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FL COLLETTE 2012-05-11 - FDP Motion to Dismiss Amended Complaint

FL COLLETTE 2012-05-11 - FDP Motion to Dismiss Amended Complaint

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Published by Jack Ryan

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Categories:Types, Research, Law
Published by: Jack Ryan on Jun 15, 2012
Copyright:Attribution Non-commercial

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06/15/2012

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IN THE CIRCUIT COURT OF THE SIXTH JUDICAL CIRCUIT,IN AND FOR PASCO COUNTY, FLORIDA CASE NO. 51-2012-CA-2041-WSCIVIL DIVISION JERRY COLLETTE,Plaintiff, v.BARACK OBAMA,STATE EXECUTIVE COMMITTEE OFTHE FLORIDA DEMOCRATIC PARTY,and DOES 1 THROUGH 1000, INCLUSIVE,Defendants.DEFENDANT FLORIDA DEMOCRATIC PARTY’S MOTION TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO RULE 1.140(B)Defendant State Executive Committee of the Florida Democratic Party (the “FDP”),through undersigned counsel, moves pursuant to Rule 1.140(b) to dismiss the First AmendedComplaint and, in support thereof, state:
Preliminary Statement
The amended complaint challenges the eligibility of Barack Obama of Barack Obama tobe listed on Florida ballots as a candidate for President of the United States. The thrust of theamended complaint is that President Obama is “foreign born” and that “[n]o matter where he wasborn, he is not a 
natural born 
citizens because he was born of foreign paternity,” each of which, it as alleged, renders him ineligible for the office of President of the United States under Article II,Section 5 of the Constitution of the United States.
 
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This assertion, having been rejected by every federal and state court to consider this issue,is utterly baseless. The question of President Obama’s citizenship has long been settled. He is a natural born citizen, having been born in 1961 in Honolulu, Hawaii to his mother, the late AnnDunham, who was indisputably a citizen of the United States. Therefore, he satisfies therequirements of Article II, Section 1 of the Constitution of the United States; he is eligible to serveas President of the United States; and he is eligible to stand for re-election to that office. Plaintiff’sallegations have no basis in fact or in law.
Motion to Dismiss for Failure to State a Cause of Action
1. President Obama is indisputably a natural born citizen by virtue of his birth in theUnited States.
See United States v. Wong Kim Ark,
169 U.S. 649, 705 (1898)(holding that a person born to non-citizens for China was a citizens of the United States because “[e]very personborn in the United States, and subject to the jurisdiction thereof, becomes at once a citizens of theUnited States”);
see also Ankeny v. Governor of the State of Indiana,
916 N.E. 2d 678, 688 (Ind.Ct. App. 2010)(citing 
Wong Kim Ark,
and holding that both President Obama and Senator JohnMcCain were “natural born citizens” because “persons born within the borders of the UnitedStates are ‘natural born citizens’ for the Article II, Section 1 purposes, regardless of the citizenshipof their parents.”). Because President Obama satisfies all eligibility requirements for the office of President of the United States, the complaint should be dismissed for failure to state a cause of action.2. Despite the Plaintiff’s baseless assertions regarding the President’s eligibility, thecomplaint fails to state a cause of action because the Democratic Party has a constitutional right tonominate whomever it desires as its candidate for President of the United States.
See California Democratic Party v. Jones,
530 U.S. 567, 575 (2000)(“Unsurprisingly, our cases vigorously affirmthe special place the First Amendment reserves for, and the special protection it accords, the
 
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process by which a political party select[s] a standard bearer who best represents the party’sideologies and preferences.” (internal citation and quotation marks omitted));
cf. New York Board of Elections v. Lopez-Torres,
552 U.S. 196 (2008)(“A political party has a First Amendment right … to choose a candidate selection process that will in its view produce the nominee who best represents its political platform.”) Florida law does not authorize interference with thisconstitutionally protected candidate selection process, and Defendants cannot be enjoined fromadvancing President Obama’s candidacy.3. Defendant FDP moves to dismiss the complaint for failure to state a cause of actioninasmuch there is no bona fide justiciable controversy between the parties and that the judgment of the court is merely sought to answer questions propounded out of curiosity or for politicalpurposes.4. Defendant FDP moves to dismiss the complaint for lack of jurisdiction, in that thecomplaint fails to allege an amount of damages necessary to vest jurisdiction in the circuit court. Assuming, but not conceding, that Plaintiff could state a cause of action, in no event couldmonetary damages be warranted for the type of injury alleged by Plaintiff. Thus, Plaintiff’s claimfor damages must be dismissed.5. Plaintiff’s claims for damages must also be dismissed for failure to state a casue of action inasmuch as there exists no cause of action for damages for violation of the alleged rights,duties or obligations claimed by the Plaintiff.
Motion to Dismiss for Failure to Join Indispensible Parties
6. Defendant FDP moves to dismiss the amended complaint for failure to joinindispensible parties on the ground that the Governor of the State of Florida and the Department of State are each indispensible parties to this action who have not been joined as party defendants.

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