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In - 2012-10-Xx - Tviec Et Al - Proposed Post-trial Order Granting Judgment in Favor of the Indiana

In - 2012-10-Xx - Tviec Et Al - Proposed Post-trial Order Granting Judgment in Favor of the Indiana

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Published by Jack Ryan

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Published by: Jack Ryan on Nov 01, 2012
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11/02/2012

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STATE OF INDIANA ) IN THE MARION SUPERIOR COURT) SS:COUNTY OF MARION ) CAUSE NO. 49D14-1203-MI-012046ORLY TAITZ, KARL SWIHART, )EDWARD KESLER, BOB KERN, )and FRANK WEYL ))Plaintiffs, ))v. ))INDIANA ELECTION COMMISSION, )DEPUTY ATTORNEY GENERAL )JEFFERSON GARN, DEPUTY )ATTORNEY GENERAL KATE )SHELBY, 1310 RADIO/WTLC, )AMOS BROWN, IN HIS OFFICIAL )CAPACITY OF THE TALK SHOW )HOST OF THE 1310 RADIO/WTLC )INDIANA SECRETARY OF )STATE, ))Defendants. )POST-TRIAL ORDER GRANTING JUDGMENT IN FAVOR OF THE INDIANAELECTION COMMISSION AND THE INDIANA SECRETARY OF STATE ONPLAINTIFFS’ CLAIMS OF DECLARATORY RELIEF AND INJUNCTIVE RELIEF
On October 1, 2012, Plaintiffs filed a Motion to “Schedule Separate Trial of Expeditionon the Two Issues of Declaratory Relief & Permanent Injunction as to Secretary of State &Elections Commission Alone.” Specifically, Plaintiffs requested an expedited trial against theIndiana Election Commission and the Indiana Secretary of State on two “legal causes of action:declaratory relief & permanent injunction.” This Court scheduled Plaintiffs’ request for trial onOctober 22, 2012. After hearing argument on other matters (State Defendants’ Motion toDismiss, State Defendants’ Motion to Vacate, and Plaintiffs’ Motion for Default Judgment) andafter taking these other matters under advisement, this Court ruled from the bench that Plaintiffs’
 
2claim for injunctive relief had been previously denied and, thus, the
only
matter proceeding totrial would be Plaintiffs’ cause of action for declaratory judgment.
1
This Court having reviewed the evidence presented now finds that
FINAL JUDGMENT
 should be
ENTERED
in
FAVOR
of the Indiana Election Commission and the Indiana Secretaryof State and
AGAINST
Plaintiffs on Plaintiffs’ claim for declaratory judgment. Specifically,this Court makes the following findings and conclusions relative to Plaintiffs’ claim fordeclaratory judgment.
BACKGROUND/PROCEDURAL HISTORY
2
1. Plaintiffs challenged the constitutional qualifications of President Barack Obamabefore the Indiana Elections Commission (“IEC”) and sought to have him removed from theIndiana ballot.
3
2. The IEC unanimously denied Plaintiffs’ challenge on February 24, 2012.3. The review of the decision of the IEC is governed by the Administrative Ordersand Procedures Act (“AOPA”).
See
I.C. § 4-21.5,
et 
 
seq
.
See
 
also
I.C. § 4-21.5-5-1 (AOPA
1
This Court, by separate Orders, has disposed of these other matters. Because this Courthas concluded that Plaintiffs’ Second Amended Complaint must be dismissed with prejudice, thereasons set forth in that Order are incorporated herein and provide further bases for this Order.Put simply, since Plaintiffs’ Second Amended Complaint is devoid of merit, judgment in favor of the Indiana Election Commission and the Indiana Secretary of State is proper.
 
2
For the procedural and background section of this Order, this Court relies on the docketentries as appropriate. Such pleadings are not evidence; however, they are filings that providethe procedural history for this litigation.
 
3
This Court notes that Plaintiff Taitz did not technically file a challenge before the IECchallenging the qualifications; however, Plaintiff Taitz appeared before the IEC and providedinformation and evidence to the IEC. Plaintiff Taitz is a party to this litigation and hasrepresented the other plaintiffs as their counsel. Accordingly, this Court finds that PlaintiffsTaitz is in privity with the other plaintiffs who filed challenges (before the IEC) to theconstitutional qualifications of President Obama.
See
 
Small v. Centocor, Inc.
, 731 N.E.2d 22,27-28 (Ind. Ct. App. 2000),
reh’g denied 
,
trans
.
denied 
(privity “includes those who control anaction, though not a party to it, and those whose interests are represented by a party to anaction”);
State v. Speidel
, 392 N.E.2d 1172, 1176 (Ind. Ct. App. 1979) (court to look beyond thenominal parties and looks to those whose interest makes the real parties).
 
 
3“establishes the exclusive means for judicial review of an agency action”);
 Indiana State Board of Health Facility Admn’rs v. Werner 
, 841 N.E.2d 1196, 1205 (Ind. Ct. App. 2006) (strictcompliance with the mandates of AOPA is required);
 Burke v. Board of Directors of MonroeCounty Public Library
, 709 N.E.2d 1036, 1041 (Ind. Ct. App. 1999) (“the failure to adhere to thestatutory prerequisites for judicial review of administrative action is fatal in that it deprives thetrial court of” authority to entertain the petition).4. Plaintiffs filed a “Petition for Emergency Injunctive Relief and Petition forDeclaratory Relief” with this Court to challenge the decision of the IEC. This action wasinitiated on March 23, 2012.
4
5. Plaintiffs filed an amended pleading titled “First Amended Complaint InjunctiveRelief, Petition for Emergency Stay Under AOPA, Petition for Declaratory Relief, Complaint forFraud Negligence Breach of Fiduciary Duty” on May 7, 2012. This Court did not grant leave tofile an amended complaint pursuant to Indiana Rule of Trial Procedure 15.6. A hearing was held on State Defendants’ Motion to Dismiss and this Court issuedan Order on June 25, 2012. In this Order, this Court concluded that Plaintiffs failed to complywith various provisions of AOPA and, as a result, this Court dismissed Plaintiffs’ claims “withprejudice.”7. Plaintiffs filed two Motions under Rule 60.
5
As pertinent, Plaintiffs argued thatthe claims of negligence, fraud and breach of fiduciary duty should not have been dismissed withprejudice.
4
For the benefit of Plaintiffs, this Court construed Plaintiff’s filing as a Verified Petitionfor Judicial Review as that was the only means by which the decision of the IEC could bereviewed.
5
Plaintiffs’ first Rule 60 Motion accused State Defendants of treason and stated that if thisCourt did not reinstate the challenge to the constitutional qualifications of President Obama, it,

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