ted cruz lawsuit
TRANSCRIPT
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Walter L Wagner
PO
Box
271233
Salt Lake City,
UT
84127
808-443-6344
THJ T DF U H ·
IN THE UNITED STATES
DISTRICT COURT
Walter L Wagner,
Plaintiff
vs
Rafael Edward Ted}
Cruz,
Defendant
DISTRICT
OF UTAH
--ooOoo--
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1
Case: 2:16cv00055
Assigned To : Parrish i l l N
Assign Date : 1/22/2016
Description:
Wagner
v Cruz
COMPLAINT FOR
DECLARATORY
RELIEF
Non Jury}
Speedy Hearing Requested}
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Complaint
for
Declaratory Relief
Comes
now plaintiff Walter
L
Wagner and seeks Declaratory
Relief as follows:
Jurisdiction
1
Plaintiff
Walter
L
Wagner
plaintiff)
is
a resident and citizen
of
the
State of Utah, registered
to vote
in State and Federal elections in Utah.
2
Defendant Rafael Cruz defendant) is a resident and citizen of
the
State of Texas.
3
Jurisdiction
is
proper in this Court due
to
the
diversity
of
citizenship.
II
Factual Allegations
4
Plaintiff
is
informed and believes as follows:
a
Defendant was born in Calgary, Alberta, Canada on
December 22, 1970.
2
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b
Defendant was raised in Calgary, Alberta, Canada
from birth
through
and until
the age
of
four as
a Canadian citizen,
whereupon
he
relocated to Texas.
c
Defendant s
father
was a citizen
of Cuba
and a resident of
Canada seeking permanent Canadian residence at
the time
of
defendant s
birth.
d. Defendant s mother was a citizen of
the
U.S.A. and a
resident of Canada seeking
permanent
Canadian residence at the
time
of
defendant s birth.
e
One or more members
of
Defendant s household
proclaimed
to
Canadian
government
agents,
after
defendant s birth,
that
they (the
Cruz
family)
were
Canadians, and both parents were
listed on Canadian
voter
registration rolls
as
eligible Canadian voters.
f. Defendant could claim citizenship
from
Cuba, Canada, and
the
U.S.A. at
the
time
of
his birth.
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g
Defendant renounced his Canadian citizenship in 2014,
seeking
to
retain solely his U S A citizenship.
h Defendant is seeking a U S government employment
position (President) that constitutionally requires a status of being
natural born which requires either birth in the
U S A
with intentions
to
reside in
the U S A
by the parents if
they
are non-citizens, or birth
outside the
U S A
or its territory with both parents
as U S A
citizens;
or
birth outside the U S A or its territory with one parent a U S A citizen
and intentions
to
soon after birth reside in
the U S A
and not having
intentions
to
have residency
or
citizenship
in
a foreign (non-U.S.A.)
country.
Ill
Request
for
Relief and Declaratory Judgment
5
Plaintiff
has
a vested interest in insuring that all candidates for the
position
of
President are legally qualified, including being natural
born citizens as required by the U S Constitution.
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6 Defendant Cruz
has
declared himself to be a candidate
for the
position
of
President, and is seeking to vie
with
other, qualified
candidates, in the caucuses and elections
of
Utah. Having
an
unqualified candidate compete with the numerous qualified candidates
potenti lly skews the results
of
those events, and potentially places him
in a position of unlawfully serving
as
President should someone else not
challenge his candidacy based on his lack of ((natural born status.
Accordingly, pl intiff has standing to bring this suit.
7
Plaintiff
seeks
a declaratory judgment
th t
defendant
is not
a
((natural born citizen within the meaning
of
the U S Constitution, but
is instead a foreign-born citizen who was made a potential citizen at
birth by way
of
his mother's citizenship, with the ability to choose a
citizenship status other than
th t
of U S A due to his foreign birth and
sole U S A citizen parent.
8
Plaintiff attaches hereto his
oints
and uthorities
in Support
of
his request for a Declaratory Judgment, specifically the scholarly article
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by Mary Brigid McManamon a const itutional law professor at
Widener
University Delaware
Law
School; the
case
of Minor
v
Happersett 88
U S 162 which discussed the issue; and the statutory authority
allowing for issuance of a declaratory judgment
9 Plaintiff seeks a speedy hearing to properly resolve this issue in a
timely
manner.
Points and Authorities in Support
Plaintiff respectfully submits the following points and authorities
in
support of
his request for declaratory
judgment:
10. The Federal Rules
of
Civil Procedure Rule 57 governs
the
procedure
for
obtaining a declaratory judgment under 8 U S C §2201.
The existence of another adequate remedy does not preclude a
declaratory
judgment
that is otherwise appropriate. The
court
may
order a speedy hearing of a declaratory-judgment action.
11. The Advisory Committee Notes thereto provide
as
follows:
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The
fact that a declaratory judgment may
be
granted
whether or not further relief is
or
could be prayed indicates
that declaratory relief is alternative or cumulative and not
exclusive
or
extraordinary. A declaratory judgment
is
appropriate
when
it will terminate the controversy
giving
rise to the proceeding. Inasmuch as it often involves
only
an
issue o
law
on undisputed
or
relatively undisputed facts, it
operates frequently as a summary proceeding, justifying
docketing the
case
for early hearing as on a motion, as
provided for in
California
(Code
Civ.Proc. (Deering, 1937}
§1062a}, Michigan
{3
Comp.Laws
{1929} §13904}, and
Kentucky
(Codes
(Carroll,
1932}
Civ.Pract.
§639a-3}.
The
controversy must necessarily
be
of a justiciable
nature, thus excluding
an
advisory decree
upon
a
hypothetical state
o
facts.
Ashwander
v
Tennessee Valley
Authority
297 U.S. 288,
325,
56 S.Ct. 466,
473, 80
L.Ed.
688,
699
(1936}. The
existence
or
nonexistence
o
any
right,
duty,
power,
liability,
privilege,
disability,
or
immunity
or
o
any
fact
upon which such
legal relations depend,
or o
a status,
may
be declared. The
petitioner must have a practical
interest in the declaration sought and
all
parties having
an
interest therein
or
adversely affected must
be
made parties
or
be
cited.
A declaration may not
be
rendered if a special
statutory proceeding
has
been provided for the adjudication
o
some special type o
case,
but general ordinary
or
extraordinary legal remedies, whether regulated by statute
or
not, are not deemed special statutory proceedings.
When
declaratory relief will not be effective in settling
the controversy, the court may decline
to
grant it.
But
the
fact that another remedy would be equally effective affords
no
ground for
declining
declaratory
relief. The
demand for
7
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relief
shall
state with precision the declaratory judgment
desired,
to which
may be joined a demand for coercive relief,
cumulatively or
in
the alternative; but when coercive relief
only
is
sought but
is
deemed ungrantable
or
inappropriate,
the court may
sua sponte,
if it serves a useful purpose, grant
instead a declaration
o
rights.
12. Under 28 U.S. Code
2201 Creation o
remedy, paragraph
a) it
reads:
u
n
a case
o
actual controversy within its jurisdiction, except
with respect to
Federal
taxes other than actions brought
under section
7428
o the Internal Revenue Code o 1986, a
proceeding under section 505 or 1146
o
title11, or in any
civil action involving
an
antidumping or countervailing duty
proceeding regarding a
class or
kind
o
merchandise
o
a free
trade area country as defined in section 516A f) 10} o the
Tariff Act
o
1930}, as
determined by the administering
authority, anv court
o
the United States, upon the filing
o
an
appropriate pleading, may declare the rights and other
legal relations
o
any interested party seeking such
declaration, whether or not further relief is or could be
sought. Any such declaration shall have the
force
and effect
o a final judgment or decree and shall be reviewable
as
such.
(underlining added or emphasis
8
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13. Plaintiff
seeks
declaratory relief and a declaratory
judgment to the
effect
that
defendant
is
not
a natural born American citizen due
to
his
birth and early childhood in
Canada
from
only a single
U S
citizen
parent (mother). The founding fathers included a dif ferent standard
of
citizenship
to
serve
as the
Commander in Chief
of the U S
armed
services and U S President, inserting
the
additional requirement
into
the U S
Constitution
that
such
U S
citizen seeking such office must also
be natural born to serve in the office of President, which office
defendant Cruz seeks. Common usage has referred
to
natural born
as
being born on
U S
soil. Congress deemed Senator McCain
to
be
natural born due to his birth on U S soil (Panama Canal Zone) to
two
U S
citizen parents.
14
This requirement of being a natural born citizen was apparently
inserted
to
insure
that
foreign-born persons, being raised under
other
allegiance, should not be able
to
have the uppermost command of the
U S Military. This has been expounded upon in a scholarly article by
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aryBrigid McManamon, a constitutional law professor at Widener
University s Delaware Law School, which reads:
Donald
Trump
is
actually right about something:
Sen. Ted
Cruz (R-Tex.)
is
not a natural-born citizen and therefore is not
eligible to be president or vice president
o
the United States.
The Constitution provides that
{No
person except a natural
born citizen shall be eligible to the office
o
President.
The concept o
({natural
born comes from the common law,
and it
is
that law the Supreme
Court
has said we must turn
to for the concept's definition. On this subject, the common
law
is
clear and unambiguous. The 18th-century
English
jurist William Blackstone, the preeminent authority
on
it, declared natural-born citizens are SUch as are
born
within
the dominions o the crown o England,
while
aliens
are
{{such
as are
born
out
o
it.
The
key to this
division is
the
assumption
o
allegiance to one's country o birth.
The
Americans who drafted the Constitution adopted this
principle for the United States. James Madison, known as the
{1ather
o
the Constitution, stated,
'1t
is an established
maxim that birth
is
a criterion o allegiance. [And] place
is
the most certain
criterion;
it
is
what applies in the United
States.
Cruz
is, o course, a
U.S.
citizen. As he
was born in
Canada,
he
is
not natural born.
His
mother, however,
is
an
American,
and Congress has provided by statute for the naturalization
o
children born abroad to citizens. Because
o
the senator's
parentage,
he
did not have to follow the lengthy
naturalization process that aliens without American
parents must undergo. Instead, Cruz
was
naturalized at
1
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birth. This
prov1s1on
has not always been available. For
example, there were several decades in the 19th century
when children o Americans born abroad were not given
automatic naturalization.
Article I o the Constitution grants Congress the power to
naturalize
an
alien. That
is Congress
may remove
an
alien s
legal disabilities
such as not being allowed to vote. But
Article o the Constitution expressly adopts the
legal
status
o
the natural-born citizen and requires that a president
possess that status. However
we
feel about allowing
naturalized immigrants
to
reach for the stars the
Constitution must
be
amended before one
o
them can
attain the office
o
president. Congress simply does not have
the power to convert someone
born
outside the United
States into a natural-born citizen.
Let
me be
clear:
I am not a so-called birther. I
am
a legal
historian. President Obama
is
without question eligible for
the office he serves.
The
distinction between the president
and
Cruz is
simple: The president was born within the United
States, and the senator was
born
outside o it. That is a
distinction with a difference.
n
this election cycle numerous pundits have declared that
Cruz
is eligible
to
be president.
They rely
on a supposed
consensus among legal experts.
This
notion appears
to
emanate largely from a recent comment
in
the
Harvard
Law
Review Forum by former solicitors general
Neal
Katyal and
Paul Clement. n trying to put the question o who is a
natural-born citizen to rest, however, the authors
misunderstand, misapply and ignore the relevant
law.
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First although Katyal and Clement correctly
declare
that the
Supreme Court has recognized that the common law
is
useful
to
explain
constitutional terms, they
ignore
that law.
Instead they
rely
on
three
radical
18th-century
British
statutes. While it is understandable for a layperson to make
such
a mistake, it is unforgivable for two lawyers o
such
experience
to
equate the common law with statutory law.
The
common law was unequivocal: Natural-born subjects
had
to
be born in English territory.
The
then-new statutes
were a revolutionary departure from that law.
Second the authors appropriately ask the question whether
the Constitution includes the common-law definition or the
statutory approach. But they fail
to
examine any U.S. sources
for the answer. Instead Katyal and Clement refer
to
the
brand-new
British
statutes
as
part o a longstanding
tradition and conclude that the framers followed that law
because they would have been intimately familiar with
these statutes. But when one reviews all the relevant
American writings
o
the early
period
including
congressional debates, well-respected treatises and Supreme
Court
precedent, it becomes clear that the common-law
definition
was
accepted in the United States, not the
newfangled
British
statutory approach.
Third Katyal and Clement put much weight on the first U.S.
naturalization statute, enacted in 1790. Because it contains
the phrase natural born, they infer that
such
citizens
must
include
children born abroad to American parents. The
first
Congress
however, had
no
such intent.
The
debates
on
the matter reveal that the congressmen were aware that
such children were not citizens and had to be naturalized;
hence, Congress enacted a statute to provide for them.
2
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Moreover, that statute did not say the children were natural
born, but only that they should
be
considered as such.
Finally, as soon
as
Madison,
then a member o Congress, was
assigned
to
redraft the statute
in
1795, he deleted the
phrase ''natural born, and it has never reappeared in a
naturalization statute.
When discussing the meaning
o
a constitutional term, it
is
important
to
go beyond secondary sources and look to the
Jaw
itself. And
on
this issue, the law
is clear: The
framers
o
the Constitution required the president o the United States
to be
born
in
the United States.
15. Case law is lacking on this issue directly. One older Supreme
Court
case
touches on
it
tangentially, Minor v Happersett, 88 U S 162
1875), which discusses citizenship rights.
ithin
its discourse it asserts
that
persons born on
U S
soil
with
two
citizen parents are also citizens,
essentially asserting a
requirement
for
either
two citizen parents,
or
birth
on U S soil, and reads:
It
is
sufficient for everything we have now
to
consider that
all children born o
citizen
p r e n t ~
within the jurisdiction are
themselves citizens. and Some authorities
go
further and
include
as
citizens children born within the jurisdiction
without reference to the citizenship o their parents. As to
this class there have been doubts, but never as to the first.
3
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(underlining added for emphasis)
16. Citizenship has since been extended to the second class
referenced in
that case
in which there had been doubts, i.e. birth
to
parents in the U S without regard to citizenship status
of
the parents
qualifies one for citizenship, and thus likewise ((natural born as also
born on
U S
soil (with ((within the jurisdiction referring
to U S
territory .
17. One can imagine a scenario,
for
example, in which a person born
with
a single U S citizen parent in a far foreign land, being raised in that
land for 17 years, then removing
to
the U S A and asserting U S
citizenship. Under the meaning
of
((natural born as detailed above,
such individual would
be
able to assert
their
citizenship right (born
of
a
single parent U S citizen),
but
would
not be
((natural born .
It
appears
that
such was
the
meaning and
intent of the
U S Constitution which
has not been changed in
that
regard since its inception. Accordingly,
the
proper method for any such change in meaning is an amendment
4
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thereto with State ratification as detailed in the Constitution
for
amending the Constitution.
18.
WHEREFORE
it is respectfully requested that this Court conduct a
speedy hearing on this matter, after service of the summons and
complaint, and grant the requested Declaratory Judgment that
defendant
Cruz
is not
natural born
within
the meaning
of the
U.S.
Constitution.
DATED:
January 21, 2016
Walter
L
Wagner
5
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JS (Rev.
12/12)
CIVIL COVER SHEET
The JS
44
civil cover sheet and
the
information
contained herein neither replace nor
supplement
the
filing
and service of pleadings or other papers as required by law, except
as
provided
by
local rules of court. This form,
approved by
the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court
for
the
purpose
of initiating the civil
docket
sheet. (.) EE INST lUCTIONS ON NEXT PAGE OF THIS FORM.)
WMN R , , , f ~ ~ ~ E . L .
I. (a) PLAINTIFFS
W A - L - r ~
(b)
County
of Residence of First Listed Plaintiff
County of Residen9-\ of
First Listed
Defendant
(hXCW'1'
IN
U.S. I
LA
NTIFF
CASES)
UTitH
\b
JM 1
?
? \::J
j : 2 (IN
U.S. PLAINTIFF
CASES
ONLY)
-JtoTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys
(Firm
Name, Address, and Telephone
Number)
Tt)
r ~ T
OF \ J T i \ t ' ~
i
' ' · · ' 'l\ttorneys (If
Known)
II. BASIS
OF JURISDICTION (Place an
"X"
in
One Box Only)
III.
CITIZENSHIP OF PRINCIPAL
PARTIES (Place an "X"
in
one
Box
.for Plaim ff
0 I U.S. Government
0 3
Federal Question
Plaintiff
(U.S. Government No/ a ?.arty)
0 2
U.S.
Government Diversity
Defenrlant (Indimle Citizenship f (Parlie.\' inllem
III)
IV NATURE
OF
SUIT
(Place
an
"X"
in
One Box Only)
CONTRACT.
,_.
''',-'
-.,, . · .
_,,,
TORTS;_.:-. -:_;;-, •··,,: r D ~ f e n d a n l
PTF DEF PTF DEF
Citizen oflllis State fpi _ I 0 I Incorporated or Principal Place 0 4 0 4
of Business In This State
Citizen of Another State
0 2
~
Incorporated and Principal Place
of Business
In
Another State
0 5 0 5
0
3
0
3 Foreign Nation
0 6 0 6
i• 'FORFEITURE/PENALTY:_
. ;. BANKRUPTCY'-
-_
..
_
.:··-·
OTHERSTATUTES
...
.1
0 625 Drug Related Seizure 0
422
Appeal 28
USC 158
0
375
False Claims Act
of Property 21
USC
881 0 423 Withdrawal
0
400
State Reapportionment
0
690
Other
28 usc
157
0
410 Antitmst
0
430
Banks
and
Banking
--• PROPERTY-RIGHTS'•:-·
0 450 Commerce
0
820
Copyrights
0 460 Deportation
0.
830 Patent
0 470
Racketeer Influenced and
0 840 Trademark Cormpt Organizations
0 480 Consumer Credit
•••LABOR;.-;
-.
'.--SOGIALSECURITY '
...·
0
490 Cable/Sat TV
0
71
0 Fair Labor Standards 0
861 HIA
(1395ff)
0
850
Securities/Commodities/
Act
0 862 Black Lung (923)
Exchange
0
720
Labor/Management
0 863 DIWC/DIWW (405(g))
890
Other Statutory Actions
Relations
0 864 SSID Title XVI 0 891 Agricultural Acts
0 740 Railway Labor Act
0 865 RSI (405(g))
0 893 Environmental Matters
0
751
Family
and
Medical 0 895 Freedom oflnformati on
Leave Act Act
0
790 Other Labor Litigation
0
896 Arbitration
.
0
791
Employee Retirement .
FEDERALTAXSUITS ·
0 899 Administrative Procedure
Income Security Act
0 870 Taxes (U.S. Plaintiff
Act/Review
or
Appeal of
or Defendant) Agency Decision
0
871
IRS-Third Party
0
950 Constitutionality of
26 usc 7609
State Statutes
. ·IMMIGRATION
0
462 Naturalization Application
0 465 Other Jmmil'""''""
Actions
Case:
2:16cv00055
Assigned
To
Parrish,
Ji l l
N.
Assign.
Date
:
1/22/2016
Descrlptlon:
Wagner v. Cruz
W 1 Original 0 2 Removed from
Proceeding State Court
0 3 Remanded
from
Appellate Court
0 4 Reinstated or
Reopened
VII. REQUESTED IN
COMPLAINT:
VIII. RELATED CASE(S)
IF ANY
.>ee
ins/rue/ions):
APPLYING IFP
CHECK YES only if demanded in complaint:
JURY DEMAND: 0 Yes o
DOCKET NUMBER
JUDGE MAO. JUDGE
Case 2:16-cv-00055-JNP-PMW Document 1-1 Filed 01/22/16 Page 1 of 1