Schwartz v. Cruz (S.D. Tex.)

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bob
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Schwartz v. Cruz (S.D. Tex.)

#1

Post by bob » Thu Jan 14, 2016 9:55 pm

Bloomberg: Cruz’s ‘Natural-Born Citizen’ Status Tested in Birther Suit:
Republican presidential contender Ted Cruz should be disqualified from the race because he isn’t a “natural-born citizen,” a fellow Texan claims in a “birther” challenge filed against the senator in a U.S. court.

* * *

“This 229-year question has never been pled, presented to or finally decided by or resolved by the U.S. Supreme Court,” Houston attorney Newton B. Schwartz Sr. said in his 28-page complaint. “Only the U.S. Supreme Court can finally decide, determine judicially and settle this issue now.”

Claiming that “time is of the essence” because of the rapidly approaching Iowa caucuses and March 1 Super Tuesday primaries, Schwartz asked that the case be expedited for resolution by the nation’s highest court as soon as possible.

* * *

Schwartz, 85, said in a phone interview he isn’t connected to any particular campaign, though he personally “probably” supports Bernie Sanders, the Vermont senator seeking the Democratic nomination.

* * *

“It’s such a simple procedure -- I’m amazed no one did it,” Schwartz said. “Senator Cruz should have filed it himself to avoid the question.”

* * *

Schwartz said he filed the paperwork himself with no one else advising him and he said he does not have an opinion for which way the court should rule.
No standing. :yawn:

The complaint. (H/t: Doc!)


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TexasFilly
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Re: Schwartz v. Cruz (S.D. Tex.)

#2

Post by TexasFilly » Thu Jan 14, 2016 10:24 pm

I was shocked to read that Newton Schwartz is still alive. He's had some ethical issues in his day. I guess he's got nothing else to do but file meaningless law suits.


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Re: Schwartz v. Cruz (S.D. Tex.)

#3

Post by Sterngard Friegen » Thu Jan 14, 2016 10:38 pm

TexasFilly wrote:I was shocked to read that Newton Schwartz is still alive. He's had some ethical issues in his day. I guess he's got nothing else to do but file meaningless law suits.
He just got suspended in Pennsylvania of all places.



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Re: Schwartz v. Cruz (S.D. Tex.)

#4

Post by TexasFilly » Thu Jan 14, 2016 11:07 pm

Sterngard Friegen wrote:
TexasFilly wrote:I was shocked to read that Newton Schwartz is still alive. He's had some ethical issues in his day. I guess he's got nothing else to do but file meaningless law suits.
He just got suspended in Pennsylvania of all places.
I saw that! Believe me, the stuff in Louisiana was the least offensive shit he's done. I wonder if he's let the State Bar of Texas know about PA?


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Re: Schwartz v. Cruz (S.D. Tex.)

#5

Post by chancery » Thu Jan 14, 2016 11:47 pm

It was reciprocal discipline based an an earlier 3 year suspension in Louisiana.

I started reading the link that Stern provided, and IMO the Louisiana suspension order has more than a little dickishness in it. Schwartz had collaborated on 25 prior cases in Louisiana federal court with one Seth Cortigene, a Louisiana lawyer. In each of these actions Cortigene had been the lawyer who filed the case and Schwartz had been admitted pro hac vice. In the 26th case, Schwartz neglected to file the pro hac vice motion.

There's no real excuse for that, but on the other hand, bigger slip-ups happen all the time with no consequences, or much lighter ones. I would have thought that the matter could have been handled by the federal court with a couple of orders reminding Schwartz to get the darned application in. It's not as if he blew a statute of limitations for a client, stole trust fund money, or disrupted a case through repeated disobedience of scheduling and discovery orders. To the extent that the Louisiana state bar had to get involved in a federal court matter, I would have thought that a short suspension from acting as a lawyer pro hac vice in Louisiana, purgeable upon proof that he'd cured the problem by filing the missing pro hac vice motion, would have fit the bill.

But no, the Louisiana Supreme Court is very hot and bothered about unauthorized practice of law, even when it's inadvertent.
We have consistently found the unauthorized practice of law to be very serious misconduct. * * * Our legislature has made it a felony to engage in such conduct.
Let's pause there. A felony, eh? Remember, we're not just talking about protecting innocent clients from crooks pretending to be lawyers. This is, at least in some part, anticompetitive turf protection for local lawyers.

Also, Louisiana apparently has a 3 strikes law. So, neglect to file one pro hac vice motion, subsequently get busted for shoplifting when you forget to pay for something (it happens, and it's fertile ground for extremely discriminatory enforcement), and then you're one angry conversation with a police officer who pulls you over for a nonsense violation away from spending the rest of your life in prison? Lunacy.

Back to this case. The Louisiana Supreme Court considered a lifetime bar from seeking admission in any Louisiana court, but settled on a 3 year suspension. One justice dissented; he thought Schwartz should be barred for life.

Now, there's obviously more going on here than neglecting to file a 2 page pro forma motion. There were also charges relating to the same case of "solicitation" (Eek, marketing!*) and providing improper financial assistance to a client. Interestingly, Texas had brought solicitation and improper financial assistance disciplinary charges based on the same case, and Schwartz had been cleared by a jury. The Louisiana court determined that it didn't need to address those additional charges, but their existence could have colored their views.

Also, Cortigene, his co-counsel, had his own problems. At some point in the process he had been suspended in Louisiana, for failure to submit trust fund statements, failure to pay a disciplinary assessment and bar dues, and failure to comply with continuing education requirements. Later, in connection with the same case at issue here, he was given a conditional 3 year suspension for failure to abide by a client's decision to accept a settlement offer (that's much more serious than the earlier stuff) and failure to communicate with his client (ditto). Finally, he was charged with aiding and abetting Schwartz's unauthorized practice of law, for which it was recommended that he be disbarred. Although it's clear from his rap sheet that Cortigene had issues and might not have deserved to be a member of the bar, disbarment for aiding and abetting co-counsel in neglecting to file a pro hac vice motion strikes me as deeply weird.

I trust TexasFilly when she says that Schwartz is a bad apple, and maybe it was right for Louisiana to go after him, but discipline is supposed to be based on the, you know, on the record, not on what the judges have heard about the respondent's other misbehavior.

______________
* There's no indication whether the charge actually involved predatory behavior towards potential clients, or simply the long existing antipathy towards plaintiffs' lawyers among the corporate-minded legal establishment.)



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Re: Schwartz v. Cruz (S.D. Tex.)

#6

Post by Sugar Magnolia » Fri Jan 15, 2016 6:56 am

chancery wrote:Also, Louisiana apparently has a 3 strikes law. So, neglect to file one pro hac vice motion, subsequently get busted for shoplifting when you forget to pay for something (it happens, and it's fertile ground for extremely discriminatory enforcement), and then you're one angry conversation with a police officer who pulls you over for a nonsense violation away from spending the rest of your life in prison? Lunacy.
The 3 strikes laws apply to felonies, so shoplifting and disobeying a police officer wouldn't apply, and neither would the pro hac vice thing unless it's a felony criminal charge.

Or you could have been being sarcastic and using "the rest of your life in prison" to make a point.



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Re: Schwartz v. Cruz (S.D. Tex.)

#7

Post by magdalen77 » Fri Jan 15, 2016 10:45 am

At least the PA bar actually suspends people once in a while. But he must have riled up some folks to get suspended based on a LA suspension. I know they can do it, but seriously an 84 year old guy?



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Re: Schwartz v. Cruz (S.D. Tex.)

#8

Post by chancery » Fri Jan 15, 2016 3:11 pm

Sugar Magnolia wrote:
chancery wrote:Also, Louisiana apparently has a 3 strikes law. So, neglect to file one pro hac vice motion, subsequently get busted for shoplifting when you forget to pay for something (it happens, and it's fertile ground for extremely discriminatory enforcement), and then you're one angry conversation with a police officer who pulls you over for a nonsense violation away from spending the rest of your life in prison? Lunacy.
The 3 strikes laws apply to felonies, so shoplifting and disobeying a police officer wouldn't apply, and neither would the pro hac vice thing unless it's a felony criminal charge.

Or you could have been being sarcastic and using "the rest of your life in prison" to make a point.
Sugar,
I was certainly exaggerating for sarcastic effect, because it struck me as ludicrous to mention felony charges in a case involving neglect to file a pro hac vice motion. And I realize that this is an area in which you have expertise, for which I have great respect and admiration. But the sarcasm did have a serious point; the examples were chosen because a felony charge, while not typical, would be possible, in large part because of the extreme range of discretion available in this country to prosecutors in making charging decisions. A lot depends on whether or not the authorities “have a down” on the potential defendant, as the Louisiana court seemed to “have a down” on Schwartz.

1. I dunno how often Louisiana prosecutes unauthorized practice as a felony; Schwartz certainly wasn’t charged criminally. But I take the Louisiana Supreme Court at its word that Schwartz’s conduct was within the zone that would justify a felony prosecution:
[W]e have consistently found the unauthorized practice of law very serious, felonious misconduct and even grounds for permanent disbarment. (from the dissenting opinion)
2. Shoplifting is of course typically a misdemeanor or petty theft, but that depends on the value of the item taken. In New York, the dividing line between a misdemeanor and felony grand larceny is property valued at $1,000. Lots of small things are worth more than a grand, and I certainly know that it's easy to forget what you have in your bag, or even in your hand. I was also thinking of someone using a dolly to wheel an appliance to his car (crowded store, complicated transaction, a clerk seems to have signaled consent with a wave), intending to go back and pay, and forgets and drives off. Finally, in some states, petty theft can be charged as a felony at the prosecutor’s discretion if the defendant has a prior misdemeanor conviction. That’s how the defendant in Lockyer v. Andrade, 538 U.S. 63 (2003) ended up serving 25 years to life for shoplifting a few videotapes.

3. As far as disobeying a police officer, it’s not unheard of for such arguments to escalate into something serious. I’m not even relying on recent examples from national news in which arguments led to horrible consequences. I live in New York City, and have great respect and admiration for the NYC police -- most of them. But there’s a sad parade of cases here of encounters between police and civilians in which the defendant was charged with multiple serious offenses -- resisting arrest, assaulting an officer, etc. -- and subsequent evidence, videotaped or otherwise, led to all charges being dropped and the city paying substantial damages in a subsequent civil suit.

Again, I recognize your sensitivity to comments that appear to stereotype conscientious police officers and prosecutors. I didn't mean to do that. But in this country, the toxic brew of harsh sentencing laws, prosecutorial discretion, and 3 strikes laws can make it very risky to be an unpopular person.



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Re: Schwartz v. Cruz (S.D. Tex.)

#9

Post by ObjectiveDoubter » Fri Jan 15, 2016 4:20 pm

I get it that the guy who filed is a flake.

And yet, I cannot help but experience the kind of joy that only occurs when what goes round comes round.


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Re: Schwartz v. Cruz (S.D. Tex.)

#10

Post by bob » Fri Jan 15, 2016 5:01 pm

Added a link to the complaint in the anchor post.


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Re: Schwartz v. Cruz (S.D. Tex.)

#11

Post by Sterngard Friegen » Fri Jan 15, 2016 6:53 pm

The complaint is legal junk. Why does Schwartz hate paragraph numbers?



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Re: Schwartz v. Cruz (S.D. Tex.)

#12

Post by Sugar Magnolia » Fri Jan 15, 2016 7:31 pm

chancery wrote:
Sugar Magnolia wrote:
chancery wrote:Also, Louisiana apparently has a 3 strikes law. So, neglect to file one pro hac vice motion, subsequently get busted for shoplifting when you forget to pay for something (it happens, and it's fertile ground for extremely discriminatory enforcement), and then you're one angry conversation with a police officer who pulls you over for a nonsense violation away from spending the rest of your life in prison? Lunacy.
The 3 strikes laws apply to felonies, so shoplifting and disobeying a police officer wouldn't apply, and neither would the pro hac vice thing unless it's a felony criminal charge.

Or you could have been being sarcastic and using "the rest of your life in prison" to make a point.
Sugar,
I was certainly exaggerating for sarcastic effect, because it struck me as ludicrous to mention felony charges in a case involving neglect to file a pro hac vice motion. And I realize that this is an area in which you have expertise, for which I have great respect and admiration. But the sarcasm did have a serious point; the examples were chosen because a felony charge, while not typical, would be possible, in large part because of the extreme range of discretion available in this country to prosecutors in making charging decisions. A lot depends on whether or not the authorities “have a down” on the potential defendant, as the Louisiana court seemed to “have a down” on Schwartz.

1. I dunno how often Louisiana prosecutes unauthorized practice as a felony; Schwartz certainly wasn’t charged criminally. But I take the Louisiana Supreme Court at its word that Schwartz’s conduct was within the zone that would justify a felony prosecution:
[W]e have consistently found the unauthorized practice of law very serious, felonious misconduct and even grounds for permanent disbarment. (from the dissenting opinion)
2. Shoplifting is of course typically a misdemeanor or petty theft, but that depends on the value of the item taken. In New York, the dividing line between a misdemeanor and felony grand larceny is property valued at $1,000. Lots of small things are worth more than a grand, and I certainly know that it's easy to forget what you have in your bag, or even in your hand. I was also thinking of someone using a dolly to wheel an appliance to his car (crowded store, complicated transaction, a clerk seems to have signaled consent with a wave), intending to go back and pay, and forgets and drives off. Finally, in some states, petty theft can be charged as a felony at the prosecutor’s discretion if the defendant has a prior misdemeanor conviction. That’s how the defendant in Lockyer v. Andrade, 538 U.S. 63 (2003) ended up serving 25 years to life for shoplifting a few videotapes.

3. As far as disobeying a police officer, it’s not unheard of for such arguments to escalate into something serious. I’m not even relying on recent examples from national news in which arguments led to horrible consequences. I live in New York City, and have great respect and admiration for the NYC police -- most of them. But there’s a sad parade of cases here of encounters between police and civilians in which the defendant was charged with multiple serious offenses -- resisting arrest, assaulting an officer, etc. -- and subsequent evidence, videotaped or otherwise, led to all charges being dropped and the city paying substantial damages in a subsequent civil suit.

Again, I recognize your sensitivity to comments that appear to stereotype conscientious police officers and prosecutors. I didn't mean to do that. But in this country, the toxic brew of harsh sentencing laws, prosecutorial discretion, and 3 strikes laws can make it very risky to be an unpopular person.
Fair enough, and this seems to be more a question of semantics than anything. Shoplifting and disobeying a police officer are misdemeanors. If either rises to the level of felony, the charge changes. And as always, different jurisdictions have different laws. I fell into my own trap of forgetting that.



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Re: Schwartz v. Cruz (S.D. Tex.)

#13

Post by BillTheCat » Fri Jan 15, 2016 8:11 pm

It may end up being a fail, but the uneducated MSM sure thinks it has legs. /shrug


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Re: Schwartz v. Cruz (S.D. Tex.)

#14

Post by bob » Sat Feb 20, 2016 3:08 am

Terry Wheelock (an "Independent Candidate") filed a motion to intervene. Wheelock, a two-citizen-parent birther, also challenges Rubio and Jindal (and ob. Obama).

Schwartz filed an second[*] amended complaint[/url]. Schwartz disavows Wheelock's birther cooties, and continues to focus on only Cruz.


* No idea what happened to the first amended complaint, but Schwartz alleges it was filed on January 19.


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Re: Schwartz v. Cruz (S.D. Tex.)

#15

Post by TexasFilly » Mon Feb 22, 2016 11:10 am

bob wrote:Terry Wheelock (an "Independent Candidate") filed a motion to intervene. Wheelock, a two-citizen-parent birther, also challenges Rubio and Jindal (and ob. Obama).

Schwartz filed an second[*] amended complaint[/url]. Schwartz disavows Wheelock's birther cooties, and continues to focus on only Cruz.


* No idea what happened to the first amended complaint, but Schwartz alleges it was filed on January 19.
Judge Strikes Intervention in Suit Challenging Cruz's Eligibility

February 19, 2016 12:00 AM EST | 0 Comments

A Houston federal judge signed an order Feb. 17 that strikes a candidate's intervention in a lawsuit challenging Ted Cruz's eligibility to run for president or vice president.

Terry Wayne Wheelock of Fort Worth, an independent candidate for president, filed the motion for intervention.
In the order, U.S. District Judge Gray Miller of the Southern District of Texas found that when Wheelock filed his motion to intervene, he did not include a pleading required by Federal Rule of Civil Procedure 24 (c). That rule provides that a motion to intervene needs to "state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought," Gray wrote. :brickwallsmall:

Wheelock filed a complaint in intervention Feb. 1 in a lawsuit seeking a declaratory judgment on Cruz's eligibility to run. Wheelock seeks a "declaratory judgment, a ruling and order setting a precedent affecting his campaign for the presidency of the United States."
He said he will refile to comply with the rule.
Paywall: http://www.texaslawyer.com/id=120275016 ... 0122110426

The article goes on to say that Cruz has not filed an answer to Schwartz's suit, but in a Feb. 8 notice of consent to Schwartz filing a second amended complaint, Cruz alleged he would file a motion to dismiss.


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Re: Schwartz v. Cruz (S.D. Tex.)

#16

Post by bob » Tue Feb 23, 2016 8:10 pm

Dallas Morning News: Cruz asks judge to dismiss Texas lawsuit on presidential eligibility:
Sen. Ted Cruz is striking back against doubters of his eligibility to be president, asking a federal judge Monday to dismiss a Texas lawsuit questioning his natural born citizenship.

* * *

Cruz’s motion to dismiss the case contended that Schwartz has voted as a Democrat and has no standing to sue, and that Cruz’s presidential eligibility is already settled.

* * *

Schwartz has sought to expedite the case, citing the upcoming Super Tuesday primaries in which Cruz appears on Republican primary ballots. He said the stakes have only risen with the Feb. 13 death of U.S. Supreme Court Justice Antonin Scalia, which has tipped the ideological balance of the court.
Cruz's motion to dismiss.


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Re: Schwartz v. Cruz (S.D. Tex.)

#17

Post by TexasFilly » Tue Feb 23, 2016 9:25 pm

Lots of the Birthers' Golden Oldies cited there. Barnett, Berg, Cook, Kerchner, Grinols. :dance:


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Re: Schwartz v. Cruz (S.D. Tex.)

#18

Post by Notorial Dissent » Tue Feb 23, 2016 10:03 pm

And none of them you can dance to.


The fact that you sincerely and wholeheartedly believe that the “Law of Gravity” is unconstitutional and a violation of your sovereign rights, does not absolve you of adherence to it.

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Re: Schwartz v. Cruz (S.D. Tex.)

#19

Post by bob » Tue Mar 01, 2016 5:14 pm

Texas votes today, and Cruz is still on the ballot.


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Re: Schwartz v. Cruz (S.D. Tex.)

#20

Post by bob » Fri Apr 08, 2016 7:43 pm

EoD blog:
Motion to Dismiss hearing pending, April 13


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Re: Schwartz v. Cruz (S.D. Tex.)

#21

Post by TexasFilly » Thu Apr 14, 2016 1:29 am

Citing a lack of standing, U.S. District Judge Gray Miller of the Southern District of Texas dismissed a lawsuit filed by a Houston trial lawyer challenging Ted Cruz's eligibility to run for president.
After hearing argument on April 13 from plaintiff Newton Schwartz, a solo practitioner in Houston, and Layne Kruse, a partner in Norton Rose Fulbright in Houston who represents Cruz, Miller said he would dismiss with prejudice the lawsuit Schwartz filed in January.
"I'm going to dismiss the case for lack of standing, Mr. Schwartz. I'm not sure I'm going to get to the other issues," Miller said.
Schwartz, who asked Miller to rule quickly one way or the other so it could move along for further review by the Fifth U.S. Circuit Court of Appeals in New Orleans, said he will file an appeal as soon as Miller signs an order.
"I've already got my notice of appeal ready," Schwartz said following the hearing at the Bob Casey Federal Courthouse in Houston.


Read more: http://www.texaslawyer.com/id=120275487 ... z45m9lOJaX


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Re: Schwartz v. Cruz (S.D. Tex.)

#22

Post by Notorial Dissent » Thu Apr 14, 2016 5:35 am

Of course he does, they never seem to learn from past history, like it will work this time if they only get the right magic words in in the right order. :bangwall:


The fact that you sincerely and wholeheartedly believe that the “Law of Gravity” is unconstitutional and a violation of your sovereign rights, does not absolve you of adherence to it.

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Re: Schwartz v. Cruz (S.D. Tex.)

#23

Post by bob » Thu Aug 25, 2016 9:06 pm

"For completeness":
Schwartz, who asked Miller to rule quickly one way or the other so it could move along for further review by the Fifth U.S. Circuit Court of Appeals in New Orleans, said he will file an appeal as soon as Miller signs an order.
"I've already got my notice of appeal ready," Schwartz said following the hearing at the Bob Casey Federal Courthouse in Houston.
Appeal (5th Cir. No. 16-20231) dismissed June 21, 2016.


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Re: Schwartz v. Cruz (S.D. Tex.)

#24

Post by Sterngard Friegen » Thu Aug 25, 2016 9:22 pm

:deadhorse:



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