Kerchner V Obama, Update, October 21, 2009, Charles Kerchner, Mario Apuzzo, Judge Simandle Has Granted the DOJ Motion to Dismiss

***  Update below, October 21, 2009, 2:36 PM  ***

Just in from Charles Kerchner of Kerchner V Obama, October 21, 2009:

Wednesday, October 21, 2009

Judge Simandle Has Granted the DOJ’s Motion to Dismiss

Re. Kerchner et al vs. Obama & Congress et al lawsuit filed January 20th, 2009.

Judge Simandle Has Granted the DOJ’s Motion to Dismiss. We will appeal.

Attorney Mario Apuzzo called me a few minutes ago. Judge Simandle has granted the DOJ’s motion to dismiss. More on this later. Mario will post some initial comments in the blog but he still has to read the Judge’s decision in full. I also need to read the full decision. But we will definitely appeal.

Like in the Battle of Long Island in the Revolutionary War, we have lost a battle. But we have not lost the war. The real decision on this will ultimately be made by the U.S. Supreme Court on the real crux of this matter … which is a legal issue, i.e., the legal question of what is a Natural Born Citizen per Article II of our Constitution per original intent, and is Obama one. I say he is not. Read this as to why:

Attorney Apuzzo will comment further once he has had a chance to read the full decision.

We have lost at this initial step. But now Attorney Apuzzo can move the case up the ladder in the court system and file an appeal.

Charles F. Kerchner, Jr.
Lead Plaintiff
Kerchner v Obama & Congress

***  UPDATE  ***

21 October 2009

For additional information contact:
Attorney Mario Apuzzo
Tel:  732-521-1900
Fax:  732-521-3906

Attorney Mario Apuzzo Makes Statement Regarding Judge Simandle’s Decision to Grant the DOJ’s Motion to Dismiss the Kerchner et al v Obama & Congress et al Lawsuit.

Court Dismisses Kerchner Complaint/Petition for Lack of Standing and Political Question. The Decision Will Be Appealed.

The Hon. Jerome B. Simandle of the Federal District Court in the District of New Jersey at 10:39 a.m., on October 21, 2009, filed his long-awaited opinion dismissing the Kerchner et al. v. Obama et al. complaint/petition. In the complaint/petition, we allege that Obama has not conclusively proven that he was born in Hawaii. We also allege that even if he was so born, he is not an Article II “natural born Citizen” because his father was a British subject/citizen when Obama was born and Obama himself was born a British subject/citizen, all of which makes him ineligible to be President and Commander in Chief of the Military. We also allege that Congress violated it constitutional duty under the Twentieth Amendment to adequately investigate and confirm whether Obama is an Article II “natural born Citizen.” Judge Simandle ruled that the plaintiffs do not have Article III standing and that therefore the court does not have subject matter jurisdiction. The Court found that the plaintiffs failed to show that they suffered an “injury in fact.” It added that plaintiffs’ alleged injury is “only a generally available grievance about government” and “is one they share with all United States citizens.” Finally, it said that plaintiffs’ “motivations do not alter the nature of the injury alleged. . .”

By way of footnote, the Court said that even if the plaintiffs could show that the Court had Article III standing, they would not be able to show that the court should exercise jurisdiction because prudential standing concerns would prevent it from doing so.

Finally, the Court again in a footnote said that it cannot take jurisdiction of the issue of whether Obama is a “natural born Citizen” and whether Congress has acted constitutionally in its confirmation of Obama for President because the matter is a “political question” which needs to be resolved by Congress. The Court said that there simply is no room for judicial review of political choices made by the Electoral College and the Congress when voting for and confirming the President. The Court added that the plaintiffs’ remedy against Congress may be achieved by voting at the polls.

It is important to understand that the Court did not rule that Obama has conclusively proven that he was born in Hawaii. It is also important to understand that the Court did not rule that Obama is an Article II “natural born Citizen.” Rather, the Court dismissed the plaintiffs’ case because of jurisdiction and the political question doctrine without commenting on the underlying merits of whether Obama is constitutionally qualified to be President and Commander in Chief of the Military. The Court also did not rule that the plaintiffs’ claims are frivolous. Given the nature of the Court’s decision, the American People unfortunately still do not know whether Obama is constitutionally qualified to be President and Commander in Chief.

As promised, plaintiffs will be filing an appeal of Judge Simandle’s decision to the Third Circuit Court of Appeals located in Philadelphia, Pennsylvania.

Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg, New Jersey 08831
October 21, 2009

For an outline and summary of the Kerchner et al v Obama & Congress et al case see:

*** Later Update ***

Commander Charles F. Kerchner, U.S. Naval Reserve (Ret.) statement

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