Klayman has filed a Second Motion to Strike the ADP’s response to his initial motion to strike. It is hilarious. It argues that the ADP’s filing is “scandalous” for attacking Zollo’s qualifications and “unbecoming” of the President, while simultaneously referencing the IRS and Benghazi.

Yes, the court will be impressed by these irrelevant references while taking notice of the description by the defendants of Zullo who signed the affidavit as a private person.

Poor Klayman, again he appears to have fallen for the trap set…

Document will be uploaded once the Fogbow reports on it.

SCOAL 2013-05-24 McInnish|Goode v Chapman - Appellants’ Second Motion to Strike

Oh boy did Klayman take the bait and bite. And he still does not explain why, if Zullo signed as a private citizen, instead trying to ‘argue’ that Zullo holds any law enforcement position… In the end it does not matter as the ADP has clearly outlined what the issue to be decided is, and it is not about the eligibility of our President…

Regrettably, Appellants have again been compelled, due to Amicus Curiae the Alabama Democratic Party’s disrespectful and offensive conduct, to move this court to now strike its Response of Amicus Curiae Alabama Democratic party Motion to Strike. Specifically, and for the second time, the Alabama Democratic Party uses its privilege to file an amicus brief to wage an ad-hominem attack on the integrity of the appellants and an official source who provided evidence that Defendant Obama’s birth certificate is fraudulent.

NBC: Klayman fails to outline how the amicus brief was an ad hominem attack on the integrity of the appellants, who include McInnish. Furthermore, Klayman fails to explain why the Court should consider Zullo to be an official source when he files an affidavit as a private citizen. Finally, Zullo has not provided any evidence that President Obama’s birth certificate is fraudulent. What the work by the Cold Case Posse’s volunteers attempt to show is that a highly compressed copy of the original document contains certain artifacts which they claim can only be explained through human intervention. No attempts have been made to show that the document is fraudulent, let alone that the original document is fraudulent.

While the Appellate Rules do not state specific criteria to strike pleadings,  Alabama Rule of Civil Procedure 12(f) provide guidance and the appropriate standard. It holds:

(f) Motion to strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within thirty (30) days after the service of the pleading upon the party or upon the court’s own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

In the Alabama Democratic Party’s Response, entity attack occurs particularly in paragraph 9 wherein this political entity attacks Maricopa County Sheriff Joseph Arpaio and his investigator Michael Zullo and states:

All that being said, the ADP assumes that it is unnecessary to further address whether this Court should consider the rambling screed that pases for an “affidavit” attached to the Appellants Motion to Strike. Virtually none of the information contained in the affidavit is admissible or credible, except where the affiant admits that he is a “former” law enforcement officer and not acting with any legitimate legal authority. The Appellants have gone from relying on the unsubstantiated, unverified and politically-biased beliefs of one county sheriff out of the 3,000 such sheriffs in America, to relying on the unsubstantiated, uncorroborated, politically-biased beliefs of one private citizen of the 313 million such private citizens in this country. The “affidavit” is inadmissible on its face and is composed of hearsay, speculation, and unsupported conclusions. Virtually none of the information in the “affidavit” could possibly be within the affiant’s personal knowledge and serves merely to demonstrate the depths to which these conspiracy theorists have resorted to try to de-legitimize a President that they quite obviously despise. The “affidavit” should be disregarded in its entirety.

This ad-hominem attack is “immaterial, impertinent, or scandalous” and should be stricken from the Alabama Democratic Party’s response. It is unbecoming of a political party that purports to represent the interests of a President of the United States.

NBC: Perhaps Klayman does not understand the meaning of ad hominem, which is not what the ADP is arguing. The ADP points out why the affidavit is irrelevant and inadmissible. Klayman may not like how the ADP describes the Sheriff and Zullo, but it is accurate to observe that the affidavit remains inadmissible, whether submitted by a county Sheriff from Arizona, or a private citizen like Zullo.

In addition, it is clear from Michael Zullo’s affidavit itself that he was deputized by the official source, Sheriff Joe Arpaio and his Cold Case Posse, to conduct an investigation into the authenticity of Mr. Obama’s purported birth certificate.

NBC: At best Arpaio allowed Zullo to present information as to the authenticity of a highly compressed document. To claim that he was ‘deputized’ leaves much to be desired as to the official status of Zullo. Needless to say, Zullo did not pretend to be talking in any official capacity but rather as a private citizen.

Paragraphs 6-8 of Zullo’s affidavit y states under oath:

NBC: Which merely means that Zullo believes this, not that it is accurate. If Klayman wants the court to believe that Zullo is acting in an official capacity then why not submit the affidavit as such. Instead they chose to submit it as a private citizen, describing what the MCSO Cold Case Posse has done.

6. Under the Arizona Constitution and Arizona Revised Statutes, the elected Sheriff of Maricopa County has the authority to request assistance from a volunteer posse to assist the Sheriff in the execution of his duties, working under law enforcement authority of the Maricopa County Sheriff.

NBC: Nothing about being deputized or being able to represent oneself as an official source. Nothing that suggests that law enforcement authority is delegated to said posse. The posse can work under law enforcement authority of the Sheriff, not replace such authority.

7. Upon activation the Maricopa County Sheriff, certified Posse members are empowered to act as if the Sheriff himself were present when called upon to do so. Posse members of the MCSO are delegated their law enforcement authority by the Maricopa County Sheriff.

NBC: It that were the case, then why was the posse accompanied by a real MCSO law enforcement officer when visiting Hawaii?  Worse, Klayman has failed to show, beyond a mere claim by the affiant, that such enforcement authority can be ‘activated’ by the Sheriff.

8. Under that activation Sheriff Arpaio granted fully law enforcement authority of the Maricopa County Sheriff’s Office to conduct this investigation and to report back to the Sheriff our findings for his ultimate dispensation.

NBC: Nothing to support this assertion and nothing to support the claim that Zullo is acting in official capacity.

Accordingly, the Alabama Democratic Party’s response, like its original Amicus Curiae Brief, is also untruthful.

NBC: It merely observes that Zullo signed the affidavit not in any official capacity but as a private citizen. Whatever Zullo believes his powers may have been, they do not apply to his private capacity.

In addition, the Alabama Democratic Party’s Response is also misleading, when it suggests that it was a party to the lower court action. In fact, its motion to intervene was never granted and the birth certificate which proffers as genuine was never submitted to the court below.

NBC: The ADP did not suggest that it was a party to the lower court action, it was correcting a flawed assertion by Klayman. Nor does the ADP argue that the birth certificate was submitted to the court.

Finally, if the Alabama Democratic Part wishes to continue with its ad-hominem attacks on official source Sheriff Joe Arpaio and his Cold Case, it should not be allowed to use and waste the valuable resources of this court to advance the political agenda of the administration – which of late regrettably has beeen exposed for the entire country to see wit1 scandals from “Fast and Furious-gate,” to “IRS-gate,” to ”Benghazi-gate,” to “Associated Press-gate,” to “Fox News-gate,” and more. Thus, the Alabama Democratic Party’s uncalled for ad-hominem politically-biased attacks are akin to the pot calling the kettle black.

NBC: Not a very logical conclusion. Klayman has bitten…

WHEREFORE, Appellants respectfully request, regrettably for the second time, that Alabama Democratic Party’s pleading be stricken in its entirety.

I have it on Very Good Authority that the ADP has filed their response to Klayman’s Motion to Strike.

[Update]: Here it is

I’d like to explore why the ADP’s brief which mentions the newspaper birth announcements and various other documents is admissible while the affidavit by Zullo is not.

Klayman attempts to argue that in name of fairness, if the court were to allow the Amicus Brief, he should be allowed to enter Zullo’s affidavit. But Klayman may be unaware of something relevant here. The first issue is judicial notice, the second is admissibility of evidence which involves hearsay and authentication.

Rule 201 of the Alabama Rules of Evidence describes the concept of judicial notice

We reported on the Zullo affidavit recently and were wondering why new evidence was being submitted for an appeal, which isn’t usually permissible. Well, some of you may remember the Democrats’ recent submission of an “Obama” “birth certificate,” along with other falsehoods and nonsense. Since they did not attempt that before in the original case, it would seem that it was not admissible, since appeals are not supposed to accept new evidence.

First of all it is important to understand the difference between evidence and exhibits. The ‘argument’ raised by the plaintiffs is that the Secretary of State had DUTY to follow up on the ‘research’ by the Cold Case Posse which they claimed shows evidence of fraud. However, as the ADP points out, far more credible evidence contradicted these claims. Note that under Alabama law, the SOS has to act if she receives “knowledge from an official source arising from the performance of her duties”. The ‘research’ by the Sheriff’s office cannot be considered as such. Certainly the ‘evidence’ is at best speculative and does not reach any conclusion that our President is ineligible. Note also that in their motion for summary judgment, the plaintiffs themselves brought up the PDF document of the Long Form Birth Certificate. So this is not ‘new evidence’. The motion also mentions the statements made by Hawaiian officials, claiming that they are inconsistent. So again, this is not new evidence.

All in all, there is a much better case that the Court will allow the Amicus Brief to stand, while it has no choice but to reject the affidavit by private citizen Zullo.

George Miller also refers to other falsehoods and nonsense submitted by the ADP in their brief but does not clarify the extent of this. While he may not like the arguments the brief submits, he needs to do a bit more than just rejecting them because he does not like them.

Some people are also wondering why Arpaio/Zullo haven’t taken their case to prosecutors or AG, either, a question I often ponder myself. I have heard from three reliable sources that they discussed this with at least one prosecutor, not to mention multiple legislators and not found anyone who has acted yet.  He was told by a prosecutor that there wasn’t enough proof. Proof? Proof for what?

Perhaps George can explain why Sheriff Arpaio did not sign the affidavit in his official capacity and instead the affidavit was signed by private citizen Zullo? As to the lack of proof, there is no evidence of fraud as fraud requires some specific standards. Just because the Cold Case Posse believes that a highly compressed copy of the original document shows evidence of tampering does not make this fraudulent. And as such, no self respecting prosecutor or even legislator will take up the case. Now I understand that George hopes that if they did, they could finally get the discovery that would show fraud, but without a foundation, there is no chance that any court would grant such a fishing expedition.

Please tell me that this is not how Klayman’s briefs read like… Have we been punked. This reads more like something a 15 year old would write, full of circular logic.

Wow… I thought that the Alabama case was going to settle it once and for all. Of course, the issue raised was quite limited and the Court rules do not allow for new information to be introduced, which would exclude any affidavit by the Cold Case Posse knitting club.

Sigh… I was hoping for some real fireworks in Alabama… But it’s all a dud…

So far the affidavit appears to raise no relevant issues, and will be rejected per the rules of the Supreme Court of Alabama.

Another funny one. Perhaps Klayman does not appreciate the meaning of ‘Judicial Notice’ versus an ‘Affidavit’ which contains nothing of the kind

And yes, the Court can take judicial notice of newspaper articles, and statements by the Officials of the Department of Health of Hawaii.

I agree with everyone who commented here previously. There is nothing Arpaio and Zullo can do in front of the Supreme Court of AL. The supreme court of AL does not allow any witness testimony or any new evidence. The only thing Arpaio can do and has to do, is file a criminal complaint in Maricopa county AZ, where he is a Sheriff. He could have done it a year ago. For a year he has been talking and promising, but did not do his job as a sheriff. It is noteworthy that when Arpaio could testify in trial court in CA, GA, MS, when I subpoenaed him to testify, he refused to do so. Now, when testimony is forbidden by the rules of the Supreme Court he says he will help. This is just noise for fundraising purpose, no real action. Everyone should tell Carl Gallops-PPSimmons, Zullo and Arpaio to stop talking and file the criminal complaint immediately or refund the donors who were mislead and believed that Arpaio will file a criminal complaint before the election

Hear hear…  Why is Arpaio refusing to take the findings by the Cold Case Posse and start an official investigation and file a criminal complaint? I think the answer is self evident.

Some very insightful comments. First of all addressing the fact that the Supreme Court is bound by the lower case decision and will not hear testimony beyond the rulings of that case.

WND and ORYR are posting articles saying that Sheriff Arpaio is going to get involved in the oral argument in Obama eligibility case, which is on appeal before the Supreme Court of AL.

I posted here a decision by the AL Supreme Court, which was just released. It is a different case but it shows you how the court works. AL Supreme Court, as 49 other Supreme Courts, are looking at the evidence that was in front of the trial court in deciding whether the judge in the lower court, the trial court, erred in granting his decision based on the evidence that he had at a time.

Oral argument in any Supreme Court of any State is extremely rare. Less than one percent of any cases goes for oral argument and typically it is to clarify the points of law. No witnesses are allowed during those arguments, no new testimony is allowed. Arpaio and attorneys in AL case know it. Democratic party of AL filed an Amicus brief. The courts rarely even look at Amicus Briefs. Amicus briefs are briefs of the friends of the court and typically those briefs include argument on the points of law considered in the lower court. No new evidence brought in the Amicus briefs, such as one produced by the Democratic Party of AL, are ever considered.

In the lower court the case by McInnish and Good was dismissed after the Sec of State of AL Beth Chapman argued   via her motion to dismiss that she had no duty to demand the certified birth certificate for Obama and that the case is moot. Supreme Court will decide whether she had to request a certified copy of Obama’s BC and whether the matter was moot. They will not address any other arguments, any new facts or any new testimony.

Then she hits the nail with her observations about the MCSO Cold Case Posse

Third: if you noticed, arpaio himself nver said anything. He is using his proxy, Mike Zullo, who is not even employed by the Sheriff’s department, who is just a volunteer with the cold case posse to make claims. ORYR an WND are not saying that they interviewed Arpaio, they are saying that they heard something posted on other blogs, such s PPSimmons-Carl Galllups.  Why didn’t WND, which claimd to be a reputable Internet publication, interview Arpaio directly and ask: how can you get involved in AL Supreme Court, where no new testimony is allowed and why didn’t you file a criminal complaint in the county where you are a sheriff and have a duty to file? You can see one big scheme, where a number of people are doing PR and fundraising, but nothing of substance is being done.

Arpaio very carefully isolated himself from the Cold Case Posse’s follies.

Call WND, ORYR and Carl Gallops from PPSimmons and tell them to stop peddling nonsense and start asking Arpaio and his investigator Zullo tough questions: why didn’t they file the criminal complaint for over a year? Why are they just talking instead of filing the criminal complaint.

Yes, why is Arpaio remaining quiet here

At OBC, a smart contributor explains why Arpaio’s work will have little relevance to the issue before the Court which is straightforward. First of all President Obama is not even a party to the case, second of all, the issue is limited to a single issue question. There have been rumors that Arpaio will be completely collaborating with the AL court, however I doubt that Arpaio himself will involve himself in these matters as it is not even an official investigation. Furthermore, the affidavits have already been submitted in the case, and have no relevance. And finally, I doubt that they are even ready to share all this ‘new evidence’ they have been speculating about. I understand that Zullo and Gallups had another love fest of much of the same. Any updates on what they discussed?

This is an appeal of the lower court ruling. The only appellee is Alabama SoS Chapman, President Obama isn’t even involved. There will be no witness, no trial and no new evidence will be allowed. The only question will be did the lower court err when it said that the SoS has no duty to investigate the eligibility of Presidential candidates? It is only a question of the interpretation of Alabama law. Seems to me there is very little assistance the Zullo can provide to the appellants.

IMO, they are just raising a bunch of false hopes.

Source: william Rawle at OBC

The MCSO Cold Case Posse surely is making a lot of noise but so far we only hear about how VIP’s are dropping

I expect that this will be going until until well after the next Obama lives in the Whitehouse

Others at OBC are similarly unimpressed

So now we have breaking news that actually is old news. Klayman as I understand it, has been using Arpaio’s and Zullo’s affidavits in Florida & Alabama. This is nothing new. The whole premise for requesting the Arpaio investigation was for the purpose of determining whether the Obama Certificate of Live Birth is a criminal forgery. The main thrust of the request was to bring criminal charges to the forefront. We still are waiting for Arpaio & Co. to seek criminal charges. When that happens it will indeed be worthy of the phrase “breaking news.”

Source: Brian Reilly

At OBC, a smart contributor explains why Arpaio’s work will have little relevance to the issue before the Court which is straightforward. First of all President Obama is not even a party to the case, second of all, the issue is limited to a single issue question. There have been rumors that Arpaio will be completely collaborating with the AL court, however I doubt that Arpaio himself will involve himself in these matters as it is not even an official investigation. Furthermore, the affidavits have already been submitted in the case, and have no relevance. And finally, I doubt that they are even ready to share all this ‘new evidence’ they have been speculating about. I understand that Zullo and Gallups had another love fest of much of the same. Any updates on what they discussed?

This is an appeal of the lower court ruling. The only appellee is Alabama SoS Chapman, President Obama isn’t even involved. There will be no witness, no trial and no new evidence will be allowed. The only question will be did the lower court err when it said that the SoS has no duty to investigate the eligibility of Presidential candidates? It is only a question of the interpretation of Alabama law. Seems to me there is very little assistance the Zullo can provide to the appellants.

IMO, they are just raising a bunch of false hopes.

Source: william Rawle at OBC

The MCSO Cold Case Posse surely is making a lot of noise but so far we only hear about how VIP’s are dropping

I expect that this will be going until until well after the next Obama lives in the Whitehouse

Others at OBC are similarly unimpressed

So now we have breaking news that actually is old news. Klayman as I understand it, has been using Arpaio’s and Zullo’s affidavits in Florida & Alabama. This is nothing new. The whole premise for requesting the Arpaio investigation was for the purpose of determining whether the Obama Certificate of Live Birth is a criminal forgery. The main thrust of the request was to bring criminal charges to the forefront. We still are waiting for Arpaio & Co. to seek criminal charges. When that happens it will indeed be worthy of the phrase “breaking news.”

Source: Brian Reilly

At OBC, a smart contributor explains why Arpaio’s work will have little relevance to the issue before the Court which is straightforward. First of all President Obama is not even a party to the case, second of all, the issue is limited to a single issue question. There have been rumors that Arpaio will be completely collaborating with the AL court, however I doubt that Arpaio himself will involve himself in these matters as it is not even an official investigation. Furthermore, the affidavits have already been submitted in the case, and have no relevance. And finally, I doubt that they are even ready to share all this ‘new evidence’ they have been speculating about. I understand that Zullo and Gallups had another love fest of much of the same. Any updates on what they discussed?

This is an appeal of the lower court ruling. The only appellee is Alabama SoS Chapman, President Obama isn’t even involved. There will be no witness, no trial and no new evidence will be allowed. The only question will be did the lower court err when it said that the SoS has no duty to investigate the eligibility of Presidential candidates? It is only a question of the interpretation of Alabama law. Seems to me there is very little assistance the Zullo can provide to the appellants.

IMO, they are just raising a bunch of false hopes.

Source: william Rawle at OBC

The MCSO Cold Case Posse surely is making a lot of noise but so far we only hear about how VIP’s are dropping

I expect that this will be going until until well after the next Obama lives in the Whitehouse

Others at OBC are similarly unimpressed

So now we have breaking news that actually is old news. Klayman as I understand it, has been using Arpaio’s and Zullo’s affidavits in Florida & Alabama. This is nothing new. The whole premise for requesting the Arpaio investigation was for the purpose of determining whether the Obama Certificate of Live Birth is a criminal forgery. The main thrust of the request was to bring criminal charges to the forefront. We still are waiting for Arpaio & Co. to seek criminal charges. When that happens it will indeed be worthy of the phrase “breaking news.”

Source: Brian Reilly

At OBC, a smart contributor explains why Arpaio’s work will have little relevance to the issue before the Court which is straightforward. First of all President Obama is not even a party to the case, second of all, the issue is limited to a single issue question. There have been rumors that Arpaio will be completely collaborating with the AL court, however I doubt that Arpaio himself will involve himself in these matters as it is not even an official investigation. Furthermore, the affidavits have already been submitted in the case, and have no relevance. And finally, I doubt that they are even ready to share all this ‘new evidence’ they have been speculating about. I understand that Zullo and Gallups had another love fest of much of the same. Any updates on what they discussed?

This is an appeal of the lower court ruling. The only appellee is Alabama SoS Chapman, President Obama isn’t even involved. There will be no witness, no trial and no new evidence will be allowed. The only question will be did the lower court err when it said that the SoS has no duty to investigate the eligibility of Presidential candidates? It is only a question of the interpretation of Alabama law. Seems to me there is very little assistance the Zullo can provide to the appellants.

IMO, they are just raising a bunch of false hopes.

Source: william Rawle at OBC

The MCSO Cold Case Posse surely is making a lot of noise but so far we only hear about how VIP’s are dropping

I expect that this will be going until until well after the next Obama lives in the Whitehouse

Others at OBC are similarly unimpressed

So now we have breaking news that actually is old news. Klayman as I understand it, has been using Arpaio’s and Zullo’s affidavits in Florida & Alabama. This is nothing new. The whole premise for requesting the Arpaio investigation was for the purpose of determining whether the Obama Certificate of Live Birth is a criminal forgery. The main thrust of the request was to bring criminal charges to the forefront. We still are waiting for Arpaio & Co. to seek criminal charges. When that happens it will indeed be worthy of the phrase “breaking news.”

Source: Brian Reilly

Ragsdale rocks!!

STATEMENT OF INTEREST OF AMICUS CURIAE

Amicus Curiae Alabama Democratic Party has an interest in this appeal because the Appellants seek herein to challenge the eligibility of President Barack Obama to have appeared on the ballot as the Democratic nominee for President. “A political party has the right to determine eligibility of its nominees and to refuse to issue a certificate of nomination or to revoke a certificate of nomination if one has been entered.” Bryan v. Hubbard, 6 So.3d 491, 502 (Ala. 2008). In addition, the Alabama Democratic Party has an interest i n ensuring that future Alabama Secretaries of State are not allowed to disqualify a party’s nominees based on internet rumors and unfounded assertions regarding their qualifications.

SUMMARY OF ARGUMENT

The trial court dismissed Mclnnish and Goode’s baseless attack on the eligibility of President Obama to seek reelection to the Office of President. The trial court acted correctly, because no Alabama court has subject-matter jurisdiction regarding any matter concerning the reelection of the President. Furthermore, Mclnnish and Goode’s claims for pre-election relief with respect to the 2012 presidential candidates are clearly moot. Stated simply, there i s absolutely nothing any Alabama court can do to change the reality of President Obama’s election to a second term of office.

ARGUMENT

I. NO ALABAMA COURT HAS SUBJECT-MATTER JURISDICTION REGARDING ANY MATTER CONCERNING THE RE-ELECTION OF PRESIDENT BARACK OBAMA.

In November 2012, President Barack Obama was re-elected President of theUnited States of America. As acknowledged by Mclnnish and Goode, the electors duly voted in December and, as the world knows. President Obama was inaugurated in January 2013, Now, however, McInnish and Goode invite this Court to exceed the scope of its jurisdiction by addressing matters concerning the conduct or results of the November 2012 election. This Court should decline the invitation.

“Subject-matter jurisdiction concerns a court’s power to decide certain types of cases. . . . That power is derived from the Alabama Constitution and the Alabama Code.” Ex parte Seymour, 946 So.2d 536, 538( Ala. 2006)(emphasis inoriginal). No provision of Alabama law, constitutional or statutory, gives a court the authority to order the relief sought by Mclnnish and Goode following the 2012 election.

Article II , Section 1, of the United States Constitution provides that “[n]o person except a natural born citizen . . . shall be eligible to the office of President.” According to Mclnnish and Goode, “[t]he core question regarding [President] Obama i s whether he i s a natural born citizen.” Appellants’ brief, at 9. In other words, they question his eligibility to hold the office he has occupied since January 2009. In order to resolve the so-called “question” of President Obama’s eligibility, Mclnnish and Goode seek the following relief:

“We urgently ask this honorable Court to grant this writ ordering the Secretary [of State] to obtain birth certificates from the candidates for President of the United States for the election which was held inNovember, 2012 . . . . If such birth certificates are not forthcoming within 45 days after order of this Court, the votes certified for any candidate not responding should be decertified.”

Appellants’ brief, at 39. Further, according to Mclnnish and Goode, this Court should direct “the Secretary of State … to require all presidential candidates in the recent 2012 election to submit bona fide birth certificates to her for verification.” No provision of Alabama law gives an Alabama court the power to order any such relief.

“This Court has been unequivocal in stating that elections normally do not fall within the scope of judicial review.” Sears v. Carson, 551 So,2d 1054, 1056 (Ala. 1989) , Indeed, “a court does not have jurisdiction to interfere in an election result unless a statute authorizes it to do so.” Etheridge v. State ex rel. Olson, 730 So.2d 1179, 1182 (Ala. 1999) . Section 17-16-40 (2), Alabama Code 1975, provides that the eligibility of certain Alabama officials may be contested following their election, but, as Mclnnish and Goode admit, the “statute does not mention any federal office, and specifically does not mention the Office of President of the United States.” Appellants’ brief, at 33. Furthermore, as they also admit, “Ala. Code 1975, §17-16-44 eliminates jurisdiction to challenge other elections.” Appellants’ brief, at 34. In other words, it is undisputed that there is no statutory basis upon which Mclnnish and Goode may now challenge the eligibility of the President.

^Section 17-16-44 provides, in pertinent part, that “[n]o jurisdiction exists in or shall be exercised by any judge or court to entertain any proceeding for ascertaining the legality, conduct, or results of any election, except so far as authority to do so shall be specially and specifically enumerated and set down by statute.”

Faced with an insurmountable jurisdictional hurdle, Mclnnish and Goode resort to a complete mischaracterization of their claims, arguing that their “lawsuit does not seek to question the legality of the election, nor does it impact the ‘conduct’ of the election, nor does it contest the results of the election.” Appellants’ brief, at 36. However, their own words belie this description of the purpose of their lawsuit and the nature of the relief they seek. Mclnnish and Goode seek to challenge President Obama’s eligibility by having the Court “[direct the Secretary of State] to require all presidential candidates in the recent 2012 election to submit bona fide birth certificates to her for verification.” Id.,at 10. “[T]his lawsuit is about the eligibility of those [who] participate[d] in the election.” Id,, at 36. If such a birth certificate does not satisfy the Secretary of State that a candidate was eligible for the office he sought, or if a candidate does not provide such a birth certificate, Mclnnish and Goode would have the votes for such candidate “decertified.” Id.,at 39.

Issues regarding the eligibility of a candidate who appeared on a ballot clearly concern the conduct of the election, and the relief sought could affect the results of the election. No Alabama court has been given the authority to address the post-election issues raised by Mclnnish and Goode or to grant the relief they request. Consequently, the trial court properly dismissed the case.

II. THE CLAIMS FOR PRE-ELECTION RELIEF WITH RESPECT TO THE 2012 PRESIDENTIAL CANDIDATES ARE MOOT.

Eight months after Mclnnish learned that the Secretary of State would not investigate the eligibility of any presidential candidate, he and Goode filed this case. (C. 9.) In their petition, they requested that “the court order the Secretary of State to demand that all [presidential] candidates . . . cause a certified copy of their bona fide birth certificate to be delivered to the Secretary directly from the government official in charge of the record depository in which it is stored,” and that “the receipt of such [certificate be made] a prerequisite to their name being placed on theAlabama ballot for the November 6, 2012 general election.” Appellants’ brief, at 1. Further, they requested that the court “issue a preliminary and permanent injunction preventing the placement on the 2012 Alabama ballot until their eligibility had been conclusively determined.” Id. By their own admission, Mclnnish and Goode question whether President Obama meets the requirement that one elected to the office of President must be a natural born citizen, and they filed this action to require verification of his eligibility. Id., at 9-10. Without any doubt, their claims for pre-election relief with respect to the 2012 presidential candidates are now moot.

“case is moot when it no longer presents a live controversy with respect to which the court can give meaningful relief.’” Smith v. Allen, 502 F.3d 1255, 1267 (11th Cir, 2007) (quoting Mingkid v. U.S. Att’y Gen. , 468 F.3d 763, 768 (11th Cir. 2006)), See also Barber v. Community Outreach, Inc., 42 So.3d 65, 71 n.5 (Ala. 200 9) (stating that the question is whether there can be any effective relief).

Both legally and factually, there can be no meaningful or effective relief with respect to the 2012 presidential election. As already demonstrated, no Alabama court has the authority to delve into the legality, conduct, or results of that election. Because no relief is available after the election with regard to the candidates, ipso facto, the pre-election claims involving the candidates are moot.

President Obama appeared on the Alabama ballot as the nominee of the Democratic Party. The election was held and the results were certified long ago. Although all for the Alabama’s electoral votes were cast, consistent with the popular vote, for the nominee of the Republican Party, a majority of the nation’s electoral votes were cast for President Obama and, thus, he was reelected. He has been inaugurated and will serve as this country’s president until January 2017. There i s absolutely nothing that any Alabama court can do to change this reality. Thus, any action a court might take would be of no meaning or effect.

Finally, the object of Mclnnish and Goode’s scorn, President Obama, cannot be elected again to the office of President. Amendment XXII, Section 1, of the United States Constitution provides that “[n]o person shall be elected to the office of President more than twice.” Consequently, President Obama’s appearance on an Alabama ballot as a presidential candidate i s not capable of repetition and, therefore, nothing involving his eligibility for such a candidacy can fall within the “capable of repetition yet avoiding review” exception to the mootness doctrine.

III. THERE IS NO CREDIBLE EVIDENCE THAT PRESIDENT OBAMA WAS BORN ANYWHERE OTHER THAN HAWAII.

These people could have personally witnessed Obama being born out of an apple pie, in the middle of a Kansas wheat field , while Toby Keith sang the National Anthem and they’d still think he was a Kenyan Muslim, “

-Jimmy Kimmel

Mclnnish and Goode repeatedly assert that they provided the Secretary of State and the Montgomery County Circuit Court with substantial “credible evidence” that President Obama’s birth certificate is a “forgery.” In reality, Mclnnish and Goode submitted no admissible evidence whatsoever and merely repeated discredited rumors and allegations which have been rejected by every authoritative court and tribunal that has reviewed them.

Instead of producing any real evidence, Mclnnish and Goode asked the Secretary of State to interfere with a national Presidential election based on unsubstantiated “opinions” and “beliefs” that have nothing to do with any kind of proper forensic analysis, and everything to do with a jaundiced and jaded political agenda.

In order for one to accept the claim that President Obama’s birth certificate is a forgery, one has to buy into a conspiracy theory so vast and byzantine that it sincerely taxes the imagination of reasonable minds. More importantly, in order to entertain the theory advanced by Mclnnish and Goode and others of their ilk , one has to selectively ignore undeniable facts. The undisputed facts make it abundantly clear that Barack Obama was born in Honolulu, Hawaii on August 4, 1961.

[NBC: The following is admissible under the rule of Judicial Notice]

First, there is no dispute that President Obama’s birth was publicly announced in the local Honolulu newspapers in 1961:

See Honolulu (HI) Advertiser, Aug. 13, 1961, p. B-6; See also Honolulu Star-Bulletin, Aug. 14, 1961.

As a consequence, any theory that concludes that the President’s birth certificate is forged has to start with the incredible acknowledgment that the conspiracy began more than forty years ago. Further, one has to also believe that the President’s parents went to the extraordinary lengths to falsely announce their son’s birth in Hawaii because they were convinced that four decades later he would need to prove that he was a natural born citizen in order to become the first African-American President of the United States.

Second, it is also undisputed that the State of Hawaii – on multiple occasions – has officially and unequivocally certified and verified that Hawaii has and maintains the original, paper copy of President Obama’s 1961 birth certificate showing his birth in Honolulu. See October 31, 2008 and July 27, 2009 Statements by Dr. Chiyome Fukino,

Director of Hawaii State Department of Health, attached hereto as Exhibit A. Anyone believing in Mclnnish and Goode’s bizarre conspiracy theory has to assume that dozens of career employees of the Hawaii Department of Health and Registrar ofVital Statistics are in on the plot.

Third, in 2011, the Director of the Hawaii Department of Health, Dr. Loretta J. Fuddy, at the request of the President, provided the White House with two certified copies of the President’s original Certificate of Live Birth. See April 25, 2011 letter from Dr. Fuddy to President Obama, attached hereto as Exhibit B. These certified copies are self-authenticating under Alabama law. See Ala.R.Evid. 902.

Fourth, on at least two additional occasions since 2011, the State of Hawaii formally verified that the certified copy of the President’s birth certificate posted on the White House website is a true and correct copy of the original, paper birth certificate maintained by the State of Hawaii. See May 22, 2012 and May 31, 2012 Verifications of Birth, attached hereto as Exhibit C. Indeed, one of those formal certifications was issued to the Secretary of State of Arizona, the very state that Sheriff Arpaio calls home.

Finally, in order to accept Mclnnish and Goode’s conspiracy theory, one has to assume that the President’s forged birth certificate was so convincing that it was not challenged during a grueling primary and two general election campaigns for President and that neither Hillary Clinton, John McCain nor Mitt Romney could muster the evidence necessary to convince anyone that their opponent was ineligible to hold the office of President of the United States.

The truth is that the “birther” movement has no legitimacy in either the facts or the law. The few individuals who still promote the position that President Obama is not a natural born citizen do so for purely ideological reasons (or, in the case of the handful of lawyers who use the cause to raise money on the internet, personal financial gain). Scores of state and federal courts have summarily rejected efforts to have the judiciary intervene i n the political process on behalf of this tiny cabal of zealots. This Court should do likewise.

^ As one court has noted: “Many people, perhaps as many as a couple of dozen, feel deeply about this issue.” Hollister v. Soetoro, 258 F.R.D. 1, 2 (D.D.C. 2009), aff’d, 368 Fed.Appx. 154, 2010 WL 1169793 (D.C. Cir, 2010).

fIV. THE SECRETARY OF STATE HAS NO OBLIGATION TO INVESTIGATE UNFOUNDED, UNSUBSTANTIATED AND POLITICALLY MOTIVATED CONSPIRACY THEORIES REGARDING A PRESIDENTIAL CANDIDATE’S ELIGIBILITY FOR OFFICE.

The entirety of the Appellants’ case is premised on a tortured reading of Attorney General’s Opinion No. 1998- 200.^ In Opinion No. 1998-200, Attorney General Bill Pryor’s office opined:

The Code does not require the Secretary of State to determine whether each nominee meets all the qualifications for his or her particular office. Some of the qualifications, however, are within the Secretary of State’s official knowledge. By official knowledge I mean knowledge gained from an official source arising from the performance of duties prescribed by law. … If the Secretary of State has official knowledge that a candidate has not met a certifying qualification, the Secretary of State should not certify the candidate.

Atty. Gen . Op. No. 1998-200 at 3 (emphasis added) . After giving two discrete examples of the circumstances under which the Secretary of State might have “official knowledge” of a candidate’s lack of qualifications (failure to file required ethics disclosures and failure to meet a statutorily established filing deadline), Opinion No. 1998- 200 concludes:

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 [§17-9-3] and [§17-13-22] of the Code of Alabama.

Id. at 4.

Opinion No. 1998-200, therefore, clearly provides that the Secretary of State has no duty to investigate the qualifications of candidates unless she has “official knowledge” from an “official source” that such candidate is not qualified. The information provided to the Secretary of State in the present case is about as far from “official knowledge” as you can get.

Of course, as this Court is well aware, “an attorney general’s opinion is only advisory; it is not binding on this Court and does not have the effect of law.” Farmer v. Hypo Holdings, Inc. , 675 So.2d 387, 390 (Ala. 1996) . See also Townson v. Stonicher, 933 So.2d 1062, 1066 (Ala.) (“An attorney general’s opinion is not binding on this Court and does not have the effect of law.”); State Dept. of Revenue v. Arnold, 909 So.2d 192, 194 (Ala. 2005) (Attorney General opinions are not controlling, but merely advisory, and serve to offer protection from liability only to ‘such officer’ to whom that opinion is directed.”).

A. A County Sheriff from Arizona is not an “Official Source” of Anything in Alabama.

In support of their claim that the Secretary of State has a duty to investigate President Obama’s birth certificate, Mclnnish and Goode slavishly rely on the affidavit of a politically motivated and ethically challenged county sheriff from Arizona named Joe Arpaio {“Arpaio”). Under pressure from a federal investigation for racial profiling and mistreating prisoners in his care, Arpaio convened a group of his political supporters in 2011 under the name of the “Cold Case Posse.” Arpaio claims that he has the authority under Arizona law to assemble his supporters into a “volunteer posse” to assist him in his duties.^ It was this “volunteer posse” of Arpaio political supporters who ultimately expressed their collective “belief” that the copy of President Obama’s birth certificate was a “forgery.”

Mclnnish and Goode cite no authority for their assertion that the “beliefs” of a county sheriff from Arizona is the type of “official source” that can imbue the Alabama Secretary of State with “official knowledge” regarding a political candidate’s eligibility to hold office. Arpaio has no legal authority to do anything in Alabama and certainly has no legal authority to enforce Alabama law in this State. According to the National Sheriffs Association, there are 3,083 sheriffs in the United States, See http://www.sheriffs.org/content/fag. Surely, Attorney General’s Opinion No. 1998-200 cannot be interpreted as requiring the Alabama Secretary of State to commence an investigation any time one of those 3,000 county sheriffs decides to express an opinion about a candidate’s qualifications or eligibility.

* Alabama has an unfortunate history with the use of sheriff’s “posses.” See, e.g., U. S. v. Clark, 249 F.Supp. 720, 728 (M.D. Ala. 1965)(enjoining county sheriff’s voluntary posse from intimidating and interfering with the constitutional rights of black voters).

Nor does the information submitted by Mclnnish and Goode “arise from official duties prescribed by law.” As Opinion No. 1998-200 makes clear, the only time that the Secretary of State has any duty to evaluate the qualifications of candidates is when she receives information during the performance of her “official duties prescribed by law.” The information offered up by Mclnnish and Goode was neither created nor received by the Secretary of State during the course of her performing her official “duties prescribed by law.”

Even if this Court were inclined to find that Attorney General Opinion No. 1998-200 is binding on the Secretary of State, the information offered by Mclnnish and Goode does not fall within the very limited scope of information on which the Secretary of State is required to act. As a result, Secretary Chapman had no legal duty or obligation to initiate an investigation into President Obama’s qualifications and the Circuit Court was correct to dismiss this case.

B. The Affidavits and Other Documents Submitted are Inadmissible and Not Worthy of Belief.

Finally, it is also worth noting that none of the information submitted by Mclnnish and Goode in the Circuit Court constituted admissible evidence. In particular, both the Arpaio affidavit and that of his sidekick Michael Zullo are filled with supposition and subjective beliefs that would never be admitted into evidence i n any Alabama court. See, e.g., Arpaio affidavit at ^ 7, 8 (“it is my belief that forgery and fraud was likely committed”; “My investigators and I believe”); Zullo affidavit at ^ 8 (“the Hawaii Department of Health has engaged in what Sheriff’s investigators believe is a systematic effort to hide”). These kinds of subjective statements of an individual’s “beliefs” are clearly inadmissible. See Government Street Lumber Co. , Inc. v. AmSouth Bank, N.A. , 553 So.2d 68, 78 (Ala. 1989) (“Speculation and subjective beliefs are not the equivalent of personal knowledge and do not satisfy the requirement of Rule 56(e), A.R.Civ.P. Moreover, matters based upon information and belief are essentially hearsay and thus are insufficient to support a motion for summary judgment.”). See also Dennis v. Scarborough, 360 So.2d 278, 279 (Ala. 1978) {“Ordinarily, the reports of investigating officers are not admissible in evidence. They are deemed hearsay and do not fall within the ‘business records’ exception to that exclusionary rule.” (Citations omitted)).

Finally, it should be noted that nothing submitted by Mclnnish and Goode indicates that Arpaio or Zullo are even remotely qualified to provide an expert opinion regarding the authenticity of any document – much less a 40-year-old government record from Hawaii. See Townsend v. General Motors Corp., 642 So.2d 411, 423 (Ala. 1994) (“a witness must be qualified as an expert before he can give an opinion as an expert”).

CONCLUSION

For the reasons set forth i n this brief, as well as those argued by the Secretary of State, the judgment of the trial court is due to be affirmed.

OF COUNSEL:

SIROTE ScPERMUTT, P.C. 2311 Highland Avenue South Post Office Box 55727 Birmingham, AL 35255-5727 Tel.: (205) 930-5100

Fax: (205) 930-5335

Attorneys

Alabama Democratic Party

Respectfully submitted,

/s/ Thomas A Woodall

Thomas A. Woodall (WOO009)

/s/ Barry A. Ragsdale

Barry A, Ragsdale (RAG003)

for amicus curiae

SCOAL 2013-04-24 – McInniss|Goode v Chapman - ADP Amicus Brief

SCOAL 2013-04-24 – McInnish|Goode v Chapman - Chapman Brief

Can’t wait for Klayman’s response… It will be hilarious, that’s for sure.

AL 2012-12-6 – McINNISH|GOODE v CHAPMAN - ORDER Granting Motion to Dismiss

I have it on Very Good Authority that the hearing was short and sweet. Klayman did not participate by telephone or otherwise. Judge waited about an hour to enter the attached order dismissing the case.

2012-10-18 – AL – McInnish, et al. v Chapman - Motion to Dismiss