AL – McInnish v Chapman – Second Motion to Strike


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.