QUO WARRANTO LEGAL BRIEF: Part 3 STANDING-TRIAL BY JURY- HISTORY OF STATUTE – SEPARATION OF POWERS Cont.
[CORRECTIONS struck out below and in purple. 03.11.09]
[UPCOMING RADIO INTERVIEWS]
- Wed. March 11, 3:05 (East coast time) Joyce Kaufman show, WFTL 850AM Ft. Lauderdale/Miami
- Wed. March 11, 9:00 (East coast time) Solutions Not Politics with Devvy Kidd
- Thurs. March 12, 9:05 (East coast time) The Crystal Chalice show
The following points contain the most important issues as to federal quo warranto actions brought under the District of Columbia Code.
1. SCOTUS IS THE WRONG VENUE TO INITIATE AN ACTION IN QUO WARRANTO BECAUSE DOING SO WOULD DEPRIVE THE PUBLIC OF A JURY TRIAL ON THE ISSUE OF WHETHER OBAMA WAS BORN IN HAWAII.
The District of Columbia Code, Title 16, Chapter 35 (Quo Warranto) Subchapter III states:
In a quo warranto proceeding, the defendant may demur, plead specially, or plead “not guilty” as the general issue, and the United States or the District of Columbia, as the case may be, may reply as in other actions of a civil character. Issues of fact shall be tried by a jury if either party requests it. Otherwise they shall be determined by the court. (Emphasis added.)
The quo warranto statute allows a jury trial on “issues of fact”. Whether Obama was born in Hawaii is an issue of fact. Whoever institutes a proceeding pursuant to the statute may request a jury trial and one must be granted. The judge could not refuse.
But if the case is brought to SCOTUS before it’s brought to the District Court of the District of Columbia, and if SCOTUS were to accept the case, you’re never going to have a jury trial.
Any quo warranto proceeding should go before the DC District Court as follows:
a. a determination would have to be made, as a matter of fact, as to whether Obama was born in the US/Hawaii.
b. if the jury’s verdict is that he wasn’t born in Hawaii, then the legal question is easy: he’s not a natural born citizen. please take note that the issue wouldn’t be whether the online COLB is genuine, the issue is whether Obama was born in Hawaii and any COLB or other document would only be considered as a piece of evidence for the jury to consider.
c. if the jury’s verdict is that Obama was born in Hawaii, then the next issue is a more complex judicial question. the District Court would have to make a legal determination as to the meaning of NATURAL BORN CITIZEN.
Congress has absolutely no power to “interpret” clauses of the Constitution. That would be a violation of the separation of powers. Only the judicial branch could make such a determination. Congress properly assigned the issue to the District Court.
While Congress has the power to remove the President under the Constitution, they don’t have the power to interpret the Constitution. The judicial branch must do that.
As to issues of fact, ie:
- how long a person is a citizen of the US
- how old a person is
- where a person is born
…these qualifications for office are matters of fact which Congress properly recognized were best left to a trier of fact and therefore a trial by jury is statutorily allowed.
The issue of who is a “natural born citizen” under Article 2 Section 1 Clause 5 is an issue of legal interpretation outside the Constitutional authority of Congress.
Only the judicial branch can interpret the laws of this nation.
Congress didn’t delegate the authority to remove the President…they exercised that authority. (My previous explanation was not correct. I said they delegated their authority but that was a poor choice of words. Please forgive me.) Congress exercised their authority by allowing for the removal of the President.
Under the statute, the DC District Court must follow the law enacted by Congress. Congress has deemed that if an action is instituted properly, the court then conducts a trial as to all relevant facts. After the facts are determined, the court is empowered under the Constitution, to interpret the law in light of the facts.
JURY TRIAL. Think about that.
SCOTUS is not a trier of fact and so quo warranto MUST be brought before the District Court for the District of Columbia EXACTLY as the statute requires.
GOD FORBID SCOTUS WOULD EVER JUMP IN AND TRY TO WRANGLE THIS CASE FROM A DISTRICT COURT JURY.
2. STANDING UNDER THE DISTRICT OF COLUMBIA CODE TO INSTITUTE A FEDERAL QUO WARRANTO ACTION
a. STANDING OF GOVERNMENT OFFICIALS
The DC code allows three different levels of standing to “institute” a quo warranto action. As to private plaintiffs, SCOTUS noted – in Newman at 538 – that Congress “has placed obstacles” in the way. But as to the “Attorney General” or the “United States attorney”, who act in the name of the United States, the statute makes it very simple for an action to be instituted. It says:
“The Attorney General of the United States or the United States attorney may institute a proceeding pursuant to this subchapter on his own motion…”
SCOTUS in Newman at 546 has interpreted the statute to give wide discretion to these officials:
“By virtue of their position, they, at their discretion and acting under the sense of official responsibility, can institute such proceedings in any case they deem proper.”
“IN ANY CASE THEY DEEM PROPER.”
- There is no qualification that there be a certain amount of evidence one way or the other.
- There is no qualification that the officials must consider public opinion or political party affiliation.
- There is no “standing” to prove. If your title is US Attorney General or United States attorney, you have standing.
- There is no need to consult with Congress because, as SCOTUS noted in their opinion, Congress has already acted on the issue by enacting the quo warranto statute.
All that is required is that the official deems a quo warranto statute proper. His discretion is unassailable judicially.
WHY SHOULD THESE OFFICIALS DEEM QUO WARRANTO PROPER?
The short answer is that the action is proper to settle title to the office of President for the good of the nation.
Even if both officials are convinced Obama is eligible, it’s still proper for them institute a quo warranto proceeding because the evidence emerging now is that, by leaving the controversy as is, a floodgate of litigation will ensue. And like the waters over New Orleans levees, this floodgate has the ability to wreak havoc on our nation.
- Active military officers have openly stated that the so called Commander In Chief is an “imposter” and a “usurper”. These men have consented to be plaintiffs in eligibility law suits. Should this trend spread, it has the power to divide our forces and nation.
- Under the holding in ANDRADE v. LAUER, 729 F.2d 1475, 234 U.S.App.D.C. 384 (1984), the Court of Appeals for the District of Columbia has held that the defacto officer’s doctrine does not prohibit “collateral attacks” of official actions based upon a public officer’s lack of eligibility. These are not quo warranto suits to remove the official, they are civil suits to challenge a specific action of that official.
In the Andrade case, the plaintiffs were Government employees who lost their jobs to “reduction in force” ordinances which cut whole departments from the Government budget. The plaintiffs sued alleging those who did the cutting were not Constitutionally qualified to make such decisions in that their appointments violated the appointments clause of the US Constitution.
The DC District Court held that the plaintiffs had no standing other than to bring a “direct attack” in quo warranto to remove the alleged usurper. But the DC Court of Appeals reversed and said the plaintiffs, who had suffered real injuries, could bring such an action on a case by case basis if they could prove their injury in fact (being fired) was caused by a Government official who was not eligible to serve.
They opened the door to a floodgate of litigation by an incredibly large field of possible plaintiffs who might challenge every single official action of the Obama administration on the basis that he isn’t eligible.
- Furthermore, there is a tenet of Government that requires there be a certainty to the official actions taken in the name of the United States. No certainty is possible when millions of US citizens, including active military, are concerned that Obama’s credentials were not verified in the same way all citizens must verify their identity for the most simple things in life like getting a drivers license or passport. It smacks of imperial coronation when a Government of, by and for the people are not entitled to know that the commander in chief must submit to the same levels of identity proof as the citizens.
Regardless of whether one believes Obama’s online COLB is real, no citizen can tell the Government to check a web site for their birth certificate rather than bring it in to the DMV or send it to the federal Government for a passport. You have to actually mail your BC in to them if you don’t bring it in person.
I recognize that the Constitution does not require a birth certificate as a qualification, but that’s not the issue anymore.
The issue is whether the Attorney General and/or a United States attorney deems it proper for Obama to provide the same proof of identity as ordinary citizens in order to avoid FORESEEABLE complications which are destined to rot public faith.
We need to put aside whatever prejudices we have as to the eligibility and plead for now for the issue to be resolved as opposed to pleading what we believe the outcome of any such action should be.
I have stated over and again on numerous radio programs that I do not believe any private plaintiff has standing to demand to see Obama’s records of birth or any other personal records. These plaintiffs are appealing to emotions and not rational legal considerations. Obama should not bend to the will of those who have no legal authority to command him. I said this over and over and over again. But I was grouped in with these other attorneys whose theories I take great issue with.
We are governed by laws. And there is no law which allows a private person to demand to see Obama’s birth certificate or college records. It may seem like a good idea, but last time I checked the Constitution, neither are required to be President.
However, the United States attorney, the Attorney General and the District Court for the District of Columbia do have authority to command Obama to prove his credentials. And they ought to exercise that authority for the good of the nation, especially our military.
I fail to see any difficulty in establishing non-partisan compliance with the SCOTUS holding in Newman that these officials may bring a quo warranto if they simply “deem it proper” to do so.
That decision is not subject to review.
There is a public policy behind this which makes alot of sense. Obama ought to encourage these officials to institute an action in quo warranto for the good of the nation and for the good of his own legacy.
The best possible candidates I can think of who should request the US Attorney and/or the Attorney General to bring an action in quo warranto on their own motion are Retired Military officers who understand the absolute need for the President’s title to office not to be encumbered by doubt. Retired military can band together to request that these Government attorneys “deem it proper” to protect the active military from all of the swirling dangers their involvement in a political action as to POTUS eligibility would bring. Such a request shows no disrespect, but rather recognizes the actual risk now being taken by soldiers getting involved with various law suits. The retired military would not be making a case for or against Obama’s eligibility, but rather they would simply be asking that the issue be resolved one way or the other under the applicable statute. Again, keep in mind that the statute doesn’t require anything more than that the US attorney or the Attorney General “deem it proper.”
Please don’t confuse this with asking these retired military to be plaintiffs. That’s not what I’m suggesting. I’m suggesting that retired military officers are the best possible group who might be able to influence the US attorney or the Attorney General in making the decision to bring an action in quo warranto on their own motion with no private plaintiffs.
Another interesting question is whether any of the 94 United States attorneys may institute the proceeding in quo warranto…[Ed. I have reconsidered the discussion on this issue and as of 03.011.2009 struck it from the brief. 16-3502 applies exclusively to the US Attorney General and to the US Attorney for the District of Columbia. I believe that’s the most accurate intention of the statute.]
b. Standing of “third persons” vs “interested persons”.
The Attorney General of the United States or the United States attorney may institute a proceeding pursuant to this subchapter on his own motion or on the relation of a third person.
If the Attorney General or United States attorney refuses to institute a quo warranto proceeding on the request of a person interested, the interested person may apply to the court by certified petition for leave to have the writ issued.
The terms “third person” and “interested person” have been interpreted by SCOTUS in the Newman case as follows:
The Code provides that a “third person” — the equivalent of “any person” — may institute the proceedings only after he had secured the consent of the law officers and the court. It makes a distinction between a “third person” and an “interested person,” and provides that, if the Attorney General refuses to give his consent to the latter, such “interested person” may secure the right to use the name of the government by satisfying the… Court of the District that his reasons for applying therefore are sufficient in law…
Considering the ancient policy of the law and the restrictions imposed by the language of the Code, it is evident that, in passing this statute, Congress used the words “third person” in the sense of “any person,” and the phrase “person interested” in the sense in which it so often occurs in the law…The interest which will justify such a proceeding by a private individual must be more than that of another taxpayer. It must be “an interest in the office itself, and must be peculiar to the applicant”…The language of the Code, supported by the history and policy of the law, sustains the proposition that one who has no interest except that which is common to every other member of the public is not entitled to use the name of the government in quo warranto proceedings.
For if the allegations in such a suit by a private citizen set out any cause of action at all, it shows on its face that it was a cause of action belonging to the whole body of the public, and which therefore should be prosecuted by the public representative.
The rule is the same regardless whether the office is elective or appointive. For in neither case is there any intent to permit the public office to be the subject matter of private litigation at the instance of one who has no interest therein which differs from that of every other member of the public. The claim that this construction makes the statute nugatory cannot be sustained, for the statute, as already pointed out, gives a person who has been unlawfully ousted before his term expired a right, on proof of interest, to the issuance of the writ, and there might be cases under the civil service law in which the relator would have an interest and therefore a right to be heard.
In Newman, there was a jury trial and the jury held that the public officer didn’t meet the requirements of office. The District Court ousted him based on the jury’s verdict. The DC Court of Appeals affirmed. But SCOTUS reversed by stating the jury verdict was nullified because the plaintiff wasn’t an “interested party” and so he didn’t have standing. Since the official Government attorneys refused consent to bring the action, the plaintiff couldn’t just be a “third person”, the plaintiff had to be an “interested person.”
SCOTUS held that interested persons would include persons ousted from the office they are challenging. But they left the door open with that last line, “…and there might be cases under the civil service law in which the relator would have an interest and therefore a right to be heard.” (Emphasis added.)
THREE WAYS TO BRING QUO WARRANTO
1. The US attorney and/or the US Attorney General institute the case on their own motion – which is the best way this could happen. No leave of the court need be requested. There will be a hearing and a trial of facts.
2. If no authorized Government attorneys will bring the action on their own motion, then any citizen may join a law suit as “third persons” and such law suit, by way of verified petition, shall be brought to the US Attorney and/or the Attorney General to ask their consent to use the name of the United States. If the Government gives consent, then you must request permission from the court to bring the suit as well. And if the Court says yes, you will have a hearing on the merits.
3. If the Government will not give consent, then “interested persons” may request leave of the court to institute the action in quo warranto. But standing will be – according to SCOTUS in Newman – restricted to anybody who was ousted from the office of POTUS (and nobody is going to meet that requirement) or, in the alternative there might by cases under the civil service laws which provide standing.
I don’t know exactly what SCOTUS meant by that vague reference to “civil service laws”, but I would assume they are making reference to Government employees, and perhaps this could also apply to recipients of civil service benefits. I don’t believe the military are party to the civil service laws, so I don’t see them as being the plaintiffs with the best possible standing.
The holding in Newman is certainly ripe for a challenge, but care ought to be made to find the best possible plaintiffs who might qualify as “interested persons”.
The best private plaintiffs who might have standing to institute an action in quo warranto as “interested persons” would be those persons with an injury in fact caused by an official action of POTUS as it relates to the civil service laws.
Active military may appear to have the best standing based on a purely emotional reading of the term “interested persons”, but according to the controlling SCOTUS decision in Newman, the military aren’t the best subset of “third person” plaintiffs.
This is thes best shot, not the military. They do enough for us to at least deserve civilians with better standing exhaust every possible Constitutional means available before subjecting them to any number of possible court martials.
3. LEGISLATIVE HISTORY OF TITLE 16 CHAPTER 35 (Quo Warranto) OF THE DISTRICT OF COLUMBIA CODE.
Chapter 35 is entitled “QUO WARRANTO”. Subchapter I is entitled “Actions Against Officers of the United States.” Subchapter II is entitled “Actions Against Officers or Corporations of the District of Columbia“. Please note that the original DC quo warranto statute was first enacted in 1901. While SCOTUS interpreted that statute as controlling national officers, Congress modified the statute in 1963 to its current form which erases any possible doubt that the statute applies to all Officers of the United States.
Furthermore, the District of Columbia Code is federal law. It’s enacted by Congress and the actual United States Constitution is included in the District of Columbia code. I have seen the most erroneous comments online wherein it has been argued that a “local DC code is not federal law”. Besides the ultimate federal law – the Constitution – being placed directly in the DC code, SCOTUS has stated – in the seminal quo warranto DC code case, Newman v. United States ex Rel. Frizzell, 238 U.S. 537 (1915) – that the District Code applies to all…
“…actions in quo warranto instituted by authorized parties against national officers of the United States, they are general laws of the United States, and not merely local laws of the District of Columbia…”
I must reiterate that the code’s text does not provide any exceptions for any public office, not even POTUS.
In UNITED STATES of America ex rel. STATE OF WISCONSIN v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION, 248 F.2d 804 (1957), the US court of Appeals, 7th Circuit, provided an on point discussion of quo warranto in the district courts:
There have been submitted to this court only two instances in which original quo warranto jurisdiction has been specifically conferred upon federal district courts. The revised statutes of 1878 vested jurisdiction in these courts of proceedings brought by the United States Attorney for the removal of persons holding office contrary to the Fourteenth Amendment. Rev.Stat., Sections 563(14), 626(14), (1786). This Act was repealed in the Judicial Code of 1911, 36 Stat. 1168. In 1901, Congress specifically authorized the United States District Court for the District of Columbia to issue quo warranto in the name of the United States. Act of March 3, 1901, 31 Stat. 1419, Title 16, Section 1601 of the D.C. Code (1940). However, this grant is strictly limited and is confined solely to situations involving franchises and public offices held within the District of Columbia. There is no other specific statutory provision vesting original jurisdiction in the district courts in quo warranto actions.
The first statute mentioned above dealt specifically with quo warranto actions which arose out of 14th amendment issues where citizens were refused the right to vote. Under this statute, all US district courts could hear quo warranto cases. But this statute was repealed in 1911 and so the only remaining statute which controls quo warranto is the District of Columbia Code. And all actions brought thereunder must be brought in the District Court for the District of Columbia.
All discussion of quo warranto actions brought in other “district courts” of the US has been rendered moot. Unfortunately, I have seen irrelevant analysis of that repealed statute applied to the DC Code by various confused commentators online. In a quote taken from a legal treatise called Treatise on Federal Practice by Roger Foster, written in 1921, he states:
“The better opinion is that the District Courts of the United States have original jurisdiction to grant the writ of quo warranto only when specifically authorized by statute; and that no writ of quo warranto can issue from them to try the title to the office of President of the United States.”
At first glance it appears this “better opinion” might be a problem. I don’t know where he derives this “better opinion” from, certainly not the federal courts or SCOTUS because no such case law exists. It’s probably a reflection of a common erroneous assumption that the Constitution only allows removal of a sitting President by impeachment in the House and conviction in the Senate. We put that rumour to rest in part 2 of this brief – the Constitution does not say that anywhere in the Document’s text.
When you continue with the Foster quote, it states:
The District Courts of the United States have jurisdiction of all suits to recover possession of any office…authorized by law to be brought, wherein it appears that the sole question touching the title to such office arises out of the denial of the right to vote to any citizen…” (Emphasis added.)
This analysis is specifically directed to the repealed statute regarding quo warranto wherein “the sole issue” is deprivation of 14th amendment voting rights. It has nothing to do with the District of Columbia Code wherein quo warranto may be brought against any “public office of the United States” with regard to anyone found to be a usurper for any legal breach.
The statute Foster refers to has been repealed. It didn’t deal with Constitutional qualifications for office. Also notice that the comment says “District Courts”. This is obsolete. District Courts – other than the DC district court – have been stripped of authority to hear any quo warranto cases.
CONCLUSION: The District of Columbia Code is the only means by which a federal quo warranto action can be instituted and its application is strictly limited to public offices of the United States or local DC offices within the ten square miles of the District of Columbia. No public office, ie POTUS, is exempt by the statute.