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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-WS CIVIL DIVISION

JERRY COLLETTE, v. Plaintiff,

BARACK OBAMA, STATE EXECUTIVE COMMITTEE OF THE FLORIDA DEMOCRATIC PARTY, and DOES 1 THROUGH 1000, INCLUSIVE, Defendants. DEFENDANT FLORIDA DEMOCRATIC PARTYS 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 Amended Complaint and, in support thereof, state: Preliminary Statement The amended complaint challenges the eligibility of Barack Obama of Barack Obama to be listed on Florida ballots as a candidate for President of the United States. The thrust of the amended complaint is that President Obama is foreign born and that [n]o matter where he was born, 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 Obamas citizenship has long been settled. He is a natural born citizen, having been born in 1961 in Honolulu, Hawaii to his mother, the late Ann Dunham, who was indisputably a citizen of the United States. Therefore, he satisfies the requirements of Article II, Section 1 of the Constitution of the United States; he is eligible to serve as President of the United States; and he is eligible to stand for re-election to that office. Plaintiffs allegations 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 the

United 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 person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizens of the United 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 John McCain were natural born citizens because persons born within the borders of the United States are natural born citizens for the Article II, Section 1 purposes, regardless of the citizenship of 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 Plaintiffs baseless assertions regarding the Presidents eligibility, the

complaint fails to state a cause of action because the Democratic Party has a constitutional right to nominate 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 affirm
the 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 partys ideologies 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 this constitutionally protected candidate selection process, and Defendants cannot be enjoined from advancing President Obamas candidacy. 3. Defendant FDP moves to dismiss the complaint for failure to state a cause of action

inasmuch 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 political purposes. 4. Defendant FDP moves to dismiss the complaint for lack of jurisdiction, in that the

complaint 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 could monetary damages be warranted for the type of injury alleged by Plaintiff. Thus, Plaintiffs claim for damages must be dismissed. 5. Plaintiffs 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 join

indispensible 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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7.

The amended complaint seeks that Defendants be enjoined from having the name

of defendant Obama, as a candidate for United States President: a) Printed on ballots in Florida; or b) Listed or counted as write in candidate in Florida. See Amended Complaint, Prayer for Relief, p.7. 8. Under Florida law, [e]ach political party of the state shall be represented by a state

executive committee. See Section 103.091(1), Florida Statutes. Plaintiff has alleged that the Defendant FDP, under Florida law, plays a key role in determining who is listed as the Democratic Party candidate for President of the United States on the Florida ballot. See Amended Complaint, 4. 9. Section 103.021(1), Florida Statutes, provides as follows:

103.021 Nomination for presidential electors.Candidates for presidential electors shall be nominated in the following manner: (1) The Governor shall nominate the presidential electors of each political party. The state executive committee of each political party shall by resolution recommend candidates for presidential electors and deliver a certified copy thereof to the Governor before September 1 of each presidential election year. The Governor shall nominate only the electors recommended by the state executive committee of the respective political party. Each such elector shall be a qualified elector of the party he or she represents who has taken an oath that he or she will vote for the candidates of the party that he or she is nominated to represent. The Governor shall certify to the Department of State on or before September 1, in each presidential election year, the names of a number of electors for each political party equal to the number of senators and representatives which this state has in Congress. (2) The names of the presidential electors shall not be printed on the general election ballot, but the names of the actual candidates for President and Vice President for whom the presidential electors will vote if elected shall be printed on the ballot in the order in which the party of which the candidate is a nominee polled the highest number of votes for Governor in the last general election. 10. Pursuant to Florida law, it is the duty of the Governor to nominate the presidential

electors of each political party as recommended by the state executive committee of each political party.
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11.

Once certified by the Governor, it is the duty of the Department of State to include

the names of the actual candidates for President and Vice-President on the general election ballot.

See Section 103.021(2), Florida Statutes.


12. Thus, the Governor of the State of Florida and the Department of State are

indispensible parties to this action. Motion to Dismiss for Improper Venue or, in the alternative, to Transfer Venue to Leon County, Florida 13. Defendant FDP moves to dismiss the amended complaint for improper venue, in

that none of the named defendants are residents of Pasco County, Florida. 14. The amended complaint states:

3. Defendant State Executive Committee of the Florida Democratic Party is the governing body of the Florida Democratic Party, and is sued that capacity. 4. Under the Florida election code, defendant State Executive Committee of the Florida Democratic Party plays a key role in determining who is listed as a Democratic Party candidate for President of the United States on Florida Ballots and, accordingly, is an indispensable party to the remedies sought, even if the court should find that it has no liability with respect to causes of action alleged below. 5. Plaintiff does not know the true names and capacities of the defendants sued as DOES 1 through 1000, inclusive, and will amend this complaint to allege their true names and capacities when ascertained. (Emphasis in Amended Complaint.) 15. The filing of a John Doe complaint, without more, does not commence an action

against a real party. Gillam v. Smart, 809 So. 2d 905, 908 (Fla. 1st DCA 2002), citing to Grantham

v. Blount, Inc., 683 So. 2d 538 (Fla. 2d DCA 1996). Inasmuch as naming John Doe defendants
does not initiate an action, likewise, it does not establish venue. 16. There is no allegation that any of the defendants reside in Pasco County or that

there is any property which is the subject of the litigation located in Pasco County.

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17.

Plaintiff alleges that [t]his is an action for declaratory judgment [and] injunctive

relief . See Amended Complaint, 55, 66. A suit for declaratory relief does not itself constitute a cause of action for venue purposes, it is the underlying relief which determines venue.

Royal Jones & Assoc., Inc. v. Kaplan Ind, Inc., 575 So. 2d 309, 310 (Fla. 2d DCA 1991); Oliver v. Severance, 542 So. 2d 408, 410 (Fla. 1st DCA 1989). In the amended complaint, the Plaintiff
prays that Defendants be enjoined from having the name of defendant Obama, as a candidate for United States President: a) Printed on ballots in Florida; or b) Listed or counted as write in candidate in Florida. See Amended Complaint, Prayer for Relief, p.7. Pursuant to Section 103.021, Florida Statutes, these actions will take place in Tallahassee, Leon County, Florida, in conjunction with the Governor of the State of Florida and the Department of State. 18. Plaintiff alleges that [t]his is an action for money damages. See Amended

Complaint, 55, 66. In the amended complaint, Plaintiff seeks [m]oney damages in an amount to be determined. See Amended Complaint, Prayer for Relief, p.7. Assuming, but not

conceding, that a cause of action for damages exists, [f]or venue purposes in a tort action, a cause of action is deemed to accrue where the act creating the right to bring the action occurred.

Soowal v. Marden, 452 So. 2d 625, 626 (Fla. 3d DCA 1984). Pursuant to Section 103.021, Florida
Statutes, the actions required to list Barack Obama on Florida ballots for President of the United States will take place in Tallahassee, Leon County, Florida, and a cause of action, if any, will accrue in Tallahassee, Leon County, Florida. 19. Thus, the Amended Complaint should be dismissed for improper venue or, in the

alternative, be transferred to Tallahassee, Leon County, Florida.

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Conclusion WHEREFORE, for the reasons stated herein, the amended complaint should be dismissed as to the Defendant State Executive Committee of the Florida Democratic Party. Respectfully submitted on this 11th day of May, 2012, by:

_________________________ Mark Herron Florida Bar No. 199737 Joseph Brennan Donnelly Florida Bar. No. 268895 Robert J. Telfer, III Florida Bar. No. 128694 Messer, Caparello & Self, P.A. Post Office Box 15579 Tallahassee, FL 32317 Telephone (850) 222-0720 Facsimile: (850) 558-0659 Stephen F. Rosenthal Florida Bar No. 131458 Podhurst Orseck, P.A. 25 West Flagler Street, Suite 800 Miami, FL 33130-1720 Telephone (305) 358-2500 Facsimile: (305) 358-2382 Richard B. Rosenthal Florida Bar No. 184853 The Law Offices of Richard B. Rosenthal, P.A. 169 East Flagler Street, Suite 1422 Miami, FL 33131 Telephone (305) 779-6097 Facsimile: (305) 779-6095 Attorneys for Defendant State Executive Committee of the Florida Democratic Party

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. mail on this 11th day of May, 2012, to: Jerry Collette Post Office Box 3664 Holiday, FL 34692 __________________________ MARK HERRON

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