IN THE CIRCUIT COURT OF THE SECOND JUDICAL CIRCUIT, IN AND FOR LEON COUNTY, FLORIDA CASE NO.

37-2012-CA-003857 MICHAEL C. VOELTZ, Plaintiff, BARACK HUSSEIN OBAMA, Winner of the Florida General Election; KEN DETZNER, Secretary of State of Florida; and FLORIDA ELECTIONS CANVASSING COMMISSION, Defendants.

Defendant, BARACK OBAMA (President Obama), through undersigned counsel, files this response in opposition to Plaintiffs Expedited Motion for Rehearing of this Courts Order Dismissing Complaint, rendered December 20, 2012.

The Order of December 20, 2012 dismissed the complaint for lack of jurisdiction. In pertinent part, the Order states:

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[T]his Court finds that notwithstanding section 102.168, the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida does not have jurisdiction to determine the issue of qualification for the Office of President of the United States, particularly at this late date in the process. In accordance with Florida Statute 103.061, the Florida electors to the Electoral College met and voted on December 17, 2012. Consistent with the Twelfth Amendment to the United States Constitution, this Court cannot now alter the Electoral College process. Plaintiffs remedy, if there is any, (and this Court does not suggest there is) lies with the Congress pursuant to Title 3 U.S.C. 15. See also Robinson v. Bowen, 567 2d 1144, 1147 (N.D. Cal. 2008)(concluding that issues regarding Presidential qualifications are committed to the Congress). Because this Court finds that

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DEFENDANT BARACK OBAMAS RESPONSE IN OPPOSITION TO PLAINTIFFS EXPEDITED MOTION FOR REHEARING

Nature of the Courts Order

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Plaintiff cannot amend his complaint to cure this jurisdictional issue, the complaint is DISMISSED with prejudice. At pp. 3-4. (Emphasis in text.)

Plaintiffs Motion for Rehearing

In his motion for rehearing, Plaintiff requests that this court rehear its Order Dismissing the Complaint, vacate the order forthwith, and set an evidentiary hearing during the week of December 24, 2012 to December 28, 2012 (excluding Christmas Eve, Christmas Day, and New Years) or such other time as appropriate given the time constraints before the January 6, 2013 vote of the Electoral College. In support of the motion for rehearing, Plaintiff asserts three grounds to justify rehearing, vacation of the order rendered, and an evidentiary hearing. None of the

Plaintiffs assertions supports granting of the motion for rehearing or the relief sought. Each of Plaintiffs assertions will be addressed in turn.

Violation of Due Process and Previously Issued Order of Court Plaintiff asserts that by prematurely and precipitously dismissing Plaintiffs complaint without a hearing, the court manifestly violated Plaintiffs constitutional rights to due process of

law of the case. See Plaintiffs Expedited Motion for Rehearing, at pp. 1-2.

provided, [u]nless the parties request a hearing, the Court will rule on the motion to dismiss,

Emergency Response of Plaintiff to the Courts Order of December 13, 2012, Plaintiff filed a

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response in opposition to Defendants Motion to Dismiss, the same day the Court issued its Order of December 13, 2012. Similarly, on December 14, 2012 Plaintiff filed a response in opposition

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upon review of the motion, response, and applicable legal authority. As noted in Plaintiffs

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notice of applicability of Title 3 U.S.C. 5 previously filed in this proceeding and, further

The Order of December 13, 2012, required a response to the motions to dismiss and

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law. This act also flies in the face of this courts own order of December 13, 2012, which was the

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to Defendants Notice of Applicability. See Emergency Response of Plaintiff to the Courts

request a hearing on the motions to dismiss. 1 None of the Defendants requested a hearing.

The Court in its Order of December 13 clearly specified that [u]nless the parties request a hearing, the Court will rule on the motion to dismiss, upon review of the motion, response, and applicable legal authority. Because Plaintiff himself, through counsel, failed to request a hearing on the motions to dismiss as directed by the Court, there is not, nor can there be, any violation Plaintiffs constitutional rights to due process of law by the Court in rendering a decision on the motions to dismiss in its Order Dismissing Complaint rendered December 20, 2012. Plaintiffs

Violation of Statutory Duty to Act on Complaint Plaintiff asserts that the Court had a statutory duty under the Florida Election laws, the Florida and U.S. Constitutions, and 3. U.S.C. Section 5, to adjudicate Defendant Obamas eligibility and alleged fraudulent acts expeditiously, time, and before the electors met and before the Electoral College votes on January 6, 2013. See Plaintiffs Expedited Motion for Rehearing, at p. 2.

Although Plaintiff, in his Prayer for Relief, sought an expedited ruling on this matter due to the time constraint of the approaching electoral voting day, citing Title 3 U.S.C. 5, he took no

In the Emergency Response, Plaintiffs counsel gave notice of his intention to file a motion for a temporary restraining order and / or preliminary injunction within the next twenty-four hours further seeking legal redress to prevent the Florida Electors from casting their ballots for Defendant Barack Obama for the Office of President of the United States. See Emergency Response of Plaintiff to the Courts Order of December 13, 2012, at p.1. Plaintiffs counsel specifically requested that a hearing be held during the week of December 24, 2012 through December 28, 2012 on the matter on the matter of the temporary restraining order and / or preliminary restraining order. Id. at pp.1-2. Finally, Plaintiffs counsel request[ed] a telephonic status conferenceto discuss potential hearing times. Id. at p 2.

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assertion to the contrary is frivolous and without merit.

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Order of December 13, 2012, at p.1. Nowhere in the Emergency Response did Plaintiff

steps to schedule this matter for an immediate hearing by the Court, 2 nor did the Plaintiff file a

Moreover, the Plaintiff in this action, Michael Voeltz, in December posted a statement on the website obamaballotchallence.com indicating his strategy not to expeditiously move this case forward. The statement reads as follows:

US Code 3 S. 5 stipulates that all election contests, properly made, be adjudicated with finality prior to the 6th day before Elector voting day by the state where the challenge occurred. Until Florida rules definitively on this challenge of Obamas eligibility, its Electors will not receive Section 2 status. If the Florida judiciary does not rule on the meaning of natural born Citizen, and whether Obama is one, it will break that law (US C. 3 s.5). I have filed a properly made contest, perfectly within the Florida statutes, have standing and a real case and controversy to appeal directly to the SCOTUS before Elector Voting day. Mike Voeltz

See

http://obamaballotchallenge.com/statement-by-mike-voeltz-florida-obama-ballot-challenge-

plaintiff , a copy of which is attached hereto as Exhibit A.

Thus, any delay, or failure, to move the case expeditiously, which is now claimed as detrimental, is not due to any failure on the part of the Court; but rather, it was part of the

act expeditiously in this matter is frivolous and without merit.

to conduct an evidentiary hearing on Plaintiffs request for an evidentiary hearing with respect to

pp. 2-4.

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Section 102.168(7), Florida Statutes, provides that [a]any candidate, qualified elector, or taxpayer presenting such a contest to a circuit judge is entitled to an immediate hearing.

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Plaintiffs motion for temporary injunction. See Plaintiffs Expedited Motion for Rehearing, at

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The Plaintiff asserts that the Court failed to perform its duties and responsibilities by failing

The Court Failed to Perform Its Duties and Responsibilities

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Plaintiffs legal strategy. Accordingly, Plaintiffs claim that the Court failed in its statutory duty to

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notice of priority status pursuant to Rule 2.545(c), Florida Rules of Judicial Administration.

The Courts Order Dismissing Complaint is clear: the Circuit Court of the Second

of qualification for the office of President of the United States. Order of December 20, 2012, at pp. 3-4. 3 In the absence of jurisdiction, the Court has no power or authority to conduct a hearing with respect to Plaintiffs motion for temporary injunction. 4 To have held a hearing as requested by the Plaintiff, in the absence jurisdiction, would have been error.

The aspersions cast by Plaintiffs counsel in Plaintiffs Expedited Motion for Rehearing alleging that the Court failed to perform its duties and responsibilities are frivolous and without merit. Conclusion

The grounds asserted as presented in Plaintiffs Expedited Motion for Rehearing are frivolous and without merit. Thus, the motion should be DENIED. Respectfully submitted on this 26th day of December, 2012, by:

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Voeltz II, Order Granting Motions to Dismiss or, in the alternative, granting the Secretary and Commissions Motion for Summary Judgment, at p. 9 (September 6, 2012). No appeal was taken from this final order. Although Plaintiff, on December 19, 2012, indicated an intent to file a motion for a temporary restraining order and / or preliminary injunction within the next twenty-four hours in his Emergency Response to the Courts Order of December 13, 2012, Plaintiffs Motion and memorandum in Support Thereof for Temporary Injunction was not filed until after the Court had issued its order dismissing the Plaintiffs action on December 20, 2012.
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It is the conclusion of this Court that issues concerning President Obama's eligibility to be President of United States have been committed under the Constitution to the presidential electors and the Congress and, as a consequence, this Court lacks subject matter jurisdiction to consider the issue.

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Judge Cooper in his order dismissing the Plaintiffs complaint Voeltz v. Obama, et al, Case No. 37-2012-CA-2063 (Fla. 2d Cir. Leon County)(Voeltz II) came to the same conclusion; namely, that the Circuit Court did not have jurisdiction to determine eligibility of President Obama to hold the office of President of the United States:

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___________/s/_____________ Mark Herron Florida Bar No. 199737 Joseph Brennan Donnelly

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Judicial Circuit, in and for Leon County, Florida does not have jurisdiction to determine the issue

Stephen F. Rosenthal Florida Bar No. 131458 Podhurst Orseck, P.A. 25 West Flagler Street, Suite 800 Miami, FL 33130-1720 Telephone (305) 358-2500 Facsimile: (305) 358-2382

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. mail and by electronic mail, on this 26th day of December, 2012, to: Larry Klayman, Esquire Klayman Law Firm 2020 Pennsylvania Avenue, N.W., Suite 800 Washington, D.C. 20006 Email: leklayman@gmail.com Ashley Davis, Assistant General Counsel Department of State 500 South Bronough Street Tallahassee, FL 32399 Email: ashley.davis@dos.myflorida.com

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Richard B. Rosenthal Florida Bar No. 184853 The Law Offices of Richard B. Rosenthal, P.A. 1581 Brickell Avenue, Suite 14o8 Miami, FL 33129 Telephone (305) 992-6089 Facsimile: (305) 675-8053

Attorneys for Defendant Barack Obama

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Florida Bar. No. 268895 Robert J. Telfer, III Florida Bar. No. 128694 Messer, Caparello & Self, P.A. Post Office Box 15579 Tallahassee, FL 32317 Telephone (850) 222-0720 Facsimile: (850) 558-0659

_____________/s/____________ MARK HERRON

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