Misconceptions About Quo Warranto.

Misconceptions About Quo Warranto.

Misconceptions About Quo Warranto.

There is quite a bit of confusion regarding the federal quo warranto statute. Since the statute will most likely be invoked by private citizens in the near future, I will discuss some of the confusion floating about. Recently, Mario Apuzzo Esq. added to the confusion with a blog post that contains multiple misconceptions regarding the federal quo warranto statute and applicable case law.

I know Mr. Apuzzo is an honorable attorney and an intelligent man. I do not want my readers to get the impression that I am advocating otherwise. Regardless, it is necessary for me to strongly counter the impression his recent report has given the public.

I will ask that readers please bone up on the exhaustive work I published back in March which Mr. Apuzzo failed to acknowledge in his post. My previous three part series can be found at the following links:




I will draw from these previous publications to correct Apuzzo’s recent mistakes.

Mr. Apuzzo stated on November 9th, 2009:

Before we begin, we must understand that a quo warranto action is a direct attack on an office holder, questioning his qualifications to hold an office and therefore his warrant and authority to occupy that office. It does not challenge any action taken by that person while having been in office. This type of action is to be distinguished from one where the plaintiff brings an indirect attack (collateral attack) against that office holder, arguing that some action taken by him or her is invalid because he or she is not qualified to hold the office from which the action is taken… Andrade v. Lauer, 729 F.2d 1475 (D.C.Cir.1984). As we shall see below, this distinction is important, for it can be argued that direct attacks must satisfy the requirements of a quo warranto action while indirect attacks must satisfy the requirements of the de facto officer doctrine. Mr. Donofrio does not explain which one of these approaches he proposes to take against Obama.

I have discussed the difference between collateral attacks and direct attacks in quo warranto on multiple occasions going all the way back to March 2009 when I introduced my readers to the important DC Court of Appeals case – Andrade v. Lauer:

– Under the holding in ANDRADE v. LAUER, 729 F.2d 1475, 234 U.S.App.D.C. 384 (1984), the Court of Appeals for the District of Columbia has held that the defacto officer’s doctrine does not prohibit “collateral attacks” of official actions based upon a public officer’s lack of eligibility. These are not quo warranto suits to remove the official, they are civil suits to challenge a specific action of that official.

In the Andrade case, the plaintiffs were Government employees who lost their jobs to “reduction in force” ordinances which cut whole departments from the Government budget. The plaintiffs sued alleging those who did the cutting were not Constitutionally qualified to make such decisions in that their appointments violated the appointments clause of the US Constitution.

The DC District Court held that the plaintiffs had no standing other than to bring a “direct attack” in quo warranto to remove the alleged usurper. But the DC Court of Appeals reversed and said the plaintiffs, who had suffered real injuries, could bring such an action on a case by case basis if they could prove their injury in fact (being fired) was caused by a Government official who was not eligible to serve.

The false implication from Mr. Apuzzo’s recent article is that I haven’t considered the difference between direct and collateral attacks. I certainly have as my prior reports predate his by eight months. Apuzzo goes on to say:

Since Mr. Donofrio is proposing a quo warranto action, he must be planning a direct attack against Obama. Mr. Donofrio fails to recognize the many problems that exist with the quo warranto procedure that he advocates.

I have been on the record numerous times to explain the difficulties in proving one is an “interested person” under the statute. The difficulty is covered in great detail in my previous three part series. Apuzzo fails to acknowledge this work and then berates me as if the work does not exist.

But the most serious deficiency in Mr. Apuzzo’s work concerns his failure to properly quote the US Supreme Court wherein he states:

Under the standard for being an “interested person” as pronounced by Newman v. United States ex rel. Frizzell, 238 U.S. 537 (1915), in a case involving a public office one would have to have “an interest in the office itself peculiar to himself…” and be filing an action against another who allegedly usurped that office. Indeed, Newman requires that the plaintiff be “actually and personally interested” in the office and that there be another person against whom the action is brought who has unlawfully occupied the office in question. In other words, the plaintiff must himself make a claim to the office in order to qualify to bring the action.

Mr. Apuzzo has ignored the most important part of the holding in the controlling US Supreme Court case which has construed the quo warranto statute – Newman v. United States ex rel. Frizzell, 238 U.S. 537 (1915). His reporting here is blatantly mistaken. In the Newman case, the SCOTUS discussed the issue concerning who may be an “interested person” under the statute and they left a huge barn door open on this point. Please refresh your memories on this most important SCOTUS precedent:

For in neither case is there any intent to permit the public office to be the subject matter of private litigation at the instance of one who has no interest therein which differs from that of every other member of the public. The claim that this construction makes the statute nugatory cannot be sustained, for the statute, as already pointed out, gives a person who has been unlawfully ousted before his term expired a right, on proof of interest, to the issuance of the writ, and there might be cases under the civil service law in which the relator would have an interest and therefore a right to be heard.

It is that final line issued by the SCOTUS which provides the best possible access to the quo warranto statute and the DC District Court for review of Obama’s eligibility. As readers of this blog are fully aware, I have said over and again that somebody like former Inspector General Walpin – fired from his civil service position by Obama – would have a fair chance at qualifying as an “interested person” to make a direct attack via quo warranto upon Obama’s eligibility in the DC District Court.

Back in March I stated:

SCOTUS held that interested persons would include persons ousted from the office they are challenging. But they left the door open with that last line, “…and there might be cases under the civil service law in which the relator would have an interest and therefore a right to be heard.”

Mr. Apuzzo fails to mention this part of the holding in Newman, and he fails to mention my previous discussion thereof. Furthermore, he goes on to say:

Are there any available plaintiffs at this time who fill this bill or will there be any in the future who will do so? I know that Mr. Donofrio is now looking for a plaintiff to retain him to bring a quo warranto action in the DC District Court. But has he advised the public that any would-be plaintiff has to have an interest in the office itself peculiar to himself and that he be actually and personally interested in the office?

The record is quite clear. I have advised the public regarding the Newman case and the quo warranto statute since March. And I have done so comprehensively whereas Mr. Apuzzo has not. There is no excuse for Apuzzo’s ignorance of this important aspect of the Newman holding. It greatly expands the definition of “interested person”.

Furthermore, I am not looking for plaintiffs. But plaintiffs have certainly come looking for me. I have not directly solicited anyone. I simply stated on my blog that I was open to speaking to persons who might fit into the statute’s requirements as defined by SCOTUS.

I have turned most who contacted me down because they did not meet the requirements discussed by the SCOTUS in Newman. I’ve had long conversations with active military persons. I counseled them not to bring quo warranto actions in the DC District Court since the holding in Newman provides no wiggle room for military plaintiffs. Our brave soldiers are certainly interested in their Commander being eligible, but the holding in Newman is rather strict. The court only listed two possible groups of eligible candidates for 3503 access to a direct attack via quo warranto – those who seek the office and others who might have claims under “the civil service laws”. Since SCOTUS went out of their way to limit this holding to these two possible sets of persons, the chances of military persons gaining access under the statute is remote. Not impossible but certainly remote.

Until the statute is tried by persons effected by the civil service laws, I do not believe the military should be on the front line for this issue. And I explained this back in March as well, stating:

I don’t believe the military are party to the civil service laws, so I don’t see them as being the plaintiffs with the best possible standing.

Apuzzo then goes on to argue that the quo warranto statute can’t remove a sitting President, stating:

Second, if the DC statute were to be read as Mr. Donofrio does so as to be used as a tool to oust from office a sitting putative President, then I doubt such an application of that statute would be constitutional. It is highly doubtful that Congress, a co-equal branch of government to the Executive, has the constitutional power to pass a statute which would allow a federal district court to alone directly remove a sitting President.

I have addressed the constitutional issues in great detail in my prior reports. But this is exactly the argument recently made by the Department of Justice before Judge Carter in Barnett v. Obama. The DOJ argued that the quo warranto statute could not be used to remove a sitting President. But Judge Carter did not adopt the DOJ argument in his holding in Barnett v. Obama. Instead, Judge Carter stated on page 25 of that decision:

The writ of quo warranto must be brought within the District of Columbia because President Obama holds office within that district. The quo warranto provision codified in the District of Columbia Code provides, “A quo warranto may be issued from the United States District Court for the District of Columbia in the name of the United States against a person who within the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States, civil or military.” D.C. Code §§ 16-3501 – 16-3503.

It’s very encouraging that faced with the chance to affirm the DOJ position, Judge Carter refrained form doing so. Instead, he quotes the clear language of the statute which applies to all United States offices. As Mr. Apuzzo is well aware, when the language of a statute is clear, the courts have consistently refused to construe the statute otherwise. Accordingly, Judge Carter was careful to state that “The writ of quo warranto must be brought within the District of Columbia because President Obama holds office within that district.”

Another mistake made by Apuzzo is his reliance upon Wilder v. Brace where he states that “a federal court with diversity jurisdiction can hear quo warranto action“. Unfortunately, Apuzzo fails to acknowledge that the holding in Wilder only extends to a state quo warranto action, not a federal action. This was discussed in Tuscon v. US West as follows:

Wilder v. Brace, 218 F. Supp. 863-65 (D. Me. 1963) (holding that a federal court with diversity jurisdiction can hear a state quo warranto action).

A state quo warranto action is a very different beast than a quo warranto to remove a US national office holder. Most of the States have their own quo warranto statutes effecting state officers. The holding in Wilder simply clarifies that a federal court with diversity jurisdiction applying state law may apply state quo warranto law. This is a completely different situation than a federal quo warranto action to remove a US national office holder.

As I have pointed out in my previous reports (please review links form above), the federal courts have consistently refused to entertain federal quo warranto actions against US national office holders due to the very specific wording of the quo warranto statute. As stated above, Judge Carter recently reaffirmed this to be the law.

In conclusion, I must reiterate that Mr. Apuzzo fails to quote the highest court in the land properly and in doing so he misses the forest for the trees. Once again, SCOTUS stated in the Newman holding:

“…there might be cases under the civil service law in which the relator would have an interest and therefore a right to be heard.”

This one line is the single most important precedent concerning the issue of who may be an “interested person” under 16-3503 of the quo warranto statute. Why Mr. Apuzzo fails to mention it is a mystery to me. I have been educating the public thereto since March ‘09. I am proud of my work and I stand by it.

Leo C. Donofrio

(Leo many Americans are and were also proud of your work. I am pleased to preserve your good work because it is worthy of study by all freedom loving Americans)


One Response to “Misconceptions About Quo Warranto.”

  1. […] Misconceptions About Quo Warranto Explained By Leo Donofrio …………………………………………………………………………….. […]

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