Monday, November 4, 2013

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C.A. Rejects Challenge to President Obama’s Reelection

Justices Find Numerous Defects in Suit by ‘Birther Queen’ Orly Taitz

By KENNETH OFGANG, Staff Writer

The Fourth District Court of Appeal has rejected the latest challenge by Orange County attorney Orly Taitz to the presidency of Barack Obama.

Div. Three Thursday affirmed an order denying relief in a suit by which Taitz sought to throw out the results of last June’s California primary, including the contest for U.S. senator in which Taitz was herself a candidate. She claimed that Obama is ineligible for the presidency because he is not a natural born citizen, and that the state’s voter rolls are rife with fraud.

ORLY TAITZ

Attorney

Taitz has been dubbed “the Birther Queen,” after having been a plaintiff and/or counsel in dozens of suits challenging the president’s election and reelection, in part on the basis of claims that Obama was born in Kenya. She has referred to the long-form birth certificate released by the White House as “very inventive computer art.”

In a 2011 appearance before the Ninth U.S. Circuit Court of Appeals, she accused the president of employing “mass hysteria in the media” in order to deceive the American people into believing he was actually born here.

On Friday, Court of Appeal Justice Raymond Ikola, in an unpublished opinion, said her latest challenge fails because she filed it too late, failed to properly serve the defendants, didn’t exhaust pre-election remedies, filed in the wrong county, and did not present a proper record on appeal.

The panel also upheld a $4,000 discovery sanction order in favor of Occidental College, a nonparty from which Taitz attempted to subpoena records. Obama attended Occidental from 1979 to 1981, and Taitz claims it has records that would prove the president is not a citizen.

Taitz, after losing a bid to become secretary of state in 2010, ran for the Senate last year, was one of 23 candidates in the all-party, “top-two” primary. Sen. Dianne Feinstein finished first, with 49.5 percent, to 12.7 percent for autism activist Elizabeth Emcken, who is now running for a Sacramento-area U.S. House seat.

Taitz finished fifth, with 3.2 percent. In July of last year, she sued to block certification of the vote results, including all votes for Obama, and named Feinstein, Obama, and Emcken as defendants. After she moved for default, Orange Superior Court Judge Charles Margines denied the motion and dismissed the action on multiple grounds, including lack of proper service, laches, and lack of jurisdiction over the subject matter.

Ikola agreed with Margines that there were numerous defects to the action, “the most fundamental” of which was that Elections Code Sec. 16421 gives the Sacramento Superior Court exclusive jurisdiction to hear a challenge to a primary election for “an office for which candidates are certified for the ballot by the Secretary of State.” Both president and U.S. senator are among those offices, the justice noted.

Ikola rejected the argument that the trial judge should have transferred the action to Sacramento instead of dismissing it. The statute Taitz cited, Code of Civil Procedure Sec. 396, only applies to matters within the jurisdiction of an appellate court, not another trial court, the jurist explained.

He went on to note that a primary election contest must be filed within five days of the completion of the canvass or of a “postcanvass risk-limiting audit,” that the clerk’s office must notify the presiding judge of the filing within five days of the deadline, and that a hearing must be set for 10 to 20 days after that.

Had Taitz filed in the correct county, Ikola explained, the presiding judge would have set a hearing for no later than Aug. 13. Because Taitz made no effort to obtain a hearing by that date, and because the Orange Superior Court could not have been expected to set a hearing date sua sponte on a case it had no jurisdiction to hear, Taitz “forfeited her challenge to the primary election.”

Besides, the justice said, by the time the case was dismissed, the general election had already occurred. “It was far too late for any further challenge to the primary election….,” he commented.

Ikola also noted Taitz did not appeal until more than three weeks after the case was dismissed, and that Elections Code Sec. 16920 sets a 10-day time limit for appeals in election contests.

As for the sanctions, the justice said, Taitz’s failure to include the motion, the subpoena, or the reporter’s transcript in the appellate record is a sufficient basis for affirmance. Besides, Ikola noted, the trial judge did not base his ruling solely on the privacy issue argued in the plaintiff’s brief, but also on other grounds—including the timeliness of the subpoena, the inadequacy of service by email, and the fact that Taitz wrongly attempted to enforce the subpoena by ex parte motion—that Taitz failed to address.

The case is Taitz v. Obama, G047746.