IN - 2012-10-xx - TvIEC et al - Proposed ORDER ON DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED

7/31/2019 IN - 2012-10-xx - TvIEC et al - Proposed ORDER ON DEFENDANTS MOTION TO DISMISS SECOND AMENDED

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STATE OF INDIANA ) IN THE MARION SUPERIOR COURT

) SS:

COUNTY OF MARION ) CAUSE NO. 49D14-1203-MI-012046

ORLY TAITZ, KARL SWIHART, )

EDWARD KESLER, BOB KERN, )and FRANK WEYL )

)

Plaintiffs, )

)

v. )

)

INDIANA ELECTION COMMISSION, )

DEPUT Y 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. )

ORDER ON DEFENDANTS MOTION TO DISMISS SECOND AMENDED

COMPLAINT

Defendants, through their attorneys, moved this Court to Dismiss Second Amended

Complaint. Argument was heard by this Court on October 22, 2012. The Court -- having

reviewed the filings submitted by both parties, having reviewed relevant authority, and having

heard argument from both parties -- now finds that Defendants Motion to Dismiss Second

Amended Complaint is GRANTED. Specifically, this Court makes the following findings and

conclusions relative to Defendants Motion to Dismiss Second Amended Complaint.


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PROCEDURAL HISTORY

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.1

2. The IEC unanimously denied Plaintiffs challenge on February 24, 2012.

3. The review of the decision of the IEC is governed by the Administrative Orders

and Procedures Act (AOPA). See I.C. 4-21.5, etseq. Seealso I.C. 4-21.5-5-1 (AOPA

establishes the exclusive means for judicial review of an agency action); Indiana State Board

of Health Facility Admnrs 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. On March 23, 2012, Plaintiffs filed a Petition for Emergency Injunctive Relief

and Petition for Declaratory Relief with this Court to challenge the decision of the IEC. 2

1 Plaintiff Taitz did not technically file a challenge before the IEC challenging the

qualifications; however, Plaintiff Taitz appeared before the IEC and provided information andevidence to the IEC. Plaintiff Taitz is a party to this litigation and has represented the other

plaintiffs as their counsel. Accordingly, Plaintiffs Taitz is in privity with the other plaintiffs who

filed challenges (before the IEC) to the constitutional qualifications of President Obama. SeeSmall v. Centocor, Inc., 731 N.E.2d 22, 27-28 (Ind. Ct. App. 2000), rehg 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 For the benefit of Plaintiffs, this Court construed Plaintiffs filing as a Verified Petition

for Judicial Review as that was the only means by which the decision of the IEC could bereviewed.


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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.

3

As pertinent, Plaintiffs argued that

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

prejudice. Plaintiffs tried to have this Court allow them to continue litigating the challenge to

President Obamas constitutional qualifications.

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 Obamas 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,

which dismissed -- with prejudice and on the merits -- their challenges to the constitutional

3 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,

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 Plaintiffsthroughout this litigation, are scurrilous.


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qualifications of President Obama. 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 re-litigating 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 Fedn of Teachers and Natl Ed. Assn-S. Bend, 389 N.E.2d 23, 35 (1979)

([t]he principles ofres 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.

4

In direct

contravention of this Courts August 17, 2012 Order, Plaintiffs named additional defendants

(Garn and Shelby), included an additional plaintiff (Ripley, who had previously been denied

intervention), and asserted additional claims (for example, constitutional). By this pleading,

Plaintiffs also try to reassert their 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.5

4 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 IndianaSecretary of State. The docket reflects that those summonses were issued on September 13,

2012.5

At the October 22, 2012 trial, Plaintiffs argued that they were presenting a challenge tothe 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 inthe 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, inBayh, the Board deferred to the trial courts hearing of the matter regarding the residence

requirements of a person seeking state office. Id. at 1314. Nevertheless, the Court inBayh didnot preclude the Board from performing its customary duties. Id.


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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. Plaintiffs filed a Motion for Preliminary Injunction on September 4, 2012.

13. On September 26, 2012, a hearing was held on Plaintiffs request for a

preliminary injunction to remove President Obama from the Indiana ballots. The Court denied

Plaintiffs motion due to their failure to present any evidence in support of their request.

14. State Defendants filed a Motion to Dismiss on October 18, 2012. Oral argument

was heard by this Court on October 22, 2012. In the end, Plaintiffs claims all derive from

allegations that President Obama is not constitutionally qualified to be President of the United

States and State Defendants have not sided with Plaintiffs in their quest.

LEGAL ANALYSIS/CONCLUSIONS

A. Applicable Legal Standards Of Review

15. This Court possesses two types of jurisdiction, subject and personal. See Stewart

v. Vulliet, 867 N.E. 2d 226, 230 (Ind. Ct. App. 2007) (citing K.S. v. State. 849 N.E.2d 538, 540

(Ind. 2006)).

16. Subject matter jurisdiction is the power of a court to hear a particular type of case,

and is not dependent upon the details of the pleadings or the correctness of the courts decision.

See Indiana State Board of Health Facility Administrators, v. Werner, 841 N.E.2d 1196, 1205

(Ind. Ct. App. 2006) trans. denied, 860 N.E.2d 594 (Ind. 2006)(Table).

17. A motion to dismiss for lack of subject matter jurisdiction is properly filed

pursuant to Indiana Rule of Trial Procedure 12(B)(1). When a trial court is confronted with a

motion to dismiss pursuant to Ind. T.R. 12(B)(1), as it is here, the court is required to determine


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whether it has the power to adjudicate the action. Doe by Roe v. Madison Ctr. Hosp., 652

N.E.2d 101, 103 (Ind. Ct. App. 1995). Included within subject matter jurisdiction is the issue of

standing. SeeMidwest Psychological Center, Inc. v. Indiana Department of Administration, 959

N.E.2d 896, 902-03 (Ind. Ct. App. 2011).

18. Personal jurisdiction, on the other hand, is the power of the court to bring a person

into its adjudicative process and render a valid judgment over him or her. See In re Estate of

Baker, 837 N.E.2d 603, 608 (Ind. Ct. App. 2005). Indiana Rule of Trial Procedure 4 states, The

court acquires jurisdiction over a party or person who under these rules commences or joins in

the action, is served with summons or enters an appearance, or who is subjected to the power of

the court under any other law. See also Hardy v. Maldonado, 632 N.E.2d 381, 383 (Ind. Ct.

App. 1994). A motion to dismiss for lack of personal jurisdiction is properly filed pursuant to

Indiana Rule of Trial Procedure 12(B)(2), 12(B)(4), and/or 12(B)(5).

19. And, pursuant to Ind. T.R. 12(B)(6), this Court will dismiss a complaint which

fails to state a claim on which relief may be granted. When faced with a motion to dismiss, this

Court must assess the sufficiency of the pleading and must determine whether the allegations

establish any set of circumstances under which a plaintiff would be entitled to relief. SeeTrail v.

Boys & Girls Clubs of Northwest Indiana, 845 N.E.2d 130, 134 (Ind. 2006). While this Court

should accept, as true, the facts pled it need not accept as true conclusory, nonfactual assertions

or legal conclusions. McCalment v. Eli Lilly & Co., 860 N.E.2d 884, 890 (Ind. Ct. App. 2007)

(citingRichards & ONeil, LLP v. Conk, 774 N.E.2d 540, 547 (Ind. Ct. App. 2002)).

B. Plaintiffs Lack Standing

20. 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.


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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)). Taitz is not an

Indiana citizen or a registered voter in Indiana. Thus, President Obamas appearance on the

Indiana ballot does not present any cognizable injury to her as a citizen of California. Because

Taitz is not a registered Indiana voter and because Taitz seeks to have President Obama removed

from the Indiana ballot, Taitz does not have standing or the statutory authority to bring her

claims. See, e.g., Pence, 652 N.E.2d at 488.

21. Plaintiff Valeria Ripley must also be dismissed as a plaintiff. Plaintiff Ripley,

through Taitz, requested permission to intervene in this cause, and that request was denied on

August 25, 2012. By claiming Plaintiff status in this matter, Ripley is in direct contravention

with this Courts order. Ripley is also dismissed as a plaintiff.

22. Further, all Plaintiffs lack standing.

23. As it relates to their claims of negligence, breach of fiduciary duty and fraud,

Plaintiffs do not allege any way in which the purported actions of State Defendants (not adopting

their position relating to President Obama) harms them. At most, they have asserted some type

of public harm regarding the inclusion of President Obama on the Indiana ballot and the failure

to prosecute; however, harm to the public does not translate to harm that can be redressed

through common law tort claims against State Defendants.

24. Moreover, 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 affectedby 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 otherlegal relations thereunder.


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I.C. 34-14-1-2.

25. A critical showing that Plaintiffs must make, therefore, is that they have standing

to pursue their declaratory judgment claim. SeeHibler 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). SeealsoLittle 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).

26. Where, as here, Plaintiffs are not the object of the government action [they]

challenge[], standing is ordinarily substantially more difficult to establish. Lujan v.

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

27. Plaintiffs failed to allege any actual injury resulting from State Defendants

conduct. Courts have routinely held that litigants similarly situated to Plaintiffs lack standing to

challenge the qualifications of one running for President of the United States. SeeBerg v.

Obama, 574 F. Supp. 2d 509, 515-19 (E.D. Pa. 2008) (dismissing challenge to President

Obamas 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), affd, 332 Fed. Appx. 640 (D.C. Cir. Sept. 8, 2009).6

6 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


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28. Therefore, all Plaintiffs have not sufficiently alleged standing and, as a result,

Plaintiffs Second Amended Complaint must be dismissed with prejudice.

B. The Court Lacks Personal Jurisdiction With Respect To Garn And Shelby

29. In the Second Amended Complaint, Plaintiffs sued Garn and Shelby. Plaintiffs

were not granted leave to file any claims against Garn and Shelby. Notwithstanding this

defiance of the Courts order, Plaintiffs failure to serve summonses on Garn and Shelby leaves

this Court without personal jurisdiction over Garn and Shelby as Defendants. Indiana Rule of

Trial Procedure 3 establishes the three actions that a plaintiff must take in order to initiate a civil

suit: (1) a plaintiff must file a complaint or such equivalent pleading or document as may be

specified by statute; (2) a plaintiff must submit the filing fee or order waiving filing fee; and (3)

a plaintiff must give, where service of process is required, . . . as many copies of the complaint

and summons as are necessary to the trial court. Plaintiffs have not submitted summonses for

Garn and Shelby to this Court for service on Garn and Shelby, nor have Plaintiffs submitted

summonses directly to Garn and Shelby. Because Plaintiffs to this day have failed to properly

initiate their claims against Garn and Shelby pursuant to Trial Rules 3 and 4, Garn and Shelby

should be dismissed pursuant to Trial Rules 12(B)(2), 12(B)(4), and 12(B)(5).

C. Plaintiffs Improperly Added Parties And Claims To Their Amended Complaint

30. This Court has repeatedly admonished Plaintiffs for their failure to comply with

the Trial Rules, the Local Rules, and Orders of this Court and this Court has warned Plaintiffs

grounds) the decision by Indiana to place the republican and democratic candidates on the balloteven 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, Plaintiffsare not candidates for the presidency; thus, Fulani has no applicability to this litigation.


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that their continued failure to comply with the Trial Rules, the Local Rules and Order of this

Court could result in dismissal of this action.

31. This Courts August 17, 2012, Order was clear. Plaintiffs challenge to the

constitutional qualifications of President Obama was dismissed with prejudice and on the merits.

Nevertheless, Plaintiffs Weyl, Swihart, Taitz, Kern, and Kesler were granted leave to file a

Second Amended Complaint alleging causes for fraud, breach of fiduciary duty and negligence

against the IEC and the Indiana Secretary of State. The Second Amended Complaint, however,

includes a new Plaintiff, several new Defendants, and a litany of claims -- many of which run far

afield and in direct contravention of the August 17th Order. Valeria Ripley was denied

permission to intervene in this matter; however, she now appears as a plaintiff. Plaintiffs were

not granted permission to add additional Defendants to this matter, yet they sued Garn, Shelby, a

radio station, and a radio talk show host. Finally, Plaintiffs were not granted leave to file any

claims other than their allegations of breach of fiduciary, fraud, and negligence by the IEC;

however, they added constitutional, criminal, other tort claims, and seek declaratory and

injunctive relief.

32. Because Plaintiffs Second Amended Complaint directly violates this Courts

Order, it is dismissed with prejudice.7

7In addition, Plaintiffs include, in their Second Amended Complaint, exhibits with an

unredacted Social Security number at least three times, claiming it is President Barack Obamas

number. See, e.g., Plaintiffs Ex. 7. Indiana has strict rules for protecting the confidential

information of individuals. Indiana Trial Rule 5(G) provides that when only a portion of adocument contains information excluded from public access pursuant to Administrative Rule

9(G)(1), said information shall be omitted [or redacted] . . . Indiana Administrative Rule

9(G)(1)(d) lists a complete Social Security Numbers of living persons as information excluded

from public access. The unredacted inclusion of the numbers is another clear violation of theIndiana Trial and Administrative Rules.


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D. Plaintiffs Challenge To The Qualifications Of A Candidate For President Of The

United States Is Not Properly Before This Court33. Plaintiffs clear motive in this case is to have this Court declare that President

Obama is not qualified for the national office of President of the United States and to order the

State Defendants to remove him from the Indiana ballot. That issue was decided by the IEC,

whose decisions and any appeals thereon are governed by AOPA. This Court already ruled on

Plaintiffs claims to that effect in this cause number just a few months ago, Plaintiffs claims are

barred by AOPA and the doctrines of collateral estoppel and res judicata.

34. Plaintiffs cannot circumvent AOPA. Plaintiffs filed challenges with the IEC

seeking to have President Obama removed from the Indiana ballot for the national office of

United States President. The IEC unanimously denied Plaintiffs challenges on February 24,

2012. IECs decisions are governed by AOPA; thus, Plaintiffs only remedy was to file a

petition for judicial review in accordance with Indiana Code 4-21.5-5 et seq. Seealso I.C. 4-

21.5-5-1 (AOPA establishes the exclusive means for judicial review of an agency action);

Indiana State Board of Health Facility Admnrs 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). Injunctive and

declaratory relief and claims for damages were not and are not available to Plaintiffs because

AOPA does not allow a court sitting in judicial review to grant such relief. Plaintiffs failed to

comply with AOPA. Consequently, this Court dismissed, with prejudice, Plaintiffs Petition and


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granted Plaintiffs leave to file only their claims for breach of fiduciary duty, fraud, and

negligence against the IEC and the Secretary.

35. Plaintiffs apparently chose to not appeal this Courts decision. Thus, the doctrines

of collateral estoppel and res judicata apply to bar re-litigation of President Obamas

qualifications for national office and appearance on the Indiana ballot because those issues were

necessarily adjudicated in a former suit and the same issue is presented again here. 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)); see also S. Bend Fedn of

Teachers and Natl Ed. Assn-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).

E. Plaintiffs Failed To File A Tort Claims Notice; Thus, Their Claims Are Barred

36. The Second Amended Complaint alleges, in conclusory fashion, various tort

claims against State Defendants. In short, Plaintiffs aver that the IEC, the Indiana Secretary of

State, Garn and Shelby have duties regarding elections (and prosecutions) and breached these

purported duties.

37. Plaintiffs failed to provide any indication that they notified the State or this Court

of their claims by tort claim notice. The ITCA requires that a claim against the state, its

agencies, or offices -- including judicial offices -- is barred unless notice is filed, with the

Attorney General or the agency involved, within 270 days after the loss occurs. See I.C. 34-

13-3-6 (a).


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38. As Plaintiffs failed to file the tort claims notice required by the ITCA, their claims

against the State Defendants are dismissed in accordance with Indiana Rule of Trial Procedure

12(B)(6), with prejudice.

F. Plaintiffs Tort Claims Are Barred By The Tort Claims Act

39. The ITCA, Indiana Code 34-13-3 et seq., governs tort actions filed against state

employees and provides for the immunity of the state and its employees in the conduct of state

business. [The ITCA] allows government employees acting in the scope of their employment

the freedom to carry out their duties without fear of litigation. Bushlong v. Williamson, 790

N.E.2d 467, 472 (Ind. 2003). The ITCA, thus, bars litigation of tort claims against individual

state employees acting in the broad scope of the governmental entitys employment. See id.

40. All of Plaintiffs allegations against the State Defendants give rise to immunity

under the ITCA. Each State Defendant was acting within his or her scope of employment with

regard to Plaintiffs challenges and subsequent lawsuit. No misrepresentations were made by the

State Defendants and the State Defendants acted in accordance with Indiana law. The ITCA

provides that the State Defendants are not liable for any harm arising out of the initiation of or

failure to initiate a judicial proceeding, the enforcement of or failure to enforce a law, actions

taken in good faith pursuant to authority under a statute, the acts of any other Defendant, the

issuance of an order or authorization, or an unintentional misrepresentation. See I.C. 34-14-3-

3. Consequently, the State Defendants are immune from Plaintiffs claims and their claims are

dismissed pursuant to Indiana Rule of Trial Procedure 12(B)(6), with prejudice.

41. Even if Plaintiffs had set forth allegations containing the language within Indiana

Code 34-13-3-5(c) and a reasonable factual basis, there is no evidence that the State

Defendants have been malicious or that their actions were outside the scope of her employment


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or constituted anything other than decisions in accordance with the law and the best interest of

the State. In the end, Garn and Shelby were doing their job by representing state entities and a

the fact that State Defendants, in their discretion, did not agree with Plaintiffs claims regarding

President Obama does not subject them to liability under any tort theory that has been pled. As a

result, the Indiana Tort Claims Act bars Plaintiffs from proceeding against the State Defendant

on the tort claims contained within the Second Amended Complaint.

G. The Second Amended Complaint Fails To Factually Allege Tort Claims

42. Plaintiffs have failed to sufficiently allege their tort claims in their Second

Amended Complaint. Because the Second Amended Complaint fails to put the State Defendants

on notice of Plaintiffs claims, their Complaint must be dismissed.

43. Plaintiffs appear to imply some general duty State Defendants owe Plaintiffs

(regarding the election process in Indiana) which provides Plaintiffs a cause of action. Plaintiffs

do not have private causes of action for their tort claims. Even assuming some general duty

owed the public pursuant to statutory authority conferred on State Defendants, Plaintiffs have not

demonstrated that they have a private cause of action based on purported violations of the

Election Code.

44. Specifically, where a legislative body does not explicitly provide a private right

of action to enforce the provisions of a particular statute, courts are frequently asked to find that

the Legislature intended that a private right of action be implied. Blanck v. Ind. Dep't of Corr.,

829 N.E.2d 505, 509 (Ind. 2005) (citations omitted). The general formulation used by courts to

determine whether a particular cause of action exists, is that a private cause of action generally

will be inferred where a statute imposes a duty for a particular individual's benefit but will not be

where the Legislature imposes a duty for the public's benefit. Id., citing Americanos v. State,


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728 N.E.2d 895 (Ind.Ct.App.2000), transfer denied, 741 N.E.2d 1254. Plaintiffs have not, and

are unable, to point to any statute that provides any sort of private cause of action related to what

they claim in any of their complaints. Thus, their tort claims are dismissed.

45. Further, Plaintiffs claims failed to adhere to the notice pleading rule -- Indiana

Rule of Trial Procedure 8(A). See Ind. R. Trial P. 8(A); Butler ex. rel. Estate of Butler v.

Kokomo Rehab. Hosp., Inc., 744 N.E.2d 1041, 1047 (Ind. Ct. App. 2001). Although the notice

pleading rule does not require a party to articulate in detail its theory of its case, it does require

that the party state the operative facts upon which its claim or defense is grounded. See Ind. T.R.

8(A). A complaint's allegations are sufficient if they put a reasonable person on notice as to why

plaintiff sues. Capitol Neon Signs, Inc., et al v. Indiana National Bank, 501 N.E.2d 1082, 1085

(Ind. Ct. App. 1986).

46. Here, Plaintiffs claims failed to put the State Defendants on notice of how or why

they are liable for a breach of fiduciary duty. A claim for breach of fiduciary duty requires

proof of three elements: (1) the existence of a fiduciary relationship; (2) a breach of the duty

owed by the fiduciary to the beneficiary; and (3) harm to the beneficiary. York v. Fredrick, 947

N.E.2d 969, 978 (Ind. Ct. App. 2011), citingFarmers Elevator Co. of Oakville, Inc. v. Hamilton,

926 N.E.2d 68, 79 (Ind.Ct.App.2010). Plaintiffs fail to state or properly plead a tort of breach of

fiduciary duty. Indeed, breach of fiduciary duty is a tort claim for injury to personal property.

Id. Plaintiffs fail to state what personal property of Plaintiffs the Defendants held in trust.

Plaintiffs fail to allege any fiduciary duty owed by State Defendants toward them or how such a

duty was breached and how they were harmed. In short, the Second Amended Complaint fails to

state a claim for breach of fiduciary duty.


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47. The tort of negligence consists of three elements: (1) a duty owed to the plaintiff

by the defendant; (2) a breach of that duty by the defendant; and (3) injury to the plaintiff

proximately caused by that breach. Hayden v. Paragon Steakhouse, 731 N.E.2d 456, 458 (Ind.

Ct. App. 2000), citing Bloemker v. Detroit Diesel Corp., 720 N.E.2d 753, 756

(Ind.Ct.App.1999). Plaintiffs fail to provide any facts that would support a finding that all three

elements were met. There is not allegations of any duty owed toward Plaintiffs (as opposed to

some duty perhaps owed to the public), there is no fact alleged to show a breach of any duty, and

there is no fact averred to show that Plaintiffs were harmed because of that breach. In short, the

Second Amended Complaint fails to state a claim for negligence.

48. Furthermore, Plaintiffs failed to sufficiently allege a claim for fraud against the

State Defendants. A party must prove five elements to sustain an action of actual fraud: 1) that

there was a material misrepresentation of past or existing fact; 2) that the representation was

false; 3) that the representation was made with knowledge or reckless ignorance of its falsity; 4)

that the complaining party relied on the representation; and 5) that the representation proximately

caused the complaining party's injury. Wells v. Stone City Bank, 691 N.E.2d 1246, 1250 (Ind. Ct.

App. 1998) (citing Rice v. Strunk, 670 N.E.2d 1280, 1289 (Ind. 1996)). The elements of

constructive fraud are: 1) a duty existing by virtue of the relationship between the parties; 2)

representations or omissions made in violation of that duty; 3) reliance thereon by the

complaining party; 4) injury to the complaining party as a proximate result thereof; and 5) the

gaining of an advantage by the party to be charged at the expense of the complaining party. Id. at

1250-51.

49. With respect to the fraud claim, Plaintiffs have the additional burden of

specifically averring the circumstances constituting fraud pursuant to Indiana T.R. 9(B), stating


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the time, the place, the substance of the false representations, the facts misrepresented, and the

identification of what was procured by the fraud. Cunningham v. Associates Capital Services

Corp., 421 N.E.2d 681, 683 (Ind. Ct. App. 1981). Plaintiffs do not provide notice of a claim of

fraud or state with particularity any facts relevant to a claim of fraud; indeed, the few facts

mentioned in the Second Amended Complaint have no relationship to any of the elements of

fraud. In short, Plaintiffs do not allege, among other things, any particular misrepresentation by

State Defendants or how they have detrimentally relied on any purported misrepresentation or

any harm to them. Thus, the Second Amended Complaint fails to state a claim for fraud.

50. Similarly, Plaintiffs claims that one or more members of the IEC defamed one or

more of the Plaintiffs also fail to meet the notice pleading standard. A defamatory

communication is defined as one that tends so to harm the reputation of another as to lower him

in the estimation of the community or to deter third persons from associating or dealing with

him. Doe v. Methodist Hospital, 690 N.E.2d 681, 686 (Ind. 1997) (quoting Restatement

(Second) of Torts 559 (1977)). See alsoNear East Side Community Org. v. Hair, 555 N.E.2d

1324, 1330 (Ind. Ct. App. 1990); Cochran v. Indianapolis Newspapers, Inc., 372 N.E.2d 1211,

1217 (Ind. Ct. App. 1978). No allegations of defamatory statements have been made; thus, the

Second Amended Complaint fails to state a claim for defamation.

51. Because the Second Amended Complaint fails to allege a sufficient factual basis

for any of the tort claims, it must be dismissed with prejudice.8

H. The State Defendants Are Immune From Plaintiffs Claims52. The State Defendants are further immune from Plaintiffs claims that they should

have allowed Plaintiffs claims against them to proceed unchallenged, that Garn and Shelby

8Plaintiffs refer to the doctrine of res ipsa loquitor. This is not a cause of action but a

concept of negligence.


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should not have fulfilled their duties as Deputy Attorneys General in defending the IEC and the

Indiana Secretary of State, and that one or more State Defendants should have prosecuted one or

more individuals. Additionally, the IEC enjoys judicial immunity in acting as the adjudicator of

candidate challenges in Indiana.

53. The State Defendants decision to invoke their legal right to defend themselves

against Plaintiffs claims, Garn and Shelbys decision to fulfill their statutory mandate to defend

the IEC and the Secretary, and any State Defendants decision not to prosecute one or more

individuals each fall squarely within the realm of immunity. SeeMother Goose Nursery Schools,

Inc. v. Sendak, 770 F.2d 608 (7th Cir. 1985), cert. denied, 474 U.S. 1102 (1986) (Indiana

Attorney General enjoys absolute immunity when acting as representative of the State).

54. While it is unclear whether Plaintiffs have actually sued any individuals from the

IEC, IECs role was to adjudicate Plaintiffs administrative challenge. As adjudicators, they are

entitled to absolute judicial immunity. SeeDawson v. Newman, 419 F.3d 656, 660-62 (7th Cir.

2005) (holding that absolute judicial immunity bars suit against those acting in a judicial

capacity including those who are dealt with as judges and whose acts or decisions involve the

exercise of discretion or judgment and are normally made by judges and that persons who are not

technically judges are entitled to absolute judicial immunity when their role is judicial in

nature).

55. Moreover, even if not entitled to absolute prosecutorial or judicial immunity, and

even if not entitled to immunity under the ITCA, the fact is that State Defendants are entitled to

qualified immunity.

56. The doctrine of qualified immunity protects government officials from liability

for civil damages insofar as their conduct does not violate clearly established statutory or


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constitutional rights of which a reasonable person would have known. Pearson v. Callahan,

555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The

protection of qualified immunity applies regardless of whether the government officials error is

a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.

Pearson, 555 U.S. at 231 (further quotations and citations omitted). Indeed, the doctrine of

qualified immunity protects all but the plainly incompetent or those who knowingly violate the

law. Forman v. Richmond Police Dept., 104 F.3d 950, 959 (7th Cir. 1977) (citing, in turn,

Malley v. Briggs, 475 U.S. 335, 341, 343 (1986)). Put another way, to escape the doctrine of

qualified immunity, the constitutional right must be so clearly established that a reasonable state

official would understand that s/he is violating that right. Id. at 959 (citing Anderson v.

Creghton, 483 U.S. 635, 640 (1987)). And, because qualified immunity is an immunity from

suit rather than a mere defense to liability it is effectively lost if a case is erroneously

permitted to go to trial. Pearson, 555 U.S. at 231 (quotingMitchell v. Forsyth, 472 U.S. 511,

526 (1985) (emphasis deleted)).

57. Here, Ms. Taitz has travelled the country filing lawsuits challenging the

constitutional qualifications of President Obama. Not one case has even suggested that she can

do so or that her claims have any basis in reality or that her evidence is relevant. SeeTaitz v.

Astrue, 806 F. Supp. 2d 214 (D. D.C. 2011), affd, 2012 WL 1930959 (D.C. Cir. May 25, 2012);

Taitz v. Ruemmler, 2011 WL 4916936 (D. D.C. Oct. 17, 2011), affd, 2012 WL 1922284 (D.C.

Cir. May 25, 2012); Taitz v. Obama, 707 F. Supp. 2d 1 (D. D.C. 2010), reconsideration denied,

754 F. Supp. 2d 57 (D. D.C. 2010); Barnett v. Obama, 2009 WL 3861788 (C.D. Cal. Oct. 29,

2009), affd sub nom, Drake v. Obama, 664 F.3d 774 (9th Cir. 2011); Rhodes v. MacDonald,


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2009 WL 3111834 (M.D. Ga. Sept. 18, 2009);Rhodes v. MacDonald, 2009 WL 2997605 (M.D.

Ga. Sept. 16, 2009); Cook v. Good, 2009 WL 2163535 (M.D. Ga. July 16, 2009).

58. In sum, given this ample authority, State Defendants are entitled to qualified

immunity on the claims asserted by Plaintiffs. Thus, the Second Amended Complaint is

dismissed with prejudice.

I. Plaintiffs Cannot Enforce The Indiana Criminal Code

59. To the extent Plaintiffs seek redress for alleged violations of the Indiana criminal

code, Indiana Code 35, their claims are dismissed. Plaintiffs do not have standing to enforce

the Indiana criminal code or to prosecute alleged criminal activity in this Court. Only the

executive branch of the Indiana state government can initiate proceedings pursuant to the Indiana

criminal code. See Indiana State Constitution, Art. V. Thus, this Court dismisses all of

Plaintiffs criminal claims in the Second Amended Complaint pursuant to Indiana Rules of Trial

Procedure 12(B)(1) and (6).

J. Plaintiffs Constitutional Claims Are Dismissed

60. As stated above, Plaintiffs constitutional claims are in direct contravention to this

Courts Order of August 17, 2012, which granted leave for filing a new complaint with causes of

action of fraud, breach of fiduciary duty and negligence. Their claims, however, fail on their

own. The basic theory of Plaintiffs constitutional claims appears to be that, despite holding a

hearing on the challenge to President Obamas qualifications to be President of the United States,

the State Defendants violated Plaintiffs constitutional rights because the State Defendants did

not adopt Plaintiffs position that President Obama is not constitutionally qualified for the

national office of President of the United States. For several reasons, Plaintiffs constitutional

claims must be dismissed pursuant to Trial Rules 12(B)(1) and (6).


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61. First, the Second Amended Complaint fails to mention 42 U.S.C. 1983. Case

law holds that direct claims under the U.S. Constitution cannot be brought against state actors.

SeeUniversal Outdoor, Inc. v. Elk Grove Village, 969 F. Supp. 1124 (N.D. Ill. 1997) (holding

that while the Complaint referred to provisions of the United States Constitution, no such direct

action under the Constitution itselfexists against state actors); Ellis v. Secretary of State of

Illinois, 883 F. Supp. 291 (N.D. Ill. 1995) (same).

62. Additionally, to the extent that Plaintiffs meant to invoke 1983, that statute is

not itself a source of substantive rights; rather, it acts as an instrument for vindicating federal

rights conferred elsewhere. See Spiegel v. Rabinovitz, 121 F.3d 251, 254 (7th Cir), cert. denied,

522 U.S. 998 (1997). Relief under 1983, therefore, requires a plaintiff to allege (and ultimately

prove) that a person acted under color of state law to deprive him/her of rights, privileges or

immunities secured by the U.S. Constitution or federal law. See Larsen v. City of Beloit, 130

F.3d 1278, 1282 (7th Cir. 1997).

63. Moreover, the Eleventh Amendment bars all constitutional claims (regardless of

the relief sought) against IEC and the office of the Secretary of State (as they are arms of the

State of Indiana), as well as claims for monetary damages against individual state actors acting in

their official capacities. See Kentucky v. Graham, 473 U.S. 159, 167 (1985);Hans v. Louisiana,

134 U.S. 1, 10 (1890);Brokaw v. Mercer County, 235 F.3d 1000, 1009 (7th Cir. 2000);Meadows

v. State of Indiana, 854 F.2d 1068, 1069 (7th Cir. 1988) (holding that Indiana has not waived its

Eleventh Amendment immunity). Further, the IEC, the office of the Secretary of State, and

official capacity individuals are not persons for purposes of 42 U.S.C. 1983. Will v.

Michigan Department of State Police, 491 U.S. 58, 66 (1989); Small v. Chao, 398 F.3d 894, 898

(7th Cir. 2005); Omosegbon v. Wells, 335 F.3d 668, 672-73 (7th Cir. 2003); Higgins v.


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Mississippi, 217 F.3d 951, 953 (7th Cir. 2000). Thus, Plaintiffs constitutional claims against the

IEC and the Indiana Secretary of State are dismissed and Plaintiffs constitutional claims against

Garn and Shelby for damages are dismissed, as well.

64. Beyond those fundamental flaws, Plaintiffs constitutional claims fail for

additional reasons. First, the crux of any equal protection claim is the assertion that a person was

treated differently than similarly situated persons for impermissible reasons. See Village of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (explaining that the purpose of the equal

protection clause of the Fourteenth Amendment is to secure every person within the States

jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms

of a statute or by its improper execution through duly constituted agents) (further quotations and

citations omitted). Here, Plaintiffs offer absolutely no factual allegation that they were treated

differently than similarly situated Hoosiers (as it relates to the submission of complaints to the

IEC regarding the constitutional qualifications of President Obama). And, as to Garn and

Shelby, the Attorney Generals office has prosecutorial discretion in deciding whom to prosecute

for election-related issues and Plaintiffs have offered no factual averment to show that they

similarly situated persons -- those challenging the constitutional qualifications of President

Obama -- were treated differently.

65. Next, Plaintiffs were afforded due process and were provided redress for their

grievances. Plaintiffs filed a challenge and submitted materials that they believe support their

position. A hearing was held and a unanimous decision (adverse to Plaintiffs) was rendered.

Plaintiffs sought review of that decision with this Court; however, that Petition was dismissed

(with prejudice and on the merits) and Plaintiffs have taken no appeal. In short, it is clear that


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Plaintiffs were afforded their full panoply of due process rights. Riley v. Friend, No. 1:09-cv-

711, 2010 WL 2071985, *3 (S.D. Ind. May 21, 2010).

66. As it relates to some type of First Amendment claim based on ignoring

complaints of election fraud or for litigation-related events, the fact is such allegations do not

give rise to a First Amendment claim as there is no factual allegation that State Defendants have

restricted Plaintiffs right to free speech in any way. In fact, if anything, Plaintiffs speech has

not been restricted as they continue to publicly complain about the qualifications of President

Obama not only before this Court but through Ms. Taitzs web-site.

K. Plaintiffs Declaratory Judgment Claim Must Be Dismissed

67. Plaintiffs seek a declaration from this Court that President Obama is not

constitutionally qualified to be President of the United States.

68. Again, this cause of action has not been set forth in a separate count; indeed,

Plaintiffs do not invoke the Uniform Declaratory Judgment Act at all.

69. Further, this claim is nothing more than another attempt to review the decision of

the IEC. As such, it is barred by the doctrines ofres judicata and collateral estoppel. Moreover,

this Court did not allow Plaintiffs to plead this claim in their Second Amended Complaint.

70. Nevertheless, the Uniform Declaratory Judgment Act provides:

Any person interested under a deed, will, written contract, or other writings

constituting a contract, or whose rights, status, or other legal relations are affectedby 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 otherlegal relations thereunder.

I.C. 34-14-1-2.

71. Plaintiffs have alleged no facts as to how they have an interest in any deed, will,

written contract, or other writing constituting a contract nor have Plaintiffs alleged any facts to


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show that their rights, status, or other legal relations are affected by a statute, municipal

ordinance, contract, or franchise.9

72. As such, Plaintiffs have not alleged a cognizable claim under the Uniform

Declaratory Judgment Act.

73. Case law is clear, moreover, that the State of Indiana (here, the Indiana Elections

Commission, the Indiana Secretary of State, and Garn/Shelby as Deputy Attorneys General)

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).

74. Therefore, Plaintiffs Second Amended Complaint must be dismissed with

prejudice.

L. Plaintiffs Claim Under The NVRA And Their Request For Mandamus Are

Dismissed

75. Plaintiffs raise a new claim in their Second Amended Complaint a claim related to

the National Voter Registration Act. 42 U.S.C. Sec. 1973gg etseq.

76. Plaintiffs were not given permission to bring this claim and, thus, it is dismissed

with prejudice.

77. Further, Plaintiffs have not alleged that they provided the State of Indiana with

notice of a violation of the NVRA, a step required prior to filing a lawsuit under the NVRA by a

9 Plaintiffs Second Amended Complaint references duties of State Defendants under the

Election Code; however, these duties are to the public in general and, thus, do not provide

Plaintiffs with an interest sufficient to state a claim under the Uniform Declaratory JudgmentAct.


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private party. Prior to bringing a lawsuit, a private party who wishes to bring a lawsuit must

provide written notice of the violation to the chief election official of the State involved. 42

U.S.C. 1973gg-9(b)(1). Thus, this claim is dismissed.

78. Plaintiffs requested a Writ of Mandamus directing the Secretary of State of

Indiana to conduct citizenship verification through production of U.S. Passports or

Naturalization certificates or birth certificates in order to prevent non-citizen voting, which is

highly likely in the aftermath of the Dream Act. Because Plaintiffs make no claim whatsoever

with respect to this relief sought, this relief should be summarily denied.10

M. This Court Lacks Subject Matter Jurisdiction To Determine The Qualifications OfA Sitting President For The National Office Of The United States President

79. This Court does not have jurisdiction to rule on the qualification of those running

for President of the United States. Article I, 3 of the United States Constitution reserves to the

United States Senate the power and authority to determine the qualifications of the President of

the United States in that The Senate shall have the sole power to try all impeachments.

Furthermore, the Twelfth Amendment prescribes the manner by which the electors who are

appointed by the states elect the President. Robinson v. Bowen, 567 F. Supp. 2d 1144, 1147

(N.D. Cal. 2008). Therefore, notwithstanding that the question of President Obamas

qualifications is not before this Court, this Court lacks jurisdiction to determine those

qualifications. See alsoRhodes v. MacDonald, 2009 WL 2997605, at *1 n.3 (noting that

Congress has not tried to impeach President Obama and that Congress, by a vote of 378-0,

commemorated the 50th anniversary of the State of Hawaii and stated the 44th President of the

United States, Barack Obama, was born in Hawaii on August 4, 1961).

10Indiana already has a Voter ID Law; Plaintiffs seem to want this Court to engraft

additional requirements on that law. This Court has no power to do so.


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N. Plaintiffs Have Requested Relief That The State Defendants And This Court Cannot

Provide

80. Plaintiffs are seeking an emergency injunctive relief in the form of a Writ of

Mandamus directing the Election[] Commission and the Secretary of State to remove Obama

from the ballot. Second Amended Complaint. None of these Defendants are able to provide the

relief Plaintiffs seek. Moreover, this Court has twice denied Plaintiffs request for injunctive

relief.

O. Plaintiffs Cannot Receive The Relief Requested From The State Defendants

81. Deputy Attorneys General Garn and Shelby have no authority with respect to

election law. I.C. 4-6-2-1. They do not have the power to provide Plaintiffs the relief they

seek. Thus, Plaintiffs have failed to state a claim for relief against Garn and Shelby.

82. Moreover, Plaintiffs claims are too late. Plaintiffs requested that this Court

remove Obama from the ballot. Second Amended Complaint, Prayer for Relief 1. Pursuant to

Indiana law, on September 7, 2012 the Co-Directors of the Indiana Election Division certified to

each county election board the names of the nominees for President and Vice President of the

United States certified to the Election Division under Indiana Code 3-10-4-5(c). In other words,

the Election Division has already certified Barack Obama as the Democratic candidate for

President of the United States to the local election boards. Indeed, in-person absentee voting

began on October 9, 2012, and the deadline for requesting absentee ballots is quickly

approaching October 29th. See http://www.in.gov/sos/elections/2402.htm . The State Defendants

have no authority to remove President Obama from the ballots and, thus, Plaintiffs belatedly ask

for President Obama to be prevented from being named on the ballot.


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P. Plaintiffs Cannot State A Claim For Permanent Injunction

83. Furthermore, Plaintiffs seemingly try to state a cause of action for mandatory

injunctive relief -- commanding the removal of President Obama from the Indiana ballot. See

Motion of Plaintiffs to Schedule Separate Trial of Expedition, etc. (plaintiffs ask expedited

trail against Secretary of State and Election[] commission only, as to only two legal causes of

action: declaratory relief & permanent injunction) (emphasis in original).

84. Equitable relief -- here declarative or injunctive relief -- is just that, relief. See,

e.g., Noah v. Enesco Corp., 911 F. Supp. 305, 307 (N.D. Ill. 1995) ([b]y its very name, it is

apparent that injunctive relief is a remedy and [a]n injunction is a remedy, not a cause of

action); Washel v. Bryant, 770 N.E.2d 902, 904 (Ind. Ct. App. 2002) ([a]n injunction is an

extraordinary equitable remedy) (emphasis added). Plaintiffs make no connection between the

remedy sought, and the claims they tried to plead. Instead, Plaintiffs appear to argue that the

remedy exists as an independent cause of action. Since equitable relief is not a separate cause of

action, the Second Amended Complaint must be dismissed. SeealsoCrossman Communities,

Inc. v. Dean, 767 N.E.2d 1035, 1040 (Ind. Ct. App. 2002) (mandatory injunction is an

extraordinary equitable remedy which should be granted with caution) (citing Dible v. City of

Lafayette, 713 N.E.2d 269, 272 (Ind. 1999)).

CONCLUSION

85. This Court notes that this is not Ms. Taitzs 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


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Court held that Ms. Taitz did not have standing to bring a quo warranto action to challenge

President Obamas 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.

86. As another example, in Taitz v. Ruemmler, 2011 WL 4916936 (D.D.C. Oct. 17,

2011), affd, 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 confirms the

Presidents birth in Honolulu, Hawaii. 2011 WL 4916936, at *1 & n.1.

87. 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 Plaintiffs 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. Taitzs subjective belief, speculation and conjecture have never been

sufficient to maintain a legal cause of action. 2009 WL 3111834, at *1, *3.

88. 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 50 th anniversary of Hawaiis


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statehood and noting that the 44th

President of the United States, Barack Obama, was born in

Hawaii on August 4, 1961).

89. In the end, Plaintiffs Second Amended Complaint is jurisdictionally,

procedurally and substantively flawed. It states no cause of action under Indiana law or under

federal law. It must be dismissed with prejudice. As the Second Amended Complaint is

dismissed with prejudice, all evidence introduced on October 22, 2012 is also stricken.

IT IS THEREFORE ORDERED that State Defendants Motion to Dismiss Second

Amended Complaint is GRANTED this ____ day of __________, 2012. All evidence

introduced on October 22, 2012 is STRICKEN. This Court expressly determines that there is

no just reason for delay and, therefore, directs the entry ofFINAL 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. ReidJudge, MARION SUPERIOR COURT 14

Distribution:

Orly Taitz

29839 Santa Margarita Pkwy, Ste 100Rancho Santa Margarita, CA 92688

Karl Swihart

460 Austin DriveAvon, IN 46123

Edward Kesler3070 S. Leisure Place

West Terre Haute, IN 47885

Frank Weyl

701 N. Brentwood Lane

Muncie, IN 47304


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Bob Kern12547 Crystal Point Drive

Indianapolis, IN 46236

Valeria I. Ripley

14334 Tonkel RoadFort Wayne, IN 46845

Greg Black

P.O. Box 845

1647 East Main Street, Suite APlainfield, IN 46168

Jefferson GarnKate Shelby

Kenneth L. Joel

Office of the Attorney GeneralI.G.C.S 5th Floor

302 West Washington Street

Indianapolis, IN 46204

Documents

IN - 2012-10-xx - TvIEC et al - Proposed ORDER ON DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED