Taitz, Donofrio and Obama

I have watched from the sideline as everyone jumps aboard the Taitz-Donofrio Express Train – hoping for a journey into an Obama-free White House. The latest stop on the track is QUO WARRANTO – a sleepy little place where a US District Court in DC supposedly can convene a jury and throw the usurper out the door, with a kick in the butt for good measure. This is based on Leo Donofrio’s assertion that a DC Municipal Code gives the DC court exclusive jurisdiction over cases involving nationally elected officials usurping a federal position such as President. Both Orly Taitz and Donofrio have filed suits in multiple states, including California and New Jersey making these arguments.
My question is this:

Q: If Donofrio and Taitz really believe their contention that DC Municipal Code § 16-3501 gives the US District Court for the District of Columbia the power to throw Obama out of office, why are they wasting time and resources making that argument everywhere but that court? Why not march down to the courthouse at 333 Constitution Ave., N.W. Washington, D.C. 20001 and file their quo warranto petition?

A: Because the petition would not survive the first motions hearing, and their 15 minutes of fame would be over. This is a jurisdictional question and the judge has the authority and duty to address the issue sua sponte, without relying on the opposing side to file an objection. He does not have to wait for Obama to be served or file an answer.

Here are the quo warranto statutes:

§ 16-3501. Persons against whom issued; civil action.
A quo warranto may be issued from the United States District Court for the District of Columbia in the name of the United States against a person who within the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States , civil or military. The proceedings shall be deemed a civil action. (Dec. 23, 1963, 77 Stat. 602, Pub. L. 88-241, § 1; July 29, 1970, 84 Stat. 562, Pub. L. 91-358, title I, § 145(n); 1973 Ed., § 16-3501; 1981 Ed., § 16-3501.)

§ 16-3502. Parties who may institute; ex rel. proceedings.
The Attorney General of the United States or the United States attorney may institute a proceeding pursuant to this subchapter on his own motion or on the relation of a third person. The writ may not be issued on the relation of a third person except by leave of the court, to be applied for by the relator, by a petition duly verified setting forth the grounds of the application, or until the relator files a bond with sufficient surety, to be approved by the clerk of the court, in such penalty as the court prescribes, conditioned on the payment by him of all costs incurred in the prosecution of the writ if costs are not recovered from and paid by the defendant. (Dec. 23, 1963, 77 Stat. 602, Pub. L. 88-241, § 1; July 29, 1970, 84 Stat. 562, Pub. L. 91-358, title I, § 145(n); 1973 Ed., § 16-3502; 1981 Ed., § 16-3502.)

§ 16-3503. Refusal of Attorney General or United States attorney to act; procedure.
If the Attorney General or United States attorney refuses to institute a quo warranto proceeding on the request of a person interested, the interested person may apply to the court by certified petition for leave to have the writ issued. When, in the opinion of the court, the reasons set forth in the petition are sufficient in law, the writ shall be allowed to be issued by any attorney, in the name of the United States , on the relation of the interested person on his compliance with the condition prescribed by section 16-3502 as to security for costs. (Dec. 23, 1963, 77 Stat. 602, Pub. L. 88-241, § 1; July 29, 1970, 84 Stat. 562, Pub. L. 91-358, title I, § 145(n); 1973 Ed., § 16-3503; 1981 Ed., § 16-3503.)

§ 16-3541. Allegations in petition of relator claiming office.
When a quo warranto proceeding is against a person for usurping an office, on the relation of a person claiming the same office, the relator shall set forth in his petition the facts upon which he claims to be entitled to the office.(Dec. 23, 1963, 77 Stat. 602, Pub. L. 88-241, § 1; July 29, 1970, 84 Stat. 563, Pub. L. 91-358, title I, § 145(n); 1973 Ed., § 16-3541; 1981 Ed., § 16-3541.)

§ 16-3545. Verdict and judgment.
Where a defendant in a quo warranto proceeding is found by the jury to have usurped, intruded into, or unlawfully held or exercised an office or franchise, the verdict shall be that he is guilty of the act or acts in question, and judgment shall be rendered that he be ousted and excluded therefrom and that the relator recover his costs. (Dec. 23, 1963, 77 Stat. 603, Pub. L. 88-241, § 1; July 29, 1970, 84 Stat. 563, Pub. L. 91-358, title I, § 145(n).)

Here are some hard and fast rules of statutory construction:

• It is presumed that a statute will be interpreted so as to be internally consistent. A particular section of the statute shall not be divorced from the rest of the act.
• The ejusdem generis (Latin for "of the same kind") rule applies to resolve the problem of giving meaning to groups of words where one of the words is ambiguous or inherently unclear.
• If a statute is susceptible to more than one reasonable construction, courts should choose an interpretation that avoids raising constitutional problems.
• Statutory interpretation should avoid absurdity. The legislature did not intend an absurd or manifestly unjust result.

Donofrio and Taitz are pulling the Quo Warranto sections out of a much larger statute, and interpreting it out of context – thereby twisting its meaning and application so far out of reality that it is unrecognizable. They are arguing for judicial activism – where the judge makes policy despite what the legislature intended. Anyone who buys into that must ask yourself why you didn’t support Sotomayor, and why you hate the Ninth Circuit.

Pub. L. 88-241 and Pub. L. 91-358 were so uncontroversial that both passed by voice vote. Before I get into the legislative histories, ask your self these questions: first, under our constitutional system does it make sense that a lower federal court in one jurisdiction would be given the power to throw an elected official in the executive or legislative branch out of office?; second, does it make sense that a Republican senator or house member would vote to give a DC jury (citizens are 88% Democrat) the power to throw a Republican senator, house member, president or vice president out of office?; third, would these same Republican legislators vote to give a lower court federal judge (all of whom were Democrat appointees at the time) authority over that proceeding?

As you know, the District of Columbia is not considered a state for most statutory purposes. Although it is now Home Rule, many of the non-elected officers in DC are appointed by the US, either through direct operation of congress or via agencies, such as the Dept of Justice. DC being what it is and always shall be has had more than its share of local appointed officials who have been thrown out of office and have refused to leave.

DC was administered exclusively by congress during the relevant times, and local DC ordinances were passed as federal public laws and codified as DC Municipal Code. Pub. L. 88-241 and Pub. L. 91-358 dealt with the organization and subsequent reorganization of the DC municipal court system, dividing authority over what would be sent to the local DC court system and what would be handled by the federal courts on behalf of DC. The constitution requires that the federal system deal with problems related to actions of federal appointees, including those who usurped, intruded into, or unlawfully held or exercised an office or franchise overseeing DC government as a federal appointee. The quo warranto statute in the DC municipal code, § 16-3501 et seq. dealt with the miscreants who would not leave office when told to by an incoming administration.

One major clue that Pub. L. 88-241 and Pub. L. 91-358 apply ONLY to DC governmental issues and not to the rest of the world is that the code sections are codified in the DC Municipal Code and NOT the United States Code.

Writs of quo warranto are writs of public right in common law, and in early US jurisprudence were filed against public officials when the constitutionality of their actions were challenged. They were originally covered in the All Writs Act, but are now nearly extinct in the federal system under the Federal Rules of Judicial Procedure and the Anti-Injunction Act.

The particular quo warranto statute we are talking about does not cover any national elected official - only officials appointed by the US to positions overseeing DC and DC government. Plus, the private action Donofrio and Taitz are trying to pursue is arguably blocked by Frothingham v. Mellon, 262 U.S. 447 (1923).

If, by some fluke, the case did make its way to the Circuit Court and the Supreme Court, it most likely be overturned under the theory of separation of powers and an unconstitutional attempt to circumvent the impeachment authority of the legislative branch.

Finally - here are copies of two Hawaii newspapers from, August 13, 1961 where the Hawaii Health Bureau of Statistics info was used to list recorded births. Do you think Dr. Tony Newman and Dr. Raymond Swain jumped into the Time Tunnel and altered history? (For those who were not watching television in 1966-1967 I apologize for the Time Tunnel reference).