The New York State Court Should Not Sanction Pro Se Plaintiff, Christopher
Earl Strunk, for His “Natural Born Citizen” Litigation
By Mario Apuzzo, Esq.
May 6, 2012
On Monday, May 7, 2012, at 2:30 p.m., pro se litigant, Christopher Earl Strunk, will have to show cause before Hon. Arthur M. Schack, at Part 27, in Room 479, 360 Adams Street, Brooklyn, New York 11201, why he should not be made to pay for the defendants’ attorneys’ fees in his case in which he claims that putative President Barack Obama is not an Article II “natural born Citizen” because he was not born to citizen parents. There are many attorneys involved and one can just imagine the size of the bill that they will present to the Court.
Here are the facts that give rise to Strunk’s legal action. Pro se litigant, Christopher Earl Strunk, commenced his election challenge case in the Supreme Court of the State of New York by filing a complaint on March 22, 2011, in which he alleged “breach of state constitutional fiduciary duty by the NEW YORK( STATE BOARD OF ELECTIONS and public officer defendants; denial of equal protection for voter expectation of a correct ballot; denial of substantive due process for voter expectation of a correct ballot; interference with the right to a republican form of government by the two Jesuit defendants and defendant F.A.O. SCHWARZ, JR., who were all members of the New York City Campaign Finance Board; interference with plaintiffs election franchise; a scheme to defraud plaintiff of a reasonable expectation of successful participation in the suffrage process; and, a scheme by all defendants for unjust enrichment.” Decision and Order, p. 3-4. He included as a defendant “Soebarkah (a.k.a. Barry Soetoro, a.k.a. Barack Hussein Obama, a.k.a. Steve Dunham.
The defendant filed motions with Hon. Arthur M. Schack to dismiss Strunk’s complaint with prejudice. Strunk along with defendants many attorneys had oral argument on the motions before Judge Schack in August 2011. Judge Schack includes in his Decision and Order parts of the transcript of that oral argument. Judge Schack reserved decision.
While his case was pending, it was brought to Strunk’s attention that the State of New York’s instructions for getting on the presidential ballot, rather than state that a presidential candidate has to be a “natural born Citizen” pursuant to Article II, Section 1, Clause 5, said that the President only had to be “Born a Citizen.” He wrote to the state election authorities and pointed out the error. He asked that a correction be made to state that a presidential candidate must be a “natural born Citizen” which is what Article II, Section 1, Clause 5 of our Constitution clearly and plainly states.
The State of New Jersey also had the same type of error. At first, the Secretary of State’s instruction, using plain citizenship as the criteria for eligibility, did not state that the President had to be a “natural born Citizen.” A concerned citizen wrote to the Secretary of State and pointed out the error and she simply made the correction by stating that a presidential candidate must be a “natural born Citizen.” The correct New Jersey instructions can be viewed at http://www.scribd.com/puzo1/d/91538227-New-Jersey-SOS-Eligibility-Instructions-for-Presidential-Primary-2012 . Strunk was looking for the same type of relief which would have satisfied his concerns regarding the wording of the eligibility instructions. But the State of New York would have none of it.
Not receiving any satisfaction, in October 2011, Strunk filed an order to show cause, asking that the court issue an order to the New York State Board of Elections that it correct the eligibility instruction from “born a Citizen” to “natural born Citizen.” Judge Schack denied his application as premature. At the October 25, 2011, hearing on his order to show cause, Strunk stated to counsel for the New York State Board of Elections that he would be willing to settle his litigation if the New York State Board of Elections would change the ballot instruction from "Born a Citizen" to "Natural-born Citizen." The attorney told him that they could not do that. Strunk appealed Judge Schack’s denial order and was told by the appeals court that Judge Schack’s order was an interlocutory order (not a final order) and so that court dismissed his appeal. In the meantime, he was back before Judge Schack on his pending complaint.
Judge Schack finally decided the case on April 11, 2012, at which time he entered his Decision and Order. Judge Schack granted defendants’ motions and dismissed Strunk’s complete complaint with prejudice. Judge Schack also granted a motion to admit pro hac vice one of the defendant’s attorney, finding that he was in good standing. It should be known that the Georgia court denied Attorney Van Iron’s motion for pro hac vice admission and the Commonwealth Court of Pennsylvania denied my motion for pro hac vice admission, even thought we are both in good standing.
Judge Schack started his opinion by stating that “[i]f the complaint in this action was a movie script, it would be entitled The Manchurian Candidate Meets The Da Vinci Code.
He found that Strunk did not sufficiently allege an injury in fact and therefore does not have standing which causes the court not to have jurisdiction over his claims.
Judge Schack found that because it is not possible to easily gain notice from reading his complaint what his particular cause of action is, the complaint must be dismissed for failure to state a cause of action.
Judge Schack concluded that Strunk’s fraud claim also needed to be dismissed because he did not plead with particularity that he relied upon any of the defendants’ statement and did not plead that he suffered any pecuniary loss as a result of statement of any of the defendants.
Judge Schack found that the court has no jurisdiction because of the political question doctrine and because, while finding no problem with his service upon the other main defendants, Judge Schack found that Strunk did not properly serve Obama and McCain.
Judge Schack concluded that Strunk already litigated “many of the issues” in the instant action in federal court and in Strunk v. Paterson, Index No. 29642/08, where the issues were decided against him. He therefore found that under the doctrine of collateral estoppel, he could not re-litigate those same issues in the instant action.
Judge Schack also denied Strunk’s cross motion to consolidate the instant action with another New York state case, Strunk v. Paterson, and to transfer the case to Judge Schmidt because the Paterson case was already dismissed.
Judge Schack also dismissed Strunk’s complaint on the ground that it was both factually and legally frivolous.
Finally, Judge Schack also ordered that Strunk is precluded from relitigating the same claims against the same defendants in the New York state court without first obtaining prior written approval from an administrative justice or judge.
Judge Schack never ruled on Strunk’s application that the Board of Elections be made to correct the ballot instruction for election for the Office of President to say not “born a Citizen,” but rather “natural born Citizen.”
Judge Schack has now ordered that Strunk show cause why he should not be made to pay for the costs incurred by all the defendants in having to retain and pay for their attorneys to defend them against his action.
Judge Schack did state the correct standard for the court to apply when deciding a motion to dismiss the complaint on its face. He stated:
"When determining a motion to dismiss, the court must 'accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory' (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Milstein, Felder & Steiner, 96 NY2d 300, 303 [2001]; Leon v Martinez, 84 NY2d 83,87-88 [1994 ]) [Emphasis added]." (Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 570-571 [2005]). Further, the Court, in Morris v Morris (306 AD2d 449, 451 [2d Dept 2003]), instructed that:
In determining whether a complaint is sufficient to withstand a motion
pursuant to CPLR 3211 (a) (7), "the sole criterion is whether the pleading
states a cause of action, and if from its four corners factual allegations are
discerned which taken together manifest any cause of action cognizable at
law a motion for dismissal will fail" (Guggenheimer v Ginsburg, 43 NY2d
268, 275 [1977]. The court must accept the facts alleged in the complaint
to be true and determine only whether the facts alleged fit within any
cognizable legal theory (see Dye v Catholic Med. Ctr. of Brooklyn &
Queens, 273 AD2d 193 [2000]). However, bare legal conclusions are not
entitled to the benefit of the presumption of truth and are not accorded
every favorable inference (seeDoria v Masucci, 230 AD2d 764 [2000]).
[Emphasis added]
For a plaintiff to survive a motion to dismiss for failure to state a
cause of action, the factual allegations in the claim cannot be "merely
conclusory and speculative in nature and not supported by any specific
facts." (Residents for a More Beautiful Port Washington, Inc. v Town of
North Hempstead, 153 AD3d 727,729 [2d Dept 1989]). "The allegations in
the complaint cannot be vague and conclusory." (Stoianoff v Gahona, 248
AD2d 525 [2d Dept 1998], app dismissed 92 NY2d 844 [1998], cert
denied by Stoianoff v New York Times, 525 US 953 [1998]). (See
LoPresti v Massachusetts Mut. Life Ins. Co., 30 AD3d 474 [2d Dept 2006];
Levin v Isayeu, 27 AD3d 425 [2d Dept 2006]; Hart v Scott, 8 AD3d 532
[2d Dept 2004]) (all emphasis in the original).
FAILURE TO HAVE STANDING
The court found that Strunk did not sufficiently allege an injury in fact and therefore does not have standing. It found that the court therefore did not to have jurisdiction over his claims. Judge Schack applied federal court standing standards to a state election challenge case. Many states in the union have liberal standing standards when it comes to allowing voters of their states to file election ballot challenges, with just requiring that the person be a registered voter of the state. Pennsylvania at most, requires a voter who files a ballot challenge to be of the same party as the candidate of whom the challenger complains. New Jersey has no same party requirement. The federal court standing standards have no application in the state election law challenge. Strunk should be given standing to bring his ballot challenge.
FAILURE TO STATE A CAUSE OF ACTION
Judge Schack found that because it is not possible to easily gain notice from reading his complaint what his particular cause of action is, the complaint must be dismissed for failure to state a cause of action. But with pro se complaints, courts have an obligation to fully and in good faith search the complaint for a cause of action. As I will show below, Strunk more than adequately sets out a cause of action which can be discerned by an indulgent reading of the complaint.
FAILURE TO PLEAD FRAUD WITH PARTICULARITY
Judge Schack found that Strunk’s fraud claim also needed to be dismissed because he did not plead with particularity that he relied upon any of the defendants’ statement and did not plead that he suffered any pecuniary loss as a result of statement of any of the defendants. Strunk’s fraud claim is not necessary for him to continue his claim that Obama is not a “natural born Citizen.”
FAILURE TO SHOW THAT THE COURT HAS JURISDICTION
Judge Schack found that the court has no jurisdiction because of the political question doctrine. He found that the question of presidential eligibility and necessarily the meaning of a “natural born Citizen” are left by the Constitution to the Electoral College and Congress in joint session when it counts the Electoral College votes. He even cites and relies upon 3 U.S.C. Sec. 15 which only applies after the general election and when the Congress is in joint session counting the Electoral Votes. Without even acknowledging that Obama is currently a candidate in the 2012 presidential election, he relies on the Electoral College’s and Congress’s lack of objection to Obama’s eligibility in the 2008 presidential election.
But what is worse is that Judge Schack confounds and conflated candidates with incumbents. He states that Strunk challenges the eligibility of “President Obama.” He did not state that it is “Candidate Obama” that Strunk challenges. The court relies strictly upon the Electoral College and Congress to decide whether incumbents are eligible for presidential office. He states that the states have no role to play in that process.
But the meaning of any specific clause of the Constitution is a judicial question and one to be authoritatively decided by the United States Supreme Court. That decision under the supremacy clause is binding on the entire nation. 1 Story on the Constitution, sec. 387.
Also, states do have a critical responsibility to ensure that candidates on state ballots for federal office meet constitutional eligibility requirements. By cutting the states out of making sure that presidential candidates are eligible for the office they seek, the court has cut out the states play in properly vetting presidential candidate early in the election process so as to not allow any unqualified candidate to advance too far and even to the point where the general public is voting for an ineligible candidate.
The U.S. Constitution requires that the President be a natural born citizen, 35 years of age or older, and reside in the U.S. for 14 years prior to being elected. The issue of eligibility has come up on at least seven occasions with regard to past Presidents and Presidential candidates. As we have witness with the 2008 presidential election, there is considerable confusion over the issue of who vets candidates for their eligibility for federal office, including the Office of President. The Congressional Research Service (CRS) examined the issue of who is responsible for presidential vetting. In their report they opine that there is "no federal law, regulation, rule, guideline, or requirement that a candidate for federal office produce his or her original birth certificate, or a certified copy of the record of live birth, to any official of the United States Government; nor is there a requirement for federal candidates to publicly release such personal record or documentation." The CRS memo can be read here:
http://www.scribd.com/doc/74176180/Qualifications-for-President-and-the-%E2%80%9CNatural-Born%E2%80%9D-Citizenship-Eligibility-Requirement (as I explain herein, I do not agree with Jack Maskell’s definition of a “natural born Citizen” which is any person who is a “citizen of the United States” from the moment of birth, regardless of to whom or where born). The CRS adds that ''there is no specific federal agency or office that 'vets' candidates for federal office as to qualifications or eligibility prior to elections."
Without any federal laws or guidelines on presidential vetting, the federal government has not precluded the states from doing so. Hence, the best time to resolve Strunk’s ballot challenge is at the primary level. At the primary level, it is candidate Obama himself who wants to appear on the ballot. Under the Constitution and state law, it is the candidate who has to prove that the candidate is eligible to be placed on that primary ballot. Strunk should not be made to challenge Obama’s eligibility only after the general election in November 2012. At that point, Obama can argue that the public votes for electors and not him and therefore only the eligibility of electors can be challenged. Plaintiffs should not be made to rely on the Electoral College or Congress for resolving their challenge to Obama’s eligibility to be elected President. At that point, Obama can argue that the courts do not have jurisdiction to tell the Electoral College or Congress how to do their jobs.
In The Federalist No. 68, Alexander Hamilton explained that the President was a “person to whom so important a trust was to be confided.” He advocated that the Electoral College “will be most likely to possess the information and discernment requisite to so complicate an investigation.” He said that because the President was “so an important agency in the administration of the government,” “tumult and disorder” were to be avoided in selecting the President. What better way than for the states to aid in this complex investigation of that person who should want to run for that most important office. Surely by requiring any such candidate to produce documentary evidence of his or her identity and place of birth is a first step in producing that needed information which is so vital to such a complicated investigation. The states therefore serve a vital role in the beginning stages of the vetting of any presidential candidate. Such vetting should start as soon as possible so as to avoid parties becoming entrenched in their selections and wanting to win at all costs at the expense of the people and their Constitution.
Furthermore, to allow an ineligible candidate to advance to the Electoral College or even to Congress in joint session only brings with it tremendous cost, embarrassment for both political parties, political haggling, insults and ridicule, and finger pointing, all at the expense of the Constitution. It is best that presidential eligibility requirements are met prior to the election of a candidate in order to avoid the prospect of Congress being asked and having to invalidate national election results. What better way to secure liberty and support the Constitution than to allow all our political institutions, including those of the states, to have a role in presidential vetting.
Judge Schack found that the court has no jurisdiction because Strunk did not properly serve Obama and McCain. While finding no problem with his service upon the other main defendants, Judge Schack found that Strunk did not properly serve Obama and McCain. The court did not find that Obama and McCain were indispensable parties and that the action could not proceed without their presence in the action. Hence, service upon the other defendants is sufficient to give the court jurisdiction over his claims against the other defendants which concern both Obama and McCain.
THAT STRUNK’S COMPLAINT IS FRIVOLOUS
Judge Schack found that Strunk’s claim that Obama is not a “natural born Citizen” is frivolous. The “natural born Citizen” issue is the heart and soul of Strunk’s action. Judge Schack states that " ‘[a] complaint containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis’ and ‘embraces not only the inarguable legal conclusion, but also the fanciful factual allegation.’ (Neitzke v Williams, 490 U.S. 319, 325 [1989]).” Hence, Judge Schack looked to both the alleged facts and legal claims made by Strunk relative to the “natural born Citizen” claim in order to determine whether his complaint was frivolous.
As to Strunk’s factual allegations, he has adequately pled in his complaint that Obama’s father was not a U.S. citizen at the time of Obama’s birth wherever that may be. As proof of this fact, he relies upon Obama’s admission in his book, Dreams from My Father, the INS (immigration) file on Obama’s father, the alleged Certificate of Live Birth that Obama released via the internet on April 27, 2011, and the Obama-Dunham divorce papers. While it could be argued that portions of Strunk’s complaint (references to the Vatican, Roman Catholic Church, and the Society of Jesus and inclusion of a long list of defendants) rise to the level of the “irrational,” the thrust of his legal argument, that Obama is not an Article II “natural born Citizen” as we shall see below is eminently reasonable. Whether or not Obama is an Article II “natural born Citizen” citizen under the American common law standard that has been in place since the Founding is not a conspiracy theory or what Judge Schack pejoratively calls a “birther case.” There are some factual allegations in Strunk’s complaint that could raise some eyebrows. We can also understand Strunk’s frustration and his naming defendants who he believes have allowed Obama to proceed unchallenged and others who he believes should be “taking responsibility to enforce the law which has not been done” regarding the question of Obama’s eligibility to be President. Decision and Order, p. 20 (Strunk speaking at oral arguments). Strunk does add some questionable factual allegations in his complaint about the defendants’ religious motivations. He does express an “irrational anti-Catholic bias.” But those questionable factual allegations regarding defendants’ motivations are not relevant to the question of what is a “natural born Citizen” and whether Obama meets that definition. Those suspect factual allegations which he “weaves” into his complaint should therefore not trump the sound part of his complaint and be used as a means to create a circus-type atmosphere in the court and thereby to obfuscate the real argument that he makes which is that Obama does not meet the status quo American common law definition of a “natural born Citizen,” which definition as we can see below is adequately shown to exist by the historical record and case law of our United States Supreme Court.
As to Strunk’s legal arguments as to what is a “natural born Citizen,” Judge Schack did not correctly state Strunk’s legal position and by doing so actually created a straw man argument. He stated:
Plaintiff STRUNK'S complaint, as well as his opposition to defendants'
motions to dismiss, alleges that the correct interpretation of the natural born
citizen clause of the U.S. Constitution requires a natural born citizen to
have been born on United States soil and have two United States born
parents. Despite plaintiff's assertions, Article II, Section 1, Clause 5 does
not state this. No legal authority has ever stated that the natural born citizen
clause means what plaintiff STRUNK claims it states. "The phrase 'natural
born Citizen' is not defined in the Constitution, see Minor v Happersett, 88
US 162, 167 [1875]), nor does it appear anywhere else in the document,
see Charles Gordon, Who Can Be President a/the United States: An
Unresolved Enigma, 28 Md. L. Rev. 1, 5 (1968)." (Hollander v McCain at
65). Plaintiff STRUNK cannot wish into existence an interpretation that he
chooses for the natural born citizen clause. There is no arguable legal basis
for the proposition that both parents of the President must have been born
on U.S. soil. This assertion is as frivolous as the multitude of alleged
allegations outlined above.
Moreover, President OBAMA is the sixth U. S. President to have had one
or both of his parents not born on U.S. soil. Plaintiff STRUNK and his
fellow "birthers" might not realize that both parents of President Andrew
Jackson were born in what is now Northern Ireland; President James
Buchanan's father was born in County Donegal, Ireland; President Chester
A. Arthur's father was born in what is now Northern Ireland; President
Woodrow Wilson's mother was born in Carlisle, England; and, President
Herbert Hoover's mother was born in Norwich, Ontario, Canada.
But Strunk did not argue that a “natural born Citizen” child has to be born to “two United States born parents” or that “both parents . . . must have been born on U.S. soil.” This argument is strictly a creation of Judge Schack. Rather, Strunk argued that a "natural born Citizen" is a child born in the United States to "citizen" parents.
Strunk correctly argues that "born Citizen" is not the same as "natural born Citizen." The first step in constitutional interpretation is textual analysis of the clause in question. In that analysis, we have to look at each and every word of the clause which includes "natural" and define that word. By using “born Citizen” rather than “natural born Citizen,” would be saying that we do not need to consider and define "natural," that the Framers just threw that word in as surplusage.
On the contrary, the word "natural" is part and parcel of the full clause, "natural born Citizen." The clause as a whole is a word of art, an idiom. The historical record shows that it has always been used as such and that it has never been used in some expanded way as “born Citizen” suggests. Indeed, the clause is a unitary phrase with a unitary meaning. Hence, "natural" cannot be separated from the clause. Rather what needs to be done is to search for the meaning of the whole clause and not its parts.
In this textual analysis, we cannot simply take that idiom and say that it means some other manufactured definition of the clause. We cannot simply proclaim without evidence that the meaning of that idiom equates to the manner in which Congress and the Fourteenth Amendment allows persons to acquire the status of a “citizen of the United States” as of the moment of birth. No U.S. Supreme Court case or Justice has adopted such a manufactured definition or even said that such a meaning prevailed at the time of the Founding. That someone acquires his or her citizenship from the moment of birth simply does not equate to that person being a "natural born Citizen." Even Wong Kim Ark and Rogers v. Bellei, 401 U.S. 815 (1971) tell us that persons may be “naturalized” from the moment of birth. We accept that “naturalized” person are not “natural born Citizens.” Furthermore, that Wong Kim Ark included the clause “natural born subject” in the context of its discussion of what is a Fourteenth Amendment “citizen of the United States” does not through some amazing feat of logic convert a “citizen of the United States” into a “natural born Citizen.” As Minor aptly explained, a “natural born Citizen” is neither created by the Constitution nor depended upon it. Hence, neither Fourteenth Amendment nor its debates on who shall be a “citizen of the United States” does not control who shall be “natural born Citizens.”
Hence, simply having a status of a “citizen” from the moment of birth does not necessarily equate to one being a “natural born Citizen.” The fact that the Framers included the word “natural” as an additional qualifier tells us that quite plainly, for if such an interpretation were correct the Framers would simply have said “born Citizen.” So, any person that is a “born Citizen” who claims to be a “natural born Citizen” still has to show that he or she satisfies the idiomatic meaning of the clause which the historical record and U.S. Supreme Court case law show to be a child born in the country to parents who are citizens of that country. This definition is exactly what our United States Supreme Court in Minor v. Happersett in 1875 and Wong Kim Ark in 1898 confirmed is the correct American common law definition of a “natural born Citizen.”
For this time-honored natural law/law of nations/American “common-law” definition of a “natural born Citizen”, see Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875) (decided after the Fourteenth Amendment was adopted in 1868 and holding that "all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners"). What Minor said about a “natural born Citizen” was confirmed in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) (acknowledging and confirming Minor’s American common law definition of a “natural-born citizen” but adding based on the English common law that since “‘[t]he child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle [birth in the country]’” (bracketed information supplied), a child born in the United States to domiciled alien parents was a Fourteenth Amendment “citizen of the United States”). This American common law definition of a “natural born Citizen” has never been changed, not even by the Fourteenth Amendment (only uses the clause "citizen of the United States" and does not mention "natural born Citizen") or Wong Kim Ark, and therefore still prevails today. Both those U.S. Supreme Court cases define a "natural born Citizen" as a child born in a country to parents who are citizens of that country.
This American common law definition of a “natural born Citizen” has also been recognized and accepted by a Founder and member of our U.S. Supreme Court as early as 1814 in The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (Chief Justice John Marshall dissenting and concurring for other reasons). It was also again confirmed by Inglis v. Sailors’ Snug Harbor, 28 U.S. 99 (1830) and Shanks v. Dupont, 28 U.S. 242, 245 (1830). It was again confirmed by Justice Daniels in Dred Scott v. Sandford, 60 U.S. 393 (1857).
I have shown that the original American “common-law” definition of a “natural born Citizen” was not changed by either the Fourteenth Amendment or Wong Kim Ark, which only deal with a “citizen of the United States” and not a “natural born Citizen.” Hence, the same original definition of a “natural born Citizen” was again expressly confirmed by the whole U.S. Supreme Court in Minor and Wong Kim Ark, and a lower federal court in Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879) and United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890). Finally, this same definition was implicitly confirmed by Slaughter-House Cases, 83 U.S. 36 (1872), Elk v. Wilkins, 112 U.S. 94 (1884), Perkins v. Elg, 307 U.S. 325 (1939) and Schneider v. Rusk, 377 U.S. 163 (1964).
Given the meaning of the clause since time immemorial; the enlightened intellectual mindset of the Founding period which focused on natural law and the law of nations as commented upon by Cicero, Pufendorf, Burlamaqui, John Locke, Rousseau, Emer de Vattel; the motivating spirit of the American Revolution; the Founders and Framers desire to preserve the constitutional republic for Posterity; the way that founding –era legal scholars such as Chief Justice John Marshall, David Ramsay, St. George Tucker, and James Wilson defined American citizenship; Congressional acts on naturalization; U.S. Supreme Court case law; and the historical record as a whole, this is the most natural interpretation of the clause.
Regarding the citizenship status of the parents of a “natural born Citizen,” the Constitution and Congressional Acts clearly and without question show that a “citizen” may be one either by being “natural born” or naturalized either at birth or after birth. Hence, what Strunk argued is that a child needs to be born in the country to parents who are both either “natural born Citizens” or “citizens of the United States” by naturalization at birth or after birth. He did not argue that the parents needed to be born citizens or born on the soil of the United States. None of the legal actions filed against Obama on his eligibility have made such an argument and neither did Strunk. So it is totally irrelevant to Strunk’s claim that “Obama is the sixth U. S. President to have had one or both of his parents not born on U.S. soil,” for under his interpretation of the Article II, Section 1, Clause 5 and his definition of a "natural born Citizen," those presidents, other than Chester A. Arthur who like Obama cannot benefit from Article II's grandfather clause and was not born to citizen parents, qualified to be President.
Judge Schack has not decided the merits of the legal argument that Strunk made concerning what is a “natural born Citizen,” but rather a legal argument that he himself created regarding that clause. Hence, not having yet passed on the argument that Strunk made, he surely cannot reasonably conclude that Strunk’s argument is frivolous. Furthermore, in Tennessee, the Federal District Court just recently stated:
“The Court finds that the federal question presented, the meaning of the
phrase 'natural born citizen' as a qualification for the Presidency set out in
Article II of the Constitution, is important and not trivial.” “The issue of
whether President Obama is constitutionally qualified to run for the
Presidency is certainly substantial.” “It is clear that the stated federal issue
of President Obama’s qualifications for the office are ‘actually disputed
and substantial.’” “It is also clear that there will be a legal dispute over the
Constitution’s definition of ‘natural born citizen’ and the Supreme Court’s
decision in Minor.”
Liberty Legal Foundation et al v. National Democratic Party of the USA, Inc. et al, Case No. 12-2143-STA. So we can see that the federal court found the issue of whether Obama is a “natural born Citizen” to be “important and not trivial,” “substantial,” and “disputed.”
Additionally, Judge Schack disagrees with Strunk’s definition of a “natural born Citizen,” although as I have shown above he states a definition which Strunk did not put forth, because the Constitution does not define the clause, citing “Hollander v. McCain at 65” which cited Minor and Charles Gordon, Who can be President of the United States: An Unresolved Enigma, 28 Md. L.Rev. 1, 5 (1968). If that were a valid reason for disagreeing with someone’s definition of a constitutional clause, we basically would have virtually no interpretation of the Constitution at all. As is often said, the Constitution is not a dictionary of legal terms. Its meaning has to be gleaned from its text, if possible, and when not possible, from sources outside the Constitution. For example, the Fourteenth Amendment does not tell us what “subject to the jurisdiction” means. Yet, our nation has arrived at a meaning of the clause by looking outside the Constitution. That the Constitution does not define a “natural born Citizen” is the only argument that Judge Schack makes to discount Strunk’s position as to what is the meaning of a “natural born Citizen.” He offers no other authorities showing that Strunk is wrong. Also, we should know that Charles Gordon in the very same article cited by Judge Schack states that neither the Fourteenth Amendment nor Wong Kim Ark’s holding defined a “natural born Citizen.”
Surely, all this shows that Strunk did allege a particular cause of action and gave sufficient notice of both the facts and the law that support his cause of action. All this also shows that it is not true that Strunk’s complaint presents no legitimate basis in law or fact which warrants sanctions. Even assuming arguendo that the Court is correct about standing, jurisdiction, and collateral estoppel, the Court did not say that these grounds of dismissal support the Court’s finding that the action is frivolous. Rather, the Court’s finding of frivolous concerns Strunk’s definition of a “natural born Citizen.” I have shown that his definition is more than reasonable to raise a genuine constitutional question. Hence, his complaint is not frivolous.
As Judge Schack correctly states, “all litigants have a right to impartial and considered justice.” Muka v. New York State Bar Association. 120 Misc. 2d 897 (Sup. Ct. Tompkins County 1983). But Judge Schack’s references to “ ‘birther’ cases” “ ‘birther’ action,” “ ‘birther’ movement,” “his fellow ‘birthers,’” is hardly any show of actually receiving that “impartial and considered” justice. “Birther” is a pejorative term that is used by Obama’s supporters. It is a quick way to dismiss through ridicule and ad hominem attack any argument that is made that Obama is not an Article II “natural born Citizen.” As I have shown, whether Obama is a “natural born Citizen” is not some conspiracy or “lunatic fringe” argument. Rather, it is, as even the federal court in Tennessee has confirmed, a legitimate and substantial constitutional issue which to date has escaped being address in any meaningful way.
Apart that there is no factual or legal basis for the Court to sanction Mr. Strunk, there are also public policy reasons for not doing so. Judge Schack states in his opinion that sanctions of the court are designed to punish in the present so as to deter what the court deems unacceptable behavior in the future. The court adds that such a policy is justified in that it works to save judicial resources. On the contrary, for the Court to sanction Mr. Strunk under the existing circumstances would not only save judicial resources by preventing him from filing further Article II eligibility actions in New York in the future, but would do a great disservice to our system of justice and republican form of government. With any such sanction, the public, not knowing the full details of this matter and after having been bombarded by manipulated and propagandist use of the court’s sanction decision by Obama’s supporters, will come away with the thought that Mr. Strunk was sanctioned by the “Supreme Court of the State of New York” because he filed a complaint in a court of law claiming that Mr. Obama is not an Article II “natural born Citizen.” The public will therefore not only be made to think that there is no legitimate basis in filing any such legal actions against Mr. Obama, but also that if anyone so dare, he or she will be severely sanctioned by our courts. Additionally, because we follow the doctrine of stare decisis (to abide by or adhere to decided cases), other courts will be pressured to do the same should anyone file any such action. Hence, we can easily see the chilling effect that the Court’s sanction will have to not only people resorting to our court’s in search of what they deem to be justice, but also stifling the free exercise of political speech and discourse in all corners of America. This is especially grave given that Mr. Obama is now being more carefully publicly and privately vetted for his re-election.
For these reasons, the Supreme Court of the State of New York should not sanction or otherwise discipline pro se litigant, Chris Shrunk, and should discharge its show cause order.
Mario Apuzzo, Esq.
May 6, 2012
http://puzo1.blogspot.com/
####
Copyright © 2012
Mario Apuzzo, Esq.
All Rights Reserved
Earl Strunk, for His “Natural Born Citizen” Litigation
By Mario Apuzzo, Esq.
May 6, 2012
On Monday, May 7, 2012, at 2:30 p.m., pro se litigant, Christopher Earl Strunk, will have to show cause before Hon. Arthur M. Schack, at Part 27, in Room 479, 360 Adams Street, Brooklyn, New York 11201, why he should not be made to pay for the defendants’ attorneys’ fees in his case in which he claims that putative President Barack Obama is not an Article II “natural born Citizen” because he was not born to citizen parents. There are many attorneys involved and one can just imagine the size of the bill that they will present to the Court.
Here are the facts that give rise to Strunk’s legal action. Pro se litigant, Christopher Earl Strunk, commenced his election challenge case in the Supreme Court of the State of New York by filing a complaint on March 22, 2011, in which he alleged “breach of state constitutional fiduciary duty by the NEW YORK( STATE BOARD OF ELECTIONS and public officer defendants; denial of equal protection for voter expectation of a correct ballot; denial of substantive due process for voter expectation of a correct ballot; interference with the right to a republican form of government by the two Jesuit defendants and defendant F.A.O. SCHWARZ, JR., who were all members of the New York City Campaign Finance Board; interference with plaintiffs election franchise; a scheme to defraud plaintiff of a reasonable expectation of successful participation in the suffrage process; and, a scheme by all defendants for unjust enrichment.” Decision and Order, p. 3-4. He included as a defendant “Soebarkah (a.k.a. Barry Soetoro, a.k.a. Barack Hussein Obama, a.k.a. Steve Dunham.
The defendant filed motions with Hon. Arthur M. Schack to dismiss Strunk’s complaint with prejudice. Strunk along with defendants many attorneys had oral argument on the motions before Judge Schack in August 2011. Judge Schack includes in his Decision and Order parts of the transcript of that oral argument. Judge Schack reserved decision.
While his case was pending, it was brought to Strunk’s attention that the State of New York’s instructions for getting on the presidential ballot, rather than state that a presidential candidate has to be a “natural born Citizen” pursuant to Article II, Section 1, Clause 5, said that the President only had to be “Born a Citizen.” He wrote to the state election authorities and pointed out the error. He asked that a correction be made to state that a presidential candidate must be a “natural born Citizen” which is what Article II, Section 1, Clause 5 of our Constitution clearly and plainly states.
The State of New Jersey also had the same type of error. At first, the Secretary of State’s instruction, using plain citizenship as the criteria for eligibility, did not state that the President had to be a “natural born Citizen.” A concerned citizen wrote to the Secretary of State and pointed out the error and she simply made the correction by stating that a presidential candidate must be a “natural born Citizen.” The correct New Jersey instructions can be viewed at http://www.scribd.com/puzo1/d/91538227-New-Jersey-SOS-Eligibility-Instructions-for-Presidential-Primary-2012 . Strunk was looking for the same type of relief which would have satisfied his concerns regarding the wording of the eligibility instructions. But the State of New York would have none of it.
Not receiving any satisfaction, in October 2011, Strunk filed an order to show cause, asking that the court issue an order to the New York State Board of Elections that it correct the eligibility instruction from “born a Citizen” to “natural born Citizen.” Judge Schack denied his application as premature. At the October 25, 2011, hearing on his order to show cause, Strunk stated to counsel for the New York State Board of Elections that he would be willing to settle his litigation if the New York State Board of Elections would change the ballot instruction from "Born a Citizen" to "Natural-born Citizen." The attorney told him that they could not do that. Strunk appealed Judge Schack’s denial order and was told by the appeals court that Judge Schack’s order was an interlocutory order (not a final order) and so that court dismissed his appeal. In the meantime, he was back before Judge Schack on his pending complaint.
Judge Schack finally decided the case on April 11, 2012, at which time he entered his Decision and Order. Judge Schack granted defendants’ motions and dismissed Strunk’s complete complaint with prejudice. Judge Schack also granted a motion to admit pro hac vice one of the defendant’s attorney, finding that he was in good standing. It should be known that the Georgia court denied Attorney Van Iron’s motion for pro hac vice admission and the Commonwealth Court of Pennsylvania denied my motion for pro hac vice admission, even thought we are both in good standing.
Judge Schack started his opinion by stating that “[i]f the complaint in this action was a movie script, it would be entitled The Manchurian Candidate Meets The Da Vinci Code.
He found that Strunk did not sufficiently allege an injury in fact and therefore does not have standing which causes the court not to have jurisdiction over his claims.
Judge Schack found that because it is not possible to easily gain notice from reading his complaint what his particular cause of action is, the complaint must be dismissed for failure to state a cause of action.
Judge Schack concluded that Strunk’s fraud claim also needed to be dismissed because he did not plead with particularity that he relied upon any of the defendants’ statement and did not plead that he suffered any pecuniary loss as a result of statement of any of the defendants.
Judge Schack found that the court has no jurisdiction because of the political question doctrine and because, while finding no problem with his service upon the other main defendants, Judge Schack found that Strunk did not properly serve Obama and McCain.
Judge Schack concluded that Strunk already litigated “many of the issues” in the instant action in federal court and in Strunk v. Paterson, Index No. 29642/08, where the issues were decided against him. He therefore found that under the doctrine of collateral estoppel, he could not re-litigate those same issues in the instant action.
Judge Schack also denied Strunk’s cross motion to consolidate the instant action with another New York state case, Strunk v. Paterson, and to transfer the case to Judge Schmidt because the Paterson case was already dismissed.
Judge Schack also dismissed Strunk’s complaint on the ground that it was both factually and legally frivolous.
Finally, Judge Schack also ordered that Strunk is precluded from relitigating the same claims against the same defendants in the New York state court without first obtaining prior written approval from an administrative justice or judge.
Judge Schack never ruled on Strunk’s application that the Board of Elections be made to correct the ballot instruction for election for the Office of President to say not “born a Citizen,” but rather “natural born Citizen.”
Judge Schack has now ordered that Strunk show cause why he should not be made to pay for the costs incurred by all the defendants in having to retain and pay for their attorneys to defend them against his action.
Judge Schack did state the correct standard for the court to apply when deciding a motion to dismiss the complaint on its face. He stated:
"When determining a motion to dismiss, the court must 'accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory' (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Milstein, Felder & Steiner, 96 NY2d 300, 303 [2001]; Leon v Martinez, 84 NY2d 83,87-88 [1994 ]) [Emphasis added]." (Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 570-571 [2005]). Further, the Court, in Morris v Morris (306 AD2d 449, 451 [2d Dept 2003]), instructed that:
In determining whether a complaint is sufficient to withstand a motion
pursuant to CPLR 3211 (a) (7), "the sole criterion is whether the pleading
states a cause of action, and if from its four corners factual allegations are
discerned which taken together manifest any cause of action cognizable at
law a motion for dismissal will fail" (Guggenheimer v Ginsburg, 43 NY2d
268, 275 [1977]. The court must accept the facts alleged in the complaint
to be true and determine only whether the facts alleged fit within any
cognizable legal theory (see Dye v Catholic Med. Ctr. of Brooklyn &
Queens, 273 AD2d 193 [2000]). However, bare legal conclusions are not
entitled to the benefit of the presumption of truth and are not accorded
every favorable inference (seeDoria v Masucci, 230 AD2d 764 [2000]).
[Emphasis added]
For a plaintiff to survive a motion to dismiss for failure to state a
cause of action, the factual allegations in the claim cannot be "merely
conclusory and speculative in nature and not supported by any specific
facts." (Residents for a More Beautiful Port Washington, Inc. v Town of
North Hempstead, 153 AD3d 727,729 [2d Dept 1989]). "The allegations in
the complaint cannot be vague and conclusory." (Stoianoff v Gahona, 248
AD2d 525 [2d Dept 1998], app dismissed 92 NY2d 844 [1998], cert
denied by Stoianoff v New York Times, 525 US 953 [1998]). (See
LoPresti v Massachusetts Mut. Life Ins. Co., 30 AD3d 474 [2d Dept 2006];
Levin v Isayeu, 27 AD3d 425 [2d Dept 2006]; Hart v Scott, 8 AD3d 532
[2d Dept 2004]) (all emphasis in the original).
FAILURE TO HAVE STANDING
The court found that Strunk did not sufficiently allege an injury in fact and therefore does not have standing. It found that the court therefore did not to have jurisdiction over his claims. Judge Schack applied federal court standing standards to a state election challenge case. Many states in the union have liberal standing standards when it comes to allowing voters of their states to file election ballot challenges, with just requiring that the person be a registered voter of the state. Pennsylvania at most, requires a voter who files a ballot challenge to be of the same party as the candidate of whom the challenger complains. New Jersey has no same party requirement. The federal court standing standards have no application in the state election law challenge. Strunk should be given standing to bring his ballot challenge.
FAILURE TO STATE A CAUSE OF ACTION
Judge Schack found that because it is not possible to easily gain notice from reading his complaint what his particular cause of action is, the complaint must be dismissed for failure to state a cause of action. But with pro se complaints, courts have an obligation to fully and in good faith search the complaint for a cause of action. As I will show below, Strunk more than adequately sets out a cause of action which can be discerned by an indulgent reading of the complaint.
FAILURE TO PLEAD FRAUD WITH PARTICULARITY
Judge Schack found that Strunk’s fraud claim also needed to be dismissed because he did not plead with particularity that he relied upon any of the defendants’ statement and did not plead that he suffered any pecuniary loss as a result of statement of any of the defendants. Strunk’s fraud claim is not necessary for him to continue his claim that Obama is not a “natural born Citizen.”
FAILURE TO SHOW THAT THE COURT HAS JURISDICTION
Judge Schack found that the court has no jurisdiction because of the political question doctrine. He found that the question of presidential eligibility and necessarily the meaning of a “natural born Citizen” are left by the Constitution to the Electoral College and Congress in joint session when it counts the Electoral College votes. He even cites and relies upon 3 U.S.C. Sec. 15 which only applies after the general election and when the Congress is in joint session counting the Electoral Votes. Without even acknowledging that Obama is currently a candidate in the 2012 presidential election, he relies on the Electoral College’s and Congress’s lack of objection to Obama’s eligibility in the 2008 presidential election.
But what is worse is that Judge Schack confounds and conflated candidates with incumbents. He states that Strunk challenges the eligibility of “President Obama.” He did not state that it is “Candidate Obama” that Strunk challenges. The court relies strictly upon the Electoral College and Congress to decide whether incumbents are eligible for presidential office. He states that the states have no role to play in that process.
But the meaning of any specific clause of the Constitution is a judicial question and one to be authoritatively decided by the United States Supreme Court. That decision under the supremacy clause is binding on the entire nation. 1 Story on the Constitution, sec. 387.
Also, states do have a critical responsibility to ensure that candidates on state ballots for federal office meet constitutional eligibility requirements. By cutting the states out of making sure that presidential candidates are eligible for the office they seek, the court has cut out the states play in properly vetting presidential candidate early in the election process so as to not allow any unqualified candidate to advance too far and even to the point where the general public is voting for an ineligible candidate.
The U.S. Constitution requires that the President be a natural born citizen, 35 years of age or older, and reside in the U.S. for 14 years prior to being elected. The issue of eligibility has come up on at least seven occasions with regard to past Presidents and Presidential candidates. As we have witness with the 2008 presidential election, there is considerable confusion over the issue of who vets candidates for their eligibility for federal office, including the Office of President. The Congressional Research Service (CRS) examined the issue of who is responsible for presidential vetting. In their report they opine that there is "no federal law, regulation, rule, guideline, or requirement that a candidate for federal office produce his or her original birth certificate, or a certified copy of the record of live birth, to any official of the United States Government; nor is there a requirement for federal candidates to publicly release such personal record or documentation." The CRS memo can be read here:
http://www.scribd.com/doc/74176180/Qualifications-for-President-and-the-%E2%80%9CNatural-Born%E2%80%9D-Citizenship-Eligibility-Requirement (as I explain herein, I do not agree with Jack Maskell’s definition of a “natural born Citizen” which is any person who is a “citizen of the United States” from the moment of birth, regardless of to whom or where born). The CRS adds that ''there is no specific federal agency or office that 'vets' candidates for federal office as to qualifications or eligibility prior to elections."
Without any federal laws or guidelines on presidential vetting, the federal government has not precluded the states from doing so. Hence, the best time to resolve Strunk’s ballot challenge is at the primary level. At the primary level, it is candidate Obama himself who wants to appear on the ballot. Under the Constitution and state law, it is the candidate who has to prove that the candidate is eligible to be placed on that primary ballot. Strunk should not be made to challenge Obama’s eligibility only after the general election in November 2012. At that point, Obama can argue that the public votes for electors and not him and therefore only the eligibility of electors can be challenged. Plaintiffs should not be made to rely on the Electoral College or Congress for resolving their challenge to Obama’s eligibility to be elected President. At that point, Obama can argue that the courts do not have jurisdiction to tell the Electoral College or Congress how to do their jobs.
In The Federalist No. 68, Alexander Hamilton explained that the President was a “person to whom so important a trust was to be confided.” He advocated that the Electoral College “will be most likely to possess the information and discernment requisite to so complicate an investigation.” He said that because the President was “so an important agency in the administration of the government,” “tumult and disorder” were to be avoided in selecting the President. What better way than for the states to aid in this complex investigation of that person who should want to run for that most important office. Surely by requiring any such candidate to produce documentary evidence of his or her identity and place of birth is a first step in producing that needed information which is so vital to such a complicated investigation. The states therefore serve a vital role in the beginning stages of the vetting of any presidential candidate. Such vetting should start as soon as possible so as to avoid parties becoming entrenched in their selections and wanting to win at all costs at the expense of the people and their Constitution.
Furthermore, to allow an ineligible candidate to advance to the Electoral College or even to Congress in joint session only brings with it tremendous cost, embarrassment for both political parties, political haggling, insults and ridicule, and finger pointing, all at the expense of the Constitution. It is best that presidential eligibility requirements are met prior to the election of a candidate in order to avoid the prospect of Congress being asked and having to invalidate national election results. What better way to secure liberty and support the Constitution than to allow all our political institutions, including those of the states, to have a role in presidential vetting.
Judge Schack found that the court has no jurisdiction because Strunk did not properly serve Obama and McCain. While finding no problem with his service upon the other main defendants, Judge Schack found that Strunk did not properly serve Obama and McCain. The court did not find that Obama and McCain were indispensable parties and that the action could not proceed without their presence in the action. Hence, service upon the other defendants is sufficient to give the court jurisdiction over his claims against the other defendants which concern both Obama and McCain.
THAT STRUNK’S COMPLAINT IS FRIVOLOUS
Judge Schack found that Strunk’s claim that Obama is not a “natural born Citizen” is frivolous. The “natural born Citizen” issue is the heart and soul of Strunk’s action. Judge Schack states that " ‘[a] complaint containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis’ and ‘embraces not only the inarguable legal conclusion, but also the fanciful factual allegation.’ (Neitzke v Williams, 490 U.S. 319, 325 [1989]).” Hence, Judge Schack looked to both the alleged facts and legal claims made by Strunk relative to the “natural born Citizen” claim in order to determine whether his complaint was frivolous.
As to Strunk’s factual allegations, he has adequately pled in his complaint that Obama’s father was not a U.S. citizen at the time of Obama’s birth wherever that may be. As proof of this fact, he relies upon Obama’s admission in his book, Dreams from My Father, the INS (immigration) file on Obama’s father, the alleged Certificate of Live Birth that Obama released via the internet on April 27, 2011, and the Obama-Dunham divorce papers. While it could be argued that portions of Strunk’s complaint (references to the Vatican, Roman Catholic Church, and the Society of Jesus and inclusion of a long list of defendants) rise to the level of the “irrational,” the thrust of his legal argument, that Obama is not an Article II “natural born Citizen” as we shall see below is eminently reasonable. Whether or not Obama is an Article II “natural born Citizen” citizen under the American common law standard that has been in place since the Founding is not a conspiracy theory or what Judge Schack pejoratively calls a “birther case.” There are some factual allegations in Strunk’s complaint that could raise some eyebrows. We can also understand Strunk’s frustration and his naming defendants who he believes have allowed Obama to proceed unchallenged and others who he believes should be “taking responsibility to enforce the law which has not been done” regarding the question of Obama’s eligibility to be President. Decision and Order, p. 20 (Strunk speaking at oral arguments). Strunk does add some questionable factual allegations in his complaint about the defendants’ religious motivations. He does express an “irrational anti-Catholic bias.” But those questionable factual allegations regarding defendants’ motivations are not relevant to the question of what is a “natural born Citizen” and whether Obama meets that definition. Those suspect factual allegations which he “weaves” into his complaint should therefore not trump the sound part of his complaint and be used as a means to create a circus-type atmosphere in the court and thereby to obfuscate the real argument that he makes which is that Obama does not meet the status quo American common law definition of a “natural born Citizen,” which definition as we can see below is adequately shown to exist by the historical record and case law of our United States Supreme Court.
As to Strunk’s legal arguments as to what is a “natural born Citizen,” Judge Schack did not correctly state Strunk’s legal position and by doing so actually created a straw man argument. He stated:
Plaintiff STRUNK'S complaint, as well as his opposition to defendants'
motions to dismiss, alleges that the correct interpretation of the natural born
citizen clause of the U.S. Constitution requires a natural born citizen to
have been born on United States soil and have two United States born
parents. Despite plaintiff's assertions, Article II, Section 1, Clause 5 does
not state this. No legal authority has ever stated that the natural born citizen
clause means what plaintiff STRUNK claims it states. "The phrase 'natural
born Citizen' is not defined in the Constitution, see Minor v Happersett, 88
US 162, 167 [1875]), nor does it appear anywhere else in the document,
see Charles Gordon, Who Can Be President a/the United States: An
Unresolved Enigma, 28 Md. L. Rev. 1, 5 (1968)." (Hollander v McCain at
65). Plaintiff STRUNK cannot wish into existence an interpretation that he
chooses for the natural born citizen clause. There is no arguable legal basis
for the proposition that both parents of the President must have been born
on U.S. soil. This assertion is as frivolous as the multitude of alleged
allegations outlined above.
Moreover, President OBAMA is the sixth U. S. President to have had one
or both of his parents not born on U.S. soil. Plaintiff STRUNK and his
fellow "birthers" might not realize that both parents of President Andrew
Jackson were born in what is now Northern Ireland; President James
Buchanan's father was born in County Donegal, Ireland; President Chester
A. Arthur's father was born in what is now Northern Ireland; President
Woodrow Wilson's mother was born in Carlisle, England; and, President
Herbert Hoover's mother was born in Norwich, Ontario, Canada.
But Strunk did not argue that a “natural born Citizen” child has to be born to “two United States born parents” or that “both parents . . . must have been born on U.S. soil.” This argument is strictly a creation of Judge Schack. Rather, Strunk argued that a "natural born Citizen" is a child born in the United States to "citizen" parents.
Strunk correctly argues that "born Citizen" is not the same as "natural born Citizen." The first step in constitutional interpretation is textual analysis of the clause in question. In that analysis, we have to look at each and every word of the clause which includes "natural" and define that word. By using “born Citizen” rather than “natural born Citizen,” would be saying that we do not need to consider and define "natural," that the Framers just threw that word in as surplusage.
On the contrary, the word "natural" is part and parcel of the full clause, "natural born Citizen." The clause as a whole is a word of art, an idiom. The historical record shows that it has always been used as such and that it has never been used in some expanded way as “born Citizen” suggests. Indeed, the clause is a unitary phrase with a unitary meaning. Hence, "natural" cannot be separated from the clause. Rather what needs to be done is to search for the meaning of the whole clause and not its parts.
In this textual analysis, we cannot simply take that idiom and say that it means some other manufactured definition of the clause. We cannot simply proclaim without evidence that the meaning of that idiom equates to the manner in which Congress and the Fourteenth Amendment allows persons to acquire the status of a “citizen of the United States” as of the moment of birth. No U.S. Supreme Court case or Justice has adopted such a manufactured definition or even said that such a meaning prevailed at the time of the Founding. That someone acquires his or her citizenship from the moment of birth simply does not equate to that person being a "natural born Citizen." Even Wong Kim Ark and Rogers v. Bellei, 401 U.S. 815 (1971) tell us that persons may be “naturalized” from the moment of birth. We accept that “naturalized” person are not “natural born Citizens.” Furthermore, that Wong Kim Ark included the clause “natural born subject” in the context of its discussion of what is a Fourteenth Amendment “citizen of the United States” does not through some amazing feat of logic convert a “citizen of the United States” into a “natural born Citizen.” As Minor aptly explained, a “natural born Citizen” is neither created by the Constitution nor depended upon it. Hence, neither Fourteenth Amendment nor its debates on who shall be a “citizen of the United States” does not control who shall be “natural born Citizens.”
Hence, simply having a status of a “citizen” from the moment of birth does not necessarily equate to one being a “natural born Citizen.” The fact that the Framers included the word “natural” as an additional qualifier tells us that quite plainly, for if such an interpretation were correct the Framers would simply have said “born Citizen.” So, any person that is a “born Citizen” who claims to be a “natural born Citizen” still has to show that he or she satisfies the idiomatic meaning of the clause which the historical record and U.S. Supreme Court case law show to be a child born in the country to parents who are citizens of that country. This definition is exactly what our United States Supreme Court in Minor v. Happersett in 1875 and Wong Kim Ark in 1898 confirmed is the correct American common law definition of a “natural born Citizen.”
For this time-honored natural law/law of nations/American “common-law” definition of a “natural born Citizen”, see Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875) (decided after the Fourteenth Amendment was adopted in 1868 and holding that "all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners"). What Minor said about a “natural born Citizen” was confirmed in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) (acknowledging and confirming Minor’s American common law definition of a “natural-born citizen” but adding based on the English common law that since “‘[t]he child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle [birth in the country]’” (bracketed information supplied), a child born in the United States to domiciled alien parents was a Fourteenth Amendment “citizen of the United States”). This American common law definition of a “natural born Citizen” has never been changed, not even by the Fourteenth Amendment (only uses the clause "citizen of the United States" and does not mention "natural born Citizen") or Wong Kim Ark, and therefore still prevails today. Both those U.S. Supreme Court cases define a "natural born Citizen" as a child born in a country to parents who are citizens of that country.
This American common law definition of a “natural born Citizen” has also been recognized and accepted by a Founder and member of our U.S. Supreme Court as early as 1814 in The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (Chief Justice John Marshall dissenting and concurring for other reasons). It was also again confirmed by Inglis v. Sailors’ Snug Harbor, 28 U.S. 99 (1830) and Shanks v. Dupont, 28 U.S. 242, 245 (1830). It was again confirmed by Justice Daniels in Dred Scott v. Sandford, 60 U.S. 393 (1857).
I have shown that the original American “common-law” definition of a “natural born Citizen” was not changed by either the Fourteenth Amendment or Wong Kim Ark, which only deal with a “citizen of the United States” and not a “natural born Citizen.” Hence, the same original definition of a “natural born Citizen” was again expressly confirmed by the whole U.S. Supreme Court in Minor and Wong Kim Ark, and a lower federal court in Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879) and United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890). Finally, this same definition was implicitly confirmed by Slaughter-House Cases, 83 U.S. 36 (1872), Elk v. Wilkins, 112 U.S. 94 (1884), Perkins v. Elg, 307 U.S. 325 (1939) and Schneider v. Rusk, 377 U.S. 163 (1964).
Given the meaning of the clause since time immemorial; the enlightened intellectual mindset of the Founding period which focused on natural law and the law of nations as commented upon by Cicero, Pufendorf, Burlamaqui, John Locke, Rousseau, Emer de Vattel; the motivating spirit of the American Revolution; the Founders and Framers desire to preserve the constitutional republic for Posterity; the way that founding –era legal scholars such as Chief Justice John Marshall, David Ramsay, St. George Tucker, and James Wilson defined American citizenship; Congressional acts on naturalization; U.S. Supreme Court case law; and the historical record as a whole, this is the most natural interpretation of the clause.
Regarding the citizenship status of the parents of a “natural born Citizen,” the Constitution and Congressional Acts clearly and without question show that a “citizen” may be one either by being “natural born” or naturalized either at birth or after birth. Hence, what Strunk argued is that a child needs to be born in the country to parents who are both either “natural born Citizens” or “citizens of the United States” by naturalization at birth or after birth. He did not argue that the parents needed to be born citizens or born on the soil of the United States. None of the legal actions filed against Obama on his eligibility have made such an argument and neither did Strunk. So it is totally irrelevant to Strunk’s claim that “Obama is the sixth U. S. President to have had one or both of his parents not born on U.S. soil,” for under his interpretation of the Article II, Section 1, Clause 5 and his definition of a "natural born Citizen," those presidents, other than Chester A. Arthur who like Obama cannot benefit from Article II's grandfather clause and was not born to citizen parents, qualified to be President.
Judge Schack has not decided the merits of the legal argument that Strunk made concerning what is a “natural born Citizen,” but rather a legal argument that he himself created regarding that clause. Hence, not having yet passed on the argument that Strunk made, he surely cannot reasonably conclude that Strunk’s argument is frivolous. Furthermore, in Tennessee, the Federal District Court just recently stated:
“The Court finds that the federal question presented, the meaning of the
phrase 'natural born citizen' as a qualification for the Presidency set out in
Article II of the Constitution, is important and not trivial.” “The issue of
whether President Obama is constitutionally qualified to run for the
Presidency is certainly substantial.” “It is clear that the stated federal issue
of President Obama’s qualifications for the office are ‘actually disputed
and substantial.’” “It is also clear that there will be a legal dispute over the
Constitution’s definition of ‘natural born citizen’ and the Supreme Court’s
decision in Minor.”
Liberty Legal Foundation et al v. National Democratic Party of the USA, Inc. et al, Case No. 12-2143-STA. So we can see that the federal court found the issue of whether Obama is a “natural born Citizen” to be “important and not trivial,” “substantial,” and “disputed.”
Additionally, Judge Schack disagrees with Strunk’s definition of a “natural born Citizen,” although as I have shown above he states a definition which Strunk did not put forth, because the Constitution does not define the clause, citing “Hollander v. McCain at 65” which cited Minor and Charles Gordon, Who can be President of the United States: An Unresolved Enigma, 28 Md. L.Rev. 1, 5 (1968). If that were a valid reason for disagreeing with someone’s definition of a constitutional clause, we basically would have virtually no interpretation of the Constitution at all. As is often said, the Constitution is not a dictionary of legal terms. Its meaning has to be gleaned from its text, if possible, and when not possible, from sources outside the Constitution. For example, the Fourteenth Amendment does not tell us what “subject to the jurisdiction” means. Yet, our nation has arrived at a meaning of the clause by looking outside the Constitution. That the Constitution does not define a “natural born Citizen” is the only argument that Judge Schack makes to discount Strunk’s position as to what is the meaning of a “natural born Citizen.” He offers no other authorities showing that Strunk is wrong. Also, we should know that Charles Gordon in the very same article cited by Judge Schack states that neither the Fourteenth Amendment nor Wong Kim Ark’s holding defined a “natural born Citizen.”
Surely, all this shows that Strunk did allege a particular cause of action and gave sufficient notice of both the facts and the law that support his cause of action. All this also shows that it is not true that Strunk’s complaint presents no legitimate basis in law or fact which warrants sanctions. Even assuming arguendo that the Court is correct about standing, jurisdiction, and collateral estoppel, the Court did not say that these grounds of dismissal support the Court’s finding that the action is frivolous. Rather, the Court’s finding of frivolous concerns Strunk’s definition of a “natural born Citizen.” I have shown that his definition is more than reasonable to raise a genuine constitutional question. Hence, his complaint is not frivolous.
As Judge Schack correctly states, “all litigants have a right to impartial and considered justice.” Muka v. New York State Bar Association. 120 Misc. 2d 897 (Sup. Ct. Tompkins County 1983). But Judge Schack’s references to “ ‘birther’ cases” “ ‘birther’ action,” “ ‘birther’ movement,” “his fellow ‘birthers,’” is hardly any show of actually receiving that “impartial and considered” justice. “Birther” is a pejorative term that is used by Obama’s supporters. It is a quick way to dismiss through ridicule and ad hominem attack any argument that is made that Obama is not an Article II “natural born Citizen.” As I have shown, whether Obama is a “natural born Citizen” is not some conspiracy or “lunatic fringe” argument. Rather, it is, as even the federal court in Tennessee has confirmed, a legitimate and substantial constitutional issue which to date has escaped being address in any meaningful way.
Apart that there is no factual or legal basis for the Court to sanction Mr. Strunk, there are also public policy reasons for not doing so. Judge Schack states in his opinion that sanctions of the court are designed to punish in the present so as to deter what the court deems unacceptable behavior in the future. The court adds that such a policy is justified in that it works to save judicial resources. On the contrary, for the Court to sanction Mr. Strunk under the existing circumstances would not only save judicial resources by preventing him from filing further Article II eligibility actions in New York in the future, but would do a great disservice to our system of justice and republican form of government. With any such sanction, the public, not knowing the full details of this matter and after having been bombarded by manipulated and propagandist use of the court’s sanction decision by Obama’s supporters, will come away with the thought that Mr. Strunk was sanctioned by the “Supreme Court of the State of New York” because he filed a complaint in a court of law claiming that Mr. Obama is not an Article II “natural born Citizen.” The public will therefore not only be made to think that there is no legitimate basis in filing any such legal actions against Mr. Obama, but also that if anyone so dare, he or she will be severely sanctioned by our courts. Additionally, because we follow the doctrine of stare decisis (to abide by or adhere to decided cases), other courts will be pressured to do the same should anyone file any such action. Hence, we can easily see the chilling effect that the Court’s sanction will have to not only people resorting to our court’s in search of what they deem to be justice, but also stifling the free exercise of political speech and discourse in all corners of America. This is especially grave given that Mr. Obama is now being more carefully publicly and privately vetted for his re-election.
For these reasons, the Supreme Court of the State of New York should not sanction or otherwise discipline pro se litigant, Chris Shrunk, and should discharge its show cause order.
Mario Apuzzo, Esq.
May 6, 2012
http://puzo1.blogspot.com/
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Mario Apuzzo, Esq.
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