AlaFile E-Notice

03-CV-2012-001053.00 Judge: HON. EUGENE W. REESE To: JAMES W DAVIS JimDavis@ago.state.al.us

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

The following matter was FILED on 10/18/2012 8:06:08 AM

MOTION TO DISMISS PURSUANT TO RULE 12(B) [Filer: DAVIS JAMES WILLIAM]

Notice Date:

10/18/2012 8:06:08 AM

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D001 CHAPMAN BETH

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HUGH MCINNISH AND VIRGIN H GOODE JR VS. BETH CHAPMAN 03-CV-2012-001053.00

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FLORENCE CAUTHEN CIRCUIT COURT CLERK MONTGOMERY COUNTY, ALABAMA 251 S. LAWRENCE STREET MONTGOMERY, AL 36104 334-832-4950

NOTICE OF ELECTRONIC FILING

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STATE OF ALABAMA
Unified Judicial System

Revised 3/5/08

03-MONTGOMERY

District Court

Circuit Court

HUGH MCINNISH AND VIRGIN H GOODE JR VS. BETH CHAPMAN

CIVIL MOTION COVER SHEET
Name of Filing Party: D001 - CHAPMAN BETH

ELECTRONICALLY FILED 10/18/2012 8:06 AM CV-2012-001053.00 CIRCUIT COURT OF CV201200105300 MONTGOMERY COUNTY, ALABAMA FLORENCE CAUTHEN, CLERK

Case No.

Name, Address, and Telephone No. of Attorney or Party. If Not Represented.

Oral Arguments Requested

JAMES W DAVIS 501 Washington Ave. Montgomery, AL 36130
Attorney Bar No.: DAV103

Motions Requiring Fee

Motions Not Requiring Fee

Default Judgment ($50.00) Joinder in Other Party's Dispositive Motion (i.e. Summary Judgment, Judgment on the Pleadings, or other Dispositive Motion not pursuant to Rule 12(b)) ($50.00) Judgment on the Pleadings ($50.00) Motion to Dismiss, or in the Alternative Summary Judgment($50.00) Renewed Dispositive Motion(Summary Judgment, Judgment on the Pleadings, or other Dispositive Motion not pursuant to Rule 12(b)) ($50.00) Summary Judgment pursuant to Rule 56($50.00) Motion to Intervene ($297.00) Other pursuant to Rule

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*Motion fees are enumerated in §12-19-71(a). Fees pursuant to Local Act are not included. Please contact the Clerk of the Court regarding applicable local fees. Local Court Costs $

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($50.00)
Date:

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In Limine Joinder Sanctions Sever Other pursuant to Rule

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Check here if you have filed or are filing contemoraneously with this motion an Affidavit of Substantial Hardship or if you are filing on behalf of an agency or department of the State, county, or municipal government. (Pursuant to §6-5-1 Code of Alabama (1975), governmental entities are exempt from prepayment of filing fees)

10/18/2012 8:04:26 AM

*This Cover Sheet must be completed and submitted to the Clerk of Court upon the filing of any motion. Each motion should contain a separate Cover Sheet. **Motions titled 'Motion to Dismiss' that are not pursuant to Rule 12(b) and are in fact Motions for Summary Judgments are subject to filing fee.

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Compel Consolidation Continue Deposition Disburse Funds Extension of Time New Trial Objection of Exemptions Claimed Pendente Lite Plaintiff's Motion to Dismiss Preliminary Injunction Protective Order Quash Release from Stay of Execution Special Practice in Alabama Stay Strike Supplement to Pending Motion Vacate or Modify Withdraw
/s/ JAMES W DAVIS

Amend Change of Venue/Transfer

Designate a Mediator Judgment as a Matter of Law (during Trial)

More Definite Statement Motion to Dismiss pursuant to Rule 12(b)

Signature of Attorney or Party:

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(Subject to Filing Fee)

TYPE OF MOTION

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ELECTRONICALLY FILED 10/18/2012 8:06 AM CV-2012-001053.00 CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA FLORENCE CAUTHEN, CLERK

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

HUGH McINNISH, et al., Plaintiffs, v. BETH CHAPMAN, Secretary of State, Defendant.

DEFENDANT’S MOTION TO DISMISS AND OPPOSITION TO PLAINTIFFS’MOTION FOR SUMMARY JUDGMENT

Pursuant to Rules 12 and 56 of the Alabama Rules of Civil Procedure, the Defendant, Beth Chapman, sued in her official capacity as the Secretary of State for the State of Alabama, moves to dismiss Plaintiffs’ claims and simultaneously opposes Plaintiffs’ motion for summary judgment. In support of this motion, Defendant states as follows: 1.

Plaintiffs seek a writ of mandamus requiring Secretary Chapman to

candidates from the November, 2012 general election ballot. Their claim is directed

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primarily toward President Obama and is based on the incorrect premise that Secretary Chapman has a duty to investigate the qualifications of candidates certified by a political party. Plaintiffs filed a motion for summary judgment and moved to shorten Defendant’s time for a response.

Putting aside the fact that Plaintiffs’ motion for summary judgment does not

comply with Rule 56(a) of the Alabama Rules of Civil Procedure (which permits a

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investigate the qualifications of Presidential candidates and to remove unqualified

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) ) ) ) ) ) ) ) )

CIVIL ACTION NUMBER CV-2012-001053

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plaintiff to file a motion for summary judgment only “after the expiration of thirty days

Secretary of State has no legal duty to investigate the qualifications of a candidate; (2) in regard to candidates for President, the authority to adjudge qualifications rests with

Congress; (3) Plaintiffs have failed to join necessary parties; and (4) Plaintiffs’ claim is filed too late. 2.

As a matter of Alabama law, the Secretary of State does not have a duty to

investigate the qualifications of candidates:

Attorney General’s Opinion No. 1998-200 (copy attached as Exhibit A) (former §17-7-1 is now codified at § 17-9-3, and former § 17-16-40 is now codified at 17-13-22).

hundreds of candidates from the political parties. It would simply be impossible for her

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to go behind those nominations and verify each candidate’s qualifications. 4. In addition, when it comes to candidates for President, only Congress has

the authority to judge qualifications. Robinson v. Bowen, 567 F.Supp.2d 1144, 1447 (N.D. Cal. 2008). A central authority to adjudge qualifications for President makes far more sense than it being decided in 50 separate states: [T]he truly absurd result would be to require each state’s election official to investigate and determine whether the proffered candidate met

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3.

This rule makes sense. The Secretary of State receives nominations of

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The Secretary of State does not have an obligation to evaluate all of the qualifications of the nominees of political parties and independent candidates for state offices prior to certifying such nominees and candidates to the probate judges pursuant to sections 17-7-1 and 17-16-40 of the Code of Alabama. If the Secretary of State has knowledge gained from an official source arising from the performance of duties prescribed by law, that a candidate has not met a certifying qualification [such as a candidate’s failure to file a public Statement of Economic Interest], the Secretary of State should not certify the candidate.

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from the commencement of the action”), Plaintiffs’ claim fails for four reasons: (1) The

Keyes v. Bowen, 117 Cal.Rptr.3d 207 (Cal.App. 2010). 5.

Plaintiffs have also failed to join one or more necessary parties, namely,

President Obama, the other candidates whose interests are at stake, and affected presidential electors. Ala.R.Civ.P. 19. 6.

Finally, Plaintiffs filed their claim too late. Absentee voting has begun.

Overseas and military ballots have already issued. It is not possible to alter the ballot at this date. Whether Plaintiffs’ claim is construed as an untimely contest of the nominating process (see Wood v. Booth, 990 So.2d 314 (Ala. 2008); Roper v. Rhodes, 988 So. 2d 471

at 481 (Murdock, J., dissenting in the reasoning but agreeing with the result)), their claim

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is time-barred.

WHEREFORE, this Court should deny Plaintiffs’ motion for summary judgment

and dismiss Plaintiffs’ complaint. Respectfully submitted, LUTHER STRANGE (ASB-0036-G42L) Attorney General BY:

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(Ala. 2008)), or whether it is construed through the lens of laches (see Roper, 988 So. 2d

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eligibility criteria of the United States constitution, giving each the power to override a party’s selection of a presidential candidate. The presidential nominating process is not subject to each of the 50 states’ election officials independently deciding whether a presidential nominee is qualified, as this could lead to chaotic results. Were the courts of 50 states at liberty to issue injunctions restricting certification of duly-elected presidential electors, the result could be conflicting rulings and delayed transition of power in derogation of statutory and constitutional deadlines. Any investigation of eligibility is best left to each party, which presumably will conduct the appropriate background check or risk that its nominee’s election will be derailed by an objection in Congress, which is authorized to entertain and resolve the validity of objections following the submission of the electoral votes.

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Attorneys for Secretary of State Beth Chapman

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 18th day of October, 2012, I filed the foregoing document via the Alafile system, which will send electronic notification of such filing to the following counsel of record:

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Larry Klayman Klayman Law Firm 2020 Pennsylvania Ave. NW, Suite 800 Washington, DC 20006 leklayman@gmail.com

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s/ James W. Davis Of Counsel 4

L. Dean Johnson 4030 Balmoral Dr., Suite B Huntsville, AL 35801 Johnson_dean@bellsouth.net

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OFFICE OF THE ATTORNEY GENERAL 501 Washington Avenue Montgomery, Alabama 36130 Telephone: (334) 242-7300 Facsimile: (334) 353-8440 mfleming@ago.state.al.us jimdavis@ago.state.al.us

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s/ James W. Davis Margaret L. Fleming (FLE001) James W. Davis (DAV103) Assistant Attorneys General

ELECTRONICALLY FILED 10/18/2012 8:06 AM CV-2012-001053.00 CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA FLORENCE CAUTHEN, CLERK

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