The Commentary

US SUPREME COURT TAKES EXTRAORDINARY ACTION IN NJ CITIZEN SUIT CHALLENGING ‘08 PRESIDENTIAL ELECTION

US SUPREME COURT TAKES EXTRAORDINARY EXPEDITED ACTION IN FAST TRACKING NJ CITIZEN SUIT CHALLENGING ‘08 PRESIDENTIAL ELECTION.

I am awaiting clarification from the Clerk’s office at the United States Supreme Court as to whether my stay application has now been accepted in lieu of a more formal full petition for certiorari (and/or mandamus or prohibition). Such a transformation is a rare and significant emergency procedure. It was used in Bush v. Gore, a case I have relied on in my brief.

We do know the case has certainly been “DISTRIBUTED for Conference“, a process usually reserved for full petitions of certiorari. Stays are usually dealt with in a different manner. As to a stay application, a single Justice may; a) deny the stay; b) grant the stay; c) refer the stay to the full Court.

My stay application was originally denied by Justice Souter. So, under Rule 22.4, I renewed it to Justice Thomas who did not deny it. The sparse reporting on this issue I have seen today has failed to stress how unique such a situation is to Supreme Court practice. The vast majority of stay applications are denied. And once denied, a renewed application is truly a desperate measure the success of which heralds one of the rarest birds in Supreme Court history.

The relief I requested, a stay of the national election and a finding that candidates Obama, McCain and Calero be held ineligible to hold the office of President, has also not been granted at this time. So that leaves option “c)”: Justice Thomas has referred the case to the full court. That much is clear from looking at the docket.

What isn’t clear is whether the full court has already examined the referral and taken the extraordinary action of accepting the stay application as if it were a full petition for writ of certiorari which was done in Bush v. Gore, 531 U.S. 98 at 98 (2000):

“The court ordered all manual recounts to begin at once. Governor Bush and Richard Cheney, Republican Candidates for the Presidency and Vice Presidency, filed an emergency application for a stay of this mandate. On December 9, we granted the application, treated the application as a petition for a writ of certiorari, and granted certiorari.” (Emphasis added.)

It’s not clear that SCOTUS precedent would allow a stay application to be “DISTRIBUTED for Conference” without it first having been transformed by the court into a full petition. I don’t know if such a transformation could be sanctioned by Justice Thomas by himself. Again, I’m waiting for an official disposition notice from the Clerk’s office. Regardless, either the full court has set this for Conference, or Justice Thomas has done it on his own. Either way, it signifies an affirmative action inside the US Supreme Court testifying to the serious issues raised by this law suit.

Rather than explain the intense pre-requisites pertaining to a stay surviving denial, I’ve uploaded the following page from SUPREME COURT PRACTICE, 8th Edition, the ultimate SCOTUS resource:

US SUPREME COURT SCHEDULES FULL CONFERENCE TO DISCUSS NJ CITIZEN SUIT CHALLENGING OBAMA ELIGIBILITY

THE UNITED STATES SUPREME COURT HAS SCHEDULED - FOR FULL CONFERENCE - LEO DONOFRIO’S NJ CITIZEN SUIT CHALLENGING THE ELIGIBILITY OF MULTIPLE 2008 PRESIDENTIAL ELECTION CANDIDATES, INCLUDING BARACK OBAMA.

[UPDATE]:Leo C. Donofrio will be doing two radio interviews tonight. Those will be the last contact he has with the press until after the case is finally resolved by the US Supreme Court. Thanks to all for the support.

At 9:00 PM EST, Leo will do a brief radio interview with Bob Vernon for Honest American News. Please visit the Plains Radio Network for an archive of previous interviews with Leo.

At 10:00 PM EST, Leo will be interviewed on Overnight AM with Lan Lampher e where you can hear a rebroadcast of Leo’s two hour interview from Nov. 18.

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Today, the United States Supreme Court scheduled the case - Leo C. Donofrio v. Nina Mitchell Wells, Secretary of State of the State of New Jersey - US Supreme Court Docket No. 08A407 - for a conference of the nine Justices.

If four of the nine Justices vote to hear the case in full review, oral argument may be ordered. The conference is scheduled for December 5, 2008, ten days before the meeting of the Electoral College.

The case originally sought, pre-election, to have the names of Barack Obama, John McCain, and Roger Calero removed from New Jersey ballots, and for a stay of the “national election” pending Supreme Court review of whether those candidates were eligible under the Constitution as natural born Citizens, as is required by Article 2, Section 1, Clause 5 of the Constitution of the United States.

Leo Donofrio brought his case from a lower New Jersey court to the NJ Supreme Court - was denied - and then he filed an emergency stay application in the United States Supreme Court on Nov. 3, 2008, before the Honorable Associate Justice David Souter. Justice Souter denied the emergency stay application on Nov. 6.

Leo Donofrio renewed the application, as per Supreme Court Rule 22.4, to the Honorable Associate Justice Clarence Thomas by way of Express mail on Nov. 14. The application arrived at the Supreme Court on Nov. 17 and was submitted directly to Justice Thomas.

On Nov. 19, the case was docketed for full conference of all nine Justices and scheduled for December 5, 2008. It is not known at this time the exact details of how the case came to be “DISTRIBUTED for Conference”.

Background on “The Justices Conference” is discussed as follows by the Supreme Court Historical Society:

“No outsider enters the room during conference. The junior Associate Justice acts as “doorkeeper,” sending for reference material, for instance, and receiving it at the door…

Five minutes before conference time, 9:30 or 10 a.m., the Justices are summoned. They exchange ritual handshakes and settle down at the long table. The Chief sits at the east end; the other Justices sit at places they have chosen in order of their seniority…

The Chief Justice opens the discussion, summarizing each case. The senior Associate Justice speaks next, and comment passes down the line. To be accepted for review, a case needs only four votes, fewer than the majority required for a decision on the case itself. Counsel for the litigants are directed to submit their printed briefs so that each Justice has a set several weeks before argument.

This blog will be updated as details emerge. Below is a screen-shot of the docket entry:

No. 08A407

Title:

Leo C. Donofrio, Applicant

Nina Mitchell Wells, New Jersey Secretary of State

Docketed:

Lower Ct:

Supreme Court of New Jersey

Case Nos.:

(AM-0153-08T2 at the New Jersey Appellate Division without a docket number)

~~~Date~~~	~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Nov 3 2008	Application (08A407) for stay pending the filing and disposition of a petition for a writ of certiorari, submitted to Justice Souter.
Nov 6 2008	Application (08A407) denied by Justice Souter.
Nov 14 2008	Application (08A407) refiled and submitted to Justice Thomas.
Nov 19 2008	DISTRIBUTED for Conference of December 5, 2008.

~~Name~~~~~~~~~~~~~~~~~~~~~	~~~~~~~Address~~~~~~~~~~~~~~~~~~	~~Phone~~~
Attorneys for Petitioner:
Leo C. Donofrio	P.O. Box 93
	East Brunswick, NJ 08816
Party name: Leo C. Donofrio

http://origin.www.supremecourtus.gov/docket/08a407.htm

CHALLENGE TO 08′ ELECTION - SCOTUS DOCKET UPDATED BY RENEWED STAY APPLICATION TO JUSTICE THOMAS

NJ CITIZEN LAW SUIT CHALLENGING 08′ ELECTION - SCOTUS DOCKET SHOWS RENEWED STAY APPLICATION SUBMITTED TO JUSTICE THOMAS ON NOVEMBER 14, 2008

[UPDATE: 6:32 PM Leo Donofrio will be interviewed on Plains Radio at 8:00 PM est.]

[UPDATE: 3:08 PM Leo Donofrio will be interviewed on Lan Lamphere's Overnight AM radio program at 10:15 EST tonight. Click this link for a direct stream to the program.]

Applicant, Leo C. Donofrio, submitted a renewed application for emergency stay of the ‘08 national election to The Honorable Associate Justice Clarence Thomas on Nov. 14, 2008 by US Postal Express Mail which was delivered at 7:46 AM, Nov. 17, 2008.

The renewed application hit the US Supreme Court on-line docket search engine sometime between noon and 2:15 PM today, Nov. 18, 2008. Below is a copy of the docket:

_________________________________________________________________

No. 08A407

Title:

Leo C. Donofrio, Applicant

Nina Mitchell Wells, New Jersey Secretary of State

Docketed:

Lower Ct:

Supreme Court of New Jersey

Case Nos.:

(AM-0153-08T2 at the New Jersey Appellate Division without a docket number)

~~~Date~~~	~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Nov 3 2008	Application (08A407) for stay pending the filing and disposition of a petition for a writ of certiorari, submitted to Justice Souter.
Nov 6 2008	Application (08A407) denied by Justice Souter.
Nov 14 2008	Application (08A407) refiled and submitted to Justice Thomas.

~~Name~~~~~~~~~~~~~~~~~~~~~	~~~~~~~Address~~~~~~~~~~~~~~~~~~	~~Phone~~~
Attorneys for Petitioner:
Leo C. Donofrio	P.O. Box 93
	East Brunswick, NJ 08816
Party name: Leo C. Donofrio

NJ CITIZEN RENEWS EMERGENCY STAY APPLICATION CHALLENGING 08 ELECTION TO JUSTICE THOMAS

***LEO DONOFRIO OFFICIALLY RENEWS EMERGENCY STAY APPLICATION CHALLENGING 2008 ELECTION - EMERGENCY STAY APPLICATION RENEWED TO JUSTICE CLARENCE THOMAS - SUBMITTED AT 7:46 AM, NOV. 17, 2008***

[UPDATE: Upcoming Radio interviews with Leo Donofrio:

Leo Donofrio will be interviewed on Plains Radio tonight at 9:00 PM EST.

Leo Donofrio will be interviewed on the Alan Stang program, Nov. 18 at 8:00 AM EST.]

On Friday Nov. 14, 2008, Leo C. Donofrio sent, by US Postal Express Mail, a letter, as required by Supreme Court Rule 22.4, to the Clerk of the United States Supreme Court - William K. Suter - requesting his Emergency Stay Application as to the national election by renewed to the Honorable Associate Justice Clarence Thomas by right of law, specifically Supreme Court Rule 22.4 .

As of 1:17 PM the renewed application has not been updated to the US Supreme Court automated Docket.

According to Supreme Court Rule 22.1, the Clerk is demanded to “transmit it promptly” to the Justice it is addressed to. Please recall that on Nov. 3rd, Leo Donofrio originally submitted this same emergency stay application to the US Supreme Court. Despite the stay clerk - Mr. Danny Bickell - having assured Leo Donofrio that the application would be given to the Honorable Associate Justice David Souter that night, it was not transmitted promptly. In fact, it was not transmitted at all after Mr. Bickell, having made an illegal and improper substantive judgment of law, thereby denied the application on his own volition.

The emergency stay application was eventually submitted to the Honorable Associate Justice David Souter, four days late, on November 6, after Mr. Bickell was forced to concede that his denial had been improper.

The emergency stay application, having been brought to the US Supreme Court from a denial of the New Jersey Supreme Court, was required by Supreme Court Rule 22.3 to be submitted to Justice Souter as he is the Justice assigned to the Third Circuit which includes New Jersey. The application was denied by Justice Souter on Nov. 6, and such denial therefore triggered Leo Donofrio’s legal right, under Rule 22.4 to renew the emergency stay application to “any other Justice.” Mr. Donofrio has chosen to renew the application to the Honorable Associate Justice Clarence Thomas.

Hopefully, this time, the emergency stay application will be promptly transmitted to the Honorable Associate Justice Clarence Thomas.

The renewed application was delivered to the US Supreme Court Clerk’s office at exactly 7:46 AM by US Postal Express Mail. (Click link for US Postal proof of delivery.)

OBAMA ADMITS HE WAS BRITISH CITIZEN AT BIRTH - AS SUCH OBAMA IS NOT A NATURAL BORN CITIZEN OF US

OBAMA ADMITS HE WAS A BRITISH CITIZEN “AT BIRTH” - AS SUCH, OBAMA IS NOT A NATURAL BORN CITIZEN OF THE UNITED STATES AND NEITHER WERE THE FRAMERS OF THE CONSTITUTION, HENCE THE GRANDFATHER CLAUSE IN ARTICLE 2. SECTION 1, CLAUSE 5 OF THE US CONSTITUTION

[UPDATE: 10:15 Audio file of Radio interview with Leo Donofrio on Thursday Nov. 13 ...on Plains Radio.]

[UPDATE: 3:39 PM.

(This blog post below contains the single most controlling legal precedent establishing Senator Barack Obama's ineligibility to be President under the Constitution. So I am leaving this blog post at the top of the blog for the next few days. Please study its simple premise.)

Don't be distracted by the birth certificate and Indonesia issues. They are irrelevant to Senator Obama's ineligibility to be President. Since Barack Obama's father was a Citizen of Kenya and therefore subject to the jurisdiction of the United Kingdom at the time of Senator Obama's birth, then Senator Obama was a British Citizen "at birth", just like the Framers of the Constitution, and therefore, even if he were to produce an original birth certificate proving he were born on US soil, he still wouldn't be eligible to be President.

The Framers of the Constitution, at the time of their birth, were also British Citizens and that's why the Framers declared that, while they were Citizens of the United States, they themselves were not "natural born Citizens". Hence their inclusion of the grandfather clause in Article 2, Section 1, Clause 5 of the Constitution:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution shall be eligible to the Office of President;

That's it right there. (Emphasis added.)

The Framers wanted to make themselves eligible to be President, but they didn't want future generations to be Governed by a Commander In Chief who had split loyalty to another Country. The Framers were comfortable making an exception for themselves. They did, after all, create the Constitution. But they were not comfortable with the possibility of future generations of Presidents being born under the jurisdiction of Foreign Powers, especially Great Britain and its monarchy, who the Framers and Colonists fought so hard in the American Revolution to be free of.

The Framers declared themselvesnot eligible to be President as "natural born Citizens", so they wrote the grandfather clause in for the limited exception of allowing themselves to be eligible to the Presidency in the early formative years of our infant nation.

But nobody alive today can claim eligibility to be President under the grandfather clause since nobody alive today was a citizen of the US at the time the Constitution was adopted.

The Framers distinguished between "natural born Citizens" and all other "Citizens". And that's why it's important to note the 14th Amendment only confers the title of "Citizen", not "natural born Citizen". The Framers were Citizens, but they weren't natural born Citizens. They put the stigma of not being natural born Citizens on themselves in the Constitution and they are the ones who wrote the Document.

Since the the Framers didn't consider themselves to have been "natural born Citizens" due to their having been subject to British jurisdiction at their birth, then Senator Obama, having also been subject to British jurisdiction at the time of his birth, also cannot be considered a "natural born Citizen" of the United States.]

__________________________________________________________

Barack Obama’s official web site, Fight The Smears, admits he was a British Citizen at birth. At the very bottom of the section of his web site that shows an alleged official Certification Of Live Birth, the web site lists the following information and link thereto:

FactCheck.org Clarifies Barack’s Citizenship

“When Barack Obama Jr. was born on Aug. 4,1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.‘s children.

Since Sen. Obama has neither renounced his U.S. citizenship nor sworn an oath of allegiance to Kenya, his Kenyan citizenship automatically expired on Aug. 4,1982.”

That is a direct admission Barack Obama was a British citizen “at birth”.

My law suit argues that since Obama had dual citizenship “at birth” and therefore split loyalties “at birth”, he is not a “natural born citizen” of the United States. A “natural born citizen” would have no other jurisdiction over him “at birth” other than that of the United States. The Framers chose the words “natural born” and those words cannot be ignored. The status referred to in Article 2, Section 1, “natural born citizen”, pertains to the status of the person’s citizenship “at birth”.

The other numerous law suits circling Obama to question his eligibility fail to hit the mark on this issue. Since Obama was, “at birth”, a British citizen, it is completely irrelevant, as to the issue of Constitutional “natural born citizen” status, whether Obama was born in Hawaii or abroad. Either way, he is not eligible to be President. Should Obama produce an original birth certificate showing he was born in Hawaii, it will not change the fact that Obama was a British citizen “at birth”.

Obama has admitted to being a British subject “at birth”. And as will be made perfectly clear below, his being subject to British jurisdiction “at birth” bars him from being eligible to be President of the United States.

As I have argued before the United States Supreme Court, the 14th Amendment does not confer “natural born citizen” status anywhere in its text. It simply states that a person born in the United States is a “Citizen”, and only if he is “subject to the jurisdiction” of the United States.

Article 2, Section 1, Clause 5 of the Constitution of the United States:

“No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.”

The most overlooked words in that section are: “...or a Citizen of the United States, at the time of the Adoption of this Constitution…” You must recall that most, if not all, of the framers of the Constitution were, at birth, born as British subjects.

Stop and think about that.

The chosen wording of the Framers here makes it clear that they had drawn a distinction between themselves - persons born subject to British jurisdiction - and “natural born citizens” who would not be born subject to British jurisdiction or any other jurisdiction other than the United States. And so the Framers grandfathered themselves into the Constitution as being eligible to be President. But the grandfather clause only pertains to any person who was a Citizen… at the time of the Adoption of this Constitution. Obama was definitely not a Citizen at the time of the adoption of the Constitution and so he is not grandfathered in.

And so, for Obama or anybody else to be eligible to be President, they must be a “natural born citizen” of the United States “at birth”. It should be obvious that the Framers intended to deny the Presidency to anybody who was a British subject “at birth”. If this had not been their intention, then they would not have needed to include a grandfather clause which allowed the Framers themselves to be President.

If you click through to Factcheck.org, a more detailed discussion as to why Obama was a British citizen at birth explains the relevant statutes:

“When Barack Obama Jr. was born on Aug. 4,1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.’s children:

British Nationality Act of 1948 (Part II, Section 5): Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of the birth.

In other words, at the time of his birth, Barack Obama Jr. was both a U.S. citizen (by virtue of being born in Hawaii) and a citizen of the United Kingdom and Colonies (or the UKC) by virtue of being born to a father who was a citizen of the UKC.’ “

The article goes on to state that Obama’s British citizenship was transferred to Kenya as Kenya became independent from the UK and that Obama’s Kenyan citizenship expired when he turned 21 years old. But none of that is relevant since the Constitution requires that every President be a “natural born citizen”. The word “born” is proof positive that the status must be present “at birth”. If this were not the case, then, as stated above, the Framers would not have needed to put in a grandfather clause.

The Framers recognized that even they were not “natural born citizens” and so they wrote the grandfather clause in to allow any of them to become President. But the grandfather clause only pertains to those who were Citizens at the time of the Constitution’s adoption. And so, Barack Obama is not a “natural born citizen” of the United States and neither is John McCain who was born in Panama, and neither is Roger Calero who was born in Nicaragua.

NJ CITIZEN TO RENEW APPLICATION FOR EMERGENCY STAY OF ‘08 NATIONAL ELECTION ON MON. NOV. 17 - LETTER

LEO C. DONOFRIO WILL RENEW HIS APPLICATION FOR AN EMERGENCY STAY OF THE 2008 NATIONAL ELECTION ON MONDAY, NOV. 17 BY WAY OF SUPREME COURT RULE 22.4 - LETTER TO WILLIAM K. SUTER, CLERK OF THE US SUPREME COURT.

[Today, Leo C. Donofrio paid $186 to the New Jersey Lawyers Fund For Client Protection in Trenton, New Jersey and thereby reactivated his license to practice law in the State of New Jersey and Federal Court by way of the payment and a letter instructing that his status be changed from "retired" to "active". His law license is now and has always been completely clean.]

On Monday Nov. 17, 2008, the following letter and ten copies of my original “Application for Emergency Stay” will be submitted to William K. Suter, Clerk of the United States Supreme Court in support of my renewed application for an emergency stay of the 2008 national election as per United States Supreme Court Rule 22.4:

4. A Justice denying an application will note the denial thereon. Thereafter… the party making an application… may renew it to any other Justice… Renewed application is made by a letter to the Clerk, designating the Justice to whom the application is to be directed, and accompanied by 10 copies of the original application and proof of service as required by Rule 29. (Emphasis added.)

Out of respect for the United States Supreme Court, I have decided not to hold a press conference there on Monday, Nov. 17. Instead, I will be doing radio and press interviews. I will update this blog as those interviews become confirmed.

LETTER TO WILLIAM K. SUTER, CLERK OF THE SUPREME COURT:

No. 08A407

In The

Supreme Court of the United States

Leo C. Donofrio,

Nina Mitchell Wells, Secretary of State of the State of New Jersey

ATTN:
WILLIAM K. SUTER, CLERK
UNITED STATES SUPREME COURT
Office of the Clerk
Washington, D.C. 20543-0001

Re: United States Supreme Court Docket No. 08A407

FROM:

Leo C. Donofrio, Esq., Pro Se
PO Box 93
East Brunswick
New Jersey, 08816

November 14th, 2008

LETTER TO UNITED STATES SUPREME COURT CLERK, WILLIAM K. SUTER, AS MANDATED BY SUPREME COURT RULE 22.4, REGARDING RENEWED APPLICATION FOR EMERGENCY STAY, SUCH RENEWED APPLICATION WILL NOW BE ADDRESSED TO THE HONORABLE ASSOCIATE JUSTICE CLARENCE THOMAS AS PER UNITED STATES SUPREME COURT RULE 22.4

Dear Mr. Suter, Clerk of the United States Supreme Court,

According to Supreme Court Rule 22.4, I now renew this emergency application for a stay to the Honorable Associate Justice Clarence Thomas by way of letter addressed to the “Clerk” - as per Rule 22.4. Since this stay application pertains to a New Jersey Supreme Court order denying similar relief below, this stay application was originally submitted to the Honorable Associate Justice David Souter, Circuit Justice for the 3rd Circuit, on November 3, 2008, and was denied by Justice Souter on November 6, 2008. (See attached, 1)

Due to the very unorthodox treatment bestowed upon this case by stay clerk, Mr. Danny Bickell, it is of the utmost importance that I recapitulate the extraordinary communications and actions taken by Mr. Bickell, who has so egregiously handled this matter by having taken it upon himself to make improper and incorrect substantive judgments of law thereby usurping the authority of the Supreme Court and its honorable Justices. This letter will now address the specific errors Mr. Bickell has made as such errors have caused certain damage to my case and cause. I respectfully request that the Honorable Associate Justice Clarence Thomas be given a copy of this letter along with the renewed emergency application for a stay.

First, I would point out that the computerized Docket for this case has been the subject of no less than three separate entries (See attached, 2-4) despite the fact that, up until this resubmission letter, no other papers have been filed other than the original application for emergency stay. The first Docket entry incorrectly listed the stay application as an “application for injunction”, despite the fact that the original application states clearly on the cover page, “APPLICATION FOR EMERGENCY STAY“.

Mr. Bickell refused to recognize the nature of this pleading as a “stay” and therefore he did not follow the Rules which govern stay procedure. Specifically, Mr. Bickell was required, under Rule 22.1 to “transmit it promptly” to Justice Souter, which Mr. Bickell promised to do in a 7 minute phone conversation I had with him on Nov. 3 at 3:50 PM just after I filed the original application. Not only did Mr. Bickell fail to transmit the Application promptly, despite its bold face cover declaring it was an emergency stay application, Mr. Bickell failed to transmit it at all thereby disposing of it on his own volition by denying the application as if he were a United States Supreme Court Justice.

During a conversation with Mr. Bickell on Nov. 6, he first informed me that he had chosen not to pass on my stay application to Justice Souter because he had made a substantive judgment of law that my stay application was improper in that it was his opinion I had not requested a stay in the lower courts, and therefore, according to Mr. Bickell, Supreme Court Rule 23.3 prevented me from requesting a stay in the US Supreme Court. Mr. Bickell is both factually and legally wrong.

Mr. Bickell was factually wrong because I specifically did request a stay as to the 2008 election in my initial Complaint (See attached, 5) filed in the Superior Court of New Jersey - Appellate Division, where my request for emergency relief was denied on October 30, 2008, after a four day emergency litigation which generated a complex seventy-five page appendix to a subsequent motion requesting the same relief in the NJ Supreme Court filed by me on October 31, exactly one day after the Appellate Division denied such emergency relief.

Mr. Bickell did not have the original Complaint in his possession for review, nor did he have the appendix, so I don’t know how he could have ever come to the conclusion that I had not asked for a stay below. Furthermore, defendant-respondent - Nina Mitchell Wells, Secretary of State of the State of New Jersey - was represented by the New Jersey Attorney General. Their reply brief to my initial Complaint specifically argues against a stay being granted on page 2 of the brief (See attached, 6):

“…[B]ecause the relief requested would upset the orderly conduct of the upcoming general election, the application for a stay should be denied.”

Furthermore, Mr. Bickell’s naive misunderstanding of Rule 23.3 clearly exhibits why a clerk such as he should not be attempting to play Supreme Court Justice. Rule 23.3 does not bar the entertaining of a stay application, regardless of whether a stay was requested in the lower courts, when the stay request is brought before the U.S. Supreme Court under “extraordinary circumstances” as was the case in Western Airlines, Inc. v. Teamsters, 480 U.S. 1301 (1987). In that case, a stay was granted by Justice O’Connor even though no stay had been requested in the lower courts. Surely, a stay of the national election qualifies as “extraordinary circumstances”.

Regardless, this was a genuine issue of substantive law - to be decided by a US Supreme Court Justice - and not by a subordinate clerk seeking to substitute his judgment for that of the US Supreme Court Justices, all of whom were appointed by Presidents and approved by the Senate. Accordingly, the lower court pleadings and orders of denial in this case pertain directly to a “stay” as the relief requested was of exactly the same nature in the Appellate Division, the NJ Supreme Court and in the Emergency Stay Application now before the US Supreme Court.

The order denying my request for Emergency relief in the New Jersey Supreme Court, handed down on Friday October 31, 2008, by the Honorable Justice Virginia A. Long (See attached, 7) stated:

“This matter having come before the court on an application for emergent relief pursuant to RULE 2:9-8, and the undersigned having reviewed the movant’s papers and the papers filed by the defendant in the Superior Court, Appellate Division, it is hereby Ordered that the application for emergent relief is denied.”

N.J. COURT RULE 2:9-8 states:

“2:9-8. Temporary Relief in Emergent Matters

When necessary, temporary relief, stays, and emergency orders may be granted, with or without notice, by a single Justice of the Supreme Court…”

Justice Long made it clear that this order was directly related to the Appellate Division case wherein I specifically requested a stay pertaining to the 2008 election. The case, In re Moser, 69 F.3d 690 (3rd Cir. 1995), testifies to the argument I made to Mr. Bickell that a stay is injunctive in nature. US Supreme Court jurisdiction was also appropriate as an exercise of mandamus authority under the All Writs Act, 28 U.S.C. § 1651(a). This was reiterated in Berry v. Francis, 1998 FED App. 0158P (6th Cir.)

Moreover, Supreme Court Rule 22.6 demands that:

“The Clerk will advise all parties concerned, by appropriately speedy means, of the disposition made of an application.” (Emphasis added.)

In a phone conversation I had with Mr. Bickell, he advised me that since he had disposed of my case on his own volition, such “disposition” was not the same kind of “disposition” recognized by Rule 22.6, and as such, it was his opinion that he had no duty to inform me - by appropriately speedy means - or any means whatsoever, of the actual disposition of my Application. Essentially, Mr. Bickell illegally substituted his legal judgment for that of a US Supreme Court Justice as well as for the judgment of the actual Rules of Court.

On Nov. 6, after much arguing with Mr. Bickell, he eventually agreed to Docket my case, but only after trying to convince me to let it go. He stated, “Justice Souter will deny it…Justice Thomas will also deny it.“ Does Mr. Bickell have the authority to announce possible decisions of Supreme Court Justices? No, he does not.

The next morning, Nov. 7, I checked the US Supreme Court Docket and was shocked to see that Mr. Bickell had, despite our conversation, incorrectly Docketed the case as an “Application for injunction” filed on November 6. (See attached, 2.) The date was obviously wrong as the case was filed and stamped at the security gate at the US Supreme Court on November 3 , not Nov. 6. Furthermore, this fraudulent Docket was entered in the system by Mr. Bickell even though, by this time, I’d had multiple conversations with him about this case starting on Nov. 3 just minutes after it had been filed. And the stay application clearly states on the cover page that it is a “stay” application not an application for injunction.

I left three messages on Mr. Bickell’s voice mail on the morning of Nov. 7 demanding that he correct the Docket for this case and and threatening to bring legal action against him specifically for willfull misconduct. Later that morning, I checked the automated Docket again and found that the Docket entry had been altered to reflect that the case was then filed as a Stay application submitted to Justice Souter on Nov. 3. (See attached, 3) But the Docket entry was also now reflecting that Justice Souter had denied the Stay application on Nov. 6. I don’t see how, earlier on the morning of Nov. 7, the Docket could reflect that the application was for a pending injunction application submitted to Justice Souter - no disposition listed - then suddenly, a few hours later, the Docket retroactively shows a disposition of the stay application having been denied on Nov. 6. I cannot understand how that was possible and I am officially requesting an explanation.

On Nov. 12, I noticed that Mr. Bickell had failed to include the NJ Supreme Court’s review of this matter in the “Lower Ct:” section of the US Supreme Court Docket for this case. I phoned Mr. Bickell, and again, he tried to make specious substantive legal arguments thereto. Eventually, one day later, Mr. Bickell was forced to correct the Docket, once again, to reflect that this case had been through both the NJ Appellate Division and the NJ Supreme Court. (See attached, 4.) This was a very important correction because having orders from both of the lower Courts proves that the US Supreme Court is the final jurisdiction available to me for emergency relief.

Furthermore, I’ve repetitively tried to explain to Mr. Bickell that my stay application relies on the procedural history of Bush v. Gore wherein the emergency application for a stay in that case was treated by the Supreme Court as if it were a full petition for writ of certiorari. Bush V. Gore, 531 U.S. 98 at 98:

“The court ordered all manual recounts to begin at once. Governor Bush and Richard Cheney, Republican Candidates for the Presidency and Vice Presidency, filed an emergency application for a stay of this mandate. On December 9, we granted the application, treated the application as a petition for a writ of certiorari, and granted certiorari.” (Emphasis added.)

I now renew the emergency application for a stay to the Honorable Associate Justice Clarence Thomas as per Rule 22.4.

Very Truly Yours,

Leo C. Donofrio, Pro Se

US SUPREME COURT CLERK DANNY BICKELL CONTINUES SABOTAGE OF NJ CITIZEN CHALLENGE TO 08 ELECTION

UPDATE: 1:31 PM

Now that the Docket reflects that my case has followed proper procedure through all possible lower court jurisdictions, I will resubmit the application for an emergency stay of the national election to Justice Clarence Thomas.

Supreme Court Rule 22(4) (operating in tandem with Rule 23) gives me the right, by law, to resubmit the Application for Emergency Stay to “any other Justice” once the original stay application has been denied. According to the Docket, and a letter I received from Mr. Danny Bickell, Justice Souter denied the stay application on November 6th.

So, according to the Rules, I may now resubmit the application to “any other justice.”

However, there is still one issue which must be dealt with before I resubmit the stay application. Rule 22 (4) requires that I write a letter to the Clerk indicating which Justice I am renewing the stay application to. This letter is supposed to go to William Suter, Clerk of the US Supreme Court, but the “stay clerk” is Mr. Danny Bickell and I’m certain that the renewed stay application will go directly through him.

Once the “Clerk” receives it, Rule 22(1) prescribes the following duty to the Clerk in relation thereto:

Rule 22. Applications to Individual Justices

1. An application addressed to an individual Justice shall be filed with the Clerk, who will transmit it promptly to the Justice concerned if an individual Justice has authority to grant the sought relief. (Emphasis added.)

This means that the original stay application should have been submitted to Justice Souter on Mon. Nov 3rd, the day I filed it, the day it was stamped. But it wasn’t “transmitted promptly”, it was disposed of promptly by Mr. Bickell, and it was disposed of wrongly. Eventually it was actually transmitted to Justice Souter, but only after I read Mr. Bickell the riot act.

Ponder this; if Mr. Bickell had been intially correct in disposing of the stay application on Monday Nov. 3rd, then why did he eventually Docket it and submit it to Justice Souter on Nov. 6th? The answer is obvious. He was wrong to have disposed of it, and he was wrong to have failed to notify me of such disposition and he’s been wrongly trying to dispose of it in one way or another ever since.

I anticipate that Mr. Bickell will be handed my renewed “application for an emergency stay” by interns in the Clerk’s office, even though, technically, according to Rule 22(1) the letter accompanying the application must be addressed to the “Clerk”. The Clerk is “William K Suter”.

Please send Mr. Suter letters indicating that you, as an American citizen, are outraged at the disrespect and sabotage this case, Donofrio v. Wells, US Supreme Court Docket No. 08A407, has been subjected to. Mr. Suter’s address is:

William K. Suter, Clerk

United States Supreme Court

Office of the Clerk

Washington, D.C. 20543-0001

[Please dont' confuse Clerk Suter with Justice Souter.]

When you write your letters to; Justice Thomas, the other Supreme Court Justices, and Clerk Suter, it would be good to include a paragraph explaining that the case reflects a matter of vital public importance, depends on a genuine Constitutional issue of first impression, is coming directly from the NJ Supreme Court and is relying on the “stay application” precedent issued by the most Honorable Court in Bush v. Gore, 531 U.S. 98 (2000):

“Governor Bush and Richard Cheney, Republican Candidates for the Presidency and Vice Presidency, filed an emergency application for a stay of this mandate. On December 9, we granted the application, treated the application as a petition for a writ of certiorari, and granted certiorari.”

Unfortunately, Mr. Bickell failed to recognize the precedent set in that case when he initially refused to pass on my “stay application” to Justice Souter on Nov. 3rd. When I spoke to Mr. Bickell on Nov. 6th, he told me my stay application should have come with a “Full Petition for Writ of Certiorari”. It was this decision which delayed Justice. This was a decision of substantive law made by a clerk who subverted the authority of the US Supreme Court. And his decision, despite being an act of direct insubordination, was also legally flawed.

As was done in Bush v. Gore, also a Presidential election case involving an emergency, the Supreme Court, in its wisdom, recognizing the exigency of the circumstances, decided to relax its formal requirements and instead, the Honorable Court, in granting the Stay, decided to accept the less formal Stay Application as if it were a full Petition for Writ of Certiorari, and then they granted Certiorari.

This was the precedent I was proceeding under. Had Mr. Bickell followed the Supreme Court Rules, Justice Souter would have received my emergency Stay Application on Monday Nov. 3rd, shortly after 4:30PM. But Mr. Bickell didn’t Docket the case until Nov. 6th, and only after I protested vehemently. While arguing with me, Mr. Bickell told me that it didn’t matter what I did or what law I cited, “Justice Souter will just deny it…and Justice Thomas will also deny it.”

How dare he speak for our Supreme Court. The audacity is disgusting.

According to the Docket and Mr. Bickell’s letter, Justice Souter apparently denied the Stay Application on that same day.

Had Justice Souter denied it on Nov. 3rd instead, and had Mr. Bickell then followed Rule 22(6), which says that I was to be informed of the “disposition” of the case “by appropriately speedy means”, i.e., a phone call, then I could have resubmitted the Stay Application to Justice Clarence Thomas at 9:00 AM on Nov. 4th, Election Day, and since the case was bi-partisan, and at that time there was no winner, Justice Clarence Thomas could have granted the stay, stopped the Election, brought in the whole Court, and decided the “natural born citizen” issue before the voting was done.

I did everything in my power to see that this was the case, and Mr. Bickell did everything in his power to see that this wasn’t the case.

And that’s why your letters are still needed. Mr. Bickell needs to understand that Justice Clarence Thomas and the rest of the Court will be aware that this case is on its way to them and that if anybody is going to deny the stay application - “We the People” - demand that it be a genuine US Supreme Court Justice and not a clerk impersonating a Justice.

Very Truly Yours,

Leo C. Donofrio

UPDATE: 11:43 AM

Mr. Danny Bickell, stay clerk of the US Supreme Court, has finally corrected the Docket for US Supreme Court Case No. 08A407, Donofrio v. Wells, to reflect that this case has come to the US Supreme Court directly from a final order denying emergency relief by the New Jersey Supreme Court. Having this case properly docketed is a major procedural necessity to the case having proper standing to be decided in the US Supreme Court.

Thanks to all who made a stand to see that this Docket was corrected.

Warm Regards,

Leo C. Donofrio

US SUPREME COURT STAY CLERK DANNY BICKELL CONTINUES SABOTAGE OF NJ CITIZEN LAW SUIT CHALLENGING 08 ELECTION

As of 9:53 AM, November 13, 2008, the Docket for US Supreme Court case # 08A407 has still not been updated to reflect the fact that the case…

Leo C. Donofrio v. Nina Mitchell Wells, Secretary of State of the State of New Jersey

… now before the US Supreme Court comes directly from a final decision as to the emergency matter issued by the highest court in New Jersey which is the Supreme Court Of New Jersey. Mr. Bickell has consistently attempted to stop this case from being docketed properly. And in doing so Mr. Bickell has subverted and defiled the esteemed Rules of the US Supreme Court, particularly Rules 22 and 23.

Mr. Bickell knows that, for my case to have proper standing before the US Supreme Court, I am required to exhaust all of my lower court options, which I have done. My case was originally brought in the NJ Appelllate Division where it was delayed, subjected to misconduct and eventually denied on October 30. Then on October 31, I brought the same action to the NJ Supreme Court. The Supreme Court also denied my application for Emergency relief, but in doing so, the NJ Supreme Court, by the hand of the Honorable Justice Virginia A Long, relied on “movant’s papers” which contained a Constitutional issue of first impression as to the “natural born citizen” clause of Article 2, Section 1, of the Constitution of the United States. (See below.)

Regardless, after numerous attempts to reason with Mr. Bickell, he still refuses to update the Docket for US Supreme Court case # 08A407 to include any reference to the NJ Supreme Court decision. Instead, Mr. Bickell lists only the Appellate Division reference which is an incomplete record of the procedure of this case.

And in so doing, Mr. Bickell is very aware that any Justice of the Supreme Court who may take an interest in this case might come to an erroneous conclusion that the case is prematurely before the US Supreme Court. This is one of the many dangers inherent in Mr. Bickell’s sabotage of this case.

Mr. Bickell, through his illegal actions, has now taken control of the Docket at the United States Supreme Court and in so doing, Mr. Bickell is operating such Docket under his own brand of martial law. Mr. Bickell’s actions are no less than a declaration of war upon the Rules of Supreme Court practice.

I am calling for Mr. Bickell to be fired from his position and for him to be arrested by the Justice Department for criminal abuse of power and dereliction of duty. Mr. Bickell needs to be put under oath and questioned in a court of law as to the motivations behind his drastic attempt at overthrowing our legal system of justice and to see if there are other conspirators involved with him in this attack on our highest court’s authority.

If this lowly clerk can single-handedly deny justice according to his own whim and deceit, than the highest court in our land is effectively subverted to the cause of injustice. And such a house divided cannot stand. What you are seeing today, via Mr. Bickell’s blatant deceit and judicial treachery, is a direct attempt to change the fabric and ability of justice as we have always known it. This rebellion from the Supreme Court Rules of Court, if allowed to stand, will signal the beginning of the end of our Constitutional form of Government.

If, after having reviewed the documents and legal arguments at this site, you believe, as I do, that Mr. Bickell should be thrown out of his office at the US Supreme Court, then please call the US Supreme Court and speak your mind.

US Supreme Court Clerk’s office: 202-479-3011

Stay Clerk, Mr. Danny Bickell: 202-479-3024

Public Information Office: 202-479-3211, Reporters press 1

SCOTUS CLERK’S OFFICE CONTINUED SABOTAGE OF NJ CITIZEN STAY APPLICATION FOR 08 ELECTION - YOUR HELP

UPDATED 7:28 PM: True to his form , but not to his word, US Supreme Court, Stay Clerk, Danny Bickell, has not updated the Docket to reflect that my case has come directly from a New Jersey Supreme Court order denying emergency relief. Mr. Bickell informed me that he has kept all reference to the NJ Supreme Court order off the Docket for the same reason he initially did not feed the Emergency Stay Application to Justice Souter back on Nov. 3rd, a semantical falsehood concocted by Mr. Bickell and/or his superiors.

My “Motion For Emergency Injunctive Relief” before the NJ Supreme Court was brought under Rule 2:9-8, which states:

2:9-8. Temporary Relief in Emergent Matters

“When necessary, temporary relief, stays, and emergency orders may be granted, with or without notice, by a single Justice of the Supreme Court…”

A stay is a form of injunctive relief which by its nature pertains to emergent matters. When I appealed to the US Supreme Court, I did so by making an “Application for Emergency Stay”. Mr. Bickell now claims a specious semantical falsehood to deny me review in the US Supreme Court. This time he alleges that the chain of succession from the NJ Supreme Court to the US Supreme Court was broken by my applying for a “Stay” instead of “injunctive relief” when he knows damn well that a stay is injunctive relief. And the Rule cited by NJ Supreme Court Justice Virginia A. Long in her final denial order specifically refers to “stays and emergency orders”:

This matter having come before the court on an application for emergent relief pursuant to RULE 2:9-8, and the undersigned having reviewed the movant’s papers and the papers filed by the defendant in the Superior Court, Appellate Division, it is hereby Ordered that the application for emergent relief is denied.” (Emphasis added.)

If Bickell doesn’t show on the Docket that the case came from the NJ Supreme Court, it will appear, on the Docket, that I did not exhaust all of my lower court options while I most certainly did. I had to go through a preliminary interview with a NJ Supreme Court staff attorney who recognized the emergency as the election was pending. The staff attorney requested 9 copies of my motion, and 9 copies of my 75 page appendix which cost me $172 to make.

I submitted all of that on Friday October, 31 at 12:27 PM. I have the time-stamp on my Motion. An hour later, I spoke with the staff attorney and was told that multiple Justices were going over the case together. Finally, the NJ Supreme Court denied my request for Emergency Relief, but in so doing, they opened the door to expedited review of the United States Supreme Court when Justice Long, in her order, made specific reference to the NJ Supreme Court having “relied” on “movant’s papers” while such papers raised the Constitutional “natural born citizen” issue of first impression.

I did this by the book, the Supreme Court Rule book, but now Mr. Bickell and his keepers are trying to rewrite that book for their own purposes.

Mr. Bickell’s motives are now so important that he must be put under oath and questioned about his bizarre, unorthodox, and most likely criminal attempts to keep my case out of the eyes and minds of certain Justices of the US Supreme Court. Indeed, if Mr. Bickell’s nefarious clerical sabotage has been concocted to influence the occupancy of The White House than Mr. Bickell may eventually be charged with a felony, if not Treason.

I am outraged and disgusted by Bickell’s cavalier piracy of my rights, of your rights, of our rights. And my passion for the law has never been greater than it is right now. I believe in law and order and that all stands must be made under the color of law.

It is time to make a stand for the law. For what is now being done to the law in the holiest legal stronghold this world had ever seen, The United States Supreme Court, is nothing short of a blatant attempt to strangle the last breath from our dying Constitutional system of Government created by the people and for the people. There is a force operating here with the intention of squeezing “we the people” out of the way. And that force is dead set against a single citizen setting a virtuous example for the entire nation to witness. Such audacity will apparently not be tolerated.

USA, your law is under attack tonight. Your entire system of Government is under attack with this case. My case is on sold legal ground and it belongs before the US Supreme Court based upon established State law precedent. No exception to standing need be crafted and there are no other procedural hang ups now standing in its way.

I have followed the law to get this case before the highest court in the land and the only thing stopping full review now is interference from a lowly clerk who is sticking it right in your face America. He’s basically telling all who are watching this sick play unfold that he holds the keys to the building and he will decide your rights, or lack thereof under the Document.

Time to make a stand, people. And it’s a fairly easy one to make. All we need to do is make enough noise so that Justice Thomas and the rest of the court knows that I am coming to the US Supreme Court with my proper papers.

Please don’t ask me for instructions on how you do this. I cannot give such advice. All I can do is make my case public, show the documents, quote the law and keep you informed. Any noise you make must be of your own volition and of your own free will.

THERE IS NO NEED TO BREAK ANY LAW. PEACEFUL MEANS ARE THE ONLY MEANS BY WHICH THE LAW CAN BE UPHELD. BE HEARD BUT DONT GET IN TROUBLE. DONT BREAK THE LAW. ALSO KEEP IN MIND THAT WE CAN’T KNOW WHO IS UNDER PRESSURE AND WHO IS APPLYING PRESSURE SO BE COOL BUT BE FIRM. TELL THE TRUTH AND THE TRUTH WILL SET US FREE.

Warm Regards,

Leo C. Donofrio

++++++++++++++++++++++++++++++++++++++++++++++++

UPDATED: 2:10 PM: Leo C. Donofrio was just contacted by Mr. Danny Bickell, Stay Clerk of the United States Supreme Court as a direct result of Mr. Bickell receiving phone calls from the public. THREE ISSUES WERE DISCUSSED:

1. He says he is now in the process of correcting the Docket to reflect that my case is before the US Supreme Court from a direct ruling of the NJ Supreme Court wherein a Constitutional issue had been raised.

2. Mr. Bickell informed me today that after he decided, improperly, not to pass on my Emergency Stay Application to Justice Souter on Nov. 3rd, that he did not owe me any special notification of such disposition of my case according to his interpretation of Supreme Court Rule 22(6) which states:

“6. The Clerk will advise all parties concerned, by appropriately speedy means, of the disposition made of an application.”

Mr. Bickell insisted that by “appropriately speedy means”, the Court Rule only demands he use ordinary mail. I then asked him how is that different from the ordinary means by which you notify litigants as to the disposition of their cases? And he replied, “It’s the same.” And I said, then how is that by “speedy means”? And he said I wasn’t entitled to a phone call or anything else. And I said, “Then it’s your official position that Rule 22(6) calls for nothing more than the same notification as an ordinary case and that the words “appropriately speedy means” really have no special meaning at all. And to this he replied, “That’s my official position.”

He also stated that he sent me a letter informing me of the disposition of my case. I don’t know what he means. On Thursday, Nov. 6th, by way of a phone conversation that I initiated, he informed me that he decided not to submit my Emergency Stay Application, which I filed four days earlier on November 3rd, to Justice Souter, which as I’ve said before was blatant Clerical misconduct since it’s not his job to play Supreme Court Justice. Regardless, he never sent me a letter stating that he disposed of the case on his own. After speaking to him on Thursday, he agreed to finally Docket the case. But he did so erroneously as I have previously documented. On Friday morning, he somewhat corrected the Docket, but he also made it reflect that Justice Souter had already decided the case. And then he sent me a letter as to Justice Souter’s denial dated November 6th.

Speaking to Mr. Bickell a few minutes ago, I asked him what happened to my letter informing me of the first disposition back on Monday Nov. 3rd when he decided not to pass the Stay Application on to Justice Souter. To this he replied, “That wasn’t a disposition so I didn’t have to give you any notice.” Incredible. He disposed of my case illegally and then said that since it wasn’t a proper disposition I wasn’t entitled to notice thereof, and certainly not by “appropriately speedy means”. Sabotage.

This is truly unprecedented, my friends.

3. Mr Bickell has also informed me that my renewed Application for an Emergency Stay will certainly be submitted to Justice Clarence Thomas on the day it is received. His word isn’t worth much to me so I still need to keep trying to make the public aware of my case so that the other Justices might hear about it before the renewed Emergency Stay Application arrives.

Bickell also requested that people stop calling him, and I told him that these people are just citizens, I don’t know who they are, and I can’t command them to do anything but that they are watching the Supreme Court’s actions and they want to see that Justice is done in this case, and that Justice pertains not just to the substantive case but to the procedural aspects as well under the Supreme Court Rules which have not been followed.

I don’t think calling Mr. Bickell will do anymore good, although it certainly did influence him to get in touch with me. So Im asking people to concentrate on sending letters to the attention of Justice Clarence Thomas and the other Supreme Court Justices US Supreme Court instead of making phone calls. The phone calls were very helpful and served to alert Mr. Bickell and other interested parties at the US Supreme Court that the public is very interested in this case.

THE BEST THING YOU CAN DO TO HELP THIS CASE GET BEFORE JUSTICE CLARENCE THOMAS IS TO WRITE TO HIM AND THE OTHER JUSTICES:

The Honorable Associate Justice Clarence Thomas

United States Supreme Court

One First Street, N.E.,

Washington, D.C. 20543.

——————————–

Please include the docket # 08A407, and the URL to this blog

http://www.blogtext.org/naturalborncitizen/

[Below is the original post. Thank you for your help.]

SUPREME COURT OF THE UNITED STATES - CLERK’S OFFICE CONTINUES SABOTAGE OF NJ CITIZEN STAY APPLICATION FOR 08 ELECTION - YOUR HELP IS REQUESTED

Dear Citizens of the United States of America,

I need your help and the US needs your help.

My case, LEO C. DONOFRIO v. NINA MITCHELL WELLS, SECRETARY OF STATE OF THE STATE OF NEW JERSEY - US Supreme Court Docket # 08A407 - continues to be subjected to misconduct by the US Supreme Court Clerk’s office, particularly by Mr. Danny Bickell, the Stay Clerk.

For a full review of the Judicial treachery in this case, please review the entire UNORTHODOX PROCEDURAL HISTORY of the case.

It has come to my attention today that the US Supreme Court’s Stay Clerk, Mr. Danny Bickell, has continued to list this case incorrectly thereby preventing it from ever crossing the desk of Justice Clarence Thomas.

The Docket of the case fails to mention that the case went directly from the Appellate Division in New Jersey to the New Jersey Supreme Court which is the nexus that allows the case to be properly before the US Supreme Court. The Clerk’s office appears to be doing everything possible to see that this case never gets to the desk of Justice Clarence Thomas or any of the other Supreme Court Justices.

I have an order handed down from the New Jersey Supreme Court which makes reference to the Appellate Division case as well, but the US Supreme Court Clerk’s office refuses to acknowledge the NJ Supreme Court’s review and it is that review which allows my case to go before the US Supreme Court. The Appellate Division case avoided the Constitutional issue, but the NJ Supreme Court decision raised the Constitutional issue when it specifically said in its order of denial that it had relied on “movant’s papers” while at the same time it made no mention of Judge Sabatino’s Appellate Division order and opinion.

The NJ Supreme Court specifically relied upon “movant’s papers” in their order denying emergency relief and “movants papers” focused on the “natural born citizen” issue.

Here is the decision of the Honorable Justice Virginia A. Long:

“This matter having come before the court on an application for emergent relief pursuant to Rule 2:9-8, and the undersigned having reviewed the movant’s papers and the papers filed by the defendant in the Superior Court, Appellate Division, it is hereby Ordered that the application for emergent relief is denied.”

The US Supreme Court Docket fails to mention the NJ Supreme Court decision and that is completely wrong and improper. This case continues to be subjected to Judicial/Clerical misconduct and it’s time that US Citizens, be they Democrat, Republican or 3rd party affiliated, stand up and order that the Clerk’s office of the highest Court in the land STOP interfering in a case that is rightly before the US Supreme Court.

This is unprecedented in that the Clerk’s office at the SCOTUS appears to be injecting politics into the handling of paperwork properly before it. It will be a terrible blow to the separation of powers if Supreme Court review can be stopped by Clerks imposing their own political views on litigants who have properly followed legal procedure.

Justice Clarence Thomas and the rest of the Supreme Court must receive direct mail letters (not e mail) bringing this case Docket # and the URL of my blog to their attention. You may write to Justice Thomas at the following address:

The Honorable Associate Justice Clarence Thomas

United States Supreme Court

One First Street, N.E.,

Washington, D.C. 20543.

——————————–

Please include the docket # 08A407, and the URL to this blog

http://www.blogtext.org/naturalborncitizen/

If you write to Chief Justice Roberts, please make sure the envelope is addressed to

THE HONORABLE JOHN G. ROBERTS, CHIEF JUSTICE OF THE UNITED STATES

Thank you,

Leo C. Donofrio

NJ CITIZEN CHALLENGING OBAMA AND McCAIN ELIGIBILITY CITES LAW IN SUPPORT OF CONTENTIONS BEFORE UNITE

NJ CITIZEN CHALLENGING OBAMA AND McCAIN ELIGIBILITY CITES LAW IN SUPPORT OF CONTENTIONS BEFORE UNITED STATES SUPREME COURT

I anticipate that the erroneous legal conclusions stated today by blogger Jeff Schrieber of the Americasright blog may be echoed further and so I will use the following argument to counter Mr. Schreiber’s false contentions and to pre-empt any future false assertions.

Today, Mr.Schreiber posted a story concerning legal issues in my pending US Supreme Court case seeking to challenge the 2008 Presidential national election. Mr. Schreiber failed to even link to this blog. I have quoted selected erroneous statements made by Mr. Schreiber with my comments following below:

“First, Donofrio provides no support whatsoever to his interpretation that the word “natural,” in the context of Article II, Section 1, means as he maintains it does, “unencumbered by the laws of any other nation.”

The evidence is contained directly in the 14th Amendment, where it clearly states that people born in the US are “citizens”, as long as they are “subject to the jurisdiction of the US”. The 14th Amendment does not grant “natural born citizen” status.

Mr. Schreiber may not agree with my evidence/arguments, but he has no right to say I provided “No support whatsoever.” I’ve cited legislative history as well as the direct wording of the Constitution itself. The most important piece of evidence I provide is that the 14th Amendment only confers “citizen” status as that is the word used by the Amendment itself. It is Mr. Schreiber who adds an implication to the actual wording of our Constitution’s 14 Amendment, I do not.

The wording is clear in that the 14th Amendment confers citizenship. Nowhere does the 14th Amendment confer “natural born citizen” status. The words simply do not appear, but Mr. Schreiber would have us believe they are implied. My argument needs no such implication for it does not seek to read into the Constitution that which was not put there by those who wrote the 14th Amendment which does NOT grant “natural born citizen” status.

More from Mr. Schreiber:

“Secondly, United States law clearly provides now—as it did in August of 1961—that an individual born in the United States is both a ‘natural born citizen’ and ’subject to U.S. jurisdiction.’ “

And where exactly does it say that such a person is a “natural born citizen” in the 14th Amendment? It doesn’t say that anywhere, and that’s the main point of my case. Had the US Legislature and the States that ratified the 14th Amendment sought to grant the status of “natural born citizen” by virtue of simply having been born on US soil, than that’s what the 14th Amendment would say, but it does not say that. Such an allegation is pure fiction.

Mr. Schreiber continues:

“If that child was born in the United States, the nationality of that child’s parents has no impact whatsoever on his status as a natural born citizen of the United States of America, dual citizenship be damned; this, of course, is at the heart of the debate over “anchor babies” and illegal immigration.”

This is completely false. The “anchor babies” issue deals with whether those children are “citizens”, not whether they are “natural born citizens” eligible to hold the office of President of the United States. They are not eligible since, at birth, they are also subject to the jurisdiction of the countries their parents were citizens of.

Mr Schreiber continues:

“Nevertheless, Donofrio suggests that it doesn’t matter what Obama’s birth certificate says because his father was a Kenyan national, but in fact it does. If Obama was born in Honolulu as he maintains (I’d still like to see a long-form birth certificate, of course), he is a natural born citizen.”

Wrong. The 14th Amendment does not use the words “natural born citizen”, it uses the word “citizen”. The Constitution uses the word “citizen” in the 14th Amendment, but the only place the Constitution discusses “natural born citizen” is in Article 2, Section 1, and ONLY as to that being an absolute qualifier for those seeking to hold the highest office in the land, President of the United States. It makes sense that the framers would have required those seeking this office to have a totally pure and natural tie to this country unencumbered by dual nationalities at birth.

But despite whether Mr. Schreiber does or does not believe my evidence and legal arguments, it is specious for him to imply that I have provided no evidence to make my case. I have provided many citations and various legislative history to make my case, and Mr. Schreiber has included none of it in his blog, but has, instead, chosen to hide the fact that such arguments and legal support have been provided by me to the various courts this case has been run through. Any cursory review of the documents provided at this blog will prove Mr. Schreiber has grossly understated my case. And in conclusion, I will point out once more that Mr. Schreiber didn’t even provide a link to this blog.

Leo C. Donofrio

APPLICATION FOR EMMERGENCY STAY OF 2008 NATIONAL ELECTION FILLED IN UNITES STATES SUPREME COURT

Below is the actual “Emergency Stay Application” I filed with the United States Supreme Court on November 3rd, 2008.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

No. 08A407

In The

Supreme Court of the United States

Leo C. Donofrio,

Nina Mitchell Wells, Secretary of State of the State of New Jersey

APPLICATION FOR EMERGENCY STAY

Leo C. Donofrio, Pro Se
PO Box 93
East Brunswick
New Jersey, 08816

November 3rd, 2008

AFFIRMATION

Appellant, Leo C. Donofrio, respectfully submits to this most Honorable Court,

having exhausted all available remedies below, that there are no other

jurisdictions available to him for review. Appellant further respectfully

submits to this Honorable Court that this matter reflects a vitally important

public interest, and that it also presents a unique Constitutional question of

first impression as to the legal significance of the term “natural born citizen”

as enumerated in Article 2, Section 1, of the Constitution of the United States

as an absolute qualifier for all who seek the office of President of the United States.

LOWER COURT ORDERS

Appellant, Leo C. Donofrio, Has brought the emergency Application before

this most Honorable Court directly from an order denying Appellant’s Motion

For Emergency Injunctive Relief from The Supreme Court of New Jersey, by the

Honorable Justice Virginia A. Long, on Friday October 31, 2008 at approximately

1:30 PM. Prior to making such Motion in The Supreme Court of New Jersey,

Appellant sought emergency relief in the Superior Court of New Jersey, Appellate

Division, before the Honorable Jack M. Sabatino. Appellant filed various papers

in the Appellate Division, including a Fact Sheet Upon Application For Emergent

Relief, and a letter supplement thereto, after which His Honorable Jack M.

Sabatino granted full review of this matter. Appellant then filed a Complaint

In Lieu of Prerogative Writs, followed by a Motion For Summary Judgment.

Appellant’s Application for Emergent relief, after having been granted

full review by the Honorable Jack M. Sabatino and the Honorable Philip

S. Carchman, Presiding Justice, Appellate Division, on October 27, was

dismissed on October 30, 2008, by an order and five page decision by the

Honorable Jack M. Sabatino at approximately 5:00 PM, October 30, 2008.

RELIEF REQUESTED

Appellant, Leo C. Donofrio, a New Jersey citizen who intends to vote in

the pending general election of 2008, requests this most Honorable Court

to issue an Emergency Stay prohibiting the use, in the State of New Jersey,

of defective ballots containing at least three ineligible candidates for the

office of President of the United States, and for such Honorable Court to

order Defendant-Respondent, Nina Mitchell Wells, Secretary of State of

the State of New Jersey, to remove from New Jersey ballots the names of

Republican candidate John McCain, Democratic candidate Barack Obama,

and Socialist Worker’s Party candidate Roger Calero, as Appellant

respectfully submits they are not “natural born citizens” as enumerated

in Article 2, Section 1, of the Constitution of the United States.

And should this Honorable Court agree that the aforementioned

candidates are not “natural born citizens” of the United States, Appellant

respectfully submits, that while he did not request a Stay of the national

election in the lower courts, such a Stay be ordered for good and proper

cause. In the alternative, while Appellant’s original complaint requested

an order staying the ballots until Respondent might complete a proper

investigation as to the Presidential eligibility of the candidates, Appellant

respectfully submits that the Constitutional issue now before the Court is

of the utmost public importance and is also here now before this most

Honorable Court as a matter of first impression.

Appellant respectfully submits that the only purpose for

remanding the matter back to the Secretary of State would involve

the issue of whether Democratic candidate Barack Obama be

required to prove to Respondent that he was born in Hawaii.

Appellant, in both his original Complaint and Motion For

Summary Judgment, contends that candidate Obama is not eligible

to the Presidency as he would not be a “natural born citizen” of

the United States even if it were proved he was born in Hawaii , since,

as was argued in Appellant’s original complaint brief, as well as

Appellant’s brief in support of Motion For Summary Judgment,

Senator Obama’s father was born in Kenya and therefore, having

been born with split and competing loyalties, candidate Obama is

not a “natural born citizen” as is required by Article 2, Section 1,

of the United States Constitution.

STATEMENT OF THE FACTS

In early October 2008, Appellant began to fear that controversys

surrounding numerous law suits, filed against Presidential candidates

Senator John McCain and Senator Barrack Obama, would threaten

Appellant’s fundamental voting right as well as his fundamental right

to be governed by a President with a proper mandate under the

Constituion.

On October 22nd, 2008, Apellant phoned the

New Jersey Office of Secretary of State, Elections Division, and

spoke with Donna Barber, the Elections Manager for the State of

New Jersey. During that conversation, Appellant asked Ms. Barber

what steps the Secretary had taken to determine whether any of

the candidates listed on New Jersey ballots for the upcoming

Presidential election were eligible for the office of President.

Donna Barber then informed Appellant that Respondent-Secretary

of State took no steps to determine such eligibility but rather assumed

the candidates were eligible based upon only the fact that they had

been nominated. Appellant then took a close look at the election statutes.

N.J.S.A 19:13-22 requires Respondent to follow specifically

prescribed steps in order to protect and secure New Jersey ballots

voters from the destruction of electoral integrity. Specifically, 19:13-22

requires Secretary Wells to make a “statement” wherein she certifies,

under her hand and official seal of office, the names…

“…of all such candidates for whom the voters within such county may be by law entitled to vote at such election.” (Emphasis added.)

The purpose of the statement is to instruct the clerks, and the board

of elections, for each county, as to which candidates are “by law entitled”

to have their names printed on the ballots for the upcoming election.

The next day, October 23, 2008, Appellant spoke with Elections Manager,

Donna Barber, and again was told that Respondent had no reason to

object to the party nominations and that the statutory deadline for

objection to such nominations had passed. Ms. Barber specifically

stated that her office, the Elections Division, would not change the

ballots at such a late date.

Appellant considered various options, but ultimately came to

the conclusion, after further review of the statutory code, that the only

legal force available to him was an Action In Lieu of Prerogative

Writs to compel Respondent’s ministerial ballot policing duty.

TIMELINESS OF ACTION IN LIEU OF PREROGATIVE WRITS

Counsel below contended, and the Honorable Jack M. Sabatino, in his

decision, agreed, that Appellant brought his action too late. Appellant

rigorously contends that assertion to be false. Feeling the weight of

the impending election, Appellant wasted no time initiating litigation

on October 27, 2008, only five days, including a full weekend, after

he first learned of Respondent’s misfeasance of office. Counsel and

his Honor have misinterpreted the statute they rely upon.

Statutory objection deadlines listed in N.J.S.A. 19:13-10 apply,

as to the Presidential race, only to certificates (major partys) and

petitions (independant partys) of nomination for the electors of each

party. As long as such nominations follow statutory rules of

construction, which Appellant stipulated below that they

did, then such nominations were valid under the statute.

Furthermore, Appellant doesn’t have the legal right to object to

a political party’s choice of candidate as such party is not a public

official or agency, and has no Constitutional or statutory mandate.

As private citizens they may, by law, nominate whoever they like.

New Jersey voters must rely upon the executive power of the

Secretary of State to safeguard the integrity of our electoral process,

especially during Presidential cycles when she must be most

vigilant of her oath of office. And if Respondent-Secretary doesn’t

protect the citizens of New Jersey, then it is up to the citizens of

New Jersey to command her to do so via the eloquent tradition

of writ of mandamus which in New Jersey falls under the statute

as an action in lieu of prerogative writs.

Appellant’s genuine cause of action accrued on September 22, 2008,

when Respondent certified and delivered the 19:13-22 statement to the

clerks of the several counties. The “statement” was a final State agency

decision which triggered Appellant’s exclusive avenue of action under

N.J. Ct. R. 2:2-(a)(2), a direct appeal, as of right, to the Appellate Division.

Since the general limitation for commencing actions in lieu of prerogative

writs is set at 45 days, according to N.J. Ct. R. 4:69-6, Appellant was well

within such timeframe when he filed a Complaint In Lieu of Prerogative

Writs with the Honorable Jack M. Sabatino on October 28, 2008.

LEGAL ARGUMENTS

POINT 1

APPELLANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THERE WERE NO GENUINE ISSUES OF MATERIAL FACT AS TO RESPONDENT’S FAILURE TO EXECUTE HER STATUTORY AND CONSTITUTIONAL DUTIES TO PROTECT THE INTEGRITY OF NEW JERSEY BALLOTS

N.J.S.A. 19:13-22 requires the Secretary of State to submit a “statement”,

prepared by her hand and under her seal of office, to the clerks of the several

counties of New Jersey, listing the names,

“…of all such candidates for whom the voters within such county may be by law entitled to vote at such election”. (Emphasis added.)

Appellant respectfully submits to this Honorable Court that the

purpose of the statement is to instruct the clerks of the several counties

of New Jersey as to which candidates are “by law entitled” to have

their names printed on the ballots. This was disputed by Respondent’s

counsel who argues that the statute’s use of the term “by law entitled”,

must refer to the actual voters who are eligible to vote, and not to the legal

eligibility of the candidates. Appellant gives this argument no quarter.

There are various statutes within the code, which govern the citizens as

to voting, but this isn’t one of them. The statute isn’t about suffrage. It

commands the Secretary of State to protect voters.

N.J.S.A. 19:13-22:

The Secretary of State, not later than eighty-six days before any election whereat any candidates nominated in any direct petition or primary certificate of nomination or State convention certificate filed with him are to be voted for, shall make and certify, under his hand and seal of office, and forward to the clerks of the several counties of the State a statement of all such candidates for whom the voters within such county may be by law entitled to vote at such election. This statement, in addition to the names of the candidates for President and Vice-President of the United States, if any such have been included in any such certificate or petition filed with him, shall contain the names and residences of all other candidates, the offices for which they are respectively nominated, and the names of the parties by which or the political appellation under which they are respectively nominated. Candidates nominated directly by petition, without distinctive political appellation, shall be certified as independent candidates. Similar statements shall be made, certified and forwarded, when vacancies are filled subsequently, according to law.

As a result of Respondent’s misfeasance, New Jersey ballots for the

upcoming election contain the names of three Presidential candidates

who are not, by law entitled, to hold the office of President of the United

States, since they are not “natural born citizens” as is required by Article

2, Section 1, of the Constitution of the United States.

Republican candidate John McCain was born in Panama. Socialist

Workers Party candidate Roger Calero was born in Nicaragua. And

the birthplace of Democratic candidate Barack Obama has not been

verified by Respondent.

The State of New Jersey is granted rights under Article 2, Section 1,

of the United States Constitution regarding the issuing of ballots for

New Jersey voters as well as the qualifying of candidates to appear on

those ballots for the Presidential election. The executive in charge of

maintaining the integrity of New Jersey ballots is deemed to be the

Secretary of State by Title 19 of the New Jersey Statute Annotated.

N.J.S.A 19:13-22 provides no safe harbor to:

- candidates not entitled by law to appear on New Jersey ballots
- candidates who might be entitled to appear on New Jersey ballots
- candidates who probably are entitled to appear on New Jersey ballots

The statute is very specific, the candidates must be by law entitled

to appear on the ballots.

Respondent took an oath of office and swore to uphold, not just the

Constitution of the State of New Jersey, but also the United States

Constitution. As the executive in New Jersey charged with securing

ballots from fraud and deception, her prescribed duty is merged by legal

fusion, in that the statutory term, “by law entitled”, must be subordinate

to her Constitutional duty as the chief executive in charge of elections who

protects the office of President from ineligible candidates. This is because

Article 2, Section 1, of the United States Constitution sets forth the minimum

requirements which make candidates, by law entitled, to be eligible to hold

the office of President of the United States:

No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.

The Supremacy Clause, Article VI, Clause 2 of the United States

Constitution, reads:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Therefore, the requirements of N.J.S.A. 19:13-22 mustbe interpreted,

in so far as the election for President of the United States is concerned,

in light of Article 2, Section 1, of the Constitution. Therefore, the words

“by law entitled” in the aforementioned statute must incorporate

the requirements for the Presidency set forth in the United States

Constitution.

It is not disputed that Secretary Wells conducted no investigation to

determine whether the major party candidates for President were

constitutionally eligible for the office of President. She accepted the

certifications of nomination from both major parties under the assumption

that the candidates were eligible, but she did nothing further to verifiy such

eligibility.

Respondent’s Counsel’s brief in repsonse to Appellant’s complaint does

not dispute the facts. Instead, Respondent’s Counsel argues that the Secretary

of State’s role, as to elections in New Jersey, is only clerical:

“This matter rests upon Appellant’s misreading of a statute. By misreading a modifying phrase, he has taken what is the Secretary of State’s clerical function under N.J.S.A. 19:13-22 to certify a list of names to county clerks, and manufactured a requirement to broadly investigate the lineage of candidates for the highest federal office.”

To that, Appellant argues, if not she, who then is responsible for protecting

the integrity of New Jersey’s electoral process? Respondent is named specifically

in N.J.S.A. 19:13-22. The statement required therein is required to be made by

her hand, under her seal of office.

“A State has an interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies.” Jenness v. Fortson, 403 U.S. 431, at 442. “It is clear that preservation of the integrity of the electoral process is a legitimate and valid state goal.” Rosario v. Rockefeller, 410 U.S. 752, 761; Bullock v. Carter, 405 U.S. 134, 145 (1972).

If the Secretary of State’s role is clerical, than who is responsible for Roger

Calero appearing on New Jersey ballots? The official Presidential candidate

for the Socialist Workers Party is Roger Calero. Mr. Calero was born in

Nicaragua. The Socialist Workers Party has gained official access to

ballots in ten States that Respondent is aware of. And, despite the fact

that the Socialist Workers Party has qualified to have their chosen candidate

listed on those ballots, state election officials from Colorado, Florida, Iowa,

Louisiana, and Washington have all, for good and legal cause, refused to

list Mr. Calero on the ballots since, having been born in Nicaragua, he is

not a “natural born citizen” as is required by Article 1, Section 2, of the

United States Constitution. In those states, a stand-in candidate,

Mr. James Harris, has been listed in place of Mr. Calero.

Furthermore, Respondent’s counsel, in his reply brief, never discusses

Respondent’s Constitutional duty to uphold the Constitution, nor does

the Honorable Jack M. Sabatino address the Secretary of State’s

oath of office meets Constitutional nexus in his decision.

With three ineligible Presidential candidates on their ballots, New Jersey

voters will witness firsthand, the fraud their electoral process has become due

to Respondent’s misfeasance of office. Appellant respectfully requests emergency

relief be granted in order to restore integrity to New Jersey’s electoral process.

COUNT 2

CANDIDATES OBAMA, MCCAIN, AND CALERO ARE NOT ELIGIBLE TO THE OFFICE OF PRESIDENT BECAUSE THEY AREN’T NATURAL BORN CITIZENS AS DEFINED BY ARTICLE 2, SECTION 1, OF THE CONSTITUTION OF THE UNITED STATES.

No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President;

REPUBLICAN CANDIDATE McCAIN

Petitioner begins this argument with a conclusion: had the US legislature

intended to grant “natural born citizen” status to all who were born on US

soil, then the 14th Amendment would contain the words “natural born

citizen”, but it doesn’t. Republican candidate Senator John McCain was

born in Panama. Panama is not considered U.S. soil, nor has it ever been

considered as such. The Naturalization Act of 1790 was the only

Congressional act which has ever attempted to confer “natural born

citizen” status. The relevant portion reads as follows:

“…the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens…”

However, the Naturalization Act of 1795 specifically repealed the act of

1790 and replaced it with virtually the same clause as that of 1790,

except the words “natural born” were deleted and have never been

replaced by Congress. The 1795 act reads as follows:

“the children of citizens of the United States born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States.”

So Congress effectively kept the part of that clause which granted

citizenship, but repealed the words “natural born” from that level of

citizenship. Congress never again attempted to legislate a definition

of “natural born citizen”, and it’s probably not even possible for them

to do so without a Consitutional Amendment. The United States

Department of State’s Foreign Affairs Manual at 7FAM1116.1-4(c) states:

“Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic facilities are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not subject to U.S. jurisdiction and does not acquire U.S. citizenship by reason of birth.”

Indeed, it is well established by precedent that children born

abroad of United States citizens are not granted citizenship by

the Constitution, but rather by statute. The 14th Amendment

states:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States

John McCain was neither born on United States soil, nor was he naturalized.

He is a citizen at birth by statute. This is discussed in the Foreign Affairs Manual:

7 FAM 1131.6-3 Not Citizens by “Naturalization”

Section 201(g) NA and section 301(g) INA (formerly section 301(a)(7) INA) both specify that naturalization is “the conferring of nationality of a state upon a person after birth.” Clearly, then, Americans who acquired their citizenship by birth abroad to U.S. citizens are not considered naturalized citizens under either act. (Emphasis added.)

The Constitution confers three types of citizen status:

- “natural born citizen”, but only with regard to eligibility
to hold the office of President

- “citizen” to those born in the United States via the 14th
Amendment

- “citizen” to those naturalized in the United States via
the 14th amendment

McCain is none of the above. He wasn’t born on United States
soil and he wasn’t naturalized in the United States. Instead,
McCain may claim citizenship from 8 USC 1403(a):

“Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States.”

McCain is in the class of citizens who obtain their citizenship at birth,

but not from the Constitution, but rather federal statute. In Rogers v. Bellei, 401 U.S.

815, 828 (1971). The Supreme Court stated:

...[C]children born abroad of Americans are not citizens within the citizenship clause of the 14th Amendment.”… “To this day, the Constitution makes no provision for jus sanguinis, or citizenship by descent… “Our law in this area follows English concepts with an acceptance of the jus soli, that is, that the place of birth governs citizenship status except as modified by statute.” Id. at 828.

So, not being born on US soil, McCain cannot be a “natural born citizen”.

The Foreign Affairs Manual weighs in on the issue as follows:

7 FAM 1131.6-2 Eligibility for Presidency

a. It has never been determined definitively by a court whether a person who acquired U.S. citizenship by birth abroad to U.S. citizens is a natural born citizen within the meaning of Article II of the Constitution and, therefore, eligible for the Presidency.

b. Section 1, Article II, of the Constitution states, in relevant part that “No Person except a natural born Citizen…shall be eligible for the Office of President,”

c. The Constitution does not define “natural born”.

The “Act to establish an Uniform Rule of Naturalization”, enacted March 26, 1790, (1 Stat.103,104) provided that, “…the children of citizens of the United States, that may be born … out of the limits of the United States, shall be considered as natural born citizens: Provided that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.”

d. This statute is no longer operative, however, and its formula is not included in modern nationality statutes. In any event, the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes. (Emphasis added.)

Appellant would point out that the manual fails to mention that

Congress specifically repealed the “natural born” part of the 1790 act.

Recently, the US Senate has issued a resolution stating that McCain

is a “natural born citizen” eligible to be President, but the resolution

has absolutely no legal effect. It is simply an opinion and as such

it holds no authority whatsoever.

Furthermore, while Congress could have at least attempted

to pass legislation granting “natural born citizen” status to

children of US citizens born abroad such as Senator McCain, Congress

has not done so. The 14th Amendment also requires that, in

order for citizenship to be conferred thereby, whether born on

US soil, or naturalized in the US, the person also be subject to

the jurisdiction of the United States. And because of this caveat,

“natural born citizen” status is proved to be a very special

requirement specifically necessary for those who would be

eligible to the office of President of the United States. A natural

born citizen has no encumbrances or conditions whatsoever

upon his citizenship.

Senator John McCain is an American patriot who has valiantly

suffered more for this country than most of us ever will. He has

shown bravery beyond that which the country has any right to ask,

and it is with very deep and sincere regret that I respectfully request

that this Honorable Court order the Secretaries of the several States

to remove John McCains name from the ballots.

DEMOCRATIC CANDIDATE BARACK OBAMA:

First, I must address, out of respect for Senator Obama, that

Judge Sabatino’s lower court decision makes an egregious error

wherein it states that Appellant suggested Senator Obama’s

father might have been born in Indonesia. Appellant never made

any such allegation in any of Appellant’s papers. I have been

assured by his Honor’s clerk that the error will be corrected.

As regarding the issues surrounding Senator Obama’s birth

certificate, and if it may please this Honorable Court, I would point

out that Senator Obama has not been presented with a genuine

legal request from a party with proper standing to command

him in any way, and therefore he has no legal responsibility

to submit or to bend his integrity. And for that, he certainly

deserves respect.

Appellant believes that if Senator Obama is presented with a legal

request from a government authority sanctioned to make such

request, that Senator Obama will respond accordingly and put

this issue behind him forever.

That being said, petitioner regretfully submits that since candidate

Obama was born to a Kenyan father, he also is not eligible to the office

of President since is not a “natural born citizen” by the Constitution.

Appellant respectfully requests that this Honorable Court order the

Secretaries of the several States to remove Barack Obama’s name from

the ballots.

CONCLUSION

Appellant respectfully submits to this Honorable Court, once again,

that had the legislature intended to grant “natural born citizen”

status to all who were born on US soil, then the 14th Amendment

would contain the words “natural born citizen”, but it doesn’t.

And so this proposition leads to the logical conclusion that

a natural born citizen is a citizen born in the United States to parents,

neither of which is an alien. Having an alien parent would tie such

person at birth to the possibility of other loyalties and laws. And such

a person, even if he be as loyal and devoted to this country as Senators

Obama and McCain have proven to be, is not eligible to hold the

office of President of the United States.

STANDING

Appellant’s standing was not challenged in Respondent’s reply

brief, nor was it challenged in his Honorable Sabatino’s order and decision.

However, Appellant discusses the issue below in respect to this most Honorable

Court’s superior jurisdiction. In Ridgewood Education Association v Ridgewood

Board Of Education, 284 N.J. Super. 427 (App. Div. (1995)), the Court stated,

“We see no reason why this State’s historic liberal approaches to the issue

of standing in general….should not apply to taxpayer suits challenging the

quasi-legislative actions of local boards of education.” Silverman v. Board of Ed.,

Tp. of Millburn, 134 N.J. Super. 253, 257-58 (Law Div.), aff’d o.b. 131 N.J. Super.

435 (App. Div. 1975).

The policies of justice regarding the sanctity of voting rights were also

stated in New Jersey Democratic Party v. Samson, 175 N.J. 178,

814 A.2d 1028 (October 2, 2002). Although the petitioner bringing

suit in that case was a political party, the voting rights discussed

and protected were those of individuals. Therefore, the reasoning

of that case should apply when the petitioner is an individual voter.

Appellant’s fundamental right to vote for a candidate who will not be

disqualified after the election is now threatened by the inclusion on

New Jersey ballots of three ineligible candidates.

“When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.” Bush v. Gore, 531 U.S 5, 6 (2000)

And finally, Appellant’s fundamental right to live in the United States

governed by a President and Commander In Chief who is Constitutionally

eligible to the office of President is also threatened. Since this action is so very

grounded in the interests of justice, and supported by all of the above,

Appellant respectfully requests that this court recognize his standing.

FINAL CONCLUSION

Appellant respectfully submits to this Honorable Court that while the

limitations of our Constitution may at times appear unfair, it is important

to remember that it is the restrictions which hold us to the Document, as much

as it is the freedoms that bind us together as a nation.

“I certify that the foregoing statements made by me are true. I am aware
that if any of the foregoing statements made by me are willfully false, I
am subject to punishment.”

___________________________________, November 3rd, 2008
Leo C. Donofrio, Pro Se

NJ CITIZEN LAW SUIT CHALLENGING 08′ ELECTION- UNORTHODOX PROCEDURAL HISTORY

UNORTHODOX PROCEDURAL HISTORY by way of sworn certification in the pending Supreme Court case, Leo C. Donofrio v. Nina Mitchell Wells, Secretary of State of the State of New Jersey:

1. At approximately 11:30 AM, on October 27, 2008, I faxed an official Appellate Division form “Fact Sheet On Application For Emergent Relief” to the chamber of Judge Sabatino concerning Appellant’s need to file a Complaint in Lieu of Prerogative Writs, as per N.J. Ct. R. 2:2-3(a)(2), regarding the failure of Respondent, Nina Mitchell Wells, Secretary of State of the State of New Jersey, to adequately perform her statutory duty under N.J.S.A 19:13-22 and her Constitutional duty as per her oath of office regarding her dominion of security as to the integrity of ballots and the electoral process for the November 4th, 2008 election. Question 14 of the Fact Sheet requires a description of the relief sought. I asked for three things:

- an injunction compelling the Secretary of State to execute her statutory and Constitutional duty to make certain which candidates for President were eligible under Article 2, Section 1, of the Constitution

- a stay of the defective ballots

- injunction for new ballots to be printed

2. Approximately two hours later, I was contacted by Judge Sabatino’s law clerk, Matt Nunn, Esq., and informed that his Honor had denied the application, and that a fax was being sent to me including a letter from his Honor to such effect, but also stating that I was welcome to resubmit a more detailed fact sheet. Mr. Nunn told me that I was no longer limited to the constraints of the form for purposes of the supplemental fact sheet and that Judge Sabatino genuinely wanted to hear more.

3. Along with the letter from Judge Sabatino, I was faxed a list containing phone/fax numbers for the Hon. Philip Carchman, Presiding Judge of the Appellate Division, the Secretary of State, and the Attorney General’s office with instructions to fax copies of all future papers submitted by me

4. I prepared and faxed a three page summary “Supplemental fact Sheet on Application For Emergent Relief” and forwarded it to Judge Sabatino’s office at 6:10 PM that evening.

5. The next morning, I spoke with Mr. Nunn, and he informed me that Judges Sabatino and Carchman would entertain my application. I was then told to submit a Notice of Motion and an Appellate brief. But this didn’t sit right with me. My fact sheet application and supplement clearly stated that I was going to file a “Complaint In Lie of Prerogative Writs” as a direct appeal as of right under N.J. Ct. R. 2:2-3(a)(2), but Mr. Nunn said the Judge wanted it in the form of a motion and appellate brief. I was given until 4:00 PM to write this out and also drive over an hour to Trenton. I was also told to send a letter to Judge Carchman, Secretary Wells and the Attorney General regarding the schedule of paper submission.

6. I put together a quick pleading sufficient to make my case as a Complaint In Lieu of Prerogative Writs. I wrote “Complaint In Lieu of Prerogative Writs” - as is required by N.J. Ct. R. 4:69-1 - on the motion form sheet, and I submitted my complaint and haphazard brief knowing that as long as I wrote “In Lieu of Prerogative Writs” on the pleading, then the case must, by law, be treated as a direct appeal, not a motion. The difference is procedurally critical. An action In Lieu of Prerogative Writs to compel a ministerial duty is allowed by direct appeal straight to the Appellate Division, and once filed can be immediately followed by a Motion for Summary Judgment without leave of the court, but rather by law and by right.

7. I was instructed to file my papers with Judge Sabatino’s law clerk and not the Appellate Division Clerk’s office. I thought this was odd, but being a Pro Se plaintiff, I trusted that this was proper. That evening, I filed the Complaint In Lieu of Prerogative Writs with Judge Sabatino’s law clerk and also gave him a $200 Money Order which I was told to bring. Mr. Nunn had me make it out to the “Clerk of the Appellate Divsion”. I was given no receipt, no Docket number and no stamp for my records.

8. I stayed up through the night preparing a very thorough Motion for Summary Judgment and a much stronger, more thorough brief.

9. Early on October 29, 2008, I called Judge Sabatino’s office and informed his receptionist that I would be submitting an additional filing with brief. Later that morning, Judge Sabatino’s secretary called to inform me that his Honor would not accept any other papers from me. This was very strange. According to N.J. Ct. R. 4:69-2, a plaintiff in an action in lieu of prerogative writs may move for summary judgment in an action demanding the performance of a ministerial act or duty at any time after filing the original complaint. That meant I was entitled, by law, to file the motion for summary judgment and Judge Sabatino had no authority to deny me that right.

10. I then then prepared a letter to Judge Sabatino.The letter respectfully informed his office that I did not expect his Honor would accept an uninvited supplement to my original filing, nor would I disrespect the bench by attempting such, but rather, pursuant to N.J. Ct. R. 4:69-2, I would be submitting the Motion For Summary Judgment according to the Rule of law.

11. Appellant arrived at the Court House later that afternoon with 9 copies of the bound Motion and supporting brief, affidavits, proposed orders and a money order for $30. Mr. Nunn spoke to me on the lobby phone and inquired as to why I had come to submit the Motion and brief since he had informed me earlier that his Honor would not be accepting another brief. I respectfully explained to Mr. Nunn that I was entitled by the rule of law, specifically N.J. Ct. R. 4:69-2, to file the Motion for Summary Judgment and brief. I also told Mr. Nunn that I did not want to impose on him or his Honor improperly and that I would simply file the Motion with the Clerk of the Appellate Division. To this, Mr. Nunn responded, “No. I’ll come right down and get it,” which he did.

12. Nunn met me in the lobby and accepted seven copies of the Motion for Summary Judgment and brief in support thereof as well as a Money Order for $30 made out to the Clerk of the Appellate Division. I inquired of Mr. Nunn as to why I had not received a docket number since I’d paid the $200 fee along with my pleadings. Nunn informed me that it was standard operating procedure that a docket number wouldn’t be issued in instances like this. I asked him, if in the alternative, I could at least have my pleadings stamped by the Judge. I was informed by Nunn that his Honor had instructed his office not to give me “anything.” That really got my attention. I’ve never heard of a case being dealt with in this manner.

13. Nunn asked me to wait while he served my papers on the Attorney General’s office. And once again, I felt like this was very unorthodox. I was supposed to make service upon my adversary. That’s not a job for the Judge’s staff to do as a convenience to me. When Nunn returned, he gave me the AG’s reply brief, which also did not have a docket number on it. Then the clerk handed me a copy of my Motion For Summary Judgment which had finally been stamped by Judge Sabatino, but still not docketed. I asked Mr. Nunn if this was to protect the candidates from bad publicity, but he just shrugged. Then I asked him if the candidates had been informed and I was then told that the Secretary of State had informed both candidates.

14. Sample ballots had arrived earlier in the mail that day, and later that evening I became aware of the candidate for the Socialist Workers Party, Roger Calero. The Socialist Workers Party gained official access to ballots in ten States. And, despite the fact that the Socialist Workers Party qualified to have their chosen candidate listed on those ballots, state election officials from Colorado, Florida, Iowa, Louisiana, and Washington have all, for good and legal cause, refused to list Mr. Calero on the ballots since, having been born in Nicaragua, he is not a “natural born citizen” as is required by Article 2, Section 1, of the United States Constitution. In those states, a stand-in candidate, Mr. James Harris, was listed in place of Mr. Calero.

15. I phoned Judge Sabatino’s chambers, informed Nunn about Mr. Calero and requested to amend my pleadings so as to include demands that Mr. Calero also be removed from the ballots. But most important was the fact that this Calero matter proved that other Secretaries from various states were actually exercising their prescribed authority to protect ballots from fraudulent candidates whereas the defendant-Secretary of State here in New Jersey was remiss in allowing such a fraud to be perpetrated upon New Jersey voters. Mr. Nunn told me that Judge Sabatino wanted me to call the Elections Division and complain to them about Mr. Calero’s name being on the ballots. Specifically, Mr. Nunn told me to “exhaust my administrative remedy”. So I called that office and faxed a letter objecting to Mr. Calero being on the ballots. Then I called back Judge Sabatino’s office for guidance as to making an amended complaint, as Nunn had told me to do, but my calls weren’t taken.

16. Later that day, October 30, 2008, at approximately 5:00 PM, I received word from Mr. Nunn that Judge Sabatino had denied my application for emergency relief. Mr. Nunn actually suggested that I might appeal his Honor’s decision, and I should speak with Mark Nealy, a staff attorney at the New Jersey Supreme Court. Why was Judge Sabatino’s law clerk giving me Ex Parte communications pushing me to appeal a decision of his boss to a specific staff attorney at the NJ Supreme Court?

17. Then Mr. Nunn told me that the Judge had treated my original application as a “Motion” and not an “appeal” and that they were going to return my $200 money order. This is unprecedented. I never received a docket number, and now they wanted to give me my money back. Nunn then asked me if I wanted to pick it up, or would I rather he mailed it to me. I told him to hold onto it because I wasn’t sure what all of this meant to the procedural aspects of the case.

18. At approximately 5:17 PM, I received a fax transmission containing Judge Sabatino’s five page order and opinion dismissing the action and all relief requested. This was now four days past the date he specifically initiated such review by accepting this Pro Se Appellant’s original submission of Appellate Division form, “Fact Sheet On Application of Emergency Relief” and supplement thereto. Judge Sabatino effectively ran the clock down to the election by four full days. The five page opinion doesn’t discuss the Constitutional question at all; doesn’t discuss the oath of office; doesn’t discuss the undisputed fact that a high placed Elections Division official admitted the Secretary did nothing to verify the candidates; doesn’t mention or pass judgment on my Motion for Summary judgment; does accept that the AG brief’s contentions are convincing even though they are completely off point and specious.

19. Judge Sabatino’s order appears to deny a “Motion For Leave to Appeal” even though Appellant never submitted such a Motion as Appellant was not involved in any lower court matter or controversy which would have invited such an interlocutory Appeal. Furthermore, Appellant, as to Question number 5 listed on his original Appellate Division form, “Fact Sheet Upon Application For Emergent Relief”, specifically answered “N/A”. Question number 5 reads exactly as follows (emphasis added in original form, and not by Appellant):

“5. Are there any claims against any party below, either in this or a consolidated action, which have not been disposed of, including counterclaims, cross-claims, third-party claims and applications for counsel fees? IF SO, THE DECISION IS NOT FINAL, BUT RATHER INTERLOCUTORY, AND LEAVE TO APPEAL MUST BE SOUGHT.”

Once again, Appellant, to this question, answered, “N/A”.

The front page of the NJ Appellate Division web site includes the following guidance to potential litigants:

“The Appellate Division considers appeals timely taken as of right from the final judgments of the Law Division and the Chancery Division of the Superior Court, in addition to the final decisions of State administrative agencies. Litigants requiring Appellate Division review of interlocutory or interim orders of a trial court or agency may do so only with leave of the Court.” (Emphasis added.)

How could Judge Sabatino deny a “motion for leave to appeal” when no such motion had been made by me? Furthermore, I couldn’t have made such a Motion even if I wanted to since I wasn’t involved in a lower court case. My pleading was taken “as of right”, no leave to appeal was necessary as is explicitly made clear on the Fact Sheet and on the front page of the Appellate Division web site.
(See http://www.judiciary.state.nj.us/appdiv/index.htm )

The Fact Sheet On Application For Emergent Relief was Appellant’s initial filing and Appellant’s intentions were made explicitly clear in Question Number 1:

“1. What is the vicinage of the matter? (i.e, what judge, in what county or what agency entered the decision?)”

And to this, Appellant answered:

“The Office of the Secretary of State of the State of New Jersey. It will be filed as a Complaint In Lieu of Prerogative Writs in the App. Div…”

Appellant’s intention was clear and procedurally correct in that both the official Appellate Division form/Fact Sheet, as well as a three page letter supplement thereto, detailed exactly the nature of Appellants claim, a Complaint In Lieu Of Prerogative Writs, which, by demand of N.J. Ct. R, 2:2-3(a)(2), is the exclusive method for reviewing a final action or inaction of a state administrative agency or officer, such method being allowed by direct appeal to the Appellate Division. Judge Sabatino’s order, at the bottom of page 5 states:

“Appellant’s motion for leave to appeal the Secretary’s alleged inaction is denied and his emergent application is consequently dismissed.”

I became very upset in that the order and decision appeared to be pertaining to an action I never took, nor did I have standing or reason to take, from a procedural point of view. I made no “Motion For Leave To Appeal”. This was never part of my case, but looking back on it now, it appears as if Appellant was being led somewhere he had no reason to go. Perhaps this is why Judge Sabatino wanted to give me back my original $200 Money Order.

I was a Pro Se party involved in one of the most complex legal situations one could ever imagine, and I was subjected to Judicial Misconduct and delay. Why did Judge Sabatino accept review in the first place? Why did he try to transform the nature of my pleadings? One possible answer springs forth: to stop the case from gaining the full attention of the US Supreme Court.

I expressed distress to Mr. Nunn over the phone and a total lack of respect for Judge Sabatino’s order and opinion. I was very distraught. Mr. Nunn kept saying things like, “I tried for you,” and also something to the effect of, “You raised good issues but there’s other factors.” At this time, I also mentioned to Mr. Nunn that myself and my sister, a retired prosecutor who helped with some of the legal research, had been subjected to electronic treachery via our private cell phones having been hacked. At this time, Mr. Nunn said something like, “You know which candidate was responsible for that, right? The candidate that’s been known to pull that kind of thing right?” And then I told him, “Matt, stop. You’ve gone too far.” I was very upset but I didn’t have a clear suspect in mind. I had just sued the Secretary of State in her own backyard. I had tried to get both major candidates thrown off the ballots as well as attacking the eligibility of the Socialist Workers Party candidate. It could have been any of the above or supporters thereof. I felt like Mr. Nunn was trying to elicit a defamatory comment about one of the candidates, and I wouldn’t be surprised if the conversation had been taped.

20. Appellant stayed up through the night preparing a Motion For Emergency Injunctive Relief for submission to the New Jersey Supreme Court along with a seventy-five page appendix generated by this very unorthodox litigation.

21. The next morning I made my way to the US Supreme Court and was introduced to Staff Attorney Carol Huxe who took a serious look at my Motion, had a short talk with me about the case and then decided to accept the Motion for the review of a NJ Supreme Court Justice. She assured me that a Justice of the Supreme Court would examine my case and then she told me one of three outcomes would apply:

- a single Justice would deny the application
- a single Justice could grant the emergency relief
- a single Justice could call in the other Justices on an emergency basis

22. Later that afternoon, I spoke with Ms. Huxe on the phone, and she informed me that my papers were in good shape and that the the Justices were looking it over and to expect a decision within the next 45 minutes.

23. About ten minutes later, I received a phone-call from a clerk at the NJ Supreme Court. I was told that an order had been written and I should expect it by FAX as soon as we hung up the phone. They then faxed me an order from the New Jersey Supreme Court, Justice Virginia A, Long, denying my motion for emergency relief. Here is the full text of the denial motion:

“This matter having come before the court on an application for emergent relief pursuant to RULE 2:9-8, and the undersigned having reviewed the movant’s papers and the papers filed by the defendant in the Superior Court, Appellate Division, it is hereby Ordered that the application for emergent relief is denied.” (Emphasis added.)

This particular wording is very significant for two reasons. First, while it cross references the lower court case, it makes no mention of Sabatino, his order or his five page decision. This has the effect of causing an incredible procedural legal right to accrue in that it gave me the proper authority to bring my case, on an emergency basis, directly to the United States Supreme Court.

Judge Sabatino’s order and decision never made any reference to the Constitutional issues involved in the case. But Justice Virginia Long’s carefully worded order specifically relied upon “movant’s papers”, and movant’s papers include a Constitutional issue of first impression as to the “natural born citizen” clause which was now ripe to be put squarely before the United States Supreme Court for the first time in US history.

24. I then called the US Supreme Court and left a message for the stay clerk, Mr. Danny Bickell, but received no return phone call.

25. Over the weekend of Nov1st and 2nd, I prepared a twenty page Application For Emergency Stay according to Supreme Court Rules 22 and 23. An application seeking review of a state court matter must be addressed to the Justice for the Circuit the state is in. For New Jersey, it’s Justice Souter. According to the common practice involved with Rule 22, an emergency application must be read by the Justice it is addressed to on the same day it’s filed. The reason for this is that, if it is denied, the Appellant is entitled to resubmit it to any other Justice of his choice. My second choice was Justice Clarence Thomas.

On Sunday evening, I left New Jersey in order to be in DC to file the application before the court closed at 4:30 PM. This would assure that the Supreme Court had a chance to stay the popular vote in the National Election before election day polls opened.

26. The Application For Emergency Stay was filed by me on Monday November 3rd, 2008, at 3:33 PM. A few minutes later, while still in the Supreme Court, I phoned the Stay Clerk, Mr. Danny Bickell, and we spoke for 7:00 minutes (according to my phone log). I told Mr. Bickell the whole story insisting that the Court Rule required the Application to be delivered promptly to Justice Souter. Mr. Bickell assured me that Justice Souter would have the case on his desk that evening if my papers were in order, which they were.

It was very important that the Court Rules be followed since I didn’t expect Justice Souter to grant the application, but I was ready to resubmit it to Justice Clarence Thomas with along with a letter to His Honor and ten copies of the original application shoulld he pass it on to the entire Court.

27. I arrived at the SCOTUS on Monday Nov 3rd, got the case filed and stamped at 3:30PM, then went back inside and pleaded with the stay clerk for 7 minutes (as shown by my phone log) to please follow the rules and get this on Justice Souter’s desk as was required by Rule 22(1):

“1. An application addressed to an individual Justice shall be filed with the Clerk, who will transmit it promptly to the Justice concerned if an individual Justice has authority to grant the sought relief.” (Emphasis added.)

Mr. Bickell agreed that if my papers were in order, Justice Souter would receive the case that night, sometime after 4:30 pm.

“Rule 22(6). The Clerk will advise all parties concerned, by appropriately speedy means, of the disposition made of an application.”

It’s important that the disposition be delivered by “speedy means” because the denial of a stay sets the trigger for resubmission to a Justice of your choice under Rule 22(4).

28. The next day, election day, I received no message from the Court. I went back to the SCOTUS on Election Day with my sister who is also retired from the practice of law (she was an Assistant DA in Detroit for many years), and was told Mr. Bickell wasn’t available to speak with me. And he was not picking up his phone.

29. On Thursday, I finally got through to Mr. Bickell and was informed by him that the case was never passed on to Justice Souter because Mr. Bickell didn’t think it was an appropriate Application. I was absolutely astounded. He made a substantive law judgment thereby effectively impersonating a Supreme Court Justice. Mr. Bickell told me that I should have made a full Petition for Writ of Certiorari and since I didn’t then my stay application was defective. And that’s not only illegal for him to make such a decision, but this decision itself is not grounded in law or precedent, but rather the exact opposite. And I told him he was flat out wrong, because :

- I followed the Court Rules perfectly

- he and I spoke all about this on Monday in a seven minute phone conversation wherein he agreed to forward the Application

- the case was properly before the court from the Supreme Court of NJ

- the precedent was Bush v. Gore where no Petition was necessary since the court decided to treat the Stay application as a full Petition for Writ of Certiorari.

It’s not the Clerk’s job job to play Supreme Court Justice. The stay clerk’s job is to collect the papers and pass them onto the Justices, but as to this action Mr. Bickell basically made a substantive judgment of law and denied my application on his own. That must be criminal in some way, perhaps impersonating a US Supreme Court Justice, or subordination of Judicial intent? It’s just wrong and Mr. Bickell needs to be called on it.Either he did this on his own volition or somebody pressured him to do it. After explaining the precedent in Bush v. Gore, where the Supreme Court treated the Stay application as a Petition for Cert. and then granted that virtual Petition, he blinked and agreed to Docket the case.[See Bush v. Gore, page 1, http://www.law.cornell.edu/supct/html/00-949.ZPC.html ]

Mr. Bickell also stated that, “Justice Souter will deny it and so will Justice Thomas”, but I wouldn’t let it go and finally he agreed to Docket the case.

30. The next day, I checked the Supreme Court Docket and the case had finally been docketed but in a completely incorrect manner. Mr. Bickell docketed the case incorrectly as follows (this is from my recording of the original Docket):

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Nov 6 2008 Application (08A407) for injunction pending the filing and disposition of a petition for a writ of certiorari, submitted to Justice Souter.

Three glaring errors:

- The case was actually filed and stamped received on November 3rd, not November 6th as Mr. Bickell had listed above.

- My application was for a “Stay” not an “injunction”. Filing for an injunction does not bring expedited review, while a Stay is entitled to the most expedited review the SCOTUS has to offer. The distinction is very important.

- I never submitted a full Petition nor did I submit a letter stating any such intention to do so. The Stay Clerk just took this out of thin air. He made it up out of the blue. Nothing in my Application indicates I intended to file a full Petition for Write of Certiorari. There was no time for that. The proper procedural tool was a Stay application as per the precedent set in Bush v. Gore.

31. I then called Mr. Bickell and left three loud and direct messages to the effect of, “Fix my docket or I’m going to suggest criminal charges against you as well as a civil suit against the Clerk’s office.” I also told Mr. Bickell that I suspected he was being pressured from within, and that he should inform whoever was pressuring him that I’d kept solid phone records and that my pleadings were stamped, “Nov. 3rd.”

32. Later than morning, I checked the US Supreme Court docket search engine again, and saw that Mr. Bickell had corrected the Docket to reflect that the case had been filed on November 3rd and he also now had it listed as a “Stay” application.

However, this second Docket listing was equally bizarre. Whereas the first Docket listing discussed a pending application for injunction, the new Docket reflected that Justice Souter had already denied the Stay application a day earlier on Nov. 6th, which is very confusing since this was now Friday November 7th and the first Docket listed no such disposition.

Here is the Docket as it appeared one hour after the first Docket listing. And this is also how it appears today, Nov. 11th:

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Nov 3 2008 Application (08A407) for stay pending the filing and disposition of a petition for a writ of certiorari, submitted to Justice Souter.

Nov 6 2008 Application (08A407) denied by Justice Souter.
————————————————————————————————————

None of this makes any sense. Calling this activity “unorthodox” is to be very kind. It’s Judicial misconduct and perhaps it’s even worse.
The reference to a “pending” Petition is incorrect and should be removed because it effects the favor-ability of review available to the case as resubmissions for Stay applications are not looked on favorably if the Stay denial is “without prejudice”. If I were actually in the process of submitting a full Petition for Cert., which I’m not, then the denial might be considered “without prejudice”, and in that case, Mr. Bickell might , once again, decide not to pass on the Stay Application to Justice Clarence Thomas.

Seeing as how the Electoral College is just one month away, this is still an emergency, and Bush v. Gore is still precedent. I have made no submission of a full Petition, so the Docket is still incorrect as I intend to resubmit the “Stay Application” this week and the case will live or die on the resubmission.

These Court Rules are no joke. They have a purpose. On Monday November 3rd, Mr. Bickell disposed of my Application acting as if he were a United States Supreme Court Justice. That’s certainly bad enough, if not criminal, but then he did nothing between then and Thursday November 6th to notify me, certainly not by “speedy means”, of the disposition of my Stay Application. This is Judicial misconduct.

Mr. Bickell took my cell number on Monday Nov. 3rd, and had I been notified properly, by a phone call, that my Stay Application was not going to be forwarded to Justice Souter, then I could have corrected Mr. Bickell as I did on Thursday Nov. 6th.

This case was stopped in its tracks starting in the Appellate Division and leading right to the US Supreme Court. The shame of the delay lies in the fact that the case was bi-partisan and should have been decided before the election when nobody knew what the outcome would be. Now, once Obama is disqualified, which I believe will be the final disposition of this case, it’s going to cause so much more pain to the country.

The law and the facts of this case have the ability to strip Obama of the Presidency just as the law and the facts of this case would have had the power to also strip McCain of the Presidency if he had won. I argued the same law as to McCain and Roger Colera as well as Obama.

This is NOT the way the US Supreme Court usually does business. And the citizens of this country should be angry that this institution has slipped to this level.

“I hereby certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.”

______________________________________
Leo C. Donofrio, Pro Se

NATURAL BORN CITIZEN “AT BIRTH”? - STANDING - WARNING REGARDING DEFAMATORY COMMENTS

NATURAL BORN CITIZEN “AT BIRTH”? - STANDING - WARNING REGARDING ALL DEFAMATORY COMMENTS POSTED ABOUT LEO C. DONOFRIO

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

NATURAL BORN CITIZEN “AT BIRTH”?

Throughout the Berg vs Obama ordeal the issue of “standing” was always going to stop Mr. Berg’s case, a case which has consistently failed to zero in on the main issue, whether Mr. Obama was a natural born citizen “at birth”, which Obama was not, since he had dual nationality at birth and was therefore subject to the jurisdiction of Kenya as well as the USA. If Mr. Obama wasn’t a natural born citizen “at birth” he can never satisfy the requirement. Mr. Berg’s case touches on everything but the main issue and as such it has no chance of succeeding even if he did have standing, which he most certainly does not.

To be a naturally born citizen, this is the issue. You are either “born” one or you are not, and if not, you can’t be President. The 14th Amendment can make one a “citizen” but not a “natural born citizen”. This is the backbone of my case. Had the US legislature, and the States who ratified the 14th Amendment, sought to bestow “natural born citizen” status, then the 14th Amendment would say so, but it does not. It confers “citizen” status, and only if the person is subject to the jurisdiction of the United States.

While issues concerning Obama’s birth certificate and his time spent in Indonesia might effect his actual “citizenship”, the case I have made does not rely in any way upon those questions. My argument is much more simple to prove and understand. Obama’s father was a Kenyan national and so, regardless of where Obama was born, he was “at birth” subject to the laws of both the United States and of Kenya and as such he is not a natural born citizen of the United States and cannot hold the office of President. It’s really that simple.

The nature of the issue flows from the word, “born”. The status required by Article 2, Section 1, must be present “at birth”. To be a “natural born citizen” there must be nothing unnatural about your citizenship “at birth”. Natural, in this context, means to be unencumbered by the laws of any other nation. Regardless of the fact that Obama came to reside in the United States, at the time of his birth another country could also claim him as its own and vice versa.

That is the essence of my case as to Obama, and it was the same argument I made as to McCain who was also not eligible to be President. While this might seem unfair, such unfairness must be respected as the guardian to the slippery slope inherent in making exceptions to the rule. The final conclusion in my SCOTUS stay application was as follows:

Appellant respectfully submits to this Honorable Court that while the limitations of our Constitution may at times appear unfair, it is important to remember that it is the restrictions which hold us to the Document, as much as it is the freedoms that bind us together as a nation.

STANDING

As a New Jersey citizen, I have proper standing. In fact, my standing wasn’t challenged by the NJ Attorney General’s office in their reply brief in defense of the Secretary of State, nor was my standing challenged by Judge Sabatino in his five page opinion from the NJ Appellate Division. Despite there having been no challenges to my standing raised below, out of respect for the United States Supreme Court, I did address the issue in my application for an emergency stay as follows:

Appellant’s standing was not challenged in Respondent’s reply brief, nor was it challenged in his Honorable Sabatino’s order and decision. However, Appellant discusses the issue below in respect to this most Honorable Court’s superior jurisdiction. In Ridgewood Education Association v Ridgewood Board Of Education, 284 N.J. Super. 427 (App. Div. (1995)), the Court stated, “We see no reason why this State’s historic liberal approaches to the issue of standing in general….should not apply to taxpayer suits challenging the quasi-legislative actions of local boards of education.” Silverman v. Board of Ed., Tp. of Millburn, 134 N.J. Super. 253, 257-58 (Law Div.), aff’d o.b. 131 N.J. Super. 435 (App. Div. 1975).

The policies of justice regarding the sanctity of voting rights were also stated in New Jersey Democratic Party v. Samson, 175 N.J. 178, 814 A.2d 1028 (October 2, 2002). Although the petitioner bringing suit in that case was a political party, the voting rights discussed and protected were those of individuals. Therefore, the reasoning of that case should apply when the petitioner is an individual voter.

Appellant’s fundamental right to vote for a candidate who will not be disqualified after the election is now threatened by the inclusion on New Jersey ballots of three ineligible candidates.

“When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.” Bush v. Gore, 531 U.S 5, 6 (2000)

And finally, Appellant’s fundamental right to live in the United States governed by a President and Commander In Chief who is Constitutionally eligible to the office of President is also threatened. Since this action is so very grounded in the interests of justice, and supported by all of the above, Appellant respectfully requests that this court recognize his standing.

While Mr. Berg, who has made a valiant effort, does not have legal standing, I do have a right of review by the US Supreme Court since New Jersey recognizes my standing and also because I have exhausted all of my state court options and there is nowhere else for me to go for justice.

Due to the impending Electoral College meeting, a genuine emergency exists and the case must be resolved by the US Supreme Court, and it will be resolved by the Supreme Court unless the SCOTUS Clerk’s office interferes once again with the next phase of this litigation, that being my letter to Justice Clarence Thomas which is attached to my renewed application for an Emergency Stay of the 2008 national election.

Later today, I will release my letter to Justice Thomas as a sworn certification detailing the various unorthodox judicial activity my case has suffered. The case is officially named, “Leo C. Donofrio v. Nina Mitchell Wells, Secretary of State of the State of New Jersey”.

PENDING DEFAMATION SUITS

To whom it may concern,

I have seen my good name made filthy by various comments on blogs regarding my law license. This coupled with the Judicial misconduct I was privy to and the clerical sabotage the case has been subjected to in the US Supreme Court, evidence that my case vs. the New Jersey Secretary of State has strong merit and is causing fear to those who may be potentially effected by the case.

For the record, I was admitted to practice law in the State of New Jersey and the Federal District Courts in 1991. I graduated from St. John’s University, School of Law in 1990. I retired my law license a few years back to pursue my love of the arts and golf. Last year, I found that I had a skill for tournament poker and in 2008, I turned pro and have won two significant tournaments this year including a World Series of Poker Circuit event Gold/Diamond ring.

You may see my Bluff Magazine profile here:

https://www.Bluff Magazine.com/players/leo-donofrio/42071/player-profile.asp

My law license is clean as a whistle and I may return to practice law at any time simply by writing a letter and paying NJ Client Protection fees to the State of New Jersey.

Be warned, whether you are making comments or hosting comments at a blog or website, I will sue, for defamation, any responsible parties. Unfortunately, if they are not removed from his blog, I will be forced to set an example and have my personal attorney file a defamation suit immediately.

I will not sit by and watch my good name by made filthy just because I brought a fair and legal law suit which is now properly before the US Supreme Court.

Very Truly Yours,

Leo C. Donofrio

NEW JERSEY VOTER VS. OBAMA AND McCAIN ON “NATURAL BORN CITIZEN” STATUS NOW BEFORE SUPREME COURT - ST

NEW JERSEY VOTER VS. OBAMA AND McCAIN ON “NATURAL BORN CITIZEN” STATUS NOW BEFORE US SUPREME COURT - DONOFRIO v. WELLS - STANDING NOT CHALLENGED IN LOWER COURTS - OBAMA BIRTH CERTIFICATE NOT MAIN ISSUE

UNITED STATES SUPREME COURT Docket #: 08A407

UNITED STATES SUPREME COURT Application for Emergency Stay and supporting brief: ScotusStayAppBrief.doc

NEW JERSEY SUPREME COURT ORDER

On October 27, 2008, plaintiff-appellant, Leo Donofrio, a retired attorney acting Pro Se, sued Nina Mitchell Wells, Secretary of State of the State of New Jersey, in the Superior Court of New Jersey, Appellate Division, demanding the Secretary execute her statutory and Constitutional duties to police the security of ballots in New Jersey from fraudulent candidates ineligible to hold the office of President of the United States due to their not being “natural born citizens” as enumerated in Article 1, Section 2, of the US Constitution.

Unlike other law suits filed against the candidates, Berg etc., this action was the only bi-partisan suit, which sought to have both McCain and Obama removed for the same reason. (Later, Plaintiff also sought the removal of Nicaraguan born Roger Colera, the Presidential candidate for the Socialist Workers Party). The Berg suit will almost certainly fail on the grounds of “standing”, but Donofrio v. Wells, having come directly from NJ state courts, will require the SCOTUS to apply New Jersey law, and New Jersey has a liberal history of according standing to citizens seeking judicial review of State activity.

While raising it as an ancillary issue, Plaintiff in this case didn’t rely upon questioning Obama‘s birth certificate as the core Constitutional dilemma. Rather, he alleges that even if Obama was born in Hawaii, he was born to a Kenyan national father and is therefore not eligible to be President due to having dual loyalties at birth and split jurisdiction at the time of his birth.

The cause of action first accrued on September 22, 2008, when Secretary Wells certified to county clerks, for ballot preparation, a written “statement”, prepared under her seal of office, that was required by statute to contain names of only those candidates who were “by law entitled” to be listed on ballots in New Jersey. The statement is demanded by N.J.S.A. 19:13-22.

The law suit raises a novel contention that the statutory code undergoes legal fusion with the Secretary’s oath of office to uphold the US Constitution thereby creating a minimum standard of review based upon the “natural born citizen” requirement of Article 2, Section 1, and that the Supremacy clause of the Constitution would demand those requirements be resolved prior to the election.

The key fact, not challenged below, surrounds two conversations between the plaintiff-appellant and a key Secretary of State Election Division official wherein the official admitted, twice, that the defendant-Secretary just assumed the candidates were eligible taking no further action to actually verify that they were, in fact, eligible to the office of President. These conversations took place on October 22nd and 23rd.

Plaintiff-Appellant then initiated the litigation process on Monday, October 27th.

Now, post-election, plaintiff is seeking review by the United States Supreme Court to finally determine the “natural born citizen” issue. Plaintiff alleged the Secretary has a legal duty to make certain the candidates pass the “natural born citizen” test. The pre-election suit requested that New Jersey ballots be stayed as they were defective requiring replacements to feature only the names of candidates who were truly eligible to the office of President.

The action was brought as a “Complaint In Lieu of Prerogative Writs” (aka writ of mandamus) directly to the Appellate Division in NJ. An arduous four day litigation ended with Judge Sabatino denying plaintiff emergency relief. The Appellate Division case generated the following documents:

NJ Appellate Division Fact Sheet Upon Application For Emergent Relief

Judge Sabatino’s initial response

Supplemental Fact Sheet Upon Application For Emergent Relief

Fax letter to all parties regarding schedule for submitting briefs

Complaint In Lieu of Prerogative Writs

Letter to Judge Sabatino re: Motion for Summary Judgment

Notice of Motion For Summary Judgment, Counts 1and 2

NJ Attorney General’s reply brief for Secretary of State Wells

Judge Sabatino’s Opinion and Order, 5 pages

Plaintiff then submitted the case on an emergency basis to the New Jersey Supreme Court where a staff attorney reviewed it, requested 10 copies each of the Motion and 75 page appendix, and informed Plaintiff that a Supreme Court Justice would review it immediately with three possible scenarios unfolding:

- the Supreme Court Justice could grant the application on their own

- the Supreme Court Justice could deny the application on their own

- the Supreme Court Justice could call in the other Justices to review the case

Later that afternoon, Plaintiff was informed by telephone that his papers were in order and that other Justices of the Supreme Court had been brought in to discuss the case.

Regardless, later that afternoon, the application for emergency relief was denied.

However, in an incredible turn of events, the NJ Supreme Court specifically ignored the lower court’s five page opinion – such opinion having avoided the Constitutional question presented – and relied upon “Movant’s Papers” which did discuss and employ Constitutional issues.

Here is the decision of the Honorable Justice Virginia A. Long:

“This matter having come before the court on an application for emergent relief pursuant to Rule 2:9-8, and the undersigned having reviewed the movant’s papers and the papers filed by the defendant in the Superior Court, Appellate Division, it is hereby Ordered that the application for emergent relief is denied.”

This then opened a door to US Supreme Court review. Since “Movant’s papers” are based on a Constitutional issue, it is proper for the US Supreme Court to review the case.

Plaintiff-appellant prepared the US Supreme Court emergency stay application over the weekend and then rushed off to Washington DC on November 3rd where he filed an Application For Emergency Stay of New Jersey ballots, and/or a stay of the “national election”. Plaintiff’s terminology is of vital importance here. Plaintiff’s use of the term “national election” includes all aspects thereof, including the popular vote, full election results, and the electoral college process.

The SCOTUS stay application had to be addressed to Justice Souter since he is the designated Justice for the 3rd Circuit, which includes New Jersey. Justice Souter, facing a tough decision in the wake of Obama’s landslide victory, took four days to examine the extensive lower court paper trail and legal precedents pertaining thereto, but he eventually denied the application on Nov. 6th, 2008. However, the case is still live, but not for the reason erroneously listed on the SCOTUS Docket.

It appears Justice Souter was misinformed by the US Supreme Court Stay Clerk, Mr. Danny Bickell. A full Petition for Writ of Certiorari is listed as “pending” on the Supreme Court docket, and such Petition having not been dismissed by Justice Souter indicates the serious merits of the case, but plaintiff-appellant did not make any such full Petition, and so its existence is a procedural fiction. But the case is still live and pending as an Emergency Stay Application.

Due to the emergent nature of Stay proceedings, plaintiff is entitled - by law - under US Supreme Court Rule 22 to resubmit the Application for an Emergency Stay to another Justice of his choice along with a supplemental letter to accompany the original Stay application. Justice Souter had right of first review because he is charged with review of 3rd Circuit actions, and New Jersey is in the 3rd Circuit.

But now that Justice Souter has denied the emergency stay with prejudice, Plaintiff may resubmit the Application For An Emergency Stay of the national election results and Electoral College meeting to the Honorable US Supreme Court Justice Clarence Thomas. Furthermore, all nine Justices will be served on this round, according to Rule 22 which requires Appellant to submit 10 copies of the original Stay application for the entire Supreme Court.

A supplemental letter detailing the unorthodox procedural history involved with this case is being prepared for Justice Thomas to review along with the prior Stay application. This letter will be available at this site before it is actually submitted to the SCOTUS.

Instead of making a full Petition for Certiorari, plaintiff-appellant, as to his Emergency Stay Application, relied on the procedural history in Bush v. Gore, wherein Bush also chose to fore go a full Petition for Cert., and instead relied exclusively on an emergency Stay application handed to one Justice who then empaneled the entire court. The Supreme Court then granted the Stay, treated the Stay application as a full Petition for Certiorari and granted that Petition despite the fact that Bush only submitted the one Application for Emergency Stay. That was done because the urgency of the situation begged resolve of the national Presidential election. The same conditions apply here as the clock is ticking down to December 15th, the day for the Electoral College to meet.

The bi-partisan case progressed quietly through the lower courts with no publicity as the plaintiff-appellant sought to respect court authority seeking only to have the “natural born issue” determined once and for all. He didn’t create a web site or request donations. The suit is self financed.

However, due to some very unorthodox treatment of the case in the NJ Appellate Division, and also by the US Supreme Court Clerk’s office, a press conference is now being prepared to coincide with the resubmission of the Stay application to Justice Clarence Thomas.

More to follow. Developing.

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