Legal Commentary

During election season, I wrote about the various attempts to get a federal court to declare Barack Obama ineligible for the presidency because he is not a natural-born citizen, all of which were speedily rejected on standing and/or political question grounds. Heading the charge was a lawyer in Pennsylvania named Philip Berg, who was the named plaintiff in an unsuccessful action in the Eastern District of Pennsylvania that drew a lengthy, careful opinion denying standing. It seems that Berg, along with an Arizona attorney named Lawrence Joyce, have been behind the scenes for other, similarly unsuccessful claims.

One question at the time was how anyone could have standing, given the undifferentiated interests at stake--my argument was no one would have standing. Guess I was wrong.

In a decision last week, Judge Robertson of the District of the District of Columbia held that Gregory Hollister did have standing. Hollister is a former Air Force officer who claims that, because he could be called back to active duty and because he owes a duty of fealty to the Commander-in-Chief, he needs to be certain that Obama is a properly eligible President whose orders must be obeyed. Hollister asked the court to treat this as an interpleader action (an action in which a stakeholder facing multiple competing claims deposits the stake with the court for resolution of the competing claims). The argument was that Hollister's potential military duties to obey orders were a valuable res that could be "deposited" with the court for a determination as to where (or with whom) those duties lay.

The court found that it had jurisdiction, under both the diversity and interpleader jurisdictional grants. And the court addressed neither standing (I still believe there is a decent argument about undifferentiated interests) or political question doctrine (I am trying to figure out what relief the court possibly could have granted that would not have stepped on the congressional toes that certified Obama as the Electoral College winner). Didn't matter, because the court rejected the interpleader claim as "frivolous," stating that all the cases the plaintiff cited involved money or property and no court ever had allowed a "duty" to be treated as an interpleader res.

Three things I liked about the decision. First, although the court found the claim frivolous, it nonetheless found jurisdiction and rejected the claim on the merits, rather than (as too many courts do) holding that frivolousness deprived the court of jurisdiction.

Second, the court issued an order requiring attorney-of-record John D. Hemenway to show cause why he should not be sanctioned under Rule 11 for filing a claim for an improper purpose and for filing a claim not warranted by existing law. Although I generally am not a big fan of Rule 11 sanctioning activity, especially against civil rights and constitutional plaintiffs, at some point courts need to try to deter politically-motivated-but-obviously-legally-defective lawsuits such as this one. I was surprised not to see a move for sanctions against Berg in his initial suit, given that the lack of standing should have been obvious to anyone who has taken Fed Courts. Maybe this will put an end to this nonsense (at least until 2012).

Third, it is notable that the court aimed its sanctions at the Hemenway (a member of the D.D.C. bar), but not at Berg or Joyce. Although both are lawyers and both signed filings in the case, neither was admitted pro hac vice. The court said that "[t]hey are agents provocateurs ?- and any attempt to sanction them for misuse of the public and private resources that have had to be devoted to this case would only give them a forum to continue their provocation." In contrast, the court went after the attorney they needed to get into court, thus (hopefully) deterring members of the Bar who would like to keep their reputations from taking on cases such as this. We only can hope.