Case 2:11-cv-02089-SRB Document 34 Filed 06/04/12 Page 1 of 6

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Paul F. Eckstein, Bar No. 001822 P Eckstein@perkinscoie.com D. Andrew Gaona, Bar No. 028414
A Gaona('perkinscoie. com

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PERKNS COlE LLP 2901 N. Central Avenue, Suite 2000 Phoenix, AZ 85012-2788
Telephone: 602.351.8000 Facsimile: 602.648.7000

docketPHX@perkinscoie.com
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Attorneys for Defendants D~mocratic National Committee and Debbie Wasserman Schultz

UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA
No. 2:

11 Liberty Legal Foundation; John Dummett;

ll-cv-02089

Leonard Volodarsky; Greg Maroney,

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Plaintiffs,
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REPLY IN SUPPORT OF MOTION FOR SANCTIONS

(Oral Argument Requested)

v.
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National Democratic Part of

the USA, Inc.;

15 Democratic National Committee; and Debbie

W sserman Schultz,
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(Assigned to the Hon. Susan Bolton)

Defendants.
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18 Defendants Democratic National Committee and Debbie Wasserman Schultz (the

19 "DNC Defendants") hereby reply in support of their Motion for Sanct,ions (the "Motion")

20 (Doc. No. 28) against Van Irion, counsel for Plaintiffs in this matter. The DNC
21 Defendants wil not engage in a point-by-point refutation and analysis of Mr. Irion's
22 Opposition to the Motion (the "Response"), but wish to briefly address several of its

23 contentions.

24 A. Plaintiffs' Claims Lack Legal Support.

25 As set forth in the Motion and the DNC Defendants' Motion to Dismiss (Doc No.

26 24) and reply thereto (Doc. No. 27), the legal theory that colors the Second Amended
27 Complaint (the "SAC") has been tried and rejected in an ever-expanding host of decisions

28 by federal and state courts and state administrative bodies. Those decisions have

Case 2:11-cv-02089-SRB Document 34 Filed 06/04/12 Page 2 of 6

unanimously concluded that President Obama is indeed a "natural born citizen" of the
United States who is qualified to hold his office and to stand before the American people
for re-election. Mr. Irion knows this, and knows it well; indeed, he was counsel of record
in at least one of the state administrative proceedings that reached this precise result.

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(Doc. No. 28 at 8 n.4)

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Despite his knowledge of the overwhelming weight of this authority, Mr. Irion both before this Court and the district court in Tennessee - nonetheless continues to cling

to a reading of Minor v. Happersett, 88 U.S. 162 (1875) that is as tortured as it is

misleading. (Doc. No. 31 at 14-19) In his Response, Mr. Irion mischaracterizes the
"holding" of Minor for at least the third time to this Court, each as egregious as the next.
Despite Mr. Irion's claims that his interpretation of Minor is based on his reading of "law
review articles, other articles written by legal scholars, historical accounts, and subsequent

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precedent related to Article II eligibilty" (none of which he specifically identifies), that

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case does not hold that "natural born citizenship" is restricted to those born to citizenparents. To the contrary, the Court expressly reserved judgment on that question:

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At common-law, with the nomenclature of which the framers of the Constitution were familar, it was never doubted that all

were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include

children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These

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there have been doubts, but never as to the first. For the
purposes of this case

as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class
it is not necessary to solve these doubts.

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See Minor, 88 U.S. 162 at 167-68 (emphasis added).

This reserved question was in effect decided just 23 years later, when the Supreme
Court e?,plained that "( e )very person born in the United States, and subject to the

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jurisdiction thereof, becomes at once a citizen of the United States." United States v.
Wong Kim Ark, 169 U.S. 649, 702 (1898). Indeed, in the Supreme Court's discussion of

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the English common law - which was the law in force in English colonies "and in the
United States afterwards" - it noted specifically that "every child born in England of alien
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Case 2:11-cv-02089-SRB Document 34 Filed 06/04/12 Page 3 of 6

parents was a natural-born subject unless the child of an ambassador or other diplomatic

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agent of a foreign state, or of an enemy alien in hostile occupation of the place where the

child was born." ld. at 658 (emphasis added). As the Indiana Court of Appeals explained

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in its thorough examination of the meaning of the "natural born citizen" requirement of
Aricle II of the United States Constitution:

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Based upon the language of Aricle II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that

persons born within the borders of the United States are

"natural born Citizens" for Aricle II, Section 1 purposes,

regardless of the citizenship of their parents. Just as a person

"born within the British dominions (was) a natural-born

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Ankeny v. Governor of

British subject" at. the time of the framing of the U.S.

Constitution, so too were those "born in the allegiance of the United States ( ) natural-born citizens."
the State oflndiana, 916 N.E.2d 678,688 (Ind. Ct. App. 2008)

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Try as he might, Mr. Irion simply cannot muddy the jurisprudential waters enough

to justify his claims that Minor is dispositive of the claims he advances on Plaintiffs'
behalf, that Wong Kim Ark is inapposite, and that the growing list of decisions standing

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squarely against his position are all wrong. A reasonable attorney would not make such
an attempt, and as a result, sanctions against Mr. Irion are warranted.
-B. Mr. Irion's Inquiry into the NDPUSA was not Reasonable.

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Claiming ignorance, Mr. Irion contends that his decision to name the National Democratic Part of the USA, Inc. (the "NDPUSA") as a defendant in this matter was
based on a reasonable inquiry. Specifically, Mr. Irion argues that he does not know "who

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or what the NDPUSA is, or why it was formed, or what it does," and that he "certainly
cannot be expected to have answered this question definitively before filing the instant
lawsuit." (Doc. No. 31 at 5-6)

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But that is precisely what a reasonable attorney must do prior to fiing a lawsuit.
Despite Mr. Irion's protestations to the contrary, a reasonable inquiry into the proper part

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to name in an action fied in the District of Arizona against a national political

organization must require more than a conversation with an unidentified staffer in the
Tennessee Secretary of State's Office and a search of that Office's online database for
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Case 2:11-cv-02089-SRB Document 34 Filed 06/04/12 Page 4 of 6

1 "National Democratic Party" and "Democratic." (Id. at 3) This is especially true when
2 the records searched revealed that the NDPUSA has a number of assumed names,
3 including the "Shelby County Republican Part, Inc." (See Doc. No. 31, Ex. 3) Such a

4 discovery would lead any reasonable attorney to question the propriety of naming that

5 party as a defendant in a lawsuit of this nature, as it is inconceivable that a national

6 organization affiliated with the Democratic Part would assume the name of a county-

7 level political organization with political beliefs diametrically opposed to its own. In
8 short, the Court should not tolerate Mr. Irion's admitted strategy of "sue now and ask

9 questions later" (Doc No. 31 at 5-6) or his transparent post hoc justification for seeking a

10 default judgment against an entity he should have never brought suit against in the first

11 place (id. at 6 n.2).

12 Perhaps even more tellng of

the fact that Mr. Irion's conduct is sanctionable is his

13 failure to immediately dismiss the NDPUSA as a defendant in this case after he was
14 informed - via a Rule 11 letter sent by counsel for the DNC Defendants in the parallel
15 Tennessee proceedings - that the NDPUSA "has never been an authorized organization to

16 do official Democratic Party business before any state or federal agency." (Exhibit D)
17 Despite this warning in early March, and a subsequent warning in April from counsel in
18 the instant case (Doc. No. 28, Ex. A), Mr. Irion nonetheless continued to prosecute his

19 claims against an entity that he knew to have no connection whatsoever to the DNC or

20 the Democratic Party. Even if Mr. Irion's "ignorance" somehow justified his naming of

21 the NDPUSA, he has no excuse for his failure to dismiss that part after learning this

22 information. In either case, sanctions against Mr. Irion are warranted.

23 Conclusion
26 reasonable attorneys' fees and expenses incurred in seeking the dismissal of 27 lawsuit, including the cost of

24 Based on the Motion and the foregoing, the DNC Defendants respectfully request

25 that Court grant their Motion for Sanctions, and order that Mr. Irion pay all of their
this frivolous

preparing the Motion and this Reply, in addition to whatever

28 additional sanctions the Court finds just and reasonable under the circumstances.
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Case 2:11-cv-02089-SRB Document 34 Filed 06/04/12 Page 5 of 6

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Dated: June 4,2012

PERKNS COlE LLP

By: s/ Paul F. Eckstein

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Paul F. Eckstein, Bar No. 001822 P Eckstein@perkinscoie.com D. Andrew Gaona, Bar No. 028414
A Gaona('perkinscoie. com

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2901 N. Central Avenue, Suite 2000 Phoenix, AZ 85012-2788

Telephone: 602.351.8000

Facsimile: 602.648.7000
Attorneys for Defendants Democratic National Committee and Debbie Wasserman Schultz

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Case 2:11-cv-02089-SRB Document 34 Filed 06/04/12 Page 6 of 6

CERTIFICATE OF SERVICE
I hereby certify that on June 4, 2012, I electronically transmitted the attached

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documents to the Clerk's Office using the CMlCF System.

I hereby certify that on June 4, 2012, the following were served by the U.S. District
Clerk's electronic system:
Mr. Van Irion (van@libertylegalfoundation.com)

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I hereby certify that on June 4, 2012, I served the attached document by hand

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delivery on Judge Susan Bolton, United States District Court of Arizona; 401 West
Washington Street, Phoenix, Arizona 85003-2118.

s/ Clair H. Wendt
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63920-0001.001 O/LEGAL23789123. 1

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Case 2:11-cv-02089-SRB Document 34-1 Filed 06/04/12 Page 1 of 7

INEX OF EXHIBITS TO REPLY IN SUPPORT OF MOTION FOR SANCTIONS

Exhibit D

Rule 11 Letter from J. Gerard Stranch, iv to Van Irion (March 1,2012)

Case 2:11-cv-02089-SRB Document 34-1 Filed 06/04/12 Page 2 of 7

EXHIBITD

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Case 2:11-cv-02089-SRB Document 34-1 Filed 06/04/12 Page 3 of 7

BR.ANSTETTER.. STR.ANCH &5 JENNINGS. PLLC

ATTOR.NEYS AT LAW
227 SECOND AVENUE NOR.TH
CECIL D. BRANSTETTER, SR.
e. DEWEY BR/\NSTETTER., JR. RANDALL C. FERGUSON R. JAN JENNINGS. JOE P. LENISKI, JR. DONALD L. SCHOLES
STEVEN J. SJMERLEIN *.

FOURTH FLOOR
NASHVILLE, TENNESSEE 37201-1631
TELEPHONE (615) 254-8801 - f,,CSIMILE (615) 250-3937

ASSOCIATES:

BEN CASTEL. STACEY K. SKILLMAN"""

OF COUNSEL: ROBERT E. RICHARDSON, JR. ****

MIKE STEWART

JAMES G, STRANCH, III l. GERARD STRANCH, IV MICHAEL J. WALL

ALSO ADMITTED IN CA * * ALSO ADMITTED IN CA .... * ALSO ADMITTED IN KY .... *.. ONLY ADMITTED IN OH

March 1,2012

VIA U.S. MAlL

Van Irion Liberty Legal Foundation

9040 Executive Park Dr., Ste. 200 Knoxville, TN 37923

In re: NOTICE OF INTENT TO SEEK RULE 11 SANCTIONS

Liberty Leg(i/ Foundatioii, et aT., v. National Democratic Party
of

the USA, IIIC., et aT., Case No. 2:12-cv-02143 On Removal F,'om Case No.

CH-ll-1757-3
Dear Van:

This letter is sent pursuant to Rule 11 of the Federal Rules of Civil Procedure and Tennessee Rules of Civil Procedure.! This letter is being sent on behalf of the Tennessee Democratic Party (the "TNDP") - which you have failed to serve in the above referenced
lawsuit.

On January 20, 2012 you filed a First Amended Class Action Complaint for Declaratory and Injunctive Relief (the "Amended Complaint"), a Motion for Preliminary Injunction along with a related brief in support thereof (collectively the "Injunction Motion"), and a Motion for Default Judgment along with a related brief in support thereof (collectively the "Default Rule i I in that Motion"). For the reasons identified, you clearly filed these papers in violation of these papers are either: I) offered for an improper purpose; 2) the legal claims are not waITanted under existing law and are fiivolous; and/or 3) the allegations are not likely to find evidentiary
support.

Given the numerous times the claims asserted in the Amended Coniplaint have been
litigated throughout the country over the last several years, your Amended Complaint and related Injunction Motion are meritless and have no basis in law or fact. As a result, and pursuant to the
I Although you filed in state chancery court, the eoniplaint obviously raises federal constitutional questions and
accordingly we removed the case to federal court. Therefore, you should consider this cither as a rcquest under Rulc I i of thc Federal Rules or the state rules, depending on which court ultiniately will hear the merits of your Amended Complaint and Injunction Motion.

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Van Irion "larch i, 20 i 2
Page 2

TNDP's rights under both the Federal Rules of Civil Procedure and the Tennessee Rules of Civil Procedure, we demand that you immediately withdraw your Amended Complaint and Injunction Motion. Additionally, as described further in this letter, your Default Motion is groundless and simply unsupported by facts and law and should be withdrawn immediately. Otherwise, we will proceed with obtaining Rule iI sanctions.
Below is a list of the numerous frivolous issues and sanctionable conduct contained
within the papers you filed with the Court - for a more detailed review of the deficiencies both
factual and legal, see also the three separate motionsfied today in the Western District

of

Tennessee:

1. Improperly Named Defendant: As you should have determined ftom a reasonable the USA, Inc. ("NDC USA, Inc.") investigation, the National Democratic Party of
is not a party in interest to this lawsuit because this entity has never been

associated with the TNDP. The NDC USA, Inc. is apparently a mere sham
organization, possibly organized by the Shelby County Republican Party, in order to use, without authorization and in bad faith, the name "National Democratic

Party" for nefarious purposes lilce this lawsuit. As you should have leallied through an investigation of the available public records held and posted on the Tennessee Secretary of State's website, other active names for the NDC USA, Inc. include the "Shelby County Republican Party, Inc." A reasonable person
would have taken this to mean that the NDC USA, Inc. had no relationship with the TNDP or the National Democratic Party. Moreover, the Tennessee Secretary of State's website shows that the NDC USA, Inc.'s principal place of business is
in Memphis and you are obviously aware that the TNDP is based in Nashvile.

Additionally, if you had conducted a reasonable investigation, you would have learned that the NDC USA, Inc. does not communicate with the Tennessee Secretary of State's Division of Elections for purposes of submitting names for inclusion on the state's election ballots. That function is the sole purpose of the TNDP. Taken together, these facts should have tipped off a reasonable person that the NDC USA, Inc. is not a proper party to this lawsuit. We believe you named this as a party defendant for the sole purpose of obtaining venue in Memphis. This organization has never been an authoiized organization to do offcial Democratic Party business before any state or federal agency, and you should have been aware of that based on a reasonable investigation. We demand that you immediately dismiss this party from this action and move this case to a
COlTect venue in Davidson County.

Rclatedly, since you knew or should have been aware that the NDC USA, Tnc. did

not represent either the national party or the state party, it seems that you also named them as a defendant to obtain a default judgment against them in order to leverage that against the remaining Democratic Party Defendants. It appears that first time that you have attempted this maneuver and that a show this is not the

cause order has been issued against you for this conduct in Arizona. This is further supported by the manner iii which you effectuated service in this case.
Upon filing the original complaint, you served only the NDC USA, Inc. entity and
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Van Irion

March 1,2012
Pagc 3

failed to serve Chip Forrester or Debbie Wasserman Schultz. Once the time had passed for filing NDC USA, Inc.'s answer, you then amended your complaint to the judicial process add the only real party in interest, the TNDP. This is abuse of at its worst, especially if it is eve11tually shown that you or someone you are

familiar with are responsible for creating and operating the NDC USA, Inc.
Accordingly, you should immediately withdraw your Default Motion as it is not and wil 110t serve to further this litigation in any way. supported by law or facts,
Finally; since you should have deteiminedfrol1 a reasonableinvestigatio11 that

the

TNDP is a separate entity from the Democratic National Committee, and that the
TNDP - per state law - is solely responsible for submitting names for inclusion

on the state's ballot, you should have known that the Democratic National Committee and its current Chairperson, Debbie Wasserman Schultz and Chip Forrester, are not proper parties to this lawsuit. It appears you have named them for the sole purpose of harassing and intimidating these parties. This is obviously an abuse of the judicial process and clear sanctionable conduct. Accordingly, we
demand that

you dismiss them from this case.

2. Lack of Standing: This is not the first time that litigants have attempted to
challenge whether the President Obama is constitutionally qualified to hold the office of President of the United States. Virtually eveiy one of these cases have been dismissed for lack of standing. See e.g., Drake v. Obama, 2011 U.S. App. LEX IS 25763 (9th Cir., December 22, 2011); Kerchner v. Oba71a, 612 F.3d 204 (3d. Cir. 2010); Berg v. Obama, 586 F.3d 234, 239 (3d Cir. 2009); Taitz v.
Obama, 707 F. Supp. 2d 1 (D.D.C. 2010); FVrotn01FSki v. Bysiewicz, 289 Conn.

522 (Sup. Ct. Conn. 2008). This is obviously only a sampling of the cases
addressing the issue. If you had conducted a reasonable investigation, you

undoubtedly were aware of this case law against the standing of your organization

and the named plaintiffs, and your suit fails to cure any of these previouslyidentified standing defects. Accordingly, we demand that you withdraw your Amended Complaint and Injunction Motion immediately.

3. Lack of Legal Support: Your Amended Complaint incorrectly alleges that the TNDP have an obligation to believe unfounded theories and that pursuant to this
non-existent duty that you have the right to stop the TNDP, and specifically the

TNDP, from submitting documents to the Tennessee Secretary of State Division of Elections. You cite to no law, either at the federal or state level, that would give you the right to challenge this conduct or that imposes upon the TNDP such

a duty. Accordingly, your Amended Complaint is not based on a valid legal

theoiy and is frivolous. We demand that you withdraw your Amended Complaint and Injunction Motion immediately.

Additionally, the basis of your lawsuit is obviously the truth of the unsupported

theory that President Obama is not a natural born citizen. People have been
peddling this theory for over four years but no court, rightfully so, has bought it.
These are frivolous challenges and fortunately have been repeatedly dismissed

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Van Irion
MarchI, 2012 Page 4

and in some cases sanctioned. See e.g., Kerchner, 612 F.3d 204 (sanctioning

attempts to challenge President Obama's eligibility to hold the Office of the

President.; Rhodes v. Macdonald, 2009 U.S. Dist. LEXIS 85485 (M.D. Ga. 2009)

(same); see also See Ankeny v. Governor. 916 N.E.2d 678, 684~89 (Ind. Ct. App. 2008) (finding that President Obama is a natural born citizen qualified to hold the

offce of President of the United States); Farrar, et. aL. v. Obama, Dkt. No.
1215136-60 (Ga. Secretary of State, 2012) (same). Givcn this preccdent, and the fact that these suits have been unsuccessful in every venue where they have been
fied, and the facnhat YOUl'Ahiell.dedCompla:il1tinvlves thesl1e lJegatil1s of

these cases, we demand that you withdraw your Amended Complaint and the
Injunction Motion immediately.

Moreover, your suit must fail because it challenges the internal workings of a state political party. As you should be aware from a reasonable investigation of the relevant case law, the TNDP has a "First Amendment right to choose its own
candidate for the general election." Kurita v. State Pri11ClY Bd. of the Tenn.

Democratic Party, Case No. 3:08-0948, 2008 U.S. Dist. LEXTS 83278 citing Calrfornia Democratic Party v. Jones, 530 U.S. 567, 575, 120 S. Ct. 2402, 147 L. Ed. 2d 502 (2000). Accordingly, you should know that your suit cannot be successful as it would constitute an unconstitutional intrusion into the TNDP's rights under the United States Constitution, and we demand that you withdraw your Amended Complaint and the Injunction Motion immediately.

Finally, as you should have discovered through a reasonable search, you cannot challenge the qualifications of a candidate for President of the United States until
after that candidate is elected and the Electoral College vote is certified by the

United States Congress. Whether a candidate is qualified to hold the offce of President of the United States is committed in the first instance to the electorate and then to the United States Congress, which under federal law is charged with certifying the results of the Electoral College vote. "Judicial review -- if any -should occur only after the electoral and Congressional processes have run their
course." Robinson v. Bowen, 567 F. Supp. 2d 1144, 1147 (N.D. CaL. 2009) citing

Texas v. United States, 523 U.S. 296, 300-02, i 18 S. Ct. 1257, 140 L. Ed. 2d 406

successful, and we demand that you withdraw your Amended Complaint immediately.

(1998). Since your suit attempts to short-circuit this process, it cannot be

4. Your Position Is Contraiy to United States Supreme Court Precedent: You allege

that President Obama is not constitutionally qualified to hold the office of

President of the United States because his father was not a United States citizen. (Amended Complaint,1 9-12.) As you should be aware from a reasonable search of relevant case law, this position is unsupported by United States Supreme Court
precedent. Tn fact, one case alleging almost identical allegations as your suit,

summarized this precedent and concluded that President Obama met the
constitutional qualifications to hold the office of President of the United States. See Ankeny v. Governor, 916 N.E.2d 678 (Ind. Ct. App. 2009); see also Farrar et.
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Van Irion

March I, 2012
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al. v. Obania, Dkt. No. 12 I 5 i 36-60 (Ga. Sec. of State) (Feb. 3, 2012).
Specifically, and as outlined in Ankeny, the Court held that United States v. Wong Kim Ark, 168 U.S. 649 (1898) did not require that a natural born citizen had to be born in the United States and have both parents be citizens of the United States. You cite Wong Kim Ark in your complaint (para. 13) but clearly you have misread case. Accordingly, given that your position finds no the central holding of this support in relevant case law, you should withdraw your Amended Complaint immediately.
Based on the foregoing, we demand that you withdraw your Amended Complaint, the

Injunction Motion, and the Default Motion immediately. If you fail to do so, we plan to seek your duties imposed under Rule Ii. fiing frivolous claims in clear violation of sanctions for your

:;:) v( fcc.~-'SSf 0" Ly

Zin erely, J, Gerard Sh'ahch, IV '.' t-

Counseljr the TNDP U

,TGSiv:sb

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