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Berg v. Obama Opinion & Analysis

posted by Dave Hoffman

Because it seems that there is a great deal of popular interest in this topic, I’m posting Judge Surrick’s memorandum and order in the Berg v. Obama case. It is here.

The opinion is clearly written, and has in mind an audience consisting of non-lawyers. (See the explanation of standing doctrine in particular). As a commentator to an earlier thread here noted, Judge Surrick relies particularly heavily on Hollander v. McCain. There’s also a interesting point in footnote 13, i.e., that Congress could confer standing on citizens to litigate these kind of qualification challenges. I’m not sure that’s actually true.

Finally, you’ve got to love the attention that Judge Surrick gave to Berg’s frivolous promissory estoppel claim. The key sentence is:

“[O]ur 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 . . . Federal courts . . . are not and cannot be in the business of enforcing political rhetoric.”

No, sadly, I guess not. But think how fun it would be.


 October 27, 2008 at 2:34 pm   Posted in: Current Events   Print This Post Print This Post

Responses (6)

  1. Howard Wasserman - October 27, 2008 at 6:31 pm

    Dave: I agree that Surrick is wrong about Congress being able to grant standing in these sorts of cases. That is the real point of Lujan.

  2. Andrew - October 28, 2008 at 10:14 pm

    It’s kind of interesting to consider who might have standing in a case like this. A state attorney general who wants to make sure that a candidate belongs on the ballot? Someone nominated by a political party to be a presidential elector? What do you think?

    There is a big difference between a short-form birth certificate[1] and a long-form birth certificate.[2] The short form released by Obama is a very brief document that was printed in 2007.[3][4] An example of a long form birth certificate from Hawaii is obviously older and much more detailed.[5]

    John McCain has already released his long-form birth certificate.[6] Why won’t Senator Obama?

    There is confusion surrounding Obama’s infancy. According to David Maraniss of the Washington Post,[7] his mother moved with him from Hawaii to Washington State, after his father left Hawaii to begin studies at Harvard. But other sources say the parents had already split before the father began studies at Harvard, when Barack Obama was barely a month old. See Jonathan Martin writing in the Seattle Times,[8] and see Rick Montgomery writing for the McClatchy Newspapers[9] and see Rick Anderson writing in the Seattle Weekly.[10] This raises questions about where and why they split, and the long-form birth certificate would help answer whether she might have learned in Kenya about his other wife. Maybe the child was born in Kenya and registered later in Hawaii in order to avoid the hassle of naturalization.

    Is Obama very probably a natural born citizen? Absolutely. But why won’t he go ahead and prove it?

  3. datasource - October 30, 2008 at 3:14 pm

     

    USE THE LINK BELOW TO VIEW A

    MORE READABLE FORMAT

    OF THE CURRENT BERG V. OBAMA

    LEGAL ACTION, and More…

    Includes link to Kenyan Grandmother

    discussing Obama birth in Kenya

    CLICK HERE

  4. DOUGLAS FIELD - November 2, 2008 at 12:44 am

    TROY DAVIS, PLEASE REMEMBER THAT AMERICA IS NOT THE OLD SOUTH ~ AFRICA !!!

    ****A $TATE ECONOMIC BOYCOTT OF GEORGIA INTERNATIONALLY WILL OBVIOU$LY BE THE END RE$ULT OF GEORGIA DECIDING TO MURDER A PO$$IBLE INNOCENT TROY DAVI$ WITHOUT A NEW AND FAIR TRIAL ?

    ****US CONGRESSIONAL MEMBERS WHO ARE ALSO LAWYERS BY TRADE, CONTINUE TO DENY poorer AMERICAN’S PROPER LEGAL REPRESENTATION !!!

    ****THE INTERNATIONAL COMMUNITY NEEDS TO BEGIN A FORMAL INVESTIGATION INTO THESE US CONGRESSIONAL CRIMES AGAINST HUMANITY, AND HUMAN RIGHTS VIOLATIONS BEING INFLICTED ON poorer AMERICAN’S LIKE MR.TROY DAVIS OF GEORGIA !!!

    ****HAVING BEEN DENIED APPEAL LAWYERS FOR THREE YEARS ON DEATH ROW IN GEORGIA MR. TROY DAVIS IS NOW BEING EXECUTED FOR A CRIME HE MIGHT NOT HAVE EVEN BEEN INVOLVED WITH !!!

    ****SENATOR OBAMA PLEASE LET THIS COUNTRIES VOTERS KNOW YOUR FEELINGS AND THOUGHTS ABOUT A NEEDED FUTURE REPAIR AND RENOVATION OF OUR BROKEN JUDICIAL SYSTEM THAT CONTINUES TO ALLOW THE EXECUTION’S OF EVEN POSSIBLE INNOCENT AMERICAN’S LIKE TROY DAVIS OF GEORGIA ?????

    ****BEING THE WEALTHIEST COUNTRY IN THE WORLD SENATOR OBAMA, DON’T WE NEED AS THE LEADERS OF THE FREE WORLD TO BEGIN ONCE AGAIN TO RE-INVEST THE PROPER MONIE$ IN OUR OWN US JUDICIAL SYSTEM, ASSURING ALL OF OUR CITIZENS THEIR RIGHTS TO FAIR TRIALS WITH PROPER LEGAL REPRESENTATION ???

    ****DOES GOD NEED TO LOBBY OUR US CONGRESSIONAL LEADERS OF THE FREE WORLD ON BEHALF OF OUR poorer american’s SENATOR OBAMA,OR ARE YOU WATCHING OUT FOR THEM ??

    ****OUR US CONGRESS CONTINUES TO DENY MIDDLE CLASS AND WORKING POOR AMERICANS PROPER LEGAL REPRESENTATION EVEN THOUGH WRONGFUL EXECUTIONS & FALSE INCARCERATIONS CONTINUE ALL ACROSS AMERICA ???

    **** 700 BILLION $$$ AVAILABLE FOR US BAILOUT, & NO $$$ FOR ALL POORER AMERICANS PROPER LEGAL REPRESENTATION ? SENATOR OBAMA, THIS JUDICIAL INJUSTICE HAS BECOME AN AMERICAN ART FORM, AND NO LONGER CAN BE KEPT HIDDEN OR SECRET FROM THE AMERICAN PEOPLE EVEN IF CERTAIN (501c3) U$ RELIGIOU$ LEADER$ HAVE BEEN $ILENCED ??

    ****LETS ALL HOPE OUR MEDIA FRIENDS CONTINUE TO SHOW AN INTEREST IN REPORTING ON THIS AMERICAN HORROR FACING THESE (TENS OF THOUSANDS) FORGOTTEN AND TRAPPED POORER AMERICANS, AND HOW THIS PRESIDENTIAL CONTENDER HANDLES THIS VERY SERIOUS ISSUE FACING AMERICA’S LATINO AND BLACK AMERICAN COMMUNITIES ????

    ****WITH 80% OF THE BLACK AMERICAN VOTERS SAYING THEY SUPPORT SENATOR OBAMA IN THIS PRESIDENTIAL ELECTION, IT IS ONLY FAIR FOR EVERYONE TO KNOW PRIOR BEING ELECTED OUR NEXT PRESIDENT OF THE UNITED STATES HOW THIS DEMOCRATIC SENATOR TRULY FEELS ABOUT THIS AMERICAN JUDICIAL INJUSTICE CONTINUING TO INFLICT GRAVE HARM ON THE BLACK & LATINO AMERICAN FAMILIES AND THEIR COMMUNITIES NATIONWIDE ??????

    **** WHEN GOD’S FACE BECAME VERY RED *** THE US SUPREME COURT GAVE ENEMY COMBATANTS FEDERAL APPEAL HC RIGHTS LAWYERS AND PROPER ACCESS TO US FEDERAL COURTS,AND POORER AMERICANS (MANY EVEN ON DEATH ROW) ARE DENIED PROPER FEDERAL APPEAL LEGAL REPRESENTATION TO OUR US FEDERAL COURTS OF APPEAL, AND ROTTING IN AMERICAN PRISONS NATIONWIDE ?????????

    **** INNOCENT AMERICANS ARE DENIED REAL HC RIGHTS WITH THEIR FEDERAL APPEALS ! THE AMERICAN PEOPLE ARE $LOWLY FINDING OUT HOW EA$Y IT I$ FOR MIDDLE CLA$$ AND WORKING POOR AMERICAN$ TO FALL VICTIM TO OUR U$ MONETARY JUDICIAL $Y$TEM.

    ****WHEN THE US INNOCENT WERE ABANDONED BY THE GUILTY **** The prison experts have reported that there are 100,000 innocent Americans currently being falsely imprisoned along with the 2,300,000 total US prison population nationwide.

    ****WHERE ARE AMERICA’S RELIGIOUS LEADERS ??????? Since our US Congress has never afforded poor prison inmates federal appeal legal counsel for their federal retrials,they have effectively closed the doors on these tens of thousands of innocent citizens ever being capable of possibly exonerating themselves to regain their freedom through being granted new retrials.

    ****This same exact unjust situation was happening in our Southern States when poor and mostly uneducated Black Americans were being falsely imprisoned for endless decades without the needed educational skills to properly submit their own written federal trial appeals.

    ****This devious and deceptive judicial process of making our poor and innocent prison inmates formulate and write their own federal appeal legal cases for possible retrials on their state criminal cases,is still in effect today even though everyone in our US judicial system knows that without proper legal representation, these tens of thousands of innocent prison inmates will be denied their rightful opportunities of ever being granted new trials from our federal appeal judges!!

    ****Sadly, the true US *legal* Federal Appeal situation that occurs when any of our uneducated American prison inmates are forced to attempt to submit their own written Federal Appeals (from our prisons nationwide) without the assistance of proper legal counsel, is that they all are in reality being denied their legitimate rights for Habeas Corpus with our US FEDERAL COURTS and will win any future Supreme Court Case concerning this injustice!

    ****For our judicial system and our US Congressional Leaders Of The Free World to continue to pretend that this is a real and fair opportunity for our American Middle Class and Working Poor Citizens, only delays the very needed future change of Federal Financing of all these Federal appeals becoming a normal formula of Our American judicial system.

    ****It was not so very long ago that Public Defenders became a Reality in this country.Prior that legal reality taking place, their were also some who thought giving anyone charged with a crime a free lawyer was a waste of taxpayers $$.

    ****This FACADE and HORROR of our Federal Appeal proce$$ is not worthy of the Greatest Country In The World! ***GREAT SOCIETIES THAT DO NOT PROTECT EVEN THEIR INNOCENT, BECOME THE GUILTY !

    ****A MUST READ ABOUT AMERICAN INJUSTICE:

    1) YAHOO 2) GOOGLE

    (MANNY GONZALES THE KID THAT EVERYONE FORGOT IN THE CA PRISON SYSTEM.)

    **** A JUDICIAL RIDE OF ONES LIFE !

    ****Someone please tell our US Congress that the GED degree that Manny Gonzales acquired in prison is not a LAW DEGREE !!!!!!

    lawyersforpooramericans@yahoo.com (424-247-2013)

  5. LAWYERS FOR POOR AMEERICANS - November 7, 2008 at 5:41 pm

    *** THIS IS ONLY THE TIP OF THE ICEBERG OF INJUSTICES BEING INFLICTED ON OUR POORER AMERICAN’S IN A UNDERFUNDED JUDICIAL SYSTEM THAT NEEDS…C*H*A*N*G*E…….

    **** GOD’S HAND IS INVOLVED IN THIS ONE ****

    WHEN THIS HORROR IS PROVEN TO BE A TRUE EVENT AFFECTING THE POSSIBLE ENSLAVEMENT OF 2,500 POORER AMERICAN’S, THEN ALL OF AMERICA WILL BE AWARE THAT THIS SAME EXACT TREATMENT OF OUR POORER CITIZENS NEEDS A FORMAL US CONGRESSIONAL AND JUSTICE DEPARTMENT INVESTIGATION NATIONWIDE !!!

    ————————————————————————–

    Posted on October 31, 2008 by Gideon

    —————————————————————————

    I’m a little late on writing about this story (via several sources), but it sure is a doozy.

    You know how it’s common knowlege that most appeals aren’t successful? Well, if you were a pro-se petitioner in Louisiana for the last 13 years, you knew that you wouldn’t win. Why is that? Because the Chief Judge of their Court of Appeals directed his clerk to summarily deny all appeals from pro-se petitioners without circulating the appeal to other judges.

    The clerk, ridden with guilt, committed suicide earlier this year and left a note confessing everything.

    This immoral and apparently illegal policy was in place until Jerrold Peterson, the staffer charged with implementing it, blew his brains out in May of last year. Peterson was driven to it in part, his suicide note suggested, by guilt over the nefarious tasks the judges made him perform.

    In his note Peterson explained how the court gave indigent appellants the bum’s rush.

    Although every criminal writ application is supposed to be reviewed by three judges, he was deputed to winnow out any that had been filed pro se and arrange for their automatic rejection.

    Thus were an estimated 2,500 appeals deep-sixed without any judicial consideration whatsoever.

    Now, facing public embarassment and possible ethical violations, the Louisiana Supreme Court has stepped in and asked…get this…the same appellate court to look at the appeals again. Note that they did not ask the Court to conduct an investigation into this practice, but simply to consider those appeals that were so summarily denied.

    Because, if we placate the defendants with another cursory look at their appeals, we can sweep the ethical violations under the carpet.

    At first this whole thing seemed rather odd to me. After all, how is this even possible? Here’s how:

    Edward Dufresne, Chief Judge of the Fifth Circuit, took charge of pro se appeals in 1994. He then had Peterson prepare rulings denying writs for all of them and signed off “without so much as a glance,” according to the suicide note. “No judge ever saw the writ application before the ruling was prepared by me,” Peterson wrote in a second suicide note to the Judiciary Commission.

    The rulings also bore the names, though not the signatures, of judges Marion Edwards and Wally Rothschild. Neither Edwards nor Rothschild had any clue as to what was in the applications, or even knew that they had been filed, according to Peterson.

    So you’ve got one complicit judge and maybe three. But there are 5 more on that court. What of them? Are we to really believe that these 5 (or 7) other judges never once questioned the stark absence of pro-se appeals? Particularly in Louisiana, whose system has the following characteristics:

    * About 90 percent of criminal defendants in Louisiana are indigent.

    * Louisiana only provides post-conviction legal aid in death penalty cases. Everyone else must either hire a lawyer, find a lawyer to handle their case pro bono, or handle the appeal themselves. Obviously, most have no choice but to opt for the latter.

    * One criminal defense lawyer in Louisiana told me that if you’re convicted of murder in Louisiana and you’re innocent, you’re actually better off getting the death penalty. At least then you’ll get a team of lawyers, investigators, and experts to help with your appeal.

    This from a state whose criminal justice system was already crumbling. It’s hard to believe that people such as Judge Dufresne take an oath to uphold the law and to prove equal protection under it. Disbarment may be enough, but only barely.

    Justice delayed is no justice at all.

    —————————————————————————

    ——————————————————————————————————————————————————

    THE SMOKING GUN LINK TO AMERICA’S JUDICIAL INJUSTICES BEING INFLICTED ON POORER AMERICAN’S !

    *********************************************************** http://www.nola.com/timespic/stories/index.ssf?/base/news-0/1223616107256210.xml&coll=1

    ************************************************************

    lawyersforpooramericans@yahoo.com (424-247-2013)

  6. LAWYERS FOR POOR AMEERICANS - November 7, 2008 at 5:44 pm

    *** THIS IS ONLY THE TIP OF THE ICEBERG OF INJUSTICES BEING INFLICTED ON OUR POORER AMERICAN’S IN A UNDERFUNDED JUDICIAL SYSTEM THAT NEEDS…C*H*A*N*G*E…….

    **** GOD’S HAND IS INVOLVED IN THIS ONE ****

    WHEN THIS HORROR IS PROVEN TO BE A TRUE EVENT AFFECTING THE POSSIBLE ENSLAVEMENT OF 2,500 POORER AMERICAN’S, THEN ALL OF AMERICA WILL BE AWARE THAT THIS SAME EXACT TREATMENT OF OUR POORER CITIZENS NEEDS A FORMAL US CONGRESSIONAL AND JUSTICE DEPARTMENT INVESTIGATION NATIONWIDE !!!

    ————————————————————————–

    Posted on October 31, 2008 by Gideon

    —————————————————————————

    I’m a little late on writing about this story (via several sources), but it sure is a doozy.

    You know how it’s common knowlege that most appeals aren’t successful? Well, if you were a pro-se petitioner in Louisiana for the last 13 years, you knew that you wouldn’t win. Why is that? Because the Chief Judge of their Court of Appeals directed his clerk to summarily deny all appeals from pro-se petitioners without circulating the appeal to other judges.

    The clerk, ridden with guilt, committed suicide earlier this year and left a note confessing everything.

    This immoral and apparently illegal policy was in place until Jerrold Peterson, the staffer charged with implementing it, blew his brains out in May of last year. Peterson was driven to it in part, his suicide note suggested, by guilt over the nefarious tasks the judges made him perform.

    In his note Peterson explained how the court gave indigent appellants the bum’s rush.

    Although every criminal writ application is supposed to be reviewed by three judges, he was deputed to winnow out any that had been filed pro se and arrange for their automatic rejection.

    Thus were an estimated 2,500 appeals deep-sixed without any judicial consideration whatsoever.

    Now, facing public embarassment and possible ethical violations, the Louisiana Supreme Court has stepped in and asked…get this…the same appellate court to look at the appeals again. Note that they did not ask the Court to conduct an investigation into this practice, but simply to consider those appeals that were so summarily denied.

    Because, if we placate the defendants with another cursory look at their appeals, we can sweep the ethical violations under the carpet.

    At first this whole thing seemed rather odd to me. After all, how is this even possible? Here’s how:

    Edward Dufresne, Chief Judge of the Fifth Circuit, took charge of pro se appeals in 1994. He then had Peterson prepare rulings denying writs for all of them and signed off “without so much as a glance,” according to the suicide note. “No judge ever saw the writ application before the ruling was prepared by me,” Peterson wrote in a second suicide note to the Judiciary Commission.

    The rulings also bore the names, though not the signatures, of judges Marion Edwards and Wally Rothschild. Neither Edwards nor Rothschild had any clue as to what was in the applications, or even knew that they had been filed, according to Peterson.

    So you’ve got one complicit judge and maybe three. But there are 5 more on that court. What of them? Are we to really believe that these 5 (or 7) other judges never once questioned the stark absence of pro-se appeals? Particularly in Louisiana, whose system has the following characteristics:

    * About 90 percent of criminal defendants in Louisiana are indigent.

    * Louisiana only provides post-conviction legal aid in death penalty cases. Everyone else must either hire a lawyer, find a lawyer to handle their case pro bono, or handle the appeal themselves. Obviously, most have no choice but to opt for the latter.

    * One criminal defense lawyer in Louisiana told me that if you’re convicted of murder in Louisiana and you’re innocent, you’re actually better off getting the death penalty. At least then you’ll get a team of lawyers, investigators, and experts to help with your appeal.

    This from a state whose criminal justice system was already crumbling. It’s hard to believe that people such as Judge Dufresne take an oath to uphold the law and to prove equal protection under it. Disbarment may be enough, but only barely.

    Justice delayed is no justice at all.

    —————————————————————————

    ——————————————————————————————————————————————————

    THE SMOKING GUN LINK TO AMERICA’S JUDICIAL INJUSTICES BEING INFLICTED ON POORER AMERICAN’S !

    *********************************************************** http://www.nola.com/timespic/stories/index.ssf?/base/news-0/1223616107256210.xml&coll=1

    ************************************************************

    lawyersforpooramericans@yahoo.com (424-247-2013)

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