New Suits in California and Hawaii, and an Aging Suit in Philadelphia

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.

– Jeff

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.

Share

Comments

  1. Anonymous says:

    Happy Birthday Jeff!

  2. Anonymous says:

    Just exceptional work, Jeff. On every level; exceptionally informative, balanced and helpful.

    Thank you for your continuing stewardship and high standard of care.

  3. richard says:

    Jeff,

    First off, Happy Birthday! Secondly, I think you’ve done a terrific job in keeping those of us who have been following Obama v. Berg informed.

    I think your reasoning is very sound and I would like to believe that your third guess as to why the judge has not rendered a decision is most likely the reason.

    Without knowing the judge, I have to believe that if he thought the the lawsuit was bogus, he would have already dismissed it. But I also believe that he discovered in his own research that Phil Berg is correct. I suspect that the judge saw how Barky was attempting to run down the clock on this election without this issue being known. I also believe that the judge may know the truth of Barky’s eligibility and may not want to give Barky con man a chance to appeal before the election.

    Just think of it. If a Federal judge ordered Barky to produce documents it would be major news that the MSM could no longer ignore. And if it breaks just a few days before the election, Barky will not be able to use any legal maneuvers to modify the outrage that this country will feel. At least, that is my hope.

    I guess that all we can do now is pray that Judge Surrick makes the right decision for America.

  4. Anonymous says:

    Thank you for your update. I check often for new info. By the way, Happy Birthday!

  5. Anonymous says:

    Jeff,

    The real issue is really not
    Obama’s birth or citizenship.

    The REAL issue is the duty of the
    Secretaries of State in ALL STATES
    to duly verify the eligibility of
    ALL the candidates for the office
    they seek — especially since the
    states are resposible for running
    the elections.

    In my opinion, Dr. Berg’s lawsuit
    is rather misguided. The best and
    most effective way to bring out
    the true facts of the candidates’
    birth and citizenship status is to
    file suit in the state court system
    in every state, requiring all the
    Secretaries of State to review the
    candidates’ birth certificates and
    proofs of citizenship.

    All in my humble opinion of course,
    since I am not a lawyer ;-)

  6. Me says:

    Happy Birthday, Jeff! Thanks for all you do to inform us all. It is most appreciated!

    Again, Happy 30th Birthday to you!

  7. Anonymous says:

    If you are right that will be tantamount to saying that Article II is void and anyone can be president.

  8. TheGolem says:

    IT Would be far worse if this isn’t resolved now rather than if Obama is elected which would surely then be a constitutional crisis.

    I’m particularly interested in the litigation to obtain disclosure on Obama’s birth certificate. Do you know what happened to the info that was originally available at the eisrael site? I know what happened at WGN also and blogtalkradio. There is no doubt there has been a concerted effort to make this go away.

    I will continue to check your site for updates. Again, thanks…

    Hank Roth
    http://inyourface.info/

  9. Anonymous says:

    Maybe Judge Surrick is waiting for this to be the October Surprise that generally comes out one to two weeks before elections.

  10. caffinequeen says:

    I was under the impression that suits had also been filed in Minnisota, North Carolina, and Utah as well as the ones you mention in my home state of Washington and the new one filed in Hawaii.

    I appreciate your insight and I really hope your wrong about the judge dismissing. Not that I want you to be wrong I just want them to force him to put up or shut up so to speak.

    If he wants the job he needs to prove he’s eligible period. And I don’t care that we haven’t made previous presidents proove it. That’s because there were no doubts about where they were born or their loyalties.

    I’m a life long Dem who is severely disappointed in my party now. I want to reform it but should that prove impossible I’ll change to Indy. I will never again be part of a party that is corrupt and sub-human as the Obamabots are.

    If we can’t kick them out and reform the party the Dems are over.

    CQ

  11. Alex says:

    If a voter, a citizen of the United States doesn’t have the right and responsibility to demand transparency with regards to the background and eligibility of a candidate for the highest seat in the land, than who does? I don’t understand how a citizen and voter can NOT have standing to bring this case.

    If a citizen and voter doesn’t have the right and responsibility to be given verifiable proof that the candidate is in fact eligible, then the Constitution isn’t worth the paper on which it is written.

  12. TypewriterStreaming says:

    Happy Birthday Jeff. Thank you for your time in caring for this blog and it is really outstanding.
    Beyond everything the Obama birth certificate let’s us know how he will govern – and people in this Country are in for a shock.
    Here is a link to an excellent reader letter. Calls Obama out on just about everything.
    A Record of Mistruths – Open Letter to Senator Obama
    Posted on October 19, 2008
    http://www.freedomscost.net/?p=1212

  13. Anonymous says:

    In the event the case is dismissed due to Berg’s lack of standing, then who would have standing in your opinion?

  14. John Galt says:

    I would like to add another opinion as to why Judge Surrick is taking his time.

    Clearly if he he finds in favor of Berg allowing this suit to move foward, especially if API can produce a valid audito of Michelle Obama’s call to them, then his decision could be monumental and its consequences extreme.

    I have no doubt that Obama has already got his army of rioters in place ready to go with one cell phone call or text message.

    I have absolutely no doubt that if Obama loses this election or loses the trial that there will major race rioting in America, much worse than in the 60s.

    Obama is no different than is Lulu cousin and fellow Muslim R. Odinga. Two peas out of the same Lulu tribe.

    So I believe because of what is at stake here that Judge Surrick wants to make absolutely sure that he has all of his ducks in a row if he is going to rule in favor of Berg.

    Though at this time I am not convinced that he will rule in faovr of Berg for a number of reasons.

  15. Anonymous says:

    The strategy of the Dems is obviously to delay the
    resolution of all these pending lawsuits as long as possible.

    If they win the election and Obama is later found
    ineligible, then Joe Biden, or at worst Nancy Pelosi
    would take over.

    If on the other hand Obama is removed from the
    ticket prior to the election, they risk losing the
    election and the White House, and maybe also
    a few seats in the House.

    How disgraceful!

  16. thebetterof2evils says:

    I just wonder if hes not a citizen and is elected what happens exactly? Maybe they were planning for this to happen all along.

  17. Anonymous says:

    Here is my theory–The judge can be seen as “thorough” and “fair” if he just agrees to the “discovery” portion of the filing. That way he is not saying he agrees with either side, but wants more info. I am no lawyer or judge, but that just seem logical to me.

    Also, Jeff, you are becoming more and more wishy-washy to cover your butt so you can say you were “right” or “wrong” after the decisions come down. On one hand you think the judge would dismiss and on the other you state he will allow discovery. YA’ THINK?!?!?! Wow, that is really going out on a limb!

  18. marnie says:

    Happy Birthday, Jeff! Thank you for keeping us informed.

    There is still hope for McCain/Palin due to Obama’s “share the wealth” comment and middle class anger at the way Joe the Plumber has been treated by the MSM and Obama campaign.

    AOL straw poll: McCain with 70%.
    Post-debate Drudge poll: McCain at 72%. (Drudge within hours took results off his website).

  19. Anonymous says:

    Jeff,

    You keep saying that judges don’t like to be overturned. I guess you’re not familiar with the 9th Circus out here on the Left coast.

    The most overturned court in the country and never bothered by making bad decisions.

    A little humor break in a serious situation.

  20. Ian Thorpe says:

    Have a great birthday Jeff and thanks for the brilliant reporting and explanatory writing on the Berg case.

    Good grief, you’re younger than my daughter, have you any idea hoe depressed that makes me feel :) )

  21. Goldie says:

    HAPPY BIRTHDAY Jeff!!

  22. John Q. Public says:

    Patience, the Doctrine of Greater Good kicks in on November 5th, when all questions and challenges are rendered moot.

    We are but riffraff, flotsam, in the sea of government.

  23. Pat in NC says:

    Your efforts are appreciated. Hope your birthday is a happy one.

  24. Anonymous says:

    Happy 30th! You are very accomplished and effective for such a young man. You’ve impressed a lot of people, to say nothing of enlarging our worlds by bringing information we wouldn’t otherwise get.

    You know, I keep thinking as I read your many and excellent posts that you are such a good writer and you definitely have the beginnings of a book on these pages. Lawyers, by the nature of their profession, often make excellent writers. Please go for it!

  25. suek says:

    Happy Birthday..!!
    I remember when the “big” three O was considered the end of trustability!

    At my present age, I look back on it as the beginning of maturity! Enjoy the ride – you only get once around.

    That said…

    If all these people don’t have standing in a court of law to challenge the eligibility of a man to stand for President of us all…who in the heck does? How can eligibility of _anybody_ be challenged? If the Senate committee isn’t doing its job – is there _NO WAY_ we can see that the Constitutional requirements are enforced????

  26. Anonymous says:

    Jeff, a wonderful and relaxing day to you!

    As part of your celebration, perhaps you ought to take a break from the daily routine and just chill with your loved ones.

    We’ll be here tomorrow, and tomorrow and tomorrow.

    So will this complicated issue, it seems.

    Thank you….for the crash sessions and “assigned readings!”

  27. Anonymous says:

    Jeff,

    I just wanted to say thanks!!!! You are doing this country a great service in providing such detailed coverage of this crisis. It’s very apparent that you will be an exceptional lawyer with a very defined sense of integrity. I applaud you and wish you a happy birthday!!!

    Thomas Rearden
    Atlanta, GA

  28. Jim says:

    I have a couple of questions for legal minds.

    If the judge allows discovery, are the discovery documents that are presented made public?

    Also could the documents be required before the election?

  29. hokiedokie24 says:

    Please list this group on every blog site you can. Lets help them expose the real Obama. Thanks!!

    Dear Kenny,

    Thank you for your support!

    We will be holding a conference call tomorrow evening… the time
    is tentatively set for 7:30pm EST. We will be hearing from
    “special” guests and setting our strategy to alert the average
    american about these serious issues which Senator Obama continues
    to ignore.

    We are preparing for “Massive Action” with real strategies that
    work! We’ve been patient too long hoping that our issues somehow
    “come to the attention” of the Main Stream Media…

    For now I implore you to post to every forum and website that you
    possibly can… getting people to our website:
    http://www.OperationExposeObama.com

    Please email your friends or anyone that you think may be
    interested in helping. We can double or even triple our
    effectiveness by the end of the day if we all take an hour or two
    and simply post to forums or email friends and collegues.

    You’ll be receiving an email by tomorrow morning regarding the
    conference with more details.

    Again, thank you so much for your patriotism… we are looking for
    the truth… wherever that leads us!

    Please feel free to respond if you have any thoughts, ideas or
    questions.

    Start Posting…

    All the Best,

    Mike

    Founder, Operation Expose Obama

    Tell Everyone You Know…

    http://www.OperationExposeObama.com

    Tell Everyone You Know…

    http://www.OperationExposeObama.com

    Tell Everyone You Know…

    http://www.OperationExposeObama.com

  30. Anonymous says:

    What kind of judicial system accepts running mates for PotUSA without even compulsory asking the full proofs of their eligibility, especially when running mates like Hussein Obama have foreign background (half of Obama’s family is Muslim and from Kenya).

    What I believe will happen. No reply from the judge until after the complete end of the elections and this reply will be a dismissal! Why that? I was told that the judge is Democrat and not Republican as Jeff said (I have not checked this point at all).

    In any case, if the case is dismissed, the US judicial is nothing less than a joke I have to say. If a court cannot make sure that the constitution of the USA is fully respected, what kind of judicial system is it if not simply a joke!

  31. Anonymous says:

    Here's wishing you a spectacular birthday on this beautiful Sunday afternoon.

    As much as I appreciate the daily updates , I really can appreciate the time & effort this takes.

    My spouse also finished law school at night over four years at Univ. of Miami nearly three decades ago. The big difference was that we were both fully employed for a company during the daytime as engineers and the company reimbursed the law school tuition. (Those were the days!) And yes, those were very challenging times. 8 hour shifts, five days a week, two hours commute each way to campus and endless hours of reading – often going with less than four hours of sleep a day.

    On the rare occassion we had an opportunity to enjoy family time – the mind was drifting back and forth between lectures and case books. Personal conversations endlessly being responded to with 'uh huh', 'ok', 'whatever you like dear'.

    If I may pass a word to the Mrs. . . .it's all worth it in the end. Five kids and lots of opportunity for upward mobility has given us decades of cherished interactive family time. Hang in there.

    Have a very very happy birthday Jeff.

  32. Anonymous says:

    Happy Birthday, Jeff! May you live
    a long and happy life together with
    your family.

    Ad Mea v’Esrim!

  33. Anonymous says:

    If a voting citizen of the nominating party doesn’t have “standing” to ask for proof of a candidate’s eligibility for Presidency, who possibly could?

    Not a rhetorical question, genuinely want to know.

  34. Karen says:

    Happy Birthday, Jeff. Thanks for the excellent blog!
    ~Karen

  35. Anonymous says:

    If the Judge refuses to act on this case by 3:00 ET Friday, October 24, 2008, I think Berg should file the Writ and make the Judge do his job!

    Four more days and if no answer from the Jdge, file the Writ.

    The Court of Appeals and/or the Supreme Court will order the Judge to issue an order on the Berg v. Obama, et al. case.

    The American people deserve an answer from the Judge and they deserve it now!

  36. tanarg says:

    Sorry, Jeff, I see my error re the Writ. Thanks.

  37. ChuckO says:

    Happy Birthday Jeff. As a 40-something, I must say that you are wise beyond your years… When I was your age I think I was still sucking my thumb…

    Anyway, as commenter John Galt wrote earlier, the likelihood of civil unrest–let’s not mince words here: race riots, pandemonium, murder, and mayhem–is great should Judge Surrick decide in Berg’s favor.

    And who’s fault would that be? The main stream media’s, of course. In addition to promoting Obama to within a hair of being elected president, they’ve also nearly completely ignored the serious issues that potentially disqualify Obama, including the Berg suit.

    So, if through the Berg suit Obama is proven ineligible, the millions of Obama zombies* out there will be completely blind-sided, because they were never informed that there was any question concerning his eligibility. The rage will be instantaneous, and white hot.

    We conservatives fret, for good reason, about the MSM’s misdeeds. But I think we understate the harm they’ve done to the Republic. By their complicity in the fraudulent campaign of Barack Obama**, they’ve brought us to a point where no matter what the outcome of the election, the United States is almost certain to suffer profound injury.

    God help us.

    * I don’t use this term to be pejorative. Living in the Bay Area, most of my friends and acquaintances will vote for Obama. They’re generally good, intelligent people, but their devotion to Obama can best be described as zombie-like.
    ** I’m not just talking about the citizenship question… just about everything (that matters) about Obama appears to be fraudulent.

  38. kbp says:

    Happy Birthday!

    My own definitions used when reading on this topic.

    “chock-full of conjecture”: A pattern encountered on occasions in case law at all levels.

    “a law degree”: Mentioned to add credibility to inaccurate opinions on either side of an issue in question.

    “lack of standing”: A ruling often applied when the forest or trees obstruct vision, depending on the target of focus.

    “balancing or weighing test”: A process often subjective to ownership of the scale used.

    “in Hawaii, waiting for a decision”: …and waiting, and waiting (I’d love to help him “wait”!!).

    “pleadings filed”: Matters a judge must attend to, if he wants to.

    “overturned”: Something a judge claims to dislike, unless they like their ruling better.

    “avoid media attention”: The excuse often used to block the sun from shining in.

    “expedited discovery”: Identifies cases in which the defendant uses delay tactics that require more pleadings than normal.

    “casebooks”: Always used by those that can not afford the digital services offered.

    Just FYI, when considering WHY Judge Surrick may be delaying, remember back how quickly SCOTUS responded to the Florida “chad” problem.

  39. PatGund@gmail.com says:

    I suspect the judge wants to make sure all the i’s are dotted and the t’s crossed (which means waiting for the federal response), before dismissing it. Knowing that Berg plans to appeal, I suspect he wants to make the dismissal as “bullet-proof” as possible to make sure it won’t be appealed. And I can’t see the USSC picking it up either – at least two of the justices would have to recuse themselves due to suits Berg has brought against those justices.

    The writ of mandamus would play into the “court of public opinion” that Berg has been waging this case in, but it would undermine his real case. Then again, I suspect his representing “API” may also undermine him as well in the courts eyes.

    But I’ve been suspecting since March and Berg’s first demands that Obama drop out, that Berg always intended to try this in the court of public opinion.

  40. indyvoter says:

    Jeff,

    Thank you for your insight and dedication to this website. I have been sharing your summaries with some of my friends and family who don’t have the time or the internet to dig through all of the court documents on justia.com.

    I am one of the ones who believes something that stinks as pungently as the entirety of Obama’s campaign must be concealing some grotesque and gangrenous tumor. It can’t be “much ado about nothing.” There have been enough half-truths and spin-talking, that I believe it just could be true that he is not qualified, vis a vis his citizenship, to run for President. For that matter, if he is not actually a US citizen, he may not be qualified to be a US Senator!

    There are too many questions that Obama begins to answer in a dismissive and condescending tone and wrapped in charisma expecting all to follow along. His tone and manner insult those who have a brain enough to ask basic questions, and he characterizes those who do as “out of touch,” and is very careful not to use the word “racist.”

    And, there are far too many coincidences among his questionable relationships and how money seems to have flowed from Fannie and Freddie, to ACORN, and separately to Obama. I am not usually one to jump to conclusions….

    Anyhow, thank you for your “thinking out loud” style of commentary. I don’t believe it is wishy-washy or covering your butt as suggested above. You clearly differentiate between fact and opinion, and you seem to consider all the angles (or at least many of them). So keep up the great work!

    And, Happiest of Birthdays, to you, Jeff!

  41. Anonymous says:

    anyone still supporting obama other than paid staff and his family needs their head examined TWICE!

Speak Your Mind

*