Yesterday was a long day of schoolwork and housecleaning, and when the smoke finally cleared at the end of the day, I found that I had more e-mails today than ever in my entire life. More than 90 percent of those e-mails dealt with one of two issues: (1) the status of the Philip Berg v. Barack Obama lawsuit and Barack Obama’s citizenship questions as a whole, and (2) questions as to the perceived delay in the adjudication of the case at hand.
So, I plan to take care of both issues now, a little past midnight and a little before I go to sleep. First, the update on Berg v. Obama and related legal actions and, second, possible reasons why the Hon. R. Barclay Surrick hasn’t come down with a decision yet.
Please remember–this is very important–that the second part is chock-full of conjecture. A string of guesses. I am merely a law student, only a little more than half-way through the four years it takes to obtain a law degree at night, and I have yet to take the course which provides a look inside the mind of a district court judge.
Nevertheless, I hope I answer your questions, and apologize for the delay in attempting to do so. Later today, after I [hopefully] relax for several hours far away from the computers and law books and yard equipment on this, my 30th birthday, I have something I’ve been wanting to get off my chest for a while, something I was going to wait until closer to Election Day to write but have decided to do so earlier, so please come on back.
Philip Berg, Barack Obama, and U.S. Citizenship
Pennsylvania attorney Philip Berg is not alone. There are now currently three lawsuits questioning the eligibility of Illinois Sen. Barack Obama to serve as president of the United States — the first, of course, is Berg’s, while the other two include an action filed in Washington State Superior Court last week and one filed Friday in a Hawaiian state court.
Unlike Berg’s case, which names Obama, the Democratic National Committee and Federal Election Commission as defendants (Berg has a pending motion for leave to amend his original complaint which would add California Sen. Dianne Feinstein and the Senate Rules Committee as well), the other lawsuits are geared toward ballot inclusion and document production.
The suit in Washington State, filed against Secretary of State Sam Reed by Fall City, WA resident Steven Marquis, seeks the removal of Barack Obama from the ballot until the candidate provided an answer to what Marquis says are “unanswered questions surrounding Obama’s citizenship and background,” the answers for which effectively avoid “a ‘constitutional crisis and likely civil unrest’ which would arise should information come to light after the election which shows that the Illinois senator is ineligible to hold the presidency.”
Much like Philip Berg, I would imagine that Steven Marquis will have to show some sort of particularized injury in order to have standing to sue. Two similar challenges against Sen. John McCain have been tossed out for lack of standing, Fred Hollander’s case in state-level court in New Hampshire and Markham Robinson’s case in northern California Federal Court. I still expect the same fate for Berg’s case in Philadelphia, but more on that in a second.
Friday’s suit in Hawaii was filed by “Obama: The Man Behind the Mask” author Andy Martin against Hawaii Gov. Linda Lingle and Dr. Chiyome Fukino, director of the state Department of Health and is seeking a court order compelling the state to release Obama’s birth certificate and any other related records in the interest of full disclosure.
While Hawai’i statutes call for a balancing or weighing test where production is considered by a court, most respectfully Plaintiff submits that the balance falls entirely on the side of disclosure where the original birth certificate of a presidential candidate is concerned.
Martin describes himself as a “legendary Chicago muckraker, author, Internet columnist, radio talk show host, broadcaster and media critic.” He insists that he is not acting as a democrat or republican or on behalf of any campaign. Now, this self-proclaimed “Obama nemesis” is in Hawaii, waiting for a decision from the state circuit court judge.
Judging from the nature of the proceedings in Berg v. Obama, Martin could be waiting for a while.
So, why is it taking so long? What is the judge waiting for?
It has been 59 days since Philip Berg’s lawsuit against Barack Obama fell into my lap as I read through the day’s civil cases in the Clerk’s Office at the USDC Eastern District of Pennsylvania. Hurricane Ike was bearing down on the Gulf coast, the GOP was preparing for their convention in Minneapolis, and John McCain was still a week away from naming Gov. Sarah Palin as his running mate and was down in the polls further than he is now.
Service was completed quickly on the Federal Election Commission, but not so quickly on Obama and the DNC due to a mixup on some level. Obama was served at his Washington, D.C. office on September 4. Since then, there have been almost a dozen pleadings filed by both parties and intervenors as well.
And, as the fourth of November looms large, people are wondering why the Hon R. Barclay Surrick–a Clinton appointee and, according to campaign finance records, possibly a republican–has not yet handed down a decision in the case.
Before I get to the conjecture, two quick facts — first, Judge Surrick is well within his discretion to take as much time as he needs and, second, no judge likes to be overturned. Furthermore, I know a few people who have clerked for Judge Surrick in the past, and by all accounts he is careful, deliberative, extremely fair, and likes to write his own opinions and orders. Perhaps it was that careful and deliberative nature which contributed to his decision not to toss Berg’s suit either at the moment it first appeared on his desk or at the hearing for the [denied] temporary restraining order. Regardless, the case is still open, and you want to know why.
Of course, there’s the chance that the judge doesn’t want to render a decision until after the election so as to avoid media attention. Other than that, I have a few guesses, three of which I’m prepared to share:
My first guess, and possibly the safest, is that these things simply take time. Judge Surrick’s reputation for being deliberative and fair is no mistake, and he will likely send down an order soon dealing with all open pleadings at once.
My second guess, still fairly safe, is that Judge Surrick is waiting until after October 21, when the answer to the original complaint is due from the Federal Election Commission (which gets the extended 60 days to file because of its status as a government agency), before handing down a decision on discovery, on the motion to dismiss, or anything else.
My third guess, hardly as safe, is that Judge Surrick knows that it takes a certain amount of time for an appeal to get started in the Third Circuit Court of Appeals, and is waiting until past the proverbial point-of-no-return relative to Election Day before handing down a decision on any or all of the pending pleadings. That way, whatever the decision may be, it will be more apt to affect the election in one way or another.
Berg has a couple of options as well.
First, he can wait, which I can only imagine is frustrating and difficult as the primary concern from which his action arose was the avoidance of a “constitutional crisis.” Remember, please, that even in the days following the filing of the suit, Berg was hoping to make an immediate impact and was hoping that Obama could be enjoined from campaigning prior to the Democratic National Convention in Denver.
Second, he can file a petition for a writ of mandamus, essentially asking a higher court to order that the district court and Judge Surrick render a decision in the case. He could feasibly file the petition with the Third Circuit or even the U.S. Supreme Court. While this could push things along quickly, I cannot imagine that a judge enjoys having a lawyer go over his or her head.
Personally, while every fiber of my being makes me believe that Berg’s case will be dismissed for lack of standing, I get this unexplainable, nagging, sneaking, itching suspicion, like a hair standing up on the back of my neck, that Judge Surrick will come down on Berg’s side and grant the motion for expedited discovery. There is a standard for voter standing, of course, but even that standard has undergone some changes over the years, most famously I would imagine in the White Primary Cases.
If rules never changed, the casebooks in my home office-slash-guest room would be a whole lot thinner and I wouldn’t be up as late reading. Standards adapt, tests become more and less inclusive. The sneaking suspicion is probably wrong and the feeling on the back of my neck probably nothing, but I won’t know for sure until that order comes down.
In the meantime, keep checking here for updates. My contacts at the courthouse should ensure that I–and therefore you–get the information as soon as it becomes available.