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- -------------------- ------------------ --------------------- --------x Christopher-Earl: Strunk , i n e s s e

- -------------------------------------------------------------------x

Christopher-Earl: Strunk, in esse

Plaintiff / Appellant,

-against-

NEW YORK STATE BOARD OF ELECTIONS;

JAMES A.WALSH / Co-Chair, DOUGLAS A. KELLNER / Co-Chair, EVELYN J. AQUILA / Commissioner, GREGORY P. PETERSON / Commissioner, Deputy Director TODD D. VALENTINE, Deputy Director STANLEY ZALEN; ANDREW CUOMO, ERIC SCHNEIDERMAN, THOMAS P. DINAPOLI, RUTH NOEMÍ COLÓN, in their Official and individual capacity; Fr. JOSEPH A. O'HARE, S.J.; Fr. JOSEPH P. PARKES, S.J.; FREDERICK A.O. SCHWARZ, JR.; PETER G. PETERSON, ZBIGNIEW KAIMIERZ BRZEZINSKI; MARK BRZEZINSKI; JOSEPH R. BIDEN, JR.; SOEBARKAH (a.k.a. Barry Soetoro, a.k.a. Barack Hussein Obama II, a.k.a. Steve Dunham); NANCY PELOSI; DEMOCRATIC STATE COMMITTEE OF THE STATE OF NEW YORK; STATE COMMITTEE OF THE WORKING FAMILIES PARTY OF NEW YORK STATE; RÓGER CALERO; THE SOCIALIST WORKERS PARTY; IAN J. BRZEZINSKI; JOHN SIDNEY MCCAIN III; JOHN A. BOEHNER; THE NEW YORK STATE REPUBLICAN STATE COMMITTEE; THE NEW YORK STATE COMMITTEE OF THE INDEPENDENCE PARTY; STATE COMMITTEE OF THE CONSERVATIVE PARTY OF NEW YORK STATE; PENNY S. PRITZKER; GEORGE SOROS; OBAMA FOR AMERICA; OBAMA VICTORY FUND; MCCAIN VICTORY 2008; MCCAIN-PALIN VICTORY 2008; John and Jane Does; and XYZ Entities.

Defendants / Respondents.

APPEAL CASE

INDEX NO.:

2012-05515

APPELLANT’S APPEAL BRIEF

Christopher-Earl: Strunk in esse, Plaintiff –Appellant / Private US Citizen Self-represented w/o being an attorney 593 Vanderbilt Avenue #281, Brooklyn, New York 11238. 845-901-6767 E-mail: chris@strunk.ws

Plaintiff / Appellant

Christopher-Earl: Strunk in esse Appellant self-represented w/o attorney 593 Vanderbilt Avenue #281 Brooklyn, New York 11238 Ph. 845-901-6767 Email: chris@strunk.ws

Defendants / Respondents

ERIC T. SCHNEIDERMAN Attorney General of NYS by: CLAUDE PLATTON, Esq. AAG Assistant Attorney General 120 BROADWAY – 25th Floor New York, New York 10271-0332 Telephone (212) 416-8020 Email: ,lisa.dell@ag.ny.gov,

Representing: NEW YORK STATE BOARD OF ELECTIONS:

JAMES A. WALSH, DOUGLAS A. KELLNER, Co-Chairs EVELYN J. AQUILA / Commissioner, GREGORY P. PETERSON / Commissioner, Deputy Director TODD D. VALENTINE, Deputy Director STANLEY ZALEN; ANDREW CUOMO, ERIC SCHNEIDERMAN, THOMAS P. DINAPOLI, RUTH NOEMÍ COLÓN, in their Official and individual capacity; DEMOCRATIC STATE COMMITTEE OF THE STATE OF NEW YORK; STATE COMMITTEE OF THE WORKING FAMILIES PARTY OF NEW YORK STATE; THE NEW YORK STATE REPUBLICAN STATE COMMITTEE; THE NEW YORK STATE COMMITTEE OF THE INDEPENDENCE PARTY; STATE COMMITTEE OF THE CONSERVATIVE PARTY OF NEW YORK STATE;

Telephone:

Todd E. Phillips, Esq. of CAPLIN & DRYSDALE, CHARTERED One Thomas Circle, N.W., Suite 1100, Washington, DC 20005

212-319-7125 / 202-862-5000

Email: rtobin@capdale.com,

Representing: JOHN SIDNEY MCCAIN III; MCCAIN VICTORY 2008; MCCAIN-PALIN VICTORY 2008;

i

THOMAS J. GARRY, Esq. of

HARRIS BEACH, PLLC The OMNI 333 Earle Ovington Blvd., Suite 901 Uniondale, New York 11553

Telephone: 516-880-8484

Email: walbert@harrisbeach.com,

kcorbett@harrisbeach.com, tgarry@harrisbeach.com,

Representing:

JOSEPH R. BIDEN, JR.; SOEBARKAH (a.k.a. Barry Soetoro, a.k.a. Barack Hussein Obama II, a.k.a. Steve Dunham); NANCY PELOSI; PENNY S. PRITZKER; OBAMA FOR AMERICA; OBAMA VICTORY FUND

JAMES C. DUGAN Esq. of WILLKIE FARR & GALLAGHER LLP 787 Seventh Avenue New York, N.Y. 10019-6099 Telephone: 212-728-8000 Email: jdugan@willkie.com,

Representing: GEORGE SOROS;

MARSHAL BELL, Esq. of McGUIRE WOODS LLP 1345 Avenue of Americas, 7th Floor New York, New York 10105 Telephone: 212-548-7004 Email: mbeil@mcguirewoods.com,

Representing: ZBIGNIEW KAIMIERZ BRZEZINSKI; MARK BRZEZINSKI; IAN J. BRZEZINSKI;

TODD A. BROMBERG ESQ. of WILEY REIN LLP - 1776K Street, NW Washington D.C. 20006 Telephone: 202-719-7000 Email: "Thomas Kirby" <TKirby@wileyrein.com>, tbromberg@wileyrein.com, jbaran@wileyrein.com,

Representing: JOHN A. BOEHNER;

ii

Christopher J. Latell Esq. and Daniel S. Reich Esq. of RABINOWITZ, BOUDIN, STANDARD, KRINSKY & LIEBERMAN, PC – 45 Broadway, Suite 1700 New York, New York 10006-3791

Telephone: 212-254-1111

Representing: RÓGER CALERO; THE SOCIALIST WORKERS PARTY

Erica Burke, Esq. of SIMPSON THACHER & BARTLETT LLP 425 Lexington Avenue New York. New York 10017-3954 Telephone: 212-455-2000 Email: eburk@stblaw.com

Representing: PETER G. PETERSON

MICHAEL CARDOZO Corporation Counsel of City of New York By: CHLARENS ORSLAND, Esq. Assistant Corporation Counsel New York City Law Department 100 Church Street New York, New York 10007 Telephone: (212) 788-0904 email: corsland@law.nyc.gov,

Representing: Fr. JOSEPH A. O'HARE, S.J.; Fr. JOSEPH P. PARKES, S.J.; FREDERICK A.O. SCHWARZ, JR.;

iii

APPELLANT BRIEF

TABLE OF CONTENTS

Parties………………………………….…………………………………… …….i

Introduction……………………………………………………… ……… ……

2

Related Cases…………………………………………………………………….…3

Summary of the Decision and Order for Sanctions and Costs ……… …………11

Argument in Favor of remand and consolidation with active trial court cases…

13

Statement of questions presented…………………………………………………26

The New York State Board of Elections and State agents maliciously failed to provide Strunk due process and equal protection with EL §3-106 and related law is properly before the Court under EL §16-100 jurisdiction and authority…………28

Issues on Appeal:

The Actions of the State to Deny Equal Protection and Due process…

.

The Actions of the State to Facilitated the Fraud for ineligible candidates.

The Actions of the State under color of State Law regarding HAVA and Section 5 of the Voting Rights Act by changing the POTUS eligibility from “natural born Citizen” to “born a Citizen” as if under the 14 th Amendment

The Actions of Ineligible candidates and campaign agents to facilitate fraud

That Sedition is the subversion intended to be prevented under EL §3-106

iv

FAILURE TO HAVE STANDING? …………………………………………….32

FAILURE TO STATE A CAUSE OF ACTION? ……………………………….33

FAILURE TO PLEAD FRAUD WITH PARTICULARITY? ………………….33

FAILURE TO SHOW THAT THE COURT HAS JURISDICTION? ………… 34

THAT STRUNK’S COMPLAINT IS FRIVOLOUS? ………………………… 35

The Judiciary as the political co-equal branch under separation of power duty and obligation is to interpret the U.S. Constitution and Laws in this case not the Legislature and or Executive as related to the NYS Board of Election agents … 35

42

All Litigants Have A Right To Impartial And Considered Justice……………… 51

Plaintiff has been a dedicated and loyal New York State Citizen………………

NATURAL BORN CITIZEN is not only BORN A CITIZEN…………………

53

Conclusion In Support of Equity Relief and Remand……………….………

…57

That res judicata and or collateral estoppel do not apply to Strunk’s complaint….58 Statement on word count …………………………………………………………59

Jurat verification………………………………………………………………… 60

AUTHORITIES………………………………………………………………

… vi

APPENDIX and Index as a separate single Volume with page marked “APX –XX”

PDF of the BRIEF and APPENDIX is at http://www.scribd.com/doc/94586470/

v

AUTHORITIES

NEW YORK STATE AUTHORITIES

April 20, 1777 New York Constitution

July 26, 1788 New York Ratification of the US Constitution

NEW YORK STATE STATUTES

EL §3-107 Powers and duties of the state board of elections respecting elections and crimes against the elective franchise (see footnote 8)

EL §3-106 Fair campaign code.(see footnote 5)

EL §3-105 Administrative complaint procedure. (see footnote 7)

EL §3-104 State board of elections; enforcement powers.(see footnote 6)

Help America Vote Act of 2002 (HAVA)

EL §16-100

NYS Election Law Article 12

vi

 

Page

….

17,18,20

….

17

….

….

6,59,

….

4,27,28,29,59

….

5,59

….

5,59

….

4-6,29,59,

….

2,26,28,37

….

2

NYS Civil Rights Chapter 6 Article 2 “Bill of Rights” §10

CPLR §213

STATE CASES

Lynch v. Clarke, 1 Sandf. Ch. 583 of 1844

Ludlam v. Ludlam 26 NY 256 (1863)

Muka v. New York State Bar Association. 120 Misc. 2d 897 (Sup. Ct. Tompkins County 1983)

Matter of Meehan v County of Westchester, 3 AD3d 533,534 [2d Dept 2004)

FEDERAL AUTHORITIES

U.S. Constitution Article 2 Section 1 Clause 2 (A2S1C2)

U.S. Constitution Article 2 Section 1 Clause 5 (A2S1C5)

the 14 th Amendment to the US Constitution

the 25 th Amendment to the US Constitution

FEDERAL CASES

vii

….

13

….

2,3

….

22

….

22

….

52

….

16

….

16,26,34,38

….

16,19,22,29,3

8

….

26,29,45-

48,51,57,

….

38,55

McPherson v. Blacker, 146 U.S. 1 (1892)

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995)

Storer Et al. v. Brown, Secretary Of State of California, Et Al. 415 U.S. 724 (1974)

Neitzke v Williams, 490 U.S. 319, 325 [1989]

Rogers v. Bellei, 401 U.S. 815 (1971)

Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875)

U.S. v. Wong Kim Ark, 169 U.S. 649 (1898)

The Venus, 12 U.S. (8 Cranch) 253, 289 (1814)

Inglis v. Sailors’ Snug Harbor, 28 U.S. 99 (1830)

Shanks v. Dupont, 28 U.S. 242, 245 (1830)

Dred Scott v. Sandford, 60 U.S. 393 (1857)

viii

….

20,26

….

21,27

….

28

….

28

….

28

….

33

….

45

….

26,43-48, 50

….

26, 44-51,

….

47

….

47

….

47

….

47

Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879)

United States v. Ward, 42 F.320 (C.C.S.D. Cal. 1890)

Slaughter-House Cases, 83 U.S. 36 (1872)

Elk v. Wilkins, 112 U.S. 94 (1884)

Perkins v. Elg, 307 U.S. 325 (1939)

Schneider v. Rusk, 377 U.S. 163 (1964)

Faretta v. California, 422 U.S. 806, 821-22 (1975)

Liberty Legal Foundation et al v. National Democratic Party of the USA, Inc. et al, Case No. 12-2143-STA

FEDERAL STATUTES

3 U.S.C. Sec. 15

the 1922 Cable Act

US Immigration and Nationality Act

Voting Rights Act of 1965 (VRA)

ix

….

48

….

48

….

48

….

48

….

48

….

48

….

14

….

50

….

29

….

40

….

39

….

55

OTHER FEDERAL AUTHORITIES

The Declaration of Independence of 1776

The Articles of Confederation of March 1, 1781

The Constitution for the United States of America ratified by the People of New York on July 26, 1788

The Federalist No. 68, Alexander Hamilton

OTHER AUTHORITIES

6500-2011 Original Record on Appeal Subpoenaed February 13, 2013 in accord with CPLR 5526

29642-2008 Original Record on Appeal with request for Subpoena on February 13, 2013 in accord with CPLR 5526

x

….

18

….

17

….

17

….

38

….

2,9,

….

7,

….

14

….

20

….

23

….

23

….

23

“Politics, Book Three, Part II, Aristotle, writing in 350 B.C.E., as translated by Benjamin Jowett

The Select Orations of Marcus Tullius Cicero, According to the last Oxford Edition 17 (Henry Eelbeck trans. London

1720)

Story on the Constitution, sec. 387

British Nationality Act of 1948 (Part II, Section 5)

the United Kingdom. Chapter VI, Section 87 of the Kenyan Constitution

An Unresolved Enigma, 28 Md. L.Rev. 1, 5 (1968).by Charles Gordon

Related cases:

Strunk v Paterson et al. NYS Supt Ct. Kings County Index No.: 29642-08

Strunk v Jeffries et al. NYS Supt Ct. Kings County Index No.: 21948-12

In re Christopher arl Strunk in esse Petition DC Circuit Original Proceeding 13-5005-OP

xi

….

21

….

21

….

35

….

23

….

23

….

43,50,

….

3,4,9,12,57-

59,

….

8,10,58,

….

8,

--------------------- ------------------ --------------------- --------x Christopher-Earl: Strunk , i n e s s e

--------------------------------------------------------------------x Christopher-Earl: Strunk, in esse

Plaintiff / Appellant,

-against-

NEW YORK STATE BOARD OF ELECTIONS;

JAMES A.WALSH / Co-Chair, DOUGLAS A. KELLNER / Co-Chair, EVELYN J. AQUILA / Commissioner, GREGORY P. PETERSON / Commissioner, Deputy Director TODD D. VALENTINE, Deputy Director STANLEY ZALEN; ANDREW CUOMO, ERIC SCHNEIDERMAN, THOMAS P. DINAPOLI, RUTH NOEMÍ COLÓN, in their Official and individual capacity; Fr. JOSEPH A. O'HARE, S.J.; Fr. JOSEPH P. PARKES, S.J.; FREDERICK A.O. SCHWARZ, JR.; PETER G. PETERSON, ZBIGNIEW KAIMIERZ BRZEZINSKI; MARK BRZEZINSKI; JOSEPH R. BIDEN, JR.; SOEBARKAH (a.k.a. Barry Soetoro, a.k.a. Barack Hussein Obama II, a.k.a. Steve Dunham); NANCY PELOSI; DEMOCRATIC STATE COMMITTEE OF THE STATE OF NEW YORK; STATE COMMITTEE OF THE WORKING FAMILIES PARTY OF NEW YORK STATE; RÓGER CALERO; THE SOCIALIST WORKERS PARTY; IAN J. BRZEZINSKI; JOHN SIDNEY MCCAIN III; JOHN A. BOEHNER; THE NEW YORK STATE REPUBLICAN STATE COMMITTEE; THE NEW YORK STATE COMMITTEE OF THE INDEPENDENCE PARTY; STATE COMMITTEE OF THE CONSERVATIVE PARTY OF NEW YORK STATE; PENNY S. PRITZKER; GEORGE SOROS; OBAMA FOR AMERICA; OBAMA VICTORY FUND; MCCAIN VICTORY 2008; MCCAIN-PALIN VICTORY 2008; John and Jane Does; and XYZ Entities.

Defendants / Respondents.

APPEAL CASE

INDEX NO.:

2012-05515

APPELLANT’S APPEAL BRIEF

STATE OF NEW YORK ) } ss:

COUNTY OF KINGS

)

Accordingly, I, Christopher-Earl: Strunk, being duly sworn. depose and say:

Appellant’s Brief for Appeal Index No.: 12-05515 – Page 1 of 60

LNTRODUCTION

1. This is Appellant's Appeal Brief organized according to the preceding Table

of Contents with Appellant's Appendix annexed as a separate volume with an

underlying set of Constitutional issues to be heard by the NYS Court of Appeals;

and that the Brief with Appendix was ordered to be filed with the Court with an

extension of time to perfect due by February 22,20 13 (see APX - 6)' with a

Second extension by letter application filed February 20,2013 (see APX - 1)

extended to March 8,2013 and motion requesting March 27,20 13 accordingly;

2. That the Original Record on Appeal Subpoenaed February 13,2013 in

accord with CPLR 5526 due on February 28,2013 (see APX - 3) based upon the

Certification of the Transcript of the Case with Index No.: 6500-2011 (APX - 4).

3. Appellant is self-represented without an attorney who filed a Notice of

Appeal (APX - 17) including various Notices of Entry by Defendants, and with

the "Request for Appellate Division Intervention - civil" (APX - 10) fic~meach

and every part of the April 1l,2012 Order and Decision (APX - 106) that

dismissed with prejudice and sanctions without a Judgment for costs issued to date

in regards to the civil Complaint filed March 22'20 11 with Index No.: 6500-2011

using CPLR $213 six year statutory basis fiom discovery of fraud ('I (APX - 460)

I Plaintiff's introductory statement on page one of the Complaint: "PlaintzflChristopher-Earl:

Strunk in esse, us andfor the ComplaintJiledwithjurisdiction of New York State Election Law Article $1 6-100 over Article 12 related to the November 4, 2008 General Election inter ulia

Appellant's Brief for Appeal Index No.: 12-05515 - Page 2of 60

and Amended Summons (APX - 841) with Defendants' response by eight (8)

counsels representing groups listed in the above Caption who filed motions to

dismiss (MTD); and that the New York State Attorney General's office though

appearing did not either answer or provide any filing for the State Agency and or

Officer Parties and State Political Parties, either in their official or individual

capacity, appeared to answer the Summons and Complaint duly served.

Related Cases

4. That there are a set of related cases that are impacted by this appeal case:

i. That on 12 November 20 10, Plaintiff in

Strunk v Paterson et al. Index

No.: 29642-08 filed a Notice of Motion for leave to file a First

Amended Complaint (2) that was adjourned by stipulation and then

heard on January 11,2011 before the Honorable David I. Schmidt who

denied the motion to amend (APX 546) without a transcript instead

suggested rather than amend file a new complaint; and to wit Plaintiff

memorialized the hearing with an affidavit filed in the case record (3),

equity relief and damages caused by an ongoing scheme to dej?aud with CPLR $213 Actions to be commenced within six years, upon information and belief and at all times hereinafter mentioned, respectfully allege of Defendants asfollows:"

"1 3. That the Court asked why Plaintiff does not just go ahead andfle a new case rather than try to amend the 2008 case; to wit, Plaintzflbased upon information and belief expressed

Appellant's Brief for Appeal Index No.: 12-05515 - Page 3 of 60

and on March 22,201 1 filed the new complaint with Index No.: 6500-

201 1 by the defective RJI (APX - 406) assigned to Arthur M. Schack;

ii. That the final disposition of the Complaint Strunk v Paterson et al. with

Index No.: 29642-08 (APX - 509) is still carried by the Clerk as

"ACTIVE" so that a final order is not yet issued to appeal from and that

Justice Schmidt erred by holding that there is no cause of action for

"sedition" per se (41 that is synonymous with the intent of the State

legislature's use of the term "subversion" in EL §3-106(~);and is

expressed in the state law amended by HAVA that requires due process

concern the statutory time that haspassed since the 2008 Election requires Plaint@"standing depend upon amending the case rather thanJiling a new one."

In law, sedition is overt conduct, such as speech and organization, that is deemed by the legal authority to tend toward insurrection against the established order. Sedition often includes subversion of a constitution and incitement of discontent (or resistance) to lawful authority. Sedition may include any commotion, though not aimed at direct and open violence against the laws. Seditious words in writing are seditious libel. A seditionist is one who engages in or promotes the interests of sedition.

Typically, sedition is considered a subversive act, and the overt acts that may be prosecutable under sedition laws vary fiom one legal code to another. Where the history of these legal codes has been traced, there is also a record of the change in the definition of the elements constituting sedition at certain points in history. This overview has served to develop a sociological definition of sedition as well, within the study of state persecution.

Under the NYS Election Law $3-106. Fair campaign code. 1. In addition to the powers and duties elsewhere enumerated in this article, the state board of elections, after public

hearings, shall adopt a "fair campaign code" setting forth ethical standards of conduct for

persons, political parties

limited to,

practices involving subversion of the political parties and process. (Emphasis added by

Plaintiff)

and

committees engaged in election campaigns including, but not

political

specific prohibitions against practices of political espionage and other

Appellant's Brief for Appeal Index No.: 12-05515 - Page 4 of 60

by the State Board of Elections under EL 53-102 with EL $3-104

has

both an administrative duty and statutory mandate with EL 53-105 '7' as

-

ELN § 3-104. State board of elections; enforcement powers. 1. The state board of

elections shall have jurisdiction of, and be responsible for, the execution and enforcement of the provisions of article fourteen of this chapter and other statutes governing campaigns, elections and related procedures.

2. Whenever the state board of elections or other board of elections shall determine, on its

own initiative or upon complaint, or otherwise, that there is substantial reason to believe a violation of this chapter or any code or regulation promulgated thereunder has occurred, it shall expeditiously make an investigation which shall also include investigation of reports and statements made or failed to be made by the complainant and any political committee supporting his candidacy if the complainant is a candidate or, if the complaint was made by an officer or

member of a political committee, of reports and statements made or failed to be made by such political committee and any candidates supported by it. The state board of elections, in lieu of making such an investigation, may direct the appropriate board of elections to make an

investigation. The

the state police in any investigation it shall conduct.

state board of elections may request, and shall receive, the assistance of

3. If, after an investigation, the state or other board of elections finds reasonable cause to

believe that a violation warranting criminal prosecution has taken place, it shall forthwith refer the matter to the district attorney of the appropriate county and shall make available to such district attorney all relevant papers, documents, testimony and findings relevant to its investigation.

4. The state or other board

of elections may, where appropriate, commence a judicial

proceeding with respect to the filing or failure to file any statement of receipts, expenditures, or

contributions, under the provisions of this chapter, and the state board of elections may direct the appropriate other board of elections to commence such proceeding.

5. The state board of elections may promulgate rules and regulations consistent with law to

effectuate the provisions of this section.

ELN 5 3-105. Administrative complaint procedure. 1. The state board of elections shall establish and maintain a uniform, nondiscriminatory administrative complaint procedure pursuant to which any person who believes that there is a violation (including a violation which has occurred or is occurring or is about to occur) of any provision of title three of the federal Help America Vote Act of 2002 (HAVA), may file a complaint. 2. Initially, any such complaint may be made orally, in person or by telephone, or in writing. Such complaints may be made to the state board of elections or with any local board of elections. A toll-free number shall be made available therefor for telephone calls to the state board of elections. Complaints shall be addressed by election officials expediently and informally whenever possible. 3. All formal complaints shall be filed with the state board of elections. All formal complaints shall be written, signed and sworn by the complainant. The complainant shall use a complaint form promulgated by the state board of elections. The state board of elections or a local board of elections shall assist any person with a disability who requests assistance to

Appellant's Brief for Appeal Index No.:

12-05515 - Page 5 of 60

to EL $3-107

shall provide Plaintiff due process to investigate a

file a complaint. Complaints raising similar questions of law and/or fact may be consolidated by the state board of elections. 4. Upon the written request of the complainant, there shall be a hearing on the record,

unless prior to the hearing, the state board of elections, in accordance with subdivision four of section 3-100 of this article, sustains the formal complaint as being uncontested. Any party to the hearing may purchase a transcript of such hearing.

5. The evidentiary standard applied to all formal complaints shall be a preponderance of the

evidence.

6. Hearings shall be conducted by a panel of two commissioners of the state board of

elections of opposite parties or senior staff members of opposite parties as selected by the commissionersof that party. If the panel does not agree to sustain the complaint, the formal complaint shall be deemed dismissed and shall constitute the determination of the panel.

7. The determination of the hearing panel will be final unless changed by the state board of

elections pursuant to subdivision four of section 3-100

the filing of the formal complaint. A final determination shall be filed and published

state board of elections within ninety days after the filing of the formal complaint, unless the

complainant agrees to a longer period of time. When a violation has been found, the final determination shall include an appropriate remedy for any violation of Title I11 of the Help America Vote Act of 2002 (HAVA) found by the state board of elections. A final determination dismissing a formal complaint may be filed by any one member of the hearing panel.

of this article, within ninety days of

by the

8. Whenever a final determination of a formal complaint is not made within ninety days, or

any other longer agreed upon time period, the state board of elections shall refer the formal complaint to an independent, alternative dispute resolution agency. Such hearings and determinations shall be conducted by the alternative dispute resolution agency pursuant to regulations promulgated by the state board of elections pursuant to subdivision four of section 3-100 of this article. Such agency shall have sixty days, from the expiration of the original ninety day time period, or any other longer agreed upon time period, to make a final

determination. The state board of elections shall contract, pursuant to subdivision four of section 3-100 of this article with one or more such alternative dispute resolution entities for this specific purpose.

9. No provision of this section shall be construed to impair or supersede the ri~htof

an aggrieved pa* to seek a iudicial remedy including a iudicial remedy concerning any final determination made pursuant to subdivision eight of this section. The state board of elections shall provide notice to all complainants of the provisions of this

subdivision. (Emphasis added by Plaintiff)

ELN

3-107. Powers and duties of the state board of elections respecting elections and

crimes against the elective franchise. Authority is hereby conferred upon the state board of elections to appoint a special investigator to take charge of the investigation of cases arising under the election law, and to appoint such additional special investigators and employees as it may deem necessary, and fix their compensation, within the limits of appropriation available therefor, and assign them to any election district or districts for the purpose of enforcing the

provisions of the election law. Moneys appropriated for carrying out the provisions of this

Appellant's Brief for Appeal Index No.: 12-05515 - Page 6 of 60

claim of sedition or subversion that undermines election process, and

that a Certification of the Transcript with a second request of the

Appellate Clerk for a Subpoena of the original record is pending

section shall be paid out of the state treasury on the audit and warrant of the comptroller upon the certificate of the state board.

Such special investigators shall, when directed by the state board of elections, investigate qualifications of persons to register or vote and violations of the election law. Any such special investigator may:

1. Visit and inspect any house, dwelling, building, inn, lodginghouse, boarding-house,

rooming-house, or hotel and interrogate any inmate, house-dweller, keeper, caretaker, owner, proprietor or landlord thereof or therein, as to any person or persons residing or claiming to

reside therein or thereat. 2. Inspect and copy any books, records, papers or documents relating to or affecting the election or the registration of voters, or require the board or officer in charge thereof to furnish a copy of any such record, paper or document without charge.

3. Require any lodging-house, boarding-house or rooming-house keeper, landlord or

proprietor to exhibit his register of the lodgers therein at any time to such special investigator.

4. Procure warrants of arrest and cause to be taken into custody the person or persons named in such process.

5. Go within the guard-rail at any polling place at any election. Any such special investigator

also shall have all of the powers of a peace officer as set forth in section 2.20 of the criminal procedure law, for the purpose of enforcing the provisions of this chapter. Any person who neglects or refuses to furnish any information required by the election law or authorized herein, or to exhibit records, papers or documents herein authorized to be inspected or which are required to be exhibited, shall be guilty of a misdemeanor. The state board or any of its special investigators shall have power to issue subpoenas or subpoenas duces tecum, administer oaths and examine witnesses under oath, for the purpose of investigating any matter within the jurisdiction herein prescribed for the purpose of aiding the state board in enforcing the provisions of the election law. Such subpoenas shall be issued in the name of the state board of elections. Such subpoenas may be served by any special investigator or by any police officer or peace officer who is acting pursuant to his special duties. Any person who shall omit, neglect or rehse to obey a subpoena attested in the name of the state board of elections or who shall rehse to testify under or in pursuance thereof shall be guilty of a misdemeanor. Any such special investigator may call upon any member of the police, sheriff, deputy sheriff, constable or other public officer, or any person, to assist him in carrying out the provisions of this section. Any such officer or person who shall fail to render the assistance so demanded or who shall wilhlly hinder or delay such special investigator in the exercise of any power or the performance of any duty shall be guilty of a misdemeanor.

Appellant's Brief for Appeal Index No.: 12-05515- Page 7 of 60

consideration (APX - 390), and still active before the Honorable David

I. Schmidt J.S.C.; and that such status is notwithstanding the motion for

intervention by a third party that was denied and taken on Appeal case

2012-0766 with a Appeal Court direct appeal denied (APX -392);

iii. There is a related current Article 78 Petition Strunk v Jeffiies et a1 Index

No.: 2 1948 / 20 12 that challenges the incompatibility of POTUS

Electors using the law of the case determined by Justice Schmidt in the

Petition 29641-08 defining the incompatibility of various 2008 election

cycle Electors for the Obarna / Biden slate with motions to dismiss

pending before the Honorable David I Schmidt J.S.C. with a Note of

Issue filed for a trial of the facts (9); and

iv. There is a related Original Proceeding in re: Christopher-Earl: Strunk in

esse a private U.S. Citizen secured beneficiary Petition For A Writ Of

Mandamus involving Federal issues Case No.: 13-5505-OP before a

judicial panel of the U.S. Court of Appeals for the Washington District

of Columbia Circuit (lo)with a motion for fee relief pending;

5.

That on 22 August 20 11 there was a hearing on the various Motions to

Dismiss the Complaint with Index No.: 6500-2011 (MTD) and Cross Motion to

Transfer and Consolidate with 29642-2008, and with appearance of Defendants'

Counsels before the Honorable Arthur M. Schack J.S.C. (Judge Schack) with a

Transcript record of the hearing (APX - 326) of the Motions to Dismiss; and that

for the purpose of brevity herein although germane to the underlying Complaint,

are part of the Original Record transferred to this Court without arguing each

related motion that in total would be contained in a three volume appendix set that

would burden this appeal brief that must use only 14,000words herein. As such

there are three (3) basic motions and one (1) application for an order to show cause

in this appeal that all are included herewith to establish the basis to remand to trial

court for further action there:

First- the Pro Hac Vice Motion by Washington DC Counsel to Defendant John

S. McCain I11 et al. (APX - 410) to which, Plaintiff's Cross Motion opposes the

Pro Hac Vice Motion for cause because of the misstatements and failure to list

the related 29642-08 active case on the RJI by local council (APX - 406)

challenged herein, and to wit Plaintiff Cross Motion that requests the Transfer

and Consolidation (APX - 393) with still Active Case with Index No.: 29642-

2008 with the record before Justice Schmidt (APX - 507) as an I.A.S. election

law related case with Certification of the Transcript (APX - 390) and

Appellant's Brief for Appeal Index No.: 12-05515 - Page 9 of 60

Further, the Defendants John Sidney McCain I11 et al. MTD represented by DC

Council (APX - 421) and Defendants SOEBARKAH et al. MTD represented

by Harris Beach (APX - 437), to wit Plaintiff responded by a Combined

Response (APX - 627); and thereafter

Further, on October 21,201 1 Emergency Application for an Order to Show

Cause (APX - 164) in regards to The New York State Board of Elections

involvement in an extrinsic fiaud as breach of duty to the State Legislature and

related law of the land above mentioned that went before Judge Schack on

October 25,2011 who declined to sign the Order (APX - 155);thereafter taken

on appeal without leave dismissed on January 3,2012 (APX 154); and

Furthermore, on 12 April 2012, Plaintiff filed a Motion (APX - 718) for

Presentment of Evidence of Forgery and Spoliation as Supplement to the

Complaint by Request for the Leave of the Court to Supplementto the

Complaint annexed thereto (APX - 834), that on June l8,20 12 was denied by

Order of Judge Schack (see APX - 717) and is herein on appeal too - goes to

the need with related Petition Index no.: 21948-2012 with Note of Issue.

6. That eight (8) months after the 22 August 2011 hearing before Judge

Schack, the Order and Decision was entered 13 April 2012 (APX - 106), and on

May 3,2012 Plaintiff filed a Response to the Order and Decision (APX -79); and

Appellant's Brief for Appeal Index No.: 12-05515 - Page 10 of 60

7.

Therein, Judge Schack granted Defendants' motions and dismissed my

complete complaint with prejudice. Judge Schack also granted a motion to admit

pro hac vice one of the defendant's attorney, finding that he was in good standing

and It should be known that the Georgia court at which I attended as a witness

there denied Plaintift's Attorney Van Iron's motion for pro hac vice admission and

the Commonwealth Court of Pennsylvania denied Mario Apuzzo's motion for pro

hac vice admission, even though they are both in good standing.

8. . That on May 6,2012 a remarkable legal analysis was published by Mario

Apuzzo, Esq. (see APX - 39) was entered as an amicus for Plaintiff at the May 7,

20 12 hearing by the Court, and that I consider Mario Apuzzo a righteous Attorney,

who made the effort to defend my efforts unsolicited, and Mr. Apuzzo displays

great integrity and virtue motivated in what may be reasonably characterized as a

defense of all other such Plaintiffs nationwide who seek redress and relief that

would suffer the chilling effect of Judge Schack's Decision and Order;

SIJMMARY OF THE DECISION AND ORDER

9. Judge Schack started his opinion by stating that "[ilf the complaint in this

action was a movie script, it would be entitled The Manchurian Candidate Meets

The Da Vinci Code." He found that I did not sufficiently allege an injury in fact

and therefore does not have standing which causes the court not to have

jurisdiction over his claims.

Appellant's Brief for Appeal Index No.: 12-05515 - Page 11 of 60

10.Judge Schack found that because it is not possible to easily gain notice fiom

reading my complaint what my particular cause of action is, the complaint must be

dismissed for failure to state a cause of action.

11. Judge Schack concluded that my fraud claim also needed to be dismissed

because I did not plead with particularity that I relied upon any of the defendants7

statement and did not plead that I suffered any pecuniary loss as a result of

statement of any of the defendants.

12. Judge Schack found that the court has no jurisdiction because of the

political question doctrine and because, while finding no problem with my service

upon the other main defendants, Judge Schack found that I did not properly serve

Obama and McCain.

13. Judge Schack concluded that I had already litigated "many of the issues" in

the instant action in Federal court with Case No.: 08-cv-4289 (APX - 533), and in

State Court with the Petition Spunk v. Paterson et al., Index No. 29641/08, where

the issues were decided against me. He therefore found that under the doctrine of

collateral estoppel, one could not re-litigate those same issues in the instant action.

14. Judge Schack also denied my cross motion to consolidate the instant action

with another New York state case, with the Complaint in Strunk v. Paterson et al

Index No. 29642/08 that is still active as of this date (APX - 507), and to transfer

Appellant's Brief for Appeal Index No.: 12-05515 - Page 12 of 60

the case to Judge Schmidt because the Strunk v Paterson et al. Petition with Index

29641/08 that set the law of the case from thereon was dismissed .

15. Judge Schack also dismissed my complaint on the ground that it was both

factually and legally frivolous; and finally, Judge Schack also ordered that I be

precluded from relitigating the same claims against the same defendants in the

New York state court without first obtaining prior written approval fiom an

administrativejustice or judge.

Argument in Favor of remand and consolidation with active trial court cases

16. That there was a May 7,2012 hearing with a Transcript record (APX - 49)

ordered before Judge Schack for Plaintiff to show cause why I should not be

sanctioned and adjudge costs, according to the 11 April 2012 Decision and Order.

17.That Appellant contends that the Court's Order and Decision was issued

with intentional delay and disparagement of Plaintiff personally eight (8) months

after the 22 August 2011 hearing on various motions to dismiss were granted

without a Final Judgment as to sanctions, and that my motion to consolidate was

denied on the May 7,2012 transcript starting at APX - 49, shows Justice Schack's

biased intent to delay and deny speedyjustice to all Parties and without a Final

Judgment like a sword of Damocles especially violates Plaintiff fundamental NYS

Civil Rights Chapter 6 Article 2 "Bill of fights" fj10. fundamental right for:

Appellant's Brief for Appeal Index No.: 12-05515 - Page 13 of 60

" Justice to be administered without favor and speedily. Neither justice nor right should be sold to any person, nor denied, nor deferred; and writs and process ought to be granted fi-eelyand without delay, to all persons requiring the same, on payment of the fees established by law."

18.That on May 24,2012, I made the following statement at the website

regards to the Star Chamber abuse and judicial malice done by Justice Arthur M.

Schack in 2011-6500:

"The historical abuses of the Star Chamber are considered a primary motivating force behind the protections against compelled self-incrimination embodied in the Fifih Amendment to the United States Constitution. The

meaning of "compelled testimony7'under the Fifth Amendment-i.e.,

conditions under which a defendant is allowed to "take the Fifth"--is thus often interpreted via reference to the inquisitorial methods of the Star Chamber. Judge Schack not only invented the alleged violation ipse dixit, for which he charged me of frivolous conduct for daring to allege that BHO Jr. has a British Subject father on August 4, 1961 or when ever it happened, is therefore not NBC; that Justice Schack shamelesslyposes as the prosecutor, judge, jury and executioner all rolled into one .Without the ability to call the judge as a witness to the crime that he is committing, as my own counsel I may seek an appeal on the merits of the sanctions wrongly held against me.

the

As the U.S. Supreme Court described it, "the Star Chamber has, for centuries, symbolized disregard of basic individual rights. The Star Chamber not merely allowed, but required, defendants to have counsel. The defendant's answer to an indictment was not accepted unless it was signed by counsel. When counsel refused to sign the answer, for whatever reason, the defendant was considered to have confessed." Faretta v. California, 422 U.S. 806,821-22

"

19. That Plaintiff reasonably characterizes the 22 August 2011 and 7 May 2012

hearings as a Star Chamberproceeding that wrongfully alleges that I am just an

Appellant's Brief for Appeal Index No.: 12-05515 - Page 14 of 60

transcript that follows &om APX 378 thru APX 387 as the lead of my brief herein,

and because this appeal is about the facts and law not personalities; and

22. Further, that it is noteworthy to point out that the Court also used a reference

to Private Citizen in its decision and order shown at APX - 129 of page 24, to the

contrary "Public" versus "Private" whether the Election Law and the State protects

his vote as a meaningful act as a legal matter before this Panel:

"Thus, a private citizen who does not show any special rights or interests in the matter in controversy, other than those common to all taxpayers and citizens, has no standing to sue." (Matter of Meehan v County of Westchester,3 AD3d 533,534 [2d Dept 2004).

23. That Appellant contends that any facilitation of fi-aud binds GEORGE

SOROS

whether he is a "Private Citizen" or not into a contradiction with his

attorney's contention that there is no "natural grounding" or enforceable contract

between Mr. Soros and or even Mr. Brzezinski with Mr. Obama to the contrary

goes to the admission that Mr. Soros gave an actual contribution that as an

admission against interest is an accessory to the fi-aud complained of in regards

Obama's ballot access that was done under false pretense to the detriment of

Plaintiff facilitated by the State agents; and that goes to my reliance upon the good

faith of the State and its agents under A2S 1C2 as to A2SlC5 to provide personal

equal protection and hndamental due process under law in exchange for my

allegiance as a Private U.S. Citizen under common law and the inherent personal

privilege and standing associated with one person one vote personal intangible

Appellant's Brief for Appeal Index No.: 12-05515 - Page 16 of 60

property that may neither be given away nor sold under law.

24.Christopher Earl Strunk in esse, the secured beneficiary of the organization

CHRISTOPHER EARL STRUNK, in fact, by right of heritage and inheritance, of

the New York Republic, protected by hereditary succession of all predecessors

previous Contracts with government as found in its adoption of the Declaration of

Independence perpetual allegiance of the Monarch of Britain and or feudal

pretender to the authority of GOD on April 20, 1777(13),the original Constitution of

New York in support of the Revolution that expressly eliminated the feudal

doctrine of perpetual aZZegzeance, of that condition based upon a person's soil

birthright subjugation as property of an absolute sovereign, and the Articles of

Confederation of March 1, 1781(14, and that such declaration against perpetual

allegiance was then followed by the Constitution for the United States of America

ratified by the People of New York on July 26, 1788 including it's

re amble^'^) that

the New York People expressly mandate "natural born Citizen"

"That no Persons except natural born Citizens, or such as were Citizens on or before the fourth day of July one thousand seven hundred and seventy six, or such as held Commissions under the United States during the War, and have at any time since the fourth day of July one thousand seven hundred and seventy six become Citizens of one or other of the United States, and who shall be Freeholders, shall be eligible to the Places of President, Vice President, or Members of either House of the Congress of the United States." (Emphasis added by Appellant)

l3 http://avalon.law.yale.eddl8th-century/nyO 1.asp

l4

http://avalon.law.yale.edu/18th_century/artconf. asp

l5

http://avalon.law.yale.edu/ 18th-century/ratny.asp

Appellant's Brief for Appeal Index No.: 12-05515 - Page 17 of 60

25. That on April 20, 1777, the People of the New York Republic revoked

perpetual allegiance use of British Common Law at New York Constitution

Article 35 that:

"XXXV. And this convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare that such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same. That such of the said acts, as are temporary, shall expire at the times limited for their duration, respectively. That all such parts of the said common law, and all such of the said statutes and acts aforesaid, or parts thereof, as may be construed to establish or maintain any particular denomination of Christians or their ministers, or concern the alle~iance

heretofore yielded to, and the supremacv, sovereignty, government, or prerogatives claimed or e-xercised bv, the King of Great Britain and his predecessors, over the colony of New York and its inhabitants, or are repugnant to this constitution, be, and they hereby are, abrogated and

rejected. And this convention doth fiuther ordain, that the resolves or resolutions of the congresses of the colony of New York, and of the convention of the State of New York, now in force, and not repugnant to the government established by this constitution, shall be considered as making part of the laws of this State; subject, nevertheless, to such alterations and provisions as the legislature of this State may, from time to time, make

concerning the same. (Emphasis added by Appellant)

26.As such Christopher Earl Strunk in esse retains all my unalienable rights

granted by GOD incorporated into positive law, embodied in the Declaration of

Independence of 1776, and binding Rights upon my parentage and myself since the

beginning of the World till 10 days from the end of the World. And further

Appellant's Brief for Appeal Index No.: 12-05515 - Page 18 of 60

27.

That Plaintiff, the Private US Citizen, privileged to vote under common law

is not subject to perpetual allegiance as explained above, and is no longer a Public

Citizen surety of the respective big-letter Usuhct owned by New York State in

trust now relieved of any obligation; and that Plaintiff is injured by the State and its

agents acting under color of law that single out Plaintiff individual rights is

relegated to collective treatment, and as the State or its agents never answered any

complaint since 2008, such is arbitrary denial of equal protection to Plaintiff.

28. That Justice Schack at the 22 August 2011 Transcript APX - 359 line 14 (I6)

expressed condescension at the notion that to take an oath is to make an offer of

contract with each individual citizen, and when Plaintiff / Appellant as then

"Public" U.S. Citizen on January 23,2009 duly fired Barack Hussein Obama I1

when Obama offered his oath on January 20,2009 as if eligible under the U.S.

Constitution Article 2 Section 1 Clause 5 (A2S1C5) (I7) "natural-born Citizen"

clause for the office of the President of the United States (POTUS) executive with

l6 THE COURT: I saw your letter that you fired the president. I guess he didn't agree with you because he's still there. MR. STRUNK: I'm an eagle scout. I became an eagle scout in 1959. THE COURT: Congratulations. I was only a life scout. It's true. I praise you for that. MR. STRUNK: But that shapes my thinking as a individual. I mean, what are we as a country if we don't abide by the law? THE COURT: That's right, I'll agree. We are a country.

l7 (A2SlC5) United States ConstitutionArticle 2 Section 1 Clause 5: "No Person except a natural born Citizen, or a Citizen of the UnitedStates, at the time of the Adoption of this Constitution, shall be eligible to the Ofice of President; neither shall any Person be eligible to that OfJice who shall not have attained to the Age ofthirtyJive Years, and beenfourteen Years a Resident within the United States."

Appellant's Brief for Appeal Index No.: 12-05515 - Page 19 of 60

power of attorney over accounts with the U.S. Treasury and other executive duties

(see APX - 658),when in the best of all possible worlds where justice prevails,

Obama is ineligible and his every act is void ab initio; and notwithstanding his

acts are void ab initio the office of POTUS as the de facto usurper again usurps the

office to Plaintiff / Appellant's detriment and injury; and is of great consequence.

29. The fundamental principal of citizenship allegiance to the republic is the

reciprocating duty of protection by the republic- one produces the other as equity.

30. That as a matter of Judicial Notice there is controlling history and law

regarding construction of the Declaration of Independence of 1776 that was

adopted as the foundation for the respective States' constitutions, including that of

New York on April 20, 1777,

3 1.According to Mario Apuzzo Esq. on November 28, 2012 in his essay Logic

and

DeJining

the

"Natural

Born

Citizen"

Clause

published

at

http://puzo1.blogspot.corn/;!012/1l/logic-and-defining-natural-born-citizen.html,

he explains that what the Founders and Framers learned from Greek ancient history

was confirmed by Roman ancient history. The Founders and Framers looked to

ancient Roman history to understand the law of nature to learn how best to

constitute a republican form of government and to replace perpetual allegiance

Appellant's Brief for Appeal Index No.: 12-05515 - Page 20 of 60

with the human natural law doctrine of both reek('^) and ~oman(l~)origin of the

term of art "natural-born Citizen" inheritance of allegiance fiom his parents and or

Is Aristotle also gave us a definition of a "natural born Citizen." In "Politics,

11, Aristotle, writing in 350 B.C.E., as translated by Benjamin Jowett, gave us his definition of citizenship:

Book Three, Part

"Part I1 But in practice a citizen is defined to be one of whom both the parents are citizens; others insist on going further back; say to two or three or more ancestors. This is a short and practical definition but there are some who raise the further question: How this third or fourth ancestor came to be a citizen? Gorgias of Leontini, partly because he was in a difficulty, partly in irony, said- 'Mortars are what is made by the mortar-makers, and the citizens of Larissa are those who are made by the magistrates; for it is their trade to make Larissaeans.' Yet the question is really simple, for, if according to the definitionjust given they shared in the government, they were citizens. This is a better definitionthan the other. For the words, 'born of a father or mother who is a citizen,' cannot possibly apply to the first inhabitants or founders of a state.

There is a greater difficulty in the case of those who have been made citizens after a

revolution, as by Cleisthenes at Athens after the expulsion of the tyrants, for he enrolled

in tribes many metics, both strangers and slaves. The doubt in these cases is, not who is,

but whether he who is ought to be a citizen; and there will still be a furthering the state,

whether a certain act is or is not an act of the state; for what ought not to be is what is false. Now, there are some who hold office, and yet ought not to hold office, whom we describe as ruling, but ruling unjustly. And the citizen was defined by the fact of his holding some kind of rule or office- he who holds a judicial or legislative office fulfills

our definition of a citizen. It is evident, therefore, that the citizens about whom the doubt

has arisen must be called citizens."

l9 Roman law provided: "Lex MENSIA, That a child should be held as a foreigner, if either of the parents was so. But if both parents were Romans and married, children always obtained the rank of the father, (patrem sequuntur liberi, Liv. iv. 4.) and if unmarried, of the mother, Uipian." Alexander Adam, Roman antiquities: or, An account of the manners and customs of the Romans 2 10 (6th ed. corrected 1807). Cicero wrote in A Proposal:

http://classics.mit.edu/Aristotle/politics.html.

"The Colophonians claim Homer as their own free Denizen, the Chians challenge him as theirs, the Salaminians demand him again for their own, but the Smyrneans assert him to be their natural born Citizen; and therefore have also dedicated a Temple to him in their Town of Smyrna. There are a great many besides at Daggers-drawing among themselves, and contend for him."

A Proposal For Printing in English, The Select Orations of Marcus Tullius Cicero,

According to the last Oxford Edition 17 (Henry Eelbeck trans. London 1720).

Appellant's Brief for Appeal Index No.: 12-05515 - Page 21 of 60

this point), and notwithstanding the fact of SOEBARKAH'S Indonesian

citizenship doesn't apply at his birth, the undisputed facts at

http://www.factcheck.org/2008/08/obamas-ken-citizenship/ by Todd Leventhal,

the chief of the Counter-MisinformationTeam for the U.S. Department of State,

that has been accepted as true this description of Obama's birth circumstances and

stated on a State Department web page,

although now reads: "This site has been archived or suspended

" is as follows:

"When Barack Obama Jr. was born on Aug. 4, 1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom's dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. [ http://www.uniset.ca/naty/BNA 1948.htm ]

That same act governed the status of Obama Sr.'s children:

British Nationality Act of 1948 (Part 11, Section 5):

'Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent of his father is a citizen of the United Kingdom and Colonies at the time of the birth.'

In other words, at the time of his birth, Barack Obama Jr. was both a U.S. citizen (by virtue of being born in Hawaii) and a citizen of the United Kingdom and Colonies (or the UKC) by virtue of being born to a father who was a citizen of the UKC. However, Obama's British citizenship was short-lived, when on Dec. 12, 1963, Kenya formally gained its independence from the United Kingdom. Chapter VI, Section 87 of the Kenyan Constitution specifies that:

'1. Every person who, having been born in Kenya, is on 1lth December, 1963 a citizen of the United Kingdom and Colonies or a British protected

Appellant's Brief for Appeal Index No.: 12-05515- Page 23 of 60

person shall become a citizen of Kenya on 12th December, 1963

'2. Every person who, having been born outside Kenya, is on 11th December, 1963 a citizen of the United Kingdom and Colonies or a British protected person shall, if his father becomes, or would but for his death have become, a citizen of Kenya by virtue of subsection (I), become a citizen of Kenya on 12th December, 1963.'

As a citizen of the UKC who was born in Kenya, Obama's father automatically received Kenyan citizenship via subsection (1). So given that Obama qualified for citizen of the UKC status at birth and given that Obama's father became a Kenyan citizen via subsection (I), it follows that Obama did in fact have Kenyan citizenship after 1963."

Further, Factcheck, in its attempt to show that Obama is a "natural born Citizen,"

added:

"[Tlhe Kenyan Constitution prohibits dual citizenship for adults. Kenya recognizes dual citizenship for children, but Kenya's Constitution specifies that at age 23, Kenyan citizens who possesses [sic] citizenship in more than one country automatically lose their Kenyan citizenship unless they formally renounce any non-Kenyan citizenship and swear an oath of allegiance to Kenya. Since Sen. Obama has neither renounced his U.S. citizenship nor sworn an oath of allegiance to Kenya, his Kenyan citizenship automatically expired on Aug. 4, 1984." Id.

33. But that Obama may have lost his BritishKenyan citizenship after his birth

(there is no evidence that Obama ever renounced his British birth citizenship), like

an alien losing his or her native citizenship later in life and becoming a U.S. citizen

after birth, does not nor can it change his birth circumstances. He still was not born

a "natural born Citizen" and cannot become one later in life. So, Obama, even if

born in Hawaii in 1961,while born to a U.S. citizen mother, was not born to a U.S.

citizen father. Under the British Nationality Act 1948, Obama's father, being born

Appellant's Brief for Appeal Index No.: 12-05515 - Page 24 of 60

in Kenya when it was a British colony, was a BritishKenyan citizen. While he

traveled to the United States on a temporary student visa to study, he never became

a U.S. citizen. Under the same British Nationality Act 1948, Obama himself,

through inheritance from his father, was born a British citizen. Under the Kenya

Independence Act 1963, also became a Kenyan citizen as age 2.

34. The Founders and Framers demanded that future presidents, who also were

to be our commanders in chief of the military, have allegiance and loyalty from

birth only to the United States. Being born the citizen of a foreign country, like a

person who is born a citizen of a foreign country and who naturalizes to become a

"citizen of the United States" after birth and who we have always recognized as

being eligible to be President only if born before the adoption of the Constitution,

Obama was not born with sole allegiance and loyalty from birth to the United

States. The practical consequence of his birth which no one can change is that he

not only was not born with unity of allegiance and citizenship to the United States,

but he also was not born within the full and complete political and military

jurisdiction of the United States. So, Obama from birth was not fully committed

both politically and militarily to the United States, nor could the United States

expect such total commitment from him. Obama therefore cannot be an Article I1

"natural born Citizen," which under our Constitution is required only of the

President, who is also the Commander in Chief of the Military, and the Vice

Appellant's Brief for Appeal Index No.: 12-05515 - Page 25 of 60

President were need to take over the POTUS's civil and military powers to arise.

35. Apparently, if Mr. Obama was born in Hawaii (that has not been proven),

Mr. Obama can meet the more liberal definition of a Fourteenth Amendment

"citizen of the United States" at birth, i-e., born in the United States and "subject to

the jurisdiction thereof." Under this definition, a child born in the United States to

domiciled and resident alien parents is a "citizen of the United States" at birth.

Tong Kim Ark. But he cannot meet the more stringent definition of an Article I1

"natural born Citizen," which only applies to presidential and vice presidential

eligibility, born in the United States to citizen parents. Minor. Since, Obama is

neither "a natural born Citizen" nor "a citizen of the United States, at the time of

the adoption of this Constitution" (was adopted in 1787), Obarna is not eligible to

be President and Commander in Chief.

Statement of questions presented

36. The facts that give rise to my State legal action commenced as an election

challenge case under EL § 16-100 and related articles in the Supreme Court of the

State of New York with several causes of action related to the voters' preference of

New York State's 2008 General Election cycle Electoral College election of

candidates for the office of President of the United States (POTUS) as is the

exclusive power of the respective New York State legislature to create under the

U.S. Constitution A2S 1C2, McPherson v. Blacker, 146 U.S. 1 (1892), with the

Appellant's Brief for Appeal Index No.: 12-05515 - Page 26 of 60

proviso that in doing so neither the State legislature and or its agents in the

electoral college and or agencies may change the qualifications of any federal officer

includes POTUS, U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) (20).

37. I challenge the "breach of state constitutional fiduciary duty" by the NEW

YORK STATE BOARD OF ELECTIONS and public officer defendants under EL

$3- 106 in both their official and individual capacity; deny me equal protection for

voter expectation of a correct ballot as the State has a compelling interest to do so;

20 SCOTUS held in U.S. Term Limits, Inc.

v. Thornton, 5 14 U.S. 779 (1995) says:

"Second, the provisions governing elections reveal the Framers' understanding that powers over the election of federal officers had to be delegated to, rather than reserved by, the States. It is surely no coincidence that the context of federal elections provides one of the few areas in which the Constitution expressly requires action by the States, namely that "[tlhe Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the legislature thereof." This duty parallels the duty under Article I1 that "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors." Art II., $1, cl. 2. These Clauses are express delegations of power to the States to act with respect to federal elections. (20) This conclusion is consistent with our previous recognition that, in certain limited contexts, the power to regulate the incidents of the federal system is not a resewed power of the States, but rather is delegated by the Constitution. Thus, we have noted that "[wlhile, in a loose sense, the right to vote for representatives in Congress is sometimes spoken of as a right

derived fiom the states,

by the Constitution, to legislate on the subject as provided by $2 of Art. I." United States v. Classic, 313 U.S. 299,315 (1941). Cf. Hawke v. Smith, 253 U.S. 221 (1920) ("[Tlhe power to ratify a proposed amendment to the Federal Constitution has its source in the Federal Constitution. The act of ratification by the State derives its authority from the Federal Constitutionto which the State and its people have alike assented"). In short, as the Framers recognized, electing representativesto the National Legislature was a new right, arising from the Constitution itself. The Tenth Amendment thus provides no basis for concluding that the States possess reserved power to add qualifications to those that are fixed in the Constitution. Instead, any state power to set the qualifications for membership in Congress must derive not fi-omthe reserved powers of state sovereignty, but rather from the delegated powers of national sovereignty. In the absence of any constitutional delegation to

the States of power to add qualifications to those enumerated in the Constitution, such a

power does not exist " (Emphasis by Appellant)

this

statement is true only in the sense that the states are authorized

Appellant's Brief for Appeal Index No.: 12-05515 - Page 27 of 60

is denial of substantive due process for voter expectation of a correct ballot

(21)

.

,

interference with the right to a republican form of government by the two Jesuit

defendants and defendant F.A.O. SCHWARZ, JR., who were all members of the

New York City Campaign Finance Board; and interference with plaintiffs election

franchise; a scheme to defraud plaintiff of a reasonable expectation of successful

participation in the suffiage process; that is an inherent scheme by all defendants

for unjust enrichment." Decision and Order, p. 3-4 (APX - 108 to 109); and

includes a challenge to the Defendant "Soebarkah" that is the actual Indonesian

surname name given Barack Hussein Obama I1 when he was adopted and became

an Indonesian Citizen I discovered in DC FOIA case Strunk v. US DOS and DHS

NO.;08-CV-2234(APX - 780).

The New York State Board of Elections and State agents maliciously failed to provide Strunk due process and equal protection with EL 53-106 and related law is properly before the Court under EL 816-100 jurisdiction / authority.

Issues on Appeal:

21 In the matter of a state compelling interest at elections:

Storer Et al. v. Brown, Secretary OfState of California, Et Al. 415 U.S. 724 (1974) in

regards to a California compelling state interest to prevent fraud cited Bullock v. Carter, 405 U. S., at 145,when the unanimous SCOTUS Court decision said:

"The Court has recognized that a State has a legitimate interest in regulating the number of candidates on the ballot. Jenness v. Fortson, 403 U. S., at 442; Williams v. Rhodes,

393 U. S., at 32. In so doing, the State understandably and properly seeks to prevent the

clogging of its election machinery, avoid voter confusion, and

an interest, if not a duty, to protect the integrity of its political processes fiom fi-ivolousor fraudulent candidacies. Jenness v. Fortson, 403 U. S., at 442."

Moreover, a State has

Appellant's Brief for Appeal Index No.: 12-05515 - Page 28 of 60

The Actions of the State to Deny Equal Protection and Due process

.

The Actions of the State to Facilitated the Fraud for ineligible candidates

The Actions of the State under color of State Law regarding HAVA and Section 5 of the Voting Rights Act by changing the POTUS eligibility from "natural born Citizen" to "born a Citizen" as if under the 14&Amendment.

The Actions of Ineligible candidates and campaign agents to facilitate fraud

That Sedition is the subversion intended to be prevented under EL 53-106

38.That while the Decision and Order was pending, as an additional matter of

extrinsic fi-aud controlling as to the scheme to defraud, my associate the

Information Technology expert Kevin Powell of Georgia on October 15,2011

affirmed his affidavit with exhibits (see APX - 199) assembled after the 22 August

2011 hearing that discovered that the State of New York's instructions for getting

on the presidential ballot, rather than state that a presidential candidate has to be a

"natural born Citizen" pursuant to A2S 1C5 as I believe pre-existed the 2008 New

York General Election at the time I filed the Federal Case No.: 08-cv-4289, instead

after March 22,20 11 as of October 5,201 1 had been changed by the State and says

that the President only had to be "Born a Citizen." (see APX - 215).

39. That I wrote to the State Counsel for the State election authorities and

pointed out the error, and asked that a correction be made to state that a

presidential candidate must be a "natural born Citizeny7which is A2S 1C5 of our

Constitution clearly and plainly states (see APX - 257); and

Appellant's Brief for Appeal Index No.: 12-05515 - Page 29 of 60

40. As had been previously done in New Jersey to change the erroneous

instructions there @),I was looking for the same type of relief which would have

satisfied my concerns regarding the wording of the eligibility instructions. But the

State of New York would have none of it. Not receiving any satisfaction, on

October 21,2011, I filed an application for an order to show cause (APX- 164),

asking that the court issue an order to the New York State Board of Elections that

it correct the eligibility instruction from "born a Citizen" to "natural born Citizen."

Judge Schack declined my application as premature (APX- 155 thru APX - 157).

41.At the October 25,20 11, hearing on his order to show cause, I stated to

counsel for the New York State Board of Elections that I would be willing to settle

his litigation if the New York State Board of Elections would change the ballot

instruction from "Born a Citizen" to "Natural-born Citizen." The attorney told him

that "they could not do that". I then appealed Judge Schack's declined order and

on January 3,2012 this Court dismissed my appeal sua sponte (APX - 154).

42.Judge Schack never ruled on my application that the Board of Elections be

made to correct the ballot instruction for election for the Office of President to say

not "born a Citizen," but rather "natural born Citizen." ; and as Judge Schack

22 The State of New Jersey also had the same type of error. At fust, the Secretary of State's instruction, using plain citizenship as the criteria for eligibility, did not state that the President had to be a "natural born Citizen." A concerned citizen wrote to the Secretary of State and pointed out the error and she simply made the correction by stating that a presidential candidate must be a "natural born Citizen." The correct New Jersey instructions can be viewed at http://www.scribd.com/puzo1/d/91538227- New-Jersey-SOS-Eligibility-Instructions-for- Presidential-Primary-2012 .

Appellant's Brief for Appeal Index No.: 12-05515 - Page 30 of 60

ordered in the hearing on May 7,2012 with hearing Transcript at APX - 326) I

should pay for the costs incurred by the defendants in having to retain and pay their

attorneys to defend them against this action for which all bills were submitted as

ordered within the deadline, but no Judgment is rendered.

43. Judge Schack did state the correct standard for the court to apply when

deciding a motion to dismiss the complaint on its face. He stated:

"When determining a motion to dismiss, the court must 'accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory' (see Amav Indus., Inc. Retirement Trust v Brown, Raysman, Milstein, Felder & Steiner, 96 NY2d 300,303 [2001]; Leon v Martinez, 84 NY2d 83,87438 [1994 I) [Emphasis added]." (Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 570-571 [2005]).

Further, the Court, in Morris v Morris (306 AD2d 449,45 1 [2d Dept 2003]), instructed that: In determining whether a complaint is sufficient to withstand a motion pursuant to CPLR 3211 (a) (7), "the sole criterion is whether the

pleading states a cause of action, and if from its four comers factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (Guggenheimer v Ginsburg, 43 NY2d 268,

275 [1977]. The court must accept the facts alleged in the complaint to be true

and determirie only whether the facts alleged fit within any cognizable legal theory (see Dye v Catholic Med. Ctr. of Brooklyn & Queens, 273 AD2d 193 [2000]). However, bare legal conclusions are not entitled to the benefit of the presumption of truth and are not accorded every favorable inference (seeDoria v

Masucci, 230 AD2d 764 [2000]). [Emphasis added] For a plaintiff to survive a motion to dismiss for failure to state a cause of action, the factual allegations in the claim cannot be "merely conclusory and speculative in nature and not supported by any specific facts." (Residents for a More Beautiful Port Washington, Inc. v Town of North Hempstead, 153 AD3d 727,729 [2d Dept 19891). "The allegations in the complaint cannot be vague and conclusory." (Stoianoff v Gahona, 248 AD2d 525 [2d Dept 19981, app dismissed 92 NY2d

844 [1998], cert denied by Stoianoff v New York Times, 525 US 953 [1998]).

(See LoPresti v Massachusetts Mut. Life Ins. Co., 30 AD3d 474 [2d Dept

Appellant's Brief for Appeal Index No.: 12-05515 - Page 31 of 60

20061; Levin v Isayeu, 27 AD3d 425 [2d Dept 20061; Hart v Scott, 8 AD3d 532 [Zd Dept 20041) (all emphasis in the original).

FAILURE TO HAVE STANDING?

44.The court found that Strunk did not sufficiently allege an injury in fact and

therefore does not have standing. It found that the court therefore did not to have

jurisdiction over his claims. Judge Schack applied federal court standing standards

to a state election challenge case. Many states in the union have liberal standing

standards when it comes to allowing voters of their states to file election ballot

challenges, with just requiring that the person be a registered voter of the state.

Pennsylvania at most, requires a voter who files a ballot challenge to be of the

same party as the candidate of whom the challenger complains. New Jersey has no

same party requirement. The federal court standing standards have no application

in the state election law challenge Strunk should be given standing to bring his

ballot challenge.

FAILURE TO STATE A CAUSE OF ACTION?

45.Judge Schack found that because it is not possible to easily gain notice from

reading his complaint what his particular cause of action is, the complaint must be

dismissed for failure to state a cause of action. But with pro se complaints, courts

have an obligation to hlly and in good faith search the complaint for a cause of

action. As I will show below, I more than adequately set out a cause of action

which can be discerned by an indulgent reading of the complaint.

Appellant's Brief for Appeal Index No.: 12-05515 - Page 32 of 60

FAILURE TO PLEAD FRAUD WITH PARTICULARITY?

46.Judge Schack found that my fraud claim also needed to be dismissed

because somehow I did not plead with particularity that I relied upon any of the

defendants7statement, despite the fact that John McCain's effort to have himself

declared NBC by the Senate Resolution (APX - 655) is more than enough of a

matter of reliance that one would have that McCain would challenge Obama

because he in fact is not NBC by the very definition used by the Senate Resolution

- did not challenge Obama that is a breach of my reliance upon McCain to do so.

47.That Judge Schack contends that I did not plead that I suffered any

pecuniary loss as a result of statement of any of the defendants despite the fact that

I had in fact fired Obama (APX - 658) from being my power of attorney over the

private trust accounts at the US Treasury that are now wasting under his

mismanagement. In my fraud claim, it is not necessary for me to continue my

claim that Obama is not a "natural born Citizen."

FAILURE TO SHOW THAT THE COURT HAS JURISDICTION?

48. Judge Schack found that the court has no jurisdiction because of the

political question doctrine. He found that the question of presidential eligibility and

necessarily the meaning of a "natural born Citizen" are left by the Constitution to

the Electoral College and Congress in joint session when it counts the Electoral

College votes. He even cites and relies upon 3 U.S.C.See. 15which only applies

Appellant's Brief for Appeal Index No.: 12-05515 - Page 33 of 60

after the general election and when the Congress is in joint session counting the

Electoral Votes. Without even acknowledging that Obama is currently a candidate

in the 2012 presidential election, the Judge relies on the Electoral College's and

Congress's lack of objection to Obama's eligibility in the 2008 presidential

election. But what is worse is that Judge Schack confounds and conflated

candidates with incumbents. He states that my challenge of the eligibility of

"President Obama." did not state that it is "Candidate Obama" that is challenged.

The court relies strictly upon the Electoral College and Congress to decide whether

incumbents are eligible for presidential office. He wrongly states that the States

have no role to play in that process despite A2S lC2 that gives each State

Legislature exclusive power to form an electoral college of their own

49.Judge Schack found that the court has no jurisdiction because somehow I

did not properly serve Obama and McCain and each of their respective campaign

finance entities and agents when in fact I did, especially Penny Pritzker the

Finance Chairwoman and Martin Nesbitt the Treasurer of Obama for America; and

while finding no problem with my service upon the other main defendants, Judge

Schack found only that I did not properly serve Obama and McCain. The court did

not find that Obama and McCain were indispensable parties and that the action

could not proceed without their presence in the action. Hence, even hypothetically

Appellant's Brief for Appeal Index No.: 12-05515 - Page 34 of 60

service upon the other defendants is sufficient to give the courtjurisdiction over his

claims against the other defendants which concern both Obama and McCain.

THAT STRUNK'S COMPLAINT IS FRIVOLOUS?

50. Judge Schack found that my claim that Obama is not a "natural born

Citizen" is frivolous. The "natural born Citizen" issue is the heart and soul of my

action. Judge Schack states that " '/a] complaint containing as it does bothfactual

allegations and legal conclusions, isfrivolous where it lacks an arguable basis'

and 'embraces not only the inarguable legal conclusion, but also thefanciful

factual allegation.' (Neitzkev Williams,490 U.S. 319,325 [1989])." Hence, Judge

Schack looked to both the alleged facts and legal claims made by me relative to the

"natural born Citizen" claim in order to determine the complaint was frivolous.

The Judiciaw as the political co-equal branch under separation of powers duty and obligation is to interpret the U.S. Constitution and Laws in this case not the Legislature or Executive related to the NYS Board of Elections agents

51.The meaning of any specific clause of the Constitution is a judicial question

and one to be authoritatively decided ultimately by the United States Supreme

Court not Congress or the Executive. That high court decision under the supremacy

clause is binding on the entire nation. Story on the Constitution, sec. 387.

52.Als0, States do have a critical responsibility to ensure that candidates on

state ballots for federal office meet constitutional eligibility requirements. By

cutting the States out of making sure that presidential candidates are eligible for the

Appellant's Brief for Appeal Index No.: 12-05515 - Page 35 of 60

office they seek, the court has cut out the States power to play in properly vetting

presidential candidate early in the election process so as to not allow any

unqualified candidate to advance too far and even to the point where the general

public is voting for an ineligible candidate.

53. The U.S. Constitution requires that the President be a natural born citizen,

35 years of age or older, and reside in the U.S. for 14 years prior to being elected.

The issue of eligibility has come up on at least seven occasions with regard to past

Presidents and Presidential candidates. As we have witnessed with the 2008

presidential election, there is considerable confusion over the issue of who vets

candidates for their eligibility for federal office, including the Office of President.

54. With the outrageous reassertion of the doctrine of perpetual allegiance, the

Congressional Research Service (CRS) (23) examined the issue of who is

responsible for presidential vetting. In their report they opine that there is "no

federal law, regulation, rule, guideline, or requirement that a candidatefor federal

ofJice produce his or her original birth certzjkate, or a certiJied copy of the record

of live birth, to any ofjial of the United States Government; nor is there a

requirementfor federal candidates topublicly release such personal record or

documentation." ; and as explained herein, I do not agree with the CRS's Jack

Maskell's definition of a "natural born Citizen" which is any person who is a

%~%80%9~~atural-~om%~2%80%9~-~itizenshi~-~li~ibili~-~e~uirement

Appellant's Brief for Appeal Index No.: 12-05515 - Page 36 of 60

"citizen of the United States" from the moment of birth, regardless of to whom or

where born. The CRS adds that "there is no speczjicfederal agency or office that

'vets' candidatesfor federal ofice as to qual$cations or eligibilityprior to

elections." (APX - 700).

55. That without any federal laws or guidelines on presidential vetting, the

federal government has not precluded the states from doing so. Hence, the best

time to resolve any ballot challenge is at the primary level. At the primary level, it

is candidate Obama himself who wants to appear on the ballot. Under the

Constitution and state law, it is the candidate who has to prove that the candidate is

eligible to be placed on that primary ballot. According to NYS EL 816-100 (24) that

"The supreme court is vested with jurisdiction to summarily determine any question of law or fact arising as to any subiect set forth in this article,

which shall be construed liberally." (Emphasis by Appellant)

as such affords broad jurisdiction to the State Judiciary over whether I should be

made to challenge Obama's eligibility only after the general election in November

2012 - when in fact the entire process is an element of the ongoing fraud against

the voters and the People of New York in which the schemers abuse suffrage

24 NYS Election Law 516-100. Jurisdiction; supreme court, county court.

1. The supreme court is vested with jurisdiction to summarily determine any question of law

or fact arising as to any subject set forth in this article, which shall be construed liberally.

2. The county court is vested with jurisdiction to summarily determine any question of law

or fact except proceedings as to a nomination or election at a primary election or a nomination at

a judicial convention, proceedings as to the casting and canvass of ballots, proceedings for examination or preservation of ballots and proceedings to enforce the provisions of article fourteen of this chapter.

Appellant's Brief for Appeal Index No.: 12-05515- Page 37 of 60

process and stole the cost of the election from the New York taxpayers. Plaintiff(s)

should not be made to rely on the Electoral College or Congress for resolving their

challenge to Obama's eligibility to be elected President under A2S lC2. At that

point, Obama can argue that the courts do not have jurisdiction to tell the Electoral

College or Congress how to do their jobs this matter is not moot according to the

25thAmendment and the State Court has a duty to interpret what the State has done

to change Federal officer A2S lC5 eligibility under A2S 1C2 with exclusive power

56. In The Federalist No. 68, Alexander Hamilton explained that the President

was a "person to whom so important a trust was to be confided." He advocated that

the Electoral College "will be most likely topossess the information and

discernment requisite to so complicate an investigation." He said that because the

President was "so an important agency in the administration of the government,"

"tumult and disorder7' were to be avoided

in selecting the President. What better

way than for the states to aid in this complex investigation of that person who

should want to run for that most important office. Surely by requiring any such

candidate to produce documentary evidence of his or her identity and place of birth

is a first step in producing that needed information which is so vital to such a

complicated investigation. The states therefore serve a vital role in the beginning

stages of the vetting of any presidential candidate. Such vetting should start as

Appellant's Brief for Appeal Index No.: 12-05515 - Page 38 of 60

soon as possible so as to avoid parties becoming entrenched in their selections and

wanting to win at all costs at the expense of the people and their Constitution.

57. Furthermore, to allow an ineligible candidate to advance to the Electoral

College or even to Congress in joint session only brings with it tremendous cost,

embarrassment for both political parties, political haggling, insults and ridicule,

and finger pointing, all at the expense of the Constitution. It is best that presidential

eligibility requirements are met prior to the election of a candidate in order to

avoid the prospect of Congress being asked and having to invalidate national

election results. What better way to secure liberty and support the Constitution than

to allow all our political institutions, including those of the states, to have a role in

presidential vetting.

S8.As to my factual allegations, I have adequately pled such facts in my

Complaint that Obama's father was not a U.S. citizen at the time of Obama's birth

wherever that may be. As proof of this fact, he relies upon Obarna's admission in

his book, Dreams from My Father (APX - 487), the INS (immigration) file on

Obama's father (APX - 685), the alleged Certificate of Live Birth that Obama

released via the internet on April 27,2011 (APX - 698), and the Obama-Dunham

divorce papers (APX -679).

59. That while the Court argues that portions of my Complaint (references to

the Vatican, Roman Catholic Church, and the Society of Jesus and inclusion of a

Appellant's Brief for Appeal Index No.: 12-05515 - Page 39 of 60

long list of defendants) rise to the level of the "irrational," the thrust of my legal

argument, that Obama is not an Article I1 "natural born Citizen" as we shall see

below is eminently reasonable. Whether or not Obama is an Article I1 "natural

born Citizen" citizen under the American common law standard that has been in

place since the Founding is not a conspiracy theory or what Judge Schack

pejoratively calls a "birther case." There are some factual allegations in my

Complaint that could raise some eyebrows of those unfamiliar with the last 80

years of European centric History nevertheless does not change the fact that

Vatican Bank money laundering for drug cartels, the Mafia, is documented at trial,

continues and outrageously interferes with U.S. Domestic and Foreign policy.

60. That the Court can also understand my frustration in my naming domestic

defendants who I believe have not only allowed but actively facilitated Obama to

proceed unchallenged and others who I believe should be "taking responsibility to

enforce the law which has not been done" regarding the question of Obama's

eligibility for POTUS. Decision and Order, p. 20 (APX - 106) oral arguments.

61. Despite Judge Schack's contention that somehow I add some questionable

factual allegations in my Complaint about the defendants' religious motivations to

wit I flatly deny, and that the Holy See is not a named party nor is that religion per

se questioned; and despite the fact that many foreign members of the private

organizations that have facilitated the ascendency of Obama to power especially Le

Appellant's Brief for Appeal Index No.: 12-05515 - Page 40 of 60

Cercle (2", Pilgrim Society (261, 1001 Club (27), Commercial Club of Chicago

Sovereign Military Order of Malta (29), Council for National Policy (SO), along with the

infamous Saudi Financier Adnan Khashoggi should have been named as material,

but aren't because of difficult service involved remain central to campaign finance.

62.That since I am alleging that the Vatican Bank is the campaign money

laundering mechanism with JP Morgan here in New York (a well established fact

for which it and its agents have been previously punished including the unindicted

Keating five co-conspirator McCain's fi-iendshipwith Paul Marcinkus also

involved in the savings and loan scandal involving the Chicago syndicate) as

illegal foreign funds channeled to the Obama Campaigns, I am obligated to make

the connection to that institution and defendants- do not express "irrational anti-

Catholic bias."; the Plaintiff's allegation is that foreign money was laundered

through its Vatican Bank facility to J.P. Morgan Bank where the Obama Campaign

has its account as its exclusive landing bank in New York - and only until just

25 http://~\~~.bibliotecapleyades.net/sociopoliticdsociopol-lecercle07.htm#The-Vatican- Paneuropa-network

27 http://~.bibliotecapleyades.net/~ociopo1iticdsociopoll001club01.htm

28 http://commercialclubchicago.orgl

29 http://www.orderofinalta.int/?lang=enwith a financial stake in Obarna-Care

30 http://~~~.~ourcewatch.orglindex.php?title=Council~for~NationalPolicy

Appellant's Brief for Appeal Index No.: 12-05515- Page 4 1 of 60

recently when it resigned because of money laundering investigations, the Vatican

Bank now uses Wells Fargo Bank instead; But even whatever were those

questionable factual allegations regarding defendants' motivations in regards to the

intrinsic fraud complained of, are not relevant to the question of what is a "natural

born Citizen" and whether Obama meets that definition. Even hypothetically were

those suspect factual allegations which Judge Schack admits Plaintiff "weaves"

into the complaint as I must do when the Vatican Bank is involved with money

laundering illegally, should therefore not trump the otherwise sound part of my

complaint and be used as a means to create a circus-type atmosphere in the court

by falsely coloring Plaintiffs motives and thereby to obfuscate the real argument

that I make at the heart of both the intrinsic and extrinsic firaud which is that

Obama does not meet the status quo American common law definition of a

"natural born Citizen," which defmition as we can see below is adequately shown

to exist by the historical record and case law of our United States Supreme Court.

NATURAL BORN CITIZEN is not only BORN A CITIZEN

63.As to my legal arguments as to what is a "natural born Citizen," Judge

Schack did not correctly state my legal position and by doing so actually created a

straw man argument. Judge Schack mis-stated:

"Plaintiff STRUNK'S complaint, as well as his opposition to defendants' motions to dismiss, alleges that the correct interpretation of the natural born

Appellant's Brief for Appeal

Index No.: 12-05515 - Page 42 of 60

citizen clause of the U.S. Constitution requires a natural born citizen to have been born on United States soil and have two United States born parents. Despite plaintiffs assertions, Article 11, Section 1, Clause 5 does not state this. No legal authority has ever stated that the natural born citizen clause means what plaintiff STRUNK claims it states. "The phrase 'natural born Citizen' is not defined in the Constitution, see Minor v Happersett, 88 US 162, 167 [1875]), nor does it appear anywhere else in the document, see Charles Gordon, Who Can Be President althe United States: An Unresolved Enigma, 28 Md. L. Rev. 1,5 (1968)." (Hollander v McCain at 65). Plaintiff STRUNK cannot wish into existence an interpretation that he chooses for the natural born citizen clause. There is no arguable legal basis for the proposition that both parents of the President must have been born on U.S. soil. This assertion is as frivolous as the multitude of alleged allegations outlined above. Moreover, President OBAMA is the sixth U. S. President to have had one or both of his parents not born on U.S. soil. Plaintiff STRUNK and his fellow "birthers" might not realize that both parents of President Andrew Jackson were born in what is now Northern Ireland; President James Buchanan's father was born in County Donegal, Ireland; President Chester A. Arthur's father was born in what is now Northern Ireland; President Woodrow Wilson's mother was born in Carlisle, England; and, President Herbert Hoover's mother was born in Nonvich, Ontario, Canada.

64. But I did not argue that a "natural born Citizen" child has to be born to "two

United States born parents" or that "both parents

must have been born on U.S.

soil." This argument is strictly a creation of Judge Schack. Rather, I argued that a

"natural born Citizen" is a child born in the United States to "citizen" parents. I

correctly argue that "born Citizen" is not the same as "natural born Citizen."

65. It is outrageous misbehavior that Judge Schack would question my own

parentage as a "natural-born Citizen" so nonchalantly shows his bias as if I were

ignorant of my own heritage in regards to my own parents and to the actual

meaning used in my Complaint when in fact:

Appellant's Brief for Appeal Index No.: 12-05515 - Page 43 of 60

a.

My father Earl Henry Strunk is a "natural born Citizen7'in 1917 as defined

by Minor ,because his father Moses, my grandfather had been a natural-

born Citizen to his own U.S. Citizen parents (my great-grand parents) at his

birth, and who married my Prussian born Grandmother Elizabeth who

immigrated to the USA, assumed U.S. citizenship of my grandfather Moses

when she married by American common law before the Cable Act of 1922;

b.

And, that my mother Beth Hardwick in 1915 was born a 14thAmendment

U.S. Citizen defined by Kim Won2Ark, because her father and mother, my

maternal grandparents were British subjects who immigrated to New Jersey

from Canada, were domiciled legal resident aliens when Mother was born.

66.

The first step in constitutional interpretation is textual analysis of the clause

in question. In that analysis, we have to look at each and every word of the clause

which includes "natural" and define that word. By using "born Citizen" rather than

"natural born Citizen," would be saying that we do not need to consider and define

"natural," that the Framers just threw that word in as surplusage. On the contrary,

the word "natural" is part and parcel of the full clause, "natural born Citizen." The

clause as a whole is a word of art, an idiom. The historical record shows that it has

always been used as such and that it has never been used in some expanded way as

"born Citizen" suggests. Indeed, the clause is a unitary phrase with a unitary

meaning. Hence, "natural" cannot be separated from the clause. Rather what needs

Appellant's Brief for Appeal Index No.: 12-05515 - Page 44 of 60

to be done is to search for the meaning of the whole clause and not its parts. In this

textual analysis, we cannot simply take that idiom and say that it means some other

manufactured definition of the clause. We cannot simply proclaim without

evidence that the meaning of that idiom equates to the manner in which Congress

and the Fourteenth Amendment allows persons to acquire the status of a "citizen of

the United States" as of the moment of birth. No U.S. Supreme Court case or

Justice has adopted such a manufactured definition or even said that such a

meaning prevailed at the time of the Founding. That someone acquires his or her

citizenship from the moment of birth simply does not equate to that person being a

"natural born Citizen." Even Wong Kim Ark and Rogers v. Bellei, 40 1 U.S. 8 15

(1971) tell us that persons may be "naturalized" from the moment of birth. We

accept that "naturalized" person are not "natural born Citizens." Furthermore, that

Wong Kim Ark included the clause "natural born subject" in the context of its

discussion of what is a Fourteenth Amendment "citizen of the United States" does

not through some amazing feat of logic convert a "citizen of the United States"

into a "natural born Citizen." As Minor aptly explained, a "natural born Citizen" is

neither created by the Constitution nor depended upon it.

67. Hence, neither Fourteenth Amendment nor its debates on who shall be a

"citizen of the United States" does not control who shall be "natural born

Citizens."

Appellant's Brief for Appeal Index No.: 12-05515 - Page 45 of 60

68.

Hence, simply having a status of a "citizen" from the moment of birth does

not necessarily equate to one being a "natural born Citizen." The fact that the

Framers included the word "natural" as an additional qualifier tells us that quite

plainly, for if such an interpretation were correct the Framers would simply have

said "born Citizen." So, any person that is a "born Citizen" who claims to be a

"natural born Citizen" still has to show that he or she satisfies the idiomatic

meaning of the clause which the historical record and U.S. Supreme Court case law

show to be a child born in the country to parents who are citizens of that country.

This definition is exactly what our United States Supreme Court in Minor v.

Happersett in 1875 and WongKim Ark in 1898 confirmed is the correct American

common law definition of a "natural born Citizen."

69. For this time-honored natural lawllaw of nationslAmerican "common-law"

definition of a "natural born Citizen", see Minor v. Hamersett, 88 U.S. (21 Wall.)

162 (1875) (decided after the Fourteenth Amendment was adopted in 1868 and

holding that "all children born in a country of parents who were its citizens became

themselves, upon their birth, citizens also. These were natives or natural-born

citizens, as distinguished from aliens or foreigners"). What Minor said about a

"natural born Citizen" was confirmed in US. v. Wong Kim Ark, 169 U.S. 649

(1898) (acknowledging and confirming Minor's American common law definition

of a "natural-born citizen7'but adding based on the English common law that since

Appellant's Brief for Appeal Index No.: 12-05515 - Page 46 of 60

"'[tlhe child of an alien, if born in the country, is as much a citizen as the natural-

born child of a citizen, and by operation of the same principle [birth in the

country]"' (bracketed information supplied), a child born in the United States to

domiciled alien parents was a Fourteenth Amendment "citizen of the United

States". This American common law definition of a "natural born Citizen" has

never been changed, not even by the Fourteenth Amendment (only uses the clause

"citizen of the United States" and does not mention "natural born Citizen") or

Wong Kim Ark, and therefore still prevails today. Both those U.S. Supreme Court

cases define a "natural born Citizen" as a child born in a country to parents who are

citizens of that country.

70. This American common law definition of a "natural born Citizen" has also

been recognized and accepted by a Founder and member of our U.S. Supreme

Court as early as 1814 in The Venus, 12 U.S. (8 Cranch) 253,289 (1814) (Chief

Justice John Marshall dissenting and concurring for other reasons). It was also

again confirmed by Inalis v. Sailors ' Snug Harbor, 28 U.S. 99 (1830) and Shanks

v. Dupont, 28 U.S. 242,245 (1830). It was again confirmed by Justice Daniels in

Dred Scott v. Sandford, 60 U. S. 3 93

(1857).

71. It is shown that the original American "common-law" definition of a

"natural born Citizen" was not changed by either the Fourteenth Amendment or

Wong Kim Ark, which only deal with a "citizen of the United States" and not a

Appellant's Brief for Appeal Index No.: 12-05515 - Page 47 of 60

"natural born Citizen." Hence, the same original definition of a "natural born

Citizen" was again expressly confirmed by the whole U.S. Supreme Court in

Minor and Vong Kim Ark, and a lower federal court in Ex parte Reynolds, 20

F.Cas. 582,5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879) and United States v.

Ward, 42 F.320 (C.C.S.D. Cal. 1890). Finally, this

same definition was implicitly

confirmed by Slaughter-House Cases, 83 U.S. 36 (1872), Elk v. Wilkins, 112 U.S.

94 (1884), Perkins v. Elg, 307 U.S. 325 (1939) and Schneider v. Rusk, 377 U.S.

163 (1964).

72. Given the meaning of the clause since time immemorial; the enlightened

intellectual mindset of the Founding period which focused on natural law and the

law of nations as commented upon by Cicero, Pufendorf, Burlamaqui, John Locke,

Rousseau, Emer de Vattel; the motivating spirit of the American Revolution; the

Founders and Framers desire to preserve the constitutional republic for Posterity;

the way that founding -era legal scholars such as Chief Justice John Marshall,

David Ramsay, St. George Tucker, and James Wilson defined American

citizenship; Congressional acts on naturalization; U.S. Supreme Court case law;

and the whole historical record, this is the most natural interpretation of the clause.

73. Regarding the citizenship status of the parents of a "natural born Citizen,"

the Constitution and Congressional Acts clearly and without question show that a

Appellant's Brief for Appeal Index No.: 12-05515 - Page 48 of 60

"citizen" may be one either by being "natural born" or naturalized either at birth or

after birth.

74. Hence, what I argued and argue is that a child needs to be born in the

country to parents who are both either "natural born Citizens" (NBC) or "citizens

of the United States" (citizen) by naturalization at birth or after birth. I did not

argue that the parents needed to be born citizens or born on the soil of the United

States and in fact a close reading of the transcript at APX - 354 shows that to be

born NBC means there are permutations of citizen parents that means NBC = NBC

+NBC or NBC = Nl3C + citizen or NBC = citizen + citizen. None of the legal

actions filed against Obama on his eligibility have made such an argument and

neither did I make such an argument.

75. So it is totally irrelevant to my claim that according to Judge Schack's

ridiculous ipse dixit theory that somehow "Obama is the sixth U. S. President to

have had one or both of his parents not born on U.S. soil," for under Judge

Schack's interpretation of the Article 11, Section 1, Clause 5 and his definition of a

"natural born Citizen," those presidents, other than Chester A. Arthur who like

Obama cannot benefit from Article 11's grandfather clause and was not born to

citizen parents, qualified to be President.

76. Judge Schack has not decided the merits of the legal argument that I made

concerning what is a "natural born Citizen," but rather a legal argument that he

Appellant's Brief for Appeal Index No.: 12-05515 - Page 49 of 60

himself created regarding that clause. Hence, not having yet passed on the

argument that I made, Judge Schack surely cannot reasonably conclude that my

argument is frivolous.

77. Furthermore, in Tennessee, the Federal District Court just recently stated:

"The Court finds that the federal question presented, the meaning of the phrase 'natural born citizen' as a qualification for the Presidency set out in Article I1 of the Constitution, is important and not trivial." "The issue of whether President Obama is constitutionally qualified to run for the

Presidency is certainly substantial." "It is clear that the stated federal issue of President Obama's qualifications for the office are 'actually disputed and substantial."' "It is also clear that there will be a legal dispute over the Constitution's definition of 'natural born citizen' and the Supreme Court's

decision in Minor." Liberty Legal-

Party of the USA, Inc. et al, Case No. 12-2143-STA. So we can see that the federal court found the issue of whether Obama is a "natural born Citizen" to

be "important and not trivial," "substantial," and "disputed."

Foundation et al v. National Democratic

78. Additionally, Judge Schack disagrees with my definition of a "natural born

Citizen," although as I have shown above Judge Schack states a definition by

cherry picking one which I did not put forth, because the Constitution does not

define the clause, citing "Hollander v. McCain at 65" which cited Minor and

Charles Gordon, Who can be President of the United States: An Unresolved

Enigma, 28 Md. L.Rev. 1, 5 (1968). If that were a valid reason for disagreeing with

someone's definition of a constitutional clause, we basically would have virtually

no interpretation of the Constitution at all. As is often said, the Constitution is not a

dictionary of legal terms. Its meaning has to be gleaned fiom its text, if possible,

and when not possible, fi-om sources outside the Constitution. For example, the

Appellant's

Brief for Appeal Index No.: 12-05515 - Page 50 of 60

Fourteenth Amendment does not tell us what "subject to the jurisdiction" means.

Yet, our nation has arrived at a meaning of the clause by looking outside the

Constitution. That the Constitution does not defme a "natural born Citizen" is the

only argument that Judge Schack makes to discount my position as to what is the

meaning of a "natural born Citizen." He offers no other authorities showing that I

am wrong. Also, we should know that Charles Gordon in the very same article

cited by Judge Schack states that neither the Fourteenth Amendment nor Wong

Kim Ark's holding defined a "natural born Citizen."

79. Surely, all this shows that I did allege a particular cause of action and gave

sufficient notice of both the facts and the law that support my cause of action. All

this also shows that it is not true that my complaint presents no legitimate basis in

law or fact which warrants sanctions. Even assuming arguendo that the Court is

correct about standing, jurisdiction, and collateral estoppel, the Court did not say

that these grounds of dismissal support the Court's finding that the action is

frivolous. Rather, the Court's finding of fi-ivolous concerns my

definition of a

"natural born Citizen." And have shown that my definition is more than reasonable

to raise a genuine constitutional question. Hence, my complaint is not frivolous.

All Litigants Have A Right To Impartial And Considered Justice

80. As Judge Schack correctly states, "all litigants have a right to impartial and

considered justice." Muka v. New York State Bar Association. 120 Misc. 2d 897

Appellant's Brief for Appeal Index No.: 12-05515 - Page 5 1 of 60

(Sup. Ct. Tompkins County 1983). But Judge Schack's references to " 'birther'

cases" " 'birther' action," '"birther'

movement," "his fellow 'birthers,"' is hardly

any show of actually receiving that "impartial and considered" justice. "Birther" is

a pejorative term that is used by Obama's supporters. It is a quick way to dismiss

through ridicule and ad hominem attack any argument that is made that Obama is

not an Article I1 "natural born Citizen."

81. As I have shown, whether Mr. Obama is a "natural born Citizen" is not some

conspiracy or "lunatic fringe" argument. Rather, it is, as even the federal court in

Tennessee has confirmed, a legitimate and substantial constitutional issue which to

date has escaped being address in any meaningfbl way.