O'Connor v. U.S., (10th Cir. 2003)

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UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT J. O'CONNOR,

Plaintiff - Appellant,

v.



UNITED STATES OF AMERICA;

SENATE, House of Representatives;

GEORGE W. BUSH, JR., President,

Defendants - Appellees.

No. 02-2286

(D.C. No. CIV-02-1160-BB/LCS)

(D. New Mexico)

ORDER AND JUDGMENT
href="#N_*_" name="txt*">(*)

Before SEYMOUR, MURPHY, and

O'BRIEN, Circuit Judges.

Robert O'Connor appeals pro se the dismissal of his in forma

pauperis

complaint challenging the constitutionality of the presidential election process.

The district court dismissed the complaint sua sponte, recognizing its lack of

power to make the changes Mr. O'Connor requested. The court cited McKinney

v. Oklahoma, 925 F.2d 363, 365 (10th Cir. 1991), for the proposition that a

district court may dismiss a complaint where it is patently obvious the plaintiff

cannot prevail. We affirm.

Liberally construing Mr. O'Connor's complaint under Haines v. Kerner,

404 U.S. 519, 520 (1972), it appears he attacks the district court's decision on

the grounds that the court does in fact have the power to declare the presidential

election process unconstitutional, and that the court erred by misapplying

constitutional law. He challenges the constitutionality of several aspects of the

election process including the use of the popular vote, the involvement of

political parties and money in the electoral college, and the process as a whole.

Mr. O'Connor maintains that the Constitution has thereby been effectively

amended without due process of law. He renews his arguments before this court

and asks us to declare the present method of selecting the president

unconstitutional and to remove President Bush from office.

28 U.S.C. § 1915(e)(2)(B) confers discretion on a district court to dismiss

an in forma pauperis action if it is frivolous or fails to state a claim on which

relief may be granted. The discretion granted to district courts to screen out

meritless causes serves as the surrogate for the constraint that financial

considerations provide in the realm of paid cases. See Neitzke v. Williams, 490

U.S. 319, 328 (1989). The district court did not specify whether it deemed

Mr.

O'Connor's claim to be frivolous or whether it failed to state a claim on which

relief could be granted. Although our standards of review are different for these

two situations, see Denton v. Hernandez, 504 U.S. 25, 33-34 (1992) (frivolous

determination reviewed for abuse of discretion); Perkins v. Kan. Dep't of Corr.,

165 F.3d 803, 806 (10th Cir. 1999) (§ 12(b)(6) dismissal reviewed de novo),

we

are satisfied that both standards have been met in this case.

Mr. O'Connor has failed to state a viable cause of action. His brief on

appeal argues that Mr. Bush's presidency violates Article II of the Constitution

based on the unconstitutionality of the election process dating back to 1824. He

maintains first that the founding fathers did not intend a popular vote, and

because the popular vote is not explicitly stated in Article II, it must be

unconstitutional. Next he notes that the Constitution does not mention political

parties. Therefore, he argues, their involvement in the election process, and

particularly in the electoral college system, is unconstitutional. He also alleges

that money unconstitutionally controls the election process. Finally, he argues

that the popular vote, the involvement (or perhaps the mere existence) of political

parties, and the current procedure for appointment of electors have, without due

process of law, effectively amended the Constitution in violation of Article V,

"making the Constitution a sham and the U.S. Gov[ernment] for hire to the

highest bidder." App. Br. at 3B. He asks this court "to declare the pres[ent]

method of selecting [the] Pres[ident] [u]nconstitutional and unseat [President

Bush]." Id. at 4.

Although we construe a pro se complaint liberally, we agree with the

district court that Mr. O'Connor has no legitimate hope of success in this action.

Mr. O'Connor's constitutional claims lack a legal basis and he requests relief we

are without jurisdiction to grant. Matters such as the ones Mr. O'Connor raises

regarding the involvement of money and political parties in the election process

are inappropriate for resolution by a federal court. The district court properly

dismissed his complaint.

Accordingly, we AFFIRM.

ENTERED FOR THE COURT

Stephanie K. Seymour

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*.After examining appellant's brief and the

appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.

34.1(G). The case is therefore submitted without oral argument. This order and

judgment is not binding precedent, except under the doctrines of law of the case,

res judicata, or collateral estoppel. The court generally disfavors the citation of

orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

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