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‘Don’t Ask, Don’t Tell’: Log Cabin Republicans Arguments - "handwaving"

by Human Rights Alert, NGO Monday, Jan. 24, 2011 at 7:10 PM PO Box 526

In their opposition to the Motion to Intervene, the Log Cabin Republicans failed to do the obvious - produce the Certificate of the October 2010 Judgment. Of significance also is the lack of opposition to the intervention by the US Department of Justice, and the ongoing refusal of the US District Court to produce the Certificate.

Don't Ask, Don't Tell' Litigation - Reply claims Log Cabin Republicans' opposition to intervention amounted to 'hand-waving arguments'.


In their opposition to the Motion to Intervene, the Log Cabin Republicans failed to do the obvious - produce the Certificate of the October 2010 Judgment. Of significance also is the lack of opposition to the intervention by the US Department of Justice, and the ongoing refusal of the US District Court to produce the Certificate.


Los Angeles, January 23 - in his Motion to Intervene, [1] Dr Joseph Zernik of Human Rights Alert (NGO) challenged the validity of the US District Court's October 2010 Judgment in Log Cabin Republicans v USA, pertaining to the US Armed Services policy of 'Don't Ask, Don't Tell'.

Dr Zernik informed the Court of Appeals that the litigation of Log Cabin Republicans v USA in the US District Court was conducted in apparent violation of Due Process and First Amendment rights, and should be deemed invalid:

* No Certification was filed of the October 2010 Judgment; absent such certification, the Judgment should be deemed null and void.

* The Clerk of the US District Court refuses to produce a copy of the Certificate, in apparent violation of First Amendment right, to access court records to inspect and to copy.

* The Clerk of the US District Court also refuses to certify the docket of the case.

Even absent the Certificate of the October 2010 Judgment, Dr Zernik provided evidence from the US District Court's docket that the litigation in Log Cabin Republicans v USA should be deemed invalid from start to end:

* Two US Judges appeared in the case, both with no Assignment Orders. Absent Assignment Order in a specific case, a US judge has no authority to adjudicate in the matter.

* In 2004 Judge Schiavelli issued a judgment in the case, in favor of the United States. The judgment was listed in the docket as "entered", and was listed in the Judgment Index of the Court. Consequently, the case was deemed "closed" by court staff.

* The 2004 Judge Schiavelli Judgment was never overturned through an appeal, or any other judicial proceedings.

* In 2010 Judge Phillips appeared in the case and issued the opposing judgment, in favor of the Log Cabin Republicans. The 2010 judgment was again listed in the docket as "entered", but was not listed in the Judgment Index of the Court.

Attorneys for the Log Cabin Republicans filed on January 11, 2011, their opposition to Zernik's Motion to Intervene. [2] The succinct opposition states: "Proposed Intervenor Zernik has no known connection to this case, nor any known interest therein... Neither party has invited the participation of this individual".

Zernik has now filed his reply to the Log Cabin Republicans opposition. [3] Dr Zernik claimed that the Log Cabin Republicans opposition lacked in substance and amounted to 'hand-waving arguments':

* The Log Cabin Republicans' opposition failed to do the obvious - produce a valid Certificate of the October 2010 Judgment. It never provided any explanation for the refusal to produce the Certificate, either.

* The Log Cabin Republicans' opposition failed to provide any legal basis for the notion that intervention in the US courts was by party's invitation only.

* The Log Cabin Republicans' opposition failed to address Zernik's claims of interest in the case, and the interest of any person residing under the 9th Circuit in integrity of litigation in the US District Courts.

In particular, the Log Cabin Republicans may find themselves now inconsistent with their basic position regarding the underlying 'Don't Ask, Don't Tell' policy. Their objection to 'Don't Ask, Don't Tell' was founded on allegations of abuse of the Civil Rights of gays in the Armed Services. The Log Cabin Republicans' opposition to the Motion to Intervene never challenged the alleged violations of Due Process and First Amendment rights that were inherent to the conduct of the litigation in the US District Court itself.

Conduct of fair hearings in national tribunals for protection of rights are among the fundamental Human Rights pursuant to the Universal Declaration of Human Rights - ratified International Law.

Zernik's reply also informed the Court of Appeals of the significance of the lack of response on the Motion to Intervene by others:

* The US Department of Justice, which filed its own appeal in the matter, has not opposed the Motion to Intervene, inherent to which was a request to dismiss the appeals.

* The US District Court itself continues to refuse to produce a Certificate for the October 2010 Judgment.

The US Court of Appeals, 9th Circuit, issued a January 18, 2011 Order stating:

The pending motions by proposed intervenor Joseph Zernik shall be addressed in a separate order.

Notice was given to the US Congress Committees on the Judiciary, Armed Services, and the House Rules Committee.



[1] 11-01-08 Press Release: 'Don't Ask Don't Tell' - Motion to Intervene, Requesting the US Court of Appeals to Dismiss the Appeals from an Uncertified Judgment, was Posted in the Docket, is Now Pending before the Court-s

[2] 11-01-21 Press Release: Log Cabin Republicans Oppose Challenge to Validity of the Judgment in the 'Don't Ask, Don't Tell' Litigation

[3] 11-01-23 Log Cabin Republicans v USA (10-56634, 10-56813) Zernik's Reply in Support of Motion to Intervene as filed and served


Human Rights Alert is dedicated to discovering, archiving, and disseminating evidence of Human Rights violations by the justice systems of the State of California and the United States in Los Angeles County, California, and beyond. Human Rights Alert focuses on the unique role of computerized case management systems in the precipitous deterioration of the integrity of the justice system in the United States.


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