On Open Courts, the Right to Petition and Obtain Declaratory Judgment, and Separation of Powers

Samstag, den 7. Mai 2011, 6:37:13 Uhr

On Open Courts, the Right to Petition and Obtain Declaratory Judgment, and separation of powers
Charles Lincoln <charles.lincoln@rocketmail.com>

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An: lawsters@googlegroups.com; lawmen@googlegroups.com
CC: Bob Hurt <bob@bobhurt.com>; producer@onsecondthought.tv; William M Lolli <wlolli@techassistinc.com>; JOHN WOLFGRAM<johnwolfgram@hotmail.com>
Interlinear response to John Wolfgram’s Friday May 6 2011 comments to my discussion of the Question of Presidential Eligibility follows….
I like your orientation to this issue Charles, and your basic argument about tax payer standing and the First Amendment right to Petition.  But I want to point out that the Petition Right is the Right to Petition Government for Redress of Grievances … not specifically addressed to the right to petition government through its courts.
I have often heard this argument, and it certainly would have made sense to an 18th Century English Audience, but it makes no sense in modern America today at all. It would have made sense in the 18th century because the people of England were accustomed to the tradition of making direct petitions to the King and Parliament and having those petitions acted upon.  Moreover, Parliament (especially the House of Lords) was up until just recently the Court of Last Resort in the United Kingdom—and more’s the pity they ever changed it, establishing for the first time a Supreme Court in England….terrible idea…House of Lords had worked just fine for 1000 years or more.  But, for better or for worse, no such traditions ever evolved in the United States—perhaps we SHOULD have made George Washington King instead of President, or perhaps we should have adopted a Parliamentary (less functionally divided) government, made Washington Prime Minister, and invited some other European Monarch to come over here and cure diseases with the magical touch of his hand—but we just didn’t do any of that.  It’s almost a bad joke to talk about presenting a Petition for Grievances to the President—it is sometimes done, but it’s a meaningless ritual—and there is no institutional process or remedy associated with writing letters to the President, anyone other than an administrative judge in the Executive Branch, or to anyone in the Congress.  
  So, there are, in that respect, limits to the right to petition in terms of the avenue or approach to the government in the petitioning process.  That right includes through the courts, but not every question is appropriate for handling by the courts.  So, I would say that the Courts have some rights to demurrer to some issues saying it is not appropriate or there is a more appropriate remedy, in this case, political.
The Constitution of 1787 gave us a separation of powers which really does not seem to me to provide but one really effective path for addressing petitions for redress of grievances.  Historically, I think this was a choice the Founders and Framers made—to limit the jurisdiction (power) of the Executive Branch to Taking Action, the Legislative Branch to making laws and deciding how money should be spent, and the Judiciary to hearing petitions regarding grievances, cases, and controversies.  
Under the Constitution of 1787, as amended through this year 2011, there is simply no obligation on the part of the President or Congress to read letters or Petitions—and that is why the people need and have come to expect automatic access to the Courts—and why they should be allowed such access.  The ONLY regular, routine, and guaranteed to be read ways and means of “petitioning” for redress of grievances are through the Courts—be they Article III or Article I legislatively created courts—and so for that very reason, it is part of my Campaign that there should be an “open courts” statute—possibly even an amendment to the Constitution analogous to the Open Courts provision of the Texas Constitution which was derived from the 1689 English Bill of Rights promulgated upon the deposition of Papist King James II, the Glorious Revolution, and the installation of William & Mary (the King & Queen, not the Virginia Liberal Arts College by that name in Williamsburg).  That was the end of the Stuart line (Queen Ann hardly counts).  In my never particularly humble opinion, to say that “the Petition Right is the Right to Petititon Government for Redress of Grievances…not specifically addressed to the right to petition government through its courts” is kind of like guaranteeing a right to travel, but no right to use the highways, railroads, or airlines….because everybody can walk on sidewalks in interstate commerce, right? Or along pleasant forest pathways?  Over the river and through the woods by slay maybe?  No, if there’s a right to travel, it needs to include the main arteries of transportation in the Country, not just a right to walk.  And if there’s a right to Petition, and no rules applicable nor any tradition of approaching either the King’s Court (where the King used to receive petitions offered by Coutiers who were “admitted to Court”—with no implication of any legal education at all), nor any other rules or tradition of ways or means to approach Congress, then the Separation of Powers effected by the Constitution really does mean, implicitly at least, but I would say explicitly, requires the Courts to hear all grievances—and not just dismiss them en masse under 12(b)(6) on Judicial whim the way Bell Atlantic v. Twombly and Ashcroft v. Iqbal seem to permit—but has Matrix Initiatives v. Siracusano materially changed that?  NOT in the lower courts—not yet—I think that to guarantee that the Courts of the United States of America will all be Open Courts is a political issue worth fighting for.
 In tax payer standing cases, I would say that it depends on the tax payer question, and I happen to think that the legality of the Sixteenth Amendment is at the outer limits presenting a real question to the Courts of what to do with the problem … so they run from it, and I don’t agree with that, especially when it leaves the people who when throught the world to find, rely on and point out the problem, like Benson and his attorneys, without redress.
I insist that careful study will reveal that there are ways of approaching the income tax—the Anti-Injunction provisions of Title 26 just for example have never been fully tested—I thought at one point you (Wolfgram) were interested in this issue.
It should be observed that Benson did something important, even if the government rejects it as an embarrassment it does not want to acknowledge.
The suits against Obama serve a purpose too, even if futile.  That is to point out a weakness in the certification of eligibility process, which I suspect will be addressed by the system eventually.
I have to tell you I’m not wildly enthusiastic about enhancing the government’s authority to conduct background checks and “define” people in any way shape or form—I think that the challenges to Obama’s eligibility should have been submitted to the Courts and decided—or maybe we need a Constitutional Amendment that the Courts can order Congress to take action to protect the Constitutionality of Government actions—WAIT, WAIT, WAIT—we already have that—that was decided not later than Marbury v. Madison, wasn’t it?  Even Chisolm v. Georgia was basically a ruling on that point—led to the enactment of the Eleventh Amendment, but that’s the process working at its very best….
But the question is whether it is for the courts to address it, and that returns to another question: How much power do you want the courts to have?
Are you really asking me?  Well, here tis: I want the Courts (i.e. Article III Judges—perhaps assisted by Article I Bankruptcy and Magistrate Judges, and maybe even some Administrative, Executive Branch Judicial Officers—although that’s already way too weird just to write it, common as it is….) repeat: I want the Article III Courts and their Judges to have full, unfettered, unlimited power to hear all cases and controversies and to render opinions and make declarations on them—however, I think that ONLY juries should have the right ever to deprive anyone of any interests in life, liberty, or property, including child custody and divorce issues—if these questions really belong in state run Courts at all, which I also challenge—and I want to see an end to the world where the Judges screen jurors by asking them, “do you agree and promise that you will follow the law as I give it to you, and that if you have any knowledge of the law you will leave that aside?”  Jurors need to be educated in the law by dialectic process, submission and opposition of interpretations, just the way judges are—and yes, I would support a literacy requirement for jurors and voters too—so call me a troglodyte—I like caves just fine as a matter of fact…..
Everyone on this list says that they already have too much power.
I really do not say that—I say that Judges have too much discretion in whether or how to exercise their power—Bell Atlantic v. Twombly and Ashcroft v. Iqbal really have established an entirely subjective standard for motions to dismiss under Rule 12(b)(6), and given recent administrations’ policies, that means that the Federal Courts (and many state courts) are likely to dismiss every case brought by an individual against a corporation or the government…..the “plausibility” standard of review is just super-obnoxious to me, and it needs to be erased by statute—what you and I think are “plausible” is just way too based on personal life experience and observations—it CANNOT serve as a legal standard for anything.
How much more do you want and why do you think that with more power the courts would give you better results then a system predicated on an open right to petition for redress but limited rights to do it through the courts … eliminating for instance, highly politically motivated issues because they are in fact in the political arena and being aired in that arena.
As I wrote above—if you want to reestablish an accessible “King’s Court” (call it a Presidential Ombudsman for Grievances or whatever) or dedicate even ONE Committee in each house of Congress to hear public grievances—-or to appoint a large unwieldy bureaucracy to hear such petitions for grievance either in the Executive or Legislative Branch or Both—it’s LOGICALLY possible to have a democratically effective system of “multiple branch” petitions—-but I think that the American Tradition of Focusing all Grievances on the Courts is OK—and could be upheld and made meaningful by a little bit more Congressional Oversight of the Rules of Decision in Court—such as reestablishing the Conley v. Gibson standard in 12(b)(6) rather than the Bell Atlantic v. Twombly and Ashcroft v. Iqbal—even if Matrix Initiatives is an improvement—it does NOT go far enough.
I say unto you: The real enemy is government immunity from getting petitions for redress before juries which are free to examine the government’s conduct and pass judgment on it, under the Constitution.  I add, Obama is the best chance we have ever had to get that right, and you need not take that on faith.  Just look at the conservative/liberal split on the Supreme Court in support of and against government immunity.
I totally disagree—Strom Thurmond was the author of the 1996 Amendments to 42 U.S.C. Sections 1983-88(a)—which in my opinion and according to the 1996 USCCAN 4216-4217 interpretation properly reduced judicial immunity significantly by saying that judges were liable for all actions taken “clearly in excess of jurisdiction” and not just for actions “in the complete absence of jurisdiction” (which basically can be interpreted as a null set—since any lawfully appointed or elected judge will have SOME jurisdiction, so that there is no such thing as a real judge who ever acts in the COMPLETE absence of jurisdiction—unless it is a completely fraudulent and fake “plenipotentiary judge” like David Wynn Miller….  I have been in touch with some people at the Thurmond Center at Clemson University in South Carolina and trying to develop more solid proof, but I think that old Strom had deeply and simmeringly resented what Earl Warren did to state control over education for about 42 years by 1996, and he had been unable to do anything about it, in part because of Warren’s decision in Pierson v. Ray 386 US 547 (1967) wherein, over Justice William O. Douglas’ vehement dissent, Chief Justice Warren wrote the modern doctrine of absolute judicial immunity.  Pulliam v. Allen (1984) overturned Pierson v. Ray in large part, and very cleverly Strom Thurmond pretended to bolster judicial immunity, when in fact he was adopting the exact language of Pulliam v. Allen with regard to judge’s being liable for conduct “clearly in excess” of jurisdiction—-If elected to the U.S. Senate, I would further clarify the question of Judicial Immunity….
Then, you explain to me why conservatives in power want to maintain the status quo of government immunity from the just redress of the people, sitting as juries.
I don’t understand these terms conservative and liberal at all.  I understand totalitarian vs. democratic-republican and pro-private property vs. pro-common property/pro-expropriation by government-corporate financial consortium—which latter consortium is basically the same as a “benign” communistic government and seems where we are headed right now.

Charles E. Lincoln, III  

       Tierra Limpia

Tel: 512.968.2500

Deo Vindice

“God be with you, 

and with thy spirit!” 

Von: John Wolfgram <johnwolfgram@hotmail.com>
An: lawsters@googlegroups.com
CC: Bob Hurt <bob@bobhurt.com>; producer@onsecondthought.tv
Gesendet: Freitag, den 6. Mai 2011, 8:32:49 Uhr
Betreff: RE: AW: williamwagener just uploaded a video re Obama & birth certificate-9th circuit argument yesterday by Gary kreep & Orly Taitz

Date: Fri, 6 May 2011 08:37:38 +0100
From: charles.lincoln@rocketmail.com
Subject: AW: williamwagener just uploaded a video re Obama & birth certificate-9th circuit argument yesterday by Gary kreep & Orly Taitz
To: lawsters@googlegroups.com
CC: bob@bobhurt.com; producer@onsecondthought.tv


With more than a little curiosity I tuned in to watch Orly Taitz & Gary Kreep “do their best” before the Ninth Circuit Court of Appeals on May 2, 2011, in Pasadena.  http://www.youtube.com/watch?v=hBLA2NdQZoM.  There are many personal, professional, and political reasons for my interest.  As is fairly well known, I had worked with Orly, been represented by Gary against Orly, and long before either of those experiences, I knew the Courtroom because I had worked with Judge Dean Pregerson’s Dad Harry, as well as Judge Alex Kozinski whenever they sat in Pasadena, during my first actual job in law which was a judicial extern for Judge Stephen Reinhardt of the Ninth Circuit Court of Appeals*.  But I found the subject matter of the case interesting in 2009, while I was in fact working on it, and my interest has not much diminished, nor has my concern that this country rapidly is going to the dogs.

The arguments of counsel disappointed but did not surprise me.  What disappointed me most was that neither Gary nor Orly gave even a single reason which would have convinced me (if I were still an extern working on the case for one of the Judges) why the Court of Appeals should have granted the Plaintiff’s motion to reverse Judge Carter.  The sole question before the Court was whether the Plaintiff’s had injury standing to bring suit.  Gary Kreep all but totally conceded the repeated question that the case was filed too late for his (former client) candidates to have any special standing, and Orly Taitz simply wasted her time saying less than nothing pertinent, trying instead to make an issue of the President’s April 27, 2011 release of a document which was not and because of its timing could not possibly be before the Court of Appeals.

Accordingly, I submit that the ideas I framed and drafted as Orly’s lawclerk were the best in the case (and if elected to the United States Senate I promise to push for the enactment of laws enshrining these ideas as litigation rights in the United States Code): that the unique circumstances of the Presidential eligibility before Court more closely resembled Flast v. Cohen taxpayer standing than anything else, in that if taxpayers were not afforded standing to object, then certain clauses of the constitution (among them Article II, Section 1, and the establishment clause of the First Amendment) are left without any advocates for judicial remedy whatsoever, and the Constitution was written to constitute a document of “fundamental law,” not just a series of non-binding resolutions to be followed at political convenience or discretion.

Had I been able to appear before the Ninth Circuit, I would have argued for taxpayer standing together with my firmly held belief that the Constitution expressly grants First Amendment standing to petition the Courts for redress of any and all grievances, and that the Ninth Amendment reservation of rights also accords similar standing to petition for redress of any and all grievances.  The second best line of argument presented to Judge Carter was that concerning the obligation and remedies available to those who took specific oaths to uphold the Constitution of the United States, especially Military Officers.

All these issues were before the Court, because I drafted documents which put them before Judge Carter, although he largely ignored them, yet Orly and Gary did not pick up on these details at all.  It is almost as if, in particular Orly, really wanted to lose.

Orly had failed to develop any of the ideas of Flast v. Cohen taxpayer standing or First or Ninth Amendment Standing before Judge Carter—before or after she accused him of treason (which I would like to make very clear I repeatedly counseled her NOT to do) and she did not even mention them in her oral argument.  The Court of Appeals Judges had little or nothing to say to Orly or ask her.  They probably knew anything they said would have just encouraged her.  My collaboration with Orly has caused a lot of problems in my life.  That’s still a story that hasn’t been completely told and this is not the place to tell it.

So, just for the historical record, or for a partly egotistical, partly altruistic, attempt to salvage some of the ideas and pass them on for future use in other cases, I attach the two documents I consider to be the “best” of all Orly’s filings in connection with the question of whether Barack Hussein Obama should occupy the White House or not, and yes, I did have something to do with their creation while I was overlooking the Pacific from Suite 4 of the Casa del Mar in San Clemente.  The documents in question to which I refer here are:

09-cv-00082-DOC – Flast v Cohen

09-cv-00082-DOC Motion for Leave to File Surreply

09-cv-00082-DOC – Plaintiffs’ Sur-Reply 10-01-09

(*There being no such things as judicial “interns” in the Ninth Circuit or CDCA, the job description for a “judicial extern” still  sounds to most folks very much like an “internship”, and J.D. students compete for these positions much in the manner that J.D. recipients compete for post-J.D. “judicial clerkships”)

Von: Gary Zerman <gzerman@hotmail.com>
An: lawsters@googlegroups.com
Gesendet: Mittwoch, den 4. Mai 2011, 11:25:28 Uhr
Betreff: FW: williamwagener just uploaded a video re Obama & birth certificate-9th circuit argument yesterday by Gary kreep & Orly Taitz

To All:  

Below is William Wagner’s (OnSecondThoughtTV) video interviewing plaintiff/appellant attorneys Gary Kreep and Orly Taitz, just after their appearances in the 9th Circuit Court of Appeals in Pasadena, CA.  (The in-court hearing/proceeding was videotaped by CNN/ABC pool cameras and was supposed to be put up on the 9th Circuit’s website for public viewing, but when I last checked early this morning, it still was no up yet.  Should you wish to check, here is the link: http://www.ca9.uscourts.gov/ .)  The matter, Drake v. Obama, was the last on the calendar for Courtroom 1, and was before a three (3) justice panel of: PREGERSON, FISHER, BERZON, CJJ; here is a link to the calendar:  http://www.ca9.uscourts.gov/datastore/calendaring/2011/04/29/pa05_11.pdf .

Make sure that you check the video at about 3:25, where Atty Taitz shows a copy of an actutual “certified” copy of a “Certificate of Live Birth” obtained from Hawaii.  Note how it differs from what the Obama administration has provided.  WHY did the Obama Administration provide a green document?

I was at the hearing and observed the proceeding and was not impressed by the court.  My impression was that this was largely a perfunctory proceeding, mostly a show trial, and that the court will affirm the district court (trial court) dismissal, based on lack of standing.  However, we will have to wait and see what judgment the court renders.
Thanks goes to William Wagner for making the video and informing the People, the public.  Thanks goes to Ron. G., who sent it to me.  GLZ. 
Date: Wed, 4 May 2011 05:54:02 -0700
Subject: Fwd: williamwagener just uploaded a video re Obama & birth certificate-9th circuit argument yesterday by Gary kreep & Orly Taitz
From: randypotter2@gmail.com
To: gzerman@hotmail.com; jz12345@earthlink.net; randypotter2@gmail.com

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Date: Wed, May 4, 2011 at 12:42 AM
Subject: williamwagener just uploaded a video
To: randypotter2@gmail.com

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