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STATE OF INDIANA

COUNTY OF MARION
ORLY TAITZ, KARL SWIHART,
EDWARD KESLER, BOB KERN,
and FRANK WEYL
Petitioners,
v.
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) SS:
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INDIANA ELECTION COMMISSION, )
and INDIANA SECRETARY OF )
STATE,
Respondents.
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IN THE MARION SUPERIOR COURT
CAUSE NO. 49Dl4-1203-MI-012046
FILED
@ APR 1 6 2012 .


MOTION TO DISMISS PETITIONERS' "PETITION FOR EMERGENCY
INJUNCTIVE RELIEFIPETITION FOR DECLARATORY RELIEF"
Respondents, the Indiana Election Commission ("IEC") and the Indiana Secretary of
State hereby move to dismiss Petitioners' "Petition for Emergency Injunctive RelieflPetition for
Declaratory Relief." In support of their Motion to Dismiss, Respondents show the Court as
follows:
1. Petitioners filed a "Petition for Emergency Injunctive RelieflPetition for
Declaratory Relief' on March 23,2012. They appear to be appealing the IEC's decision to
unanimously deny the challenge to President Barack Obama as the presidential candidate for the
Democratic Patty.
2. Petitioners' Petition is, in effect, an attempt to overturn an administrative
decision. Thus, it is governed by the Administrative Orders and Procedures Act ("AOPA"),
Indiana Code 4-21.5 et seq., which establishes the exclusive means for judicial review of an
agency action. See Ind. Code 4-21.5-5-1.
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3. Petitioner must comply with all of the statutory requirements of AOPA in order to
invoke the Court's authority to entertain their Petition. See Ind. Code 4-21.5 et seq.; Burke v.
Board o/Directors o/Monroe County Public Library, 709 N.E.2d 1036, 1041 (Indiana Ct. App.
1999), citing Binninger v. Hendricks County Bd. o/Zoning Comm'rs, 668 N.E.2d 269, 271 (Ind.
Ct. App. 1996).
4. Petitioners failed to comply with the requirements of AOP A.
5. Because Petitioners have not satisfied mandatory AOPA requirements, this Court
does not have authority to entertain Petitioners' Petition. See, e.g. Hoosier Envtl. Council v.
Dep 't 0/ Natural Res., 673 N.E.2d 811, 815-16 (Ind. Ct. App. I 996)(upholding dismissal of
petition for judicial review for failure to comply with AOPA provisions requirement
verification).
6. At the minimum, Petitioners Orly Taitz and Bob Kern have failed to establish that
they have standing to seek judicial review pursuant to Indiana Code 4-21.5-5-2
6. Strict compliance with the requirements of AOPA is consistently upheld by the
Indiana Courts of Appeal. See Indiana State Board 0/ Health Facilities Administrators v.
Werner, 846 N.E.2d 669 (Ind. Ct. App. 2006).
7. Additionally, the Petition is improper because AOPA does not allow this COUIt to
order injunctive or declaratOlY relief.
8. Furthermore, even if this Court were to construe the Petition as a request for a
stay under AOPA, Petitioners have failed to meet the requirements for a stay.
9. A memorandum in support of this Motion to Dismiss is attached.
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WHEREFORE, Respondents, the Indiana Election Commission and the Secretary of
State, respectfully request that this Court dismiss the "Petition for Emergency Injunctive
RelieflPetition for Declaratory Relief' and grant all other just and proper relief.
Respectfully submitted,
By:
GREGORY F. ZOELLER
Attorney General of Indiana
Atto n No. 8-98
Jefferson . Garn
Deputy A orney General
Attorney No. 29921-49
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CERTIFICATE OF SERVICE
I do hereby certify that a copy of the foregoing Motion to Dismiss Petitioners' "Petition
for Emergency Injunctive ReliejlPetition for DeclaratOlY Reliefhas been duly served upon all
parties and/or counsel of record listed below, by United States mail, first-class postage prepaid,
on this ~ day of April, 2012:
Information has not been provided to the Court or undersigned counsel regarding a
mailing address for the following Petitioners: Edward Kesler, Frank Weyl and Bob Kern.
Orly Taitz
29839 Santa Margarita Pkwy, Ste 100
Rancho Santa Margarita, CA 92688
Karl Swihart
460 Austin Drive
Avon, IN 46123
OFFICE OF INDIANA ATTORNEY GENERAL
Indiana Government Center South, 5
th
Floor
302 West Washington Street
Indianapolis, IN 46204-2770
Telephone: (317) 232-6292
Facsimile: (317) 232-7979
E-mail: jefferson.garn@atg.in.gov
Jefferson n
Deputy Att rney General
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