I’m going to be away from the Internet for a week starting Saturday. This article is where you may discuss the progress of Voeltz v. Obama in Florida. There was a hearing in Florida this morning in the case and Judge Lewis has previously stated that he intends to render a decision expeditiously.
Since there will unquestionably be an appeal of the Judge’s ruling, I think the teleconference hearing today is a chance for all sides to get their arguments into the record for that appeal (appeals cannot introduce new arguments or claims).
WorldNetDaily made a huge publicity splash for the last hearing including a live video feed, but has not even mentioned the one today. That’s not really a surprise since it’s almost certain to be dismissed. No news from the hearing yet.
Note that all of the documents from this case are available on the Court’s “High Profile Cases” page.
Update:
Based on comments at the Obama Ballot Challenge site, it appears that Judge Lewis has struck the “Second Amended Complaint”.
I’ll get the party favors and Chex Mix ready!
The lack of news would point to a Friday Smackdown(tm), as I can imagine Larry would be all over the interwebs if they got anything resembling a positive result.
I found this on ObamaBallotChallenge.com:
“Judge Lewis denied Plaintiff’s 2nd Amended Complaint, which requested a declatory judgement. Attorney Larry Klayman pointed out there is nothing to stop him from filing a new complaint with that in it, but Lewis wouldn’t change his mind. So, we have to spend another $600 to do that and tie up more court resources. In any case, the existing case arguments stand and must still be decided upon, too. Folks, we are running behind on resources to fund the case as it is already, so any help would be appreciated.”
That is the entire post.
http://obamaballotchallenge.com/report-on-voeltz-v-obama-teleconference-hearing-today
Birthers are going broke? I guess that means we’ll be seeing fewer of these cases.
With any luck the people donating to these attorneys will realize that the money could be used for much more useful things…like claw machines!
That’s the best news I’ve heard all day.
Maybe they should pool their IQ points.
…or a nice quick prefrontal lobotomy.
Hey, I can dream.
How is Klayman going to “file a new complaint with that in it” if the current one was not dismissed?
Because he is an idiot, and being stupid allows you to defy the machinations of time, physics, and legal procedure!
ROTFLMAO!!! +1000 😉
Voeltz has a new piece up at The Steady Drip, but it doesn’t mention the results of yesterday’s hearing. At least I don’t think it does-my eyes glazed over while reading it. http://thesteadydrip.blogspot.com/2012/06/point-in-time-understanding-natural.html
Vacation delayed due to massive power outages on the East Coast.
Doc, it’s not–.ZOMBIES, is it?
YIkes! Sorry to hear about that… 🙁
Weird. I was in the movie theatre last night when a surge happened. Didn’t realize we had actual power outages
Sorry to hear you were affected. Hope it is simply a scheduling headache but that you and yours are all safe and sound.
Having survived last year’s Great Southern California blackout here in San Diego, I empathize with you, Doc.
Stay well and safe/
No problem for me. I’m still home with 100 degrees outside and air conditioned cool inside. But it has to be miserable for the 3 million or so folks without power where I was going for the vacation.
http://www.denverpost.com/nationworld/ci_20978103/gop-plots-2013-strategy-health-care-repeal?source=rss
Klayman has finally given his version of yesterday’s hearing to WND.
According to Klayman, his Second Amended Complaint was denied in an absolutely desperate attempt by the Obama lawyers to avoid a declaratory judgement on Obama’s eligibility! ROFLMAO!!
http://www.wnd.com/2012/06/unexpected-turn-in-eligibility-case-put-it-on-record/#comment-573157227
Like most WND articles, that piece of dreck is full of so many falsehoods, misleading innuendo and propaganda that it is hard to ascertain what small nuggets of reality are actually woven into the tale. All we really know is that they had their hearing and the judge denied the Second Amended Complaint. We’ll have to wait for the transcripts to be released to find out what really happened… which is likely to bear very little resemblance to this cooked up story…
It must be the Carbon Tax that went into effect in Australia today.
The opposition party has been claiming that the sky will fall in and industrial towns and port cities will be ghost towns on Monday morning.
The Carbon Tax has been in effect for ten and a half hours now and there is no sign of mass exodus from Whyalla or Port Pirie yet, but maybe the effect missed its target and hit you folks instead.
DOCKET ENTRY ON HEARING
http://judicial.clerk.leon.fl.us/image_orders.asp?caseid=58101756&jiscaseid=&defseq=&chargeseq=&dktid=20039029&dktsource=CRTV
Woo-Hoo! Good job, Judge Lewis, decision first thing Monday morning. Not to brace ourselves for the birth-a-palooza when they hear about it.
He executed that on the 29th. No wonder WND / Klayman kept that conference under wraps! Now I really want to see that transcript! LOL!
richcares… I, along with many others I know, can not open any links related to Leon County or the Voeltz case. Could you copy and paste the docket entry, at least?
Thanks in advance.
Dismissed with prejudice…so they can’t refile. That’s why they were begging for money so hard, before they could be found out.
IN THE CIRCUIT COURT OF THE SECOND JUDICAL CIRCUIT, IN AND FOR LEON COUNTY, FLORIDA
MICHAEL C. VOELTZ, CASE NO. 2012-CA-00467
Plaintiff,
BARACK HUSSEIN OBAMA, Florida
Democratic Party Nominee to the 2012
Democratic Party Convention,
KEN DETZNER, Secretary of State of Florida, and FLORIDA ELECTIONS CANVASSING COMMISSION,
Defendants.
/
ORDER GRANTING BARACK OBAMA’S AND SECRETARY OF STATE KEN DETZNER’S MOTION TO DISMISS AMENDED COMPLAINT
This case is before me on motions to dismiss filed by Defendants Obama and Detzner. The amended complaint challenges the nomination of Defendant Obama as the Democratic Party’s nominee for the office of President of the United States, pursuant to Section 102.168, Florida Statutes. The Plaintiff alleges that candidate Obama is not eligible for that office because he is not a “natural-hom citizen” within the meaning of Article II, Section 1 of the Constitution
of the United States. Because I find that the plaintiff has not and cannot state a cause of action for the relief requested under Section 102.168, Florida Statutes, I grant the motions to dismiss with prejudice.
There are several deficiencies in the complaint, but the biggest problem, and one which cannot be overcome by amending the complaint, is that Section 102.168, Florida Statutes, is not applicable to the nomination of a candidate for Office of President of the United States. This statute provides, in pertinent part, as follows:
Page 1 of 7
(1) Except as provided in s. 102.171, the certification of election or nomination of any person to office, or of the result on any question submitted by referendum, may be contested in the circuit court by any unsuccessful candidate for such
office or nomination thereto or by any elector qualified to vote in the election
related to such candidacy, or by any taxpayer, respectively.
Plaintiff argues that President Obama has been nominated as the Democratic Party’s candidate for the office by virtue of the fact that he had no opposition for the Presidential Preference Primary Election. Under Florida Statutes Section 97.021(28), ‘”Primary election’ means an election held preceding the general election for the purpose of nominating a party nominee to be voted for in the general election to fill a national, state, county, or district office.” Because Mr. Obama was the only candidate for that primary election, Plaintiff argues that Florida Statutes, Section 101.252(1) applies. That provision reads as follows:
“Any candidate for nomination who has qualified as prescribed by law is entitled to have his or her name printed on the official primary election ballot. However, when there is only one candidate of any political party qualified for an office, the name of the candidate shall not be printed on the primary election ballot, and
such candidate shall be declared nominated for the office.” [Emphasis added]. Florida’s Supreme Court has confirmed that “[w]hen only one candidate for a political party qualifies, that candidate is the party’s nominee.” Republican State Exec. Comm. v. Graham, 388
So. 2d 556, 557 (1980).
If the plaintiff was challenging the candidate’s eligibility for any other office, his analysis would be correct and these provisions would apply. The Office of President of the United States, however, is treated differently under Florida law. In every other political office, any person can qualify to run as a Democrat or Republican in a primary election and if she receives the greatest number of votes, she is, by law, that party’s nominee for the general election. Candidates for
these other offices are required to file certain documents and pay a qualifying fee (or sufficient
petitions) during a specific time period. In 2012 that qualifying period ran from noon on
Monday, June 4, 2012 until noon on Friday, June 8, 2012.
Presidential candidates do not qualify during that period or pursuant to that process. Rather, Section 103.021, Florida Statutes, provides that presidential electors are designated by the respective political parties before September 1 of each presidential election year and
nominated by the Governor. 1 The respective major political parties determine their nominee at a
national convention pursuant to rules that the parties draft and approve. The Presidential Preference Primary Election in Florida is an integral part of that process for the parties, but as it relates to Florida law, there is no qualifying and no certification of nomination of the candidate as a result. Thus, under Florida law, Mr. Obama is not presently the nominee of the Democratic Party for the office.
1 Section 103.021(1) and (2), Florida Statutes (2011), provides as follows:
Nomination for presidential electors. -Candidates for presidential electors shall be nominated in the following manner:
(1) The Governor shall nominate the presidential electors of each political party. The state executive committee of each political party shall by resolution recommend candidates for presidential electors and deliver a certified copy thereof to the Governor before September 1 of each presidential election year. The Governor shall nominate only the electors recommended by the state executive committee of the respective political party. Each such elector shall be a qualified elector of the party he or she represents who has taken an oath that he or she will vote for the candidates of the party that he or she is nominated to represent. The Governor shall certify to the Department of State on or before September 1, in each presidential election year, the names of a number of electors for each political party equal to the number of senators and representatives which this state has in Congress.
(2) The names of the presidential electors shall not be printed on the general election ballot, but the names of the actual candidates for President and Vice President for whom the presidential electors will vote if elected shall be printed on the ballot in the order in which the party of which the candidate is a nominee polled the highest number of votes for Governor in the last general election.
The question remains whether or not this case should be stayed in anticipation that Mr. Obama will, in fact, be nominated at the national convention of the Democratic Party. Will the Plaintiffs election contest then be ripe for adjudication? I conclude not, as there has not been, and never will be, a nomination by primary election or qualification as contemplated under Florida law. Neither the Plaintiff nor any other elector will determine by vote the nomination. Thus, regardless of who is nominated by the party at the national convention, Plaintiff would not be able to amend his complaint to challenge the nomination under Section 102.168, Florida Statutes.
Even if Section 102.168, Florida Statutes, was applicable to a challenge to the “nomination” of a candidate for Office of the President of the United States, the amended complaint fails to state a cause of action for the relief requested. Specifically, the amended complaint alleges that the candidate has not demonstrated, and the Secretary of State has not confirmed, that the candidate is a “natural born citizen” as required by the United States Constitution. It is the plaintiffs burden, however, to allege and prove that a candidate is not eligible. The Secretary of State also has no affirmative duty, or even authority, “to inquire into or pass upon the eligibility of a candidate to hold office for the nomination for which he is running.” Taylor v. Crawford, 116 So. 41, 42 (Fla. 1928); see also Cherry, 265 So. 2d at 57 (stating that nothing “places a duty upon or empowers the Secretary of State to conduct an independent inquiry with respect to circumstances or fact dehors the qualifying papers”); Hall v. Hildebrand, 168 So. 531, 364 (Fla. 1936) (finding that the filing officer “has neither the
responsibility nor the authority to pass judgment upon the supposed ineligibility of candidates for office”).
Plaintiff alleges that the Secretary’s oath to “support the U.S. Constitution” “creates an absolute ministerial duty” on him to determine the eligibility of presidential nominees. I disagree. “The duties that fall within the scope of mandamus are legal duties of a specific, imperative, and ministerial character as distinguished from those that are discretionary.” Cherry v. Stone, 265 So. 2d 56, 51 (Fla. 1972). An oath to “support the U.S. Constitution” is not a “specific, imperative” duty to do anything of a ministerial character, let alone a specific
imperative to verify the eligibility of presidential nominees or candidates. Cherry v. Stone, supra at 57. Plaintiffs allegations are thus insufficient to justify a writ of mandamus directed to the Secretary.
Plaintiffs alternative request for mandamus against the Court is also insufficient for similar reasons. Plaintiff makes no allegation supporting any of the elements for a writ of mandamus against the Court. Additionally, this Court lacks jurisdiction to consider the issuance
of mandamus directed to it. See Davis v. State, 982 So. 2d 1246 (Fla. 5th DCA 2008) (noting that
“a court cannot logically issue a writ of mandamus to itself.”)
In oral argument on the motion, the plaintiffs attorney advised the court that if given an opportunity to amend the complaint, the plaintiff could affirmatively allege that the candidate was not born within the territorial jurisdiction of the United States. Thus, that defect could theoretically be remedied. The second prong of the plaintiffs challenge, however, is also
deficient and cannot be remedied. Specifically, the plaintiff alleges that even if the candidate was born within the territorial jurisdiction of the United States, he was not born of two parents who were American citizens and therefore cannot be a “natural born citizen” as required by the Constitution.
I have reviewed and considered the legal authority submitted by the Plaintiff and the Defendants on this issue and conclude as a matter of law that this allegation, if true, would not make the candidate ineligible for the office. Article II, Section 5 of the Constitution of the United States provides:
No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.
“The Constitution does not, in words, say who shall be natural-born citizens.” Minor v. Happersett, 88 U.S. 162, 167 (1875). However, the United States Supreme Court has concluded that “[e]very person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States.” Other courts that have considered the issue in the context of challenges to the qualifications of candidates for the office of President of the United States have come to the same conclusion. See Hollander v. McCain, 566 F. Supp. 2d 63,66 (D.N.H. 2008) (“Those born ‘in the United States, and subject to the jurisdiction thereof have been considered American citizens under American law in effect since the time of the founding and thus eligible for the presidency.”) (citations omitted); Ankeny v. Governor of Indiana, 916 N.E.2d 678, 688 (Ind. Ct. App. 2009) (citing Wong Kim Ark, and holding that both President Obama and Senator John McCain were “natural born citizens” because “persons born within the borders of the
United States are ‘natural born [c]itizens’ for Article II, Section 1 purposes, regardless ofthe citizenship of their parents.”).
Thus, for procedural and substantive reasons, the complaint is legally deficient and should be dismissed. The question remains, should it be dismissed with prejudice, i.e., without leave to amend. Dismissal with prejudice should only be granted if it conclusively appears there
is no possible way to amend the complaint to state a cause of action. As noted above, I can’t see how the Plaintiff could amend the complaint and proceed under Section 102.168, Florida Statutes.
Plaintiff could perhaps contest the election if the candidate is successful. The Defendants argue that such a challenge is foreclosed as well, but as the complaint sought to challenge only the nomination, I do not reach the issue of whether Plaintiff might properly file an election contest action after the general election. Suffice it to say that Plaintiff could not, under any existing facts, amend the complaint to contest an election that has not occurred.
Plaintiff suggests the possibility of a declaratory judgment claim, but I don’t see how Plaintiff, as an individual voter, would have standing to seek declaratory relief. In short, I am unable to conceive of any other legal theory upon which the Plaintiff could proceed at this time relative to the relief sought.
While these motions to dismiss were under advisement, Plaintiff filed a second amended complaint which was not authorized. The Secretary and the Commission have moved to strike it, which I grant.
Therefore, for the reasons expressed herein, it is ORDERED AND ADJUDGED, that: The Motions to Dismiss the Amended Complaint are GRANTED and the Plaintiffs
Amended Complaint is hereby dismissed with prejudice. The Second Amended Complaint is stricken.
DONE AND ORDERED in Chambers at Tallahassee, Leon County, Florida, this …tit
day of June, 2012.
cc: \pies to Counsel of Record
I believe that would be the sound of a door slamming in a birther’s face.
Thanks for inserting the judges statement. Look at how WND reported Klayman’s account of what happened! http://tinyurl.com/73fyzrn
Instead of admitting he was blown out of the water, “Klayman told WND Obama’s lawyers immediately went into a tailspin and filed to have the amendment for declaratory relief stricken, which the judge granted,…” This would be like the gunnery officer of H.M.S. Hood reporting to his captain as both were thrown into the stratosphere as that ship blew up, that the Bismark must have sunk, since Hood was receiving no more incoming 15 inch shell hits.
More Klayman misleading lines:”Klayman said. “By amending for declaratory relief, we’re pulling the rug right out from Obama and the Florida secretary of state.” and “…Klayman said his team is willing to file a stand-alone complaint for declaratory relief with Lewis as soon as next week and “pull the rug out from under him, too.”
Klayman is obviously out tilting the same old WNDmill. He’s written a book titled, “Whore”.
It’s got to an autobiography.
Klayman doesn’t have the sense of the fellow who said “You don’t have to shoot me no more, mister, I’m dying as fast as I can.”
I took a look over at the Steady Drip and there’s a picture of Arpaio up there with an article about the impending release of more “shockers” that makes me think this whole Zombie thing might be more relevant than I thought. Then I took a look over at Jerry Collette’s website. Sewell and Collette sure don’t want anybody overlooking their “intelligence”, do they?
Thanks, richCares.
FL – Voeltz v Obama – DISMISSED
http://nativeborncitizen.wordpress.com/2012/07/02/fl-voeltz-v-obama-dismissed/#more-24836
http://www.scribd.com/doc/98870359/2012-06-29-VOELTZ-ORDER-of-Dismissal
Obama’s lawyers went into such a tailspin over the second amended complaint that they filed nothing at all – they must have been really blown away. Instead, it was the Secretary of State that filed to have the SAC struck from the record.
Hmmm, Arpaio news conference was announced roughly at the same time Klayman burned down.
Swingin’ from tree to tree, aren’t they? 😉
Tarrant :
6/22/2012 JOINT MOTION TO STRIKE UNAUTHORIZED SECOND AMENDED COMPLAINT
JPotter:
Hmmm, Arpaio news conference was announced roughly at the same time Klayman burned down.
Swingin’ from tree to tree, aren’t they?
sorta like boehner calling for the holder contempt vote on the same day the ACA decision was released – when was the last/first time that these free hot air types didn’t use the camera and microphone to boast? if the contempt vote were worthwhile, it would have occurred on wednesday or friday
Klayman explains why Judge Lewis is wrong (well that changes evrything!):
http://www.wnd.com/2012/07/judge-issues-ruling-in-obama-eligibility-case/
And all this time I thought it went the other way.
Donna:
There was a joint motion to strike, yes, but only the Secretary of State and the Florida Elections Commission joined it. The President’s counsel did not join the motion nor file a separate one.
And according to Klayman, the judge was SO WRONG that an appeal will be easy!
Easy to convince his suckers to click the PayPal button, maybe. Easy for the defendants/appellees, maybe. But for Klayman’s chances? Good luck with that.
Tarrant: i stand corrected – grazie mille
“Easy to convince his suckers to click the PayPal button, maybe. ”
yeah, pam barnett already did some birther begging
“So, we have to spend another $600 to do that and tie up more court resources. In any case, the existing case arguments stand and must still be decided upon, too. Folks, we are running behind on resources to fund the case as it is already, so any help would be appreciated.”
http://nativeborncitizen.wordpress.com/2012/06/29/fl-voeltz-v-obama-hearing/
Yeah, because a complete shredding of every argument in one’s case *always* makes arguing appeal “cakewalk*… *rolls eyes*
…Because that has worked *so well* for EVERY Birther scam artist lawyer in appealing their own smackdowns before…
At some point, you just have to completely stop feeling sorry for the gullible marks out there that keep falling for the Birther con over and over again and keep throwing their money away on these losers.
I mean, how dumb and self-destructive can one be??? Obviously, with the level of brain damage that irrational hate can cause, there simply is no limit to their masochistic stupidity at all…
The case was dismissed with prejudice, but Klayman says they filed a new complaint. What am I missing?
“In any event, Plaintiff Micheal Voeltz filed a new complaint today for declaratory relief, which will, in addition to his appeal, now proceed forward.”
That Klayman is always full of crap? It’s my understanding that he can’t add/amend as he appeals Lewis’ decision. If he could, then civil cases could be strung out forever, just keep filing more stuff.
As always, IANAL.