America’s Right
October 30, 2008

Philadelphia attorney Philip Berg will be at the United States Supreme Court at 3:15 p.m. today to file a Petition for Writ of Certiorari, as well as an application to Justice Souter–the applicable Justice given this region–for an immediate injunction to stay the presidential election currently only five days away.

Berg, who filed suit in district court here in Philadelphia back on August 21 alleging that Barack Obama is constitutionally ineligible to serve as president of the United States, said that he hopes the Supreme Court will "do the right thing" by the United States Constitution and the American people and hear the case on its merits and, in so doing, avoid a constitutional crisis.

"This crisis can be averted," Berg said, "if the Supreme Court grants the injunction pending a review of this case, if the Court insists that Obama turn over certified documentation showing that he is a ‘natural born’ United States Citizen. If he cannot produce that documentation, he should be removed from the presidential ballot."

Berg’s case was dismissed a week ago tomorrow by the Hon. R. Barclay Surrick of the United States District Court for the Eastern District of Pennsylvania on grounds that Berg could not prove injury-in-fact and therefore lacked standing to sue. In his Petition for Writ of Certiorari, Berg insists that he does have standing, and that much of the harm was caused by Obama’s failure to live up to his promises to uphold the United States Constitution.

An excerpt from the writ, on the standing issue:

The very essence of civil liberty, wrote Chief Justice John Marshall in Marbury v. Madison, 5 U.S. 137 (1803), certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. Against the backdrop of historical Supreme Court precedent beginning with Marbury and extending through Sprint Communications Co. L.P. v. APCC Services Inc., __ U.S. __, 128 S.Ct. 2531 (2008), the better-informed “test” for the injury-in-fact prong of the standing doctrine analysis more resembles a “sliding scale” of factors and variables operating as a function of the speculative nature and/or remoteness of the allegations. Baker v. Carr, 369 U.S. 186, 204 (1962); Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977); Federal Election Comm’n v. Akins, 524 U.S. 11, 21 (1998); Sprint Communications Co. L.P. v. APCC Services Inc., __ U.S. __, 128 S.Ct. 2531 (2008); Friends of the Earth v. Laidlaw Environmental Services Inc., 528 U.S. 167, 184 (2000).

In Morton, this Court held that the environmentalist plaintiffs had standing, as injury to “aesthetic and environmental well-being” was enough to adequately constitute personal “stake” and injury in fact. 405 U.S. at 734. Subsequently, in Hunt, this Court held that despite a lack of personal “stake,” an association has standing to bring suit so long as the interests in question are relevant to the organization’s purpose and regardless of whether the claims asserted or relief requested involve the individual members of the organization. 432 U.S. at 343. Furthermore, in Laidlaw, a case stemming from noncompliance with the Clean Water Act, this Court noted the importance of a plaintiff’s demonstration of standing but followed up by stating that “it is wrong to maintain that citizen plaintiffs facing ongoing violations never have standing to seek civil penalties.” 528 U.S. at 184. More recently, in Akins, this Court rendered a decision maintaining that individual voters’ inability to obtain alleged public information met the injury in fact requirement, as it helped to ensure that the Court will adjudicate “a concrete, living contest between adversaries.” 524 U.S. at 21. Similarly and finally, in APCC, decided by this Court in June 2008, the conventional, “personal stake” approach promulgated in cases such as Lujan and Baker gave way to the idea that the “personal stake” requirement and the three requirements of standing—injury in fact, causation and redressibility—are “flip sides of the same coin” and are simply two different ways of ensuring that each case or controversy presents “that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.” APCC, 128 S.Ct. at 2543.

The case at hand may lack the specificity of injury in fact required by Lujan, but the allegations from which the action arises are no more speculative or remote than the importance of environmental aesthetics of Morton or the party disconnect evident in Hunt. The foundation of the claims presented by Mr. Berg, the will to avoid a certain constitutional crisis, certainly amount to a “personal stake,” but in the case that this Court may deem otherwise, the underlying claims absolutely present the adversarial contest under which standing was found in the recent decisions in Akins and APCC.

  • A d v e r t i s e m e n t

Without a doubt, the Respondents will note that the premise behind Akins was the failure to obtain information, and will attempt to distinguish APCC because it involves standing in the context of contracts, assignors and assignees. However, Mr. Berg has indeed sought information vital to the election process put forth in the U.S. Constitution, and this Court in APCC stated that, apart from historical precedent for permitting suits by assignees under assignments for collection, “[i]n any event, we find that the assignees before us satisfy the Article III standing requirements articulated in more recent decisions of this Court.” Furthermore, this Court’s treatment of the standing doctrine in APCC should be enough to show that the reasoning exhibited by the district court judge, grounded in Lujan, misperceives the three prongs of standing as enunciated just four months ago by this Court.

Therefore, because of the reasons stated above, because of the “sliding scale” nature of a “test” for injury in fact, because the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury, this Court should hold that the Petitioner has standing to prosecute this action and reverse the decision from the district court which maintains otherwise.

On a promissory estoppel claim which, in my opinion, is a tempting but populist stretch (errors in formatting/indenting are on my end):

Barack Obama and the DNC made promises to the Petitioner and to the American people, reasonably expecting—in fact, counting on the idea—that the promises would induce reliance, those promises induced the Petitioner to expend money and billable hours and the American public to donate more than $600 million to Obama’s campaign, and injustice can only be avoided by adjudication in this Court.

A cause of action under promissory estoppel arises when a party relies to his detriment on the intentional or negligent representations of another party, so that in order to prevent the relying party from being harmed, the inducing party is estopped from showing that the facts are not as the relying party understood them to be. Thomas v. E.B. Jermyn Lodge No. 2, 693 A.2d 974, 977 (Pa.Super. 1997)(citing Rinehimer v. Luzerne County Community College, 539 A.2d 1298, 1306 (Pa.Super.), app. denied, 555 A.2d 116 (1988)). Promissory estoppel is applied to enforce a promise which is not supported by a binding contract. Carlson v. Arnot-Ogden Mem’l. Hosp., 918 F.2d 411, 416 (3d Cir. 1990) (holding promissory estoppel is unwarranted in light of court’s finding that parties formed an enforceable contract); Bosum Rho v.Vanguard OB/GYN Assocs., P.C., No.Civ.A.98-167, 1999 WL 228993, at *6 (E.D.Pa. Apr. 15, 1999).

With regard to the doctrine of promissory estoppel, it is manifested, and not actual, intent which is paramount. The question is not what Obama and the DNC actually intended, as Judge Surrick claimed in his Memorandum, but rather what the Petitioner and the American public, as promisees, were justified in understanding that intent to be. There is no sound reason to suffer the harms in question because the U.S. District Court, Eastern District of Pennsylvania incorrectly dismissed the Promissory Estoppel claim. Judge Surrick claimed the DNC’s promises were not actually promises but instead of statement of intentions. Judge Surrick went on further claiming “The ‘promises’ that Plaintiff identifies arc statements of principle and intent in the political realm. They are not enforceable promises under contract law. Indeed, our political system could not function if every political message articulated by a campaign could be characterized as a Legally binding contact enforceable by individual voters, Of course, voters are free to vote out of office those politicians seen to have breached campaign promises and Federal courts, however, are not and cannot be in the business of enforcing political rhetoric.”

The DNC and Obama made promises in writing which were posted on their website to lure people to donate money based on their promises. The DNC named this document “Renewing America’s Promise,” which presents the 2008 Democratic National Platform. In this document, the DNC promises among other things “use technology to make government more transparent, accountable and inclusive,” “maintain and restore our Constitution to its proper place in our government and return our Nation to the best traditions, including their commitment to government by law” and “work fully to protect and enforce the fundamental Constitutional right of every American vote — to ensure that the Constitution’s promise is fully realized”.

Obama placed on his website and stated on national television his promise to open and honest Government and his promise to truthfully answer any questions asked of him.

As a result of his detrimental reliance on these promises, Plaintiff donated money and billable hours to Democratic Presidential candidates as well as the Democratic National Committee.

The DNC did in fact break promises by promoting an illegal candidate to run for and serve, if elected, as President of the United States, clearly in violation of the United States Constitution and in violation of their promise to enforce the fundamental Constitutional rights of every American voter. Furthermore, Obama has not answered, in an honest manner, questions about his citizenship. Moreover, Obama has breached his promise to uphold our Constitution; Obama is a Constitutional lawyer and is well aware he is ineligible to serve as the United States President. This is hardly an example of being open and honest, this is hardly an example of open and honest government, and it is neither the way to uphold our United States Constitution, nor the Oath of Office taken by Obama.

According to Berg, a television crew from Fox News Channel will be present to follow him as he files the documents at the U.S. Supreme Court. Furthermore, a rally is being planned for 3:00 p.m. today on the steps of the Court.

As I’ve written over the past few days, however, the odds of the writ being granted and the case actually being heard by the U.S. Supreme Court are slimmer than slim. Still, Berg is optimistic.

"We are at a crucial time for the United States of America," Berg said. "I am hopeful that the Supreme Court will do what is necessary to avoid a certain constitutional crisis."

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