IN - Taitz v IEC & SOS - 2012-04-16 - IEC-SOS Motion for Sanctions

8/2/2019 IN - Taitz v IEC & SOS - 2012-04-16 - IEC-SOS Motion for Sanctions

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STATE OF INDIANACOUNTY OF MARIONORLY TAITZ, KARL SWIHART,EDWARD KESLER, BOB KERN,and FRANK WEYL

Petitioners,v.

)) SS:)

))))))))INDIANA ELECTION COMMISSION, )

and INDIANA SECRETARY OF )STATE,

Respondents.)))

IN THE MARION SUPERIOR COURTCAUSE NO. 49D14-1203-MI-012046

APR 172012a,ly'>IA ( wM-PC L E R } ! O ~ ( n E . ~ . l A : : : c N c m c U l T C O U R T

MOTION FOR SANCTIONSRespondents, the Indiana Election Commission ("IEC") and the Indiana Secretary of

State, by Deputy Attorneys General Kate Shelby and Jefferson Gam, pursuant to Indiana Rule ofTrial Procedure 11 and Indiana Code 34-52-1-1, hereby respectfully move the Court sanctionPetitioners and their counsel, if any, for bringing frivolous, umeasonable, and groundless claimsagainst Respondents and to award Respondents their costs and attorney fees incurred in theirdefense in this cause.

I. PETITIONERS' COMPLAINT IS FRIVOLOUS, UNREASONABLE, ANDGROUNDLESSFor the reasons set forth in Respondents' Motion to Dismiss and Memorandum in

Support thereof, I Petitioners' Petition for Emergency Injunctive and Declaratory Relief

("Petition") against Respondents is frivolous, umeasonable, and groundless. A claim is frivolousif

I Respondents hereby incorporate their Motion to Dismiss and M e m o r a n d u ~ in SUppOtt of saidMotion into this filing.1


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it is taken primarily for the purpose of harassment, if the attorney is unable tomake a good faith and rational argument on the merits of the action, or if thelawyer is unable to support the action taken by a good faith and rational argumentfor an extension, modification, or reversal of existing law.

Elbert v. Elbert, 579 N.E.2d 102, 114 (Ind. Ct. App. 1991). In order to determine if a claim isunreasonable, a court must look "to the totality of the circumstances, including the law and factsascertainable at the time of filing." McDonald v. McDonald, 631 N .E.2d 522, 524 (Ind. Ct. App.1994). A claim is unreasonable if "no reasonable attorney would consider the claim worthy oflitigation." Id., citing General Collections, Inc. v. Decker 545 N.E.2d 18, 20 (Ind. Ct. App.1989). "A claim or defense is 'groundless' if no facts exist which support the legal claimpresented by the losing party." Alaska Seaboard Partners Ltd. P'ship v. Hood, 949 N.E.2d 1247,1256 (Ind. Ct. App. 201\).

Petitioners' Petition is an unlawful attempt to circumvent the judicial review process andthe requirements of Indiana Administrative Orders and Procedures Act, Indiana Code 4-21.5-1-1 et seq. ("AOPA"). Two of the Petitioners - Orly Taitz and Bob Kern - do not have standing toseekjudicial review ofIEe's unanimous decision to deny the challenges to President Obama'squalifications for the office ofUnited States President because they did not file challenges withthe IEC that were heard during the February 24th meeting wherein the IEC denied the otherPetitioners' challenges. See Ind. Code 4-21.5-5-2. Furthermore, Petitioners failed to meet theprocedural requirements ofAOPA, divesting this Court of its authority to entertain this matter.See Ind. Code 4-21.5-5-7; Ind. Code 4-21.5-5-8; Ind. Code 4-21.5-5-14.

Moreover, Petitioners are not entitled to injunctive or declaratory relief because saidrelief is not available under AOPA. See Scales v. Hospitality House ofBedford, 593 N.E.2d1283, 1286 (Ind. Ct. App. 1992). Even if the Petition was construed as a request for a stay underIndiana Code 4-21.5-5-9, Petitioners did not verity their request, did not provide a bond, are

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requesting relief that is not available (disruption of the status quo), and have failed to prove thatthe IEC's unanimous denial of the challenges was illegal or invalid. Indeed, it is clear that theIEC does not have the power to detennine a candidate or incumbent President's qualifications forthe office of United States President. The United States Constitution has reserved that powerexclusively to Congress. See U.S. Const., Art. II, 1. The IEC had no choice but tounanimously deny Petitioners' challenges.

In view of these facts and laws, which are known to Petitioners (at least one of whom isan attorney), "no reasonable attorney would consider" their claims against Respondents as"worthy oflitigation." Id. at 524. Petitioners have no "good faith or rational argument on themerits" of their claims against Respondents. Elbert, 579 N.E.2d at 114. Finally, "no facts existwhich support" Petitioners' claims against Respondents. Alaska Seaboard Partners Ltd. P'ship,949 N.E.2d at 1256. Petitioners cannot circumvent AOPA by requesting injunctive anddeclaratory relief in this Court and not mentioning the administrative proceedings in front of theIEC. The relief that Petitioners seek is not allowable pursuant to Indiana law. The IECrequired by the United States Constitution to deny Petitioners' frivolous challenges to PresidentObama's qualifications for United States President. Petitioners' claims against Respondents failas a matter of law on their face. They are frivolous, unreasonable, and groundless.

II. THIS COURT SHOULD SANCTION PETITIONERS AND AWARD COSTS ANDFEES TO RESPONDENTSUpon reviewing Petitioners' claims, the incoherent and irrelevant exhibits attached

thereto, and Indiana law, Deputy Attorney General Je ff Garn contemplated sending a Rule 11letter to one or more of the Petitioners who properly filed their contact information with theCourt. However, after receiving a phone call from Bob Kern, wherein Kern stated that he wasgoing to sue Garn for defamation, Gam realized that no productive conversations regarding the

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merits of this case could be had between Petitioners and counsel for Respondents in this case.It is also important to note that Petitioner Taitz has been sanctioned in at least one case

wherein she challenged President Obama's qualifications for the office of United StatesPresident. See Order by the Middle District of Georgia, attached hereto and incorporated hereinas Respondents' Exhibit 1. Taitz has taken her frivolous political fight all over this country, andher conduct has been admonished. See id.

Petitioners' action is frivolous, unreasonable, and groundless. Consequently, this Courtshould sanction Petitioners pursuant to Indiana Rule ofTrial Procedure 11. The Petition is notsuppOlted on good grounds, and no reasonable attorney would bring such a suit. Judgment infavor ofRespondents and monetary penalties are appropriate sanctions in this instance.

Moreover, this Court should award Respondents their costs and attorney fees indefending this suit pursuant to Indiana Code 34-52-1-1. That provision states:

(a) In all civil actions, the party recovering judgment shall recover costs, except inthose cases in which a different provision is made by law.(b) In any civil action, the court may award attorney's fees as part of the cost tothe prevailing party, ifthe court finds that either party:(1) brought the action or defense on a claim or defense that is frivolous,unreasonable, or groundless;(2) continued to litigate the action or defense after the party's claim ordefense clearly became frivolous, unreasonable, or groundless; or(3) litigated the action in bad faith.

Ind. Code 34-52-1-1(a) and (b). As stated above, Petitioners' claims against Respondents are"frivolous, umeasonable, or groundless." Id. At least one Petitioner, Orly Taitz, has "continuedto litigate" her claims after being admonished in other courts for her actions. Id. Finally,Petitioners did not have a good faith basis for bringing this suit. Petitioners' own exhibits make

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it clear that their case is frivolous, groundless, and unreasonable. Respondents are, therefore,entitled to their costs and attorney fees incurred in their defense. 2

Petitioners' frivolous, unreasonable, and groundless Complaint has wasted judicialresources, the State's resources,. and taxpayer dollars. This Court should sanction Petitioners andby imposing monetary penalties on them and awarding judgment in favor ofRespondents, andthe Court should award Respondents their costs and attorney fees incurred in the defense of thismatter.

WHEREFORE, Respondents respectfully move this Court to sanction Petitioners and toaward Respondents their costs and attorney fees in this matter.

By:

Respectfully submitted,GREGORY F. ZOELLERIndiana Attorney GeneralAttorney No. 1958-98

Kate ShelbyDeputy Attorney GeneralAttorney No. 28065-49

VERIFICATION FOR SECTION II OF THIS MOTION:I AFFIRM UNDER THE PENALTIES OF PERJURY THAT THE FOREGOING

REPRESENTATIONS ARE TRUE TO THE BEST 0 Y KNO EDGE AND BELIEF.

lefferso amDeputy Attorney GeneralAttorney No. 29921-49

'Counsel for Respondents will file an affidavit that sets forth their attorney fees in this matter if the Court grants thisMotion.

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CERTIFICATE OF SERVICE

I do hereby certify that a copy of the foregoing has been duly served upon all partiesa r ~ counsel of record listed below, by United States mail, first-class postage prepaid, on this~ ' d a y ofApril, 2012:

Information has not been provided to the Court or undersigned counsel regarding amailing address for the following Petitioners: Edward Kesler, Frank Weyl and Bob Kern.Orly Taitz29839 Santa Margarita Pkwy, Ste 100Rancho Santa Margarita, CA 92688Karl Swihalt460 Austin DriveAvon, IN 46123

OFFICE OF INDIANA ArrORNEY GENERALIndiana Government Center South, 5th Floor302 West Washington StreetIndianapolis, IN 46204-2770Telephone: (317) 232-6304Facsimile: (317) 232-7979E-mail: [email protected]

Kate ShelbyDeputy Attorney General

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IN - Taitz v IEC & SOS - 2012-04-16 - IEC-SOS Motion for Sanctions