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Paige v. State

Supreme Court of Vermont

October 18, 2013

H. Brooke Paige
State of Vermont, James Condos, Secretary of State and Barack Obama

On Appeal from Superior Court, Washington Unit, Civil Division, Robert R. Bent, J.

H. Brooke Paige, Pro Se, Washington, and Mario Apuzzo, Jamesburg, New Jersey, for Plaintiff-Appellant.

William H. Sorrell, Attorney General, and Todd W. Daloz, Assistant Attorney General, Montpelier, for Defendants-Appellees State of Vermont and James Condos.

PRESENT: Reiber, C.J., Dooley, Skoglund and Burgess, JJ., and Zonay, Supr. J., Specially Assigned.


¶ 1. Plaintiff H. Brooke Paige appeals a decision by the Washington Superior Court, Civil Division, granting a motion to dismiss by the State and its Secretary of State James Condos. [1] Plaintiff contends the trial court erred in dismissing the suit on jurisdictional grounds because injury to his life, liberty, and property confers standing, as do Vermont election statutes, 17 V.S.A. §§ 2603 and 2617. Plaintiff also asserts that the past presidential election does not render his case moot because this Court can still provide declaratory relief. We disagree, and dismiss the appeal as moot.

¶ 2. The facts and procedural history are summarized as follows. Plaintiff, a Vermont resident and voter, filed a complaint on August 27, 2012, seeking declarations that Barack Obama is not a “natural born Citizen” as required for eligibility to be President in Article II, Clause 4, of the Federal Constitution and was thus unqualified to be on the ballot for the Office of President, and that Barack Obama’s Petition for Nomination for the primary election and filings for the general election were “null and void” because of his ineligibility to hold office. Plaintiff defined “natural born Citizen, ” according to treatises and other writings preceding and contemporaneous to the Constitution’s founding, as a person born to two parents who were citizens of the United States at the time of the person’s birth. In addition, plaintiff sought an injunction against the Vermont Secretary of State to bar the Secretary from including Barack Obama’s name on the election ballot in Vermont.

¶ 3. On September 25, 2012, defendants filed a motion to dismiss plaintiff’s complaint pursuant to Vermont Rule of Civil Procedure 12(b)(1) and (6). Defendants argued that the court lacked jurisdiction to hear the case because plaintiff’s injury was “generalized and speculative, ” and so did not establish standing. Defendants further asserted that the trial court did not have jurisdiction because the court was the wrong forum in which to request relief. On the merits of the case, defendants maintained that the Secretary of State does not have the authority to determine a presidential candidate’s eligibility, and argued that the Constitution does not require a candidate for President to be born of two citizen parents to qualify as a “natural born citizen.”

¶ 4. Recognizing the passage of the general election, on November 8, 2012, plaintiff filed a letter with the trial court requesting a pre-trial conference and expedited hearing. Plaintiff sought to ensure enough time for the trial court to thoroughly review all issues and direct the Secretary of State to carry out his election duties prior to the state’s participation in the Electoral College.

¶ 5. On November 14, 2012, the court granted defendants’ motion to dismiss, ruling that plaintiff lacked standing to bring the suit because the claim was “an impermissible generalized grievance.” Plaintiff filed a timely notice of appeal, and subsequently filed a motion in late December 2012 for an expedited hearing before this Court in advance of the Joint Session of Congress that would take place on January 6. [2] This Court denied the motion.

¶ 6. The central question now before this Court on appeal is whether the mootness doctrine bars review of plaintiff’s case. Plaintiff argues this case is not moot because the Court can provide relief by declaring that Barack Obama is not a natural-born citizen, and asserts that a controversy continues through plaintiff’s efforts to safeguard his life, liberty and property. Plaintiff also contends that this case satisfies two exceptions to the mootness doctrine. First, plaintiff anticipates that a situation involving an ineligible presidential candidate is capable of repetition yet evades review because President Obama may run for a third term if Congress repeals the Twenty-Second Amendment, or other presidential candidates not born of two U.S. citizens are likely to run for president in the future. Second, plaintiff asserts that he suffers negative collateral consequences as a result of Barack Obama’s presidency that impact his life, liberty, and property.

¶ 7. The case is moot. Neither exception advocated by plaintiff applies here. Accordingly, this Court need not address plaintiff’s other arguments on standing or the merits.

¶ 8. We review dismissal for lack of subject-matter jurisdiction de novo. See Brod v. Agency of Natural Res., 2007 VT 87, ¶ 2, 182 Vt. 234, 936 A.2d 1286 (citing Town of Bridgewater v. Dep’t of Taxes, 173 Vt. 509, 510, 787 A.2d 1234, 1236 (2001) (mem.)). In order for the Court to rule on substantive issues, an appeal must involve “either a ‘live’ controversy, or the parties must have a ‘legally cognizable interest in the outcome’ of the case throughout the entire proceeding.” In re S.N., 2007 VT 47, ¶ 5, 181 Vt. 641, 928 A.2d 510 (mem.) (quoting In re P.S., 167 Vt. 63, 67, 702 A.2d 98, 100 (1997)). Additionally, “an issue becomes moot ‘if the reviewing court can no longer grant effective relief.’ ” Chase v. State, 2008 VT 107, ¶ 11, 184 Vt. 430, 966 A.2d 139 (quoting In re Moriarty, 156 Vt. 160, 163, 588 A.2d 1063, 1064 (1991)). “Unless an actual or justiciable controversy is present, a declaratory judgment is merely an advisory opinion which we lack the constitutional authority to render.” Doria v. Univ. of Vt., 156 Vt. 114, 117, 589 A.2d 317, 318 (1991).

¶ 9. Recognized principles of mootness apply to the present case because it no longer involves a live controversy. Plaintiff has no legally cognizable interest in the outcome. Barack Obama’s name was on the ballot, and he is now the President of the United States. President Obama is also unable to seek re-election. U.S. Const. amend. XXII. The issuance of an advisory opinion assessing the merits of plaintiff’s argument about the meaning of “natural born Citizen” is beyond this Court’s constitutional prerogative. See In re ...

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