Metropolitan News-Enterprise


Thursday, February 3, 2011


Page 3


Supreme Court Rejects ‘Birther’ Challenge to Obama’s Election


By a MetNews Staff Writer


The California Supreme Court yesterday declined to hear a challenge to Barack Obama’s election as president.

The justices, at their weekly conference in San Francisco, voted 6-0 not to review an October ruling by the the Third District Court of Appeal. That court threw out a lawsuit by so-called “birthers” who claim that Obama is not a natural born citizen and is ineligible to hold office.

The court ruled that California law does not impose a ministerial duty on the secretary of state or members of the Electoral College to verify a presidential candidate’s eligibility.

Retired Presiding Justice Arthur G. Scotland, sitting by assignment, said it is up to the political parties and Congress, which must canvass the electoral votes of the several states in December of every presidential election year, to determine the qualifications of the candidates.

A judge in Sacramento previously rejected arguments by conservative activists Alan Keyes, Wiley S. Drake Sr. and Markham Robinson that there was “a triable issue of material fact as to which branch of government, and what office within that branch, has the duty to ensure that all candidates on a California ballot meet the eligibility requirements to hold office.”

Former Diplomat

Keyes is a former diplomat and perennial candidate who was joined on the ticket in 2008 in his third-party bid for the presidency by Drake, a Southern Baptist minister from Buena Park who has drawn controversy for openly praying for Obama’s death. Robinson is a Vacaville software firm owner who has been involved in conservative third party politics for a number of years.

The three sued Obama, Vice President Joe Biden, California’s 55 presidential electors and Secretary of State Debra Bowen days after Obama’s election in November 2008. They sought to bar Bowen from certifying the names of the electors until Obama produced documentary proof that he was qualified to serve as president, and to impose a similar requirement in future elections.

The defendants demurred, arguing that there was no duty by candidates to provide or by the secretary of state to demand detailed proof of qualifications. They also argued that federal law governed the issue, and that any objection to a candidate’s qualifications needed to be lodged before Congress.

Sacramento Superior Court Judge Michael P. Kenny sustained the demurrers, and he found no duty on the part of the electors, except to meet and cast their votes for their party’s nominee in the manner required by the Constitution. He determined that the case was moot with respect to the 2008 election because the Electoral College had voted and Obama had been inaugurated, and that it was unripe as to future elections because it dealt with hypothetical and speculative future events.

Proper Procedure

Kenny also opined that the appropriate procedure to challenge a candidate’s qualifications was before Congress, which meets in December following a presidential election to canvass the vote of the electors from the various states. The judge commented that the plaintiffs’ “belief in the importance of their arguments is not sufficient to confer jurisdiction upon this Court.”

On appeal, Scotland agreed, explaining:

“[T]he presidential nominating process is not subject to each of the 50 states’ election officials independently deciding whether a presidential nominee is qualified, as this could lead to chaotic results. Were the courts of 50 states at liberty to issue injunctions restricting certification of duly-elected presidential electors, the result could be conflicting rulings and delayed transition of power in derogation of statutory and constitutional deadlines.”

In other conference action, the justices:

•Charles Elmore, a diagnosed schizophrenic who stabbed a woman to death at a bus stop in 2007 and was convicted of first degree murder, was entitled to jury instructions concerning the effects of hallucinations on the elements of premeditation and deliberation. Div. Seven of this district’s Court of Appeal answered that question in the affirmative and reversed in an unpublished opinion by Justice Laurie Zelon.

The case is People v. Elmore, B216917.

•Accepted Mitchell Roth’s resignation from the State Bar, with charges pending. Roth, a former San Fernando Valley lawyer who ran for the Los Angeles Superior Court in 2004, had his practice assumed by the State Bar in February 2009, about a month after being hospitalized for severe depression.

The state attorney general last year obtained a $1.1 million stipulated judgment against Roth in a suit charging him with defrauding 2,000 homeowners who hired him to protect their homes from foreclosure.

Ordered the disbarment of Northern California attorney Henry J. Koehler.

Koehler joined the State Bar in 1972, but the State Bar Court recommended his disbarment in disciplinary proceedings over his representation in a custody battle.

According to the State Bar, he was privately reproved in 1976 for failing to timely perform legal services, and suspended in 1992 for failure to perform legal services in a time-sensitive matter and improper handling of trust accounts. Koehler was also suspended in 1999 after a State Bar Court hearing judge found he improperly withdrew from representation of a client in a family law matter, but exonerated him of charges of practicing law while suspended.


Copyright 2011, Metropolitan News Company