Constitution Association, Inc v Kamala Devi Harris, SD California & Appeal, Ninth Circuit

[Reality Check]

The ruling in Grinols was already affirmed in the same Ninth Circuit too.

[Reality Check]

The "answer to Miscellaneous petition" is titled "amended opening brief." I may upload it somewhere eventually but it is too large for here (132 pages).

If you could email it to me I can post it on my blog and and link it here. I will PM my email address to you.

[bob]

The ruling in Grinols was already affirmed in the same Ninth Circuit too.

The 9th has tilted more conservative since then, but even so, no judge is going to disagree with Grinols. And certainly not for this poorly argued and moot nonsense.

Regardless of the (too-much-inside-baseball) path this case leads, it is going to die in a terse ruling, and without the "benefit" of oral argument. The only real question is when.

And the boys will have learned nothing from the experience.

[Jim]

And the boys will have learned nothing from the experience.

Maybe it's just me...but I really believe they've become experts!

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[northland10]

Regardless of the (too-much-inside-baseball) path this case leads, it is going to die in a terse ruling, and without the "benefit" of oral argument. The only real question is when.

I thought oral argument was the default in the 9th or, at minimum, they did it if one of the parties requested, which birthers always do.

[bob]

I thought oral argument was the default in the 9th or, at minimum, they did it if one of the parties requested, which birthers always do.

If the case goes to an argument panel. It might not even get that far.

And the panel can always conclude oral argument is unwarranted, and order the case submitted on the briefs. Which is a common occurrence in the 9th.

[Reality Check]

I think that a response from VP Harris to the appeal was due on 3/28. Has anyone seen anything?

[Reality Check]

I obtained a copy of the Harris answering brief:

19
Submitted (ECF) Answering Brief for review. Submitted by Appellee Kamala D. Harris. Date of service: 03/28/2022. [12406301] [21-56287] (Norris, Brett) [Entered: 03/28/2022 01:25 PM

[Reality Check]

As you might expect the assistant USA argues the lower court dismissal was correct based on the political question doctrine and lack of standing. Of course Grinols v Obama and Drake v Obama are both cited as appeals denied in the Ninth Circuit on similar grounds..

[Reality Check]

The Constitution Association, Inc. Rombach filed a reply brief on April 15. I bought it on PACER so we could all see the wonder of it.

25, Reply Brief for review. Submitted by Appellant George F.X. Rombach. Date of service: 04/15/2022

Grinols was wrongly decided, the political question doctrine does not apply, blah, blah.

[bob]

The Constitution Association, Inc. filed a reply brief on April 15. I bought it on PACER so we could all see the wonder of it.

25, Reply Brief for review. Submitted by Appellant George F.X. Rombach. Date of service: 04/15/2022

Grinols was wrongly decided, the political question doctrine does not apply, blah, blah.

Thanks!

"For completeness," this is the reply of George Rombach (PhD, JD, CPA, BBQ, WTF*), and not the association's reply. But Rombach basically is the association (in the real world); it will be interesting to see if the association's lawyer bothers to reply. (Replies are almost always optional.)

I'm taking the under on the lawyer filing a reply; it is just bad money after bad at this point. And this case isn't going to get oral argument, so the lawyer's job effectively is over.


* Pat's joke.

[W. Kevin Vicklund]

The Constitution Association, Inc. filed a reply brief on April 15. I bought it on PACER so we could all see the wonder of it.

25, Reply Brief for review. Submitted by Appellant George F.X. Rombach. Date of service: 04/15/2022

Grinols was wrongly decided, the political question doctrine does not apply, blah, blah.

Thanks!

"For completeness," this is the reply of George Rombach (PhD, JD, CPA, BBQ, WTF*), and not the association's reply. But Rombach basically is the association (in the real world); it will be interesting to see if the association's lawyer bothers to reply. (Replies are almost always optional.)

I'm taking the under on the lawyer filing a reply; it is just bad money after bad at this point. And this case isn't going to get oral argument, so the lawyer's job effectively is over.


* Pat's joke.

Until the pet for cert to SCOTUS.

[bob]

Until the pet for cert to SCOTUS.

That, too, would be more bad money after bad. After the 9th nukes this case, my guess is Rombach will file his own cert. petition and the association will file nothing in SCOTUS. The result will be same, but with fewer self-sanctions.

(Gentle readers will recall Rombach basically ghost-wrote the association's opening brief.)

* * *

Rombach listed as a potential related appeal EIPC v. [SoSoCA], which was a Sore-losers of 2020 Greatest "Hits."

[noblepa]

IANAL, but I scanned the document.

One thing I noticed is that they claim that VP Harris FALSELY asserted that she had not received the complaint. Isn't there a legal definition of proof of service? If it had been properly served, it should be relatively easy to show that she was served. OTOH, serving the president or vice president is a little different than serving you or me. Perhaps they didn't follow the procedures to serve the VP.

Also, looking at the names of some of those cases that they cite, I find it hard to believe that all of them have a bearing on the definition of Natural Born Citizen.

As to their assertion that the Constitution never gives Congress any say in the eligibility of candidates, I would argue that the whole process of certifying the election results, as played out on January 6, 2021, is defined by the Constitution and supporting legislation. The question of eligibility can not be separated from that process. I think that it has to be inferred that ineligibility (if it were real) would have to be one of the grounds on which Congress could rightly decline to certify the election.

[bob]

One thing I noticed is that they claim that VP Harris FALSELY asserted that she had not received the complaint.

Why state a fact when you can mistate an opinion as a fact?

Isn't there a legal definition of proof of service? If it had been properly served, it should be relatively easy to show that she was served. OTOH, serving the president or vice president is a little different than serving you or me. Perhaps they didn't follow the procedures to serve the VP.

The boys literally just mailed a copy of the complaint to the White House. The DOJ said service on a federal employee requires more. The boy replied Harris was still a mere candidate when the case was filed, and that a federal employee and officer are different.

The judge punted and just dismissed for lack of jurisdiction. Which was the correct call: If the court lacks jurisdiction to hear the merits, it also lacks jurisdiction to determine if service was proper.

Rombach's inclusion of this utterly pointless whinge will impress only Rombach; it will have the opposite effect on the poor shipping clerk who has to read this dreck.

Also, looking at the names of some of those cases that they cite, I find it hard to believe that all of them have a bearing on the definition of Natural Born Citizen.

Further, the Supreme Court has previously applied the rule of law in relation to the definition of ‘natural born Citizen’ (a child born to both parents who were citizens of the United States at the time the child was born in the United States) in at least five published cases. See The Venus, 12 U.S. (8 Cranch) 253, 289 (1814); Shanks v. Dupont, 28 U.S. 3 Pet. 242 245 (1830); Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857); Minor v. Happersett, 88 U.S. 162, 167-168 (1875); and United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898).

This reads like Laity wrote it, but it is actually a decade-old birther trope on which no court has bit.

But, "for fun": the words "natural-born citizen" don't appear in The Venus; "natural-born citizen" appears only in a concurring opinion of Dred Scott (yaknow, the worst decision from SCOTUS). Wong Kim Ark is the backbone to every eligibility case that Obama won on the merits, so clearly that hasn't flown in the real world.

Nonetheless, no remaining birther will ever be convinced Rombach's statement is wrong.

As to their assertion that the Constitution never gives Congress any say in the eligibility of candidates, I would argue that the whole process of certifying the election results, as played out on January 6, 2021, is defined by the Constitution and supporting legislation. The question of eligibility can not be separated from that process. I think that it has to be inferred that ineligibility (if it were real) would have to be one of the grounds on which Congress could rightly decline to certify the election.

And Grinols says as much, which is why Rombach argues Grinols was wrongly decided. The 9th affirmed Grinols in an unpublished ruling, which very strong suggests the 9th agrees with Grinols. Which Rombach will soon enough learn.

[northland10]

I forget exactly but I think they tried to serve the VP by mail but wanted it to be considered personal service to an individual (not as a government officer). Birthers think that the VP, or Obama previously are not really in their office so they must sue them as individuals.

Individuals must be served personally by an a process server or some individual over 18. Government officials may be served by mail sent to various government attorney offices. If they sent to her at the WH by mail, and they claimed she was sued as an individual only, she was not served properly. If they were serving her in her official capacity, they sent it to the wrong place. It is just that simple, I think in my IANAL brain.

I imagine there is probably a way to serve an officer on an individual basis by leaving it with somebody authorized in the office. Calling ahead and asking always helps.

"For completeness," this is the reply of George Rombach (PhD, JD, CPA, BBQ, WTF*), and not the association's reply. But Rombach basically is the association (in the real world); it will be interesting to see if the association's lawyer bothers to reply. (Replies are almost always optional.)

I'm taking the under on the lawyer filing a reply; it is just bad money after bad at this point. And this case isn't going to get oral argument, so the lawyer's job effectively is over.

Reply was due 21 days after service of the answering brief, and the service was on 28 March. I think CA may be out of time which may be fine with their attorney. I suppose it could be in process and not on the docket yet.

[northland10]

As to their assertion that the Constitution never gives Congress any say in the eligibility of candidates, I would argue that the whole process of certifying the election results, as played out on January 6, 2021, is defined by the Constitution and supporting legislation. The question of eligibility can not be separated from that process. I think that it has to be inferred that ineligibility (if it were real) would have to be one of the grounds on which Congress could rightly decline to certify the election.

Even if Congress did have a say on eligibility, they confirmed Electoral College results without an objection to eligibility. If Congress has a say, only Congress can argue for that right but would first need a court to overrule their actual actions. Since Congress never actually exercised any say in eligibility, there is nothing for a court to rule on.

He is arguing a theoretical that, even if a court actually ruled on it, would mean nothing because Congress never brought up eligibility on Jan 6 or for Obama's elections. There is nothing for the courts to order.

[bob]

Even if Congress did have a say on eligibility, they confirmed Electoral College results without an objection to eligibility. If Congress has a say, only Congress can argue for that right but would first need a court to overrule their actual actions. Since Congress never actually exercised any say in eligibility, there is nothing for a court to rule on.

And that dovetails with the ruling in Drake (which Rombach didn't cite): Harris now is the vice president; the only constitutionally prescribed method now to "challenge" her eligibility is via impeachment (or, in theooooory, quo warranto). Rombach's case is moot (too also).

[Frater I*I]

God damn, when will the courts final stick a stake in the heart of this bullshittery....

[bob]

God damn, when will the courts final stick a stake in the heart of this bullshittery....

This is the problem with frivolous lawsuits (generally): It takes time (read: money) to dispatch them.

So, pick your poison: Kill them off quickly (and push more worthy cases down the pile) or let them zombie-like linger?

[Reality Check]

I forget exactly but I think they tried to serve the VP by mail but wanted it to be considered personal service to an individual (not as a government officer). Birthers think that the VP, or Obama previously are not really in their office so they must sue them as individuals.

Individuals must be served personally by an a process server or some individual over 18. Government officials may be served by mail sent to various government attorney offices. If they sent to her at the WH by mail, and they claimed she was sued as an individual only, she was not served properly. If they were serving her in her official capacity, they sent it to the wrong place. It is just that simple, I think in my IANAL brain.

I imagine there is probably a way to serve an officer on an individual basis by leaving it with somebody authorized in the office. Calling ahead and asking always helps.

Reply was due 21 days after service of the answering brief, and the service was on 28 March. I think CA may be out of time which may be fine with their attorney. I suppose it could be in process and not on the docket yet.

Rombach tried to serve V. P. Harris by mailing a copy to the White House. He claims the VP is not a government employee so she does not fall under the rules for serving an officer of the federal government. Of course since the district court kicked out the case on jurisdiction it never ruled on that ridiculous argument.

Rombach ignored what the Ninth Circuit actually ruled in Grinols. The Ninth affirmed Grinols based on mootness. Since Obama had already been certified by Congress there was nothing the court could do to change that since it lacked the power to undo that. So no case or controversy that the court could rule upon still existed. Rombach has the same issue and the Ninth will dismiss for similar reasons.

[northland10]

Rombach tried to serve V. P. Harris by mailing a copy to the White House. He claims the VP is not a government employee so she does not fall under the rules for serving an officer of the federal government. Of course since the district court kicked out the case on jurisdiction it never ruled on that ridiculous argument.

And his ridiculous argument ignores the rules on service, IIRC. If you are suing somebody personally, then it has to be personal service, not mailed. You get to mail it if you are serving a government official. Lawyers are free to correct me but I thought that was what is stated in the FRCP.

[noblepa]

The boys literally just mailed a copy of the complaint to the White House. The DOJ said service on a federal employee requires more. The boy replied Harris was still a mere candidate when the case was filed, and that a federal employee and officer are different.

If that is true, then, aside from the failure to follow proper procedure, they mailed it to the wrong address. As a candidate, or even as a Senator, she was not working in the WH until January 20, 2021.

[noblepa]

But, "for fun": the words "natural-born citizen" don't appear in The Venus; "natural-born citizen" appears only in a concurring opinion of Dred Scott (yaknow, the worst decision from SCOTUS). Wong Kim Ark is the backbone to every eligibility case that Obama won on the merits, so clearly that hasn't flown in the real world.

Nonetheless, no remaining birther will ever be convinced Rombach's statement is wrong.

And, while Minor does use the phrase "Natural Born Citizen", it is only as what even this IANAL can recognize as dicta. It and the two-parent requirement is mentioned only to point out that it is irrelevant to the case. Birthers love to claim that the case supports the two-parent requirement, when, in fact, the ruling says no such thing.

[Dr. Caligari]

And his ridiculous argument ignores the rules on service, IIRC. If you are suing somebody personally, then it has to be personal service, not mailed. You get to mail it if you are serving a government official. Lawyers are free to correct me but I thought that was what is stated in the FRCP.

It's a bit more complicated than that. Federal Rule of Civil Procedure 4(e)(1) lets you, as one permitted method of service, follow "state law for serving a summons in an action brought in courts of ... the state where the district court is located or where service is made." California state court, IIRC, permits service on an out-of-state defendant by certified mail. So he may not have been as fractally wrong on that issue as he was on others.