MS - 2012-02-29 - Taitz - SOS Motion to Dismiss

8/2/2019 MS - 2012-02-29 - Taitz - SOS Motion to Dismiss

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VIA OVERNIGHT MAILHon. R. KeruJeth ColemanSpecial Circuit JudgeP.O. Box 1995New Albany, MS 38652

STATE OF MISSISSIPPI

JIM HOODATTORNEY GENERALFebruary 29,2012 CIVIL LITIGATION DIVISION

RE: Orly Taitz v. Democrat Party ofMississippi, Secretary ofState ofMississippi; In theCircuit Court of Hinds County, Mississippi, First Judicial District; Civil ActionNo. 251-12-107CIV

Dear Jud ge Coleman:Please find enclosed two copies of Secretary of State Delbert Hosemann's Motion to Dismiss

tbat we have caused to be filed today in the referenced action, and two copies of a Memorandum inSupport of his Motion to Dismiss. Also enclosed is one copy of the legal authorities cited by theSecretary of State in his Memorandum.

Thank you for your consideration in this matter.Sincerely,

Justin L. MathenySpecial Assistant Attorney General

JLM:fhcc: Orly Taitz (via overnight mail)

Samuel L. Begley

550 ruGH STREET - POST OFFICE BOX 220 - JACKSON, J\fiSSlSSIPPI 39205TELEPHONE (601) 359-3680 - FACSIMll.E (601) 359-2003


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Barbara DUlll, ClerkHinds County Circuit CourtPost Office Box 327Jackson, Mississippi 39205

STATE OF MISSISSIPPI

JIM HOODATTORNEY GENERAL

February 29,2012 CIVIL LITIGATION DIVISION

RE: Orly Taitz v. Democrat Party ofMississippi, Secretary ofState ofMississippi; In theCircuit Court of Hinds County, Mississippi, First Judicial District; Civil ActionNo. 251-12-107CIV

Dear Ms. Dunn:Please find enclosed the original and one copy of Secretary of State Delbert Hosemann's

Motion to Dismiss in the above-referenced cause. Please file the original and return the "filed"stamped copy to me in the self-addressed stamped envelope.

Your assistance in this matter is appreciated.

; ~ ! W ~ L s / j L Justin L. MathenySpecial Assistant Attorney General

JLM:fhcc: Hon. R. Kenneth Coleman (via overnight mail)

Orly Taitz (via overnight mail)Samuel L. Begley

550 IDGH STREET POST OFFICE BOX 220 . JACKSON, MISSISSIPPI 39205TELEPHOl\'E (601) 3593680 - FACSIMILE (601) 359 -2003


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CIRCUIT COURT OF IDNDS COUNTY, MISSISSIPPIFIRST JUDICIAL DISTRICT

DR. ORLY T AITZ, ESQ. PETITIONERV. CIVIL ACTION NO. 2S1-12-107CIVDEMOCRAT PARTY OF MISSISSIPPI;SECRETARY OF STATE MISSISSIPPI

The Mississippi Secretary of State's Motion to DismissRESPONDENTS

Mississippi Secretary of State Delbert Hosemann submits this motion to disrniss thepetition filed in this cause pursuant Rules 12(b)(l), 12(b)(5), and 12(b)(6).

I . Petitioner Orly Taitz is a nationally known figure whose notoriety is derived inpart by her numerous unsuccessful lawsuits in which she as an attorney or party has alleged thatBarack Obama is not eligible to hold the office ofthe President of the United States. WhileTaitz, a California resident, cannot vote in Mississippi 's March 13 Democratic Party presidentialprimary, she nonetheless seeks a court order removing President Obarna from the MississippiDemocratic Party's presidential primary ballot.

2. As set forth in more detail in the accompanying memorandum, Taitz's legal actionis fatally flawed for multiple reasons and should be dismissed.

3. The petition is time barred pursuant to Code Section 23-15-961 because Taitzmissed the deadline to file with the Circuit Court.

4. The petition fails to state a claim for mandamus as the Secretary of State has noduty under state law to determine the qualifications of a presidential candidate in connection witha primary election ballot. The Secretary of State's duty and authority with respect to presidentialprimaries conducted by political parties is defmed by statute. Relevant to the dispute regardingPresident Obama, Code Section 23-15-1089 requires that


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The Secretary of State shall place the name of a candidate upon the presidentialpreference primary ballot when the Secretary of State shall have detennined thatsuch a candidate is generally recognized throughout the United States orMississippi as a candidate for the nomination of President of the United States.

Miss. Code Ann. 23-15-1089. Code Section 23-15-1089 authorizes the Secretary of State tomake one, and only one, detennination about a presidential candidate: whether he or she is"generally recognized throughout the United States or Mississippi as a candidate for thenomination ofPresident of the United States." If that person is generally recogni zed as acandidate, then the Secretary of State is required by law to place the name on the primary ballot.The statute does not authorize the Secretary of State to investigate whether a generallyrecognized candidate meets the qualifications established by federal law for the office. Section23-15-1089 simply does not impose a "clear legal duty" on the Secretary of State to undertakesuch a review and, therefore, mandamus relief cannot be ordered.

5. The petition fails to state a claim for any relief, including declaratory andinjunctive relief, against the Secretary of State. Regardless ofwhether the relief sought againstthe Secretary of State is classified as declaratory, injunctive, or in the nature of a writ ofmandamus, the petition should be dismissed for failure to state a claim. State law clearlymandates the Secretary of State to place on the primary ballot every person "generally recognizedthroughout the United States or Mississippi as a candidate for the nomination of President of theUnited States." Miss. Code Ann. 23-15-1089. State law imposes no other qualification forplacement on the ballot other than to be a generally recognized candidate for the office. Sincethe petition does not allege that President Obama is not generally recognized as a candidate forthe nomination of President, the placement of President Obama's name on the ballot is

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appropriate and required under state law. The petition seeking the removal of President Obamafrom the primary ballot fails to state a claim as a matter oflaw.

6. Taitz lacks standing to pursue this action. Standing is a jurisdictional requirementnecessary to invoke the authority of the judiciary. Taitz 's lack of standing deprives this Court ofjurisdiction.

7. The petition and summons have not been properly served on the Office of theAttorney General as required by Rule 4(d)(5). See Affidavit of Diana Ware, Exhibit A.

FOR THESE REASONS, Mississippi Secretary of State Delbert Hosemann respectfullyrequests that the Court enter an order dismiss ing Petitioner Dr. Orly Taitz's Petition andassessing all costs of this action to Petitioner.

THIS the 29th day ofFebruary, 2012.

BY:

BY:

3

Respectfully submitted,Delbert Hosemann, MississippiSecretary of StateJim Hood, Attorney GeneralState of Mississippi

~ ' " aro l r r . :7 t ta, i l l (Bar No. 99867)Justin L. Matheny (Bar No. 100754)Office of the Attorney General550 High Street, Suite 1200P.O. Box 220Jackson, MS 39205Telephone: (601) 359-3680Facsimile: (601) 359-2003


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CERTIFICATE OF SERVICE

I hereby certifY that a true and correct copy of the foregoing document has been served onthe following persons by US Mail, properly addressed and postage prepaid, and/or by othermeans where indicated:

Orly Taitz (via overnight mail)29839 Santa Margarita Parkway, Suite 100Rancho Santa Margarita, CA 92688Samuel L. BegleyBegley Law Firm, PLLCP.O. Box 287Jackson, MS 39205THIS the 29'" day of February, 2012.

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IN THE CIRCUIT COURT OF THE FIRST .nJDICIAL DISTRICT OFHINDS COUNTY, MISSISSIPPI

DR. ORLY TAITZ, ESQ. PLAINTIFFVS. CIVIL ACTION NO. 251-12-107CIVDEMOCRAT PARTY OF MISSISSIPPI,SECRETARY OF STATE OF MISSISSIPPI

AFFIDAVIT OF DIANA WARESTATE OF MISSISSIPPICOUNTY OF HINDS

DEFENDANTS

Personally appeared before me, the Wldersigned authority in and for the jurisdiction aforesaid,the within named Diana Ware, who after being duly sworn, deposes and says:

1. My name is Diana Ware. I am of legal age. I make this affidavit from personalknowledge and the statements contained herein are true to the best ofmy knowledge and ability.

2. I am a Special Projects Officer IV with the Civi l Litigation Division of the Office of theAttorney General.

3. The Office of the Attorney General is served with a number of summons, complaints,subpoenas, and other legal pleadings on a daily basis. It is the practice of our office to immediatelyrecord receipt ofall complaints and other pleadings in our service log. Furthermore, for civil matters

like this case, a service of process control docket sheet is completed by me, indicating the style ofthe case, cause number, method of service, date of service, etc.

4. I have reviewed our records for the period February 14,2012 through February 29, 2012,which includes a computerized docket search, as well as a search of the service log, regarding the

EXHIBITIA


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matter of Dr. Orly Taitz, Esq. V Democrat Party ofMississippi, Secretary ofStale ofMississippi,Cause No. 251-12-107 crv. J can find no record indicating that the Office of the Attorney Generalreceived service of process with regard to this case.

5. Further the affiant saith not.I solemnly affirm under the penalties of perjury and upon personal knowledge that the

contents of the foregoing are true and correct.

Signed and sworn to before methis Q...C\ii1day of February, 2012.


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Secretary of State News and Press Releases Page 1 of 1

News

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News I Press ReleasesI ac k to PnlVious P3i. 1FOR IMMEDIATE RELEASE: December 15, 2011CONTACT : Pamela weaver, (601) 270-4100Presidential Preference PrimaryJackson, Ms-5lale law says, "The Secretary of Stale shall place the name of a candidate upon the presidentialpreference primary ballot when the Secretary of State shall have determined that such a candidate is generally recognizedthroughout the United Siaies or Mississippi as a candidate for the nomination of President of the United Slates, On orbefore December 15 immediately preceding a presidential preference primary election the Secrelary of Slate shallpublically announce and distribute to the news media for publication a list of the candidates he intends to ptace on theballot at the following presidential preference primary ele ction .. : (Miss. Ann Code 23-15-1089)-, encourage all Mississippians 10 review the qualifications of eadl of the candidates ~ s l e d in the Presidential PreferencePrimary priof" 10 the Election , whidl will be held March 13 , 2012: says Secretary of Stale Delbert Hosemann. "This listgives the voler ample time 10 review the candidate 's qualifications prior 10 casting their b a l l o l The following is a list of generally recognized Democratic Candidates:

8arack Obama

The following is a list of generally recognized Republican Candidates:

Midlele BadlmannNewt GingrichJohn HuntsmanGary JohnsonRon PaulRick PerryMill RomneyRick. Santo rum

2009. All rights reserved.

EXHIBITi Bhttp ://www.sos.ms.gov/newsyressJelease.aspx?id=369 2/28 /20 12


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CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPIFIRST JUDICIAL DISTRICT

DR. ORLY TAITZ, ESQ. PETITIONERv. CIVIL ACTION NO. 251-12-107CIVDEMOCRAT PARTY OF MISSISSIPPI;SECRETARY OF STATE MISSISSIPPI

The Mississippi Secretary of State's Memorandumin Support of His Motion to Dismiss

RESPONDENTS

Mississippi Secretary of State Delbert Hosemann submits this memorandum in support ofhis motion to di smiss the petition pursuant Rules 12(b)(I), 12(b)(5), and 12(b)(6).

Petitioner Orly Taitz is a nationally knovvn figure whose notoriety is derived in part byher numerous unsuccessful lawsu its in which she as an attorney or party has alleged that BarackObama is not eligible to hold the office of the President of the United States. While Taitz, aCalifornia resident, cannot vote in Mississippi's March 13 Democratic Party presidentialprimary, she nonetheless seeks a court order removing President Obama from the MississippiDemocratic Party's presidential primary ballot.' Taitz's legal action is fatally flawed for multiplereasons and should be di smi ssed.

Procedural BackgroundTaitz's Circuit Court Petition invokes Code Section 23-15-961 as the statutory basis for

her claims and as the basis for this Court's subject matter jurisdiction. According to the Circuit

Court Petition, on or about January 8, 2012, Taitz submitted an "Official Petition" to theExecutive Committee of the Mississippi Democratic Party in which she purported to challenge

, According to the petition, Taitz is a resident of Rancho Santa Margarita, California.See Circuit Court Petition at 8.


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President Obama's citizenship and thereby his qualifications to hold the office of President. SeeExhibit 1 to the Circuit Court Petition (set forth on pages 8-19 of the Petition); Miss . Code Ann. 23-15-961 (1). The petition to the Executive Committee demanded that President Obama beremoved from the Democratic Party 's primary ballot. Id. at 19 .

Taitz alleges that the Democratic Party took no action on her "Official Petition." SeeCircuit Court Petition at 4. Citing Section 23-15-961(3), Taitz interpreted this non-action to be adenial of her request to remove President Obama from the primary ballot. Taitz believes herselfto be aggrieved by the denial of her request and filed this petition for judicial review with theHinds County Circuit Court pursuant to Section 23-15-961(4).

The Duty of the Secretary of State Regarding Presidential Primary BallotsThe Secretary of State's duty and authority with respect to presidential primaries

conducted by political parties is defined by statute. Relevant to the dispute regarding PresidentObarna, Code Section 23-15-1089 requires that

The Secretary of State shall place the name of a candidate upon the presidentialpreference primary ballot when the Secretary of State shall have determined thatsuch a candidate is generally recognized throughout the United States orMississippi as a candidate for the nomination of President of the United States.On or before December IS immediately preceding a presidential preferenceprimary election the Secretary of State shall publicly announce and distribute tothe news media for publication a list of the candidates he intends to place on theballot at the fo llowing presidential preference primary election. Following thisannouncement he may add candidates to his selection, but he may not delete anycandidate whose name appears on the announced list, unless the candidate dies orhas withdrawn as a candidate as provided in this chapter.

Miss. Code Ann. 23-15-1089.On December 15,2011 , the Secretary of State publically released the list of "generally

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recognized candidates" for the nomination ofPresident and included on that list PresidentObama. See December 15 ,2011 Press Release, Exhibit B; Miss. Code Ann. 23-15-1089.

ArgumentI. Taitz's Legal Contentions.

Although Taitz characterizes her requested relief as being declaratory and injunctive innature, the relief she is seeking against the Secretary of State is actually in the nature of a writ ofmandamus. Taitz asserts that the Secretary of State has a legal duty to remove President Obamafrom the primary ballot and she is seeking a court order compelling him to perform what shebelieves to be his legal duty. See Dupree v. Carroll 967 So.2d 27, 28 (Miss. 2007) ("The writ ofmandamus exists to force an elected official to perform a duty of office."). Specifically, Taitzwrongly believes that the Secretary of State has the legal duty under state law to determinewhether a generally recognized candidate for the presidency is qualified to hold that office and toensure that an unqualified candidate does not appear on a party's presidential primary ballot.

In light of the clear terms of Section 23- I5-1089, Taitz is wrong as a matter of law. TheSecretary of State is required by law to place each "generally recognized" candidate on thepresidential primary ballot. Section 23-15-1089 does not authorize the Secretary of State toreview whether a generally recognized candidate meets the federal law qualifications to bePresident. Section 23-15-1089 provides no authority for the Secretary of State to refuse to placeon the ballot a generally recognized presidential candidate. As set forth below, the relief soughtby Taitz, even if otherwise legally viable, is directly contrary to the requirements of Section 23-15-1089.

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II. The petition is time barred pursuant to Miss. Code Ann. 23-15-961 because Taitzwaited too long to file with the circuit court.Taitz relies upon Code Section 23-15-961 as the statutory basis for her claim and as the

basis for this Court' s subject matter jurisdiction. Section 23-15-961 contains strict timelimitations directing (I) the deadline to file an objection with the party's executive committee,and (2) the deadline to file any appeal with the circuit court. The time limitations in Section 23-15-961 are jurisdictional and a fai lure to file within the specified deadlines requires di smissal ofthe petition. See Gourlay v. Williams, 874 So.2d 987, 988 (M iss. 2004) (dismissing petitionfound to be time barred under 23 -1 5-961). Here, Taitz mi ssed the statutory deadline by which tofile her appeal with this Court.

Because pre-election challenges must be quickly resolved or risk delaying the election,state law requires a person seeking to contest a candidate's qualifications to act briskly. CodeSection 23-15-961 sets forth the following jurisdictional deadlines:

A petition to challenge a candidate's qualifications must be filed with the politicalparty "wi thin ten (10) days after the qualifYing deadline for the office in question."Miss. Code Ann. 23-15-961(1).

The party's executive committee has must rule on the challenge "within ten (10)days of receipt of the petition." Miss. Code Ann. 23-15-961(2). If the executivecommittee does not act with the ten days, the inaction "shall be interpreted as adenial of the request for relief contained in the petition." Miss. Code AIm. 23-15-961(3).

Any party aggrieved by the action or inaction of the executive committee may filea petition for judicial review to the circuit court. "Such petition must bejiled nolater thanfifieen (15) days ajier the date the petition was originally jiled with theappropriate executive committee." Miss. Code Ann. 23- 15-961(4) (emphasissupplied).

Taitz has not met the last mandatory deadline. She did not file her petition for review

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with this Court within fifteen days "after the date the petition was originally filed with theappropriate executive corrurtittee."

According to the Circuit Court Petition, Taitz filed her petition with the DemocraticParty' s Executive Committee on or after January 8, 2012. See Petition at 8 and 19. Although itis difficult to determine on which exact date Taitz filed her petition with the ExecutiveCommittee, we know that in order to be timely the petition must have been filed with thecommittee on or before January 24, which is ten days after the January 14 qualifying deadline.See Miss. Code Ann. 23-15-961 (requiring petition to be filed with the executive committee"within ten (10) days after the qualifying deadline"); 23-15-1093 (requiring presidentialqualifying to occur "before January 15 "). Thus, Taitz's petition must have been filed with theExecutive Committee sometime between January 8 and January 242

IfTaitz's petition was filed with the Executive Corrurtittee on some date between January8 and January 24, her fifteen day deadline to file her appeal with this Court expired at the earlieston January 23 and at the latest on February 8. Taitz did not file her petition with this Court untilFebruary 14. Her petition to this Court is time barred and must be dismissed. See Gourlay 874So.2d at 988.III. The petition fails to state a claim for mandamus as the Secretary of State has no

duty under state law to determine the qualifications of a presidential candidate inconnection with a primary election hallot.By seeking an order requiring the Secretary of State to perform an official function , Taitz

2 If the petition was filed with the Executive Corrurtittee after January 24, Taitz wouldhave missed the first deadline set forth in Section 23-15-961 and the result would be the same:di smissal for failure to comply with the deadlines in Section 23-15-961. See Gourlay, 874 So.2dat 988.

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is requesting mandamus relief against the Secretary of State. See Dupree, 967 So.2d at 28 ("Thewrit of mandamus exists to force an elected official to perform a duty of office."). Four"essential elements" must coexist before a writ of mandamus may issue: "(1) the petitioner mustbe authorized to bring the suit, (2) there must be a clear right in petitioner to the re lief sought, (3)there must exist a legal duty on the part of the defendant to do the thing wmch the petitionerseeks to compel, and (4) there must be no other adequate remedy at law." Bennett v. Board ofSup'rs ofPearl River County, 987 So.2d 984, 986 (Miss. 2008). An official can only bemandamused to perform a ministerial , as opposed to a discretionary, act. In re Election forHouse ofRepresentatives Dis!. 71, 987 So.2d 917, 920 (Miss. 2008). Finally, because a writ ofmandamus must be premised on a clear legal right to have the officer perform the duty sought tobe compelled, a "mandamus cannot be availed of to compel an officer to do that which he has nolegal right to do." Board ofSup'rs ofWinston County v. Adams, 144 So. 476, 477 (Miss. 193 2).

Here, Taitz has the burden of demonstrating that the Secretary of State has a clear legalduty under state law to determine whether a candidate is qualified to be President before placingthat candidate on the primary ballot. Taitz has not, and cannot, demonstrate such a duty for theSecretary of State under state law. Code Section 23-15-1089 authorizes the Secretary of State tomake one, and only one, determination about a presidential candidate: whether he or she is"generally recognized throughout the United States or Mississippi as a candidate for thenomination of President of the United States." If that person is generally recognized as acandidate, then the Secretary of State is required by law to place the name on the primary ballot.The statute does not authorize the Secretary of State to investigate whether a generallyrecognized candidate meets the qualifications for the office established by federal law. Section

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23-15-1089 simply does not impose a "clear legal duty" on the Secretary of State to undertakesuch a review and, therefore, mandamus relief cannot be ordered.

The conclusion that Mississippi's statute regarding presidential primary ballots does notauthorize the Secretary of State to examine the qualifications of a "generally recognized"candidate is supported by a California court's interpretation of that state's materially identicalstatutory language. In Keyes v. Bowen, 189 Cal.App.4th 647 (CaI.App. 3 Dist. 20 I 0), the courtaffirmed the di smissal of a mandamus action against the California Secretary of State seeking toremove then candidate Barack Obama from the primary ballot. California's statute required theSecretary of State to "place the name of a candidate upon the presidential primary ballot when heor she has determined that the candidate is generally advocated for or recognized throughout theUnited States or California as actively seeking the nomination of the Democratic Party forPresident ofthe United States. . . ." ld. at 658. The court found that this statute did not "impose aclear, present, or ministerial duty on the Secretary of State to determine whether the presidentialcandidate meets the eligibility criteria of the United States Constitution." ld.

The Keyes court is correct. Taitz's request for mandamus relief against the Secretary ofState should be dismissed because Taitz cannot demonstrate that the Secretary of State has aclear legal duty under state law to determine whether a candidate is qualified to be Presidentbefore placing that candidate on a party 's primary ballot.IV. The petition fails to state a claim for any relief, including declaratory and injunctive

relief, against the Secretary of State.Regardless of whether the relief sought against the Secretary of State is classified as

declaratory, injunctive, or in the nature ofa writ of mandamus, the petition should be di smissed

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for failure to state a claim. The central legal premise ofTaitz's petition is that state law requiresthat there be a detennination of a candidate's qualifications before that candidate can be placedon a party's presidential primary ballot. The petition cites no authority for that propositionbecause none exists.

In fact, state law clearly requires the Secretary of State to place on the primary ballotevery person "generally recognized throughout the United States or Mississippi as a candidate forthe nomination ofPresident of the United States." Miss. Code Ann. 23-15-1089. State lawimposes no other qualification for placement on the primary ballot other than to be a generallyrecognized candidate for the office. Since, the petition does not allege that President Obama isnot generally recognized as a candidate for the nomination of President, the placement ofPresident Obama's name on the primary ballot is appropriate and required under state law. Thepetition seeking the removal of President Obama from the primary ballot fails to state a claim asa matter of law.

v. Taitz lacks standing to pursue this action.Standing is a jurisdictional requirement necessary to invoke the authority of the judiciary.See In the Matter of he Enlargement and Extension of he Municipal Boundaries of he City ofHorn Lake, 822 So.2d 253, 255 (Miss. 2002). In Mississippi, parties have standing to sue "whenthey assert a colorable interest in the subject matter of the litigation or experience an adverseeffect from the conduct of the defendant, or as otherwise provided by law." Burgess v. City ofGu/jjJorl, 814 So.2d 149, 152 -153 (Miss. 2002) (quoting State v. Quitman County, 807 So.2d401,405 (Miss. 200 1. In order to have standing to pursue declaratory, injunctive, or mandamusrelief, Taitz must demonstrate some particularized harm or interest that "must be different from

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the adverse effect experienced by the general public." Burgess, 814 SO.2d at 153; see also City 0/Madison v. Blyan, 763 SO.2d 162, 166 (Miss. 2000); Bennett, 987 So.2d at 986 ("petitioners forwrits of mandamus must also show that they have an interest 'separate from or in excess of thatof the general public' in order to have standing") (quoting Aldridge v. West, 929 So.2d 298, 302(Miss . 2006.

Taitz's lack of standing is clear. First, Taitz has no particularized harm resulting from orinterest in which candidates appear on the Mississippi Democratic Party's presidential primaryballot. Any interest or impact she would experience by virtue of a candidate's appearance on theballot would be no different from that experienced by the general public and, thus, she lacksstanding. See Wilson v. City a/Laurel, 249 So.2d 801, 802 (Miss. 1971) (denying request forwrit of mandamus to require city to hold election on bond issue because petitioners had failed toshow that they would suffer any injury other than that suffered by the citizens of the City ofLaurel as a whole). Second, Taitz lack of standing is even more pronounced given that she is nota resident of the State of Mississippi and cannot vote in Mississippi 's primary election.VI . The petition an d summons have not been properly served in the manner required

by Rule 4( d)(S).Additionally, Taitz's petition should also be dismissed for insufficiency of se rvice of

process. Taitz attempted to satisfy her service of process requirement by leaving a copy of theCircuit Court Petition (without a summons) at the Secretary of State's office. This is not proper

service under Rule 4.A motion to dismiss for insufficient of service of process under Rule 12(b)(5) is the

correct procedural vehicle to challenge the mode of delivery or lack of delivery of the summons

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and complaint. See Public Employees' Retirement System 0/Mississippi v. Dillon, 538 So.2d327,328 & n. 1 (Miss. 1988). Pursuant to Rule 4(d)(5), the "summons and complaint shall beserved together" and service upon an officer ofthe State of Mississippi must be made "bydelivering a copy of the summons and complaint to the Attorney General of the State ofMississippi ." Leaving a copy of the Petition at the Secretary of State 's office does not constituteproper service on the Secretary of State under Rule 4(d)(5).

As set forth in the affidavit affixed to the Secretary of State' s Motion, the AttorneyGeneral's Office has not yet been served with a copy of the petition and summons in thi s matter.'See Affidavit of Diana Ware, Exhibit A to Motion. While Taitz may still have time to serve thepetition and swnmons under Rule 4(h), this matter cannot be heard unless and until the petition isproperly served.

Conclusion

For the above reasons, and those set forth in the Secretary of State's separate Motion toDi smi ss filed with the Court, the petition filed in this action should be dismissed.

THIS the 29th day of February, 2012.

3 A court may consider evidence outside of the pleadings when resolving a Rule 12(b)(5)challenge to the sufficiency of service without converting the motion to di smi ss into a motion forswnmary judgment. Stults v. Miller, 37 So.3d 1,3 & n.3 (Miss. 2010); accord Thomas v. NewLeaders/or New Schools, 2011 WL 6329865, at * 3 (E.D.La. 2011). .

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Respectfully submitted,Delbert Hosemann, MississippiSecretary of State

BY: Jim Hood, Attorney GeneralState ofMississippi

.. "!:

Documents

MS - 2012-02-29 - Taitz - SOS Motion to Dismiss