Tuesday, February 23, 2010

Court Grants Motion for Leave to File Overlength Brief in Kerchner Appeal:

CONTACT: Mario Apuzzo, Esq.
Jamesburg, New Jersey
Tel:  732-521-1900
Fax: 732-521-3906
Email: apuzzo@erols.com

Court Grants Motion for Leave to File Overlength Brief in Kerchner Appeal:

JAMESBURG, NJ – (Feb. 22, 2010) - On January 19, 2010, I filed the Appellants' Opening Brief in the appeal of Kerchner et al. v. Obama et al. which is currently pending in the Third Circuit Court of Appeals in Philadelphia. In that appeal, we maintain that the New Jersey Federal District Court erred in dismissing our case by ruling that plaintiffs do not have standing to challenge Obama's alleged eligibility to be President and Commander in Chief of the Military and that our case presents a non-justiciable political question. In our case, we have provided the Founder’s and Framers’ definition of an Article II “natural born Citizen” which is a child born in the country to citizen parents. We maintain that Obama is not an Article II “natural born Citizen” because he lacks unity of citizenship and allegiance from birth which is obtained when a child is born in the United States to a mother and father who are both United States citizens at the time of birth. Obama’s father was only a temporary visitor to the United States when Obama was born and never even became a resident let alone a citizen. Not being an Article II “natural born Citizen,” Obama is not eligible to be President and Commander in Chief.

We also maintain that Obama has failed to conclusively prove that he was born in Hawaii by publicly presenting a copy of a contemporaneous birth certificate, a long-form birth certificate providing the name of the hospital in which he was born and other corroborating data which was generated when he was born in 1961 and not simply a digital image of computer generated Certification of Live Birth [COLB] allegedly obtained from the Hawaii Department of Health in 2007 which some unknown person posted on the internet in 2008, or other contemporaneous and objective documentation. At the bottom of Obama’s Certification of Live Birth (COLB), it states: "This copy serves as prima facie evidence of the fact of birth in any court proceeding." Under the concept of prima facie evidence, the presumption that the fact exists fails when evidence contradicting that fact is presented and in such case the interested party needs to present other competent evidence to prove the existence of that alleged fact. If he fails to do so, the alleged fact is not proven, even if the opposing party produces no further evidence. There exists a considerable amount of evidence which puts serious doubt on Obama’s allegation that he was born in Hawaii. To date, Obama has presented no additional evidence other than the internet image of his Certification of Live Birth (COLB) and two unreliable newspaper announcements regarding where he was born. Hence, the prima facie validity of the Certification of Live Birth (COLB) must fail and Obama should be compelled to produce other objective, credible, and sufficient evidence of where he was born such as a contemporaneous birth certificate from 1961. Having failed to meet his constitutional burden of proof under Article II, Section 1, Clause 5, we cannot accept Obama as a “natural born Citizen.”

Circuit Court of Appeals rules provide that an appellant’s opening brief is not to exceed 14,000 words. Because of the extraordinary nature and complexity of the question of whether putative President Barack Obama is an Article II “natural born Citizen” and therefore eligible to be President, whether my clients (the plaintiffs) have standing to bring an action against Obama and Congress in which they maintain that Obama is not a “natural born Citizen” and that Congress failed to meet its constitutional duty to protect my clients by assuring them that Obama is a “natural born Citizen,” and whether plaintiffs’ action presents a nonjusticiable political question which the courts cannot address, I was compelled to file a brief which contained 20,477 words. So that the Court would accept the overlength brief, I filed a motion with the Court for leave to file the overlength brief.

By order dated February 22, 2010, the Honorable Circuit Judge Michael A. Chagares on behalf of the Motion's Panel of the Third Circuit Court of Appeals granted plaintiffs’ motion for leave to file the overlength brief. This is great news because the case will now continue forward as scheduled. Obama’s and Congress’s opposition brief was initially due on February 22, 2010. The Department of Justice obtained a 14-day extension to file that brief, making the new due date March 8, 2010. After they file their opposition brief, I will then have 14 days within which to file a reply to that brief. All briefs will be posted at this blog and it is my hope that the public will read these briefs so as to stay fully informed on this issue that is critically important not only to my clients but also to our Constitutional Republic.

Mario Apuzzo, Esq.
February 22, 2010


  1. Most Excellent News!!

    It means that the case cannot be pushed under the rug on this technicality (as many of the Flying Monkey blogs had been predicting). Of course those types hate America and continually make such predictions on any pretext at all.

    If you go to the Mario Apuzzo website and actually read the Initial Appeals Brief of Jan 19, 2010, you're in for a real eye-opener (as are the DOJ attorneys "defending" Obama using our tax money).

    That's doubly ironic since these attorneys - and their bosses - took an oath to defend the Constitution from enemies foreign AND domestic but they are now in the position of actually attacking that very document rather than defending it and are trying to get an obviously ineligible man to remain in an office he has never shown himself to be eligible to hold.

    The wonderful Apuzzo Brief is a primer on both Constitutional law, the meaning of it, the Founders' intent vis-a-vis Article II of the Constitution and a forceful put-down of the lies and misinformation put forth by the Obama Flying Monkeys such as "smrstrauss" and others.

    I’d urge everyone to read the Initial Appeals Brief from Attorney Apuzzo’s website along with the many essays by both Mario Apuzzo AND his Lead Plaintiff, Charles F. Kerchner. While there, it would really help to donate even a small amount to the publicity/education fund presently used only for full-page newspaper ads in the Washington Times National Weekly Edition.

    The Brief gives a very good overview of the original action AND it puts the lie to the many false arguments by the Obot Flying Monkeys about why BHO is either (their words) eligible to hold the office he now occupies OR that it (their words) doesn’t matter that he is not eligible. Your understanding of the relation of the U. S. Constitution to We The People will be forever enlightened.

  2. Also of great interest in an analysis of the original Federal District Court judge (Simandle) which was the cause of the Appeal now in process.

    An anonymous analysis was posted which shows how Judge Simandle himself violated the Constitution 4 times in promulgating his decision - and it is a very interesting analysis, indeed!!

    Here's the link: A Federal Judge takes 4 strikes!!!

  3. Erica,

    I just thought you might like to know that our buddy, smrstrauss, just tried to leave a comment on my blog about an hour ago under the name of "ann1" with an email address of "ann1@aol.com."

    His IP address of immediately gave him away and he was automatically deposited in my "Awaiting Moderation" queue.


  4. Thanks, Bullodg. Fact is, ann1 is actually the wife of smrstrauss. They're working from the same home, thus the same ip address. I know their real full names, their home address, when and where they were married, etc. They're working like a tag team on the blogs. Plus I think others are working with them using his tag name, but from different ips.

  5. Good sleuthing, T-Paws ... the Flying Monkeys will have to stop calling you "Blunderpaws" from now on I guess.