The birther contribution to American jurisprudence

Dealing with frivolous litigation, whether filed by a seasoned attorney or a novice pro se litigant, is a bit like wrangling cats.

Robert J. Davis

While one doesn’t usually combine “birther” and “contribution” in the same sentence, the birther phenomenon has left its mark on the US justice system through educational examples, black letter law, and a bit of humor to spice up otherwise dull legal briefs. This article details ways in which the birthers in general, and Orly Taitz in particular, have contributed to the law.

A good example of bad behavior

I don’t know whether they teach this at the William Howard Taft online law school, but there are certain standard reference works that attorneys rely on to inform their practice and to find the citations that they need to make legal arguments. One source is the Practicing Law Institute whose mission is:

To enhance the professionalism of attorneys and other qualified persons by providing, in a cost effective manner, the highest quality and most innovative programs, publications and other services to enable them to practice law competently and ethically, and to fulfill pro bono responsibilities.

In 2010, the PLI published a paper by Koral and Price titled: “Trying the Court’s patience instead of the case: common litigation mistakes” to draw the line between “zealous advocacy” and “impermissible or injudicious tactics.” One way of brightening the line is to give examples of what constitutes “impermissible or injudicious tactics” and the birthers, in the person of Orly Taitz, provide a featured example of being on the wrong side of the line. Writing about Rhodes v. MacDonald, where Judge Clay D. Land sanctioned Taitz:

Attorney Orly Taitz provides a notorious recent example of an attorney’s conduct succeeding more at irritating the judge than at advancing the interests of her client. A member of the “birther” movement, which challenges President Obama’s citizenship on the grounds that he had failed to adequately prove that he was born in the United States, Ms. Taitz filed a motion in connection with this litigation on behalf of a Captain in the United States Army to enjoin her deployment to Iraq. District Judge Clay D. Land held that the motion was frivolous, and further found that “Plaintiff’s motion is being presented for the improper purpose of using the federal judiciary as a platform to espouse controversial political beliefs rather than as a legitimate forum for hearing legal claims.”

Taitz was sanctioned for her conduct in the case because, as Judge Land said:

[t]his pattern of conduct reveals that it will be difficult to get counsel’s attention [and so a] significant sanction is necessary to deter such conduct.

The PLI article was written in 2010, before Orly Taitz brought a federal lawsuit against Judge Land. I wonder what the article would say if it were written today!

Black letter law

The Wikipedia article on Precedent says:

In common law legal systems, a precedent or authority is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts.

Black letter law is the body of cases that attorneys and courts look to for established precedent. If you have ever read a birther legal decision that involves dismissal for lack of standing, you will almost invariably see Lujan v. Defenders of Wildlife cited. Once the body of birther lawsuits built, one began to see citations on standing to decided birther cases, notably Hollander v. McCain and Berg v. Obama. More recently we see extensive citations to Ankeny v. Governor of Indiana alongside US v. Wong on the question of whether Obama is a natural born citizen and Robinson v. Bowen on ripeness of election challenges.

The precedential value of birther lawsuits now extends beyond the backwaters of birtherism; they have become mainstream precedent in several areas of the law and now appear in the standard reference resources used by attorneys.

Quo warranto

Several birther lawsuits sought to bring quo warranto challenges against Barack Obama, trying to force him to prove his right to office. Today the legal encyclopedia American Jurisprudence, 2nd ed, cites Taitz v. Obama, 707 F. Supp. 2d 1 (D.D.C. 2010) on quo warranto in general and Taitz v. Obama, 754 F. Supp. 2d 57, 78 Fed. R. Serv. 3d 207 (D.D.C. 2010) as precedent to say “[o]nly the Attorney General may bring a quo warranto action against a public official.”

Monetary sanctions

I mentioned previously the $20,000 sanction imposed on Orly Taitz by the Federal District Court in Georgia in Rhodes v. MacDonald. That decision was appealed all the way to the US Supreme Court, who declined to accept the case. The Court’s refusal to grant cert was written up by Thompson Reuters in its “United States Supreme Court Actions” series.

Construction and application of FRCP 60(b) (6)

The American Law Reports published a paper titled “Construction and application of rule 60(b) (6) of Federal Rules of Civil Procedure authorizing relief from final judgment or order for ‘any other reason’.” Taitz v. Obama, 754 F. Supp. 2d 57, 78 Fed. R. Serv. 3d 207 (D.D.C. 2010) is cited to the principle: “[r]econsideration is proper under catch-all provision of rule governing relief from judgment only when a party timely presents a previously undisclosed fact so central to the litigation that it shows the initial judgment to have been manifestly unjust” and Taitz v. Obama, as precedent for “[c]atch-all provision of rule governing relief from judgment applies only to extraordinary situations and should be sparingly used.”

False Claims Act

One of Phil Berg’s legal gambits was to argue that since Barack Obama wasn’t a US citizen, he fraudulently collected his salary as a US  Senator. The False Claims Act provides for a private citizen to report false claims to the government, and if the government doesn’t act, to file a lawsuit (qui tam ) to collect a bounty. These qui tam cases must follow certain rules that Berg didn’t follow (specifically filing the case under seal, although he eventually got it sealed, I think). Orly Taitz, an imitator of what she sees other attorneys do, filed her own False Claims Act lawsuit which was dismissed for not being filed under seal and this case citation is now referenced by Westlaw in its section on “The False Claims Act: Fraud Against the Government § 11:14” as “D.C. Circuit: Taitz v. Obama, 707 F. Supp. 2d 1 (D.D.C. 2010) (dismissing False Claims Act claim where plaintiff failed to file complaint under seal).” American Jurisprudence Proof of Facts also cites this case in support of the same principle as does Federal Practice and Procedure.

Freedom of Information Act

American Law Reports, in “What are Matters ‘Related Solely to the Internal Personnel Rules and Practices of an Agency’ Exempted From Disclosure Under Freedom of Information Act (5 U.S.C.A. § 552(b)(2))” cites Taitz v. Obama, 754 F. Supp. 2d 57, 78 Fed. R. Serv. 3d 207 (D.D.C. 2010) as precedent for the principle that Social Security numbers are not subject to disclosure under the Freedom of Information Act.

ALR cites Taitz on the topic of “Use of Affidavits To Substantiate Federal Agency’s Claim of Exemption from Request for Documents Under Freedom of Information Act (5 U.S.C.A. § 552)” citing Taitz v. Astrue, 806 F. Supp. 2d 214 (D.D.C. 2011) to support “Reviewing court in a Freedom of Information Act (FOIA) case may grant summary judgment in favor of the agency simply on the basis of its affidavits, if they contain information of reasonable detail, sufficient to place the documents within the exemption category, and if the information is not challenged by contrary evidence in the record or evidence of agency bad faith.”

American Jurisprudence also cites Taitz v. Astrue as precedent for the principle, “In determining whether an agency has properly withheld a record under Freedom of Information Act (FOIA) exemption for personal information the disclosure of which would constitute a clearly unwarranted invasion of privacy, a court must first determine whether disclosure would compromise a substantial privacy interest, and then balance any such privacy interest against the public interest in the release of the records to determine whether disclosure would constitute a clearly unwarranted invasion of personal privacy.”

American Jurisprudence Proof of Facts also reports on the issue of privacy of social-security numbers, citing the cases above to conclude: “The court in Taitz v. Obama, 754 F. Supp. 2d 57, 78 Fed. R. Serv. 3d 207 (D.D.C. 2010) noted, in denying the plaintiff’s first motion for reconsideration, that Social Security numbers are not subject to disclosure under FOIA.”

Federal Practice and Procedure cites both Taitz v. Obama (“FOIA request denied for failure to exhaust administrative remedies; Social Security numbers not subject to disclosure under FOIA”) and Taitz v. Astrue (“Social Security Administration properly withheld form through which President applied for a social security number under FOIA exemption 6 when substantial privacy concerns outweighed any public interest in release of requested document”) on the question of statutory exemptions to sovereign immunity.

The time for determining diversity jurisdiction

While not exactly a “birther” case, Liberi v. Taitz is a “birther on birther” controversy, and it involves parties residing in multiple judicial districts. The case is cited by Federal Practice and Procedure where “two diversity-destroying defendants were dismissed voluntarily from case by plaintiffs and court maintained jurisdiction.”

Appellee review of transfer rulings

Once again Federal Practice and Procedures cites Liberi to say, “Order of transfer under § 1404(a) is interlocutory and not immediately appealable. Court of appeals dismissed appeal from such order for lack of appellate jurisdiction. ”.

A bit of levity

The term “birther” is becoming descriptive of someone who is impervious to facts and evidence, and it is beginning to show up in legal briefs. One example is from in THE OHIO WILLOW WOOD COMPANY, v. ALPS SOUTH, LLC., No. 2:05-cv-01039, 2010 in which the defendant in a motion (Docket 182) said:

In the spirit of the “Birthers,” OWW wants to ignore John Fay’s testimony

and in BADER v. WINKELREID et al, No. 09-cv-2607 (SLT)(JMA), 2009 WL 3393235 (E.D.N.Y.)

Defendants are like the birthers, i.e., the people who believe that the birthplace of President Obama lies outside the United States. Nothing, not even verifiable facts laid before them, can shake their stubborn reiteration of falsehood, except that defendants’ reiterations are farcical, as in “the first time as tragedy, the second time as farce.”

In a response to a Texas Public Utility Commission proceeding UTEX responded to AT&T in part:

On pages 12-13 of its Motion AT&T takes issue with UTEX’s reliance on The American Recovery and Reinvestment Act (“ARRA”), P.L. 111-5 (2009) as a change of law. AT&T cannot seriously argue that when the President of the United States signs legislation passed by both houses there is no “new law” or a “change of law” (unless AT&T is now part of the “birther” crowd and firmly believes that Barak-Obama is not “really” the President). [reformatted to move footnote inline]

Conclusion

Those of us who battle the birthers consider them inconsequential insofar as the quality of their legal arguments and that they are just a bunch of cranks with no lasting importance. In fact, they have left a lasting impression on the American justice system, even if only as examples of what is not permissible nor advisable.

Acknowledgment

I wish to acknowledge and thank those who provided research that went into this article