order on defendants' motion to vacate trial

7/31/2019 Order on Defendants' Motion to Vacate Trial

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STATE OF INDIANA ) IN THE MARION SUPERIOR COURT

) SS:

COUNTY OF MARION ) CAUSE NO. 49D14-1203-MI-012046

ORLY TAITZ, KARL SWIHART, )

EDWARD KESLER, BOB KERN, )and FRANK WEYL )

)

Plaintiffs, )

)

v. )

)

INDIANA ELECTION COMMISSION, )

DEPUT Y ATTORNEY GENERAL )

JEFFERSON GARN, DEPUTY )

ATTORNEY GENERAL KATE )

SHELBY, 1310 RADIO/WTLC, )AMOS BROWN, IN HIS OFFICIAL )

CAPACITY OF THE TALK SHOW )

HOST OF THE 1310 RADIO/WTLC )

INDIANA SECRETARY OF )

STATE, )

)

Defendants. )

ORDER ON DEFENDANTS MOTION TO VACATE TRIAL

Defendants, through their attorneys, moved this Court to Vacate the trial that was

scheduled for October 22, 2012. Argument was heard by this Court on October 22, 2012. The

Court -- having reviewed the filings submitted by both parties, having reviewed relevant

authority, and having heard argument from both parties -- now finds that Defendants Motion to

Vacate Trial is GRANTED. Additionally, since there was no good cause for the expedited trial

that Plaintiffs sought, all evidence introduced on October 22, 2012 is hereby STRICKEN.

Specifically, this Court makes the following findings and conclusions relative to Defendants

Motion to Vacate Trial.


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1. Plaintiffs challenged the constitutional qualifications of President Barack Obama

before the Indiana Elections Commission and seek to have him removed from the Indiana

ballot.1

2. The IEC unanimously denied Plaintiffs challenge on February 24, 2012.

3. The review of the decision of the IEC is governed by the Administrative Orders

and Procedures Act (AOPA). See I.C. 4-21.5, etseq. Seealso I.C. 4-21.5-5-1 (AOPA

establishes the exclusive means for judicial review of an agency action); Indiana State Board

of Health Facility Admnrs v. Werner, 841 N.E.2d 1196, 1205 (Ind. Ct. App. 2006) (strict

compliance with the mandates of AOPA is required); Burke v. Board of Directors of Monroe

County Public Library, 709 N.E.2d 1036, 1041 (Ind. Ct. App. 1999) (the failure to adhere to the

statutory prerequisites for judicial review of administrative action is fatal in that it deprives the

trial court of authority to entertain the petition).

4. Plaintiffs filed an action with this Court challenging the decision of the IEC. This

action was initiated on March 23, 2012.2

5. Plaintiffs filed an amended pleading titled First Amended Complaint Injunctive

Relief, Petition for Emergency Stay Under AOPA, Petition for Declaratory Relief, Complaint for

Fraud Negligence Breach of Fiduciary Duty on May 7, 2012.

1 This Court notes that Plaintiff Taitz did not technically file a challenge before the IEC

challenging the qualifications; however, Plaintiff Taitz appeared before the IEC and providedinformation and evidence to the IEC. Plaintiff Taitz is a party to this litigation and has

represented the other plaintiffs as their counsel. Accordingly, this Court finds that Plaintiffs

Taitz is in privity with the other plaintiffs who filed challenges (before the IEC) to theconstitutional qualifications of President Obama.2 The Court recognizes that Plaintiffs initial filing was titled a Petition for Emergency

Injunctive Relief and Petition for Declaratory Relief. Nevertheless, this Court construed

Plaintiffs filing as a Verified Petition for Judicial Review as that was the only means by whichthe decision of the IEC could be reviewed.


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6. A hearing was held on State Defendants Motion to Dismiss and this Court issued

an Order on June 25, 2012. In this Order, this Court concluded that Plaintiffs failed to comply

with various provisions of AOPA and, as a result, this Court dismissed Plaintiffs claims with

prejudice.

7. Plaintiffs filed two Motions under Rule 60. As pertinent, Plaintiffs argued that

the claims of negligence, fraud and breach of fiduciary duty should not have been dismissed with

prejudice.

8. This Court, on August 17, 2012, issued an Order regarding Plaintiffs Rule 60

Motion. Specifically, this Court reaffirmed its June 25, 2012 Order that the challenges to

President Obamas qualifications were dismissed with prejudice and that the dismissal was on

the merits; however this Court allowed Plaintiffs to file an amended pleading setting forth three

state-law torts against the Indiana Election Commission and the Indiana Secretary of State:

negligence; breach of fiduciary duty; and fraud.

9. Plaintiffs filed no appeal of the dismissal of their challenges to the constitutional

qualifications of President Obama with the Court of Appeals. The time for any such appeal has

now passed. Therefore, the decision denying the challenge to the constitutional qualifications of

President Obama is final and Plaintiffs are barred from re-litigating those claims by the doctrines

of res judicata and collateral estoppel. See Adams v. Marion County Office of Family and

Children, 659 N.E.2d 202, 205 (Ind. Ct. App. 1995) (citing Sullivan v. American Casualty Co.,

605 N.E.2d 134, 137 (Ind. 1992)); S. Bend Fedn of Teachers and Natl Ed. Assn-S. Bend, 389

N.E.2d 23, 35 (1979) ([t]he principles of res judicata seek to guard parties against vexatious

and repetitious litigation of issues which have been determined in a judicial or quasi-judicial

proceeding).


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10. On September 4, 2012, Plaintiffs filed a Second Amended Complaint.3

In direct

contravention of this Courts August 17, 2012 Order, Plaintiffs named additional defendants

(Garn and Shelby), included an additional plaintiff (Ripley), and asserted additional claims (for

example, constitutional claims). Plaintiffs also try to reassert their requests for declaratory relief

and injunctive relief to declare that President Obama is not constitutionally qualified and that the

State of Indiana should be compelled to remove President Obama from the Indiana ballot.

11. To be clear, this Court only permitted Plaintiffs to file a further amended

complaint asserting common-law tort claims against the Indiana Election Commission and the

Indiana Secretary of State for negligence, fraud, and breach of fiduciary duty. Thus, Plaintiffs

did not have permission and violated the Indiana Trial Rules and an Order of this Court when

they filed their Second Amended Complaint.

12. On October 1, 2012, Plaintiffs filed a Motion to Schedule Separate Trial of

Expedition on the Two Issues of Declaratory Relief & Permanent Injunction as to Secretary of

State & Elections Commission Alone. Specifically, Plaintiffs requested an expedited trial

against the Indiana Election Commission and the Indiana Secretary of State on two legal causes

of action: declaratory relief & permanent injunction.

13. This Court finds that an expedited trial on the causes of action for declaratory

judgment and injunction against the Indiana Election Commission and the Indiana Secretary of

State is not warranted for any of the following reasons.4

3 This Court notes that summons have not been issued for Jefferson Garn or Kate Shelby;

however, Plaintiffs obtained new summons for the Indiana Election Commission and the IndianaSecretary of State. The docket reflects that those summonses were issued on September 13,

2012.4 State Defendants have filed a Motion to Dismiss and argument was presented on October

22, 2012. By separate Order, this Court has granted State Defendants Motion to Dismiss. ThisOrder deals only with those issues regarding Plaintiffs Motion to Schedule Separate Trial of


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14. First, any request for declaratory or injunctive relief (stemming from the

challenge to the constitutional qualifications of President Obama) was dismissed with prejudice

and on the merits. Since Plaintiffs did not appeal that decision, they are barred by the doctrines

of resjudicata and/or collateral estoppel from re-litigating them here. See Adams v. Marion

County Office of Family and Children, 659 N.E.2d 202, 205 (Ind. Ct. App. 1995) (citing Sullivan

v. American Casualty Co., 605 N.E.2d 134, 137 (Ind. 1992)); S. Bend Fedn of Teachers and

Natl Ed. Assn-S. Bend, 389 N.E.2d 23, 35 (1979) ([t]he principles of res judicata seek to

guard parties against vexatious and repetitious litigation of issues which have been determined in

a judicial or quasi-judicial proceeding).

15. Second, this Courts August 17, 2012 Order made clear that Plaintiffs were only

given permission to allege state law tort claims for negligence, fraud, or breach of fiduciary duty.

Plaintiffs have, once again, violated an Order of this Court and such conduct will not be

tolerated. Further, Plaintiffs filed their Second Amended Complaint in violation of Trial Rule

15. See Ind. T.R. 15.

16. Third, injunction is not a cause of action. See, e.g., Noah v. Enesco Corp., 911 F.

Supp. 305, 307 (N.D. Ill. 1995) ([b]y its very name, it is apparent that injunctive relief is a

remedy and [a]n injunction is a remedy, not a cause of action); Washel v. Bryant, 770 N.E.2d

902, 904 (Ind. Ct. App. 2002) ([a]n injunction is an extraordinary equitable remedy) (emphasis

added).

17. Fourth, Plaintiffs Second Amended Complaint does not cite to the Uniform

Declaratory Judgment Act or allege a viable claim for declaratory relief. And, even if Plaintiffs

Expedition on the Two Issues of Declaratory Relief & Permanent Injunction as to Secretary of

State & Elections Commission Alone and State Defendants Motion to Vacate the trial onOctober 22, 2012.


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Second Amended Complaint did articulate a cause of action for declaratory judgment, Indiana

law is clear that the State of Indiana (here, the Indiana Elections Commission and the Indiana

Secretary of State) cannot be the subject of a declaratory judgment claim. See I.C. 34-14-1-13

(State or its agencies not included within the definition of person for purposes of the UDJA);

State v. LaRue, Inc., 154 N.E.2d 708, 712 (Ind. 1958) (trial court does not have jurisdiction over

declaratory judgment action against the State because the State, in its sovereign capacity, is not

subject to suit under the UJDA).

18. Fifth, Plaintiffs did not seek an expedited trial on any of their common law tort

claims and, in any event, such claims do not give rise to claims for declaratory relief or

injunctive relief.

19. Sixth, Plaintiffs claim for injunctive relief has already been denied and, therefore,

the October 22, 2012 trial was not to be a forum to re-litigate that claim.

20. In sum, there is no need for any deviation from normal litigation practice and

there is no need for a Separate Trial of Expedition on the Two Issues of Declaratory Relief &

Permanent Injunction as to Secretary of State & Elections Commission Alone.

21. Further, this Court has granted State Defendants Motion to Dismiss.

Consequently, the Second Amended Complaint has been dismissed with prejudice. Since there

are no claims remaining against State Defendants, there is no need for a trial in this matter.

Since Plaintiffs likely will try and appeal this Courts decision, the Motion to Vacate is granted

and, as a result, all evidence introduced on October 22, 2012 is hereby stricken from the record.


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IT IS THEREFORE ORDERED that State Defendants Motion to Vacate is

GRANTED and all evidence introduced on October 22, 2012 is STRICKEN this ____ day of

__________, 2012.

____________________________________

Honorable S. K. Reid

Judge, MARION SUPERIOR COURT 14

Distribution:

Orly Taitz

29839 Santa Margarita Pkwy, Ste 100

Rancho Santa Margarita, CA 92688

Karl Swihart

460 Austin Drive

Avon, IN 46123

Edward Kesler

3070 S. Leisure PlaceWest Terre Haute, IN 47885

Frank Weyl

701 N. Brentwood Lane

Muncie, IN 47304

Bob Kern

12547 Crystal Point DriveIndianapolis, IN 46236

Valeria I. Ripley

14334 Tonkel RoadFort Wayne, IN 46845

Greg BlackP.O. Box 845

1647 East Main Street, Suite A

Plainfield, IN 46168


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order on defendants' motion to vacate trial

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