Fischer v. Cruz (E.D.N.Y.)

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Re: Fischer v. Cruz (E.D.N.Y.)

#26

Post by Sterngard Friegen » Sat Apr 09, 2016 10:58 am

Mr. Fischer

When you want to fly across country do you steal an airliner and fly yourself?

If you have a disease do you diagnose and treat yourself?

What makes you think that you are competent to act like an attorney without years of legal education?

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Re: Fischer v. Cruz (E.D.N.Y.)

#27

Post by bob » Sat Apr 09, 2016 11:39 am

The court told you that you lacked standing. Litigants just like you have been told that they lack standing. We've been following these cases for years, and we easily -- and correctly -- predicted that your case would be dismissed for lack of standing.

You can accept reality, or you can continue to be a "gadfly."

Your best bet would be to convince someone who does have standing, i.e., Trump, to file a suit.
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Re: Fischer v. Cruz (E.D.N.Y.)

#28

Post by Sterngard Friegen » Sat Apr 09, 2016 11:41 am

If Trump filed suit he would hire a lawyer to do so. Which means, Mr. Fischer, that your ability to continue to bask in the public eye would end.

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Re: Fischer v. Cruz (E.D.N.Y.)

#29

Post by Foggy » Sat Apr 09, 2016 12:40 pm

Sorry, but you are missing our point.

Our point is that the laws of this great nation say that you can not sue Ted Cruz for allegedly being ineligible. Some of us actually agree with you that he is ineligible. But you, as a private citizen, have no legal standing to sue. You're wasting our time and you're wasting your own time and there's nothing you can do about it. You are destined for failure, just like all the dozens and dozens of private citizens who have challenged Obama and Cruz in court. You asked our advice and here it is: Quit and find something useful to do with your time.
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Re: Fischer v. Cruz (E.D.N.Y.)

#30

Post by GregFischer » Sat Apr 09, 2016 10:43 pm

To answer the several responses at once.

First, please know that an inactive nationally known Presidential candidate has signed an agreement to be a co=plaintiff if I need him. I would prefer to proceed alone if I can. Perhaps I am still trying "to fly that stolen airplane" alone.

Second: I am a life member of the Society of Professional Journalists so I could have gotten my suit more attention, but the lack of attention my suit has received shows I am not doing this for the attention --- I have not sent out a single wire or press release.

Third: mea culpa, the problems of standing and defined damages have shown themselves to be more complex then I imagined. Yes, of course an experienced attorney would have been a better litigant but that was not in the budget.

Fourth, the issue of "standing" is somewhat clearer to me now --- a lesson learned the hard way no doubt and I am glad Judge Seybert was kind to me in her wording. Perhaps, as one strategy, maybe I should have entertained seeking a political science expert opinion on tangible damages to me as a down ballot candidate.

Fifth: we are at a point in our discussions where there are admissions in this group that Cruz is likely ineligible.

Last: I still have the thought, and please hear me out, maybe the Judge, the Attorney General, and opposing counsel have their own separate "paradoxes" of sorts? As an issue, didn't the rules for the legal profession change (and extend the duties of officers of the court) since ENRON with regard to future, ongoing, and current crime?

(1.) Did/does the NYS attorney general have a duty (perhaps greater duty) to prosecute Cruz; in that, as an ineligible candidate, he presents a public harm and/or waster of NYS taxpayer money?

(2.) Does the Cruz defense have a duty here? There were presented with demands for discovery and they lucked out --- they did not have to reveal their hand because of the timing of the judge's initiative.

(3.) I have some new evidence which clarifies the merits of the ineligibility claim --- is the judge ever forced to proceed because the merits are compelling?

(4.) Why can't I have standing for the declaratory definition of "natural born citizen" as any citizen is a potential presidential candidate?


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Re: Fischer v. Cruz (E.D.N.Y.)

#31

Post by RoadScholar » Sat Apr 09, 2016 11:05 pm

Because the Law rarely acts on potential or theoretical generalized future harm.

Forget the approach you started with. You might as well invest time and money in pursuit of landing a job with the Harlem Dance Theatre.

If you spent more time reading the Cruz eligibility thread, you'd find valuable hints about legal arguments that could be made along with supporting authorities. Those arguments might convince Congress to take up the issue, or an Elector to challenge Cruz' eligibility, or empower the idea through some other legitimate venue... but the way you tried first ain't happenin'.
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Re: Fischer v. Cruz (E.D.N.Y.)

#32

Post by bob » Sat Apr 09, 2016 11:06 pm

What part of "no standing" was unclear? Without standing, the federal courts lack jurisdiction to do anything.
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Re: Fischer v. Cruz (E.D.N.Y.)

#33

Post by Sterngard Friegen » Sat Apr 09, 2016 11:06 pm

President Obama's "birther lawyer" and others here think Cruz is ineligible. But none of them has run off to file a lawsuit because we don't have standing. At this point only -- arguably -- Donald Trump and John Kasich have standing.

There have been a number of Cruz lawsuits this cycle, a couple brought by very good lawyers. They have lost on procedural grounds.So you're not doing anything that hasn't already been tried.

To answer your enumerated questions:

1. No.
2. No.
3. No.
4. Precisely because the injury is generalized, and all citizens have the same injury.

Just out of curiosity, what "new evidence" do you have?

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Re: Fischer v. Cruz (E.D.N.Y.)

#34

Post by Orlylicious » Sat Apr 09, 2016 11:10 pm

You asked about $50,000 worth of questions, have you seen the Donate to Fogbow link? :P

You could have saved/save yourself a lot of money just reading through the threads here. What good is a budget when it's futile to begin with?

We laid out the possibilities, it's between an actual Republican candidate pursuing it, or a Secretary of State not putting Cruz on the ballot. Search "Ballot Challenge" here and you'll see all the challenges, all dismissed, all for the same basic reasons, for the last seven years.

If it ever got to the merits, it's a very technical matter you can read about in the Cruz eligibility thread, 40 pages long: http://thefogbow.com/forum/viewtopic.ph ... lit=bellei

Other ballot challenge topics:
Obama Ballot Challenge Website Death Watch - Page 6 - Fogbow
thefogbow.com › ... › President Obama's Eligibility › State Ballot Challenges
Sep 28, 2013 - Obama Ballot Challenge Website Death Watch. Postby ProudObot » Fri Oct 25, 2013 4:05 am. WOW! Orly actually looks fairly attractive in that ...

Pennsylvania Ballot Challenge - Page 16 - Fogbow
thefogbow.com/forum/viewtopic.php?f=24&t=3710&start=375
Mar 7, 2012 - Pennsylvania Ballot Challenge. 490 posts. Page 16 .... March 13, 2012 Application to StrikeLavelle, John P., Jr. Obama, Barry H. Respondent .

Kansas ballot challenge - Page 5 - Fogbow
thefogbow.com › ... › President Obama's Eligibility › State Ballot Challenges
Sep 14, 2012 - Keeping Obama off the ballot would blow up the results for Kansas and do little to change the national results with their 6 electoral votes.

Georgia Ballot Challenge - Page 260 - Fogbow
http://www.thefogbow.com › ... › State Ballot Challenges
Feb 2, 2012 - Georgia Ballot Challenge. Postby listeme » Thu Feb 02, 2012 11:04 pm. Sure dumb OBot. LoL. According to the grapevine, Obama has not ...

Indiana ballot challenge (smackdown for Orly) - Page 17 ...
thefogbow.com › ... › President Obama's Eligibility › State Ballot Challenges
Feb 24, 2012 - I love her snark about "if you won't accept this its because you're biased in favor of Mr. Obama". Whining, disrespecting the court and the ...
Stern, why don't you start a Rogers v. Bellei thread? We don't have it as a topic and it's the Cruzbirthers best shot...

Nothing would make me happier to see Ted Cruz taken down for the McCarthy-ite creep he is, but unfortunately this isn't really the way. For the most part, we've believed he never stood a chance so why bother with it. If he's getting closer then maybe Trump pulls the card out again. Now, if you can get Donald Trump to join, then we're talking.
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Re: Fischer v. Cruz (E.D.N.Y.)

#35

Post by Notorial Dissent » Sat Apr 09, 2016 11:49 pm

Mr Fisher, with absolutely no due respect, you have done nothing to earn any.

You keep saying the words, but you either aren't listening to yourself or are having a really hard time parsing simple English.

You say you now have a better understanding of "standing", yet your very words and actions indicate and prove that not only do YOU NOT understand you haven't been paying attention.

So you have a nobody to help you run up legal expenses, big whoop. You can sign up the Queen of the May, and it won't change the fact you got nada. Alone or separately you are still in Failville.

If you are or were a journalist then I truly despair for the profession. A real journalist researches and investigates before they ever put pen to paper, figuratively or otherwise. You have proven you did none of these things. If you had, you would not have made such an ass of yourself. Journalists report the news and happenings they do not try and become the news item.

An attorney or no attorney would have made NO difference, except that if they were at all honest and competent they would have told you you were a fool and going to go down in flames.

You still don't seem to get it, you didn't have standing when you filed this farce, and YOU DO NOT AND YOU NEVER WILL HAVE STANDING, it doesn't matter who you drag in to it. All you are doing is wasting precious judicial resources with your nonsense.

Whether or not this group, or members of the group, think Cruz may not be eligible is irrelevant. What matters is what the law is considered to be at this juncture, and at this juncture he is considered to be a NBC absent a ruling to the contrary. You, nor anyone else, IMHO, have standing to challenge his right to candidacy. There is at this point NO way that you are going to get a court to come out and make a determination. As it stands, one state court has already affirmatively ruled AGAINST you, and there may well be more. As of yet, NO ONE has come up with a way to get the issue of Cruz' birth standing before a court for the simple reason that that is no reason for it to be so. The Federal courts have, and I would expect, will continue to rule that they do not have SMJ over this issue and that it is soley the province of the Electoral College and finally the Congress as to whether he is eligible or not.

Otherwise, Stern answered your remaining questions simply and to the point.

Get a hobby, get a life, imitating CRJ is not a pretty way to spend your declining years as a bitter boring loon.
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Re: Fischer v. Cruz (E.D.N.Y.)

#36

Post by Sam the Centipede » Sun Apr 10, 2016 3:13 am

There you have it Mr. Fischer. You cannot manufacture standing where you have none so your suit is born dead and no amount of money will revive it, not even as a zombie.

You ask why can't you obtain a declaratory ruling. Duhh - courts around the world simply don't work like that except in very limited circumstances, and pandering to egos is never the justification! Rather, that is close to being frivolous an initio.

You cannot jump over those judicial hurdles and trying to crawl through the legal mud underneath them simply won't work. Even if it did, you would meet the constitutionally-mandated reluctance of the courts to get involved in political questions, which are the prerogative of elected bodies, including the explicit right of Congress to confirm the President's election.

So, as someone claiming to be an investigative journalist you don't appear to have bothered with much investigation do far! Perhaps the little you have done has found Mario Apuzzo? He is a licensed attorney and can give you lots of advice. He claims to have a winning record in all disputes!

Go with Mario, you will find a welcome for your endeavors at his blog.

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Re: Fischer v. Cruz (E.D.N.Y.)

#37

Post by Kriselda Gray » Sun Apr 10, 2016 4:38 am

Mr. Fischer,

Before you waste any more time, money or energy playing Don Quixote, you should look at the Birther Scorcard, created and maintained by our marvelous Tes, which tracked all of the lawsuits - including motions for reconsideration (and a few for re-reconsideration,) appeals, requests for certiorari and any other such foolishness since President Obama started getting sued over his alleged ineligibility. If you examine it closely, you will find that no suit every succeed in being decided on the actual merits of the case. They never got that far.

I understand that it seems wrong and - to use WhinyDon's favorite term - unfair that even if we have reason to believe a candidate for the presidency in ineligible, there's no way to do anything about it ourselves through the courts, but, sadly, that is the truth of the matter,

I'm about to dump a big bucket of cold water here, but I think you need to understand the full scope of this issue and the futility of continuing to do what you are doing. IANAL, but these are things I've learned in almost seven years at this site. If any of what I say is wrong, I'm sure the IAALs here will correct it, but I'm pretty sure about it, because I remember how surprised I was when I first understood just how powerless we are to prevent an it eligible candidate from becoming President.

Part of the problem is that courts have determined eligibility is a political question, which courts simply do not have the right to decide, and part of it is that the Constitution leaves the actual selection of the president to the Electoral College, and if they are unable to decide, then it goes to Congress. As a result, those are the ONLY two bodies anywhere in the US (or the rest of the world, for that matter) that have the right and ability to decide if someone is eligible to be president or not, and if neither of them challenge a candidate or president-elect, then there is no challenge that can or will be made.

And, yes, this means that if an ineligible person runs runs for office and becomes the President-elect he or she can be sworn into to office if neither the EC or Congress make a challenge - and there's nothing going we can do about it. Plus, because of a principle know as "apparent authority," if someone is sworn into office and they are later found to have been ineligible to hold that office - even if they gained the office through fraud - because they had the apparent authority to make whatever decisions they made, give whatever orders they gave, sign whatever laws they signed and so forth, those will all remain in effect. There is no rollback on anything they implemented - no do over. It ALL stands.

There IS an outside chance that if a major, competing candidate - someone who is reasonably in jeopardy of losing votes or the election to Cruz, not some down-ballot candidate or a candidate who has no hope of winning the nomination or election - could file a suit as they could show actual harm feom his candidacy, but it's highly unlikely that would happen, because whoever takes the nomination is going to need the support of as many Republicans as he can get, and to get Cruz kicked out via lawsuit would likely piss off his supporters enough that they either wouldn't vote, or they'd vote for the opposition - making it a very stupid move on the part of the candidate who filed the suit.

So, right now, they only ways to keep Cruz from taking office IF he is elected and IF he truly is ineligible, would be for members of the ECF to challenge his election on they day they gather to vote, or to get Congress to challenge him. If neither Trump nor Kasich sues, and neither the ECONOMY or Congress challenge him, he's in.
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Re: Fischer v. Cruz (E.D.N.Y.)

#38

Post by Mikedunford » Sun Apr 10, 2016 8:03 am

GregFischer wrote:"Sam the Centipede", et al --- harassment, partisanship, and any form of "playing" is not what I am doing. Sorry, but you are missing my point.
Mr. Fischer:

I'm one of a fairly small number here who is of the opinion that Cruz is ineligible. I base my own view largely on a combination of the 1790 and 1795 US Naturalization Acts, as well as on a number of 18th- and 19th-Century English decisions touching on the natural born subject doctrine under common law. (Most of the UK decisions are in the context of inheritance; the NBC clause of the constitution doesn't come into play for obvious reasons.)

Despite the strong case (IMO, anyway) on the merits, I don't think the matter is justiciable. Even if constitutional standing can be addressed - and if there's a way to make this anything other than a generalized grievance, I don't know what it would be - prudential standing would remain a hurdle. The people, the electoral college, and Congress all have roles to play in assuring that the President is qualified, but I don't know that there is one for the courts.

For that matter, I'm not sure there should be a role for the courts. Given the relatively vague formulation of the requirements, and given the simplicity of making a case for ineligibility directly to the public prior to the election, why shouldn't this be a case for the people to decide?
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Re: Fischer v. Cruz (E.D.N.Y.)

#39

Post by Mikedunford » Sun Apr 10, 2016 8:41 am

GregFischer wrote:To answer the several responses at once.
I'll leave my prior answer (which I left before reading all responses in place). My more detailed answer will provide a more detailed answer to your enumerated questions than Stern did, but the outcome won't be that different.
GregFischer wrote:First, please know that an inactive nationally known Presidential candidate has signed an agreement to be a co=plaintiff if I need him. I would prefer to proceed alone if I can. Perhaps I am still trying "to fly that stolen airplane" alone.

Second: I am a life member of the Society of Professional Journalists so I could have gotten my suit more attention, but the lack of attention my suit has received shows I am not doing this for the attention --- I have not sent out a single wire or press release.
This goes somewhat to the point I raised a couple of minutes ago. Why shouldn't this be an issue that's dealt with in the court of public opinion? Cruz is running for elected office; the voters are both the initial gatekeeper and the gatekeeper of choice.
GregFischer wrote:Third: mea culpa, the problems of standing and defined damages have shown themselves to be more complex then I imagined. Yes, of course an experienced attorney would have been a better litigant but that was not in the budget.
To be blunt, on the facts you set out, an experienced attorney might well have been cheaper. It would not take much more than a very brief overview of the concept of the suit for an attorney to conclude that there is no viable path to standing on your facts; even if you were paying, .2 or .3 hours of work might have been less than the filing fee for the federal suit.
GregFischer wrote:Fourth, the issue of "standing" is somewhat clearer to me now --- a lesson learned the hard way no doubt and I am glad Judge Seybert was kind to me in her wording. Perhaps, as one strategy, maybe I should have entertained seeking a political science expert opinion on tangible damages to me as a down ballot candidate.
That would certainly blaze a new path to failure. Aside from that, I don't think there would be a benefit. Just off the top of my head, you'd have to show that a down-ballot candidate can be legally injured (as opposed to injured in practice) by the candidates in other races. There's likely to be something akin to either a legal fiction or a very strong presumption that each election is a separate entity, decided on its own merits. In asserting that you're injured by the presence of Cruz up-ballot, you're effectively asserting that you have a right to have your race decided in part based on the qualifications of Ted Cruz, rather than on your own merits. That strikes me as kind of dangerous.
GregFischer wrote:Fifth: we are at a point in our discussions where there are admissions in this group that Cruz is likely ineligible.
Irrelevant - and that's coming from someone who thinks Cruz is likely ineligible.
GregFischer wrote:Last: I still have the thought, and please hear me out, maybe the Judge, the Attorney General, and opposing counsel have their own separate "paradoxes" of sorts? As an issue, didn't the rules for the legal profession change (and extend the duties of officers of the court) since ENRON with regard to future, ongoing, and current crime?
Sarbanes-Oxley made some changes, but none that are in any way, shape, or form relevant here.
GregFischer wrote:(1.) Did/does the NYS attorney general have a duty (perhaps greater duty) to prosecute Cruz; in that, as an ineligible candidate, he presents a public harm and/or waster of NYS taxpayer money?
No. While there is a non-frivolous argument that Cruz is ineligible, that argument is whatever the opposite of a slam-dunk is. It's a difficult legal question. There is no binding precedent on this subject. The limited persuasive authority (such as Rodgers v. Bellei) can be viewed in different ways. I may (do) personally think that Cruz is ineligible, but there are other lawyers here who disagree with me - and there's a reasonable chance that they're right.
GregFischer wrote:(2.) Does the Cruz defense have a duty here? There were presented with demands for discovery and they lucked out --- they did not have to reveal their hand because of the timing of the judge's initiative.
It didn't matter what their case was, and it doesn't matter what was in their hand. You showed your hand when you filed, and it was a 7-high. No point in making them show theirs - it couldn't be worse than yours.
GregFischer wrote:(3.) I have some new evidence which clarifies the merits of the ineligibility claim --- is the judge ever forced to proceed because the merits are compelling?
1. No. If there is no standing, the Constitution forbids a federal court from proceeding no matter how compelling the merits are.
2. New evidence, or new legal argument? There's a very large difference, and I suspect that you're talking about legal argument, not actual evidence.
3. But see 1.
GregFischer wrote:(4.) Why can't I have standing for the declaratory definition of "natural born citizen" as any citizen is a potential presidential candidate?
1. Not any citizen is a potential presidential candidate - that's the whole point, right?
2. A citizen not running for president has no injury. No injury, no suit.
3. You can't base a suit off the Declaratory Judgment Act - you need actual grounds for a suit.
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Re: Fischer v. Cruz (E.D.N.Y.)

#40

Post by Sterngard Friegen » Sun Apr 10, 2016 11:09 am

Still waiting for the "new evidence." :waiting:

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Re: Fischer v. Cruz (E.D.N.Y.)

#41

Post by Sam the Centipede » Sun Apr 10, 2016 1:59 pm

Sterngard Friegen wrote:Still waiting for the "new evidence." :waiting:
Mr. Fischer needs to eat more beans, then he'll produce it.

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Re: Fischer v. Cruz (E.D.N.Y.)

#42

Post by Sterngard Friegen » Sun Apr 10, 2016 3:19 pm

I'm pretty sure it's something he's just thought of. There is no "new evidence" and for the arguments relating to eligibility there not need be any. Unless Felito has just renounced his U.S. citizenship.

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Re: Fischer v. Cruz (E.D.N.Y.)

#43

Post by woodworker » Sun Apr 10, 2016 8:51 pm

Putting aside timing and any procedural or substantive issues other than standing, IMHO the only persons who might have standing are other candidates (given the prospect of a contested convention, this could include proto-candidates such as Paul Ryan or the Mittster). Maybe you can get Ben Carson (but not JIndal or Rubio) to reactivate his campaign and he files against Cruz. Thoughts??
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Re: Fischer v. Cruz (E.D.N.Y.)

#44

Post by Piffle » Sun Apr 10, 2016 11:21 pm

woodworker wrote:Putting aside timing and any procedural or substantive issues other than standing, IMHO the only persons who might have standing are other candidates (given the prospect of a contested convention, this could include proto-candidates such as Paul Ryan or the Mittster). Maybe you can get Ben Carson (but not JIndal or Rubio) to reactivate his campaign and he files against Cruz. Thoughts??
Meh, as long as we're looking for ways to pierce the veil of standing* in the federal courts, we're :brickwallsmall: .
Even if you could come up with a bona fide Republican candidate like "I could'a Ben a contender" as a client, you still have to run the gamut of dismissal motions for a half-dozen reasons rooted in federal jurisprudence.

It seems to me that the best back door to open the bidding will be found in the state courts, if it is to be found at all. The best exemplars of rulings on the merits to date are probably Ankeny and Ted Cruz's win in the Pennsylvania Supreme Court.

____
* I claim dibs on this phrasing.

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Re: Fischer v. Cruz (E.D.N.Y.)

#45

Post by Mikedunford » Mon Apr 11, 2016 2:02 am

Piffle wrote:It seems to me that the best back door to open the bidding will be found in the state courts, if it is to be found at all. The best exemplars of rulings on the merits to date are probably Ankeny and Ted Cruz's win in the Pennsylvania Supreme Court.
True. And even then, best doesn't mean good. If I was representing a client, and if I thought a state-law eligibility challenge had any chance of success, I'd be looking to intervene and to convince any co-defendants to remove the case to federal court. At which point, of course, I'd move to dismiss on justiciability grounds.
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Re: Fischer v. Cruz (E.D.N.Y.)

#46

Post by everalm » Mon Apr 11, 2016 6:25 am

IIRC, the whole 'I'm a real candidate...not really" was all tested out and tossed in 2008/9 with Alan Keyes.

In fact, I seem to recall this was one of the earliest ones that specifically laid out that the SoS's in general have no authority or legislative power to make decisions on eligibility.....a ruling upheld again and again including in one of my favourite cases, Purura and the Moron lead by the Putz.

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Re: Fischer v. Cruz (E.D.N.Y.)

#47

Post by Piffle » Mon Apr 11, 2016 11:08 am

Mikedunford wrote:
Piffle wrote:It seems to me that the best back door to open the bidding will be found in the state courts, if it is to be found at all. The best exemplars of rulings on the merits to date are probably Ankeny and Ted Cruz's win in the Pennsylvania Supreme Court.
True. And even then, best doesn't mean good. If I was representing a client, and if I thought a state-law eligibility challenge had any chance of success, I'd be looking to intervene and to convince any co-defendants to remove the case to federal court. At which point, of course, I'd move to dismiss on justiciability grounds.
Well yeah, factoring in how removal to federal court might play out is surely integral to this particular species of war game. However, I don't think it's as as simple as it first appears.

1. Defendants remove and assert that the cause is not justiciable by a federal court (noting that many if not most of the doctrines collectively defining "justiciability" are derived from Article III.)

2. Plaintiff moves to remand to state court arguing that if the cause is not justiciable in federal court, the federal court lacks subject matter jurisdiction to decide (e.g., dismiss) and must therefore remand.

The bottom line, if I'm remembering this correctly, is that removal does not create jurisdiction; it only changes the forum when the federal court could have asserted jurisdiction in the first place. (I'm conveniently ignoring supplemental jurisdiction because that's another matter.) A defendant cannot remove based on (1) potential federal defenses limiting the jurisdiction of the federal courts or (2) federal counterclaims.

So it seems to me that if the state claim is well-pleaded and avoids raising a federal question, removal may not afford a good way to attack (federal) standing or similar issues of justiciability. Whether or not the suit unduly meddles in areas that are pre-empted by federal law (including unconstitutionality) is the more likely stumbling block to perfecting a state eligibility challenge IMHO.

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Re: Fischer v. Cruz (E.D.N.Y.)

#48

Post by Sterngard Friegen » Mon Apr 11, 2016 12:06 pm

Removal and dismissal is appropriate when a federal question is central to a claim and there is no jurisdiction or standing in federal court.

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Re: Fischer v. Cruz (E.D.N.Y.)

#49

Post by Mikedunford » Mon Apr 11, 2016 1:30 pm

Piffle wrote:
Mikedunford wrote:
Piffle wrote:It seems to me that the best back door to open the bidding will be found in the state courts, if it is to be found at all. The best exemplars of rulings on the merits to date are probably Ankeny and Ted Cruz's win in the Pennsylvania Supreme Court.
True. And even then, best doesn't mean good. If I was representing a client, and if I thought a state-law eligibility challenge had any chance of success, I'd be looking to intervene and to convince any co-defendants to remove the case to federal court. At which point, of course, I'd move to dismiss on justiciability grounds.
Well yeah, factoring in how removal to federal court might play out is surely integral to this particular species of war game. However, I don't think it's as as simple as it first appears.

1. Defendants remove and assert that the cause is not justiciable by a federal court (noting that many if not most of the doctrines collectively defining "justiciability" are derived from Article III.)
I'd go with "most," but "most" isn't the same as "all." At least as I understand it, the political question doctrine isn't a constitutional standing issue. It's a prudential one; the exercise of jurisdiction is unwise in such circumstances, but not unconstitutional.
2. Plaintiff moves to remand to state court arguing that if the cause is not justiciable in federal court, the federal court lacks subject matter jurisdiction to decide (e.g., dismiss) and must therefore remand.

The bottom line, if I'm remembering this correctly, is that removal does not create jurisdiction; it only changes the forum when the federal court could have asserted jurisdiction in the first place. (I'm conveniently ignoring supplemental jurisdiction because that's another matter.) A defendant cannot remove based on (1) potential federal defenses limiting the jurisdiction of the federal courts or (2) federal counterclaims.
That's the general rule, but there is (IIRC) an exception. (I think it's the "artful pleading" rule.) The plaintiff can't escape removal merely by not pleading a necessary federal cause of action. In any eligibility-based suit, even if nominally phrased as a ballot access action, the entire matter will turn on the interpretation of a specific clause of the US Constitution. At least in my mind, that's a necessary federal question.
So it seems to me that if the state claim is well-pleaded and avoids raising a federal question, removal may not afford a good way to attack (federal) standing or similar issues of justiciability. Whether or not the suit unduly meddles in areas that are pre-empted by federal law (including unconstitutionality) is the more likely stumbling block to perfecting a state eligibility challenge IMHO.
The other factor that I was considering with the removal tactic is delay - given the timetable for election challenges, there's a decent chance of pulling off an American equivalent to the European "Italian Torpedo."
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Re: Fischer v. Cruz (E.D.N.Y.)

#50

Post by Orlylicious » Tue Apr 12, 2016 1:43 am

Everyone here has been tough but fair Mr. Fischer, hope you take the time to read and reply. There's really excellent information here that would have saved you a lot of money and mock. Did you have a chance to see http://thefogbow.com/forum/app.php/page/contrib?
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