Judge David O. Carter is expected to rule this week on the Government’s Motion to Dismiss, which was heard on October 5 in Santa Ana, California. The official court transcript should be available here soon, but Politijab’s Court Observer Report, a great job by Wavey Davey and team, can be read in its entirety here.
Compared to the September 8 hearing, (Politijab Court Observer Report here and Official Court Transcript here), the hearing last Monday was a more staid affair, with half the Birthers as last time in attendance, and without the circus atmosphere.
Dr. Orly Taitz, Esq. did raise her voice (jabber and squeak) and bang on the table a few times when she wasn’t getting her way. When her acolytes applauded her performance a couple of times, Judge Carter pointedly told them their applause had no affect on him whatsoever. He sternly instructed Taitz to put a halt to mobilizing her troops to harass the hell out of him and his staff. She has lied and said she never did any such thing. Ho hum. She also lied, telling Judge Carter that Judge Land in Georgia had found standing in Rhodes v. MacDonald.
One pretty dramatic moment came when Taitz was going on about how Obama was a dictator like any other dictator and how she grew up in a communist country and what happened to various members of her family, etc.
Judge Carter told her:
… that other country that you grew up in, that’s not this country. I do not believe that our country is as corrupt as you believe, and your personal experience would not be the same in this country. Most people are ethical and honest. This is where we part company. My starting point is trusting.
The Orange County Weekly reported:
Quietly, calmly, Carter replied that he didn’t want to “chill” the audience’s enthusiasm, but the America that Taitz alluded to was not the America he grew up in: one where opposing parties could confront one another in a “thoughtful” manner in the courts and in the legislature. He said that he had heard that Taitz had exhorted followers on her blog to contact the court, and that his receptionist had to take as many as forty calls a day from Taitz’s supporters. “I can assure you that during the proceedings, the government or President Obama haven’t contacted me,” he said. “If there’s any undue pressure [on the court], it’s from you.”
As with all Birther cases, or any case in federal court, the matter of who has standing will determine if the case can move forward. So one of two main questions, at this point, is whether the plaintiffs have the legal right to initiate the lawsuit.
The “case or controversy” clause of Article III of the Constitution imposes a minimal constitutional standing requirement on all litigants attempting to bring suit in federal court. In order to invoke the court’s jurisdiction, the plaintiff must demonstrate, at an “irreducible minimum,” that: (1) he/she has suffered a distinct and palpable injury as a result of the putatively illegal conduct of the defendant; (2) the injury is fairly traceable to the challenged conduct; and (3) it is likely to be redressed if the requested relief is granted.
In addition to the constitutional requirements of Article III, courts have developed a set of prudential considerations to limit standing in federal court to prevent a plaintiff “from adjudicating ‘abstract questions of wide public significance’ which amount to ‘generalized grievances’ pervasively shared and most appropriately addressed in the representative branches.”
The other question is whether the court itself has standing to hear the case, as federal courts are courts of limited jurisdiction: Is the case justiciable?
Justiciability refers to the types of matters that the federal courts can adjudicate. If a case is “nonjusticiable,” a federal court cannot hear it. To be justiciable, the court must not be offering an advisory opinion, the plaintiff must have standing, and the issues must be ripe but neither moot nor violative of the political question doctrine.
The Defense summarized its points from the Motion to Dismiss: The plaintiffs do not have standing. The court does not have standing. The Constitution gives powers to Congress to remove a sitting president and settle political questions, not to the courts.
…anybody with a political agenda and filing fees could contest the qualifications of presidents if this was allowed to proceed, which affects the balance of power. He mentioned the other Obama cases and said, the same issues there. If the president is forced to go through depositions, and so on, for all a these various cases, it would affect his ability to govern. If even one judge decides that Obama is not qualified, and a second decides that he is qualified, what then? Chaos. It would affect the ability to conduct foreign policy, nuclear disarmament negotiations, and so on.
This approach damages the presidency itself, the office, not just Barack Obama.
The president is the only office elected by all of the United States, and the textual commitment in the Constitution makes this issue nonjusticiable.
Dr. Orly Taitz, Esq. raised a current case which challenges Secretary of State Hillary Clinton’s eligibility, Rodearmel v. Clinton, to demonstrate standing of oath-takers. She claimed that standing had been determined in that case for a plaintiff who had taken an oath to serve in the State Department. However, this is false, as of now, because no ruling has been issued by the three-judge panel hearing that case in Washington DC and they may very well rule the plaintiff has no standing.
She extended this supposed oath-taker standing to her military clients, citing another case before Judge Carter. He pointed out to her that those claimants did have standing, because their injury was not hypothetical, while almost all of Taitz’s military plaintiffs are not on active duty and any injury they might claim is speculative. Of retired military plaintiffs he said she was losing her argument unless she could convince him otherwise.
Judge Carter was interested in one active duty military plaintiff, Lieutenant Freese. He asked if Freese had received deployment orders, but Taitz said she didn’t know. Judge Carter was troubled by questioning of the military chain of command when the situation is so speculative. He pointed out that by the cases she was citing, Freese failed to establish standing. She tried to talk about the birth certificate, but Carter kept bringing her back to Freese.
She repeated her oath-taking point in terms of elected officials on her list of plaintiffs having standing for the same reason, having taken oaths of office.
Regarding the candidate plaintiffs, Judge Carter noted failure to establish standing in an earlier Birther case, Lightfoot v. Bowen. He said it was questionable whether any of her groups of clients had standing in Barnett v. Obama.
While Carter talked some about the birth certificate(s), he seemed not to see any significance in the Kenyan versions or the reason for Taitz’s wanting to depose President Obama, noting that Obama wouldn’t have memories of his birth.
“Why am I going outside of my country for documents?” Carter asked. “I always thought our records and our country was to be emulated. These birth documents from Kenya are controversial.”
He was critical of Taitz for filing the case at 3PM on Inauguration Day and accused her of a lack of diligence. He said he would make a finding that an opportunity for the Electoral College to address the matter was thus lost.
Carter informed Gary Kreep that his severance motion would not be granted. He also told him not to bother submitting an amended complaint, which wouldn’t be granted, either.
Kreep kept his argument fairly basic: It’s a case of election fraud. Obama is not the legitimate president. It’s a Constitutional issue that cannot be decided solely by Congress. If not the courts, where do concerned citizens have to turn? In what may have been a back slap at Taitz, Judge Carter complimented Kreep on his focus.
But Judge Carter returned again and again to the matters of standing and justiciability, no matter what else anyone had to say, finally cutting off discussion and deciding not to rule before further consideration. The Scheduling Conference which would have followed, had the Motion to Dismiss been denied, was not held, and a previously outlined case management calendar stands for now.
Birfistan being Birfistan, a delusional nation, this was all seen as a great victory for Dr. Orly Taitz, Esq. or a terrible betrayal by Judge Carter; take your pick. In an exposition of remarkable gibberish, even for her, Taitz went so far as to proclaim on her web site, the day after the hearing, that she and Judge Carter struck a deal in July: He would hear the case on its merits, not on technicalities.
What she would have to say if the Defense claimed to have “a deal” with the judge, I can only imagine, but Judge Carter specifically corrected her erroneous, self-centered impression in September:
This Court did not intend to suggest in the July hearing that Plaintiffs’ Counsel was being given a carte blanche to disregard the Local Rules that all attorneys before the Central District of California courts must follow.
She doesn’t understand that standing and justiciability are merits, not technicalities; they are indispensable threshold determinations and the case can’t proceed without them.
