PA - 2012-08-28 - SCHNELLER - Obama Motion to Strike and Dismiss Tfb

8/2/2019 PA - 2012-08-28 - SCHNELLER - Obama Motion to Strike and Dismiss Tfb

1/54

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In re: Nomination Petition ofBarack ObamaIn re: Nomination Petition ofPatrick MeehanObjection of: James D. Schneller

No.: 75 M.D. 2012

ORDERAND NOW, this __ day of______ upon consideration of the Motion to

Strike and Dismiss of Candidate President Barack Obama, and of the submissions of the partiesrelating thereto, it is hereby ORDERED that said Motion is GRANTED. Objector's Petition ishereby DISMISSED WITH PREJUDICE. Costs are awarded in favor of Candidate and againstObjectors in an amount to be determined. Candidate is directed to submit evidence of costsincurred pursuant to Section 977 of the Election Code within fourteen (14) days of the date ofthis Order.

BY THE COURT:

OB1I69192788.1


2/54



No.: 75 M.D. 2012

......

,.,., "U 0 __MOTION TO STRIKE AND DISMISS OF PRESIDENT BARACK O B ' ~ ~ : ~

K ) 2:"";- - :C ) U ) - 'r 'Candidate President Barack Obama hereby moves to strike and dismiss the o b j e ~ I : P f - < ....... -....... ,James D. Schneller on the following grounds: ,- 9 ~ g ~ CCo :: 0

1. Objector lacks standing to challenge President Obama's n o m i n a t i o ~ e t i t i o : ; because is not a member of the Democratic Party.

2, This Court lacks jurisdiction to consider a challenge to President Obama'seligibility under the U.S. Constitution for the office of President of the United States. Nocandidate's affidavit averring eligibility was filed, or required to be filed, under Section 910 ofthe Election Code, 25 P.S. 2870. Because no such affidavit was required or filed, this Courtlacks jurisdiction to consider a challenge to President Obama's eligibility.

3. The contention which is the sole basis for Objecto!'s challenge to PresidentObanla's nomination petition - that, despite being born in the United States, President Obama isnot a "natural born citizen" eligible to be President because his father was not a U.S. citizen - islegally meritless and has been uniformly rejected.

4. Under well-established law, objector carmot reserve the right to allege specificdefects in -:he nomination petition at a later date, but must do so, with specificity, in the petitionchallenging the nomination petition.

DB 1/ 69191726.1


3/54

In support of this Motion, Candidate President Barack Obama relies on and incorporatesby reference the attached Memorandum of Law and exhibits thereto.

WHEREFORE, Candidate President Barack Obama prays that Objector's Petition bestricken and dismissed, with all costs assessed against objector.

DATE: February 28,2012

DB 11 69191726.1 2

Respectfully submitted,

ohn P. Lavelle, Jr., I.D. No. 542791701 Market StreetPhiladelphia, P A 19103(215) 963-4824 (telephone)(215) 963-5001 (facsimile)Attorney for Respondent CandidatePresident Barack Obama


4/54

PROOF OF SERVICEI hereby certify that, on this 28th day of February 2012, I caused the foregoing to be

served on the following parties in the manner indicated below:Service bye-mail and first class mail, postage prepaid:

DB 11 69191726.1

James D. Schneller430 East Lancaster Avenue #E25Saint Davids, PA 19087Telephone: 610-688-9471E-mail: [email protected] Pro Se

ohn P. Lavelle, Jr., I.D. No. 542791701 Market StreetPhiladelphia, PA 19103(215) 963-4824 (telephone)(215) 963-5001 (facsimile)Attorney for Respondent CandidatePresident Barack Obama

3


5/54



No.: 75 M.D. 2012

MEMORANDUM OF LAW IN SUPPORT OFMOTION TO STRIKE AND DISMISS OF PRESIDENT BARACK OBAMAObjector James D. Schneller seeks to prevent Pa. Democratic voters from casting ballots

in the upcoming Democratic primary supporting the re-election of the incumbent President of theUnited States, President Barack Obama. This objection is only the latest in a series of suchfilings around the country seeking to overturn through litigation the results of the 2008presidential election and to interfere with the electorate's consideration of the President'scandidacy for re-election. Courts have uniformly rejected virtually identical filings. This latest

objection should likewise be stricken and dismissed. Objector lacks standing to challengePresident Obama's nomination petition. Moreover, this Court does not have jurisdiction todetermine the qualifications of a candidate 's eligibility under the U.S. Constitution for the officeof President of the United States. Objector's filing is legally meritless and should be strickenand dismissed. President Obama was a United States citizen from the moment of his birth inHawaii. Since he held citizenship from birth, all Constitutional qualifications have been met.Ankeny v. Governor ofState of ndiana, 916 N.E.2d 678 (Ind. App., 2009); see United States v.Marguet-Pillado, 648 F.3d 1001, 1006 (9th Cir., 2011). There is no basis to question thePresident's citizenship or qualifications to hold office. Respondent should be awarded costsincurred in responding to this frivolous objection.

DBl/6919178S.1


6/54

I. BACKGROUNDObjector Schneller filed a "Petition To Set Aside Nomination Petitions ofBarack Obama

and Patrick Meehan, And To Test Title, With Petition to Convene 25 Pa.C.S. 2936 CommitteeTo Reject Nomination Petitions" with this Court on February 15,2012. Schneller does notallege any specific defect in President Obama's nomination petition under the Pa. Election Code.In particular, he does not contend that President Obama's nomination petition was defective inany specific respect under Section 976 of the Election Code, 25 P.S. 2936, that i t failed tocontain a sufficient number of genuine signatures of registered Pennsylvania electors or validcirculators' affidavits, or that the required filing fee was not paid. Rather, he purports to"reserve[] the right to object . . . on the basis of insufficiency of the number and/or quality ofsignatures and other defects" at some unspecified time in the future. Schneller Petition, at 12.The sole purported basis for his objection is his contention that President Obama is not a "naturalborn Citizen" eligible for the office of President of the United States under the U.S. Constitution.Schneller Petition, ~ ~ 4 1 - 4 5 and pp. 13-14. The bulk ofthe Petition is devoted to politicalcommentary concerning a purported effort by the two major political parties to "overthrow" thePennsylvania and United States Governments.

On February 22,2012, this Court entered an Order recognizing that Objector Schnellerhad combined in his single petition challenges to the nomination petitions of President Obamaand Patrick Meehan with requests seeking a committee convened pursuant to Section 976 of theElection Code and challenging the 2006 amendment to Section 910 of the Election Codeproviding that candidates for president and vice president need not file candidate affidavits. ThisCourt's February 22 Order limited the petition for review at No. 75 M.D. 2012 to objections tothe Nomination Petitions of President Obama and Patrick Meehan. The Court granted ObjectorSchneller leave to file a separate action asserting his purported claims concerning the committee

DB1/69191785.1 2


7/54

pursuant to Section 976 of the Election Code and the challenge to the 2006 amendment toSection 910 of the Election Code.

Mr. Schneller previously unsuccessfully asserted purported claims challenging PresidentObama's eligibility to serve as President of the United States. In December 2008, Schneller filedan Application for Extraordinary Jurisdiction, Petition for Emergency Stay and Injunction andPetition for Writ of Mandamus filed in the Pa. Supreme Court against then-Senator Obama aswell as the Secretary of the Commonwealth. The Supreme Court denied the Petition for Writ ofMandamus and Application for Emergency Stay And Injunction in a Per Curiam Order.Schneller v. Cortes, No. 199 MM 2008 (Pa. Jan. 8,2009) (attached as Exhibit A).

The Delaware County Voter Registration Office certified in correspondence toundersigned counsel on February 27,2012, that James Schneller, date of birth December 26,1955, is a registered elector in Delaware County at 500 E. Lancaster Ave., Apt. DIll , Wayne,PA 19087, and that Mr. Schneller is registered with "No Affiliation". See Exhibit B.II. ARGUMENT

A. Objector Lacks Standing To Challenge President Obama's NominationPetition Because He Is Not A Member Of The Democratic Party.Standing to challenge a nomination petition is a fundamental requirement. In re:

Nomination Petition ofFreeman, 540 A.2d 606, 610 n. 6 (Pa. Cmwlth. 1988). A personregistered in a party other than that of the candidate cannot vote in the candidate party's primaryelection and thus may not challenge the nomination petition. In re: Nomination Petition ofSamms, 543 Pa. 681, 674 A.3d 240 (1996); In re: Nomination Petition ofPas quay, 525 A.2d 13(Pa. Cmwlth.), aff'd, 515 Pa. 453, 529 A.2d 1076 (1987) (affirming on the basis of theCommonwealth Court 's opinion). A challenger who is a registered Republican does not havestanding to challenge a candidate's Democratic party primary nomination petition. In re:

DB1I69191785.1 3


8/54

Nomination Petition o/Williams, 625 A.2d 1279 (Pa. Cmwlth. 1993). As Judge Palladino of thisCourt explained,

Pennsylvania maintains a system of strictly partisan primary elections. Our antiparty raiding legislation provides that only registered electors of a particularparty may participate in that party's candidate selection process. No crossover voting is permitted. Only registered and enrolled members of a partymay sign the nominating petitions of party candidates, and even the right tocirculate a candidate's petition is strictly limited to members of that politicallli!!.tv.. Therefore, the conclusion is inescapable that while voting members of aparticular political party do have a substantial interest in assuring Election Codecompliance of the candidates in that party's primary election, non-members, whoare not eligible to participate in any manner, do not have such a substantialinterest.Pasquay, 105 Pa. Cmwlth. at 535 (citations omitted and emphasis added).Objector fails to satisfy this basic requirement of standing. He does not allege that he is a

member of the Democratic Party. To the contrary, he avers erroneously that he "is not requiredto be a member of either major party in order to have standing to file this action." SchnellerPetition, O. The Delaware County Voter Registration Office has certified that Mr. Schneller isregistered as "Not Affiliated." See Exhibit A. As a result, objector did not have the right toparticipate in the Democratic party's candidate selection process, has no substantial interest inthe outcome of the Democratic primary and lacks standing to challenge President Obama's. . .. 1nommatlOn petItion.

B. This Court Lacks Jurisdiction To Consider Objector's Challenge ToPresident Obama's Eligibility To Serve As President Of The United States.This Court lacks jurisdiction to consider objector's challenge, which solely concerns

President Obama's eligibility to serve as President. State courts simply do not have jurisdictionover the subject of a candidate's eligibility under the U.S. Constitution for the office of Presidentof the United States. As a California Appellate Court recently held in affirming the dismissal of

Contrary to Schneller's contention (Schneller Petition at 20), this Court has no authority to compel "citizenswho are registered members of the major parties" to be joined involuntarily as parties to provide standing.DB1I69191785,1 4


9/54

a similar challenge to President Obama's eligibility filed in that state, "[t]he presidentialnominating process is not subject to each of the 50 states' election officials independentlydeciding whether a presidential nominee is qualified, as this could lead to chaotic results." Keyesv. Bowen, 189 Cal. App. 4th 647,660 (2010). Rather, federal law sets forth the exclusiveprocedure by which objections to the qualifications of a presidential candidate may be registeredand resolved. "[M]echanisms exist under the Twelfth Amendment and 3 U.S.C. 15 for anychallenge to any candidate to be ventilated when electoral votes are counted, and [] theTwentieth Amendment provides guidance regarding how to proceed if a president elect shallhave failed to qualify. Issues regarding qualifications for president are quintessentially suited tothe foregoing process." Id. at 661 (citations omitted). Therefore, any challenge to PresidentObama's eligibility to serve as President "is committed under the Constitution to the electors andthe legislative branch, at least in the first instance," id. - not to this Court.

The Pennsylvania Supreme Court addressed the issue of jurisdiction to hear a challengeto a candidate's qualifications in the context of a nominating petition challenge in In Re Jones,505 Pa. 50,476 A.2d 1287 (1984). In Jones, a plurality of the Supreme Court recognized thatthis Court lacked jurisdiction, when hearing a nomination petition challenge, to" make an apriori determination of whether a candidate meets the constitutional requirements for the officeshe seeks to obtain and on the basis of that judgment deny the candidate the right to put her namebefore the public for their consideration." As Chief Justice Nix explained, "[i]n the absence of ademonstration of a specific defect in the nomination petition under section 977, a candidatecannot be precluded from running for the office for which the nomination petition was filed."Id., 505 Pa. at 65. The Court rejected the argument that the "not filed by persons entitled to filethe same" language of Section 977 of the Election Code, 25 P.S. 2937, conveyed jurisdiction to

081/69191785.1 5


10/54

entertain challenges to the qualifications of a candidate in the absence of an identified defect inthe nomination petition such as a false candidate's affidavit. Id., 505 Pa. at 66-67.

Election Code provisions applicable to nominations for the presidential primary establishthat the Commonwealth does not have a role in determining the qualifications under the u.s.Constitution of a candidate for President. Unlike other elective offices, a candidate's affidavitstating that the candidate "is eligible for such office" is not required for a candidate for Presidentof the United States. Section 910 of the Election Code, 25 P.S. 2870 explicitly excludespresidential candidates from the affidavit requirement: "In the case of a candidate for nominationas President of the United States, it shall not be necessary for such candidate to file the affidavitrequired in this section to be filed by candidates." In fact, no candidate's affidavit was filed aspart of President Obama's nomination petition. Rather, in accordance with Section 809 1 (b) ofthe Election Code, 25 P.S. 2839.1(b), President Obama timely filed a certificate in the formprescribed by the Secretary of the Commonwealth stating only that he is a candidate for thenomination of President of the United States and that he authorizes delegates and alternatedelegates to pledge their support and commit themselves to him. See Certificate attached asExhibit B. As a result, decisions by this Court determining a candidate's qualifications for officebased on a challenge to the veracity of the cand idate's affidavit are inapposite, and provide nobasis for this Court to consider objectors' challenge here. See, e.g., In re: Nomination Petition ofPippy, 711 A.2d 1048 (Pa. Cmwlth 1998) (concluding that under section 910, court had

jurisdiction to cons ider challenges to candidate's affidavit concerning domicile, distinguishingJones on grounds it did not concern false candidate's affidavit);.In re: Nomination Petition ofStreet, 102 Pa. Cmwlth. 155,516 A.2d 791(1986) (concluding that under Jones and section 910,court had jurisdiction to cons ider challenges to candidate's affidavit concerning domicile).

DBI/69191785.1 6


11/54

Because objector does not contend that President Obama's nominating petition wasdefective under the Election Code, and no candidate's affidavit was filed or required to be filedas part of the nominating petition, this Court lacks jurisdiction to consider his objection.

C. Objector's Challenge is Devoid Of Merit Under Well-Established Law AndShould Be Dismissed.Even if objector had standing to challenge President Obama's eligibility, and this Court

had jurisdiction to consider that challenge, objector's challenge is utterly meritless as a matter oflaw. The legal theory on which Objector's Petition is based - that, despite being born in theUnited States, President Obama is not a "natural born citizen" eligible to be President becausehis father was not a U.S. citizen - is manifestly incorrect. See, e.g., us. v. Wong Kim Ark, 169U.S. 649,654-658 (1898) (recognizing that the meaning of the term "natural-born citizen of theUnited States" must be interpreted in light of English common law principles, under which "anyperson who (whatever the nationality of his parents) is born within the British dominions is anatural born British subject"); Schneider v. Rusk, 377 U.S. 163, 165 (1964) (equating a "natural

born citizen" who is eligible to be President to a native-born, as opposed to a naturalized,citizen); Hollander v. McCain, 566 F. Supp. 2d 63, 66 (D.N.H. 2008) ("Those born 'in theUnited States, and subject to the jurisdiction thereof' have been considered American citizensunder American law in effect since the time of the founding and thus eligible for thepresidency. ")

A series of decisions have uniformly rejected the identical argument objectors make herewith respect to President Obama. See, e.g., Ankeny v. Governor o fState of ndiana, 916 N.E.2d678 (Ind. App. 2009) (rejecting argument that President Obama is constitutionally ineligible toassume to office of President because his father was a citizen of the United Kingdom, concluding"that persons born within the borders of the United States are 'natural born Citizens' for Article

081/69191785.1 7


12/54

II, Section 1 purposes, regardless of the citizenship of their parents) (attached as Exhibit C);Farrar v. Obama, Docket. No. OSAH-SECSTATE-CE-1215136-60-MALIHI (Ga. State Admin.Feb. 3, 2012) (relying on Ankeny and Ark, inter alia, to conclude that President Obama "becamea citizen at birth and is a natural born citizen") (attached as Exhibit D); Tisdale v. Obama, CivilAction No. 3: 12-cv-00036-JAG (E.D.Va. Jan. 23,2012) (citing Ark and Hollander, inter alia, asauthority that "[i]t is well settled that those born in the United States are natural born citizens")(attached as Exhibit E). Objector's contention to the contrary is legally meritless and should berejected by this Court.

D. Objector Cannot "Reserve The Right" To Make Specific ObjectionsConcerning Alleged Defects.Objector does not identify any specific alleged defect in President Obama's nomination

petition. Instead, he purports to "reserve[] the right to object ... on the basis of insufficiency ofthe number andlor quality of signatures and other defects" under the Election Code at someunspecified date in the future. Schneller Petition, at 12. It is well-established, however, that

objector cannot postpone or reserve the right to allege defects in the future, but must do so withspecificity in his petition.

Section 977 of the Election Code, 25 P.S. 2937, provides that all nomination petitionsand papers shall be valid unless "a petition is presented to the court specifically setting forth theobjections thereto, and praying that the said petition or paper be said aside." A general objectionis not enough. Rather, the exact page and line number for each challenged signature and thereason for invalidity of each signature must be included in the petition challenging a nominationpetition. In re: Nomination Petition o/Samms, 543 Pa. 681, 674 A.2d 240 (1996). Thisrequirement is imposed in order to ensure that a candidate is provided adequate notice ofwhichsignatures are in issue so that the candidate may mount a defense to the challenges. Appeal of

DB1I69191785.1 8


13/54

Beynon, 370 Pa. 532, 88 A.2d 789 (1952); In re Nomination Petition ofBishop, 525 Pa. 199,579A.2d 860 (1990).

Boilerplate objections that do not advise the candidate which signatures in the nominationpetition are challenged and claim of a right to amend after the seven-day period for filing haspassed are inadequate under Section 977. In re Nomination Petition ofBishop, supra, Failure tocomply with this requirement is fatal. Id. Objector's attempt to reserve the right to allegespecific defects at a later time is improper and should be rejected. 2

E. Award of Costs.

Section 977 of the Election Code provides that "In case any such petition [to set aside] isdismissed, the court shall make such order as to the payment of costs of the proceedings,including witness fees, as it shall deem just." 25 P.S. 2937. Imposition of costs on dismissalof objection to a nomination petition is a matter for the Court's discretion. In re: NominationPaper ofNader, 588 Pa. 450, 905 A.2d 450 (2006). Objector should be required to reimbursethe costs incurred in responding to their meritless petition, including attorneys' fees.

2 President Obama's nomination petition was supported by over 2200 pages of signatures. Even if Objector werepermitted to conduct an extended review of these signatures on a schedule of his own choosing, rather than theone established in the Election Code, the likelihood of identifying a sufficient number of signatures tochallenge to make a difference is extraordinarily remote.DB 11 69191785.1 9


14/54

III. CONCLUSIONFor the foregoing reasons, Objector's Petition challenging the nomination petition of

President Obama should be stricken and dismissed, with all costs assessed against objector.

DATE: February 28,2012

DBlI 69191785.1 10

Respectfully submitted,

ohn P. Lavelle, Jr., I.D. No. 542791701 Market StreetPhiladelphia, P A 19103(215) 963-4824 (telephone)(215) 963-5001 (facsimile)Attorney for Respondent CandidatePresident Barack Obama


15/54

PROOF OF SERVICEI hereby certify that, on this 28th day of February 2012, I caused the foregoing to be

served on the following parties in the manner indicated below:Service bye-mail and first class mail, postage prepaid:

DBl! 69191785.1

James D. Schneller430 Eas t Lancaster Avenue #E25Saint Davids, P A 19087Telephone: 610-688-9471E-mail: [email protected] Pro Se

ohn P. Lavelle, Jr., I.D. No. 542791701 Market StreetPhiladelphia, P A 19103(215) 963-4824 (telephone)(215) 963-5001 (facsimile)Attorneyfor Respondent CandidatePresident Barack Obama

11


16/54

EXHIBIT A


17/54

.".

IN THE SUPREME COURT OF PENNSYLVANIAMIDDLE DISTRICT

JAMES D. SCHNELLER, No. 199 MM 2008Petitioner

v.SECRETARY OF THECOMMONWEALTH PEDRO A. CORTES, :PENNSYLVANIA BUREAU OFCOMMISSIONS ELECTIONS ANDLEGISLATION, SENATOR BARACKOBAMA,

Respondents

PER CURIAM

ORDER

AND NOW, this 8th day of January, 2009, the "Application for ExtraordinaryJurisdiction," 'which is treated as an Application for Leave to File Original Process, isGRANTED, and the Petition for Writ of Mandamus, the Application for Emergency Stay andInjunction, and the Motion to Supplement the Record are DENIED.

TRUE & CORRECT COPYATTEST: January 8, 20092 ~ ' ~ laine Hellen, Assistant Chief Clerk


18/54

EXHIBITB


19/54

Feb.27. 2012 10:39AM

DELAWARE COUNTYVOTER REGISTRATION COMMISSION

GOVERNMENT CENTER BUILDING

COUNCILTHOMAS J Me GARRIGLfiCHAIRMANMARlO J CIVERA, JRVlCEOWRJolAN

COLLI!I!N P MORRONE;JOHN P MC BLUNDAVIDJ WHITe

February 27,2012

Jolm P. Lavelle Jr1701 Market StPhiladelphia, Pa 19103RE: James Schneller

To Whom It May Concern:

201 WEST FRONT SfRE:ETMEDIA, PENNSYLVANIA 19063

PHONE: (610) 891- 4659FAX: (610) 891-4814E-MAIL: [email protected]

No. 3599 P. 2

MARY lO H!!ADU!YQ1IEF ClERK/ OlRECTOR

I hereby celiify that James Schneller, Date ofBhth 12/26/1955 is a Registered Elector inDelaware County at 500 E. Lancaster Ave, Apt. DIll Wayne Pa 19087. James Schneller isregistered No Affiliation.

; / o / f 1 ~ Mary J0 HeadleyChief Clerk! Director


20/54

EXHIBIT C


21/54

FOR PIJBLICATION

APPELLANTS PRO SE:STEVE ANKENYNew Castle, IndianaBILL KRUSERoselawn, Indiana

ATTORNEYS FOR APPELLEE:GREGORY F. ZOELLERAttomey General of IndianaFRANCES BARROWDeputy Attorney GeneralIndianapolis, Indiana

IN THECOURT OF APPEALS OF INDIANASTEVE ANKENY AND BILL KRUSE, ))))))

))))

Appellants-Plaintiffs,vs. No. 49A02-0904-CV-353

GOVERNOR OF THE STATE OFINDIANA,Appellee-Respondent.

BROWN, Judge

APPEAL FROM THE MARION SUPERIOR COURTThe Honorable David J. Dreyer, JudgeCause No. 49DIO-OS12-PL-55511

November 12, 2009OPINION - FOR PUBLICATION


22/54

Steve Ankeny and Bill Kruse (collectively, "Plaintiffs"), pro se, appeal the trialCOUlt's grant of a motion to dismiss filed by Mitch Daniels, in his official capacity as theGovemor of the State of Indiana ("Govemor"). Plaintiffs raise nine issues, which werevise and restate as whether the h-ial cOUlt erred by granting the motion to dismiss underInd. Trial Rule 12(B)(6).1 We affillll. 2

The relevant facts follow. On December 9, 2008, Plaintiffs filed a "PETITIONFOR EXTRAORDINARY WRIT OF PROHIBITION" against the Govemor3 to preventthe Govemor "from issuing a 'Certificate of Ascertaimnent,' or any other docUlnent, toCongress of the United States containing any popular votes for Barack Obama and JoeBiden for the appointment as Chief Electors . . . [or] Jolm McCain and Sarah Palin for theappointment of Electors." Appellants' Appendix at 6. On JanualY 30, 2009, the

1 We note that pro se litigants, such as Plaintiffs, "are held to the same standard as licensedlawyers." Novatny v. Novatny, 872 N.E.2d 673, 677 11.3 (fild. ct. App. 2007). This comt will not"indulge in any benevolent presumptions on [their] behalf, or waive any lUle for the orderly and properconduct of [their] appeaL" Foley v. Marlllor, 844 N.E.2d 494, 496n.l (Ind. Ct. App. 2006).

Thus, we will attempt to address the issues raised by Plaintiffs. To the extent that Plaintiffs raiseadditional issues, the Plaintiff" fail to develop a cogent argument and cite to authority. Consequently, thearguments are waived. See, U " Loomis v. Ameritech, 764 N.E.2d 658, 668 (Ind. ct. App. 2002)(holding argument waived for failure to cite authority or provide cogent argument), reh'g denied, trans.denied.2 The trial comt also granted the Govemor's motion to dismiss on the bases of mootness under

Ind. Trial Rule 12(B)(l) and the equitable doctrine of laches. Because we fInd that Plaintiffs failed tostate a claim upon which rel ief can be granted under T.R. 12(B)(6), we need not address the t11al court'salternative grounds for dismissal.3 The Complaint also named the Democratic National COlllmittee, Barack Obama, the RepublicanNational COlllluittee, and John McCain as detendants. The Plaintiffs state, without citation to the record,that "only the Governor of the State of Indiana accepted Selvice of Smlllllons." Appellants' Brief at 3.We note that the Plaintiff'" case SUnllllalY lists only the Governor as appellee, the Plaintiffs' notice ofappeal lists only the Governor as defendant, and the Plaintiffs' briefs contain certificates of selviceindicating that the briefs were selved upon only the governor.

2


23/54

Govemor filed a motion to dismiss alleging in patt that "the Plaintiffs have failed to statea claim upon which reliefCatl be granted." Appellee's Appendix at 1. The Govemor alsofiled a memorandum in SUppOlt of the motion to dismiss. On FeblUat)' 17, 2009, thePlaintiffs filed their opposition to the Govemor's motion to dismiss. On March 16, 2009,the trial comt granted the Govemor's motion to dismiss after a heat'ing. On April l3 ,2009, the Plaintiffs filed their notice of appeal.

The sole issue is whether the trial comt elTed when it dismissed Plaintiffs'complaint. A motion to dismiss for failure to state a claim tests the legal sufficiency ofthe claim, not the facts suppOlting it. General Cas. Ins. Co. v. Bright, 885 N.E.2d 56, 57(Ind. Ct. App. 2008) (citing Chatter One MOltg. Corp. v. Condra, 865 N.E.2d 602, 604(Ind. 2007. Thus, our review of a trial comt's grant or denial of a motion based on TlialRule 12(B)(6) is de novo. leI. at 58. When reviewing a motion to dismiss, we view thepleadings in the light most favorable to the nonmoving party, with every reasonableinference construed in the nonmovant's favor. Id. A complaint may not be dismissed forfailure to state a claim upon which relief can be granted unless it is clear on the face ofthe complaint that the complaining patty is not entitled to relief. 4 Id. However, a COUlt

4 In his brief, the Govemor argues that the motion to dismiss included an affidavit, and thereforebecause "matters outside the pleadings [were] presented to the COUlt 011 a 12(B)(6) motion, the motionshall be treated as one for sunllualY judgment Ullder T.R. 56. T.R. 12(B)." Appellee's Blief at 6. Whiletme that the general rule is that when a motion to dismiss for failure to state a claim under T.R. 12(B)(6)is supplemented with materials outside the pleadings it should be treated as a motion for summaryjudgment, we note that:

[W]hen examination of the face of a complaint alone reveals that the plaintiff will not beentitled to relief under any set of circumstances, consideration of external materialsaimed at substantiating or contradicting the complaint's factual allegations is inelevant,3


24/54

need not accept as true any "conclusory, non-factual asseIiions or legal conclusions."Irish v. Woods, 864 N.E.2d 1117, 1120 (Ind. ct. App. 2007). "Thus, while we do not testthe sufficiency of the facts alleged with regards to their adequacy to provide recovelY, wedo test their sufficiency with regards to whether or not they have stated some factualscenario in which a legally actionable injury has OCCUlTed." Trail v. Boys and GirlsClubs ofNOlihwest Indiana, 845 N.E.2d 130, 134 (Ind. 2006).

In their complaint, the Plaintiffs appear to suggest that the Govemor has a duty todetermine a person's eligibility to become President in issuing the "Certificate ofAsceliainment" "officially appoint[ing] the electors" who cast the State of Indiana'svotes in the Electoral College, the body which decides the election for the President ofthe United States ("President"). Transcript at 13. Specifically, Plaintiffs appear to arguethat the Govemor did not comply with tIus duty because: (A) neither President BarackObama nor Senator John McCain were eligible "to be appointed 'Elector in Chief inviolation of Ariicle II, Section 1, Clause 2' s prohibition tIlat no United States Senator

because a fortiori the complaint fails to state a claim upon which relief can be grantedunder any factual scenario. In that instance, the trial court should exclude materialoutside the pleadings which are submitted with a 12(B)(6) motion, rather than convelt themotion into one for SUllll11aty jUdgment, because the extemal material are ilTelevant to tllemotion.Dixon v. Siwy, 661 N.E.2d 600, 603 (Ind. ct. App. 1996). In tltis case, there is no evidence tllat tlte trialcomt considered the matellal contained in the affidavit prepared by J. Bradley King, Co-Director for theIndiana Election Division, which contains nine paragraphs explaining the vote-tallying process actuallycanied out following the November 4, 2008 election. The affidavit was not relevant to the trial court'sorder granting the Govemor's motion to dismiss. TIllIS, it was proper for the trial court to exclude thisaffidavit and handle tlte Govel1l0r's motion as a motion to disntiss for failure to state a claim ratlter thanone for smmnalY judgment. See Trail v. Boys and Girls Clubs of NOithwest Indiana, 845 N.E.2d 130,134, 140 (hld. 2006) (affinlling the trial com1's grant of a motion to dismiss under Rule 12(B)(6) evenafter the patties "filed several affidavits, exhibits, and briefs").4


25/54

currently holding that office shall be appointed Elector for any State," and (B) neitherPresident Barack Obama nor Senator John McCain were eligible to hold the office ofPresident because neither were "bom naturally within any Altide IV State of the 50United States ofAlnelica . . . ." Appellants' Appendix at 11-12, 16-18.

Initially, we note that the Plaintiffs do not cite to any authority recognizing that theGovemor has a duty to detennine the eligibility of a party's nominee for the presidency.The Plaintiffs do not cite to authority, nor do they develop a cogent legal argumentstating that a certificate of asceliainment has any relation to the eligibility of thecandidates. However, we note that even if the Govemor does have such a duty, for thereasons below we cannot say that President Barack Obama or Senator John McCain wasnot eligible to become President. We will handle each of Plaintiffs' arguments in tum.A. Sitting Senator

First, PlaintitTs argue that "[t]he Constitution of the United States emuneratesqualification for the Office of Presidential and Vice-Presidential Electors, and no 'sittingSenator,' such as Senator Barack Obama and Senator Joseph Biden, or Senator JohnMcCain, was qualified." Appellants' Brief at 8. We hold for the reasons stated belowtllat PlaintitTs failed to state a cognizable legal clainl upon which relief can be granted.

In evaluating Plaintiffs' claim, one need not go fmiher than compare their framingof the electoral process in the State of Indiana with Indiana's electoral process asconstmcted by state and federal statute, and indeed by the U.S. Constitution itself.Aliide II, Section 1 of the U.S. Constitution sets f01ill how the President is chosen; the

5


26/54

mechanism used is called the Electoral College. See 3 U.S.C. 4. AItiele II, Section 1desclibes how the Electoral College is filled as follows:

Each State shall appoint, in such Manner as the Legislature thereofmay direct, a Number of Electors, equal to the whole Number of Senatorsand Representatives to which the State may be entitled in the Congress: butno Senator or Representative, or Person holding an Office of Tmst or Profitunder the United States, shall be appointed an Elector.

U.S. CONST. mt. II, 1, cl. 2. Much of the rest ofMiele II, Section 1 was changed by theTwelfth Amendment which was ratified in June 1804. The Twelfth Amendment directs:

The Electors shall meet in their respective states, and vote by ballotfor President ... and transmit sealed to the seat of the government of theUnited States, directed to the President of the Senate; --The President of theSenate shall, in the presence of the Senate and House of Representatives,open all the celtificates and the votes shall then be counted; -- The personhaving the greatest number of votes for President, shall be the President . . .U.S. CONST. amend. XII.

Thus, the U.S. Constitution vests in the valious state legislatmes the authority todetermine how their state chooses their Electors. The Indiana Legislature acted on thisauthority when it enacted Ind. Code 3-10-4-4, which allows voter ballots to calTY thename of the "nominees for President and Vice President of the United States of a politicalparty," and that such votes for each nominee "is a vote cast or registered for all of thecandidates for presidential electors of the palty .... By viltue of its nine members ofthe House ofRepresentatives and its two Senators, Indiana was entitled to eleven electors

6


27/54

111 the November 4, 2008 election.5 Both the Democratic and Republican paltynominated eleven individuals who were residents of the State of Indiana to serve as theirpalty's electors in the 2008 presidential election.6 See Ind. Code 3-8-4-2 ("[a] politicalpmty shall conduct a state convention to . . . nominate candidates for presidential electorsand altemate electors . . . . "); see also Appellants' Appendix at 21-22. Neither PresidentBarack Obama nor Senator John McCain were nominated as electors for their respectivepmties in the 2008 election. Appellmlts' Appendix at 21-22.

"Not later than noon on the second Monday following an election, each circuitcourt clerk shall prepare a celtified statement . . . of votes received by each candidate for:(1) federal office .... Ind. Code 3-12-5-6(a). These ceItified statements are sent tothe election division of the Secretary of State. Ind. Code 3-12-5-6(b). Once the electionresults have been tabulated, "not later than noon of the last Tuesday in November," theSecretalY of State "shall ceItify to the govemor the candidate receiving the highestnumber of votes for each office." Ind. Code 3-12-5-7. The Govemor must then execute

5 The date of the election was chosen pursuant to Ind. Code 3-10-2-1, which states that "[a]general election shall be held on the first Tuesday after the first Monday in November in each evennumbered year. . . ."6 The Democratic Party's candidates for Indiana electors were: (1) Jeffi:ey L. Chidester, ofValparaiso; (2) Owen "Butch" Morgan, of South Bend; (3) Michelle Boxell, of Warsaw; (4) CharlotteMmiin, of Indianapolis; (5) Jeny J. LlLx, of Shelbyville; (6) Connie Southworth, of Salamonia; (7) Alan

P. Hogan, of Indianapolis; (8) Myrna E. Brown, of Vincennes; (9) Clarence Benjamin Leatherbmy, ofSalem; (10) Daniel J. Parker, of Indianapolis; and (II) Cordelia Lewis Burks, of Indianapolis, TheRepublican PaIiy's candidates for Indiana electors were: (1) Chuck Williams, of Valparaiso; (2) EdwardSmith, of Galveston; (3) Barbara Krisher, of FOli Wayne; (4) Daniel BOlineI', of Bedford; (5) VirginiaMarner, of Kokomo; (6) Susan Lightle, of Greenfield; (7) Pearl Swanigan, of Indianapolis; (8) WilliamSpringer, of Sullivan; (9) David Buskill, of Jeffersonville; (10) Samual Wayne Gooilll1an, of Greenwood;and (11) Juana Watson, of Columbus, Appellants' Appendix at 21-22; see also 2008 Presidential ElectorCandidates, available at http://www.in.gov/sos/elections/files/2008_PIesidential_ElectOl'_Candidate_List.pdf (last visited Oct. 8, 2009),

7


28/54

a certificate of ascertainment which officially appoints the winning presidential electors;a copy of the certificate of ascertainment is then sent to the Archivist of the UnitedStates. 7 3 U.S.C. 6.

The presidential electors assemble "in the chamber of the Indiana house ofrepresentatives on the first Monday after the second Wednesday in December as providedby 3 U.S.c. 7, or on another day fixed by the Congress of the United States, at 10 a.m. toelect the President and Vice-President of the United States." Ind. Code 3-10-4-7. Theelectors then fin1lish copies of the "certificates so made by them and the lists attachedthereto"S to the Vice President, the Indiana Secretary of State, the Archivist of the UnitedStates, and "judge of the district in which the electors shall have assembled." 3 U.S.C. 11. The votes of the electors of each state are then tallied by the Congress of the UnitedStates and the new President is announced. 3 U.S.C. 15.

The Plaintiffs have a different view of the electoral process in the State of Indiana.In their complaint, the Plaintiffs allege that:

By allowing the name of Barack Obama upon the ballot forappointment of Electors, the Govemor of the State of Indiana has allowedBarack Obama to be appointed "Elector in Chief' in violation of Article II,Section 1, Clause 2' s prohibition that no United States Senator cUlTentlyholding that office shall be appointed Elector for any State.

7 The Archivist of the United States transmits copies "to the two Houses of Congress . . . of eachand evelY such certificate so received . . . . 3 U.S.C. 6.8 The electors prepare the certificates in accordance with 3 U.S.C. 6, 9-11.

8


29/54

Appellants' Appendix at 16. The Plaintiffs make a similar charge against Senator JolmMcCain's name appearing on the ballot. In essence, Plaintiffs argue that becausePresident Barack Obama and Senator John McCain were United States Senators onNovember 4, 2008, they were constitutionally ineligible to be appointed as presidentialelector (or, as Plaintiffs put it, "Elector in Chief') .

Plaintiffs do not state a meritorious claim. Notwithstanding the fact that it isunclear what Plaintiffs are referring to by the phrase "Elector in Chief," Plaintiffs'characterization of the electoral process in the State of Indiana simply is not consistentwith the applicable laws. The fact that the names "Barack Obanm" and "John McCain"are the ones that appeared on the ballot does not change the fact that they were in factcandidates for the presidency, not any of Indiana's electors.

This distinction between a candidate and an elector IS readily asceliainablethroughout Title 3 of the Indiana Code. As an example, we examine Ind. Code 3-8-1-6,titled "President or Vice President; electors." That code section states:

(a) A candidate for the office of President or Vice President of theUnited States must have the qualifications provided in Article 2,Section 1, clause 4 of the Constitution of the United States.(b) A candidate for the office of elector for President and Vice President

of the United States must have the qualifications provided in Aliicle2, Section 1, clause 2 of the Constitution of the United States andSection 3 of the Fourteenth Amendment to the Constitution of theUnited States.

Ind. Code 3-8-1-6 (emphasis added). Thus, Ind. Code 3-8-1-6 expresses a dichotomybetween the presidential and vice-presidential nominees and the slate of electors

9


30/54

appointed by each political party to serve in the Electoral College. See also Ind. Code 3-10-4-1 (stating that the names of the "electors of President and Vice President of theUnited States may not be placed on the ballot," but that "[t]he names of the nominees forPresident and Vice President of the United States . . . shall be placed . . . on the ballot . ..").

TIms, we conclude that Plaintiffs' argument that the Govemor has allowedPresident Bamck Obama and Senator John McCain to be appointed "Elector in Chief' inviolation of Ariicle II, Section 1, Clause 2's prohibition against sitting Senators beingappointed Elector for any State fails to state a claim upon which relief can be granted.B. Natural Born Citizen

Second, the Plaintiffs argue that both President Bamck Obama and Senator JolmMcCain are not "natural bom Citizens" as required for qualification to be President underAriicle II, Section 1, Clause 49 of the U.S. Constitution, and that therefore becauseneither person was constitutionally eligible to become President, "[t]he Govemor ...should [have been] prohibited by order of [the trial comt] . . . from issuing any celiificateof ascertainment, or any other certified statement, under the State Seal of the State ofIndiana . . . . " Appellants ' Appendix at 13.

Before addressing the Plaintiffs' specific arguments, we think it helpful to pointout the context in which this claim alises. Leading up to the 2008 Presidential Election

9 The Plaintiffs cite the "natural born Citizen" clause as Article II, Section 1, Clause 5 of the U.S.Constitution, but it is properly cited as Article II, Section 1, Clause 4. See also Ind. Code 3-8-1-6.10


31/54

and in the ensuing months after, a number of lawsuits were filed nationwide challengingboth President Barack Obama and Senator Jolm McCain'slo status as "natural bomCitizens" under AIticle II of the u.S. Constitution. S e e , ~ , Berg v. Obama, 574 F.Supp. 2d 509 (E.D. Pa. 2008); Hollander v. McCain, 566 F. Supp. 2d 63 (D.N.H. 2008);Cohen v. Obama, No. 08-2150,2008 WL 5191864 (D.D.C. Dec. 11,2008), aff'd Qy 2009WL 2870668 (D.C. Cir. Sept. 8, 2009); Wrotnowski v. Bysiewicz, 958 A.2d 709 (COlm.2008). As to President Obama's status, the most COlmnon argument has been waged bymembers of the so-called "bilther" movement who suggest that the President was notbo m in the United States; they support their argument by pointing to "the President'salleged refusal to disclose publicly an 'official birth celiificate' that is satisfactory to [thebirthers]." Rhodes v. MacDonald, No. 4:09-CV-I06, 2009 WL 2997605, at *1 (M.D. Ga.Sept. 16,2009), reconsideration deniedQy 2009 WL 3111834 (M.D. Ga. Sept. 18,2009).

The Plaintiffs in the instant case make a different legal argument based strictly onconstitutional interpretation. Specifically, the ClUX of the Plaintiffs' argument is that

10 The United States Senate passed a resolution on April 30, 2008 which explicitly recognizedSenator John McCain as a natmal bom citizen. S.J. Res. 511, 110th Congo (200S). Also, the supposedauthority cited by the Plaintiffs to SUppOIt their claim as to the meaning of AItide II, Section 1, Clause 4of the U.S. Constitution does not support the argument that John McCain is not a natmal bom citizen.Plaintiffs state in their brief that the difference between being a "citizen of the United States" and a"natmal bom Citizen" "involves having [two] parents of U.S. Citizenship, owing no foreign allegiance."Appellant's Brief at 23. The Plaintiffs then concede that "Jolm McCain . . . qualifiers] as a 'citizen of theUnited States,' by being bom of [two] parents who were in tmn 'citizens of the United States,' and owedno foreign allegiance .... ld. Their brief continues that "John McCain was bom 'subject to thejurisdiction' of the United States, but he was not bom in one of the 50 States of the Union under AItideIV of the Constitution, and thus . . . was not a 'natmal bom Citizen . . . . ", ld. at 23-24. Plaintiffs do notcite to any autholity or develop any cogent legal argument for the proposition that a person must actuallybe born within one of the fifty States in order to qualify as a natmal born citizen, and we therefore do notaddress Plaintiffs argument as it relates to Senator McCain. See Loomis, 764 N.E.2d at 66S.

11


32/54

"[c ]ontrary to the thinking of most People on the subject, there's a velY clear distinctionbetween a 'citizen of the United States' and a 'natural bom Citizen,' and the differenceinvolves having [two] parents of U.S. citizenship, owing no foreign allegiance."Appellants' Brief at 23. With regard to President Barack Obama, the Plaintiffs posit thatbecause his father was a citizen of the United Kingdom, President Obama isconstitutionally ineligible to assume the Office of the President.

The bases of the Plaintiffs' arguments come fi:om such sources as FactCheck.org,The Rocky Mountain News, an eighteenth century treatise by Ellllllerich de Vattel titled"The Law of Nations," and various citations to nineteenth centmy congressional debate. llFor the reasons stated below, we hold that the Plaintiffs' arguments fail to state a claimupon which relief can be granted, and that therefore the trial court did not elT indismissing the Plaintiffs' complaint.

Section 1 of the Fomieenth Amendment to the U.S. Constitution govems who is acitizen of the United States. It provides that "[a]l1 persons bom or naturalized in theUnited States and subject to the jurisdiction thereof, are citizens of the United States . . .." U.S. CONST. amend XIV, 1. Aliicle II has a special requirement to assume thePresidency: that the person be a "natural bom Citizen." U.S. CONST. mi. II, 1, cl. 4.The United States Supreme Comi has read these two provisions in tandem and held that"[t]hus new citizens may be bom or they may be created by naturalization." Minor v.

11 Plaintiffs do not provide pinpoint citations to the congressional debate quotations to which theycite.

12


33/54

Happersett, 88 (21 Wall.) U.S. 162, 167 (1874). In Minor, written only six years after theFomteenth Amendment was ratified, the Court observed that:

The Constitution does not, in words, say who shall be natural-bom citizens.ResOlt must be had elsewhere to asceltain that. At common-law, with thenomenclature of which the fiamers of the Constitution were familiar, it wasnever doubted that all children bom in a countIy of parents who were itscitizens became themselves, upon their birth, citizens also. These werenatives, or natural-bom citizens, as distinguished fl.-om aliens or foreigners.Some authorities go fuliher and include as citizens children bom within thejurisdiction without reference to the citizenship of their parents. As to thisclass there have been doubts, but never as to the first. For the purposes ofthis case it is not necessary to solve these doubts.Id. at 167-168. Thus, the Court left open the issue of whether a person who is bomwithin the United States of alien parents is considered a natural born citizen.12

Then, in U.S. v. Wong Kim Ark, 169 U.S. 649, 18 S. Ct. 456 (1898), the UnitedStates Supreme Comt confronted the question of "whether a child bom in the UnitedStates, of parents of Chinese descent, who at the time of his bilth are subject to the

emperor of China . . . becomes at the time of his bilih a citizen of the United States, byvirtue of the first clause of the fomteenth amendment . . . . 169 U.S. at 653,18 S. ct . at458. We find this case instmctive. The Comi in Wong Kim Ark reaffinned Minor inthat the meaning of the words "citizen of the United States" and "natural-bom citizen ofthe United States" "must be interpreted in the light of the common law, the principles andhistOlY of which were familiarly known to the framers of the constitution." Id. at 654, 18S. ct. at 459. They noted that "[t]he interpretation of the constitution of the United States

12 Note that the Comt in Minor contemplates only scenarios where both parents are either citizensor aliens, rather in the case of President Obama, whose mother was a u.s. citizen and father was a citizenof the United Kingdom.

13


34/54

is necessarily influenced by the fact that its provisions are framed in the language of theEnglish common law, and are to be read in the light of its histOlY." rd. at 655, 18 S. Ct. at459 (quoting Smith v. Alabama, 124 U.S. 465, 478, 8 S. Ct. 564, 569 (1888)). The WongKim Ark COUIt explained:

The fundamental principle of the COlUIllon law with regard toEnglish nationality was bilth within the allegiance-also called 'ligealty,''obedience,' 'faith,' or 'power'-of the king. The principle embraced allpersons bom within the king's allegiance, and subject to his protection.Such allegiance and protection were mutual, -as expressed in the maxim,'Protectio trallit subjectionem, et subjectio protectionem,' -and were notrestricted to natural-bom subjects and naturalized subjects, or to those whohad taken an oath of allegiance; but were predicable of aliens in amity, solong as they were within the kingdom. Children, bom ill England, of suchaliens, were therefore natural-bom subjects. But the children, bom withinthe realm, of foreign ambassadors, or the children of alien enemies, bomduring and within their hostile occupation of pmt of the king's dominions,were not natural-bom subjects, because not bom within the allegiance, theobedience, or the power, or, as would be said at this day, within thejurisdiction, of the king.This fundamental principle, with these qualifications or explmlations

of it, was clearly, though quaintly, stated in the leading case known as'Calvin's Case,' or the 'Case of the Postnati,' decided in 1608, after ahearing in the exchequer chamber before the lord chancellor and all thejudges of England, and repOlted by Lord Coke and by Lord Ellesmere.Calvin's Case, 7 Coke, 1, 4b-6a, 18a, 18b; Ellesmere, Postnati, 62-64; s. c. 2How. St. Tr. 559, 607, 613-617, 639, 640, 659, 679.The English authorities ever since are to the like effect. Co. Litt. 8a,128b; Lord Hale, in Hmg. Law Tracts, 210, and in 1 Hale, P. C. 61, 62; 1

BI. Comm. 366, 369, 370, 374; 4 BI. Conull. 74, 92; Lord Kenyon, in Doev. Jones, 4 Term R. 300, 308; Cockb. Nat. 7; Dicey, Confl. Laws, pp. 173-177, 741.

* * * * *

14


35/54

Lord Chief Justice Cockbum . . . said: 'By the COllunon law ofEngland, every person bom within the dominions of the crown, no matterwhether of English or of foreign parents, and, in the latter case, whether theparents were settled, or merely temporarily sojouming, in the country, wasan English subject, save only the children of foreign ambassadors (whowere excepted because their fathers canied their own nationality withthem), or a child bom to a foreigner during the hostile occupation of anyprut of the tenitOlies of England. No effect apperu's to have been given todescent as a source of nationality.' Cockb. Nat. 7.

Mr. Dicey, in his careful and thoughtful Digest of the Law ofEngland with Reference to the Conflict of Laws, published in 1896, statesthe following propositions, his principal lUles being plinted below in italics:"British subject' means any person who owes permanent allegiance to thecrown. 'Pelmanent' allegiance is used to distinguish the allegiance of aBlitish subject from the allegiance of an alien, who, because he is withinthe Blitish dominions, owes 'temporalY' allegirulce to the crown. 'Naturalborn British subject' means a British subject who has become a Britishsubject at the moment of his birth.' 'Subject to the exceptions hereinaftermentioned, any person who (whatever the nationality ofhis parents) is bornwithin the British dominions is a natural-born British subject. This lUlecontains the leading principle of English law on the subject of Britishnationality. ' The exceptions aftelwards mentioned by Mr. Dicey are onlythese two: '(1) Any person who (his father being an alien enemy) is bom ina prut of the British dominions, which at the time of such person's bilth isin hostile occupation, is an alien.' '(2) Any person whose father (being analien) is at the time of such person's birth an ambassador or otherdiplomatic agent accredited to the crown by the sovereign of a foreign stateis (though bom within the British dominions) an alien.' And he adds: 'Theexceptional ruid unimportant instances in which bilth within the Britishdominions does not of itself confer Blitish nationality ru'e due to the factthat, though at common law nationality or allegiance in substance dependedon the place of a person's birth, it in theOlY at least depended, not upon thelocality of a man's birth, but upon his being bom within the jurisdiction andallegiance of the king of England; and it might occasionally happen that aperson was born within the dominions without being bom within theallegiance, or, in other words, under the protection and control of thecrown.' Dicey, Confl. Laws, pp. 173-177, 741.

It thus clearly appears that by the law of England for the last threecenturies, beginning before the settlement of this country, and continuing to15


36/54


37/54

Wong Kim Ark, 169 U.S. at 662, 18 S. Ct. at 462 (quoting Dred Scott, 60 U.S. (19 How.)at 576 (Cmtis, J., dissenting)).

The Court in Wong Kim Ark also cited authOlity which notes that:All persons bom in the allegiance of the king are natmal-bom subjects, andall persons bom in the allegiance of the United States are natural-bomcitizens. Bilth and allegiance go together. Such is the mle of the commonlaw, and it is the common law of this country, as well as of England. Wefind no warrant for the opinion that this great plinciple of the common lawhas ever been changed in the United States. I t has always obtained herewith the same vigor, and subject only to the same exceptions, since asbefore the Revolution.

Id. at 662-663, 18 S. ct. at 462 (quotations and citations omitted). The Court held that11r. Wong Kim Ark was a citizen of the United States "a t the time of his bilth.,,14 Id. at705, 18 S. Ct. at 478.

Based upon the language of Article II, Section 1, Clause 4 and the guidanceprovided by Wong Kim Ark, we conclude that persons bom within the borders of the

United States are "natural bOlll Citizens" for Alticle II, Section 1 purposes, regardless ofthe citizenship of their parents. Just as a person "bom within the Blitish dOlninions [was]a natmal-bom British subject" at the time of the framing of the U.S. Constitution, so toowere those "bom in the allegiance of the United States [] natmal-bom citizens.,,15

14 We note the fact that the Comt in Wong Kim Ark did not actually prOnotUlCe the plaintiff a"natural bom Citizen" using the Constitution'S Article II language is immaterial. For all but forty-fourpeople in our nation's histOlY (the forty-fom Presidents), the dichotomy between who is a natural bomcitizen and who is a naturalized citizen mlder the Fom1eenth Amendment is irrelevant. The issueaddressed in Wong Kim Ark was whether Mr. Wong Kim Ark was a citizen of the United States on thebasis that he was bom in the United States. Wong Kim Ark, 169 U.S. at 705,18 S. ct. at 478.

15 We reiterate that we do not address the question of natural bom citizen status for persons whobecame United States citizens at birth by virtue of being bom of United States citizen parents, despite the17


38/54

The Plaintiffs do not mention the above United States Supreme Court authority intheir complaint or blief; they primarily rely instead on an eighteenth century treatise andquotations of Members of Congress made during the nineteenth centmy. To the extentthat these authorities conflict with the United States Supreme Court's inteIpretation ofwhat it means to be a natural bom citizen, we believe that the Plaintiffs' arguments fallunder the categOlY of "conclusOlY, non-factual asseliions or legal conclusions" that weneed not accept as true when reviewing the grant of a motion to dislniss for failure tostate a claim. hish, 864 N.E.2d at 1120. Thus, we cannot say that the trial comi en-edwhen it dislnissed the Plaintiffs' case. 16 See generally McCalment v. Eli Lilly & Co.,860 N.E.2d 884 (Ind. ct. App. 2007) (holding that the plaintiffs' arguments had beensuHiciently addressed by Indiana Supreme Comt precedent and therefore the trial courtdid not ell' when it granted the defendant's motion to dismiss for failure to state a claimupon which relief can be granted); see also, Diaz-Salazar v. I.N.S., 700 F.2d 1156,1160 (7th Cir. 1983) (noting in its recitation of the facts that despite the fact father was

fact that they were bom abroad. That question was not properly presented to this COlli1. Withoutaddressing the question, however, we note that nothing in om opinion today should be understood to holdthat being bom within the fifty United States is the onl;)I way one can receive natmal bom citizen status.16 We note that President Obama is not the first u.s. President bom of parents of differingcitizenship. Chester A. Arthur, the twenty-first U.s. President, was bom of a mother who was a United

States citizen and a father who was an hish citizen. See THOMAS C. REEVES, GENTLEMAN Boss, THELIFE OF CHESTER ALAN ARTHUR 3-4 (1975). During the election of 1880, there arose a 1111n01' "that[Arthm] had been bom in Canada, rather than in Vennont as he claimed, and was thus constitutionallyineligible to become the Chief Executive." Id. at 3. Although President A11hur's status as a natural bomcitizen was challenged in the 1880 Presidential Election on the grounds that he was bom in Canada ratherthan Vennont, the argument was not made that because Arthm's father was an Irish citizen he wasconstitutionally ineligible to be President. See generally id.18


39/54

not a citizen of the United States, he had children who were "natural-bom citizens of theUnited States"), celi. denied 462 U.S. 1132, 103 S. Ct. 3112 (1983).

For the foregoing reasons, we affirm the trial COlui's grant of the Govelllor'smotion to dismiss.

Affilmed.CRONE, J., and MAY, J., concur.

19


40/54

EXHIBITD


41/54

FILEDOSA! !OFFICE OF STATE ADMINISTRATIVE HEARINGS

STATE OF GEORGIAFEB 0 3 2012

DAVID FARRAR, LEAH LAX, CODY JUDY,THOMAS MALAREN, LAURIE ROTH,

Plaintiffs,v.BARACK OBAMA,

Defendant.

DAVIDP. WELDEN,Plaintiff,

v.BARACK OBAMA,

Defendant.

CARL SWENSSON,Plaintiff,

v.BARACK OBAMA,

Defendant.

KEVIN RICHARD POWELL,Plaintiff,

v.BARACK OBAMA,

Defendant.

Valerie iZuJi'. Lc'gal AssistalllDocket Number: OSAH-SECSTATE-CEI21S136-60-MALTIHICounsel for Plaintiffs: Orly TaitzCounsel for Defendant: Michael Jablonski

Docket Number: OSAH-SECSTATE-CE-121S137-60-MALTIHICounsel for Plaintiff: Van R. IrionCounsel for Defendant: Michael Jablonski

Docket Number: OSAH-SECSTATE-CE-1216218-60-MALTIHICounsel for Plaintiff: J. Mark HatfieldCounsel for Defendant: Michael Jablonski

Docket Number: OSAH-SECSTATE-CEI216823-60-MALTIHICounsel for Plaintiff: J. Mark HatfieldCounsel for Defendant: Michael Jablonski


42/54

DECISION l

Plaintiffs allege that Defendant President Barack Obama does not meet Georgia'seligibility requirements for candidacy in Georgia's 2012 presidential primary election.Georgia law mandates that candidates meet constitutional and statutory requirements forthe office that they seek. O.C.G.A. 21-2-5(a). Mr. Obama is a candidate for federaloffice who has been certified by the state executive committee of a political party, andtherefore must, under Georgia Code Section 21-2-5, meet the constitutional and statutoryqualifications for holding the Office of the President of the United States. Id. The UnitedStates Constitution requires that a President be a "natural born [c]itizen." U.S. Const. art.II, 1, cl. 5.

As required by Georgia Law, Secretary of State Brian Kemp referred Plaintiffs'challenges to this Court for a hearing. O.C.G.A. 2 1 ~ 2 - 5 ( b ) . A hearing was held onJanuary 26,2012 . . The record closed on February 1,2012. Plaintiffs Farrar, Lax, Judy,Malaren, and Roth and their counsel Orly Taitz, Plaintiffs Carl Swensson and KevinRichard Powell and their counsel J. Mark Hatfield, and Plaintiff David P. Welden and hiscounsel Van R. Irion, all appeared and answered the call of the case. However, neitherDefendant nor his counsel, Michael Jablonski, appeared or answered. Ordinarily, theCourt would enter a default order against a party that fails to participate in any stage of aproceeding. Ga. Compo R. & Regs. 6 1 6 ~ 1 ~ 2 - . 3 0 ( l ) and (5). Nonetheless, despite the

I This Decision has been consolidated to include the four challenges to President Obama's candidacy filedby Plaintiffs David Farrar, et al., David P. Welden, Carl Swensson, and Kevin Richard Powell. Section I ofthis Decision applies only to the case presented by Ms. Taitz on behalf of Mr. Farrar and his co-plaintiffs,Leah Lax, Cody Judy, Thomas Malaren, and Laurie Roth, and does not pertain, in any way, to the cases ofMr. Welden, Mr. Swensson, and Mr. Powell. Section II applies to all Plaintiffs.

2


43/54

Defendant's failure to appear, Plaintiffs asked this Court to decide the case on the meritsof their arguments and evidence. The Court granted Plaintiffs' request.

By deciding this matter on the merits, the Court in no way condones the conductor legal scholarship of Defendant's attorney, Mr. Jablonski. This Decision is entirelybased on the law, as well as the evidence and legal arguments presented at the hearing.

3


44/54

I. Evidentiary Arguments of Plaintiffs Farrar, et al.Plaintiffs Farrar, Lax, Judy, Malaren, and Roth contend that President Barack

Obama is not a natural born citizen. To support this contention, Plaintiffs assert that Mr.Obama maintains a fraudulently obtained social security number, a Hawaiian birthcertificate that is a computer-generated forgery, and that he does not otherwise possessvalid U.S. identification papers. Further, Plaintiffs submit that Mr. Obama has previouslyheld Indonesian citizenship, and he did not use his legal name on his notice of candidacy,which is either Barry Soetoro or Barack Obama Soebarkah. (PI.s' Am. Compi. 3.)

At the hearing, Plaintiffs presented the testimony of eight witnesses2 and sevenexhibits in support of their position. (Exs. P-l through P-7.) When considering thetestimony and exhibits, this Court applies the same rules of evidence that apply to civilnonjury cases in superior court. Ga. Compo R. & Regs. 616-1-2-.18(1)-(9). The weightto be given to any evidence shall be determined by the Court based upon its reliabilityand probative value. Ga. Compo R. & Regs. 616-1-2-.18(10).

The Court finds the testimony of the witnesses, as well as the exhibits tendered, tobe of little, if any, probative value, and thus wholly insufficient to support Plaintiffs'allegations.3 Ms. Taitz attempted to solicit expert testimony from several of thewitnesses without qualifying or tendering the witnesses as experts. See Stephens V. State,219 Ga. App. 881 (1996) (the unqualified testimony of the witness was not competentevidence). For example, two of Plaintiffs' witnesses testified that Mr. Obama's birth2 Originally, Ms. Taitz indicated to the Court that she would offer the testimony of seven witnesses.However, during her closing argument, Ms. Taitz requested to testifY. Ms. Taitz was sworn and began hertestimony, but shortly thereafter, the Court requested that Ms. Tatiz step-down and submit any furthertestimony in writing.3 The credibility of witnesses is within the sole discretion of the trier of fact. In non-jury cases thatdiscretion lies with the judge. See Mustang Transp., Inc. v. W. W. Lowe & Sons, Inc., 123 Ga. App. 350,352 (1971).

4


45/54

certificate was forged, but neither witness was properly qualified or tendered as an expertin birth records, forged documents or document manipulation. Another witness testifiedthat she has concluded that the social security number Mr. Obama uses is fraudulent;however, her investigatory methods and her sources of information were not properlypresented, and she was never qualified or tendered as an expert in social security fraud, orfraud investigations in general. Accordingly, the Court cannot make an objectivethreshold determination of these witnesses' testimony without adequate knowledge oftheir qualifications. See Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872 (1957) (forthe testimony of an expert witness to be received, his or her qualifications as such mustbe first proved).

None of the testifying witnesses provided persuasive testimony. Moreover, theCourt finds that none of the written submissions tendered by Plaintiffs have probativevalue. Given the unsatisfactory evidence presented by the Plaintiffs, the Court concludesthat Plaintiffs' claims are not persuasive.

5


46/54

II. Application of the "Natural Born Citizen" RequirementPlaintiffs allege that President Barack Obama is not a natural born citizen of the

United States and, therefore, is not eligible to run in Georgia's presidential primaryelection. As indicated supra, the United States Constitution states that "[n]o personexcept a natural born Citizen . . . shall be eligible for the Office of the President . . . .',4U.S. Const. art. II, 1, cl. 5.

For the purpose of this section's analysis, the following facts are considered: 1)Mr. Obama was born in the United States; 2) Mr. Obama's mother was a citizen of theUnited States at the time of his birth; and 3) Mr. Obama's father was never a UnitedStates citizen. Plaintiffs contend that, because his father was not a U.S. citizen at the timeof his birth, Mr. Obama is constitutionally ineligible for the Office of the President of theUnited States. The Court does not agree.

In 2009, the Indiana Court of Appeals ("Indiana Court") addressed facts andissues similar to those before this Court. Arkeny v. Governor, 916 N.E.2d 678 (Ind. Ct.App. 2009). In Arkeny, the plaintiffs sought to prevent certification of Mr. Obama as aneligible candidate for president because he is not a natural born citizen. Id. at 681. Theplaintiffs argued, as the Plaintiffs argue before this Court, that "there's a very cleardistinction between a 'citizen of the United States' and a 'natural born Citizen,' and thedifference involves having [two] parents of U.S. citizenship, owing no foreignallegiance." !d. at 685. The Indiana Court rejected the argument that Mr. Obama was

4 The definition of this clause has been the source of much debate. See, e.g., Gordon, Who Can BePresident of he United States: The Unresolved Enigma, 28 Md. L. Rev. 1 (1968); Jill A. Pryor, Note, TheNatural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Yearsof Uncertainty, 97 Yale L.J. 881 (1988); Christina S. Lohman, Presidential Eligibility: The Meaning of heNatural-Born Citizen Clause, 36 Gonz. L. Rev. 349 (2000); William T. Han, Beyond PresidentialEligibility: The Natural Born Citizen Clause as a Source ofBirthright Citizenship, 58 Drake L. Rev. 457(2010).

6


47/54

ineligible, stating that children born within the United States are natural born citizens,regardless of the citizenship of their parents. !d. at 688. This Court finds the decisionand analysis ofArkeny persuasive.

The Indiana Court began its analysis by attempting to ascertain the definition of"natural born citizen" because the Constitution does not define the term. Id. at 685-86;See Minor v. Happersett, 88 U.S. 162, 167 (1875) ("The Constitution does not, in words,say who shall be natural born citizens. Resort must be had elsewhere to ascertain that.");see also United States v. Wong Kim Ark, 169 U.S. 649 (1898) (noting that the onlymention of the tenn "natural born citizen" in the Constitution is in Article II, and the termis not defined in the Constitution).

The Indiana Court first explained that the U.S. Supreme Court has read theFourteenth Amendment and Article II (natural born citizen provision) in tandem and heldthat "new citizens may be born or they may be created by naturalization." Id. at 685(citing Minor, 88 U.S. at 167); See U.S. Canst. amend. XIV, 1. ("All persons born ornaturalized in the United States and subject to the jurisdiction thereof, are citizens of theUnited States . . . ."). In Minor, the Court observed that:

At common-law, with the nomenclature of which the framers of theConstitution were familiar, it was never doubted that all children born in acountry of parents who were its citizens became themselves, upon theirbirth, citizens also. These were natives, or natural-born citizens, asdistinguished from aliens or foreigners. Some authorities go further andinclude as citizens children born within the jurisdiction without referenceto the citizenship of their parents. As to this class there have been doubts,but never as to the first. For the purposes of this case it is not necessary tosolve these doubts.

Id. at 167-68. Plaintiffs ask this Court to read the Supreme Court's decision in Minor asdefining natural born citizens as only "children born in a country of parents who were its

7


48/54

citizens." 88 U.S. at 167. However, the Indiana Court explains that Minor did not definethe tenn natural born citizen. In deciding whether a woman was eligible to vote, theMinor Court merely concluded that children born in a country of parents who were itscitizens would qualify as natural born, and this Court agrees. The Minor Court left openthe issue of whether a child born within the United States of alien parent(s) is a naturalborn citizen.

Next, the Indiana Court looked to United States v. Wong Kim Ark, in which theSupreme Court analyzed the meaning of the words "citizen of the United States" in theFourteenth Amendment and "natural born citizen of the United States" in Article II todetennine whether a child born in the United States to parents who, at the time of thechild's birth, were subjects of China "becomes at the time of his birth a citizen of theUnited States, by virtue of the first clause of the fourteenth amendment . . . ." Id. at 686(citing Wong Kim Ark, 169 U.S. at 653). The Indiana Court detennined that the twoprovisions "must be interpreted in the light of the common law, the principles and historyof which were familiarly known to the framers of the constitution." Id. (citing Wong KimArk, 169 U.S. at 654). The Indiana Court agreed that "[t]he interpretation of theconstitution of the United States is necessarily influenced by the fact that its provisionsare framed in the language of the English common law, and are to be read in the light ofits history." Id. (citing Wong Kim Ark, 169 U.S. at 655) (internal citation omitted). TheWong Kim Ark Court extensively examined the common law of England in its decisionand concluded that Wong Kim Ark, who was born in the United States to alien parents,

8


49/54

became a citizen of the United States at the time of his birth.5 Wong Kim Ark, 169 U.S. at705.

5 The Wong Kim Ark Court explained:The fundamental principle of the common law with regard to English nationality was birthwithin the allegiance, also called "ligealty," "obedience," "faith" or "power," of the King. Theprinciple embraced all persons born within the King's allegiance and subject to his protection.Such allegiance and protection were mutual . . . and were not restricted to natural-bornsubjects and naturalized subjects, or to those who had taken an oath of allegiance; but werepredicable of aliens in amity, so long as they were within the kingdom. Children, born inEngland, of such aliens, were therefore natural-born subjects. But the children, born withinthe realm, of foreign ambassadors, or the children of alien enemies, born during and withintheir hostile occupation of part of the King's dominions, were not natural-born subjects,because not born within the allegiance, the obedience, or the power, or, as would be said atthis day, within the jurisdiction of the King.

169 U.S. at 655.It thus clearly appears that by the law of England for the last three centuries, beginning beforethe settlement of this country, and continuing to the present day, aliens, while residing in thedominions possessed by the Crown ofEngland, were within the allegiance, the obedience, thefaith or loyalty, the protection, the power, the jurisdiction, of the English Sovereign; andtherefore every child born in England of alien parents was a natural-born subject, unless thechild of an ambassador or other diplomatic agent of a foreign State, or of an alien enemy inhostile occupation of the place where the child was born.

[d. at 658. Further:Nothing is better settled at the common law than the doctrine that the children, even of aliens,born in a country, while the parents are resident there under the protection of the government,and owing a temporary allegiance thereto, are subjects by birth.

!d. at 660 (quoting Inglis v. Trustees ofSailors' Snug Harbor, 28 U.S. (3 Pet.) 99, 164 (1830) (Story, 1.,concurring. And:The first section of the second article of the constitution uses the language, 'a natural-borncitizen.' It thus assumes that citizenship may be acquired by birth. Undoubtedly, this languageof the constitution was used in reference to that principle of public law, well understood inthis country at the time of the adoption of the constitution, which referred citizenship to theplace of birth.

!d. at 662 (quoting Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 576 (1856) (Curtis, J., dissenting.Finally:All persons born in the allegiance of the king are natural-born subjects, and all persons born inthe allegiance of the United States are natural-born citizens. Birth and allegiance go together.Such is the rule of the common law, and it is the common law of this country, as well as ofEngland.

!d. at 662-63 (quoting United States v. Rhodes, (1866) (Mr. Justice Swayne.

9


50/54

Relying on the language of the Constitution and the historical reVIews andanalyses of Minor and Wong Kim Ark, the Indiana Court concluded that

persons born within the borders of the United States are "natural borncitizens" for Article II, Section 1 purposes, regardless of the citizenship oftheir parents. Just as a person "born within the British dominions [was] anatural-born British subject" at the time of the framing of the U.S.Constitution, so too were those "born in the allegiance of the United States[] natural-born citizens."

916 N.E.2d at 688. The Indiana Court determined that a person qualifies as a natural borncitizen if he was born in the United States because he became a United States citizen atbirth.6

For the purposes of this analysis, this Court considered that President BarackObama was born in the United States. Therefore, as discussed in Arkeny, he became acitizen at birth and is a natural born citizen. Accordingly,

CONCLUSIONPresident Barack Obama is eligible as a candidate for the presidential primary

election under O.e.G.A. 21-2-5(b).

SO ORDERED, February 3rd, 2012.

~ c k J ~ . ~ MICHAEL M. MALIHI, Judge

6 This Court recognizes that the Wong Kim Ark case was not deciding the meaning of "natural born citizen"for the purposes of determining presidential qualifications; however, this Court finds the Indiana Court'sanalysis and reliance on these cases to be persuasive.10


51/54

EXHIBIT E


52/54

Case 3:12-cv-00036-JAG Document 2 Filed 01/23/12 Page 1 of 3 PagelD# 47

CHARLES TISDALE,Plaintiff,

v. Civil Action No. 3: 12-cv-00036-JAGHONORABLE BARACK H. OBAMA, II, et aI,

Defendants.

ORDERThis matter is before the Court on the Motion to Proceed in Forma Pauperis and Financial

Affidavit filed by the plaintiff, Charles Tisdale, on January 17, 2012. Upon due consideration,the Court finds that Mr. Tisdale is unable to pay the costs of proceeding in the instant case.Accordingly, the Court grants Mr. Tisdale's Motion to Proceed in Forma Pauperis. For thefollowing reasons, however, the Court DISMISSES the Complaint with prejudice.

In proceedings in Forma Pauperis, the Court may dismiss the case at any time if the courtfinds that the action fails to state a claim on which relief may be granted. See 28 U.S.C. 1915(e)(2)(B)(ii); Eriline Co. S.A. v. Johnson, 440 F.3d 648, 656 (4th Cir. 2006).

When interpreting a pro se complaint, the Court must afford the complaint a liberalconstruction. See Laber v. Harvey, 438 F.3d 404, 413 n.3 (4th Cir. 2006). The Court need not,however, attempt "to discern the unexpressed intent of the plaintiff." ld The Fourth Circuit hasstated: "[T]hough [pro se] litigants cannot, of course, be expected to frame legal issues with theclarity and precision ideally evident in the work of those trained in law, neither can district courts


53/54


be required to conjure up and decide issues never fairly presented to them." Beaudett v. City ofHampton, 775 F.2d 1274, 1276 (4th Cir. 1985).

Mr. Tisdale seeks an injunction enjoining the Virginia State Board of Elections fromcertifying any candidate who lacks standing as a "natural born citizen" from appearing on theballot for the upcoming presidential general election on November 6, 2012. Specifically, Mr.Tisdale cites Barack Obama, Mitt Romney, and Ron Paul as ineligible to appear on the ballot, onthe grounds that each had at least one parent who was not a citizen of the United States.

The Court rules that the Complaint does not state a claim upon which relief may begranted. The eligibility requirements to be President of the United States are such that theindividual must be a "natural born citizen" of the United States and at least thirty-five years ofage. U.s. Const. art. II, 1. It is well settled that those born in the United States are considerednatural born citizens. See, e.g., United States v. Ark, 169 U.S. 649, 702 (1898) ("Every personborn in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of theUnited States."); Perkis v. Elg, 99 F.2d 408, 409 (1938). Moreover, "those born 'in the UnitedStates, and subject to the jurisdiction thereof,' . . . have been considered American citizens underAmerican law in effect since the time of the founding . . . and thus eligible for the presidency."Hollander v. McCain, 566 F. Supp. 2d 63, 66 (D.N.H 2008). Thus, Mr. Tisdale's contention thatPresident Obama, Governor Romney, and Congressman Paul are not eligible to be President dueto their nationalities is without merit.

Accordingly, the Court dismisses the Complaint for failure to state a claim. Thisdismissal is with prejudice, as the Court finds that allowing leave to refile would yield the sameresult, given the underlying premise ofMr. Tisdale's claim.

2


54/54


Mr. Tisdale may appeal the decision of the Court. Should he wish to appeal, writtennotice of appeal must be filed within thirty (30) days of the date of entry hereof. Failure to file a

timely notice of appeal may result in the loss of the right to appeal.It is so ORDERED.Let the Clerk send a copy of this Order to all counsel of record and Mr. Tisdale.

Date: January 20,2012Richmond, VA

lsiJohn A. Gibney, ItUnited States District J dge

Documents

PA - 2012-08-28 - SCHNELLER - Obama Motion to Strike and Dismiss Tfb