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IN - Taitz v IEC & SOS - 2012-04-16 - IEC-SOS Memo in Support of Motion

IN - Taitz v IEC & SOS - 2012-04-16 - IEC-SOS Memo in Support of Motion

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Published by Jack Ryan

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Published by: Jack Ryan on Apr 24, 2012
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06/13/2012

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STATE
OF
INDIANA
COUNTY
OF
MARIONORLY TAITZ, KARL
SWIHART,EDWARD
KESLER,
BOBKERN,and
FRANKWEYL
Petitioners,
v.
)
) SS:
)
))
)
))
)))
INDIANA
ELECTION
COMMISSION,
)
and
INDIANA
SECRETARY OF
)
STATE,
Respondents.
))
)
IN
THE
MARION SUPERIOR
COURT
CAUSE
NO. 49Dl4-1203-MI-012046
FILED
~
APR
16
2012
('Jl~,
~
C L ~ ~ ~ F T H E M A R I O N C I R C U I T C O U R T 
MEMORANDUMINSUPPORT
OF
RESPONDENTS'
MOTION
TO
DISMISS
PETITIONERS' "PETITION
FOREMERGENCY INJUNCTIVE RELIEFIPETITION
FOR
DECLARATORY
RELIEF"
Respondents, the Indiana Election Commission ("IEC") and Indiana Secretary
of
State,hereby move to dismiss Petitioner's "Petition for Emergency Injunctive RelieflPetition forDeclaratory Relief." This cause is governed
by
Indiana Code § 4-21.5-5-1
et seq.,
theAdministrative Orders and Procedures Act ("AOPA"). Petitioners have ovelwhelmingly failedto comply with the requirements for judicial review. Therefore, this Court should dismiss thePetition pursuant to Indiana Rule
of
Trial Procedure 12(B)(6).I.
FACTS
AND
PROCEDURAL HISTORY
The IEC is a bi-partisan Commission that "[a]dminister[s] Indiana election laws" andgoverns election procedures and campaign finance. Ind. Code § 3-6-4.1-4. In a public meetingon February 24, 2012, the IEC heard challenges to the candidacy
of
various individual for offices
up
for election this year. That day, the
IEe
unanimously denied challenges to President Barack5
 
Obama's candidacy. A podcast
ofthat
meeting is available on the Indiana Secretary
of
State'swebsite.Karl Swihart, Edward Kesler, FrankWeyl filed challenges with the IEC
to
PresidentBarack Obama's qualifications for the office
of
President
of
the United States. Those Petitionersalleged issues related to the identity and identification documents
of
President Obama. While itis not entirely clear,
it
appears that the hundreds
of
pages which include, among otherdocuments, dozens
of
illegible and indecipherable documents, unsigned affidavits, and pagesfrom President Obama's memoir
Dreams
of
My
Father,
are intended to call into question theveracity.
of
certain identification documents
of
President Barack Obama.
On
March
23,2012,
Dr. Orly Taitz, Esq. filed a "Petition for Emergency InjunctiveRelieflPetition for Declaratory
Relief'
on behalf
of
Swinhart, Kesler, Weyl, Bob Kern, andherself. The Petition requests
"a
declaratory relief pronouncing candidate Obama not eligible forthe position on the ballot as a candidate for the US Presidency
....
" (Petition, Prayer for Relief
~
1.) They also want
"an
emergency injunctive relief
in
the form
of
a Writ
of
Mandamusdirecting the Elections Commission and the Secretary
of
State to remove Obama from theballot." (Petition, Prayer for Relief
~
2.)Neither Taitz nor Kern were parties to the administrative proceedings before the IEC.Taitz appeared at the February 24th IEC hearing as an alleged expert witness hired
by
eitherSwihart, Kesler, or Weyl. However, she is not a registered voter in Indiana and did not file achallenge to President Obama's qualifications with the IEC. Likewise, Kern did not file achallenge toPresident Obama's qualifications with the IEC this year.Also
on
March 23rd, Taitz filed an Appearance by Attorney in Civil Case in this cause.The appearance was signed by Kern for Taitz. The name "Dr. Orly Taitz, Esq." is written in the6
 
space for the undersigned attorney, although "pro se" is written after Taitz's name. Taitz
is
anattorney licensed to practice in California.
See
California Roll
of
Attorneys,
available
at:
http://members.calbar.ca.gov/fallMemberSearchlQuickSearch?FreeText=taitz&SoundsLike=fals
e.
Neither she nor Kern is admitted to practice
as
an attorney in Indiana.
See
Indiana Roll
of
Attorneys,
available
at:
http://hats.courts.state.in.us/rollatty/. Taitz has not sought leave toappear
pro hac vice
in this case. Similarly, Petitioners provide no evidence that Taitz brought achallenge before the IEC, which is a requirement in order for Taitz to have standing to appear
pro
se
in this matter. The Petition states that Taitz has "submitted a complaint
of
elections fraud,use
of
forged identification papers, use
of
a name that is not legally his by candidate BarackObama," but fails to explain when or in what jurisdiction such a complaint was lodged.On April
9,
2012, Taitz filed a Motion to Recuse Judge Shaheed
of
Marion SuperiorCourt, Civil Division
1,
on behalf
of
all Petitioners. Respondents moved to dismiss Petitioners'Motion on April 10, 2012. That same day, Judge Shaheed granted Petitioners' Motion. On April12,2012, Judge Reid
of
Marion Superior Court, Civil Division
14
was appointed as the SpecialJudge in this case.
I
Respondents now respectfully movethis Court to dismiss the Petition pursuant to IndianaRule
of
Trial Procedure l2(B)(6). Petitioners are attempting to circumvent the judicial reviewprocess and the requirements
of
AOPA.
At
least two
of
the Petitioners do not have standing to
I On April
9,
2012, Petitioners filed a "Motion to Recuse Judge Shaheed Under Rule 79
oflndiana
Rules
of
TrialProcedure." Petitioners appeared
to
move for recusal under Indiana Trial Rule 79(c). Petitioners allege Ihal recusalwas necessary because a person within the third degree
of
relationship
to
the judge
is
known by the judge
to
have
an
interest that could be substantially affected
by
the proceeding. Petitioners' motion was improper because they failedto establish that any person related
10
the judge could be substantially affected by the proceeding. Respondents fileda motion to dismiss Petitioners' "Motion to Recuse" on April 10, 2012. Judge Shaheed recused himself
on
April
10,
2012.
It
is
unclear whether Judge Shaheed considered the Respondents' motion, as undersigned counsel was not onthe distribution list for his order, indicating that it he recused himself prior to counsel's appearance having been filedwith the Court. Respondents, therefore, respectfully move the Court to reconsider its Order dated April
10,
2012,
for
the
reasons
set
forth
in
their
Motion
to
Dismiss
Petitioners'
UMatian
to
Recuse,"
7

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" Petitioners attached, without explanation, hundreds of pages of documents to their Petition, including a transcript of a media presentation from a sheriff in Arizona and what appears to be a transcript of a proceeding before an 12 Administrative Law Judge in Georgia. But nowhere is there any detail regarding proceedings which took place in Indiana." Well, played, Orly.
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