IN - Taitz v IEC & SOS - 2012-04-16 - IEC-SOS Memo in Support of Motion

8/2/2019 IN - Taitz v IEC & SOS - 2012-04-16 - IEC-SOS Memo in Support of Motion

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STATE OF INDIANACOUNTY OF MARIONORLY TAITZ, KARL SWIHART,EDWARD KESLER, BOB KERN,and FRANK WEYL

Petitioners,v.

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INDIANA ELECTION COMMISSION, )an d INDIANA SECRETARY OF )STATE,

Respondents.

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IN THE MARION SUPERIOR COURTCAUSE NO. 49Dl4-1203-MI-012046

FILEDAPR 16 2012

( ' J l ~ , C L ~ ~ ~ F T H E M A R I O N C I R C U I T C O U R T

MEMORANDUM IN SUPPORT OF RESPONDENTS' MOTION TO DISMISSPETITIONERS' "PETITION FOR EMERGENCY INJUNCTIVE RELIEFIPETITION

FOR DECLARATORY RELIEF"Respondents, the Indiana Election Commission ("IEC") and Indiana Secretary of State,

hereby move to dismiss Petitioner's "Petition for Emergency Injunctive RelieflPetition forDeclaratory Relief." This cause is governed by Indiana Code 4-21.5-5-1 et seq., theAdministrative Orders and Procedures Act ("AOPA"). Petitioners have ovelwhelmingly failedto comply with the requirements for judicial review. Therefore, this Court should dismiss thePetition pursuant to Indiana Rule of Trial Procedure 12(B)(6).

I. FACTS AND PROCEDURAL HISTORYThe IEC is a bi-partisan Commission that "[a]dminister[s] Indiana election laws" and

governs election procedures and campaign finance. Ind. Code 3-6-4.1-4. In a public meetingon February 24, 2012, the IEC heard challenges to the candidacy of various individual for officesup for election this year. That day, the IE e unanimously denied challenges to President Barack

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Obama's candidacy. A podcast ofthat meeting is available on the Indiana Secretary of State'swebsite.

Karl Swihart, Edward Kesler, FrankWeyl filed challenges with the IEC to PresidentBarack Obama 's qualifications for the office ofPresident of the United States. Those Petitionersalleged issues related to the identity and identification documents ofPresident Obama. While itis not entirely clear, it appears that the hundreds of pages which include, among otherdocuments, dozens of illegible and indecipherable documents, unsigned affidavits, and pagesfrom President Obama's memoir Dreams ofMy Father, are intended to call into question the

veracity. of certain identification documents of President Barack Obama.On March 23,2012, Dr. Orly Taitz, Esq. filed a "Petition for Emergency Injunctive

RelieflPetition for Declaratory Relief' on behalfof Swinhart, Kesler, Weyl, Bob Kern, andherself. The Petition requests "a declaratory relief pronouncing candidate Obama not eligible forthe position on the ballot as a candidate for the US Presidency . . . ." (Petition, Prayer for Relief

1.) They also want "an emergency injunctive relief in the form of a Writ ofMandamusdirecting the Elections Commission and the Secretary of State to remove Obama from theballot." (Petition, Prayer for Relief 2.)

Neither Taitz nor Kern were parties to the administrative proceedings before the IEC.Taitz appeared at the February 24th IEC hearing as an alleged expert witness hired by eitherSwihart, Kesler, or Weyl. However, she is not a registered voter in Indiana and did not file achallenge to President Obama's qualifications with the IEC. Likewise, Kern did not file achallenge to President Obama's qualifications with the IEC this year.

Also on March 23rd, Taitz filed an Appearance by Attorney in Civil Case in this cause.The appearance was signed by Kern for Taitz. The name "Dr. Orly Taitz, Esq." is written in the

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space for the undersigned attorney, although "pro se" is written after Taitz's name. Taitz is anattorney licensed to practice in California. See California Roll of Attorneys, available at:http://members.calbar.ca.gov/fallMemberSearchlQuickSearch?FreeText=taitz&SoundsLike=false. Neither she nor Kern is admitted to practice as an attorney in Indiana. See Indiana Roll ofAttorneys, available at: http://hats.courts.state.in.us/rollatty/. Taitz has not sought leave toappear pro hac vice in this case. Similarly, Petitioners provide no evidence that Taitz brought achallenge before the IEC, which is a requirement in order for Taitz to have standing to appearpro se in this matter. The Petition states that Taitz has "submitted a complaint of elections fraud,

use of forged identification papers, use of a name that is not legally his by candidate BarackObama," but fails to explain when or in what jurisdiction such a complaint was lodged.

On April 9, 2012, Taitz filed a Motion to Recuse Judge Shaheed ofMarion SuperiorCourt, Civil Division 1, on behalf of all Petitioners. Respondents moved to dismiss Petitioners'Motion on April 10, 2012. That same day, Judge Shaheed granted Petitioners' Motion. On April12,2012, Judge Reid ofMarion Superior Court, Civil Division 14 was appointed as the SpecialJudge in this case. I

Respondents now respectfully movethis Court to dismiss the Petition pursuant to IndianaRule ofTrial Procedure l2(B)(6). Petitioners are attempting to circumvent the judicial reviewprocess and the requirements ofAOPA. At least two of the Petitioners do not have standing to

I On April 9, 2012, Petitioners filed a "Motion to Recuse Judge Shaheed Under Rule 79 oflndiana Rules of TrialProcedure." Petitioners appeared to move for recusal under Indiana Trial Rule 79(c). Petitioners allege Ihal recusalwas necessary because a person within the third degree of relationship to the judge is known by the judge to have aninterest that could be substantially affected by the proceeding. Petit ioners' motion was improper because they failedto establish that any person related 10 the judge could be substantially affected by the proceeding. Respondents fileda motion to dismiss Petitioners' "Motion to Recuse" on April 10, 2012. Judge Shaheed recused himself on April 10,2012. It is unclear whether Judge Shaheed considered the Respondents' motion, as undersigned counsel was not onthe distribution list for his order, indicating that it he recused himself prior to counsel's appearance having been filedwith the Court. Respondents, therefore, respectfully move the Court to reconsider its Order dated April 10, 2012,for the reasons set forth in their Motion to Dismiss Petitioners' UMatian to Recuse,"

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seek judicial review ofIEC's unanimous decision to deny the challenges to President Obama'squalifications for the office of United States President. Furthermore, Petitioners failed to meetthe procedural requirements of AOPA, divesting this Court of its authority to entertain thismatter. Finally, Petitioners are not entitled to injunctive or declaratory relief because said reliefis not available under AOPA. Even if the Petition was construed as a request for a stay underIndiana Code 4-21.5-5-9, Petitioners have failed to prove that the IEC's unanimous denial ofthe challenges was illegal or invalid. Dismissal is, therefore, required.

II . THIS CAUSE IS GOVERNED BY AOPA

Petitioners' Petition is an attempt to circumvent the appellate procedures governing IECdecisions. IEC's decisions are subject to judicial review under AOPA. See Ind. Code 3-6-4.1-25; Ind. Code 4-21.5-2-6. Indiana Code 4-21.5-5-1 "establishes the exclusive means forjudicial review of an agency action."

Strict compliance with the requirements of AOPA is consistently upheld by the IndianaCourts ofAppeal. See Indiana State Board ofHealth Facility Admn 'rs, v. Werner, 841 N.E.2d1196, 1205 (Ind. ct. App. 2006). In addition, it is well settled that failure to comply with thestatutory requirements ofAOPA deprives the Court of authority over a petition for judicialreview. "In general, the failure to adhere to the statutory prerequisites for judicial review ofadministrative action is fatal in that it deprives the trial court of' authority to entertain thepetition. Burke v. Board ofDirectors ofMonroe County Public Library, 709 N.E.2d 1036, 1041(Ind. App. 1999), citing Binninger v. Hendricks County Bd. o/Zoning Comm'rs, 668 N.E.2d 269,271 (Ind. Ct. App. 1996). Although a court may have subject matter jurisdiction and personaljurisdiction, a court doesnot have authority, or what was formerly known as "statutoryjurisdiction," to hear a case unless statutory prerequisites are met. See Packard v. Shoopman,

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852 N.E.2d 927, 931 (Ind. 2006)(holding that statutory requirements are '''jurisdictional' only inthe sense that [they are] statutory prerequisite[s] to the docketing of an appeal" and that failure tocomply with statutory requirements is properly raised by motion under Rules 12(B)(l) and12(B)(6)"); K.s. v. State, 849 N.E.2d 538 (Ind. 2006)(holding that subject matter jurisdiction andpersonal jurisdiction are not affected by failure to follow statutory prerequisites and that what iscommonly referred to as "statutory jurisdiction" is a form of "procedural error"); City 0/SouthBend v. Brooksfield Farm, 418 N.E.2d 305, 307 (Ind. Ct. App. 1981).

The Indiana General Assembly has conditioned judicial review of administrative agency

decisions on compliance with AOPA's statutory prerequisites. Specifically, Indiana CodeSection 4-21.5-5-2(b) provides,

(b) Only a person who qualifies under:(1) section 3 of this chapter concerning standing;(2) section 4 of this chapter concerning exhaustion of administrative

remedies;(3) section 5 of this chapter concerning the time for filing a petition for

review;(4) section 13 of this chapter concerning the time for filing the agency

record for review; and(5) any other statute that sets conditions for the availability of udicial

review;is entitled to review of a final agency action.

Ind. Code 4-21.5-5-2(b). In short, before a court can review a petition, the court must havejurisdiction over the parties and the subject matter, and have obtained the authority to hear thecase through a petitioner's compliance with AOPA's statutory procedures. See Comm'r, IndianaDept. 0/Env 'fl Mgmt. v. Bethlehem Steel Corp., 703 N.E.2d 680, 682 (Ind. Ct. App. 1998).Failure to comply with AOPA's procedures is fatal to a petition for judicial review, and requiresdismissal. See Hoosier Envtl. Council v. Dep'f o/Natural Res., 673 N.E.2d 811, 815-16 (Ind. Ct.

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App. I 996)(upholding dismissal ofpetition for judicial review for failure to comply with AOPAprovisions requiring verification).

When AOPA applies, the peti tioner must comply not only with the statute governing thetime for filing the petition, but also with "the other procedures mandated" by AOPA. SeePackard, 852 N.E.2d at 931.

III. PETITIONERS HAVE FAILED TO COMPLY WITH AOPAPetitioners' request for injunctive and declaratory relief is an unlawful attempt to

circumvent the judicial review process. Accordingly, Petitioners failed to comply with AOPA.

Petitioners' failure to adhere to the minimum requirements of AOPA has stripped this Court ofits authority to entertain their Petition. As a result, dismissal pursuant to Indiana Rule of TrialProcedure 12(B)(6) is required.

A. The Petitioners Failed to ComplyWith Indiana Code 4-21.5-5-7(b)Pursuant to Indiana Code 4-21.5-5-7(b),

[a] petition for review must be verified and set fOlih the following:(I) The name and mailing address of the petitioner.(2) The name and mailing address of the agency whose action is at issue.(3) Identification of the agency action at issue, together with a copy,summary, or brief description of the agency action.(4) Identification ofpersons who were parties in any proceedings that ledto the agency action.(5) Specific facts to demonstrate that the petitioner is entitled to obtainjudicial review under section 2 of this chapter.(6) Specific facts to demonstrate that the petitioner has been prejudiced byone (1) or more of the grounds described in section 14 of this chapter.(7) A request for relief, specifYing the type and extent of relief requested.

A petition for judicial review must also adhere to the Indiana Rules ofTrial Procedure and localadministrative rules. See Ind. Code 4-21.5-5-8. Because Petitioners failed in a myriad ofwaysto comply with these requirements, dismissal of their Petition is required.

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1. Petitioners Failed to VerifY Their ComplaintIn order to invoke a court's authority to entertain a petition for judicial review, a petition

for judicial review must be verified. See Ind. Code 4-21.5-5-7(b); Bakos v. Dep 't ofLocalGov't Finance, 848 N.E.2d 377, 379 (Ind. Tax Ct. 2006), Kemp v. Family and Social Sserv.Admin., 693 N.E.2d 641, 642 (Ind. Ct. App. 1998). "Failure to verify a petition deprives the trialcourt of urisdiction over the judicial review petition." Kemp, 693 N.E.2d at 642; see alsoKaminsky v. Med Licensing Bd, 511 N.E.2d 492, 497 (Ind. Ct. App. 1987)(unless petition isproperly verified, all rights of udicial review and recourse to the courts terminate).

Verification is defined as a "[c onfirmation of correctness, truth, or authenticity, byaffidavit, oath or deposition." Kemp, 693 N.E.2d at 643 (quoting Black's Law Dictionary 1561(6'h ed. 1990. The requirement of verification is not a mere technical requirement. See idIndeed, the "language used in a verification is important because the fundamental purpose ofverification is to subject the petitioner to penalties for perjury." Id (citing State ex reI. Ind.State Bd OfDental Exam 'r v. Judd, N.E.2d 829, 831 (Ind. ct . App. 1990.

Indiana Trial Rule II(B) governs the use ofverifications and provides "safe harbor"language for use in verifications. The rule provides:

(B) Verification by affirmation or representation. When in connection with anycivil or special statutory proceeding it is required that any pleading, motion,petition, supporting affidavit, or other document of any kind, be verified, or thatan oath be taken, it shall be sufficient if the subscribed simply affirms the truth ofthe matter to be verified by an affirmation or representation in substantially thefollowing language:"I (we) affilID under the penalties for perjury, that the foregoing representation(s)is (are) true. (Signed),_______

Ind. T.R. 11 (B).

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In Kemp v. Family and Social Services Administration, the petitioner failed to verify heroriginal petition requesting judicial review in conformance with Indiana Trial Rule 11 (B).Kemp, 693 N.E.2d at 643. Instead, the petitioner's attorney simply affixed his signature andattorney number to the petition after closing "Respectfully submitted." Id The court ruled thatan attorney's signature alone is insufficient to meet the verification equirement ofTrial Rule11(B) because it does not subject the client to the penalties off r perjury, "the gravamen of theverification requirement").

Similarly, in this case the Petitioners did not verifY their Petition in accordance withIndiana Code 4-21.5-5-7(b). Their signatures alone are insufficient to fulfill the verificationrequirement. As a result, Petitioners have not invoked the authority of the Court to entertaintheir Petition, and dismissal is required.

2. Petitioners Failed to Provide Information Required by AOPALikewise, Petitioners failed to provide information required by AOPA to be included In

their Petition. First, they failed to provide each Petitioners' mailing address in violation of 4-21.5-5-7(b)(1). While Petitioners included the address ofone of the Petitioners, Orty Taitz, theyfailed to provide the addresses of any of the other Petitioners. As described below, Taitz doesnot have standing; thus, none of the legitimate Petit\oners addresses were provided as requiredby AOPA.

3. Petitioners Failed to IdentifY the Agency Action at IssueAOPA further requires a petition for judicial review to set forth details regarding the

agency action at issue. Ind. Code 4-21.5-5-7(2-4). Petitioners attached, without explanation,hundreds ofpages of documents to their Petition, including a transcript of a media presentationfrom a sheriff in Arizona and what appears to be a transcript of a proceeding before an

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Administrative Law Judge in Georgia. But nowhere is there any detail regarding proceedingswhich took place in Indiana.

Specifically, Petitioners failed to provide the "name and mailing address of the agencywhose action is at issue" in violation of 4-21.S-S-7(b)(2). Further, Petitioners failed to identifythe agency action at issue in any meaningful way, as required by 4-2I.S-S-7(b)(3). A Petitionmust set forth the agency action at issue, together with a copy, summary, or brief description ofthe agency action. Petit ioners appear to conflate a number of umelated election challenges,including some that are likely not from Indiana. Petitioners merely refer to "a complaint ofelections fraud," "a challenge to candidate Obama," and "an elections fraud complaint againstPresidential candidate Barack Obama." Petitioners nowhere give the date of their challenge andthe IEC's action, much less detail the IEC's unanimous decision to deny the challenges.Additionally, Petitioners failed to identify the persons who were parties in any proceedings thatled to the agency action as required by Indiana Code 4-2I.S-S-7(b)(4). Again, it appears thatthe Petitioners may be conflating a number of different challenges that mayor may not havebeen brought in Indiana.

Petitioners' failure to identify the parties, agency, or agency action at issue is illustrativeof the Petitioners' political motivation in this case. While Petitioners appear to want a wideranging, unfettered political discussion, AOPA establishes very clear limits on what isreviewable by a court in a judicial review proceeding, which is why AOPA requires petitioners

to identify precisely what agency action is at issue. These, along with the other defects in thePetition deprive this Court of urisdiction.

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4. Petitioners Failed to Demonstrate that the Petitioners are Entitled toObtain Judicial Review

AOPA further requires that petitioners set forth specific facts to demonstrate that the

petitioner is entitled to obtain judicial review. See Ind. Code 4-21.5-5-7(b)(5). Judicial review. is available only for those who, among other requirements, demonstrate they have standing,demonstrate they have exhausted their administrative remedies, and demonstrate they have metthe requirements concerning the time for filing a petition for review.

As noted above, Petitioners have failed to provide the date for the agency action at issue,much less detail their compliance with filing requirements or whether or not they have exhaustedtheir administrative remedies.

Crucially, at a minimum, Petitioners have failed to demonstrate that two of the Petitioners- Taitz and Kern - have standing. Pursuant to AOPA, standing for a judicial review is limited toa person to whom the agency action is specifically directed, a person who was a party to theagency proceedings that led to the agency action, a person eligible for standing under a lawapplicable to the agency action, or a person otherwise aggrieved or adversely affected by theagency action. Ind. Code 4-21.5-5-3(a).

Petitioner Orly Taitz appears only to claim standing based on her submission of "acomplaint of elections fraud, use of forged identification papers, use of a name that is not legallyhis by candidate Barack Obama." Pet. I. Nowhere does Taitz describe when or where thiscomplaint of election fraud was brought. Indeed, it is difficult to understand how Taitz couldever have standing, as she appears to be a resident ofCalifornia. She is not a registered voter inIndiana, and she appeared before the IEC at the February 24th public meeting as an allegedexpert witness hired by either Swihart, Kesler, or Weyl. She was not a party to the

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administrative proceeding. She did not file a challenge with the IEC. Consequently, she doesnot have standing to bring her claims.

Likewise, Bob Kern provides no evidence that he filed a challenge with the IECregarding the President's qualifications for the office of United States President. It appears fromthe Petition that he may have brought a challenge before the IEC at some point, but the Petitionrefers only to the IEC allegedly ignoring Kern's challenge and allowing President Obama toappear on the 2008 ballot. (Pet., 5.) IfKern is now attempting to appeal the IEC's decisionregarding that alleged 2008 challenge, his request is four years too late. While it is conceivablethat Petitioners claim standing for Kern based on his being a person aggrieved or adverselyaffected by the decision, Petitioners have made no showing pursuant to Indiana Code 4-21.5-5-3(b) that Kern has met the requirements for standing as an aggrieved non-party. Thus, Kern alsodoes not have standing to bring this action.

At a minimum, Taitz and Kern have failed to demonstrate that they have standingpursuant to AOPA. They have failed to demonstrate in any way how or even if they were a partyto the agency action. Taitz and Kern should be dismissed from this action.

5. Petitioners Have Failed to Demonstrate That They Have Been PrejudicedPetitioners have further failed to provide specific facts to demonstrate that they have been

prejudiced by the agency action for which they seek judicial review, as required by AOPA. SeeInd. Code 4-21.5-5-7(b)(6). AOPA mandates that petitioners must demonstrate that the personseeking judicial review has been prejudiced by an agency action that is:

(1) arbitrary, capricious, an abuse of discretion, or otherwise not inaccordance with law;

(2) contrary to constitutional right, power, privilege, or immunity;(3) in excess of statutory jurisdiction, authority, or limitations, or short

of statutory right;(4) without observance of procedure required by law; or

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(5) unsupported by substantial evidence.Ind. Code 4-21.5-5-14. Petitioners have failed to demonstrate how they were prejudiced by thelEe's unanimous decision to deny challenges to President Obama's qualifications for the officeofUnited States President. Petitioners, despite their voluminous filing, fail to tie even onespecific fact to the action of the lEC. Rather, Petitioners seek to circumvent the judicial reviewprocess by merely cataloging a series ofunsubstantiated claims and stating that the "electionscommission ignored all of the above facts and allowed Obama on the ballot as a candidate."(Pet., p.14.) Given the state of the filings in this case, it would not be surprising ifPetitionersfailed to demonstrate the relevance of any of their filings before the lEC. Here, Petitioners havefailed to demonstrate why their claims should be considered at all. Consequently, they havefailed to demonstrate any specific facts that show they were prejudiced by the agency action.For this additional reason, their Petition must be dismissed.

B. The Petitioners Failed to Comply With Indiana Code 4-21.5-5-8Indiana Code 4-21.5-5-8(a) lists the people who must be served a copy of the petition

for judicial review - "(\) the ultimate authority issuing the order; (2) the ultimate authority foreach other agency exercising administrative review of the order; (3) the attorney general; and (4)each party to the proceeding before an agency; in the manner provided by the rules of proceduregoverning civil actions in the COUtts." Here, Petitioners failed to serve a copy of their Petition .upon the Attorney General's Office as required by Indiana Code 4-21.5-5-8(a)(3) and IndianaTrial Rule 4.6(A)(3).

The Court ofAppeals has held that failure to serve the Attorney' General with a copy ofthe Petition deprives the trial court of personal jurisdiction over the state agency to whom thepetition is directed. See Guy v. Comm'r. Indiana Bureau ofMotor Vehicles, 937 N.E.2d 822,826

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(Ind. Ct. App. 2010) ("Because Guy did not serve the Attorney General, his service of processwas ineffective in this case. The trial court did not have personal jurisdiction over theCommissioner[.]"). Because the Petitioner did not follow the service requirements ofIndianaCode 4-21.5-5-8 and Indiana Trial Rule 4.6(A)(3), the Court lacks personal jurisdiction overRespondents.IV. PETITIONERS CANNOT RECEIVE INJUNCTIVE OR DECLARATORY RELIEF

Even if the Court finds that it has the authority to entertain the Petition, this Court AOPAdoes not allow this Court to order injunctive or declaratory relief. As a result, Petitioners are

requesting relief that is unavailable in this Court and have stated a claim upon which reliefcannot be granted. Dismissal of their Petition is warranted pursuant to Indiana Rule of TrialProcedure 12(B)(6).

A. Only Remand And A Stay Are AvailableBecause the Petition is governed by AOPA, Indiana Code 4-21.5-5-1 et seq. controls

the type of relief that this Court m'lY grant. As stated above, when AOPA governs a proceedingin the trial court, that court sits as an appellate court of review. Understandably, then, the type ofrelief that a trial court sitting in judicial review may grant is restricted to the type of relief that atraditional court of appeals may award: remand to the agency for further proceedings. Indeed,Indiana courts have long held that the only type of authority a court has over a petition forjudicial review is the

Authority to remand the case to the administrative agency for further proceedings after aproper determination that the agency's decision was contrary to law. Ifupon remand theagency unlawfully withholds or unreasonably delays the redetermination of the case, thenthe trial court may compel agency action by direct order. Otherwise the reviewing courtdoes not have power to compel agency action as part of the initial review function. Itmay only remand the case for rehearing.

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Indiana Alcoholic Beverage Comm 'n v. Edwards, 659 N.E.2d 631, 636 (Ind. Ct. App.1995)(citations omitted). Remanding the case "to the administrative body gives it an opportunityto correct the irregularities in its proceedings as determined by the court. At the same time itavoids the court's encroachment upon [the agency's] administrative functions." Id See alsoWerner, 841 N.E.2d at ll96; Stansberryv. Howard, 758 N.E.2d 540 (Ind. Ct. App. 2001); Shootv. Family & Social Services Administration, 691 N.E.2d 1290 (Ind. ct. App. 1998).

By requesting injunctive and declaratory relief, Petitioners have failed to state a claimunder AOPA. Indiana law does not allow this Court, which is sitting as an appellate court whenreviewing the IEC's decision, to order any relief other than remand to the IEC. As a result,Petitioners' claim for an injunction and for declaratory relief should be dismissed pursuant toIndiana Rules ofTrial Procedure 12(B)(6).

AOPA does not provide for a preliminary injunction to enjoin an agency from enforcinga law or to order an agency to take action. AOPA only provides for a stay of an agency actionpending a decision by the court. See Ind. Code 4-21.5-5-9. Even then, AOPA limits the grantof a stay to stopping agency action - not forcing an agency to take action. See Scales v.Hospitality House ofBedford, 593 N.E.2d 1283, 1286 (Ind. Ct. App. 1992).

Petitioners have not requested a stay under AOPA. Even if this Court were to treat thePetition as a request for stay under Indiana Code 4-2l.5-5-9, the Petition still fails. IndianaCode 4"21.5-5-9 sets forth the requirements for a stay during the judicial review process:

Sec. 9. (a) If a petition for judicial review concerns a matter other than an assessment ordetermination of tax due or claimed to be due the state, and the law concerning theagency whose order is being reviewed does not preclude a stay of the order by the court,the person seeking the review may seek, by filing a verified petition, an order of the courtstaying the action of the agency pending decision by the court. The court may enter anorder staying the agency order pending a final determination if:

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(I ) the court finds that the petition for review and the petition for a stay ordershow a reasonable probability that the order or determination appealed from isinvalid or illegal; and(2) a bond is filed that is conditioned upon the due prosecution of the proceedingfor review and that the petitioner will pay all court costs and abide by the order ofthe agency if it is not set aside. The bond must be in the amount and with thesurety approved by the court. However, the amount of the bond must be at leastfive hundred dollars ($500).Ind.Code 4-21.5-5-9(a). Petitioners have not met either of those requirements. This Courtshould dismiss the Petition pursuant to Trial Rule 12(B)(6).

B. Petitioners Failed to Verify Their Motion Or To Submit a BondAt the outset, it is important to note that Petitioners' Petition is not verified pursuant to

Indiana Code 4-21.S-S-9(a). Likewise, Petitioners failed to submit a bond with their Petition inviolation ofindiana Code 4-21.5-5-9(a)(2). For those reasons alone, dismissal of the Petition iswarranted.

C. Petitioners Are Asking This Court to Disrupt the Status QuoIn addition, Petitioners are requesting more than what Indiana Code 4-21.5-5-9 allows

this Court to order. Petitioners are asking this Court to order the lEC "to remove Obama fromthe ballot." (Pet., p. IS). Such an order would disrupt the status quo; consequently, this Courtcannot provide Petitioners the relief they seek.

A stay of an agency action may only maintain the status quo. See Medical Licensing Edof ndiana v. Provisor, 678 N.E.2d 814 (Ind. Ct. App. 1997), rehearing denied (holding that stayof an agency action pending judicial review preserves the status quo to avoid undue hardship);State ex rei. Indiana Alcoholic Beverage Comm 'n v. Lake Superior Court Room Four Silting atGary, 884 N.E.2d 284 (Ind. Ct. App. 2008). In other words, a stay operates to maintain thecircumstances that existed before an agency issued its decision. It is not disputed that, before thelEC issued its unanimous decision to deny the challenges to President Obama's qualifications for

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United States President, the President had filed all of the paperwork necessary to ensure that hisname appeared on the May 8th primary ballot for United States President. As a result, the statusquo as it existed before the IEC issued its decision was the same as it is now - PresidentObama's name will appear on the May 8th primary ballot for United States President. If thisComi were to order the IEC to remove President Obama's name from primary ballot, such anorder would constitute an illegal de facto preliminary injunction mandating affirmative action bythe IEC. See Scales, 593 N.E.2d at 1286 (contrasting a preliminary injunction from a stay,holding that a trial court's grant of a stay was really a preliminary injunction because it alteredthe status quo and mandated discretionary action by the agency). Again, AOPA does not allow acourt to issue preliminary injunctions. Therefore, this Court should dismiss Petitioners' Motionpursuant to Trial Rule 12(B)(6).

D. The lEe's Order Is Not Invalid Or IllegalMoreover, Petitioners have not shown a "reasonable probability that the [IEC's] order . . .

is invalid or illegal." Ind. Code 4-2l.5-5-9(a)(1). Petitioners challenged President Obama'scandidacy for United States President, arguing that President Obama does not meet thequalifications for United States President that are set forth in Article II, 1, Cl. 4 of the UnitedStates Constitution. (Pet., p. 3.) The IEC does not have the power to determine whether acandidate or incumbent president meets the qualifications to hold the office ofUnited StatesPresident. Thus, the IEC's unanimous decision was valid and legal because the IEC wasrequired to deny Petitioners' challenges.

It is clear that the IEC does not have the power to determine President Obama'squalifications for the office of United States President. Article II, 1 of the United States

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Constitution reserves to the United States Senate the power and authority to detennine thequalifications ofthe President of the United States:

In case of the removal of the President from Office, or of his death, resignation orinability to discharge the powers and duties of the said office, the same shalldevolve on the Vice President and the Congress may by law provide for the caseof removal, death resignation or inability, both of the President and Vice Prsident,declaring what Officer shall then act as President, and such Officer shall actaccordingly, until the disability be removed, or a President shall be elected.

U.S. Const., Art. II, 1. Because the United States Congress has the exclusive power todetennine its members' qualifications, a challenge to the President's qualifications that is filed ina court or with the IEC is a nonjusticiable controversy.

Recognizing this fact, the Indiana Legislature did not provide any mechanism forchallenging the qualifications of a candidate for United States President before the IEC. IndianaCode 3-8-8-1 et seq. provides the procedure by which the IEC may entertain challenges to acandidate for political office in Indiana and remove those candidates from ballots. Indiana Code 3-8-8-1 excepts the office of presidency from the IEC's authority. See Ind. Code 3-8-8-1(mandating that the "chapter applies only to a candidate for election to" a state legislative officeand "a state office other than a judicial office").

Because the IEC does not have the power or authority to entertain Petitioners' challenges,it had no. choice but to unanimously deny them. Consequently, Petitioners have not shown areasonable probability that the IEC's decision was invalid or illegal, they have not met therequirements for an AOPA stay, and dismissal ofthe Petition is warranted.

V. CONCLUSIONPetitioners have overwhelmingly failed to file a petition that meets the requirements

established by AOPA to obtain judicial review of an agency action. Further, by request inginjunctive and declaratory relief, Petitioners have failed to state a claim under AOPA. As a

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result, Petitioners' claims for injunctive relief, and their Petition in its entirety, should bedismissed pursuant to Indiana Rule ofTrial Procedure 12(B)(6).2

WHEREFORE, Respondents respectfully request that this Comt dismiss or denyPetitioners' "Petition for Emergency Injunctive RelieflPetition for Declaratory Relief'

Respectfully submitted,GREGORyF. ZOELLERAttorney General of IndianaAttor o. 12 8-98

By:

2 The lEe respectfully reserves the right to raise additional grounds for dismissal as they arise in this case.22


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CERTIFICATE OF SERVICE

I do hereby certify that a copy of the foregoing Memorandum in Support ofRespondents'Motion to Dismiss Petitioners' "Petition for Emergency Injunctive ReliejlPetition forDeclaratory Reliefhas been duly served upon all parties a n d / ~ c o u n s e l of record listed below,by United States mail, first-class postage prepaid, on this -1'L- day ofApril, 2012:

Information has not been provided to the Court or undersigned counsel regarding amailing address for the following Petitioners: Edward Kesler, Frank Weyl and Bob Kern.orty Taitz29839 Santa Margarita Pkwy, Ste 100Rancho Santa Margarita, CA 92688Karl Swihart460 Austin DriveAvon, IN 46123

OFFICE OF INDIANA ATTORNEY GENERALIndiana Government Center South, 5th Floor302 West Washington StreetIndianapolis, IN 46204-2770Telephone: (317) 232-6292Facsimile: (317) 232-7979E-mail: jefferson. [email protected]

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IN - Taitz v IEC & SOS - 2012-04-16 - IEC-SOS Memo in Support of Motion

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