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Arizona Judge Allows Obama Ballot Challenge to be Amended

Arizona Judge Allows Obama Ballot Challenge to be Amended

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Published by Pamela Barnett
Arizona judge allows plaitiff to amend Obama ballot challenge.
Arizona judge allows plaitiff to amend Obama ballot challenge.

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Published by: Pamela Barnett on Feb 24, 2012
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07/10/2013

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 Laura StaffordJudicial Administrative AssistantARIZONA SUPERIOR COURT, PIMA COUNTYHON. RICHARD E. GORDONJUDGECASE NO. C20121046DATE: February 24, 2012KENNETH ALLENPlaintiff VS.BARACK OBAMA, BRAD R. NELSONand DEMOCRATIC PARTYDefendants
R U L I N GIN CHAMBERS RULING
On February 17, 2012, Plaintiff filed his Complaint for Constitutional Violations of the Article II sectionI clause 5 and Ballot Challenge pursuant to A.R.S. § 16-351(B) and for [D]eclaratory and [I]njunctive [R]elief.Today, on February 24, 2012, Plaintiff filed a Motion for Leave to Amend [B]allot [C]hallenge and [C]omplaint[P]ursuant to Rules of Civil Procedure 15. For the following reasons, the Court will dismiss the currentComplaint,
 but will grant Plaintiff’s motion to amend insofar it
will allow Plaintiff to file an amended complaintwith no additional filing fee.
Plaintiff seeks to challenge President Barak Obama’s qualifications to run for re
-election as President of the United States of America based on his contention that President Obama is not a natural born citizen.Plaintiff claims that President Obama should not be in office, should be removed from office, and that his nameshould not be on the Arizona ballot for re-election. (Complaint at 4.)Arizona law provides an expedited process for challenging candidates appearing on its ballots. A.R.S. §16-351. The Court, therefore, held a status conference yesterday morning at which a representative of the Pima
County Attorney’s Office and Plaintiff attended. Both service of process and time restrictions were addressed.
The Court believes, to the extent that Plaintiff is entitled to any relief under A.R.S. § 16-351, it must rule on tepending challenge within ten calendar days, inclusive of weekends and holidays. A.R.S. § 16-351(A). Thus, judicial resolution is due Monday, February 27, 2012. Additionally, service of process must be made upon
 
R U L I N G
Page 2 Date: February 24, 2012 Case No.: C20121046Laura StaffordJudicial Administrative Assistantcertain specified individuals and, importantly, it
must be completed “immediately after the action is filed and in
no event more than twenty-four hours after filing the action, excluding Saturdays, Sundays and other legal
holidays.” A.R.S. § 16
-351(C), (D).
“Election contests are purely statutory and are dependent on statutory provisions for their conduct.”
Pacion v. Thomas
, 225 Ariz. 168, 170 ¶ 12, 236 P.3d 395, 397 (2010) (citations omitted). While the judicialdeadlines within the election statutory scheme are discretionary, elector related deadlines are not.
See
 
 Brousseau v. Fitzgerald 
, 138 Ariz. 453, 456, 675 P.2d 713, 716 (1984). Plaintiff explained at the hearing thathe has not personally served Defendants but, instead, he sent the pleadings to them by certified mail andapparently included requests for waiver of service. The waiver of service rule (Ariz. R. Civ. P. 4.1(c)) providesfor generous response deadlines and thus it is completely inconsistent with the shortened process contemplatedby the election challenge statutes. There is no possible way, in light of the deficient service in this case, thatthis matter can be resolved within the time frame set forth under A.R.S. § 16-351, or even close to the timeframes.The Court finds it unnecessary and improper to address the jurisdictional issues raised at the hearingwithout the input of the named defendants. The Court warned Plaintiff that it might be too late to cure anyservice defects and, upon review of the case law and rules, the Court concludes that the case must be dismissed,albeit without prejudice.As noted, Plaintiff also has sought leave to file an amended complaint. Again, the amendment rules areinconsistent with the extremely shortened time frames at play in election contests. Because, however, there isno impending election involving President Obama and because in most cases a party is entitled to amend acomplaint once as a matter of right before a responsive pleading is served,
see
Ariz. R. Civ. P. 15(a), the Courtwill allow Plaintiff to re-file the amended version of his Complaint
 – 
but he must start anew. Out of fairness,the amended complaint may be filed with no new filing fee.Accordingly,
IT IS ORDERED DENYING
and
DISMISSING
without prejudice
Plaintiff’s February 17, 2012,
Complaint brought pursuant to A.R.S. § 16-351.
IT IS FURTHER ORDERED GRANTING
Plaintiff’s Motion for Leave to Amend Ballot Challenge
and Complaint Pursuant to Rules of Civil Procedure 15 insofar as Plaintiff is allowed to file a new amendedcomplaint with no filing fee; to avoid the filing fee, the amended complaint anew and must be filed no later than
March 1, 2012
.

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