#eligibility: Keyes v. Bowen Appealed: Precedent Exists for Courts to Qualify Public Executives
In a posting regarding attorney Gary Kreep’s appeal of Keyes v. Bowen to the 3rd Appellate District Court in California (a case different from attorney Dr. Orly Tait’s case, also on appeal), WorldNetDaily reports that there is precedent for Court removal of a governmental chief executive.
Longtime readers will recall when I last reported on this case that the Plaintiffs did not have all of their research in order to prove to the Court that such eligibility petitions were not unprecedented. In fact, at the time, Ballot-Access.org reported the following:
On March 13, California Superior Court Judge Michael Kenney tentatively ruled against Alan Keyes, in the lawsuit concerning whether President Barack Obama meets the constitutional qualifications to be president, and whether the California Secretary of State should have put him on the ballot. The case is Keyes v Bowen, 34-2008-8000096-CU-WM-GDS. The 6-page opinion seems to strengthen the rights of political parties to place anyone they wish on the November ballot, regardless of that candidate’s qualifications.
The decision says, “Defendants contend that Election Code sec. 6901 requires the Secretary of State to place on the ballot the names of the candidates submitted to her by a recognized political party and that she has no discretion to override the party’s selection. The Court finds that the First Amended Petition fails to state a cause of action against the Secretary of State…Federal law establishes the exclusive means for challenges to the qualifications of the President and Vice President. That procedure is for objections to be presented before the U.S. Congress pursuant to 3 U.S.C. section 15.”
In 1968, the California Secretary of State refused to list Eldridge Cleaver on the November ballot as the presidential nominee of the Peace & Freedom Party. Cleaver and PFP sued the Secretary of State, but the State Supreme Court refused to hear the case, by a 6-1 vote. Cleaver and the party then asked the U.S. Supreme Court to intervene, but that Court refused, 393 U.S. 810 (October 7, 1968). In this current Keyes lawsuit, attorneys for the Defendants claimed there was no such lawsuit. The attorney for Keyes did not have the California Supreme Court citation (58 Minutes 411), nor the U.S. Supreme Court cite, so he wasn’t able to establish the existence of this 40-year old precedent that does seem to give the Secretary of State the authority to refuse a party’s choice for president, if the Secretary of State thinks the party chose someone who doesn’t meet the constitutional qualifications. Keyes will appeal and his appeal will include the Cleaver precedent citation.
Eldridge Cleaver had been removed from the California ballot because the Secretary of State had learned that he was only 33 years old. [emphasis mine]
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As WND states (and somewhat reiterating what I’ve quoted from Ballot-Access):
“In 1968, the Peace and Freedom Party submitted the name of Eldridge Cleaver as a qualified candidate for president of the United States. The then-Secretary of State, Mr. Frank Jordan, found that, according to Mr. Cleaver’s birth certificate, he was only 34 years old, one year shy of the 35 years of age needed to be on the ballot as a candidate for president,” the brief, being filed this week, argues.
“Using his administrative powers, Mr. Jordan removed Mr. Cleaver from the ballot. Mr. Cleaver, unsuccessfully, challenged this decision to the Supreme Court of the State of California, and, later, to the Supreme Court of the United States, which affirmed the actions.”
The other is a court precedent in which the governor of North Dakota was removed from office after the state Supreme Court determined he did not meet the state constitution’s eligibility requirements. …
Kreep alleges the dismissal of the state case by Judge Michael Kenny was in error because the defendants “failed to establish that there was no triable cause of action on the critical constitutional issues of whether Obama has met the eligibility requirements to serve as president of the United States and whether Bowen has the duty, as chief elections officer of the state of California, to verify the eligibility of candidates for federal office running in the state of California.”
The president’s lawyers in many of the cases have said, and judges have agreed so far, that the courts simply don’t have jurisdiction over a question of eligibility because of the Constitution’s provision that president’s must be removed by impeachment, which rests with Congress.
In one case, the president’s lawyers prominently argued, “The Constitution’s commitment to the Electoral College of the responsibility to select the president includes the authority to decide whether a presidential candidate is qualified for office.
“The examination of a candidate’s qualifications is an integral component of the electors’ decision-making process. The Constitution also provides that, after the Electoral College has voted, further review of a presidential candidate’s eligibility for office, to the extent such review is required, rests with Congress,” the president’s lawyers argued.
But the issue, however, already has been adjudicated by courts, and the resolution is that courts do have the authority to review eligibility and even remove an ineligible chief executive, the appeal brief cites.
“Even though Obama was elected to this office, this ineligibility constitutes a legal disability for the office of president of the United States,” the brief states. “In ‘State ex rel. Sathre v. Moodie,’ after Thomas H. Moodie was duly elected to the office of governor of the state of North Dakota, it was discovered that Thomas H. Moodie was not eligible for the position of governor, as he had not resided in the state for a requisite five years before running for office, and, because of that ineligibility, he was removed from office and replaced by the lieutenant governor,” the brief explains. …
The Democrat was nominated by his party for governor in 1934 and beat his Republican opponent, Lydia Langer.
“As soon as the election was over, there was talk of impeachment, but no charges were filed,” the state’s archives report. “After Moodie’s inauguration on January 7, 1935, it was revealed that he had voted in a 1932 municipal election in Minnesota. In order to be eligible for governor, an individual has to have lived in the state for five consecutive years before the election. The State Supreme Court determined that Governor Moodie was ineligible to serve, and he was removed from office on February 16, 1935,” the state reports.
“We’re seeking to bar anyone from going on the presidential ballot in 2012 unless they can prove that they’re eligible,” Kreep told WND.
“Appellants contend that Bowen has a duty to ensure that all candidates in the state of California, for both federal and state offices, meet the eligibility requirements for the offices sought, that Bowen did not fulfill said duty, and that a court determination is needed to ensure that the California secretary of state comply with this duty in the future,” the brief said. …
Further, courts can address the problem.
While the dispute has “significant political overtones,” it is, nonetheless, “an issue which the court can make a determination on, because the requirements are clearly stated in Article II, Section 1, Clause 4, of the U.S. Constitution and courts routinely decide questions of law and of fact such as the issue in this case.”
“A provision of the Constitution may not be disregarded by means of a popular vote of the people, as there are specific guidelines for amending the Constitution of the United States,” it continues.
“Respondents denied that this Cleaver case had any relevance to the underlying issue … Similarly, in 1984, the Peace and Freedom Party listed Mr. Larry Holmes as an eligible candidate in the presidential primary. When the then SOS checked his eligibility, it was found that Mr. Holmes was, similarly, not eligible, and Mr. Holmes was removed from the ballot… It this case, we have a similar situation in that the Democratic Party submitted the name of Obama as a candidate for president,” the brief argues.
First, “significant political overtunes” must be irrelevant for the Judiciary, else no decision could ever be made on any constitutional question. Therefore, to me, this is a moot point.
Yet, let’s get back to the bigger issue of eligibility and the Courts.
This political question with respect to the Judiciary can be broken down into a number of legitimate points:
- Can the Judiciary determine whether or not a candidate is eligible for a sought-after office?
- Can the Judiciary issue an opinion that would subsequently cause a candidate to be ineligible for such office?
- To what extent is the Judiciary tasked with enforcing the constitutional question of eligibility?
In this citizen reporter’s non-attorney opinion, the answer is that the Judiciary does have a role in making sure that the law is enforced, particularly by those other branches that are tasked with such a duty.
Remember, I have repeatedly stated that since there currently exists no law that enforces presidential or vice presidential constitutional eligibility nor to what degree it ought to be enforced, it would be practically impossible for the Court to issue an order against a non-existent law. Therefore, if the Judiciary is to be petitioned regarding eligibility, another route must be used instead; this posting could be such an opening.
On the one hand, we are told by many a Defendant in various eligibility cases that the Secretary of State has, effectively, no discretion in determining whether or not a candidate could be placed on the ballot. As this posting shows, the Defendants have either been lying or ignorant (then the question becomes whether such ignorance is willful or not) when there is already such existing precedent.
Further, it is also a contention that “only” (“the exclusive means”) the Congress and/or the Electoral College is tasked by the Constitution and/or federal law for vetting a candidate. Again, precedent clearly shows that this is not the case. Furthermore, any Defendant would be hard-pressed to find any verbiage (outside of their albeit learned opinions) that specifically states that the Joint Session of Congress and/or the Electoral College are “only,” “solely,” or “exclusively” the routes for answering eligibility questions. Incidentally, no opposition commenter on this site can find such exclusive verbiage either, outside of their own worthy opinions.
Lastly, there is the issue of removal. As I’ve stated numerous times on my site — and as the singular point upon which the opposition and I agree — the Judiciary cannot lawfully remove a sitting President, and it’s just as unlikely that the branch could remove a lower chief executive. Nevertheless, making a determination as to the eligibility of a President is something that can be quintessentially within its jurisdiction, where the Legislative branch would subsequently be tasked with such official removal.
In my view, what Mr. Kreep must show the Court is how deficient the Secretary of State for California was in making a determination for whether or not Mr. Obama should have been placed on the ballot; he might even ask her upon what basis did she make her determination. Did she use the Internet to vet Mr. Obama? Did she even vet Obama at all?
Either way, clear precedent exists that her very office had previously vetted candidates. Based on what we know today, it’s a shame that such vetting — whether it resulted positively or negatively — did not occur.
It’s also exceedingly obvious that her office’s finger-pointing back to the Democrat party is a complete ruse.
See the following links regarding the eligibility saga:
- The background:
- The questions:
-Phil
Subscriptions -=- Twitter: @trsol -=- email: phil [at] therightsideoflife [dot] com
Photo courtesy OrlyTaitzSite.com
Another of Alan Keyes’ cases is under appeal. It was first known as “Keyes v. Obama“, then “Barnett v. Obama“, the yesterday the appeal became “Drake v. Obama“, when the U.S. Court of Appeals for the Ninth Circuit consolidated two appeals of Barnett. Let’s see how well Gary Kreep and Orly Taitz work together. Again.
http://www.scribd.com/doc/26773593/KEYES-BARNETT-v-OBAMA-APPEAL-10-Filed-clerk-order-Deputy-Clerk-MT-The-court-sua-sponte-consolidates-appeal-nos-Consolidation-and-Schedulin (Thanks to Realist at Politijab for the document.)
Bob says:
By “any sitting judge”, I mean a current judge. Newman v. United States ex rel. Frizzell is from 1915.
QW John made a point that the judges who dismissed quo warranto actions in Barnett v. Obama and Kerchner v. Obama had never handled a federal quo warranto case. Has any sitting judge issued the writ? It’s still in the D.C. code, but procedurally obsolete. (And of course it was never applicable to Constitutional offices.)
I don’t think any sitting judge has ever issued the federal writ.
In the Newman case, Newman tried to dismiss the petition, but the trial court denied that request. There was actually a trial, the jury found against Newman, and the judge ordered Newman’s ouster.
Of course, SCOTUS ruled the trial court erred in not dismissing the case, so the trial itself became a nonevent.
The case arises from the president appointing Newman as D.C. City Commissioner (and not a constitutional office).
QW John says:
Ah, I misread. Sorry.
I see you were actually arguing that Congress could not remove an illegitimate President. Nonsense.
That had nothing to do with federal quo warranto.
At the federal level quo warranto has been procedurally abolished. I don’t think any sitting judge has ever issued the federal writ. It was *never* applicable to offices named in the Constitution.
Again, note the vast difference between what you say and what real judges on real courts say.
6.) Cannot be removed by Congress. Constitutionally it has no way to determine or prove if Obama is usurper or not, because of its politically charged nature, only a court can determine that.
“Politically charged nature” is irrelevant to the Constitution’s verbiage; if don’t like what the Constitution says, amend it, don’t violate it.
7.) Cannot be impeached or removed under the constitution by Congress for a disability that cannot be determined by it.
Actual courts have said otherwise, and you provide no legal citation to support your position. But if some random person on the Internet says so….
Bob,
The nondelegation doctrine, under the facts surrounding Obama’s ineligibility, does not apply.
1.) Obama ineligible to be a valid candidate, not “natural born citizen.”
2.) Violates constitutional due process rights of fellow candidates in same election.
3.) Wins the election.
4.) Assumes the legal condition of what is called in law a “usurper.” Is not legally in the Article I position of president other than de facto by being physically there in person, illegally. Therefore, non-delegation doctrine does not apply.
5.) Does not have a legal claim or right to the office – that is, not a real “sitting president,” but a usurper, imposter, faker fakir.
6.) Cannot be removed by Congress. Constitutionally it has no way to determine or prove if Obama is usurper or not, because of its politically charged nature, only a court can determine that.
7.) Cannot be impeached or removed under the constitution by Congress for a disability that cannot be determined by it.
8.) No other viable legal remedy available for those candidates directly affected by Obama’s fraud other than a quo warranto action.
9.) No other forum available to bring quo warranto outside D.C. District Court, which court was granted jurisdiction to hear such cases by Congress.
10.) D.C. District Court the only forum for three listed entities to bring quo warranto, where the authentic “interested persons” – the other candidates who ran against Obama – are the ones that have standing to bring the action.
There. Now I have! Again, for the last time. Good luck to you.
In Shannon v. Jacobowitz, 394 F.3d 90 (2d Cir. 2005), a candidate for town supervisor alleged civil rights violations due to voter machine malfunctions. (Although the voting machines reported the candidate received more votes, this count was incorrect, and the incumbent was declared the winner.)
The circuit court reversed the district court’s rulings because there was no evidence of intentional disruption of voting rights. But more basically, the circuit court did not want someone making literally a federal case over a voting machine malfunction absent an actual bad act.
The stray reference to quo warranto was that, under state law, the proper method to challenge voting machine irregularities was to file a quo warranto action. In state court.
All of which has absolutely nothing to do with the D.C. Code’s quo warranto law.
For an actual case involving the D.C. Code, John ought to read Newman v. United States ex rel. Frizzell, 238 U.S. 537 (1915), which explains in no uncertain terms why Taitz’s case will be dismissed.
brygenon,
You misquote me by adding “[Congress]” as if that is what I was saying. It is the “other candidates” that ran against Obama in the 2008 election that have the standing, not Congress.
I could only find one case peripherally involving a state quo warranto, in Shannon v. Jacobowitz, January 7, 2005, where the Second Circuit Court of Appeals appears to have sent back a 42 U.S.C. Section 1983 case that should have been brought in quo warranto. I am not aware of any other quo warranto cases that have been decided by any federal court. Are you?
This is a case of first impression, for sure. I can’t wait for the proper relators to get their case into that D.C. District Court so we can all see “what the law is” going to be on this whole matter. It will be exciting to read the final reasoning behind all the issues touched upon by everyone in these posts.
Do you genuinely think, after all the exposure of this eligibility matter in the media, and courts, that Obama could pass eligibiliy scrutiny to be a valid candidate in 2012???
Yes; and given the birther track record, I’d bet double.
To me, this explains why you can’t comprehend what I have explained completely, over and over to you in my previous posts, why, what you espouse, does not apply to the usurper Obama.
No, you haven’t. In case I’m being unclear:
NO YOU HAVE NOT.
The nondelegation doctrine makes it clear that applying D.C. quo warranto statute to the president would violate the U.S. Constitution. You have failed to even attempt to explain otherwise.
Bob,
“he’ll be gone by January 20, 2017.”
That’s pretty funny, Bob! You really got a laugh out of me with that one.
Do you genuinely think, after all the exposure of this eligibility matter in the media, and courts, that Obama could pass eligibiliy scrutiny to be a valid candidate in 2012???
To me, this explains why you can’t comprehend what I have explained completely, over and over to you in my previous posts, why, what you espouse, does not apply to the usurper Obama.
He’s toast, that hasn’t yet popped out of the toaster.
Please re-read what I wrote in my last post. I can’t explain it any clearer than that for you.
What you have yet to explain is how the nondelegation doctrine doesn’t apply when the U.S. Constitution has expressly given Congress the power to remove the president.
Congress can do abolutely nothing in this matter.
Impeachment (or removal in case of disability); it is in the Constitution.
The rules for impeachment and removal for disability work just fine on real, lawful presidents
Which Obama is, given the Electoral College’s vote, the certification, and the swearing. That “John thinks so” doesn’t change a thing.
There is no need to amend anything or “invent” anything to uphold those candidates’ constitutional rights.
Yet that exactly what you are trying to do with an unconstitutional application of D.C.’s quo warranto law.
I am not sure, however, if she will be granted standing if both the AG and U.S. Attorney are found to have been derelict in their duty.
The AG and US Attorney for DC haven’t been derelict in their duty; even if they somehow have, she still isn’t an interested person.
We’ll see what happens in time.
Rest assured, he’ll be gone by January 20, 2017.
QW John wrote:
In the federal courts, redressability is one of the three requirements for standing, and thus a requirement for subject matter jurisdiction. If a federal Court lacks power of redress, it lacks jurisdiction to try the case. Congress’s authority, Congress’s call.
Can you cite *any* sitting judge who has tried a federal quo warranto case?
Bob,
Please re-read what I wrote in my last post. I can’t explain it any clearer than that for you.
Congress can do abolutely nothing in this matter. Nothing. The rules for impeachment and removal for disability work just fine on real, lawful presidents, the same as quo warranto is there for individuals who have been directly harmed by a usurper.
I like the way the constitution and laws exist. There is no need to amend anything or “invent” anything to uphold those candidates’ constitutional rights. The constitution and laws are a perfect fit for all situations that arise, even under the facts associated with Obama’s fraudulent conduct.
I agree that Orly Taitz most likely does not have standing as an “interested person.” I am not sure, however, if she will be granted standing if both the AG and U.S. Attorney are found to have been derelict in their duty.
Yes, you are correct. Obama will continue as the de facto president until removed for usurping the position. Believe me, I can wait for the wheels of justice to turn, even though they do so at a snail’s pace most of the time. It’s never “enjoyable” to watch justice being denied, for any reason. We’ll see what happens in time.
Phil says:
As you should have noticed by now, Phil, the opposition likes to cite what actual courts have said to eligibility deniers on just that issue:
“Federal law establishes the procedure for election of the President and Vice President and establishes the exclusive means for challenges to the qualifications of the President and Vice President. That procedure is for objections to be presented before the United States Congress pursuant to 3 U.S.C. section 15.” — Superior Court of California, Keyes v. Bowen
Also see the quotes from Barnett v. Obama and Kerchner v. Obama. I figure you must be tired of those by now, but you’re still pretending this is just something your opposition likes to suggest to confuse the issue, when in fact it is what real judges on real courts have told you.
I contend that Obama is not a valid “sitting president”
Then take your complaint to Congress, as the U.S. Constitution grants it the sole power of removal.
Congress would never politically be able to identify such much less remove one from the seat, particularly when the usurper is of the same party majority controlling the Senate.
If you don’t like the rules for impeachment, you amend the Constitution. You don’t get to invent unconstitutional workarounds.
I would trust what Judge Royce Lamberth decides on any and all cases brought before the D.C. Court in quo warranto.
Judge Lamberth who killed all the “presentments”? Taitz isn’t an interested party; her case will be dismissed soon enough.
I’ll stick with my legal analysis, let the court decide, and see where I am right or wrong thereby.
Fair enough: You can wait for the courts, and Obama will continue to be president in the meantime. Hope you enjoy the wait.
Bob & Bry,
I agree that a legally “sitting president” can be removed by Congress the way the Constitution dictates. An illegally “sitting president” is a usurper, one who does not have a legal right or claim to the position, yet is holding himself/herself out as such. I contend that Obama is not a valid “sitting president” at this time, that is, he is instead a usurper in the seat, so there is no actual “sitting president” there to be removed by Congress, legally speaking. There is no way for Congress to remove a usurper, as Congress would never politically be able to identify such much less remove one from the seat, particularly when the usurper is of the same party majority controlling the Senate.
Congress is not the one that is directly harmed by a usurper. Those “interested parties” harmed by a usurping president are the other candiates who were defrauded out of their constitutonal rights in the election. They are the ones who have standing to remove a usurper. But first a usurper has to be legally identified. That operation is accomplished by the courts. There is only one court in the country that has original jurisdiction over elected public offices in D.C. involving quo warranto – which is the remedy to identify and remove a usurper [in this case, not a legally "sitting president" by usurper definition] – the D.C. District Court.
As far as the decisions in Barnett and Kerchner, those decisions come from judges that have never handled a federal quo warranto case, because they do not have jurisdiction to do so. I would consider what they have said, but would not bet the farm on their analysis being correct. You can. I wouldn’t. I’ll stick with my legal analysis, let the court decide, and see where I am right or wrong thereby. I would trust what Judge Royce Lamberth decides on any and all cases brought before the D.C. Court in quo warranto.
RealAmerica,
You are by no means the only individual who thinks this way. I, for one, completely agree with everything you’ve stated.
It is the opposition who likes to confuse the matter by suggesting that there is some law somewhere that states that a Joint Session of Congress is the “only” means by which a presidential candidate’s eligibility can be tested.
Obviously, this is not true, for the following reasons:
1. Nowhere in the Constitution or in federal statute is it explicitly stated that a Joint Session of Congress is the “sole” or “only” means by which a presidential candidate’s eligibility can be tested;
2. Even if point 1 were actually true, then there’d really be no need for a campaign or even the Electoral College. After all, if the Joint Session were the only place to test eligibility, then there’d be no point to “qualify” (in a practical sense: “Are they up for the job?”) a candidate during these times;
3. There is no constitutional verbiage nor federal statute that stipulates (as you’ve wisely concluded) any statute of limitations on presidential eligibility. Such eligibility can be checked at any time;
4. While the Congress does possess — by constitutional mandate — the sole power of impeachment, that is not the same thing as investigating for eligibility. Impeachment is a process that occurs subsequent to a finding (doesn’t matter where, really) of incapacity to hold office. Remember, being ineligible is not illegal; no crimes are broken if one is found to be ineligible for the presidency. Of course, if fraud were involved as a part of a potential cover-up, then that infraction would have to be dealt with separately.
-Phil
QW John wrote:
John, snipping what the real courts said does not make it go away, even if it helps you personally cling to what you want to believe. Note the vast difference between what you say and what actual courts actually did say in eligibility cases that raised quo warranto:
“on the day that President Obama took the presidential oath and was sworn in, he became president of the United States. Any removal of him from the presidency must be accomplished through the Constitution’s mechanisms for the removal of a president, either through impeachment or the succession process set forth in the Twenty-Fifth Amendment.” — U.S. District Court for the Central District of California, Barnett v. Obama
“The Constitution commits the selection of the President to the Electoral College in Article II, Section 1, as amended by the Twelfth Amendment and the Twentieth Amendment, Section 3. The Constitution’s provisions are specific in the procedures to be followed by the Electors in voting and the President of the Senate and of Congress in counting the electoral votes. Further, the Twentieth Amendment, Section 3, also provides the process to be followed if the President elect shall have failed to qualify, in which case the Vice President elect shall act as President until a President shall have qualified. None of these provisions evince an intention for judicial reviewability of these political choices.” U.S. District Court for the District of New Jersey — Kerchner v. Obama
My quo warranto action, under State election laws, is exactly the same in principle as the one against Thomas Moodie and one brought against Obama. The purpose of the action is to substantiate legal eligibility as a candidate, or the lack thereof.
Which gets us back to the nondelegation doctrine. The U.S. Constitution has given Congress the exclusive role in removing a sitting president. By doing so, the courts do not have any authority to hear a quo warranto action with respect to the president.
If your (fictional) quo warranto action was filed in, say, Ohio, the Ohio Constitution specifically authorizes the courts to hear quo warranto actions, without limitation. (Same as the North Dakota Constitution in effect during Moodie’s time.)
In contrast, not only does the U.S. Constitution lack such authorization, the exact remedy (removal) is specifically delegated to Congress.
Hence the distinction without a difference you (and Donofrio) are trying to create.