AlaFile E-Notice

03-CV-2012-001053.00 Judge: HON. EUGENE W. REESE To: RAGSDALE BARRY ALAN bragsdale@sirote.com

NOTICE OF ELECTRONIC FILING

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA HUGH MCINNISH AND VIRGIN H GOODE JR VS. BETH CHAPMAN 03-CV-2012-001053.00 The following matter was FILED on 11/28/2012 8:10:54 PM C002 GOODE VIRGIN H JR C001 MCINNISH HUGH DEFENDANT'S RENEWED MOTION TO DISMISS [Filer: JOHNSON LAWRENCE DEAN] Notice Date: 11/28/2012 8:10:54 PM

FLORENCE CAUTHEN CIRCUIT COURT CLERK MONTGOMERY COUNTY, ALABAMA 251 S. LAWRENCE STREET MONTGOMERY, AL 36104 334-832-4950

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY' ALABAMA

ELECTRONICALLY FILED 11/28/2012 8:10 PM CV-2012-001053.00 CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA FLORENCE CAUTHEN, CLERK

HUGH MCINNISH, et. al, Plaintiffs,

vs.

) )

BETH CHAPMAN, SecretarY of State

Defendant.

) ) ) ) ) )

Civil Action No.: CV-2012-001053

nnNrcWnu

uorroN ro ursvilss

("Defendant") filed a Renewed Motion to on November 20,21r2,Defendant Secretary of State motion for summary judgment' on Dismiss pursuant to Rules 12 and56 and opposition to Plaintiffs'
Alabama Democratic Party ("Intervenor")' that same day a Notice of Joinder was filed by lntervenor
Renewed Motion to Dismiss' Plaintiffs Intervenor then chose to join Defendant Secretary of state's

hereby oppose Defendant and Intervenor's motion'

Plaintiffs' Claim Is Not Moot.

moot because Mitt Romney Contrary to Defendant and Intervenor's argument that this case is votes), this argument carries won the majority of votes within Alabama (and thus Alabama's electoral

duty to do the due diligence no weight. The Secretary of State had and has an affirmative ministerial

flows from her oath concerning the eligibility of the presidential candidate for office. This duty

of

to protect the office under both the U.S. and Alabama constitutions, as she is required and empowered
has no reason citizens of this state from fraud and other misconduct by candidates. Otherwise, she d'Otre as the chief elections

officer of the state.

Hussein obama received less votes than Mitt Moreover, to argue that simply because Barack is like saying that once a crime is committed it is Romney in the state of Alabama moots this issue, moot because it is too late to prevent

it. obviously

our legal system does not work that way'

Anarogously, in the civil context, as set forth in the case

of

Roe

v. wade,410

u.s.

113 (1973), this case

yet evading review. ln Roe,the injury to the petitioner is not mooted because it is capable of repetition,
respondent raised the issue of standing concemed her rights with regard to pregnancy. The Roe

the time her claims were adjudicated. The Supreme because the petitioner was no longer pregnant by

court noted that when

,,pregnancy is a significant fact in the litigation, the normal 266-day human

before the usual appellate process is gestation period is so short that the pregnancy will come to term

of repetition, yet evading review'"' 'Id' complete." The Court thus held that "it truly could be'capable (citing Southern pacffic Terminal Co. v. ICC,219 U.S. 4g8,5i5
case, every conresr

(l9l l)). As is true by analogy in this

a

of an election would similarly be mooted by the sheer length of

trial and appeals

isjust as present in the next process. Yet elections happen every year and the potential for harm
heard so as to prevent this harm from election cycle. This claim must therefore move forward and be
as well' occurring not only during this election but for future elections
I

falls under the exceptions to the mootness 1 ln the unlikely event that this court considers this case moot, it neveftheless is stated with special clarity in Coady v' doctrine. The exceptions are recogn ized 6y many, if not most states, and pennsylvania Boaid of Probation and Parole, which reads in part as follows:
one or more of the This court will decide questions that have otherwise been rendered moot when questions of great public importance; (2) the following three exceptions apply: (l) the case involves (3) a party to the controversy will conduct complained of is capibie of repetition yet avoiding review; or decision. Coady v. Pennsylvania Board of Probation and suffer some detriment without the court's parole,The Commonwealth Court of pennsylvania, No. 598 M. D. 2001, "an unreported single-judge 'Memorandum OPinion"'

non-moot , while others In some cases it is argued that one or more of these three circumstances render the case an important distinction, This is not aver that the three are excepti|ns to cases which are moot in the ordinary situation.
since, present one ofthe factors, the case should be heard' The present case falls under each ofthe three named exceptions and is not moot: question of Exception 1 : The present case involves a question of extreme public importancg. I_t goes to the protected against fraud and dishonesty in the conduct of their elections. It goes to the very whether the citizenry is to be heart of our self government.
has Exception 2: The complaint here is that the legitimacy of the candidates, where the legitimacy of at least one is without any question a complaint can, and probably will recur. Moreover' we need look been determined to be in doubt,

verify the eligibility of those seeking office' It is clear that the Secretary of state has a duty to

opinion' the contrary is the Alabama Attorney General's The bulk of Defendant,s meritless argument to
Defs. Mo. Dismiss at 2. This opinion states, in full: ,,The Secretary of state does not have an obligation to evaluate all of the qualifications candidates for state offices prior to of the nominees of political parties and independent judges pursuant to sections 17-7certifying such nomin.., und candidates to the probate of State has knowledge 1 and I7-t6-40 of the Code of Alabama. If the Secretary

gainedlromanofficialsourcearisingfromtheperformanceofdutiesprescribedby
time names it is impracticable to adjudicate such cases between the no further that the present case to conclude that candidates are submitted to the Secretary of State'

of

will suffer a detriment in that as citizens they will have Exception 3: Without a decision of the court, the plaintiffs candidates were was'conducted honestly, and that only votes of legitimate been deprived of the assurance that their election
counted and recorded. in reach a decision on nonmootnes is that of Roe v' llade' The best known case of application of these rules to part: which Justice Blackmun, writing for the majority, said in must exist at stages ofappellate or certiorari The usual rule in federal cases is that an actual controversy United States v' Munsingwear' lnc'' 340 U'S' 36 review, and not simply at the date the action is initiated'

(1950);Goldenv.Zwickler,supra;SECv.MedicalcommitteeforHumanRights'404U'S'403(19'72)'
the normal 266-day human gestation But when, as here, pregnancy is a significant fact in the litigation, before the usual appellate process is complete' lf that period is ,o ,hoJ trrai trr! pr.gnun"y *ill .or. to term will survive much beyond the trial stage' and termination makes a case moot, pregnancy litigation seldom not be that rigid' Pregnancy often comes more appellate review will be effectively denieO' Our law should if man is to survive, it will always be with us' than once to the same woman, and in the general population, of pregnancy provides a classicjustification-for a conclusion ofnonmootness. It truly could be "capable ."p.tition, yet evading review'" Roe v' Ilade,4l0 U'S' 1 l3' 166 (1973)' County, Texas claiming she had a right to In Roe the pregnant Jane Roe was suing the District Attorney of Dallas baby long before the case reached the Supreme Roe had her an abortion, the Texas law outlawing abortion nit*ithstanding. to grant her relief' But, as seen case it wo-uld be moot. lt was obviously too late for the court court, and in an ordinary above, the court applied the mootness exceptions and heard the case' since it involves the Secretary of State and an In Alabama, the case ofAllen v. Bennett is particularly instructive, Jim Bennett erroneously left him off the ballot for circuit judge in election that is past. Allen claimed that Secretary of State addressed the question of mootness: " AIlen's appeal the November 2000 general election. The Alabama Supreme court Howeveq because the outcome of this case presents a moot qu"rlion and that, therefore, the appeai should be dismissed. (ltalics added.) Allen v' Bennelt, Alabama Supreme could impact future elections, we hold that... this case is not moot."

Court,1992289, (2001)

and should be heard' For the reasons discussed above, this case should not be dismissed for mootness,

qualification [such as a candidate's law, that a candidate has not met a certifying the Secretary of State failure to file a Public statement of Economic Interestl, should not certify the candidate"'
case added). The attorney general's opinion is not Attorney General,s opinion No. r99g-200 (Emphasis

pub. safety v. Barbour,5 So. 3d 601' 609 (Ala' precedent binding on this court. Ara. Dep,t of

civ' App'

So. 2d 854 (Ala' 1999)' Nevertheless' 2008) citingAnderson v. Fayette county Bd. of Educ.,738

it

officer on behalf of the state that constitutes an admission by Arabama,s chief raw enforcement

if

official source about a candidate's eligibility the secretary of state has knowledge gained from an
,,should not,, certify the candidate. The example cited "such as a candidate's failure to file then she
a public statement

of Economic Interest" is simply demonstrative of

disqualifying factor and is not an

exhaustive list.
supreme law of the land, are also The requirements of the U.s. constitution, which is the
states: disqualifying factors. Article II, Sec. l, Cl. 5 of the Constitution

of President; neither the Adoption of this Constitution, shall be eligible to the Offrce attained to the Age of shall any person be eligible to that Office who shall not have States'" thirty five years, and beJn fourteen Years a Resident within the United
of President of the United States be: Thus, the u.S. constitution requires that those seeking the office

,,No person except a natural born Citizen, or a Citizen of the United States, at the time

of

l)naturalborncitizens,2)atleast35yearsofage,and3)aresidentforl4years'

Anaturalbomcitizen

Plaintiffs Motion for is one who is born within the United States to two U.S. citizen parents. See
from an "official source"' Summary Judgment. plaintiffs have shown, backed by sworn affidavits
is not a natural born Sheriff Joseph M.Arpaio and his investigator, Mike Zullo,that Barack H. Obama
as to the contents of citrzeneligible to be president. These same affiants are available to testify at trial

States and their affidavits. There is credible evidence that Mr. obama was not born within the united

are legitimate, at that his birth certificate or other identifying documents are fraudulent. Even if they

to a U.S. citizen the very best they will demonstrate that Mr. Obama was born within the United States
fact, Mr' mother and a father who was born in Kenya, a British colony, and was never a U.S. citizen. In

Mr' Obama cannot the United States. It is thus clear that Obamas father was later dePorted from
establish his

eligibility because he isnoteligiblefortheof|rceofPresidentoftheUnitedStates.

never asked for the Secretary of State to Despite Defendant,s disingenuous claims, Plaintiffs
check the

Instead, Plaintiffs (one of whom is a eligibility of the hundreds of people running for office.

of State verify the eligibility of those running presidential candidate) are seeking to have the Secretary

for President of the United States'

its own criteria for eligibility' The Nor are plaintiffs requesting the state of Alabama to set There is no federal procedure -- none -- for criterion has already been set by the U.S. Constitution.
has the authority to judge verifying eligibility of a candidate. To argue that "only Congress

facto' an exclusively federal qualifications" is simply wrong. A presidential election is not, ipso
select the President, are to be process. In fact, Presidential Electors, those chosen to ultimately

Article designated exclusivery by the state regisratures. U.S. const.

II, Sec. 1, cl. 2. Presidential

both the state and federal govemment' elections are thus a cooperative and complementary effort of congress' power or procedure Defendant cites to no authority, statutory or otherwise, that demonstrates to verify eligibility. Nor can she.
Defendant,s reliance

on

the Robinson v. Bowen, 567 F.Supp.2d 1 144, is misplaced' In Robinson,

case here'

not the court wasasked to examine the eligibility of a presidential candidate. That is simply

plaintiffs have requested this Court to issue

writ of mandamus ordering the Secretary of State to

the state of verify Mr. Obama's eligibility, in accordance with her duties as the chief election officer in
15' The Alabama. Further, the court in Robinson relied on the Twentieth Amendment and 3 U.S'C. $

Twentieth Amendment simply states the procedure

"fthe

President elect shall have failed to qualify."

and The Twentieth Amendment establishes an order of succession in case of a vacancy in the offrce makes no mention of the method of qualification. The same is true of 3 U.S.C. $ 15, which simply

the electoral votes, and objections states the procedure for counting

if improper votes are cast' Nothing

place specifically ofa candidate. These procedures are in is stated about challenging the quariJication and there is the offrce of president of the United States for after an election, or if there is a vacancy in

from determining the eligibility of the candidates' simply no statute baning the Secretary of state
candidates, can surely de-certify -- in effect The Secretary of State, having the power to certify

Mr. Obama proceeded at his own risk' He disqualify -- them if they are found to be ineligible. well as the other voters in this country, and incredibly defrauded the people of the state of Alabama as
born once having to prove that he was indeed a natural has served an entire presidential term without
citizen,despite all the evidence to the contrary'
has the ability to verify eligibility In sum, Defendant first concedes that the Secretary of State

argue to the contrary, based on credible evidence and then tries to disingenuously

citing no authority

"makes sense'" but rather twice making the claim that her argument Conclusion.
and most powerful It is time -- finally -- to ensure that the person we are entrusting the highest

of eligibility has become a political offrce of our country is eligible to serve for that offrce. The issue
the nation' But the rule of law must hot potato, in effect a sticky matter for judges and courts around not be sidestepped through legally eventually govern, without regard to politics, and cannot and should

plain language of the U'S' convenient and politically correct court rulings which ignore the
Constitution.

Dated: November 28, 2012

Respectfully submitted,
/s/ Lgrflt Klqvmgn Lany Klayman, Esq. Klayman Law Firm 2020 PennsylvaniaAve. NW, Suite 800 Washington, DC 20006 Tel: (310) 595-0800 Email : leklayman@gmail.com

/s/ L. Dean Johnson L. Dean Johnson (JOH046) L. Dean Johnson, P.C. 4030 Balmoral Dr., Suite B Huntsville, AL 35801 Tel: (256) 880-5177 Fax: (256) 880-5187 Email: johnson dean@bellsputh.net

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 28th day of November, 2012,I filed the foregoing with the Clerk of Court using the Alafile system, which will send notification of such filing to the following:
Hon. Luther Strange Margaret L. Fleming James W. Davis Laura E. Howell Attorney General of Alabama 501 Washington Street Montgomery Alabama 361 30

/s/ L. Dean Johnson Of Counsel