Never mind. Found it.

Purpura-Moran Initial Decision of ALJ Masin

http://www.scribd.com/puzo1/d/88910250- ... -ALJ-Masin

A thorough decision - thanks, Mimi

Ankeny

Oh, that's gonna leave a mark.

I love how Apuzzo, in his Exceptions, is complaining that the ALJ ignored his 15 pages on NBC and blah blah blah.

Having read the decision, he didn't ignore it at all - he even mentions that the petitioners are quoting Vattel. He simply says it is wrong, and says why.

This is similar to many birther cases, where they complain the judge isn't giving them an answer or is ignoring something (or for that matter, Lakin, who constantly said he asked about the legality of his orders and was constantly ignored). Neither Apuzzo in this case, Orly in Georgia, Lakin by the military, or other birthers in numerous cases, have gotten ignored. They've received answers and rulings almost every time. They just haven't liked, and have disagreed with, said answers.

But an answer you don't like is still an answer, and in this case the answer was "Apuzzo, you are WRONG."

Will he be moving to Canada? They have socialist medicine there, ya know. In fact they have socialist medicine in almost every first-world country. They tolerate furrin languages in Canada, too. In fact, it is mandatory that a furrin language be taught in grade schools.

He might find what he is loooking for in Bosnia.

Not only that, but many of them speak French. The horror!

So Apuzzo got his butt kicked by a first year associate from a real law school. Next time they should send someone from the mail room to make it fair. The Court could have copied this from the Fogbow:

"The second objection involves the meaning of the Constitutional phrase, “natural born Citizen.” Discussion and consideration of this issue is of course relevant only on the understanding that Mr. Obama was born in Hawaii. This issue has been the subject of litigation concerning Mr. Obama’s candidacy in several jurisdictions. No court, federal, state or administrative, has accepted the challengers’ position that Mr. Obama is not a “natural born Citizen” due to the acknowledged fact that his father was born in Kenya and was a British citizen by virtue of the then applicable British Nationality Act. Nor has the fact that Obama had, or may have had, dual citizenship at the time of his birth and thereafter been held to deny him the status of natural born. It is unnecessary to reinvent the wheel here; the subject has been thoroughly reviewed and no new legal argument on this issue has been offered here. While there are several decisions that could be cited, the decision issued by the Court of Appeals of Indiana in 2009 in Ankeny v. Governor, 916 N.E.2d 678 (Ind. Ct. App. 2009), is representative of the position taken by courts and other agencies who have considered the merits of the issue. As the court therein noted, and as the petitioners here have contended, the thrust of the argument against Obama’s status as natural born is that there is a “clear distinction between being a ‘citizen of the United states’ and a ‘natural born Citizen.” Id. at 685. The decision notes that the petitioner therein, as here, cites to an eighteenth century treatise by Emmerich de Vattel, “The Law of Nations” and to various early sources for support for their argument that one who is the child of a non-citizen cannot be natural born even if born in the United States. But the Ankeny court, relying upon the decision of the United States Supreme Court in U.S. v. Wong Kim Ark, 169 U.S.649, 18 S. Ct. 456, 42 L. Ed. 890 (1898), rejected that position.2 In Wong Kim Ark, Justice Gray wrote at great length about the understanding of the term “natural born” and its common law meaning, probing English authorities and concluding that the “law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, . . . every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born. The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established.” This position as to the common law meaning is in accord with Justice Joseph Story’s statement, concurring in Inglis v. Trustees of Sailors’ Snug Harbor, 28 U.S. (3 Pet.) 99,7 L. Ed. 617 (1830), “Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country, while the parents reside there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.” See Wong Kim Ark, 160 U.S. at 660, 18 S. Ct. at 461. In Wong Kim Ark, the Court also cited Justice Swayne’s comment in United States v. Rhodes, 1 Abbott 26,40, 41 (1860) “All persons born in the allegiance of the king are natural-born subjects, and all person born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England.” The Wong Kim Ark Court then stated “We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions [children of ambassadors, etc.], since as before the Revolution. [Wong Kim Ark, supra, at 169 U.S. 662-663, 18 S. Ct. at462]. The Georgia Secretary of State recently denied a similar challenge to Mr. Obama’s status as a natural born citizen in Farrar, et al. v. Obama, OSAH-SECSTATE-CE-1215136-60-MAHIHI, where Georgia State Administrative Law Judge Mahili relied upon Ankeny and Wong Kim Ark for his ruling that the President was indeed a natural born Citizen."


2. The Wong Kim Ark decision was preceded by Minor v. Happersett, 88 (21 Wall.) U.S. 162, 167, 22L.Ed. 627 (1874), where the Supreme Court stated that while the Constitution did not say “in words” “who shall be natural-born citizens” there were “some authorities” who held that “children born within the jurisdiction without reference to the citizenship of their parents” were citizens. The Court concludes that it was not necessary to decide that issue in Minor. Wong Kim Ark more directly addresses the issue of who is “natural-born” although it is acknowledged that neither of these cases involved the use of the term in connection with a presidential candidate and the unique Constitutional requirements for holding that office. Nevertheless, the Wong Kim Ark ruling certainly goes very far in defining the term and its meaning in this country. And the decision does not suggest that the common law rule identified therein only applied at the state level and not on a national basis, as counsel here claims.


OUCH!!!

Agreed. I did it today when the judge asked all counsel to pull up chairs and have a seat. And I also buttoned my coat whenever I stood.

Several birfer memes fail once more: No judge has decided his eligibility on the merits.
No judge has found him to be a citizen or a natural born citizen.

They can repeat these endlessly, but not in good faith or honesty. Apuzzo and friends can be proud that they had added to the fast-growing body of law over a range of jurisdictions that have declared their claims have no substance and their legal arguments have no merit.

It seems there was another pro se petition filed the day before and the petitioner did not show. Decided on the merits anyway. But it's one more loss on the scorecard.

And then he goes out of his way to reassert the definition of natural born citizen AND to dismantle the birther fetish with
the fabricated Vattelism !!
Like This decision. This should be the model for future decisions. Cite or merely mention the plethora of birther legal failures
and tell the birthers they are full of crap.
Next step: SANCTIONS ANYTIME a birther suit is filed that contains these birther arguments. Automatically rule them to be Frivolous.

/geek and info sec hat on/

From a geeky and admissability perspective, a birth certificate or in fact any other legally official and binding document CAN be published on the internet and be considered an official document......usually PDF's......

IF said document was published and presented with the appropriate digital certification and electonic signatures it MAY be accepted by a court as wholly sufficient as the digital signature will demonstrate creation, creator, certification path, inviolate state, date and time stamps, can have its status checked, verified or rescinded as required in real time etc.

It does however require a certain amount of technology infrastructure build and rigorous implementation and as far as I know has no roll out in the US in this specific area.

/geek and info sec hat off/

ALJ Masin wrote a good decision. Note the ALJ's name starts with "M-A" and has the letter "I" fourth in order. You know what that means, don't you?

Oh look who's moving the goalposts again:



Got that? Even if the birther bunch accepts KWA, butbutbut his father wasn't domiciled in the USA! Keep them posts movin' referee Kerchner!

http://www.blogger.com/comment.g?blogID=7466841558189356289&postID=6704111724485434180

BHO Sr. was subject to the jurisdiction of the United States. That's the key language, not domicile. Wong's parents could never become citizens themselves, but they were subject to the jurisdiction of the U.S. nevertheless.

This argument has floated around the toilet bowl for a while. IIRC Donofrio first excreted it and Taitz was excited by it about a year ago until some new shiny object came along.

I think this is the best decision to date on the de Vattel argument. Even sweeter that it comes from Mario and Leo's home state.

IMO, Kerchner is trying to set the stage for general election challenges.

He knows that the Vattel-based Minor v Happersett challenges are done. Dead. There's still a few more out there, but every one so far heard on the merits has simply said "We concur." They don't even bother to address the specific cases most of the time. They say "Dude, Ankeny answered this already. Read that one." That isn't going to change.

Furthermore I think he realizes that coming back at the general election and making some of the identical, already-rejected arguments will simply lead to sanctions and attorney's fees. They need a new argument.

This one allows them to essentially say that WKA is true but only applies if the parents have green cards. He's wrong, but it's a new argument that might not get them thrown out of court right away.

They are building quite a body of precedent. Not sure how to cite this yet, but the next case can cite all of these:

Ankeny v. Daniels, 916 N.E.2d 678 (Ind. Ct. App. 2009) (citing Wong Kim Ark to hold that " persons born within the borders of the United States are “natural born citizens” for Article II, Section 1 purposes, regardless of the citizenship of their parents”) transfer denied 929 N.E.2d 789 (Ind. 2010);

Farrar et al v. Obama, OSAH-SECSTATE-CE-1215136-60-MALIHI (Feb. 3, 2012) (Ga. Office of State Admin. Hearings) (citing Wong Kim Ark and Ankeny v. Daniels to conclude that Obama is natural born citizen by virtue of his birth in the United States);

Purpura and Moran v. Obama, OAL DKT. NO. STE 04534-12 (April, 10, 2012)(citing Ankeny and Wong Kim Ark to conclude that "[t]he petitioners’ legal position on this issue, however well intentioned, has no merit in law. Thus, accepting for the point of this issue that Mr. Obama was born in Hawaii, he is a “natural born Citizen” regardless of the status of his father");

Allen v. Obama et al, No. C20121317 (Ariz. Pima County Super. Ct., Mar. 7, 2012) (order dismissing complaint)(citing Wong Kim Ark to conclude “this precedent fully supports that President Obama is a natural born citizen under the Constitution and thus qualified to hold the office of President");

Tisdale v. Obama, No. 3: 12-cv-00036-JAG (E.D. Va. Jan. 23, 2012) (order dismissing complaint) (concluding that “It is well settled that those born in the United States are considered natural born citizens”);

Jackson v. Obama, 12 SOEB GP 104 (Jan. 27, 2012) (hearing officer recommendation) (Obama’s birth certificate “clearly establishes” his eligibility for office as a “Natural Born Citizen”), objection overruled (Ill. State Bd. of Elections, Feb. 3, 2012);

Freeman v. Obama, 12 SOEB GP 103 (Jan. 27, 2012) (hearing officer recommendation) (Obama’s birth certificate “clearly establishes” his eligibility for office as a “Natural Born Citizen”), objection overruled (Ill. State Board of Elections, Feb. 3, 2012);

Hollander v. McCain, 566 F.Supp.2d 63, 66 (“Those born ‘in the United States, and subject to the jurisdiction thereof’ have been considered American citizens under American law in effect since the time of the founding and thus eligible for the presidency”).

As I read it, the WKA decision hinged on whether or not WKA was born on US soil and that his parents were not members of an invading army nor diplomats in the service of another country and subject to that country jurisdiction and allegiance.

Think about the millions of children born in the US whose parents were not 'legally domiciled' here. They are NBC's but not in Kerchner's view. He just wants the goal post moved back to where it was before the Civil War statutes were passed.

That was posted at The Hill a few days ago, citing Dicey and WKA... birthers naturally said the poster was FOS.

Oh, and asshat Kerchner, that "domiciled" thingy is not going to cut it either...

Wong Kim Ark never said domicile was required under the NBC clause or the 14th Amendment. Rather, it made clear that the English common law was adopted and hence "subject to the jurisdiction" only excluded the English common law exceptions:

"The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country."

That being said, I think the "domicile" argument is stronger than the "two-parent" argument as it has at least some historical support, though such support is buried by the multitude of jus soli authority. While I am not sure I could ever argue in good faith the two-citizen parent argument in court, I think I could at least argue in good faith that Wong Kim Ark's holding should be limited to the facts of the case. i.e., domiciled aliens, and that there was at least some historical authority to support such reading. In the end it is a losing argument, but much better than the arguments they have been making.

He, and they steadfastly refuse to accept that THEIR recently homegrown (since Obama was elected) definition of "natural born citizen" is wrong. Every court has said it is wrong, all stating the same reasons, and many have explicitly laid it out for them :
born in this country = natural born citizen

There are no other factors to the definition.
Nobody will be allowed to unilaterally redefine it or be allowed to gum up what a NBC is with qualifications manufactured to suit their own petty political agenda.
It is Settled. Done.

Next stage for responding to these frivolous lawsuits HAS to be - anytime these same NBC re-definitions are presented to ANY court at ANY level - it goes straight to dismissal with automatic sanctions.
It should be the same as running a stop light or driving while intoxicated. Its an infraction subject to stiff fines.
Especially the serial violators.

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