alabama motion to dismiss

AlaFile E-Notice

To: JOHNSON LAWRENCE DEAN

[email protected]

03-CV-2012-001053.00

Judge: HON. EUGENE W. REESE

NOTICE OF ELECTRONIC FILING

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

The following matter was FILED on 10/18/2012 8:06:08 AM

HUGH MCINNISH AND VIRGIN H GOODE JR VS. BETH CHAPMAN

03-CV-2012-001053.00

MOTION TO DISMISS PURSUANT TO RULE 12(B)

Notice Date: 10/18/2012 8:06:08 AM

[Filer: DAVIS JAMES WILLIAM]

FLORENCE CAUTHEN

CIRCUIT COURT CLERK

MONTGOMERY COUNTY, ALABAMA

251 S. LAWRENCE STREET

MONTGOMERY, AL 36104

334-832-4950

D001 CHAPMAN BETH

/s/ JAMES W DAVIS

Signature of Attorney or Party:Date:Check here if you have filed or are filingcontemoraneously with this motion an Affidavit ofSubstantial Hardship or if you are filing on behalf of anagency or department of the State, county, or municipalgovernment. (Pursuant to §6-5-1 Code of Alabama(1975), governmental entities are exempt fromprepayment of filing fees)

Case No.STATE OF ALABAMAUnified Judicial System

03-MONTGOMERY District Court Circuit Court

Revised 3/5/08

HUGH MCINNISH AND VIRGIN H GOODE JR VS.BETH CHAPMAN

CIVIL MOTION COVER SHEETName of Filing Party:

Name, Address, and Telephone No. of Attorney or Party. If Not Represented.

Attorney Bar No.:

JAMES W DAVIS

501 Washington Ave.

Montgomery, AL 36130

DAV103

TYPE OF MOTION

Motions Requiring Fee Motions Not Requiring Fee

Default Judgment ($50.00)

Joinder in Other Party's Dispositive Motion (i.e.Summary Judgment, Judgment on the Pleadings, orother Dispositive Motion not pursuant to Rule 12(b))($50.00)

Summary Judgment pursuant to Rule 56($50.00)

Renewed Dispositive Motion(Summary Judgment,Judgment on the Pleadings, or other DispositiveMotion not pursuant to Rule 12(b)) ($50.00)

Judgment on the Pleadings ($50.00)

Motion to Dismiss, or in the Alternative SummaryJudgment($50.00)

Other

Add Party

Amend

Change of Venue/Transfer

Compel

Consolidation

Continue

Deposition

Designate a Mediator

Judgment as a Matter of Law (during Trial)

Disburse Funds

Extension of Time

In Limine

Joinder

More Definite Statement

Motion to Dismiss pursuant to Rule 12(b)

New Trial

Objection of Exemptions Claimed

Plaintiff's Motion to Dismiss

Preliminary Injunction

Protective Order

Quash

Release from Stay of Execution

Sanctions

Sever

Special Practice in Alabama

Stay

Strike

Supplement to Pending Motion

Vacate or Modify

Withdraw

Otherpursuant to Rule (Subject to Filing Fee)

pursuant to Rule ($50.00)

*This Cover Sheet must be completed and submitted to the Clerk of Court upon the filing of any motion. Each motion should contain a separate Cover Sheet.

**Motions titled 'Motion to Dismiss' that are not pursuant to Rule 12(b) and are in fact Motions for Summary Judgments are subject to filing fee.

*Motion fees are enumerated in §12-19-71(a). Feespursuant to Local Act are not included. Please contact theClerk of the Court regarding applicable local fees.

Local Court Costs $

D001 - CHAPMAN BETH

10/18/2012 8:04:26 AM

CV201200105300

Pendente Lite

Oral Arguments Requested

Motion to Intervene ($297.00)

ELECTRONICALLY FILED10/18/2012 8:06 AMCV-2012-001053.00

CIRCUIT COURT OFMONTGOMERY COUNTY, ALABAMA

FLORENCE CAUTHEN, CLERK

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IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

HUGH McINNISH, et al., ) )

Plaintiffs, ) ) CIVIL ACTION NUMBER v. ) ) CV-2012-001053 BETH CHAPMAN, Secretary of State, ) ) Defendant. )

DEFENDANT’S MOTION TO DISMISS AND

OPPOSITION TO PLAINTIFFS’MOTION FOR SUMMARY JUDGMENT

Pursuant to Rules 12 and 56 of the Alabama Rules of Civil Procedure, the

Defendant, Beth Chapman, sued in her official capacity as the Secretary of State for the

State of Alabama, moves to dismiss Plaintiffs’ claims and simultaneously opposes

Plaintiffs’ motion for summary judgment. In support of this motion, Defendant states as

follows:

1. Plaintiffs seek a writ of mandamus requiring Secretary Chapman to

investigate the qualifications of Presidential candidates and to remove unqualified

candidates from the November, 2012 general election ballot. Their claim is directed

primarily toward President Obama and is based on the incorrect premise that Secretary

Chapman has a duty to investigate the qualifications of candidates certified by a political

party. Plaintiffs filed a motion for summary judgment and moved to shorten Defendant’s

time for a response.

Putting aside the fact that Plaintiffs’ motion for summary judgment does not

comply with Rule 56(a) of the Alabama Rules of Civil Procedure (which permits a




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plaintiff to file a motion for summary judgment only “after the expiration of thirty days

from the commencement of the action”), Plaintiffs’ claim fails for four reasons: (1) The

Secretary of State has no legal duty to investigate the qualifications of a candidate; (2) in

regard to candidates for President, the authority to adjudge qualifications rests with

Congress; (3) Plaintiffs have failed to join necessary parties; and (4) Plaintiffs’ claim is

filed too late.

2. As a matter of Alabama law, the Secretary of State does not have a duty to

investigate the qualifications of candidates:

The Secretary of State does not have an obligation to evaluate all of the qualifications of the nominees of political parties and independent candidates for state offices prior to certifying such nominees and candidates to the probate judges pursuant to sections 17-7-1 and 17-16-40 of the Code of Alabama. If the Secretary of State has knowledge gained from an official source arising from the performance of duties prescribed by law, that a candidate has not met a certifying qualification [such as a candidate’s failure to file a public Statement of Economic Interest], the Secretary of State should not certify the candidate.

Attorney General’s Opinion No. 1998-200 (copy attached as Exhibit A) (former §17-7-1

is now codified at § 17-9-3, and former § 17-16-40 is now codified at 17-13-22).

3. This rule makes sense. The Secretary of State receives nominations of

hundreds of candidates from the political parties. It would simply be impossible for her

to go behind those nominations and verify each candidate’s qualifications.

4. In addition, when it comes to candidates for President, only Congress has

the authority to judge qualifications. Robinson v. Bowen, 567 F.Supp.2d 1144, 1447

(N.D. Cal. 2008). A central authority to adjudge qualifications for President makes far

more sense than it being decided in 50 separate states:

[T]he truly absurd result would be to require each state’s election official to investigate and determine whether the proffered candidate met

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eligibility criteria of the United States constitution, giving each the power to override a party’s selection of a presidential candidate. The presidential nominating process is not subject to each of the 50 states’ election officials independently deciding whether a presidential nominee is qualified, as this could lead to chaotic results. Were the courts of 50 states at liberty to issue injunctions restricting certification of duly-elected presidential electors, the result could be conflicting rulings and delayed transition of power in derogation of statutory and constitutional deadlines. Any investigation of eligibility is best left to each party, which presumably will conduct the appropriate background check or risk that its nominee’s election will be derailed by an objection in Congress, which is authorized to entertain and resolve the validity of objections following the submission of the electoral votes.

Keyes v. Bowen, 117 Cal.Rptr.3d 207 (Cal.App. 2010).

5. Plaintiffs have also failed to join one or more necessary parties, namely,

President Obama, the other candidates whose interests are at stake, and affected

presidential electors. Ala.R.Civ.P. 19.

6. Finally, Plaintiffs filed their claim too late. Absentee voting has begun.

Overseas and military ballots have already issued. It is not possible to alter the ballot at

this date. Whether Plaintiffs’ claim is construed as an untimely contest of the nominating

process (see Wood v. Booth, 990 So.2d 314 (Ala. 2008); Roper v. Rhodes, 988 So. 2d 471

(Ala. 2008)), or whether it is construed through the lens of laches (see Roper, 988 So. 2d

at 481 (Murdock, J., dissenting in the reasoning but agreeing with the result)), their claim

is time-barred.

WHEREFORE, this Court should deny Plaintiffs’ motion for summary judgment

and dismiss Plaintiffs’ complaint.

Respectfully submitted, LUTHER STRANGE (ASB-0036-G42L) Attorney General BY:

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s/ James W. Davis Margaret L. Fleming (FLE001) James W. Davis (DAV103) Assistant Attorneys General OFFICE OF THE ATTORNEY GENERAL 501 Washington Avenue Montgomery, Alabama 36130 Telephone: (334) 242-7300 Facsimile: (334) 353-8440 [email protected] [email protected]

Attorneys for Secretary of State Beth Chapman

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 18th day of October, 2012, I filed the foregoing document via the Alafile system, which will send electronic notification of such filing to the following counsel of record: L. Dean Johnson 4030 Balmoral Dr., Suite B Huntsville, AL 35801 [email protected] Larry Klayman Klayman Law Firm 2020 Pennsylvania Ave. NW, Suite 800 Washington, DC 20006 [email protected] s/ James W. Davis

Of Counsel

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