Anatomy Of A Decision
This page explains the federal laws, facts and procedures whereby consent was granted by the members of Congress to Karen D. Utiger Department of Justice (DOJ) attorney to represent them in Walker v Members of Congress. These laws, facts and procedures will demonstrate the decision by Congress to veto the law of the Constitution was intentional, formal and deliberate. These laws, facts and procedures will establish this decision was made individually by each member of Congress of his own free will. These laws, facts and procedures will remove any possible denial by the members of Congress as to violation of their oath of office. This page will provide information to obtain the “smoking gun” report showing which federal official made the decision disobey the law of the Constitution and refuse to call an Article V Convention, the date the decision was made and the reasons that decision was made.
Most people assume legal representation by the DOJ of federal officials in federal lawsuit is automatic. This is not the case. Representation is not automatic. Federal law dictates that federal officials who are sued in federal court must individually request representation by the DOJ before the DOJ can represent them. The intent of the law is evident: unless requested by the official being sued, DOJ cannot represent that federal official in federal court.
Given this fact and law, particularly when the issue raised in Walker v Members of Congress is whether or not the law of the Constitution is binding on Congress, it was significant when Karen D. Utiger notified the clerk of the Ninth Circuit Court of Appeals she represented a nebulous “the government” (rather than the individual members of Congress who were the actual government officials being sued) she made no reference to this federal law. Nor did she provide any documentary proof of service proving she actually represented the individual members of Congress. Therefore she provided no proof either by reference or documentation that the members of Congress had individually and voluntarily requested legal representation by the DOJ (as required by federal law) in order for them to assert a “right” to disobey the law of the Constitution. Because of this lack of proof and to establish that the individual members of Congress had decided to violate their oaths of office, Mr. Walker challenged Utiger’s statement of representation with a series of legal motions. These motions in turn required Utiger to make a formal, written reply on behalf of her “clients.” The response and any proof of representation therefore became a matter of public record.
In his motion Mr. Walker cited several issues surrounding Ms. Utiger’s letter of appearance. These issues were:
(1) Ms. Utiger was notified of the appeal as required by district court rules. As the DOJ failed to make an appearance at district court level, the clerk of the court sent no notification of appeal to any legal representative of the government as the DOJ failed to present one;
(2) Ms. Utiger provided no conclusive statement as to who she actually represented instead using the nebulous term “the government” to describe her clients rather than indicating the actual parties named in the suit;
(3) Mr. Utiger provided no proof either by reference or documentation that she had been actually requested individually by members of Congress as required by federal law to actually represent them;
(4) Ninth Circuit Court rules forbid the submission of “new evidence” by either appellant or appellee. The appeals court therefore only considers evidence already presented in the district court. An appearance by Ms. Utiger in the appeal level when DOJ first failed to appear at district court violated the “no new evidence” rules of the Ninth Circuit. Any brief or other action she would present to the appeals court in order to advocate her clients legal position would constitute the presentation of “new evidence” as no such brief or other arguments were presented at the district court level as required by appeals court rules.
Ms. Utiger’s response in her answering reply to federal court rules as well as federal law was to state, “All of these arguments are patently frivolous, and we will not dignify them with a response.” In sum, Ms. Utiger refused to answer the issue of exactly whom she represented and by what means she came to do so. Despite Ms. Utiger’s opinion that federal law was “patently frivolous,” her opinion did not invalidate the legal requirements of that federal law nor did her opinion refute Mr. Walker’s assertion that the federal law he cited applied in this lawsuit. She provided no facts as would be expected of a professional attorney that she actually represented the members of Congress or refuted the assertion with facts such as court rulings, statutes or other documentary material to prove the federal law did not apply. Under that federal law each member of Congress is required to request representation by DOJ before DOJ may do so. No other federal law negates this legal requirement. 2 U.S.C. 118 states a government official who is sued in federal court must of his own free will determine he wishes to have the Department of Justice represent him in a federal lawsuit thus establishing a lawyer-client relationship between the official and the DOJ. This relationship includes the client instructing the lawyer as to what legal advocacy or argument that lawyer is to present in public court regarding issue of the lawsuit. Thus it is the client, in this case the members of Congress, who determine what advocacy the government assumes in court, not the Department of Justice attorney.
In response to her “patently frivolous” comment, the appeals court issued a formal order mandating Ms. Utiger submit a motion of appearance thus affirming DOJ representation was not automatic nor even guaranteed. Ms. Utiger complied with the court order and submitted a motion for appearance.
However Mr. Walker was not satisfied with Ms. Utiger’s motion for appearance as she had still failed to answer his original question of whom she represented. He therefore filed a second motion opposing her motion for appearance in which he presented additional arguments as to why Ms. Utiger should not be allowed to represent members of Congress in the lawsuit. These arguments included additional federal law which specified additional procedures for representation of federal officials by the DOJ.
The arguments presented in Mr. Walker’s second motion were:
(1) Ms. Utiger had failed to prove she was statutorily authorized to make appearance for the members of Congress as specified by federal law. Mr. Walker pointed out the issue was not whether Ms. Utiger could represent the members of Congress but rather had the members of Congress actually requested as specified by federal law she represent them.
(2) Mr. Walker cited three federal laws, 2 U.S.C. 118, 28 U.S.C. 2679 and the language of the summons sent the members at the beginning of the lawsuit. All stated an official sued must request representation before the DOJ is statutorily empowered to act. The statement made by Ms. Utiger that she was “assigned the case” indicated the DOJ made the determination, not the members of Congress as required by federal law.
(3) Ms. Utiger was attempting to substitute the United States government as a party without obeying federal law permitting it to do so. In order to do so, federal law mandates that “[U]pon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such a claim in a United States district court shall be deemed an action against the United States...and the United States shall be substituted as the party defendant.”
(4) Ms. Utiger had failed to provide certification by the Attorney General that refusing to obey the law of the Constitution by not calling an Article V Convention was “within the scope of [the] office of the members of Congress” as required by federal law.
(5) Further the law provides that should the Attorney General refuse to so certify, the individual who has been sued “may at any time before trial petition the court to find and certify that the employee was acting within the scope of his office or employment. Upon such certification by the court, such action or proceeding shall be deemed to be an action brought against the United States....”
(6) No petitions to the court to so certify the refusal to obey the law of the Constitution were submitted by any member of Congress. Ms. Utiger provided no certifications as required by law. As there was no certification of duty of office either by the court or the Attorney General, under law, the United States could not represent the members of Congress.
(7) Ms. Utiger did not deny that by refusing to obey the law of the Constitution and call an Article V Convention as specified by Article V the members of Congress had violated federal criminal law by violation of their oath of office.
(8) Ms. Utiger’s appearance, assuming she did represent the members of Congress, clearly was to oppose the suit brought to compel the members of Congress to obey the law of the Constitution and to punish them for violation of oath of office. Therefore Ms. Utiger’s appearance, based on her word alone absent any written proof whatsoever, was that the members of Congress asserted they can commit federal criminal acts and can disobey the law of the Constitution.
(9) Ms. Utiger could have resolved the entire issue of representation by simply citing the appropriate statutes (2 U.S.C. 118 or 28 U.S.C. 2679) and stating she had been requested, as specified by law, to represent the members of Congress. Specifically, “All appellees have requested representation by the Department of Justice under 2 U.S.C. 118. I have been assigned by the Attorney General of the United States to represent them here in this court per that statue.” Ms. Utiger refused to do so.
(10) Ms. Utiger asserted proper service had not been made on the members of Congress but failed to answer how, if service was properly made and thus the defendants, the members of Congress, not informed of the suit, could any of them have “notified” the DOJ of the suit thus causing Ms. Utiger to have been “assigned” to the suit. Ms. Utiger never explained how she was “notified” of the lawsuit as no court notification was sent to the DOJ as they failed to make any appearance at district court level.
Following this exchange of motions, Mr. Walker took it upon himself to call various members of Congress and determine if they had in fact requested representation by the DOJ in the lawsuit and were, in fact, actually advocating in violation of their oath of office, a “right” to disobey the Constitution and violate federal criminal law. The answers he received were mixed with some members of Congress claiming they knew nothing about the suit, others saying their own staff attorneys handled such issues and only one member of Congress stating he was represented by Ms. Utiger.
As a result of these phone calls, Ms. Utiger replied in a letter filed for public record with the Ninth Circuit Court of Appeals on April 25, 2005 that “[C]ounsel for the Senate and House have asked us to let you know that we will be representing the members of Congress in these proceedings.” With this one sentence Ms. Utiger finally identified her clients, the members of Congress, and noted that counsels for the Senate and House requested representation on behalf of the members of Congress by the DOJ. This admission indicated under which federal laws she was “assigned” to the lawsuit. As Ms. Utiger did not previously label these federal laws “patently frivolous” nor indicate in her letter such laws were “patently frivolous” nor refer to them in any future written statement these laws were “patently frivolous” clearly Ms. Utiger acknowledged she and her now identified clients were bound by them. Further this admission refuted and contradicted her earlier position indicated by her “patently frivolous” remarks made in her earlier responses. If Ms. Utiger actually believed the federal laws regarding permission to legally represent were “patently frivolous” why bother getting permission at all?
Mr. Walker opposed Ms. Utiger representing the members of Congress in a final motion based on the fact Ms. Utiger had not stated until April 25, 2005 whom she actually represented. He asserted as she had not stated until that date who she actually represented, she was not statutorily empowered to represent the members of Congress previous to this date. Regardless of any ruling on his motions, he had achieved his main purpose-- to establish for the public record that all members of Congress had joined against the Walker lawsuit of their own free will, that they advocated the law of the Constitution was not binding on them, and were aware this position was a violation of their oath of office, a criminal offense. While appeals rules forbid the submission of new evidence not presented in district court, the rules do not prevent obtaining new evidence through statements made by counsels in response to motions submitted in appeals court. By questioning the legal and statutory validity of Ms. Utiger’s representation Mr. Walker was able to obtain, for the public record, statements by Ms. Utiger on legal position of her clients thus not violating appeals court rules. Comments
The voluntary decision by members of Congress to join against Walker v Members of Congress in order to establish a “right” to disobey the law of the Constitution was more than a simple choice by each member of an informal consent by senate and house counsels. Rather several federal laws, which most people are unfamiliar, establish strict procedures by which congressional members join in a lawsuit, determine not to obey a law or give instructions to their respective chamber counsels.
While it may first appear the consent by the Office of Senate Legal Counsel and Office of General Counsel of the House of Representatives of the United States referred to by Ms. Utiger granting her permission to represent members of Congress in Walker v Members of Congress was no more than an informal approval, such is not the case. As with all federal officers, federal law regulates the actions and authority of both House and Senate counsels. In sum, these federal laws prohibit any action by these counsels without previous approval of their respective chamber memberships.
Under federal law the senate counsel could not grant permission to Ms. Utiger to oppose Walker without each senate member as well as senate leadership consenting to this decision. In the House, the general counsel could not give permission Ms. Utiger unless the decision was approved by the House leadership and other associated federal law. However there is no exemption for House or Senate members from 2 U.S.C. 118 in House rules, other associated federal law or laws governing the Senate. As each member of the House of Representatives or Senate was sued individually, they were still required by 2 U.S.C. 118 to individually request legal representation by the DOJ to oppose the Walker lawsuit despite the “patently frivolous” remark by Ms. Utiger. Thus, the respective chamber counsels merely served as spokesmen for the collective decision to disobey the law of the Constitution made by all individual members of Congress.
Given this decision by the members of Congress Ms. Utiger chose not to join with Mr. Walker in appealing a court ruling effecting the constitutionality of Article V. The decision in Walker held Congress, under the political question doctrine, could disobey the law of the Constitution. Because of her decision not to appeal this court ruling but instead support it as instructed by the members of Congress, another federal law took effect. 28 U.S.C. 530d specifies the Attorney General submit a written report to Congress explaining why the law of the Constitution should not be obeyed by the government. This report is the “smoking gun” of Congress’ decision to disobey the law, not only of the Constitution but their oath of office and associated federal criminal laws as well. There is no question the Attorney General had to submit a report to Congress on Walker. Besides the refusal to appeal, the court ruling and actions of the government qualified under several other provisions of 28 U.S.C. 530d. Qualification under any of these provisions requires the Attorney General to submit a report to Congress.
The purpose of the law is clear. 28 U.S.C. 530d presumes that the Department of Justice and their clients (members of the federal government) will obey federal law. This includes the law of the Constitution which is described as “other law” in 28 U.S.C. 530d. The law requires that should a policy be decided where this presumption of obedience to the law will not occur, the Attorney General explain in writing who decided this, when it was decided and the justification and reasons for such a decision. In the case of Walker 28 U.S.C. 530d mandates the report name the federal official who decided the policy that the law of the Constitution and federal criminal law as well as oaths of office could be ignored by Congress with impunity, the date this decision was made and the justification and reasons for the establishment of such a policy. The law further requires this report be sent to Congress (including house and senate counsels) in time for Congress to “act” on the matter. In the case of Walker this meant members of Congress deciding if the law of the Constitution was binding on them and to countermand the policy stating they were not so bound if they disagreed with that policy. Congress did not change its collective decision to oppose obeying the law of the Constitution nor has any individual member of Congress ever refuted the policy established in the 530d report.
There is no classified material in Walker v Members of Congress. Walker is a public court case and therefore is public record. Hence, the report required by 28 U.S.C. 530d is public record. This report may be obtained by anyone wishing to read it by simply requesting a copy of it either from a member of Congress or through the Freedom of Information Act. FOAVC does not have a copy of the report as Ms. Utiger refused to make it part of the court record.
In sum, based on the 28 U.S.C. 530d report which established a policy Congress can disobey the law of the Constitution and on federal laws which mandate an individual decision by each member of Congress as to their supporting the Constitution it can be categorically stated that each member of Congress of his own free will, intentionally joined against Walker v Members of Congress. The expressed purpose was to establish a “right” to disobey the law of the Constitution, their oaths of office and associated federal criminal laws intended to prevent such acts by members of Congress. This deliberate decision on the part of Congress ignored two critical facts; the legal contradiction of the Walker ruling and in turn, the final irony of Walker v Members of Congress. Comments