AZ – Allen v Obama – Denied without prejudice

What is it with properly and timely serving the defendants?…

From the Friends of the Fogbow.

ARIZONA SUPERIOR COURT, PIMA COUNTY

HON. RICHARD E. GORDON JUDGE

KENNETH ALLEN Plaintiff

VS.

BARACK OBAMA, BRAD R. NELSON and DEMOCRATIC PARTY

Defendants

IN CHAMBERS RULING

CASE NO. DATE:

C20121046 February 24, 2012

R UL I N G

 On February 17, 2012, Plaintiff filed his Complaint for Constitutional Violations of the Article II section I clause 5 and Ballot Challenge pursuant to A.R.S. § 16-351(B) and for [D]eclaratory and [I]njunctive [R]elief. Today, on February 24, 2012, Plaintiff filed a Motion for Leave to Amend [B]allot [C]hallenge and [C]omplaint [P]ursuant to Rules of Civil Procedure 15. For the following reasons, the Court will dismiss the current Complaint, but will grant Plaintiff’s motion to amend insofar it will allow Plaintiff to file an amended complaint with no additional filing fee.

Plaintiff seeks to challenge President Barak Obama’s qualifications to run for re-election as President of the United States of America based on his contention that President Obama is not a natural born citizen. Plaintiff claims that President Obama should not be in office, should be removed from office, and that his name should not be on the Arizona ballot for re-election. (Complaint at 4.)

Arizona law provides an expedited process for challenging candidates appearing on its ballots. A.R.S. § 16-351. The Court, therefore, held a status conference yesterday morning at which a representative of the Pima County Attorney’s Office and Plaintiff attended. Both service of process and time restrictions were addressed. The Court believes, to the extent that Plaintiff is entitled to any relief under A.R.S. § 16-351, it must rule on the pending challenge within ten calendar days, inclusive of weekends and holidays. A.R.S. § 16-351(A). Thus, judicial resolution is due Monday, February 27, 2012. Additionally, service of process must be made upon certain specified individuals and, importantly, it must be completed “immediately after the action is filed and in no event more than twenty-four hours after filing the action, excluding Saturdays, Sundays and other legal holidays.” A.R.S. § 16-351(C), (D).

“Election contests are purely statutory and are dependent on statutory provisions for their conduct.” Pacion v. Thomas, 225 Ariz. 168, 170 ¶ 12, 236 P.3d 395, 397 (2010) (citations omitted). While the judicial deadlines within the election statutory scheme are discretionary, elector related deadlines are not. See Brousseau v. Fitzgerald, 138 Ariz. 453, 456, 675 P.2d 713, 716 (1984). Plaintiff explained at the hearing that he has not personally served Defendants but, instead, he sent the pleadings to them by certified mail and apparently included requests for waiver of service. The waiver of service rule (Ariz. R. Civ. P. 4.1(c)) provides for generous response deadlines and thus it is completely inconsistent with the shortened process contemplated by the election challenge statutes. There is no possible way, in light of the deficient service in this case, that this matter can be resolved within the time frame set forth under A.R.S. § 16-351, or even close to the time frames.

The Court finds it unnecessary and improper to address the jurisdictional issues raised at the hearing without the input of the named defendants. The Court warned Plaintiff that it might be too late to cure any service defects and, upon review of the case law and rules, the Court concludes that the case must be dismissed, albeit without prejudice.

As noted, Plaintiff also has sought leave to file an amended complaint. Again, the amendment rules are inconsistent with the extremely shortened time frames at play in election contests. Because, however, there is no impending election involving President Obama and because in most cases a party is entitled to amend a complaint once as a matter of right before a responsive pleading is served, see Ariz. R. Civ. P. 15(a), the Court will allow Plaintiff to re-file the amended version of his Complaint – but he must start anew. Out of fairness, the amended complaint may be filed with no new filing fee.

Accordingly,

IT IS ORDERED DENYING and DISMISSING without prejudice Plaintiff’s February 17, 2012, Complaint brought pursuant to A.R.S. § 16-351.

IT IS FURTHER ORDERED GRANTING Plaintiff’s Motion for Leave to Amend Ballot Challenge and Complaint Pursuant to Rules of Civil Procedure 15 insofar as Plaintiff is allowed to file a new amended complaint with no filing fee; to avoid the filing fee, the amended complaint anew and must be filed no later than March 1, 2012.

cc: Daniel S. Jurkowitz, Esq. Kenneth Allen