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Monday, February 22, 2010

Court Grants Motion for Leave to File Overlength Brief in Kerchner Appeal...

JAMESBURG, NJ – (Feb. 22, 2010) - On January 19, 2010, I filed the Appellants' Opening Brief in the appeal of Kerchner et al. v. Obama et al. which is currently pending in the Third Circuit Court of Appeals in Philadelphia. In that appeal, we maintain that the New Jersey Federal District Court erred in dismissing our case by ruling that plaintiffs do not have standing to challenge Obama's alleged eligibility to be President and Commander in Chief of the Military and that our case presents a non-justiciable political question. In our case, we have provided the Founder’s and Framers’ definition of an Article II “natural born Citizen” which is a child born in the country to citizen parents. We maintain that Obama is not an Article II “natural born Citizen” because he lacks unity of citizenship and allegiance from birth which is obtained when a child is born in the United States to a mother and father who are both United States citizens at the time of birth. Obama’s father was only a temporary visitor to the United States when Obama was born and never even became a resident let alone a citizen. Not being an Article II “natural born Citizen,” Obama is not eligible to be President and Commander in Chief.

We also maintain that Obama has failed to conclusively prove that he was born in Hawaii by publicly presenting a copy of a contemporaneous birth certificate, a long-form birth certificate providing the name of the hospital in which he was born and other corroborating data which was generated when he was born in 1961 and not simply a digital image of computer generated Certification of Live Birth [COLB] allegedly obtained from the Hawaii Department of Health in 2007 which some unknown person posted on the internet in 2008, or other contemporaneous and objective documentation. At the bottom of Obama’s Certification of Live Birth (COLB), it states: "This copy serves as prima facie evidence of the fact of birth in any court proceeding." Under the concept of prima facie evidence, the presumption that the fact exists fails when evidence contradicting that fact is presented and in such case the interested party needs to present other competent evidence to prove the existence of that alleged fact. If he fails to do so, the alleged fact is not proven, even if the opposing party produces no further evidence. There exists a considerable amount of evidence which puts serious doubt on Obama’s allegation that he was born in Hawaii. To date, Obama has presented no additional evidence other than the internet image of his Certification of Live Birth (COLB) and two unreliable newspaper announcements regarding where he was born. Hence, the prima facie validity of the Certification of Live Birth (COLB) must fail and Obama should be compelled to produce other objective, credible, and sufficient evidence of where he was born such as a contemporaneous birth certificate from 1961. Having failed to meet his constitutional burden of proof under Article II, Section 1, Clause 5, we cannot accept Obama as a “natural born Citizen.”

Circuit Court of Appeals rules provide that an appellant’s opening brief is not to exceed 14,000 words. Because of the extraordinary nature and complexity of the question of whether putative President Barack Obama is an Article II “natural born Citizen” and therefore eligible to be President, whether my clients (the plaintiffs) have standing to bring an action against Obama and Congress in which they maintain that Obama is not a “natural born Citizen” and that Congress failed to meet its constitutional duty to protect my clients by assuring them that Obama is a “natural born Citizen,” and whether plaintiffs’ action presents a nonjusticiable political question which the courts cannot address, I was compelled to file a brief which contained 20,477 words. So that the Court would accept the overlength brief, I filed a motion with the Court for leave to file the overlength brief.

By order dated February 22, 2010, the Honorable Circuit Judge Michael A. Chagares on behalf of the Motion's Panel of the Third Circuit Court of Appeals granted plaintiffs’ motion for leave to file the overlength brief. This is great news because the case will now continue forward as scheduled. Obama’s and Congress’s opposition brief was initially due on February 22, 2010. The Department of Justice obtained a 14-day extension to file that brief, making the new due date March 8, 2010. After they file their opposition brief, I will then have 14 days within which to file a reply to that brief. All briefs will be posted at this blog and it is my hope that the public will read these briefs so as to stay fully informed on this issue that is critically important not only to my clients but also to our Constitutional Republic.

Mario Apuzzo, Esq.
February 22, 2010

CONTACT: Mario Apuzzo, Esq.
Jamesburg, New Jersey
Tel: 732-521-1900
Fax: 732-521-3906

22 February 2010 11:00 P.M. EST


Commander Kerchner's statement HERE.



  1. Since his father was never an American citizen of any kind shouldn't that alone nullify his ability to serve as President and Commander in Cheif with no further evidence necessary?

  2. does this mean that any bills passed as pres will become null and void?

  3. I just want to thank you for doing what is constitutional. If Obama can't prove his citizenship, he has NO RIGHT being in office.

  4. Mario.

    Have you looked into the Hawaiian Revised Statutes, particularly HRS 338-13?

    It appears there are three separate and different certified documents the HDOH 'shall' provide on application.

    1. a copy of the original (an image of the original BC)
    2. a copy of the contents (all the contents, because the third option is a 'part')
    3. part thereof (aka a COLB)

    It is only a 'copy of the contents' that can be 'considered for all purposes the same as the original' birth certificate.

    The 'part thereof' is excluded from being 'considered for all purposes the same as the original'.

    Basically a COLB cannot be used as a BC according to HRS and even federal advice is that a copy of an ioriginal is preferred and in many cases required to establish US citizenship.

    Please read HRS 338-13.

    In light of this you might also consider 'pre-emption' as regards to state statutes & federal statutes.

    Federal Pre-emption of State Law.

    Look it up, apparently I can't post links here, I have typed them manuallty, but they may not get to show, but I have sent Orly the relative URLs (links), you might contact her to get a copy of what I sent her.


    Michael Norris

  5. All questions for Mario Apuzzo need to be addressed to him at his blog:

    Mario Apuzzo, Esq.;

  6. AWESOME!!!!!!!!!!!!! way to go!!!!! If I can help in any way please let me know!!!!!

  7. Quo Lorento...determining whether a person has the right and power to govern or exercise power. When a person spends 1.7 million dollars covering up important documents that verify his right to be the President...that should be enough to warrant inspection and interrogation of those documents.

  8. The overlength brief motion was unopposed. If they wanna make a big deal out of it being granted, maybe it will help the paypal ring. But, it was unopposed. No big deal.

  9. Yes, no big deal! I wonder why the DOJ had to file an extension to file the opposition brief!?

    Obama & Gang granted extension in Kerchner vs Obama/Congress et al...

    Obama and Congress Request and Obtain Extension of Time to File Opposition Brief to Kerchner Appeal;


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