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In - 2012-10-Xx - Tviec Et Al - Proposed Post-trial Order Granting Judgment in Favor of the Indiana

In - 2012-10-Xx - Tviec Et Al - Proposed Post-trial Order Granting Judgment in Favor of the Indiana

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STATE OF INDIANA COUNTY OF MARION ORLY TAITZ, KARL SWIHART, EDWARD KESLER, BOB KERN, and FRANK WEYL

) ) SS: )

IN THE MARION SUPERIOR COURT CAUSE NO. 49D14-1203-MI-012046

) ) ) ) Plaintiffs, ) ) v. ) ) INDIANA ELECTION COMMISSION, ) DEPUTY 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. ) POST-TRIAL ORDER GRANTING JUDGMENT IN FAVOR OF THE INDIANA ELECTION COMMISSION AND THE INDIANA SECRETARY OF STATE ON PLAINTIFFS’ CLAIMS OF DECLARATORY RELIEF AND INJUNCTIVE RELIEF On October 1, 2012, Plaintiffs filed a Motion to “Schedule Separate Trial of Expedition on the Two Issues of Declaratory Relief & Permanent Injunction as to Secretary of State & Elections Commission Alone.” Specifically, Plaintiffs requested an expedited trial against the Indiana Election Commission and the Indiana Secretary of State on two “legal causes of action: declaratory relief & permanent injunction.” This Court scheduled Plaintiffs’ request for trial on October 22, 2012. After hearing argument on other matters (State Defendants’ Motion to Dismiss, State Defendants’ Motion to Vacate, and Plaintiffs’ Motion for Default Judgment) and after taking these other matters under advisement, this Court ruled from the bench that Plaintiffs’

claim for injunctive relief had been previously denied and, thus, the only matter proceeding to trial would be Plaintiffs’ cause of action for declaratory judgment.1 This Court having reviewed the evidence presented now finds that FINAL JUDGMENT should be ENTERED in FAVOR of the Indiana Election Commission and the Indiana Secretary of State and AGAINST Plaintiffs on Plaintiffs’ claim for declaratory judgment. Specifically, this Court makes the following findings and conclusions relative to Plaintiffs’ claim for declaratory judgment. BACKGROUND/PROCEDURAL HISTORY2 1. Plaintiffs challenged the constitutional qualifications of President Barack Obama

before the Indiana Elections Commission (“IEC”) and sought to have him removed from the Indiana ballot.3 2. 3. The IEC unanimously denied Plaintiffs’ challenge on February 24, 2012. The review of the decision of the IEC is governed by the Administrative Orders

and Procedures Act (“AOPA”). See I.C. § 4-21.5, et seq. See also I.C. § 4-21.5-5-1 (AOPA
1

This Court, by separate Orders, has disposed of these other matters. Because this Court has concluded that Plaintiffs’ Second Amended Complaint must be dismissed with prejudice, the reasons set forth in that Order are incorporated herein and provide further bases for this Order. Put simply, since Plaintiffs’ Second Amended Complaint is devoid of merit, judgment in favor of the Indiana Election Commission and the Indiana Secretary of State is proper. 2 For the procedural and background section of this Order, this Court relies on the docket entries as appropriate. Such pleadings are not evidence; however, they are filings that provide the procedural history for this litigation. 3 This Court notes that Plaintiff Taitz did not technically file a challenge before the IEC challenging the qualifications; however, Plaintiff Taitz appeared before the IEC and provided information and evidence to the IEC. Plaintiff Taitz is a party to this litigation and has represented the other plaintiffs as their counsel. Accordingly, this Court finds that Plaintiffs Taitz is in privity with the other plaintiffs who filed 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 interests are 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 real parties). 2

“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) (strict compliance with the mandates of AOPA is required); Burke v. Board of Directors of Monroe County Public Library, 709 N.E.2d 1036, 1041 (Ind. Ct. App. 1999) (“the failure to adhere to the statutory prerequisites for judicial review of administrative action is fatal in that it deprives the trial court of” authority to entertain the petition). 4. Plaintiffs filed a “Petition for Emergency Injunctive Relief and Petition for

Declaratory Relief” with this Court to challenge the decision of the IEC. This action was initiated on March 23, 2012.4 5. Plaintiffs filed an amended pleading titled “First Amended Complaint Injunctive

Relief, Petition for Emergency Stay Under AOPA, Petition for Declaratory Relief, Complaint for Fraud Negligence Breach of Fiduciary Duty” on May 7, 2012. This Court did not grant leave to file 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 issued

an Order on June 25, 2012. In this Order, this Court concluded that Plaintiffs failed to comply with various provisions of AOPA and, as a result, this Court dismissed Plaintiffs’ claims “with prejudice.” 7. Plaintiffs filed two Motions under Rule 60.5 As pertinent, Plaintiffs argued that

the claims of negligence, fraud and breach of fiduciary duty should not have been dismissed with prejudice.

For the benefit of Plaintiffs, this Court construed Plaintiff’s filing as a Verified Petition for Judicial Review as that was the only means by which the decision of the IEC could be reviewed. 5 Plaintiffs’ first Rule 60 Motion accused State Defendants of treason and stated that if this Court did not reinstate the challenge to the constitutional qualifications of President Obama, it, 3

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8.

This Court, on August 17, 2012, issued an Order regarding Plaintiffs’ Rule 60

Motion(s). Specifically, this Court reaffirmed its June 25, 2012 Order that the challenges to President Obama’s qualifications were dismissed with prejudice and that the dismissal was on the merits; however this Court allowed Plaintiffs to file an amended pleading setting forth three state-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

dismissing their challenges to the constitutional qualifications of President Obama and the time for any such appeal has now passed. Therefore, the decision denying the challenge to the constitutional qualifications of President Obama is final and Plaintiffs are barred from relitigating those claims by the doctrines of res judicata and collateral estoppel. See Adams v. Marion County Office of Family and Children, 659 N.E.2d 202, 205 (Ind. Ct. App. 1995) (citing Sullivan v. American Casualty Co., 605 N.E.2d 134, 137 (Ind. 1992)); S. Bend Fed’n of Teachers and Nat’l Ed. Ass’n-S. Bend, 389 N.E.2d 23, 35 (1979) (“[t]he principles of res judicata seek to guard parties against vexatious and repetitious litigation of issues which have been determined in a judicial or quasi-judicial proceeding”). 10. On September 4, 2012, Plaintiffs filed a Second Amended Complaint.6 In direct

contravention of this Court’s August 17, 2012 Order, Plaintiffs named additional defendants, included an additional plaintiff, and asserted additional claims. Plaintiffs also try to reassert their

too, would be “complicit in the crimes committed by the defendants and will become complicit to treason.” Such comments and accusations, which have been tossed about by Plaintiffs throughout this litigation, are scurrilous. 6 This Court notes that summons have not been issued for Jefferson Garn or Kate Shelby; however, Plaintiffs obtained new summons for the Indiana Election Commission and the Indiana Secretary of State. The docket reflects that those summonses were issued on September 13, 2012. 4

requests for declaratory relief and injunctive relief to declare that President Obama is not constitutionally qualified and that the State of Indiana should be compelled to remove President Obama from the Indiana ballot. 11. To be clear, this Court only permitted Plaintiffs to file a further amended

complaint asserting common-law tort claims against the Indiana Election Commission and the Indiana Secretary of State for negligence, fraud, and breach of fiduciary duty. 12. On October 1, 2012, Plaintiffs filed a Motion to “Schedule Separate Trial of

Expedition on the Two Issues of Declaratory Relief & Permanent Injunction as to Secretary of State & Elections Commission Alone.” Specifically, Plaintiffs requested an expedited trial against the Indiana Election Commission and the Indiana Secretary of State on two “legal causes of action: declaratory relief & permanent injunction.” 13. Plaintiffs did not seek expedited trial on any state-law tort claim or constitutional

claim. Further, this Court already denied Plaintiffs’ request for injunctive relief. Consequently, this Court ruled, from the bench, that the only matter being tried on October 22, 2012 was Plaintiffs’ cause of action for declaratory judgment, which seeks a declaration that President Obama is not constitutionally qualified to be President of the United States because, as Plaintiffs aver, he was not born in the United States. EVIDENCE AT TRIAL 14. At trial, Plaintiffs presented the following witnesses: Christopher Strunk; Felicito

Papa; and Paul Irey. Plaintiffs also introduced, over State Defendants’ objections, the following exhibits: P-1 (however, not for the truth of the matter asserted); P-2 (a copy of President Obama’s Certificate of Live Birth that Mr. Papa purportedly downloaded from the White House web-site); P-4, P-5, P-6, and P-7 (demonstrative exhibits of Mr. Irey purportedly showing his

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comparison of letters on President Obama’s Certificate of Live Birth that was purportedly downloaded from the White House web-site). 15. 16. Significantly, no plaintiff was offered as a witness or testified, under oath, at trial. Mr. Strunk was not offered as an expert witness and his testimony (relating only

to a purported FOIA request he made regarding President Obama’s mother) was based on hearsay and was not based on his personal knowledge. Further, the documents about which he spoke (P-1) were not properly authenticated and were not offered for the truth of the matters contained. Also, information regarding President Obama’s mother is irrelevant. Thus, Mr. Strunk’s information was inadmissible in this matter before this Court and, thus, to the extent provided, it should be stricken. Ind. R. Evid. 401, 402, 602, 802, 805. 17. Mr. Papa was not qualified as an expert witness on any topic of relevance to this

matter and was not accepted by this Court as an expert on any topic of relevance to this matter. Specifically, Plaintiffs offered no evidence about the methodology purportedly used by Mr. Papa, nor did Plaintiffs offer any evidence that the principle upon which he was testifying are reliable or used by others in the field or peer reviewed in any way, shape, or form. See Ind. R. Evid. 702(b) (expert testimony only admissible where the proponent demonstrates that the “scientific principles upon which the expert testimony rests are reliable”); Steward v. State, 652 N.E.2d 490, 498 (Ind. 1995). See also Hannan v. Pest Control Services, Inc., 734 N.E.2d 674, 679 (Ind. Ct. App. 2000) (an “expert in one field of expertise cannot offer opinions in other fields absent a requisite showing of competency in that other field”). Mr. Papa’s only admissible testimony, therefore, was that he went to the White House web-site and downloaded what was posted there as President Obama’s Certificate of Live Birth. All other testimony that Mr. Papa tried to provide was irrelevant, hearsay, and not based on personal knowledge; thus, it is

6

inadmissible in this matter and, to the extent provided, it should be stricken. Ind. R. Evid. 401, 402, 602, 802, 805. As for P-2, again, all this shows is the Certificate of Live Birth for President Obama and all pages, after the initial page, are inadmissible as they have not been properly authenticated and are hearsay and are irrelevant and, thus, should be stricken. 18. Mr. Irey, over the objections of State Defendants, was found to be an expert in

type-setting only and was accepted as an expert on that topic only. See also Hannan v. Pest Control Services, Inc., 734 N.E.2d 674, 679 (Ind. Ct. App. 2000) (an “expert in one field of expertise cannot offer opinions in other fields absent a requisite showing of competency in that other field”). Further, Plaintiffs offered no evidence about the methodology purportedly used by Mr. Irey, nor did Plaintiffs offer any evidence that the principles upon which he was testifying are reliable or used by others in the field or peer reviewed in any way, shape, or form. See Ind. R. Evid. 702(b) (expert testimony only admissible where the proponent demonstrates that the “scientific principles upon which the expert testimony rests are reliable”); Steward v. State, 652 N.E.2d 490, 498 (Ind. 1995). See also Hannan v. Pest Control Services, Inc., 734 N.E.2d 674, 679 (Ind. Ct. App. 2000) (an “expert in one field of expertise cannot offer opinions in other fields absent a requisite showing of competency in that other field”). 19. No witness presented by Plaintiffs was qualified as an expert in the field of

document authentication. 20. No witness presented by Plaintiffs was qualified to provide an expert opinion as

to whether what was purportedly downloaded from the White House web-site is a forgery. 21. Plaintiffs presented no evidence that any witness ever observed or examined the

hard-copy original Certificate of Live Birth for President Obama or that any witness ever compared that document to a statistically significant sampling of other hard-copy Certificates of

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Live Birth created contemporaneously with President Obama’s Certificate of Live Birth. Additionally, Plaintiffs’ witnesses admitted that had no personal knowledge as to how the State of Hawai’i created a Certificate of Live Birth. Plaintiffs also introduced no evidence whatsoever that their purported methodology of determining whether a document was a forgery (looking at a letters and spacing in single document that was downloaded from a web-site that they do not control and about which they have no personal knowledge regarding the maintenance, upkeep, or its operation) is a reliable scientific methodology of document analysis or that it is used by other experts in this field or that it has been peer reviewed or otherwise tested. Accordingly, Plaintiffs provided no competent expert opinions as to the authenticity of President Obama’s Certificate of Live Birth. See Ind. R. Evid. 702(b) (expert testimony only admissible where the proponent demonstrates that the “scientific principles upon which the expert testimony rests are reliable”); Steward v. State, 652 N.E.2d 490, 498 (Ind. 1995).7 22. Plaintiffs presented no evidence to support their claim that President Obama was

born in a place outside of the United States. LEGAL ANALYSIS/CONCLUSIONS 23. For purposes of the October 22, 2012 trial, this Court concluded that it was

conducting a trial only on the declaratory judgment cause of action that President Obama is not

At most, Mr. Irey’s admissible testimony is that he reviewed a copy of what had been downloaded from the White House site and that within that single document he noticed differences between the sizes of some of the letters, differences of spacing between some of the letters, and a white “haloing” around certain letters. It is unclear whether “expert” testimony was needed for such observations. All other testimony provided by Mr. Irey, however, is hearsay, irrelevant, not based on personal knowledge, and not scientifically reliable; thus, it is inadmissible. Ind. R. Evid. 401, 402, 602, 702(b), 802, 805. As for the demonstrative summaries he presented, again, these were admitted for a limited purpose and do not prove that the Certificate of Live Birth is a forgery or that President Obama is not constitutionally qualified for office. 8

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constitutionally qualified to be President of the United States because, as Plaintiffs allege, he was not born in the United States.8 24. Plaintiffs bear the burden of proving their claim. See MCS Laser Tec, Inc. v.

Kaminski, 829 N.E.2d 29, 35 (Ind. Ct. App. 2005). A. Plaintiffs’ Declaratory Judgment Claim Is Barred By Res Judicata And Collateral Estoppel 25. Plaintiffs challenged the constitutional qualifications of President Obama by filing

a challenge with the IEC. The IEC unanimously denied Plaintiffs’ challenge. 26. Plaintiffs sought review of the IEC’s decision with this Court. That matter was

dismissed with prejudice and no appeal was taken. 27. Accordingly, the denial of Plaintiffs’ challenge to the constitutional qualifications

of President Obama was a final decision and precludes Plaintiffs from re-litigating this claim under the guise of an action under the Uniform Declaratory Judgment Act. See I.C. § 4-21.5-5-1 (AOPA “establishes the exclusive means for judicial review of an agency action”); Adams v. Marion County Office of Family and Children, 659 N.E.2d 202, 205 (Ind. Ct. App. 1995) (citing Sullivan v. American Casualty Co., 605 N.E.2d 134, 137 (Ind. 1992)); S. Bend Fed’n of Teachers and Nat’l Ed. Ass’n-S. Bend, 389 N.E.2d 23, 35 (1979) (“[t]he principles of res judicata seek to guard parties against vexatious and repetitious litigation of issues which have been determined in a judicial or quasi-judicial proceeding”).

The IEC and the Indiana Secretary of State submit that, for the reasons articulated below, Plaintiffs did not plead a claim for declaratory judgment and that this Court did not grant them permission to plead such a claim. Plaintiffs did not seek an expedited trial on the state-law tort claims or the constitutional claims and such claims do not provide a basis for declaratory relief. In any event, Plaintiffs’ substantive claims are without merit for the reasons set forth in this Court’s Order regarding State Defendants’ Motion to Dismiss. Moreover, Plaintiff introduced absolutely no evidence regarding any element of their constitutional claims or their state-law tort claims. 9

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28.

Therefore, judgment in favor of the Indiana Election Commission and the Indiana

Secretary of State is granted and Plaintiffs’ declaratory judgment claim is dismissed with prejudice.9 B. Plaintiffs’ Declaratory Judgment Claim Is In Violation Of This Court’s August 17, 2012 Order 29. Further, this Court’s August 17, 2012 Order did not give Plaintiffs permission to

assert a declaratory judgment claim. Thus, no claim for declaratory judgment is properly before this Court. 30. Plaintiffs’ Second Amended Complaint did not assert a separate declaratory

judgment cause of action. To that end, no reference is made to the Uniform Declaratory Judgment Act. Thus, no claim for declaratory judgment is before this Court.10 31. Therefore, judgment in favor of the Indiana Election Commission and the Indiana

Secretary of State is granted and Plaintiffs’ declaratory judgment claim is dismissed with prejudice. C. Plaintiffs’ Declaratory Judgment Claim Is Rejected Because Plaintiffs Introduced No Evidence As To Standing

9

At the October 22, 2012 trial, Plaintiffs argued that they were presenting a challenge to the general election. First, it is clear that Plaintiffs’ Second Amended Complaint that their claims are based on the primary election. Second, pursuant to Indiana law, Plaintiffs are barred from bringing this claim in the context of the general election because it was already rejected in the context of the primary election. See I.C. § 3-8-1-2(d)(3). Finally, Plaintiffs try to avoid the IEC by referring to State Election Board v. Bayh, 521 N.E.2d 1313 (Ind. 1988). Unlike here, in Bayh, the Board deferred to the trial court’s hearing of the matter. Id. at 1314. Nevertheless, the Court in Bayh did not preclude the Board from performing its customary duties. Id. In short, Plaintiffs have cited no authority to allow them to litigate this case before this Court. 10 During the oral argument regarding State Defendants’ Motion to Dismiss, Attorney Black referenced certain allegations in the Second Amended Complaint to support the position that a cause of action for declaratory judgment had been pled. Again, this Court has granted, by separate Order, State Defendants’ Motion to Dismiss. In any event, Attorney Black’s reference to allegations in the Second Amended Complaint during an oral argument on a Motion to Dismiss are not evidence at trial and, thus, do not warrant declaratory judgment in favor of Plaintiffs. 10

32.

Under the Uniform Declaratory Judgment Act:

Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question or construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder. I.C. § 34-14-1-2. 33. A critical showing that Plaintiffs must make, therefore, is that they have standing

to pursue their declaratory judgment claim. See Hibler v. Conseco, Inc., 744 N.E.2d 1012, 1023 (Ind. Ct. App. 2001) (“[i]n order to obtain declaratory relief, the person bringing the action must have a substantial present interest in the relief sought”). See also Little Beverage Co., Inc. v. DePrez, 777 N.E.2d 74, 83 (Ind. Ct. App. 2002) (“[t]he basis of jurisdiction under the Declaratory Judgment Act is a justiciable controversy or question, which is clearly defined and affects the legal right, the legal status, or the legal relationship of parties having adverse interests”). 34. “Standing is a key component in maintaining our state constitutional scheme of

separation of powers.” Pence v. State, 652 N.E.2d 486, 488 (Ind. 1995) (citing Ind. Const. Art. III, § 1). Standing requirements limit a court's jurisdiction and “restrains the judiciary to

resolving real controversies in which the complaining party has a demonstrable injury.” Id. at 488 (citing Schloss v. City of Indianapolis, 553 N.E.2d 1204, 1206 (Ind. 1990)). 35. Where, as here, Plaintiffs are not “the object of the government action [they] Lujan v.

challenge[], standing … is ordinarily ‘substantially more difficult’ to establish.”

Defenders of Wildlife, 504 U.S. 555, 562 (1992) (further quotations and citations omitted).

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36.

The level of proof required of the Plaintiffs (with regards to the standing issue)

depends on the stage of the litigation because standing is not merely a pleading requirement but is an indispensable part of Plaintiffs’ case; therefore, each element of standing “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561 (further citations omitted). Thus, at “the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we presum[e] that general allegations embrace those specific facts that are necessary to support the claim.” Id at 561 (further quotations and citations omitted). “In response to a summary judgment motion, however, the plaintiff can no longer rest on such mere allegations, but must set forth by affidavit or other evidence specific facts … which for purposes of the summary judgment motion will be taken to be true. And at the final stage, those facts … must be supported adequately by the evidence adduced at trial.” Id. at 561 (further quotations and citations omitted). 37. Plaintiffs did not testify, under oath, at trial. In fact, no evidence was introduced

at trial as to the residency of Plaintiffs, whether they are registered to vote in Indiana, how they are harmed by the actions of the Indiana Election Commission and the Indiana Secretary of State, how a decision in their favor would redress their grievances. Absent any affirmative evidence on this jurisdictional issue, Plaintiffs’ declaratory judgment claim must be rejected.11 38. Beyond this failure, courts have routinely held that folks like Plaintiffs lack

standing to challenge the qualifications of one running for President of the United States. See

At a conference with this Court, Plaintiffs were advised of the time-limits involved and were counseled to put on their most important witnesses. Plaintiffs chose their witnesses and the evidence they introduced. 12

11

also Berg v. Obama, 574 F. Supp. 2d 509, 515-19 (E.D. Pa. 2008) (dismissing challenge to President Obama’s constitutional qualifications for lack of standing: “a voter fails to present any injury-in-fact when the alleged harm is abstract and widely shared or is only derivative of a harm experienced by a candidate”) (further quotations and citations omitted); Hollander v. McCain, 566 F. Supp. 2d 63 (D. N.H. 2008) (same); Cohen v. Obama, 2008 WL 5191864 (D. D.C. Dec. 11, 2008) (same), aff’d, 332 Fed. Appx. 640 (D.C. Cir. Sept. 8, 2009).12 39. Therefore, judgment in favor of the Indiana Election Commission and the Indiana

Secretary of State is granted and Plaintiffs’ declaratory judgment claim is dismissed with prejudice. D. Plaintiffs’ Declaratory Judgment Claim Is Rejected Because Such A Claim Cannot Be Asserted Against The State 40. Plaintiffs’ declaratory judgment action has been lodged against the Indiana

Election Commission and the Indiana Secretary of State. 41. Case law is clear, however, that the State of Indiana (here, the Indiana Elections

Commission and the Indiana Secretary of State) cannot be the subject of a declaratory judgment claim. See I.C. § 34-14-1-13 (State or its agencies not included within the definition of “person” for purposes of the UDJA); State v. LaRue, Inc., 154 N.E.2d 708, 712 (Ind. 1958) (trial court does not have jurisdiction over declaratory judgment action against the State because the State, in its sovereign capacity, is not subject to suit under the UJDA).

Fulani v. Hogsett, 917 F.2d 1028 (7th Cir. 1900) does not support Plaintiffs’ position. In Fulani, third-party candidates for the presidency brought an action challenging (on constitutional grounds) the decision by Indiana to place the republican and democratic candidates on the ballot even though the Secretary of State failed to certify the candidates by the deadline. On the issue of standing, the Seventh Circuit held that the plaintiffs had standing because, by allowing the republican and democratic candidates on the Indiana ballot, the third-party candidates were harmed because they were faced with increased competition. 917 F.2d at 1030. Here, Plaintiffs are not candidates for the presidency; thus, Fulani has no applicability to this litigation. 13

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42.

Therefore, judgment in favor of the Indiana Election Commission and the Indiana

Secretary of State is granted and Plaintiffs’ declaratory judgment claim is dismissed with prejudice. E. Plaintiffs’ Declaratory Judgment Claim Is Rejected Because Plaintiffs Introduced No Evidence That President Obama Is Not Constitutionally Qualified 43. As noted, Plaintiffs seek a declaration that President Obama is not constitutionally

qualified to be President of the United States because, according to Plaintiffs, President Obama was not born in the United States. 44. The U.S. Constitution establishes the constitutional qualifications to be President

of the United States. U.S. Const. Art. II, Section 1, clause 4. 45. At trial, Plaintiffs introduced a Certificate of Live Birth of Barack Obama, which

states that he was born in Honolulu, Hawai’i on August 4, 1961. P-2. 46. Plaintiffs offered no evidence that President Obama was born anywhere other

than Honolulu, Hawai’i. 47. Thus, beyond all of the problems noted above, Plaintiffs have not introduced any

evidence to carry their burden of proof. At most, Plaintiffs have introduced evidence that the White House web-site was accessed by Mr. Papa, a copy of President Obama’s Certificate of Live Birth was downloaded, and there are some differences between letters and spacing on that downloaded document. 48. Even if all of this “evidence” were true (and the Court specifically finds that it is

not and that Plaintiffs’ witnesses and evidence are not credible), the fact is that the U.S. Constitution does not require one to have a birth certificate as a qualification to be President of the United States. Put another way, Plaintiffs’ “evidence” is immaterial and irrelevant to the

14

question of whether President Obama was born in the United States or whether he is constitutionally qualified to be President of the United States. 49. This Court notes that this is not Ms. Taitz’s first foray into this challenge. She has

repeatedly brought claim after claim after claim challenging the constitutional qualifications of President Obama and all of her claims have been rejected. For example, in Taitz v. Obama, 707 F. Supp. 2d 1 (D. D.C. 2010), reconsideration denied, 754 F. Supp. 2d 57 (D. D.C. 2010), the Court held that Ms. Taitz did not have standing to bring a quo warranto action to challenge President Obama’s eligibility to hold office and noted that this “is one of several such suits filed by Ms. Taitz in her quixotic attempt to prove that President Obama is not a natural born citizen as required by the Constitution” and this “Court is not willing to go tilting at windmills with her.” 707 F. Supp. 2d at 3. 50. As another example, in Taitz v. Ruemmler, 2011 WL 4916936 (D.D.C. Oct. 17,

2011), aff’d, 2012 WL 1922284 (D.C. Cir. May 25, 2012) the Court described Ms. Taitz as pursuing her “Sisyphean quest to prove that President Barack Obama is using a … forged birth certificate” but concluded that the long-form birth certificate released by the White House “confirms the President’s birth in Honolulu, Hawai’i.” 2011 WL 4916936, at *1 & n.1. 51. Similarly, in Rhodes v. MacDonald, 2009 WL 3111834 (M.D. Ga. Sept. 18,

2009), the Court dismissed the matter as being frivolous and threatened sanctions against Ms. Taitz: “it is clear that Plaintiff’s counsel [Ms. Taitz] seeks to continue to use the federal judiciary as a platform to further her political ‘birther agenda’” but she “has provided no legal or factual basis” and Ms. Taitz’s “subjective belief, speculation and conjecture … have never been sufficient to maintain a legal cause of action.” 2009 WL 3111834, at *1, *3.

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52.

In the end, this Court is not “Wonderland” and “simply saying something is so

does not make it so.” Rhodes v. MacDonald, 2009 WL 2997605, at *4. Indeed, “Congress is apparently satisfied that the President is qualified to serve” as it has not instituted impeachment proceedings and, in fact, the “House of Representatives in a broad bipartisan manner has rejected the suggestion that the President is not eligible for office.” Id. at *1 n.3 (citing H.R. Res. 593, 111th Cong. (2009)) (commemorating, by a vote of 378-0, the 50th anniversary of Hawai’i’s statehood and noting that “the 44th President of the United States, Barack Obama, was born in Hawai’i on August 4, 1961”). 53. Therefore, judgment in favor of the Indiana Election Commission and the Indiana

Secretary of State is granted and Plaintiffs’ declaratory judgment claim is dismissed with prejudice.

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IT IS THEREFORE ORDERED that FINAL JUDGMENT is GRANTED in FAVOR of the Indiana Election Commission and the Indiana Secretary of State and AGAINST Plaintiffs this ____ day of __________, 2012. This Court expressly determines that there is no just reason for delay and, therefore, directs the entry of FINAL JUDGMENT in FAVOR of the Indiana Election Commission and the Indiana Secretary of State and AGAINST Plaintiffs and that this is a FINAL and APPEALABLE ORDER. ____________________________________ Honorable S. K. Reid Judge, MARION SUPERIOR COURT 14 Distribution: Orly Taitz 29839 Santa Margarita Pkwy, Ste 100 Rancho Santa Margarita, CA 92688 Karl Swihart 460 Austin Drive Avon, IN 46123 Edward Kesler 3070 S. Leisure Place West Terre Haute, IN 47885 Frank Weyl 701 N. Brentwood Lane Muncie, IN 47304 Bob Kern 12547 Crystal Point Drive Indianapolis, IN 46236 Valeria I. Ripley 14334 Tonkel Road Fort Wayne, IN 46845

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Greg Black P.O. Box 845 1647 East Main Street, Suite A Plainfield, IN 46168 Jefferson Garn Kate Shelby Kenneth L. Joel Office of the Attorney General I.G.C.S – 5th Floor 302 West Washington Street Indianapolis, IN 46204

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