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Case 2:16-cv-00055-JNP-PMW Document 1 Filed 01/22/16 Page 1 of 15

Walter L. Wagner
PO Box 271233
Salt Lake City, UT 84127
808-443-6344
retlawdad@hotmail.com

THJCT DF U H .·

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
--ooOoo--

Walter L. Wagner,
Plaintiff

vs.
Rafael Edward (Ted} Cruz,
Defendant

Case: 2:16cv00055
Assigned To : Parrish, Jill N.
Assign. Date : 1/22/2016
Description: Wagner v. Cruz

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COMPLAINT FOR DECLARATORY
RELIEF
(Non Jury}
(Speedy Hearing Requested}

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Complaint for Declaratory Relief
Comes now plaintiff Walter L. Wagner and seeks Declaratory
Relief as follows:

Jurisdiction

1.

Plaintiff Walter L. Wagner (plaintiff) is a resident and citizen of the

State of Utah, registered to vote in State and Federal elections in Utah.
2.

Defendant Rafael Cruz (defendant) is a resident and citizen of the

State of Texas.
3.

Jurisdiction is proper in this Court due to the diversity of

citizenship.

II
Factual Allegations
4.

Plaintiff is informed and believes as follows:
a.

Defendant was

born

in

December 22, 1970.
2

Calgary,

Alberta,

Canada

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Case 2:16-cv-00055-JNP-PMW Document 1 Filed 01/22/16 Page 3 of 15

b.

Defendant was raised in Calgary, Alberta, Canada from birth

through and until the age of four as a Canadian citizen, whereupon he
relocated to Texas.
c.

Defendant's father was a citizen of Cuba and a resident of

Canada seeking permanent Canadian

residence

at the time of

defendant's birth.
d.

Defendant's mother was a citizen of the U.S.A. and a

resident of Canada seeking permanent Canadian residence at the time
of defendant's birth.
e.

One

or

more

members

of

Defendant's

household

proclaimed to Canadian government agents, after defendant's birth,
that they (the Cruz family) were Canadians, and both parents were
listed on Canadian voter registration rolls as eligible Canadian voters.
f.

Defendant could claim citizenship from Cuba, Canada, and

the U.S.A. at the time of his birth.

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g.

Defendant renounced his Canadian citizenship in 2014,

seeking to retain solely his U.S.A. citizenship.
h.

Defendant is seeking a U.S. government employment

position (President) that constitutionally requires a status of being
"natural born" which requires either birth in the U.S.A. with intentions
to reside in the U.S.A. by the parents if they are non-citizens, or birth
outside the U.S.A. or its territory with both parents as U.S.A. citizens; or
birth outside the U.S.A. or its territory with one parent a U.S.A. citizen
and intentions to soon after birth reside in the U.S.A. and not having
intentions to have residency or citizenship in a foreign (non-U.S.A.)
country.

Ill
Request for Relief and Declaratory Judgment
5.

Plaintiff has a vested interest in insuring that all candidates for the

position of President are legally qualified, including being "natural
born" citizens as required by the U.S. Constitution.

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6.

Defendant Cruz has declared himself to be a candidate for the

position of President, and is seeking to vie with other, qualified
candidates, in the caucuses and elections of Utah.

Having an

unqualified candidate compete with the numerous qualified candidates
potentially skews the results of those events, and potentially places him
in a position of unlawfully serving as President should someone else not
challenge his candidacy based on his lack of ((natural born" status.
Accordingly, plaintiff has standing to bring this suit.
7.

Plaintiff seeks a declaratory judgment that defendant is not a

((natural born" citizen within the meaning of the U.S. Constitution, but
is instead a foreign-born citizen who was made a potential citizen at
birth by way of his mother's citizenship, with the ability to choose a
citizenship status other than that of U.S.A. due to his foreign birth and
sole U.S.A. citizen parent.
8.

Plaintiff attaches hereto his Points and Authorities in Support of

his request for a Declaratory Judgment, specifically the scholarly article

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by Mary Brigid McManamon, a constitutional law professor at Widener
University, Delaware Law School; the case of Minor v. Happersett, 88
U.S. 162, which discussed the issue; and the statutory authority
allowing for issuance of a declaratory judgment.
9.

Plaintiff seeks a speedy hearing to properly resolve this issue in a

timely manner.
Points and Authorities in Support
Plaintiff respectfully submits the following points and authorities
in support of his request for declaratory judgment:
10.

The Federal Rules of Civil Procedure, Rule 57, governs the

procedure for obtaining a declaratory judgment under 28 U.S. C. §2201.
The existence of another adequate remedy does not preclude a
declaratory judgment that is otherwise appropriate. The court may
order a speedy hearing of a declaratory-judgment action.
11.

The Advisory Committee Notes thereto provide as follows:

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"The fact that a declaratory judgment may be granted
'whether or not further relief is or could be prayed' indicates
that declaratory relief is alternative or cumulative and not
exclusive or extraordinary. A declaratory judgment is
appropriate when it will terminate the controversy' giving
rise to the proceeding. Inasmuch as it often involves only an
issue of law on undisputed or relatively undisputed facts, it
operates frequently as a summary proceeding, justifying
. docketing the case for early hearing as on a motion, as
provided for in California (Code Civ.Proc. (Deering, 1937}
§1062a}, Michigan {3 Comp.Laws {1929} §13904}, and
Kentucky (Codes (Carroll, 1932} Civ.Pract. §639a-3}.
1

The 'controversy' must necessarily be 'of a justiciable
nature, thus excluding an advisory decree upon a
hypothetical state of facts.' Ashwander v. Tennessee Valley
Authority, 297 U.S. 288, 325, 56 S.Ct. 466, 473, 80 L.Ed. 688,
699 (1936}. The existence or nonexistence of any right, duty,
power, liability, privilege, disability, or immunity or of any
fact upon which such legal relations depend, or of a status,
may be declared. The petitioner must have a practical
interest in the declaration sought and all parties having an
interest therein or adversely affected must be made parties
or be cited. A declaration may not be rendered if a special
statutory proceeding has been provided for the adjudication
of some special type of case, but general ordinary or
extraordinary legal remedies, whether regulated by statute
or not, are not deemed special statutory proceedings.
When declaratory relief will not be effective in settling
the controversy, the court may decline to grant it. But the
fact that another remedy would be equally effective affords
no ground for declining declaratory relief. The demand for
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Case 2:16-cv-00055-JNP-PMW Document 1 Filed 01/22/16 Page 8 of 15

relief shall state with precision the declaratory judgment
desired, to which may be joined a demand for coercive relief,
cumulatively or in the alternative; but when coercive relief
only is sought but is deemed ungrantable or inappropriate,
the court may sua sponte, if it serves a useful purpose, grant
instead a declaration of rights."

12.

Under 28 U.S. Code § 2201 - Creation of remedy, paragraph (a) it

reads:

In a case of actual controversy within its jurisdiction, except
with respect to Federal taxes other than actions brought
under section 7428 of the Internal Revenue Code of 1986, a
proceeding under section 505 or 1146 of title11, or in any
civil action involving an antidumping or countervailing duty
proceeding regarding a class or kind of merchandise of a free
trade area country (as defined in section 516A(f)(10} of the
Tariff Act of 1930}, as determined by the administering
authority, anv court of the United States, upon the filing of
an appropriate pleading, may declare the rights and other
legal relations of any interested party seeking such
declaration, whether or not further relief is or could be
sought. Any such declaration shall have the force and effect
of a final judgment or decree and shall be reviewable as
such."
u

(underlining added for emphasis)

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13.

Plaintiff seeks declaratory relief and a declaratory judgment to the

effect that defendant is not a "natural born" American citizen due to his
birth and early childhood in Canada from only a single U.S. citizen
parent (mother). The founding fathers included a different standard of
citizenship to serve as the Commander in Chief of the U.S. armed
services and U.S. President, inserting the additional requirement into
the U.S. Constitution that such U.S. citizen seeking such office must also
be "natural born" to serve in the office of President, which office
defendant Cruz seeks. Common usage has referred to "natural born" as
being born on U.S. soil.

Congress deemed Senator McCain to be

"natural born" due to his birth on U.S. soil (Panama Canal Zone) to two
U.S. citizen parents.

14. This requirement of being a "natural born" citizen was apparently
inserted to insure that foreign-born persons, being raised under other
allegiance, should not be able to have the uppermost command of the
U.S. Military. This has been expounded upon in a scholarly article by

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Case 2:16-cv-00055-JNP-PMW Document 1 Filed 01/22/16 Page 10 of 15

Mary Brigid McManamon, a constitutional law professor at Widener
University's Delaware Law School, which reads:

"Donald Trump is actually right about something: Sen. Ted
Cruz (R- Tex.) is not a natural-born citizen and therefore is not
eligible to be president or vice president of the United States.
The Constitution provides that ({No person except a natural
born citizen ... shall be eligible to the office of President."
The concept of ({natural born" comes from the common law,
and it is that law the Supreme Court has said we must turn
to for the concept's definition. On this subject, the common
law is clear and unambiguous. The 18th-century English
jurist William Blackstone, the preeminent authority on
it, declared natural-born citizens are SUch as are born within
the dominions of the crown of England," while aliens are
{{such as are born out of it." The key to this division is the
assumption of allegiance to one's country of birth. The
Americans who drafted the Constitution adopted this
principle for the United States. James Madison, known as the
{1ather of the Constitution," stated, '1t is an established
maxim that birth is a criterion of allegiance. [And] place is
the most certain criterion; it is what applies in the United
States."
11

1

Cruz is, of course, a U.S. citizen. As he was born in Canada,
he is not natural born. His mother, however, is an American,
and Congress has provided by statute for the naturalization
of children born abroad to citizens. Because of the senator's
parentage, he did not have to follow the lengthy
naturalization process that aliens without American
parents must undergo. Instead, Cruz was naturalized at
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Case 2:16-cv-00055-JNP-PMW Document 1 Filed 01/22/16 Page 11 of 15

birth. This prov1s1on has not always been available. For
example, there were several decades in the 19th century
when children of Americans born abroad were not given
automatic naturalization.
Article I of the Constitution grants Congress the power to
naturalize an alien. That is, Congress may remove an alien's
legal disabilities, such as not being allowed to vote. But
Article II of the Constitution expressly adopts the legal status
of the natural-born citizen and requires that a president
possess that status. However we feel about allowing
naturalized immigrants to reach for the stars, the
Constitution must be amended before one of them can
attain the office of president. Congress simply does not have
the power to convert someone born outside the United
States into a natural-born citizen.
Let me be clear: I am not a so-called birther. I am a legal
historian. President Obama is without question eligible for
the office he serves. The distinction between the president
and Cruz is simple: The president was born within the United
States, and the senator was born outside of it. That is a
distinction with a difference.
In this election cycle, numerous pundits have declared that
Cruz is eligible to be president. They rely on a supposed
consensus among legal experts. This notion appears to
emanate largely from a recent comment in the Harvard Law
Review Forum by former solicitors general Neal Katyal and
Paul Clement. In trying to put the question of who is a
natural-born citizen to rest, however, the authors
misunderstand, misapply and ignore the relevant law.

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First, although Katyal and Clement correctly declare that the
Supreme Court has recognized that the common law is useful
to explain constitutional terms, they ignore that law.
Instead, they rely on three radical 18th-century British
statutes. While it is understandable for a layperson to make
such a mistake, it is unforgivable for two lawyers of such
experience to equate the common law with statutory law.
The common law was unequivocal: Natural-born subjects
had to be born in English territory. The then-new statutes
were a revolutionary departure from that law.
Second, the authors appropriately ask the question whether
the Constitution includes the common-law definition or the
statutory approach. But they fail to examine any U.S. sources
for the answer. Instead, Katyal and Clement refer to the
brand-new British statutes as part of a "longstanding
tradition" and conclude that the framers followed that law
because they "would have been intimately familiar with
these statutes." But when one reviews all the relevant
American writings of the early period, including
congressional debates, well-respected treatises and Supreme
Court precedent, it becomes clear that the common-law
definition was accepted in the United States, not the
newfangled British statutory approach.
Third, Katyal and Clement put much weight on the first U.S.
naturalization statute, enacted in 1790. Because it contains
the phrase "natural born," they infer that such citizens
must include children born abroad to American parents. The
first Congress, however, had no such intent. The debates on
the matter reveal that the congressmen were aware that
such children were not citizens and had to be naturalized;
hence, Congress enacted a statute to provide for them.
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Moreover, that statute did not say the children were natural
born, but only that they should "be considered as" such.
Finally, as soon as Madison, then a member of Congress, was
assigned to redraft the statute in 1795, he deleted the
phrase ''natural born," and it has never reappeared in a
naturalization statute.
When discussing the meaning of a constitutional term, it is
important to go beyond secondary sources and look to the
Jaw itself. And on this issue, the law is clear: The framers of
the Constitution required the president of the United States
to be born in the United States."
15.

Case law is lacking on this issue directly.

Court case touches on it tangentially,

One older Supreme

Minor v. Happersett, 88 U.S. 162

(1875), which discusses citizenship rights. Within its discourse it asserts
that persons born on U.S. soil with two citizen parents are also citizens,
essentially asserting a requirement for either two citizen parents, or
birth on U.S. soil, and reads:

"It is sufficient for everything we have now to consider that
all children born of citizen parent~ within the jurisdiction are
themselves citizens." and "Some authorities go further and
include as citizens children born within the jurisdiction
without reference to the citizenship of their parents. As to
this class there have been doubts, but never as to the first."

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Case 2:16-cv-00055-JNP-PMW Document 1 Filed 01/22/16 Page 14 of 15

(underlining added for emphasis)
16.

Citizenship

has since

been

extended to the second

class

referenced in that case in which there had been doubts, i.e. birth to
parents in the U.S. without regard to citizenship status of the parents
qualifies one for citizenship, and thus likewise ((natural born" as also
born on U.S. soil (with ((within the jurisdiction" referring to U.S.
territory).
17.

One can imagine a scenario, for example, in which a person born

with a single U.S. citizen parent in a far foreign land, being raised in that
land for 17 years, then removing to the U.S.A and asserting U.S.
citizenship.

Under the meaning of ((natural born" as detailed above,

such individual would be able to assert their citizenship right (born of a
single parent U.S. citizen), but would not be ((natural born". It appears
that such was the meaning and intent of the U.S. Constitution which
has not been changed in that regard since its inception. Accordingly,
the proper method for any such change in meaning is an amendment

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Case 2:16-cv-00055-JNP-PMW Document 1 Filed 01/22/16 Page 15 of 15

thereto with State ratification as detailed in the Constitution for
amending the Constitution.
18.

WHEREFORE, it is respectfully requested that this Court conduct a

speedy hearing on this matter, after service of the summons and
complaint, and grant the

requested

Declaratory Judgment that

defendant Cruz is not "natural born" within the meaning of the U.S.
Constitution.
DATED:

January 21, 2016

Walter L. Wagner

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Case 2:16-cv-00055-JNP-PMW Document 1-1 Filed 01/22/16 Page 1 of 1

CIVIL COVER SHEET

JS 44 (Rev. 12/12)

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (.)'EE INST!lUCTIONS ON NEXT PAGE OF THIS FORM.)

WMNER
,,,f!~~~E.L.
UTitH ? ? \::J j: 2 L

I. (a) PLAINTIFFS

WA-L-r~

County of Residen9-\ of First Listed Defendant

(b) County of Residence of First Listed Plaintiff
(hXCW'1' IN U.S. I' LA! NTIFF CASES)

\b JM-1

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an

II. BASIS OF JURISDICTION (Place an "X" in One Box Only)

0 2

(For Divel'.l'ily Cases Only)
PTF
Citizen oflllis State
I

0 3 Federal Question
(U.S. Government No/ a ?.arty)

U.S. Government
Plaintiff

~

U.S. Government
Defenrlant

(IN U.S. PLAINTIFF CASES ONLY)
IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

Tt) --r~T OF \JTi\t'~
i "''··' 'l\ttorneys (If Known)

(c) Attorneys (Firm Name, Address, and Telephone Number)

0 I

'-JtoTE:

fpi!_

0 2

Citizen of Another State

Diversity
(Indimle Citizenship f!(Parlie.\' inllem III)

0 3

IV NATURE OF SUIT (Place an
CONTRACT. ,_. "''',-'

0
0
0
0
0
0
0
0
0
0
0
0

110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
!50 Recovery of Overpayment
& Enforcement of Judgment
IS I Medicare Act
152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
I 53 Recovery of Overpayment
of Veteran's Benefits
160 Stockholders' Suits
190 Other Contract
I 95 Contract Product Liability
196 Franchise

.. -.,,.·.

PERSONAL INJURY

0
0
0
0
0
0
0

0
0
0
0
0
0

:.-:

0
0
0
0
0
0
0

V. ORIGIN

W 1 Original

·' ~:;:";-·;

..

'·, i•

PERSONAL INJURY

0 365 Personal Injm)' -

0 31 0 Airplane
0 315 Airplane Product

0
REAL-PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tor1 Product Liobility
290 All Other Real Property

"X" in One Box Only)
_,,,
TORTS;_.:-. -:_;;-,"•··,,: <':''>

0 625 Drug Related Seizure

0 2 Removed from
State Court

VII. REQUESTED IN
COMPLAINT:
VIII. RELATED CASE(S)
IF ANY

0

3

0

I

~2
0

3

Incorporated and Principal Place
of Business In Another State

0

5

0 5

Foreign Nation

0

6

0 6

. ;. BANKRUPTCY'-

~-'

-_

..,,_

.:··-·

28

usc 157

0 36 7 Health Care/
Phannaceutical
Personallnjmy
Product Liability
0 368 Asbestos Personal
Injmy Product
Liability
PERSONAL PROPERTY
0 370 Other Fraud
0 371 Truth in Lending
0 380 Other Personal
Proper1y Damage
0 385 Property Damage
Product Liability

--• PROPERTY-RIGHTS'•:-·
0 820 Copyrights
0. 830 Patent
0 840 Trademark
••••LABOR;.-;..-.
71 0 Fair Labor Standards
Act
720 Labor/Management
Relations
740 Railway Labor Act
751 Family and Medical
Leave Act
790 Other Labor Litigation
791 Employee Retirement
Income Security Act
..

0
0
0
0
0

"

· PRISONER PETITIONS' .- 0
Habcns Corpus:
0 463 Alien Detainee
0 510 Motions to Vacnte
Sentence
0 530 General
. ·IMMIGRATION
0 535 Death Penalty
Other:
0 462 Naturalization Application
0 540 Mandamus & Other 0 465 Other Jmmil'""''""
0 550 Civil Rights
Actions
0 555 Prison Condition
0 560 Civil DetaineeConditions of
Confinement

0
0
0
0
0
0
0

OTHERSTATUTES

Remanded from
Appellate Court

Cormpt Organizations
0 480 Consumer Credit
...
·
490
Cable/Sat TV
'.--SOGIALSECURITY '
0
0 861 HIA (1395ff)
0 850 Securities/Commodities/
0 862 Black Lung (923)
~
Exchange
0 863 DIWC/DIWW (405(g))
890 Other Statutory Actions
0 864 SSID Title XVI
0 891 Agricultural Acts
0 865 RSI (405(g))
0 893 Environmental Matters
0 895 Freedom oflnformation
Act
0 896 Arbitration
.-: FEDERALTAXSUITS ·
0 899 Administrative Procedure
0 870 Taxes (U.S. Plaintiff
Act/Review or Appeal of
or Defendant)
Agency Decision
0 871 IRS-Third Party
0 950 Constitutionality of
26 usc 7609
State Statutes

0 4 Reinstated or
Reopened

CHECK YES only if demanded in complaint:

JURY DEMAND:
(.>ee ins/rue/ions):

DOCKET NUMBER

APPLYING IFP

JUDGE

...,.1

375 False Claims Act
400 State Reapportionment
410 Antitmst
430 Banks and Banking
450 Commerce
460 Deportation
470 Racketeer Influenced and

Case: 2:16cv00055
Assigned To : Parrish, Jill N.
Assign. Date : 1/22/2016
Descrlptlon: Wagner v. Cruz

(Place an "X"In0nel3ox0nly)

~ Proceeding

DEF

0 422 Appeal 28 USC 158
0 423 Withdrawal

of Property 21 USC 881
0 690 Other

Product Liability

Liability
320 Assault, Libel &
Slander
330 Federal Employers'
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
lr\imy
362 Personal Injury Medical Malpractice
-. CIVILRIGHTS
440 Other Civil Rights
441 Voting
442 Employment
443 Housing/
Accommodations
445 Amer. w/DisabilitiesEmployment
446 Amer. w/DisabilitiesOther
448 Education

'FORFEITURE/PENALTY:_

"X" in one Box .for Plaim!ff
and One 13ox.fi>r D~fendanl)
PTF
DEF
Incorporated or Principal Place
0 4
0 4
of Business In This State

MAO. JUDGE

0 Yes

o