properly in the state courts to begin with. This was a federal issue, he said, and indeed it did not really belong in the federal courts either as this concerned decisions for Congress, and the electoral college, to make.
Moving on, Eckstein and the PCAO parsed the various provisions at issue and essentially argued that Allen had named the wrong defendants and failed to served the defendants he did name. PCAO pointed out that Pima County had no dog in this show because Arizona was not a state where delegates are obligated by law to vote according to the primary election results, among other reasons.
For his part, Allen had no idea how to address the statutory issues. He did little more during his turn to speak than shuffle some papers around and tell the court that he had served Barack Obama. There was also a funny moment when he got flustered and proclaimed, "Barack Obama is not a natural born citizen! That's why I'm here!" The judge patiently refocused him by saying, "No, we're discussing procedural issues right now. We'll get to the merits later." Again though, Allen had no grasp of the "procedural issues" in the remotest sense. He also remarked, "I'm not a lawyer and I don't pretend to be one. I am not going to attempt to do the job of these people [pointing to the perfectly civil and polite PCAO lawyers who weren't clear on why they were sued] who are well-trained on how to argue these things."
The second half of the hearing focused on "the merits." It was a pleasure hearing Paul Eckstein, who is probably the senior-most lawyer in Arizona to specialize in election law, refute the birther argument. Although, his grasp of the issues would probably not satisfy most of us birther-obsessed geeks who know more details about the issue than is good for us. He began his argument by commenting, "I'm surprised to hear that I'm not a natural born citizen, your Honor. I was born on an army base in 1940 and my mother didn't become naturalized until 2 years later." He then discussed Wong Kim Ark and Ankeny and finished.
Allen was polite, and maintained a moderate tone of voice during this portion of the argument, as he had throughout for the most part. He made the usual birther talking points about Wong Kim Ark, and unsurprisingly discussed Minor v. Happersett. He also relied on the usual birther falsehoods, such as, "Barack Obama has never produced a birth certificate." The court and counsel didn't care to address this underlying fact assertion, which we all know presumably arises from the conclusion that the certificates that have been produced are all forgeries. He also mentioned Sheriff Joe's investigation several times.
In Eckstein's final rebuttal, he addressed the Happersett case and explained exactly what its holding was and why it had no bearing on the merits.
One issue that irritated me (well, many did, in terms of how the Democratic Party argued the issues, but I digress) was when the court asked both sides, "Are there any other published decisions on this issue other than Ankeny?" Allen and Eckstein both said they were unable to think of any. Eckstein did not refer the court to his brief.
Also hilarious: Allen at one point proudly proclaimed, "Your Honor, I just got back from Philadelphia, where I testified in a legal action on this issue over there."
In closing, the court surprised me by trying to compliment Allen. I'm mystified by the motivation behind doing this, in part because the judge's comments struck me as awkward and not thought out in advance. They were something to the effect of, "I wish to thank you for pursuing these matters." Huh? I think the judge was trying to say, "Thank you for being a citizen who is actively engaged in the political process by airing these issues out in public." Allen and the birthers will likely interpret this closing comment in their own hilarious way though.
The judge stated that the Arizona statutes, if they apply, required him to provide a ruling by Friday. Assuming they applied, then, he would attempt to comply, leaving the door open for a ruling after Friday in the event he concludes that the statutes do not apply. With that, the hearing ended.
_________________
    
"What part of 'second' don't you understand?" -Judge Morrison England
|
Login
Register
FAQ
Most excellent reporting.
