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, )DEPUT Y 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. )ORDER ON DEFENDANTS’ MOTION TO VACATE TRIAL
Defendants, through their attorneys, moved this Court to Vacate the trial that wasscheduled for October 22, 2012. Argument was heard by this Court on October 22, 2012. TheCourt -- having reviewed the filings submitted by both parties, having reviewed relevantauthority, and having heard argument from both parties -- now finds that Defendants’ Motion toVacate Trial is
GRANTED
. Additionally, since there was no good cause for the expedited trialthat Plaintiffs sought, all evidence introduced on October 22, 2012 is hereby
STRICKEN
.Specifically, this Court makes the following findings and conclusions relative to Defendants’Motion to Vacate Trial.
21. Plaintiffs challenged the constitutional qualifications of President Barack Obamabefore the Indiana Elections Commission and seek to have him removed from the Indianaballot.
1
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“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 an action with this Court challenging the decision of the IEC. Thisaction was initiated on March 23, 2012.
2
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.
1
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.
2
The Court recognizes that Plaintiffs’ initial filing was titled a “Petition for EmergencyInjunctive Relief and Petition for Declaratory Relief.” Nevertheless, this Court construedPlaintiff’s filing as a Verified Petition for Judicial Review as that was the only means by whichthe decision of the IEC could be reviewed.
36. 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. As pertinent, Plaintiffs argued thatthe claims of negligence, fraud and breach of fiduciary duty should not have been dismissed withprejudice.8. This Court, on August 17, 2012, issued an Order regarding Plaintiffs’ Rule 60Motion. Specifically, this Court reaffirmed its June 25, 2012 Order that the challenges toPresident Obama’s qualifications were dismissed with prejudice and that the dismissal was onthe merits; however this Court allowed Plaintiffs to file an amended pleading setting forth threestate-law torts against the Indiana Election Commission and the Indiana Secretary of State:negligence; breach of fiduciary duty; and fraud.9. Plaintiffs filed no appeal of the dismissal of their challenges to the constitutionalqualifications of President Obama with the Court of Appeals. The time for any such appeal hasnow passed. Therefore, the decision denying the challenge to the constitutional qualifications of President Obama is final and Plaintiffs are barred from re-litigating those claims by the doctrinesof
res judicata
and collateral estoppel.
See Adams v. Marion County Office of Family and Children
, 659 N.E.2d 202, 205 (Ind. Ct. App. 1995) (citing
Sullivan v. American Casualty Co.
,605 N.E.2d 134, 137 (Ind. 1992));
S. Bend Fed’n of Teachers and Nat’l Ed. Ass’n-S. Bend
, 389N.E.2d 23, 35 (1979) (“[t]he principles of
res judicata
seek to guard parties against vexatiousand repetitious litigation of issues which have been determined in a judicial or quasi-judicialproceeding”).
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