kerchner v obama appeal - motion for leave to file supplemental appendix filed 10 apr 2010 w/appx

IN THE UNITED STATES CIRCUIT COURT OF APPEALFOR THE THIRD CIRCUIT

____________________________________Charles F. Kerchner, Jr, : Document Electronically FiledLowell T. Patterson, :Darrell James LeNormand, and :Donald H. Nelsen, Jr., :

:Plaintiffs-Appellants, :

:v. :

:Barack Hussein Obama II, President Elect :of the United States of America, President : Case No. 09-4209of the United States of America, :and Individually, a/k/a Barry Soetoro; :United States of America; :United States Congress; :United States Senate; :United States House of Representatives; :Richard B. Cheney, President of :the Senate, Presiding Officer of Joint :Session of Congress, Vice President of the : MOTION FOR LEAVE TOUnited States and Individually; and : FILE SUPPLEMENTALNancy Pelosi, Speaker of the House and : APPENDIXIndividually, :

:Defendants-Appellees. :

____________________________________:

TO: Clerk of the Court

Eric Fleisig-Greene, Esq.U.S. Department of JusticeCivil Division, Appellate Staff950 Pennsylvania Avenue, N.W.Room 7214Washington, DC 20530-0001

PLEASE TAKE NOTICE that the undersigned counsel for the

plaintiffs-appellants hereby moves the United States Third Circuit Court of

Case: 09-4209 Document: 003110096600 Page: 1 Date Filed: 04/10/2010

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Appeals, at 21400 US. Courthouse Independence Mall West, 601 Market

Street, Philadelphia, PA 19106-1790, for entry of an Order granting

plaintiffs-appellants leave to file a Supplemental Appendix.

We explained in Appellants’ Opening Brief and Reply Brief that

while the issue before the Court is one of standing and political question, the

merits of plaintiffs’ claims are important to the showing that plaintiffs must

make to prove that they have standing. The importance of the merits of

plaintiffs’ claims is made evident by the recent state court decision in

Ankeny v. Governor of the State of Indiana, 916 N.E.2d 678 (Ind. Ct. App.

2009). We realize that the Ankeny case is a state court decision and not

binding on the federal courts. We nevertheless cite to it because it is the

only case in the United States that, although not necessary to its decision and

without considering or even discussing much case law and authorities

showing otherwise and by improperly conflating the clauses “natural born

Citizen” of Article II and “citizen of the United States” of the Fourteenth

Amendment, has reached the merits of the constitutional question of what is

an Article II “natural born Citizen,” finding that “persons born within the

borders of the United States are “natural born Citizens” for Article II,

Section 1 purposes, regardless of the citizenship of their parents….” Id. at

688. In the Ankeny case, the Indiana Court of Appeals was faced with the


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question of whether the trial court was correct in dismissing the pro se

plaintiffs’ complaint under Trial Rule 12(B)(6) for failure to state a claim

upon which relief can be granted. Id. at 680. The court stated that “[w]hen

reviewing a motion to dismiss, the court views the pleadings in the light

most favorable to the nonmoving party, with every reasonable inference

construed in the nonmovant’s favor.” Id. at 680. The district court in the

Kerchner case said that it was following the same standard on defendants’

Rule 12(b)(1), Fed. R. Civ. P. motion to dismiss for lack of standing. A-10

to 11. The Ankeny court also said that it “need not accept as true any

‘conclusory, non-factual assertions or legal conclusions.’” Id. at 681. The

court then said:

The Plaintiffs do not mention the above United States SupremeCourt authority [U.S. v. Wong Kim Ark, 169 U.S. 649 (1898)]in theircomplaint or brief; they primarily rely instead on an eighteenthcentury treatise [Emer de Vattel’s, The Law of Nations, Or, Principlesof the Law of Nature, Applied to the Conduct and Affairs of Nationsand Sovereigns (1758)] and quotations of Members of Congress madeduring the nineteenth century. To the extent that these authoritiesconflict with the United States Supreme Court's interpretation of whatit means to be a natural born citizen, we believe that the Plaintiffs'arguments fall under the category of "conclusory, non-factualassertions or legal conclusions" that we need not accept as true whenreviewing the grant of a motion to dismiss for failure to state a claim.Irish, 864 N.E.2d at 1120.

Id. at 689. Hence, because the court did not agree with the merits of

plaintiffs’ legal position on the meaning of a “natural born Citizen,” it


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refused to accept as true the factual allegations of their complaint. See USA.

v. Spectrum Emergecy Care, 190 F.3d 1156 (10th Cir., 1999) (“unsupported,

conclusory allegations are insufficient to establish jurisdiction”); Phelps v.

Lockheed Missiles & Space, Co., Inc., 995 F.2d 232 (9th Cir. 1993)

(allegations that are conclusory fail to establish federal jurisdiction). We

therefore address the merits of plaintiffs’ claims before the Court not only

because the merits of their claims are intertwined with the question of

standing but also to show that there is much more evidence of plaintiffs’

position on how the Founders and Framers defined an Article II “natural

born Citizen” and to avoid the possibility that this Court would treat the

factual allegations of their complaint as the Indiana Court of Appeals treated

those of the plaintiffs in that case.

We are therefore requesting leave to file Plaintiffs’-Appellants’

Supplemental Appendix to the Opening Brief. These additional documents

pertain to the Opening Brief at pp. 17-29 and the Reply Brief at pp. 6-14

regarding defining Article II “natural born Citizen.” We request permission

to include in a Supplemental Appendix David Ramsay’s, A Dissertation on

the Manners of Acquiring the Character and Privileges of a Citizen (1789)

(attached at SA-1), important in defining a “natural born Citizen.” David

Ramsay (April 2, 1749 to May 8, 1815) was an American physician and


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historian from South Carolina and a delegate from that state to the

Continental Congress in 1782-1783 and 1785-1786. He was one of the

American Revolution’s first major historians. Ramsay “was a major

intellectual figure in the early republic, known and respected in America and

abroad for his medical and historical writings, especially for The History of

the American Revolution (1789)…” Arthur H. Shaffer, Between Two

Worlds: David Ramsay and the Politics of Slavery, J.S.Hist., Vol. L, No. 2

(May 1984).

In his 1789 article, Ramsay first explained that there is an “immense”

difference between a British “subject” and a United States “citizen,” with

the former being “under the power of another” and the latter being “a unit of

mass of free people, who, collectively, posses sovereignty.” He informed

that “Republics, both ancient and modern, have been jealous of the rights of

citizenship.” He then explained that the “original citizens” of the United

States were those who were parties to the Declaration of Independence and

thereby adhered to the revolutionary cause. But the importance of his work

does not stop there, for he also described a “natural born Citizen, whom he

defined as a child born to citizen parents. He said concerning the children

born after the declaration of independence, “[c]itizenship is the inheritance

of the children of those who have taken part in the late revolution; but this is


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confined exclusively to the children of those who were themselves

citizens….” Id. at 6. He added that “citizenship by inheritance belongs to

none but the children of those Americans, who, having survived the

declaration of independence, acquired that adventitious character in their

own right, and transmitted it to their offspring….” Id. at 7. He continued

that citizenship “as a natural right, belongs to none but those who have been

born of citizens since the 4th of July, 1776….” Id. at 6. Here, Ramsay

referred to “natural right,” which ties into the Framers’ use of the clause

“natural born Citizen.” By focusing on citizenship that occurs by “natural

right,” Ramsay distinguished citizenship that occurs naturally versus

citizenship that occurs by operation of law. It is evident from his writing

that in defining a “citizen of the United States” and a “natural born Citizen,”

Ramsay did not look to English common law but rather to natural law, the

law of nations, and Vattel, Sec. 212.

We are also requesting leave to include in our supplemental appendix

an article from George D. Collins, Are Persons Within the United States

Ipso Facto Citizens Thereof? Am.L.Rev. (1866-1906), Sept./Oct. 1884 (“the

subject of citizenship being national, questions relating to it are to be

determined not by the English common law but rather by the general

principles of the law of nations” with Vattel, in The Law of Nations, Sec.


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212, providing the rule which explains that the children born in the country

of citizen parents are “natural born citizens,” none of which was changed by

the Fourteenth Amendment) (attached at SA-8); an article from Alexander

Porter Morse, Natural-Born Citizen of the United States: Eligibility for the

Office of President, Alb.L.J. Vol. 66 (1904-1905) (“the child of citizens of

the United States, wherever born, is “‘a natural-born citizen of the United

States’”) (attached at SA-16); and an article written by Breckenridge Long,

Is Mr. Charles Evans Hughes a “Natural Born Citizen” Within the Meaning

of the Constitution?” Chicago Legal News, Vol. 146, p. 220 (1916) (there is

a distinction between a “native born” and “natural born;” a “citizen of the

United States” is not the same as a “natural born Citizen;” a “natural born

Citizen” is one made by the laws of nature and not by operation of law and

from the moment of birth owes allegiance exclusively to the United States; a

person who is born with dual or conflicting allegiances and citizenships,

naturally caused by being born in the country to an alien father which causes

the person to acquire one allegiance and citizenship by jus soli and the other

by jus sanguinis, respectively, which birth circumstance causes a foreign

power to be able to lay a claim of allegiance or jurisdiction over that person,

cannot be a “natural born Citizen;” a child born in the United States to an

alien father may become a “citizen of the United States” by becoming a


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citizen by naturalization either upon his father naturalizing before the child

reaches majority or through his own naturalization application thereafter.)

(attached at SA-20). Justices of the United States Supreme Court have

utilized newspaper articles to support their arguments. See, e.g., Ashcroft v.

ACLU, 535 U.S. 564, 567 n.2 (2002); Boy Scouts of America v. Dale, 530

U.S. 640, 692 n.20 (2000) (Stevens, J., dissenting); City of Boerne v. Flores,

521 U.S. 507, 522 (1997); Georgia v. McCollum, 505 U.S. 42, 61 n.1 (1992)

(Thomas, J., concurring) (surveying the New York Times, Los Angeles

Times, and Chicago Tribune to show that the public cares about the racial

mix of juries); City of Akron v. Akron Ctr. for Reproductive Health, Inc.,

462 U.S. 416, 457 (1983) (O’Connor, J., dissenting) (citing Washington Post

to show that advances in medical technology meant that the viability of a

fetus could no longer be determined according to Roe v. Wade’s 28 week

rule).

Dated: April 10, 2010 Respectfully submitted,

s/Mario ApuzzoMario Apuzzo185 Gatzmer AvenueJamesburg, New Jersey 08831(732) 521-1900FAX (732) [email protected]


mailto:[email protected]

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CERTIFICATION OF ELECTRONIC FILING AND SERVICEOF MOTION AND PROPOSED PLAINTIFFS’-APPELLANTS’

SUPPLEMENTAL APPENDIX AND OF FILING AND SERVICE OFHARD COPIES THEREOF, HARD COPIES THEREOF BEING

IDENTICAL, AND AS TO VIRUS SCAN PERFORMED

I, Mario Apuzzo, Esq., attorney representing plaintiffs-appellants in

this matter, certify that on April 10, 2010, I filed the attached motion for

leave to file Plaintiffs’-Appellants’ Supplemental Appendix, along with the

proposed Plaintiffs’-Appellants’ Supplemental Appendix electronically with

the Clerk of the United States Third Circuit Court of Appeals and that I

served a copy of the same documents upon all other parties to this matter, by

forwarding same to their respective attorney’s e-mail by electronically filing

the documents through the Court’s CM/ECF. The attorneys to which I

forwarded these materials are set forth below. I also certify that on April 10,

2010, I will place in the United States Postal Service by Express Mail 4 hard

copies of the proposed Plaintiffs’-Appellants’ Supplemental Appendix to be

filed with the United States Court of Appeals for the Third Circuit at:

ClerkUnited States Court of AppealsFor the Third Circuit21400 US. CourthouseIndependence Mall West601 Market StreetPhiladelphia, PA 19106-1790


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2. On April 10, 2010, I will also cause 1 hard copy of proposed

Plaintiffs’-Appellants’ Supplemental Appendix to be served upon defendants

by serving the document on each of the attorneys listed below, by delivering

the document to the United States Postal Service via Federal Express at

Monroe, New Jersey, addressed to:

Eric Fleisig-Greene, Esq.U.S. Department of JusticeCivil Division, Appellate Staff950 Pennsylvania Avenue, N.W.Room 7214Washington, DC 20530-0001

3. I certify that the content of the electronic proposed Plaintiffs’-

Appellants’ Supplemental Appendix and Hard Copies thereof are identical.

4. I certify that I have caused a virus scan to be done of this

document using Norton 360.

5. Pursuant to 28 U.S.C. Sec. 1746, I certify under penalty of

perjury that the foregoing is true and correct.

Dated: April 10, 2010 s/Mario ApuzzoMario ApuzzoAttorneys for AppellantsLaw Offices of Mario Apuzzo185 Gatzmer AvenueJamesburg, NJ 08831(732) 521-1900


kerchner v obama appeal - motion for leave to file supplemental appendix filed 10 apr 2010 w/appx

Documents

united states congress

united states of america

united states senate

ankeny court

circuit court of case

trial court

district court

merits of plaintiffs