Wednesday, December 10, 2008

Donofrio Ups the Ante v. Comments Discrediting Scalia's Referral and Full Court's Distribution to Conference

There seems to be an effort to discredit the action that Scalia and the SCOTUS took on Friday, Dec. 5, upon the Wrotnowski v. Bysiewicz petition to stay the Electoral College vote. As you may know, this case was referred by Justice Alito and accepted by the full court to committee, which will assess the case this Friday, Dec. 12, in order to decide upon any further action. It could grant a stay, deny the case, call for a brief from the opposition, call for oral arguments, etc.

Whether the debunking effort is merely ad hoc, or being orchestrated, I cannot say, though the Axelrod Astroturfers are infamous. But I can relate this blogospheric attack, then post Leo Donofrio's replies. While Donofrio's own suit of the New Jersey Secretary of State was denied, he is representing Cort Wrotnowski, in his petition of the SCOTUS, based upon a Connecticut filing against its own SoS.

In the comments below an piece, "Supreme Court refers Obama natural born citizen question and moves forward," on Monday 12/8, is found this bold attempt at the debunk:

The Supreme Court has a rule: a litigant may request a stay from the Justice for the circuit where their case arose. If it is denied, they can come back and ask another Justice of their choice. When that happens, the 2nd Justice always refers the matter to the court for conference, so they can get all 9 to agree on throwing it out and be done with it.

If they ever get something they want to grant, they ALWAYS issue an order to the other side requesting opposition. No court would ever issue a stay without having first have heard from both sides.

Obviously, publicity-seeking vexatious litigants have now figured out that they can get a lot of attention by this 2-step process -- its a sure way to get the trash they file listed on the docket. I suppose we can expect this to continue all the way up through January 20th.

Similarly, in Donofrio's own Natural Born Citizen blog article, today: "The Washington Times Coverage of Donofrio and Wrotnowski SCOTUS Cases," he cites this criticism, as reported by Times reporter, Tom Ramstack:
Eleanor Holmes Norton, the District’s nonvoting Democratic delegate to Congress, speculated that the Supreme Court is considering appeals that challenge Mr. Obama’s citizenship only long enough to reject them “and lay to rest manufactured doubts about the legitimacy of Obama’s election before the inauguration.”
To this denigration dealt by Rep. Norton, Donofrio responds in his piece:

That’s a rather absurd statement. Frivolous cases aren’t graced with any respect at all. If it deserves immediate denial, then they deny it. But on the same day the order came down rejecting my case, Justice Scalia referred Wrotnowski v. Bysiewicz to the full Court and it was distributed for the Dec. 12 conference.

If the Court wanted to send a message as Norton suggests, they could have denied Cort’s case at the same time as mine. Now that would have sent the message she suggests.

For example, when a stay application is renewed to a second Justice, that Justice may deny it straight away rather than referring it to the full Court. Examine the following two SCOTUS dockets where stay applications were denied by the first Justice and then denied by the second Justice upon renewed application:

No. 07A638
Ate Kays Company, Applicant
Pennsylvania Department of General Services, et al.
Lower Ct: Supreme Court of Pennsylvania, Eastern District
Case Nos.: (175 EM 2007)
~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Feb 1 2008 Application (07A638) for a stay pending appeal, submitted to Justice Souter.
Feb 2 2008 Application (07A638) denied by Justice Souter.
Feb 6 2008 Application (07A638) refiled and submitted to Justice Scalia.
Feb 7 2008 Application (07A638) denied by Justice Scalia.


No. 7A421

Michigan, Applicant
Corey Ramone Frazier
Lower Ct: Supreme Court of Michigan
Case Nos.: (131041)

Nov 20 2007 Application (07A421) for stay pending disposition of the petition for a writ of certiorari, submitted to Justice Stevens.
Nov 20 2007 Application (07A421) denied by Justice Stevens.
Nov 28 2007 Application (07A421) refiled and submitted to Justice Alito.
Nov 28 2007 Application (07A421) denied by Justice Alito.
The intrepid New Jerseyan draws two examples from the SCOTUS record and puts more chips on the table. But, this does not satisfy one comments poster, who sees the bet and raises, as follows:
JudgeDredd Says:
December 10, 2008 at 12:06 pm

The second time you submit to a second justice, if they deny without submitting to the full court for review, you can submit it a third time. By sending it to the full court for review they can get rid of your case FASTER because that is your last shot. Your case will be one of thousands that the clerks pick through and recommend.It is very very possible (likely?) that not one justice has even seen your brief much less read it.The justices never even see the vast majority of applications.The court takes up such cases at its discretion and you have no Constitutional right whatsoever to even have it considered.
Donofrio sees the bet of JudgeDredd and calls:
Doesn't matter. If you submit it the first time or the second time, the Justice you submit it to has the option of referring it to the full Court and once it's referred, the Court may then deny it together. Upon the referral, if the full Court denies it without distributing it for conference, THEN NO 3RD RENEWAL IS ALLOWED. So, if the Court wanted to send a stern message they could have denied Cort's case as a full court on Monday without scheduling it for conference. Your point is in error. Once the full Court denies the application, you can't resubmit it to a 3rd Justice.
Thus, Leo maintains a countenance of confidence in his case and certainty in his place at the SCOTUS conference table. That tends to boost I.O.'s confidence.

Are you a student of the SCOTUS who would like to state your case, here? If so, the "comments" link awaits you. Or, maybe something just "strikes you," somehow.

Or, if you wish to pass this question on to a litigious lifeline, please click the envelope.

<<<<<<<<<<<<> I.O. <>>>>>>>>>>>>

Addendum: Since much of this post comes across on the negative, I will mention another, rosier scenario, postulated by many. It "holds" that Scalia (and Thomas, perhaps others) may have wanted to dispose of the Donofrio suit in favor of a stronger Wrotnowski case and thus, he waited for the denial of Donofrio v. Wells and immediately referred Wrotnowski v. Bysiewicz.

In the same set of comments, Donofrio's remarks:
December 10, 2008 at 11:36 am

Just because a Justice refers it to the full Court, the full Court is not obligated to distribute it for conference. Upon Scalia's referral, the Court could have sent a stern message of denial without ever having distributed it for conference. The Court could have acted on Cort's application on the same day they denied mine by simply denying his. But they didn't. I don't know what it means, but neither does anybody else who isn't a SCOTUS Justice.


Arlen Williams said...

awaiting your reply

Edwin said...

Donofrio's claims has a few problems, the first of which is that he fails to cite to the relevant rule that would prohibit a third referral before the full court considers the issue. He further confuses this issue by stating "no 3rd renewal is allowed" IF the full court denies it. This is exactly the same thing JudgeDredd said: "by sending it to the full court for review they can get rid of your case." In other words, once the full court says "no go," the case dies. You'll note that Donofrio doesn't say "no 3rd renewal, even if the full court DOESN'T consider it." So, Donofrio is either agreeing with JudgeDredd or (more likely) trying to obfuscate the issue.

Secondly, Donofrio seems hung up on this "stern message" business. What happened is the first judge received the case (and denied it) and once the case was re-filed, the second judge sent it to conference, where it was killed off. In all likelihood, the first judge assumed the case would be done after the first denial, but Donofrio refiled. Then the full court denied the case. Donofrio seems to imply there is a way for the full court to deny the case without distributing it for conference, but doesn't explain how that would take place. In order to do that, you'd need all the justices to weigh in on whether to deny it or grant it -- and that's what they do at the conferences. There's no "secret squirrel" method of getting the "full court" to deny a case without distributing the case to each justice to consider. Moreover, it's more likely the judges didn't give the case enough of a second thought to even consider whether any sort of "stern message" (whatever Donofrio's talking about) should issue, and that the judges simply felt the case was meritless and should be dismissed. That is, it's possible Scalia viewed the case as a nuisance case and sent it to conference so that it could be aired as a nuisance case and killed off. Had any of the justices felt strongly enough about the case, any dissenters from the denial could have filed a written opinion along with the denial, which happens from time to time. That didn't happen here, which is a strong indication none of the judges felt the case was worth spilling any more ink on the case than it took to write "denied."

A significant issue with this whole file/re-file argument is that Donofrio's case did not progress through the normal route. He appealed to the Supremes without setting out proper jurisdiction in the case (ref. his application for "emergency stay"). Typically cases get to SCOTUS after winding their way through the state or federal court system. Donofrio just skipped straight to the top without pointing to any Supreme Court practice rule that would let them take such a case. As a result of not identifying the appropriate jurisdictional "box" the case goes in, it's extremely difficult to analyze how the justices should handle the case procedurally.

The bottom line is this: once the full court denies the case, the case has been effectively "rejected." The fact the case got sent to conference may well have resulted from Justice Scalia saying, "I heard about this guy -- he's not going away until we send him an unambiguous message." And that's what the court did. Since Donofrio just restates JudgeDredd's argument, Dredd wins the hand.

Arlen Williams said...

Edwin, thank you for the time going into that. I don't want to comment about it, yet - waiting for more.

However, I will mention another, rosier scenario, postulated by some. It "holds" that Scalia may have wanted to dispose of the Donofrio suit in favor of a stronger Wrotnowski case -- thus, he waited for the denial of Donofrio and immediately referred Wrotnowski.

In the same set of comments, LD remarks:

December 10, 2008 at 11:36 am

[Ed. Just because a Justice refers it to the full Court, the full Court is not obligated to distribute it for conference. Upon Scalia's referral, the Court could have sent a stern message of denial without ever having distributed it for conference. The Court could have acted on Cort's application on the same day they denied mine by simply denying his. But they didn't. I don't know what it means, but neither does anybody else who isn't a SCOTUS Justice.]

daddynoz said...

Perhaps there is NATIONAL CONSENSUS on the following;

A. There ARE eligibility requirements to be President IAW the Constitution.

B. Someone (Many) has (have) the responsibility to ENSURE eligibility requirements are met.

C. An ineligible candidate should NOT hold the office of the President.

OK, here's the rub;

1. What are the requirements for POTUS? Why are they what they are?

2. Who was obligated to ensure only valid Presidential candidates were put before the voting citizenry?

3. Here's the zinger, what do you do after an election and prior to inauguration to ensure a candidate has met the requirements?

My take-

1. Natural born citizen, at least 35 years of age, and a resident of 14 years (short and sweet). I support the framers’ contention "natural" born meaning born on US territory to parents (plural) of American citizenship. The contention ensures against ANY questions regarding foreign loyalties. "Natural" is founder language specifically addressing unambiguous ALLEGIANCE to this Nation.

2. Candidate is obligated upon demand to provide proof of eligibility to political national committee and State Election Officers (those responsible for setting the ballot).

3. Candidate that is seeking office (and taxpayer salary) is obligated to prove without doubt his/her eligibility to assume office (especially in cases of where questions indicate otherwise), the US congress can refuse to accept the votes from the electoral college until such undeniable proof is given, and lastly, the courts can compel relevant parties to submit to said obligations or duties.

As far as the birth certificate questions, natural born, and whatever else is bugging you about Mr. Obama’s's the courts or nothing (ambiguity).

Additional thoughts from a dumb active duty American Soldier-

1. We live in a constitutional republic. Period. Republics derive their validity based on the rule of law. Folks who cry “will of the people” and pick and choose which rules are to be obeyed or ignored are treading a path of potential tyranny (at the very least an illegitimate government). Ask yourself if you want President Bush to hold a third term contrary to the 22nd Amendment.

2. Mr. Obama’s birth certificate issue is a clever ploy to obfuscate the true measure of his eligibility to be President. He is/was a constitutional lawyer; He’s stated that he is a “native” born American with dual citizenship; There should be no doubt he understood ambiguity existed as to his constitutional eligibility to hold the office of the President regarding Article II. The obligation is upon those that SEEK public office to prove eligibility beyond a shadow of a doubt (to self and constituency). To swear an oath to protect, uphold, and defend the Constitution to hold that office with knowing that ambiguity existed is criminal and disingenuous.
If you are unaware, the Constitution refers to only two kinds of Americans: citizens and natural born citizens. Citizens are either native born or naturalized. Only ONCE is it mentioned the term “natural born citizen” in the entirety of the United States Constitution…in reference to the requirement for holding the Office of President (and Vice-President).

3. Who should care that candidates meet eligibility requirements to hold office? Why is it important that requirements are created, expected, and complied? What are the consequences in this situation for malfeasance / misfeasance regarding the highest guiding document of our Nation? What would our founding fathers say about this current situation? What are we doing for the future of our Nation when we shirk the responsibilities of the present? Can an ineligible candidate that has assumed office give a “lawful order” to the United States Armed Forces? I don’t know and it troubles me.

Answers to questions I and others have asked-

Something I only recently understood (remember I’m a dumb Soldier) is WHY the framers, the courts, the congress, and EVERY President to date considered the phrase “natural born citizen” to be SELF EVIDENT and not requiring definition. It is now clear to me why- “natural” (having unambiguous ALLEGIANCE to the Nation) “born” (native of these lands we call the United States) “citizen” (American).

Mr. Obama is the first candidate EVER to have the presumption to run for office with ADMITTED dual citizenship. EVER. Let that sink in...the Founding Fathers would have crapped themselves.

If you wonder what a naturalized citizen become a citizen through oath of ALLEGIANCE and intent for residency in the United States. A (native born) citizen is not required to swear an oath and derives their citizenship through place of birth or citizenship of parent(s).

Madcap said...

Must see this!
Did Obama’s “Advisor A” Negotiate Bribe With Blagojevich?

Mberenis said...

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Post a Comment

Arlen Williams said...

Wow, that last one was weird. But incisive comments, otherwise. I'll keep looking in through tomorrow. Then it will be potentially fateful Friday.

Arlen Williams said...

Another point:

It has been noted on Leo Donofrio's site and elsewhere that the SCOTUS did not deny hearing his case on Dec. 5. They only denied his application for a stay of the Electors' vote.

...and then, of course, they received the Wrotnowski case to tomorrow's committee meeting.

They could be allowing the former case to stay open for support of the Wrotnowski case and/or other(s).

Arlen Williams said...

I would be remiss not to refer here to yesterday's Weblog article by Leo Donofrio:


In it, Mr. Donofrio refers to not all, but some of the most pertinent concurring opinions of legal writers, prior to, contemporaneous with, and subsequent to the drafting of the Constitution.

And, as the title begins to describe, Donofrio relates that Justice Scalia, in his opinions, has referred to similar sources, even as far back as Vatel's Law of Nations.

And if I haven't mentioned this here, I will now: the catalytic letter from John Jay to George Washington, requesting the "natural born Citizen" clause is clearly written as a matter of national defense.

Anyone who studies the principles of defense understands that one in a defensive posture seeks to protect all likely vulnerabilities which are feasible to cover -- not just one of two in this case.

acsnyc said...

@ Arlen:

Correction - Donofrio's application for stay was related to the ballots used in NJ for the general election on Nov 4, NOT the upcoming electoral college vote. A review of the court filing on Leo's website will prove this.

The denial of stay seems moot since the event was history on December 5 when SCOTUS discussed the cases in conference.

Cert was not denied (as of yet).

Donofrio is alive.

Ted said...

The consequences of the Supreme Court declining to address the US Constitution’s “natural born citizen” clause on the morning of Monday 12/15/08 — thereafter enabling the College of Electors to transform the crisis from “law” to “political and Congressional”, leading to the ‘inauguration’ of Mr. Obama, are nothing less than catastrophic. Lawsuits by members of the military challenging his ‘commander in chief’ status are INEVITABLE. And a military takeover to oust the “usurper” may be inevitable as well. Where is the media? This is no “tin foil hat” joke.