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Montgomery Blair Sibley v. Barack Hussein Obama

June 6, 2012

MONTGOMERY BLAIR SIBLEY,
PLAINTIFF,
v.
BARACK HUSSEIN OBAMA, II, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiff is a United States citizen who has filed with the District of Columbia Board of Elections and Ethics to qualify as a write-in candidate for the office of United States President. Plaintiff asserts so-called "birther" claims against President Barack Obama, aiming to have him ousted from office and to have his name removed from the ballot in November 2012 because he supposedly was not born in the United States. Plaintiff also sues Attorney General Eric Holder and United States Attorney for the District of Columbia Ronald Machen. Finally, plaintiff sues the United States Department of Justice, its sub-agency the United States Marshals Service, and two "John Doe" marshals who once escorted him around the federal courthouse in Washington, DC. Plaintiff claims these marshals chilled his rights to access court and petition the government, retaliated against him, and used excessive force.

Now before the Court are miscellaneous motions filed by plaintiff, as well as a motion to dismiss filed by defendants. In addition to seeking to oust President Obama from office and to bar him from the ballot, plaintiff has also petitioned for two writs of mandamus: the first requiring that Attorney General Holder and U.S. Attorney Machen answer his quo warrantor request, and the second requiring that the grand jury be informed that President Obama may have committed wire fraud in disseminating his allegedly falsified birth certificate. Plaintiff seeks a declaratory judgment that 18 U.S.C. § 1504 and Rule 6 of the Federal Rules of Criminal Procedure are unconstitutional, so that he can write directly to sitting grand jurors about Obama's alleged federal crime. Plaintiff also moves to be granted a CM/ECF password and the opportunity for pre-service discovery to identify the unnamed deputy marshals, and requests to present his case by oral argument. Finally, plaintiff seeks damages against the Department of Justice and its agents -- the U.S. Marshals Service and the two deputies -- for their alleged violations of his rights.

For the reasons described below, the Court will deny plaintiff's motions. The Court will also grant defendants' motion to dismiss with respect to each of plaintiff's myriad unmeritorious claims. As Chief Judge Lamberth recently stated with respect to a similar suit, "[t]his Court is not willing to go tilting at windmills." Taitz v. Obama, 707 F. Supp. 2d 1, 3 (2011).

I. Petition for Writs Quo Warrantor

Plaintiff has filed a petition for writs "quo warrantor" to remove President Obama from his current office and, also or alternatively, to bar him from running for the office of president again in the upcoming November election. Quo warrantor is a "common-law writ used to inquire into the authority by which a public office is held." Black's Law Dictionary 1371 (9th ed. 2009). Plaintiff claims President Obama is not qualified to serve as president, now or in the future, because he is not a "natural born Citizen" of the United States per Article II, § 1 of the Constitution. That assertion is based mainly on alleged indications of fraud in the Certificates of Live Birth that President Obama released publicly to prove he was born in Hawaii. See Pl. Pet., Ex. F (Jan. 31, 2012) [Docket Entry 5].

Before this Court may evaluate the merits of his claims, plaintiff must demonstrate that he has the requisite standing to bring this lawsuit, and that the Court may grant the relief he seeks. Federal courts have jurisdiction over a case or controversy under Article III of the U.S. Constitution only if the plaintiff has standing to sue. Kerchner v. Obama, 612 F.3d 204, 207 (3d Cir. 2010) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)). Standing under Article III requires: (1) violation of a legally protected interest that is personal to the plaintiff and actual or imminent, not conjectural or hypothetical; (2) a causal relation between the injury and the defendant's challenged conduct; and (3) likelihood that a decision for the plaintiff will compensate for the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). A generalized interest of all citizens in constitutional governance does not suffice to confer standing on one such citizen. Drake v. Obama, 664 F.3d 774, 779 (9th Cir. 2011) (citing Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 217 (1974)). To establish standing in a case, the plaintiff must show that he has a "personal stake" in the alleged dispute, and that the injury is "particularized" as to him. Raines v. Byrd, 521 U.S. 811, 819 (1997).

Plaintiff lacks standing to challenge President Obama's current tenure in office, just as others who have made similar claims contesting President Obama's eligibility for the presidency were found to lack standing. The injury plaintiff asserts is not particular to him. See Kerchner, 612 F.3d at 207 (citing Berg v. Obama, 586 F.3d 234, 238-39 (3d Cir. 2009)).

Self-declaration as a write-in candidate in the upcoming presidential election does not enable plaintiff to challenge President Obama's present position. See Pl.'s Pet., Ex. A (Jan. 31, 2012) [Docket Entry 5]. A public official's title to office is an injury particularized to an individual only if that individual has "an interest in the office itself" -- if he or she sought the office at the same time as the current officeholder. Newman v. United States ex rel. Frizzell, 238 U.S. 537, 550 (1915). Since Sibley was not a candidate in the 2008 presidential election, the injury he faces from President Obama's current tenure in office is generalized. It "seek[s] relief that no more directly and tangibly benefits him than it does the public at large [, so] does not state an Article III case or controversy." Lujan, 504 U.S. at 573-74. The Court will dismiss plaintiff's claim for lack of standing, because "the defect of standing is a defect in subject matter jurisdiction." Fed. R. Civ. P. 12(b)(1); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987).

Furthermore, as a matter of statute, plaintiff is not entitled to institute a quo warrantor proceeding himself. Under Chapter 16, § 3503 of the District of Columbia Code, an "interested person" may institute such a proceeding only if the Attorney General and the United States Attorney for the District of Columbia refuse to institute one on his request. Plaintiff submitted a request to Holder and Machen for them to begin a quo warrantor action in November 2011, but he has not received an answer from them. Plaintiff has cited no law to support his assertion that a lack of response in this context should be considered a refusal. Since the refusal condition of D.C. Code § 16-3503 has not been met, plaintiff's quo warrantor petition is not ripe.

Second, the scope of D.C. Code § 16-3503 has been interpreted narrowly by the D.C. Circuit, which has concluded that onlythe Attorney General or the United States Attorney has standing to bring a quo warrantor action challenging a public official's right to hold office. See Taitz, 707 F. Supp. 2d at 3 (citing Andrade v. Lauer, 729 F.2d 1475, 1498 (D.C. Cir. 1984)). This Court is bound by the D.C. Circuit's decisions, which are based on the notion that challenges to a public official's authority concern a right of the entire public that only a public representative can protect. See Taitz, 707 F. Supp. 2d at 3 (citing United States v. Carmody, 148 F.2d 684, 685 (D.C. Cir. 1945)). Therefore, this Court cannot grant plaintiff a writ of quo warrantor to challenge President Obama's current presidency.

The 9th and 10th Amendments also do not entitle plaintiff to bring such a claim against a president in federal court. See Smith v. Anderson, 2009 U.S. Dist. LEXIS 108220, at *6 (D. Col. 2009). The separation of powers doctrine expressed in the Constitution places the duty to select and remove the President not with individual citizens, but rather with the Electoral College and with the Congress, respectively. See U.S. Const. art. II, §§ 1, 4; id. amend. XII. The judiciary is not empowered to implement or review such actions, as has been noted in prior opinions responding to the same challenge. See Kerchner, 612 F.3d at 208; Barnett v. Obama, 2009 U.S. Dist. LEXIS 101206, at *40, *48 (C.D. Cal. 2009).

Plaintiff also seeks a writ of quo warrantor preventing President Obama from appearing on the 2012 ballot. Yet quo warrantor is not a valid mechanism for challenging candidacy in an upcoming election. Courts have permitted the writ of quo warrantor to be used to challenge only current tenures in office, lest a suit arise -- contrary to the doctrine of standing -- from a future potential injury rather than a real, imminent one. Broyles v. Commonwealth, 309 Ky. 837, 839 (1949) ("[W]hen a quo warrantor proceeding is commenced . [t]he term must have begun and the defendant have assumed, usurped or taken possession of the office.") The statutory authority for the writ also limits its scope to challenges regarding a current officeholder. A quo warrantor writ may only be issued "against a person who within the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the U.S. or a public office of the U.S." D.C. Code § 16-3501 (emphasis added).

Hence, the Court will deny plaintiff's petition for writs quo warrantor, as it has no jurisdiction to evaluate the merits of plaintiff's claim regarding President Obama's eligibility ...


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