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IN - 2012-10-xx - TvIEC et al - Proposed ORDER ON DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED

IN - 2012-10-xx - TvIEC et al - Proposed ORDER ON DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED

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Published by Jack Ryan

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Published by: Jack Ryan on Nov 01, 2012
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12/04/2012

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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, )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 DISMISS SECOND AMENDEDCOMPLAINT
Defendants, through their attorneys, moved this Court to Dismiss Second AmendedComplaint. Argument was heard by this Court on October 22, 2012. The Court -- havingreviewed the filings submitted by both parties, having reviewed relevant authority, and havingheard argument from both parties -- now finds that Defendants’ Motion to Dismiss SecondAmended Complaint is
GRANTED
. Specifically, this Court makes the following findings andconclusions relative to Defendants’ Motion to Dismiss Second Amended Complaint.
 
2
PROCEDURAL HISTORY
 
1. Plaintiffs challenged the constitutional qualifications of President Barack Obamabefore the Indiana Elections Commission (“IEC”) and sought to have him removed from theIndiana ballot.
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. On March 23, 2012, Plaintiffs filed a “Petition for Emergency Injunctive Relief and Petition for Declaratory Relief” with this Court to challenge the decision of the IEC.
21
Plaintiff Taitz did not technically file a challenge before the IEC challenging thequalifications; however, Plaintiff Taitz appeared before the IEC and provided information andevidence to the IEC. Plaintiff Taitz is a party to this litigation and has represented the otherplaintiffs as their counsel. Accordingly, Plaintiffs Taitz is in privity with the other plaintiffs whofiled challenges (before the IEC) to the constitutional 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 an action, though not a party to it, and those whose interestsare represented by a party to an action”);
State v. Speidel
, 392 N.E.2d 1172, 1176 (Ind. Ct. App.1979) (court to look beyond the nominal parties and looks to those whose interest makes the realparties).
 
2
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.
 
35. 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.
3
As pertinent, Plaintiffs argued thatthe claims of negligence, fraud and breach of fiduciary duty should not have been dismissed withprejudice. Plaintiffs tried to have this Court allow them to continue litigating the challenge toPresident Obama’s constitutional qualifications.8. This Court, on August 17, 2012, issued an Order regarding Plaintiffs’ Rule 60Motion(s). 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 with the Court of Appeals of the August 17, 2012 Order,which dismissed -- with prejudice and on the merits -- their challenges to the constitutional
3
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,too, would be “complicit in the crimes committed by the defendants and will become complicitto treason.” Such comments and accusations, which have been tossed about by Plaintiffsthroughout this litigation, are scurrilous.
 

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