al - mcinnish, et al. v chapman - 2012-10-18 - defendant's motion to dismiss
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AlaFileE-Notice
To: JAMESWDAVIS
03-CV-2012-001053.00
Judge:HON.EUGENEW.REESE
NOTICEOFELECTRONICFILING
INTHECIRCUITCOURTOFMONTGOMERYCOUNTY,ALABAMA
ThefollowingmatterwasFILEDon10/18/20128:06:08AM
HUGHMCINNISHANDVIRGINHGOODEJRVS.BETHCHAPMAN
03-CV-2012-001053.00
MOTIONTODISMISSPURSUANTTORULE12(B)
NoticeDate: 10/18/20128:06:08AM
[Filer:DAVISJAMESWILLIAM]
FLORENCECAUTHEN
CIRCUITCOURTCLERK
MONTGOMERYCOUNTY,ALABAMA
251S.LAWRENCESTREET
MONTGOMERY,AL36104
334-832-4950
D001 CHAPMAN BETH
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/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 SHEET
Name 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 Re uirin 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 MotionVacate 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. )
DEFENDANTS MOTION TO DISMISS AND
OPPOSITION TO PLAINTIFFSMOTION 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 Defendants
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
ELECTRONICALLY FILED10/18/2012 8:06 AMCV-2012-001053.00
CIRCUIT COURT OFMONTGOMERY COUNTY, ALABAMA
FLORENCE CAUTHEN, CLERK
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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 thequalifications 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 gainedfrom an official source arising from the performance of duties prescribed
by law, that a candidate has not met a certifying qualification [such as a
candidates failure to file a public Statement of Economic Interest], theSecretary of State should not certify the candidate.
Attorney Generals 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 candidates 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 states election officialto investigate and determine whether the proffered candidate met
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eligibility criteria of the United States constitution, giving each the powerto override a partys 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 thiscould lead to chaotic results. Were the courts of 50 states at liberty to
issue injunctions restricting certification of duly-elected presidentialelectors, the result could be conflicting rulings and delayed transition ofpower 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 nominees
election will be derailed by an objection in Congress, which is authorizedto 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. DavisMargaret L. Fleming (FLE001)
James W. Davis (DAV103)
Assistant Attorneys General
OFFICE OF THE ATTORNEY GENERAL501 Washington AvenueMontgomery, 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 tothe following counsel of record:
L. Dean Johnson4030 Balmoral Dr., Suite B
Huntsville, AL [email protected]
Larry KlaymanKlayman Law Firm
2020 Pennsylvania Ave. NW, Suite 800
Washington, DC [email protected]
s/ James W. Davis
Of Counsel
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ELECTRONICALLY FILED10/18/2012 8:06 AMCV-2012-001053.00
CIRCUIT COURT OFMONTGOMERY COUNTY, ALABAMA
FLORENCE CAUTHEN, CLERK
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