SOS Lawsuits: New Jersey Bi-Partisan Suit Awaiting SCOTUS Decision

by Phil on 11/10/2008

Today the Natural Born Citizen blog has posted updates concerning SCOTUS Docket #: 08A407, which is basically a suit alleging that NJ SOS Nina Mitchell Wells was supposed to police ballots against ineligible candidates (in this case, per the suit, both Senators).

The blog has plenty of links for you to peruse the documentation…

On October 27, 2008, plaintiff-appellant, Leo Donofrio, a retired attorney acting Pro Se, sued Nina Mitchell Wells, Secretary of State of the State of New Jersey, in the Superior Court of New Jersey, Appellate Division, demanding the Secretary execute her statutory and Constitutional duties to police the security of ballots in New Jersey from fraudulent candidates ineligible to hold the office of President of the United States due to their not being “natural born citizens” as enumerated in Article 1, Section 2, of the US Constitution.  

Unlike other law suits filed against the candidates, Berg etc., this action was the only bi-partisan suit, which sought to have both McCain and Obama removed for the same reason.  (Later, Plaintiff also sought the removal of Nicaraguan born Roger Colera, the Presidential candidate for the Socialist Workers Party). The Berg suit will almost certainly fail on the grounds of “standing”, butDonofrio v. Wells, having come directly from NJ state courts, will require the SCOTUS to apply New Jersey law, and New Jersey has a liberal history of according standing to citizens seeking judicial review of State activity.

While raising it as an ancillary issue, Plaintiff in this case didn’t rely upon questioning Obama‘s birth certificate as the core Constitutional dilemma.  Rather, he alleges that even if Obama was born in Hawaii, he was born to a Kenyan national father and is therefore not eligible to be President due to having dual loyalties at birth and split jurisdiction at the time of his birth.

The cause of action first accrued on September 22, 2008, when Secretary Wells certified to county clerks, for ballot preparation, a written “statement”, prepared under her seal of office, that was required by statute to contain names of only those candidates who were “by law entitled” to be listed on ballots in New Jersey.  The statement is demanded by N.J.S.A. 19:13-22.

The law suit raises a novel contention that the statutory code undergoes legal fusion with the Secretary’s oath of office to uphold the US Constitution thereby creating a minimum standard of review based upon the “natural born citizen” requirement of Article 2, Section 1, and that the Supremacy clause of the Constitution would demand those requirements be resolved prior to the election.

Also:

Plaintiff then submitted the case on an emergency basis to the New Jersey Supreme Court where a staff attorney reviewed it, requested 10 copies each of the Motion and 75 page appendix, and informed Plaintiff that a Supreme Court Justice would review it immediately with three possible scenarios unfolding: 

– the Supreme Court Justice could grant the application on their own

– the Supreme Court Justice could deny the application on their own

– the Supreme Court Justice could call in the other Justices to review the case

Later that afternoon, Plaintiff was informed by telephone that his papers were in order and that other Justices of the Supreme Court had been brought in to discuss the case. 

Regardless, later that afternoon, the application for emergency relief was denied.  

However, in an incredible turn of events, the NJ Supreme Court specifically ignored the lower court’s five page opinion – such opinion having avoided the Constitutional question presented – and relied upon “Movant’s Papers” which did discuss and employ Constitutional issues. [emphasis theirs]

Where is this now?

Instead of making a full Petition for Certiorari, plaintiff-appellant, as to his Emergency Stay Application, relied on the procedural history in Bush v. Gore, wherein Bush also chose to fore go a full Petition for Cert., and instead relied exclusively on an emergency Stay application handed to one Justice who then empaneled the entire court.  The Supreme Court then granted the Stay, treated the Stay application as a full Petition for Certiorari and granted that Petition despite the fact that Bush only submitted the one Application for Emergency Stay.  That was done because the urgency of the situation begged resolve of the national Presidential election.  The same conditions apply here as the clock is ticking down to December 15th, the day for the Electoral College to meet.  

The bi-partisan case progressed quietly through the lower courts with no publicity as the plaintiff-appellant sought to respect court authority seeking only to have the “natural born issue” determined once and for all.  He didn’t create a web site or request donations.  The suit is self financed.  

However, due to some very unorthodox treatment of the case in the NJ Appellate Division, and also by the US Supreme Court Clerk’s office, a press conference is now being prepared to coincide with the resubmission of the Stay application to Justice Clarence Thomas. 

 


Update:

 

Mr. Donofrio fully explains exactly what happened at the SCOTUS level that nearly caused the case to not even be docketed. Sheesh — talk about drama!

-Phil

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