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Leo Donofrio – Quo WarrantoPage 1 of 35
Misconceptions About Quo Warranto
Posted in Uncategorized on November 26, 2009 by naturalborncitizenhttp://naturalborncitizen.wordpress.com/ There is quite a bit of confusion regarding the federal quo warranto statute(http://tinyurl.com/yg7humv ). Since the statute will most likely be invoked by private citizensin the near future, I will discuss some of the confusion floating about. Recently, Mario ApuzzoEsq. added to the confusion with a blog post (
http://tinyurl.com/yl5anlb)
that contains multiplemisconceptions regarding the federal quo warranto statute and applicable case law.I know Mr. Apuzzo is an honorable attorney and an intelligent man. I do not want my readersto get the impression that I am advocating otherwise. Regardless, it is necessary for me tostrongly counter the impression his recent report has given the public.I will ask that readers please bone up on the exhaustive work I published back in March whichMr. Apuzzo failed to acknowledge in his post. My previous three part series can be found atthe following links:Quo Warranto Legal Brief – Part 1 (below, page 10)Quo Warranto Legal Brief – Part 2 (below, page 14)Quo Warranto Legal Brief – Part 3 (below, page 27)I will draw from these previous publications to correct Apuzzo’s recent mistakes.Mr. Apuzzo stated on November 9th, 2009:
Before we begin, we must understand that a quo warranto action is a directattack on an office holder, questioning his qualifications to hold an office andtherefore his warrant and authority to occupy that office. It does not challengeany action taken by that person while having been in office. This type of actionis to be distinguished from one where the plaintiff brings an indirect attack (collateral attack) against that office holder, arguing that some action taken by him or her is invalid because he or she is not qualified to hold the office from which the action is taken…
Andrade v. Lauer, 729 F.2d 1475 (D.C.Cir.1984). As we shall see below, this distinction is important, for it can be argued that directattacks must satisfy the requirements of a quo warranto action while indirectattacks must satisfy the requirements of the de facto officer doctrine. Mr.Donofrio does not explain which one of these approaches he proposes to takeagainst Obama.
I have discussed the difference between collateral attacks and direct attacks in quo warrantoon multiple occasions going all the way back to March 2009 when I introduced my readers tothe important DC Court of Appeals case –
Andrade v. Lauer
:
Leo Donofrio – Quo WarrantoPage 2 of 35
- Under the holding in ANDRADE v. LAUER, 729 F.2d 1475, 234 U.S.App.D.C.384 (1984), (
http://tinyurl.com/y9d5saq)
the Court of Appeals for the District of Columbia has held that the defacto officer’s doctrine does not prohibit “collateralattacks” of official actions based upon a public officer’s lack of eligibility. Theseare not quo warranto suits to remove the official, they are civil suits tochallenge a specific action of that official.
In the Andrade case, the plaintiffs were Government employees who lost their jobs to “reduction in force” ordinances which cut whole departments from theGovernment budget. The plaintiffs sued alleging those who did the cutting werenot Constitutionally qualified to make such decisions in that their appointments violated the appointments clause of the US Constitution.
The DC District Court held that the plaintiffs had no standing other than to bring a “direct attack” in quo warranto to remove the alleged usurper. But theDC Court of Appeals reversed and said the plaintiffs, who had suffered realinjuries, could bring such an action on a case by case basis if they could provetheir injury in fact (being fired) was caused by a Government official who wasnot eligible to serve.
The false implication from Mr. Apuzzo’s recent article is that I haven’t considered thedifference between direct and collateral attacks. I certainly have, as my prior reports predatehis by eight months. Apuzzo goes on to say:
Since Mr. Donofrio is proposing a quo warranto action, he must be planning adirect attack against Obama. Mr. Donofrio fails to recognize the many problems that exist with the quo warranto procedure that he advocates.
I have been on the record numerous times to explain the difficulties in proving one is an“interested person” under the statute. The difficulty is covered in great detail in my previousthree part series. Apuzzo fails to acknowledge this work and then berates me as if the work does not exist.But the most serious deficiency in Mr. Apuzzo’s work concerns his failure to properly quotethe US Supreme Court wherein he states:
Under the standard for being an “interested person” as pronounced by Newman v. United States ex rel. Frizzell, 238 U.S. 537 (1915), in a case involving a publicoffice one would have to have “an interest in the office itself peculiar tohimself…” and be filing an action against another who allegedly usurped thatoffice. Indeed, Newman requires that the plaintiff be “actually and personally interested” in the office and that there be another person against whom theaction is brought who has unlawfully occupied the office in question. In other words, the plaintiff must himself make a claim to the office in order to qualify to bring the action.
Mr. Apuzzo has ignored the most important part of the holding in the controlling US SupremeCourt case which has construed the quo warranto statute –
Newman v. United States ex rel.Frizzell, 238 U.S. 537 (1915)
(http://tinyurl.com/ygycrpm)
.
His reporting here is blatantly
Leo Donofrio – Quo WarrantoPage 3 of 35
mistaken. In the Newman case, the SCOTUS discussed the issue concerning who may be an“interested person” under the statute and they left a huge barn door open on this point. Pleaserefresh your memories on this most important SCOTUS precedent:
For in neither case is there any intent to permit the public office to be the subjectmatter of private litigation at the instance of one who has no interest therein which differs from that of every other member of the public. The claim that thisconstruction makes the statute nugatory cannot be sustained, for the statute, asalready pointed out, gives a person who has been unlawfully ousted before histerm expired a right, on proof of interest, to the issuance of the writ,
and theremight be cases under the civil service law in which the relator would have an interest and therefore a right to be heard.
It is that final line issued by the SCOTUS which provides the best possible access to the quo warranto statute and the DC District Court for review of Obama’s eligibility. As readers of this blog are fully aware, I have said over and again that somebody like former Inspector General Walpin (http://tinyurl.com/lxedzg) – fired from his civil service position by Obama – wouldhave a fair chance at qualifying as an “interested person” to make a direct attack via quo warranto upon Obama’s eligibility in the DC District Court.Back in March I stated in Quo Warranto part 3 below:
SCOTUS held that interested persons would include persons ousted from theoffice they are challenging. But they left the door open with that last line, “…andthere might be cases under
the civil service law
in which the relator wouldhave an interest and therefore a right to be heard.”
Mr. Apuzzo fails to mention this part of the holding in Newman, and he fails to mention my previous discussion thereof. Furthermore, he goes on to say:
Are there any available plaintiffs at this time who fill this bill or will there beany in the future who will do so? I know that Mr. Donofrio is now looking for aplaintiff to retain him to bring a quo warranto action in the DC District Court.But has he advised the public that any would-be plaintiff has to have an interestin the office itself peculiar to himself and that he be actually and personally interested in the office?
The record is quite clear. I have advised the public regarding the Newman case and the quo warranto statute since March. And I have done so comprehensively whereas Mr. Apuzzo hasnot. There is no excuse for Apuzzo’s ignorance of this important aspect of the Newmanholding. It greatly expands the definition of “interested person”.Furthermore, I am not
looking
for plaintiffs. But plaintiffs have certainly come looking forme. I have not directly solicited anyone. I simply stated on my blog that I was open tospeaking to persons who might fit into the statute’s requirements as defined by SCOTUS.I have turned most who contacted me down because they did not meet the requirementsdiscussed by the SCOTUS in Newman. I’ve had long conversations with active military persons. I counseled them not to bring quo warranto actions in the DC District Court since
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