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Kerchner v Obama Appeal - Motion for Leave to File Supplemental Appendix Filed 10 Apr 2010 w/Appx

Kerchner v Obama Appeal - Motion for Leave to File Supplemental Appendix Filed 10 Apr 2010 w/Appx

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Published by puzo1
10 Apr 2010: Atty Apuzzo on April 10, 2010, filed this Motion for Leave to File a Supplemental Appendix and the Supplemental Appendix.

For more details on this lawsuit see:
http://puzo1.blogspot.com
http://www.protectourliberty.org
10 Apr 2010: Atty Apuzzo on April 10, 2010, filed this Motion for Leave to File a Supplemental Appendix and the Supplemental Appendix.

For more details on this lawsuit see:
http://puzo1.blogspot.com
http://www.protectourliberty.org

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Published by: puzo1 on Apr 11, 2010
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IN THE UNITED STATES CIRCUIT COURT OF APPEALFOR THE THIRD CIRCUIT____________________________________Charles F. Kerchner, Jr, : Document Electronically FiledLowell T. Patterson, :Darrell James LeNormand, and :Donald H. Nelsen, Jr., ::Plaintiffs-Appellants, ::v. ::Barack Hussein Obama II, President Elect :of the United States of America, President : Case No. 09-4209of the United States of America, :and Individually, a/k/a Barry Soetoro; :United States of America; :United States Congress; :United States Senate; :United States House of Representatives; :Richard B. Cheney, President of :the Senate, Presiding Officer of Joint :Session of Congress, Vice President of the : MOTION FOR LEAVE TOUnited States and Individually; and : FILE SUPPLEMENTALNancy Pelosi, Speaker of the House and : APPENDIXIndividually, ::Defendants-Appellees. :____________________________________:
TO: Clerk of the CourtEric Fleisig-Greene, Esq.U.S. Department of JusticeCivil Division, Appellate Staff 950 Pennsylvania Avenue, N.W.Room 7214Washington, DC 20530-0001
PLEASETAKENOTICE
that the undersigned counsel for theplaintiffs-appellants hereby moves the United States Third Circuit Court of 
Case: 09-4209 Document: 003110096600 Page: 1 Date Filed: 04/10/2010
 
2
Appeals, at 21400 US. Courthouse Independence Mall West, 601 MarketStreet, Philadelphia, PA 19106-1790, for entry of an Order grantingplaintiffs-appellants leave to file a Supplemental Appendix.We explained in Appellants’ Opening Brief and Reply Brief thatwhile the issue before the Court is one of standing and political question, themerits of plaintiffs’ claims are important to the showing that plaintiffs mustmake to prove that they have standing. The importance of the merits of plaintiffs’ claims is made evident by the recent state court decision inAnkeny v. Governor of the State of Indiana, 916 N.E.2d 678 (Ind. Ct. App.2009). We realize that the Ankeny case is a state court decision and notbinding on the federal courts. We nevertheless cite to it because it is theonly case in the United States that, although not necessary to its decision andwithout considering or even discussing much case law and authoritiesshowing otherwise and by improperly conflating the clauses “natural bornCitizen” of Article II and “citizen of the United States” of the FourteenthAmendment, has reached the merits of the constitutional question of what isan Article II “natural born Citizen,” finding that “persons born within theborders of the United States are “natural born Citizens” for Article II,Section 1 purposes, regardless of the citizenship of their parents….” Id. at688. In the Ankeny case, the Indiana Court of Appeals was faced with the
Case: 09-4209 Document: 003110096600 Page: 2 Date Filed: 04/10/2010
 
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question of whether the trial court was correct in dismissing the pro seplaintiffs’ complaint under Trial Rule 12(B)(6) for failure to state a claimupon which relief can be granted. Id. at 680. The court stated that “[w]henreviewing a motion to dismiss, the court views the pleadings in the lightmost favorable to the nonmoving party, with every reasonable inferenceconstrued in the nonmovant’s favor.” Id. at 680. The district court in theKerchner case said that it was following the same standard on defendants’Rule 12(b)(1), Fed. R. Civ. P. motion to dismiss for lack of standing. A-10to 11. The Ankeny court also said that it “need not accept as true any‘conclusory, non-factual assertions or legal conclusions.’” Id. at 681. Thecourt then said:The Plaintiffs do not mention the above United States SupremeCourt authority [U.S. v. Wong Kim Ark, 169 U.S. 649 (1898)]in theircomplaint or brief; they primarily rely instead on an eighteenthcentury treatise [Emer de Vattel’s, The Law of Nations, Or, Principlesof the Law of Nature, Applied to the Conduct and Affairs of Nationsand Sovereigns (1758)] and quotations of Members of Congress madeduring the nineteenth century. To the extent that these authoritiesconflict with the United States Supreme Court's interpretation of whatit means to be a natural born citizen, we believe that the Plaintiffs'arguments fall under the category of "conclusory, non-factualassertions or legal conclusions" that we need not accept as true whenreviewing the grant of a motion to dismiss for failure to state a claim.Irish, 864 N.E.2d at 1120.Id. at 689. Hence, because the court did not agree with the merits of plaintiffs’ legal position on the meaning of a “natural born Citizen,” it
Case: 09-4209 Document: 003110096600 Page: 3 Date Filed: 04/10/2010

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