Saturday, December 6, 2008

This isn't exactly news, but here's the link to the Calif case of QW: (filed Oct 31, 08)
http://nationalwriterssyndicate.com/index2.php?option=com_content&do_pdf=1&id=780

Quite an education, be sure to read the whole thing.

Apparently, to reply to that, posted abaout the same time, Obama's web site made the FALSE CLAIM that the writ of QW has been abolished:
http://my.barackobama.com/page/event/detail/gsxy3h to quote:
The situation in the courts of the various U.S. states varies from state to state but is often similar to that in the federal courts. Some states continue to use writ procedures, such as quo warranto, that have been abolished as a procedural matter in federal courts.

The truth is, if the "procedural" QW is unavailable, then the "writ" is still available at common law! There MUST be a remedy for usurpation of office, and states that have established "procedures" (statutes) have those remedies available, but if the statutes are unavailable or inefficient, the common law remedy is still available.

Here is an excerpt from Highs:
§ 615. Constitutional jurisdiction not taken away by legislation
In cases where the jurisdiction is conferred by the organic law of a state, it can not be taken away by legislative enactment or by statutory changes in the form of the remedy. And when the supreme court of a state is vested by the constitution with original jurisdiction in quo warranto, it will continue to exercise the jurisdiction thus conferred, notwithstanding an act of the state legislature attempting to abolish both the original writ of quo warranto and the proceeding by information. In such cases the grant of power by the organic law of the state is regarded not so much as conferring the power to issue a writ of a prescribed form, as to enable the court to hear and determine controversies of a certain character. And the jurisdiction thus conferred can not be taken away by legislative enactment or change in the form of remedy, although new process may be adopted calculated to attain the same end.

Here's another, obliquely referring to our common-law right:
§ 624. Power derived from the people in the United States; when people estopped from questioning title.
Since, under the American system, all power emanates from the people, who constitute the sovereignty, the right to inquire into the authority by which any person assumes to exercise the functions of a public office or franchise is regarded as inherent in the people in the right of their sovereignty. And the title to office being derived from the will of the people, through the agency of the ballot, they are necessarily vested with the right of enforcing their expressed will, by excluding usurpers from public offices. Nor is this right in any manner impaired by statutes granting to electors, in their private capacity as citizens, the privilege of contesting the election of any person assuming to exercise the functions of an office. Such statutes may have the effect of sharing the right with the elector, but they do not take it away from the people in their sovereign capacity.

And Obama used to be a constitutional scholar!

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