v Indiana Board of Elections, et al. by A Legal Lohengrin » Tue Jun 12, 2012 4:30 pm I arrived and sat down at 1:19. Before entering the courtroom, I went into the judge's office and asked her assistant whether it would be permissible to take notes on my laptop or whether sticking to pen and paper would be more appropriate. She suggested it would be on the safer side not to use the laptop, and I agreed. She thanked me for asking. Whatever the rules are, I find it is generally better to go with the judge's preferences, so am not even sure as to the actual rule, if any. Orly and her clients were already in the room. Orly was having people mess with the audiovisual equipment, including setting up a display easel, presumably for Orly's enlarged exhibits. None of this equipment was ever used in the hearing. None of Orly's witnesses were present. In fact, they were never permitted to testify. The only witness present was Charlie White, ex-Secretary of State, whose legal travails have been previously discussed. He was accompanied by counsel. Neither made a formal appearance. The rest of the crew were present: Karl Swihart, Edward Kesler, and Frank Weyl. Additionally, Bob Kern was present, who is the person in the audience who had an outburst during the Indiana Election Commission, and who is since a part of the case. Orly wore the same "black lawyer suit" as always. Her hair looked like a rat's nest, as always. Before the hearing, she was wearing glasses, but abandoned them during the hearing. Also present were attorneys Kate Shelby and Jefferson Garn, for the State, as well as one or two support personnel who sat in the audience. Shelby appeared to be first chair, but Garn would also make arguments directly to the court. Unlike some judges, Judge Reid did not insist on being addressed only by one attorney. I think Orly made me pretty early on, as she turned around to glare at me, where I was sitting directly behind her entourage. I managed not to stick my tongue out at her out of respect for the dignity of the court, not her. About on time at 1:30, the judge's assistant entered from the office and announced "All rise." The judge entered and bade everyone sit. She is an unassuming woman with a kindly demeanor, and was scrupulously polite during the hearing, despite being repeatedly startled by baffling outbursts of idiocy. The court then went to appearances, and unsurprisingly, Orly managed to screw up even entering an appearance. She announced herself as plaintiff pro se, and then tried to go off

on a tangent, but was politely and firmly directed that this was just entering appearances and argument could wait. I won't note every time she did this, but she was continually attempting to start a sentence during other people's comments and arguments, but was so regally ignored that she never got any of this off the ground. The court then took appearances from the other pro se plaintiffs. In preliminary matters, the court announced the hearing concerned the 3/23 petition for declaratory and injunctive relief and three defendant motions of 4/16, the objection to Taitz's appearance, the IEC's motion to dismiss, and the motion for sanctions, as well as Orly's motion for stay under the AOPA. Judge Reid explained that any motions received after her order setting the hearing were not on the table today and would be addressed at a future hearing. Considering the outcome, that seems unlikely, but with Orly, we can be sure she'll do something else in this case. Orly started with an absurd argument that she never received a written order setting these other matters for hearing, and that it was a violation of her due process rights to move forward on anything other than her own injunction hearing. Judge Reid pointed out again that Orly was pro se and not representing anyone else, and that therefore, the other petitioners would have to address the matter individually. They could not represent each other nor could Orly represent them. This was how the rest of the hearing was conducted, although to some extent, it was a charade, as by the end of the hearing, Judge Reid was merely asking whether any of the petitioners had anything to add. Notably, and this only becomes amusing later, Orly also complained of receiving an unsigned proposed order from the AG's office. She also uttered another incoherent bunch of words with "unintelligible" somewhere in it, an example of irony if I have ever seen one. This is why the petitioners each individually made essentially the same argument, that amounted to little more than a ditto of Orly's nonsense. Attorney Shelby at this point raised the issue that in fact, the order served on Orly and all parties was explicit that "all pending motions" were the topic of today's hearing. Attorney Shelby also mentioned that Orly had filed a motion for sanctions against at least Garn. I have not confirmed whether Shelby was also the subject of this motion and didn't hear this bit clearly. In any event, the date was 6/15, after the date the hearing was set. Judge Reid confirms that none of these late-filed motions are the subject of today's hearing. Judge Reid then moves on to some preliminary "housekeeping" matters. The first of these concerns a voluminous stack of papers. It was at a distance from me, so I could not personally ascertain its size, but the judge later explicitly stated it was an inch and a half high. I will take her at her word. She stated that this stack of papers consisted of duplicative filings by Orly that the court already had, by Orly and her petitioners. Sternly, she stated that the court does not have the "space or luxury" to accommodate endless copies of the same thing. She cited the local rules, stated that attorneys and pro se parties

have the obligation to know the local rules, and to follow them. She then conveys Orly's pile of garbage back to her. I will note that while the judge explicitly directed her admonitions to both sides, while noting that petitioners were the primary malefactors, the only parties handed back piles of worthless paper were Orly and her "plaintiffs." The next matter also concerned a pile of Orly's poopies. Judge Reid was even less happy with this irregularly-shaped pile of whatever held together with rubber bands. In fact, she states that these documents, received from Orly and the parties, has been labeled "Mystery," as it is neither exhibits nor evidence, and in fact, the court has no idea what it is. Judge Reid issues another stern admonition that discovery is not to be filed with the court except pursuant to trial rules, reminding everyone again that attorneys and pro se litigants alike are required to follow the court rules. She then hands Orly back her second pile of garbage. Judge Reid then moves on to another matter. She is (rightly) irritated that parties have been submitting motions without proposed orders attached. Even more, parties have been submitting papers, against the rules, not only without proposed orders but without preaddressed envelopes with correct postage applied. Again, Judge Reid directs her admonition to both sides, but again, it is only Orly who appears to have failed utterly to obey the local rules. In fact, one of Orly's screeches, as noted earlier, was complaining about having received a proposed order from the AG's office. Judge Reid elaborates on this rule, noting that it is over 25 years old, again noting that pro se plaintiffs as well as attorneys are obligated to follow the rules. She notes that none of the filings of Orly or her FMs has complied with this rule. "That will stop." She continues, stating that noncompliant filings will not be accepted. Judge Reid's next housekeeping matter is the receipt of duplicative pleadings, basically by Orly and her FMs. She notes that FMs have walked in to her office and delivered papers, and that then, the next day, the same papers show up by FedEx or other means. She explains that this results in clerks having to perform unnecessary work, and that in processing the paperwork, they create docket entries that are basically meaningless and confusing, and that this practice must end. Similarly "extraneous" documents are useless. Again, the judge renews her demand that these parties adhere to the rules. Needless to say, this is the cry of a judge who has been flooded with endless piles of garbage from paper terrorists. Orly attempts to go into a screech about disappearing subpoenas and similar Orly word salad. This is shut down nearly immediately. Judge Reid's facial expression is that of a person who just bit into a ripe persimmon. She demands, at some time, that Orly, as well as her supposedly fellow pro se plaintiffs, admit they agree to comply by the local rules and that their noncompliant filings will not

be accepted. Amusingly, she once states that she "hears" their nods of agreement, and this is quickly corrected, but she still insists on audible acknowledgments and agreements. (Working from written notes, I can't place this in time exactly.) Finally, nearly a half hour into the hearing, we get to the so-called "substance." The first step in this direction comes from the fact that one of Orly's witless witnesses is present. Charlie White, the previous Secretary of State of Indiana, is actually present, with counsel. I have no opinion of why he is present and do not think he is a birther. His current legal situation is well known here and needs no elaboration. Orly's opinion is that she wants his testimony as to whether Indiana's current Secretary of State somehow committed a bunch of crimes by not kowtowing to Orly's lunacy. I believe that at this point, both Shelby and Garn oppose White's testimony in the case. While White has, in fact, actually shown up, with counsel, he does not testify. During arguments, the AG's office consistently opposes any witnesses during this motion to dismiss. There is something of an attempt to get White's counsel to talk to the court. This is unsuccessful, as Judge Reid does not believe either White or his counsel have formally appeared. I think the transcript will probably reflect this. Transcripts usually indicate formal appearances. This is about 2:04. The State's argument is that this is a petition for judicial review of an agency decision, and that under the AOPA, this is limited strictly to the record itself. The State also argues that the plaintiffs in this case simply never adhered to the proper procedure for challenging an agency decision. Orly's response, devoid of legal argument, is to screech that Attorney Garn was involved in the prosecution of White, and that this is why he doesn't want White testifying. Orly also makes a lengthy screech that her FAC fixes every problem with her original defective complaint. This incoherent attempt at an argument eventually ends. It also includes an attempt to argue that since Orly, in her FAC, tried to reframe her defective agency decision challenge as fraud, negligence, and a bunch of other nonsense, she should be allowed to ignore the rules. Judge Reid clearly views this issue the same way as the defense. She asks for legal arguments on this issue, why plaintiffs should be allowed to proceed in their case challenging an agency decision without following the rules. At this point, we get into another polling of the other supposedly pro se plaintiffs. Bob Kern, a bizarre character, notes that he is required to know the law, but then states that he doesn't. After an attempt to start rambling, Judge Reid shuts it down, pointing out that this is not a legal argument. Weyl complains that the IEC were big meanies and didn't listen much to birfers. He objects to their "tone." Needless to say, this whining isn't a legal argument either. Judge

Reid makes a "time-out" signal with her hands and ends this nonsense. Kesler then actually does what nobody, including Orly, has even attempted. He argues that the IEC violated its own rules in disregarding evidence, refused to listen to evidence, and made a bad decision. Echoing my own private thoughts, the judge comments that this is the "best argument I've heard so far." While his attempt to make an argument included the Soetoro/Soebarkah nonsense and other birth certificate stuff, it was in fact the best articulation of the birther position in this case. I'd say look to the transcript. Swihart then attempted to go off on a rant about the Social Security number. He was instructed that he needed to come up with a legal argument about the actual question, that is, why shouldn't this case be dismissed for not following proper procedure. Swihart also references the "200 pages of evidence" that we already know as 200 pages of inadmissible bullshit. This ends quickly. Counsel for the AG points out that the only people with standing in this case are Weyl, Swihart and Kessler. Orly isn't even a citizen of Indiana, just an out of state lunatic (okay that bit is me). Bob Kern was just a random audience member at the IEC hearing. Where's his standing? AG counsel notes that there is a podcast of the IEC hearing. AG recaps the original argument that this case simply was not properly brought. As the AG noted before (and I did not mention since this boring real law stuff does not contribute to the freak show), the petitioners/plaintiffs absolutely failed to comply with the AOPA in seeking judicial review. Most critically, the Ps neither submitted nor attempted to obtain the agency record. Judicial review of an agency decision, clearly, is impossible without the agency record. The obligation to obtain this record is upon the plaintiff. Should the agency be obdurate, the plaintiff could file for an extension. None of these Ps did anything remotely like that. There is no indication they even tried. At this point, before Orly figures out the writing is on the wall, her own FMs start asking for extensions of time. Orly eventually echoes these. Bob Kern, whose standing apparently stems from being an outraged audience member at the IEC hearing (his disruption of the hearing is noted in my report and in the record), is the one who first brings this up, again admitting that he doesn't know the law. By this point, time has already run out. If you've noted the time, we're at around 2:30 p.m. at this point. The judge has noted the shortness of time, and is not interested in extending the hearing. The judge notes that the hour is up and the hearing is about to be over, but extends time a bit. Orly starts sputtering and jabbering, starting out with "This is a joke!" She also calls

the court "totally biased." She then starts screeching that she paid airfare and put up her so-called witnesses in a hotel, but they weren't allowed. This seems to indicate to me that the exclusion of Orly's witnesses was prior to the hearing. Orly then screeches some more that the court already made its decision before the hearing, and then emits another series of high-pitched screeches devoid of semantic content. Judge Reid's response is to place her chin on her hand in the closest thing I have seen to a judicial facepalm. Orly's idiotic payment of airfare and putting up her cadre of swindling liars in hotels gets zero sympathy. No, they're not allowed. Tough. Judge Reid moves on to statements from other supposed pro se plaintiffs. Kern offers an incoherent anecdote about a failed run for Congress in '98, and how he was kicked off the ballot in a similar ballot challenge. He offers tales of how he has often attended IEC hearings, which is consistent with my view of him as one of these random nutcases who always shows up to these things. He states that he challenged his exclusion from the ballot successfully, which makes him more competent than Orly, and also states, and I don't necessarily believe it, that he had to produce his Social Security card and birth certificate. During Kern's bizarre statement, Orly is turning around to make faces at him. I'm not sure why. He was doing a better job than she was. In fact, Kern brought up the only possibly successful idea of the whole team. In speaking for his fellow pro se plaintiffs, Kern stated again that he didn't know the law, and then suggested the court should help people like him along. The judge visibly shook her head no and informed Kern that no, courts absolutely cannot give legal advice to parties. Kern asks for time to "get it together." Orly gets another shot and complains that her critical and fatal failures are "minor technical deficiencies" and, amusingly, after making faces during Kern's attempts at arguments, basically requests a continuance to get it together. Now we are at 2:41, over ten minutes past when Judge Reid clearly indicated the hearing would be over. Curtly ending the proceedings, she issues her decision on the record. The case is dismissed for failure to adhere to the proper procedures. The request for judicial review is invalid. The parties failed to comply with the rules. As a result, the court lacks jurisdiction. The court's hands are tied, because contrary to the claims of petitioners, the

court is obligated to follow the law. At 2:43, the final statement is the case is dismissed. The defendants are to provide the court with an order within 10 days. The court reiterates that this is to be done properly, echoing earlier statements. I leave pretty soon. Orly huddles with her group. I was close enough to hear other stuff, but will only comment that Orly's loud screeching included the word "corrupt" repeatedly, statements like she "can't believe how corrupt they are," and other unlawyerly behavior. I'm sure I got the time wrong and some events out of sequence. The transcript (or video) will clear these up. On the way down the elevator, I congratulated the state's attorneys and wished them luck on the motion for sanctions. With luck, Orly's subsequent conduct will give them reason to renew this motion.

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