Grinols et al v. Electoral College et al

OPPOSITION

E.D. Cal.February 7, 2013

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BENJAMIN B. WAGNER United States Attorney EDWARD A. OLSEN, CSBN 214150 Assistant United States Attorney 501 I Street, Suite 10-100 Sacramento, California 95814 Telephone: (916) 554-2821 Facsimile: (916) 554-2900 Email: edward.olsen@usdoj.gov Attorneys for Federal Defendants IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA JAMES GRINOLS, ROBERT ODDEN, in their capacity as Presidential Electors; EDWARD C. NOONAN, THOMAS GREGORY MACLERAN, KEITH JUDD, in their capacity as candidates for the U.S. President in 2012, Plaintiffs, v. ELECTORAL COLLEGE, PRESIDENT OF THE SENATE, GOVERNOR OF CALIFORNIA, SECRETARY OF STATE OF CALIFORNIA, U.S. CONGRESS, BARACK HUSSEIN OBAMA, AKA BARACK (BARRY) SOETORO, AKA BARACK OBAMA SOEBARKAH, in his capacity as a Candidate for the U.S. President in 2012, Defendants. CASE NO. 2:12-CV-02997-MCE-DAD DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ “EMERGENCY 60B MOTION” Date: February 21, 2013 Time: 2:00 p.m. Place: Courtroom 7, 14 Floorth Judge: Morrison C. England, Jr. DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ EMERGENCY 60B MOTION Case 2:12-cv-02997-MCE-DAD Document 67 Filed 02/07/13 Page 1 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Plaintiffs filed this action alleging that President Barack Obama is ineligible for the presidency under Article II, section 1 of the United States Constitution, which provides: “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.” See Declaratory and Injunctive Relief Petition for Extraordinary Emergency Writ of Mandamus (“Petition”) at 28-30. Plaintiffs contend that, despite the fact that the President has produced a birth certificate from the State of Hawaii, he was actually born in Kenya and is a citizen of Indonesia, thus making him ineligible to be President. Petition at 10. Plaintiffs list Barack Obama in his capacity as “Candidate for the U.S. President in 2012,” the Electoral College, the Congress, the Vice President of the United States in his capacity as President of the Senate, the Governor of California, and the California Secretary of State, as defendants. Petition at 3.1 This Court orally denied plaintiffs’ motion for a temporary restraining order on January 3, 2013, and in a written order on January 16, 2013. Docket No. 52. Plaintiffs have now filed an “Emergency 60B Motion” seeking “one form of relief” - “to enjoin Defendant Barack Obama from taking the oath of office as a U.S. President on the inauguration day . . . .” Plaintiffs’ Emergency 60B Motion at 2. Defendants respectfully ask the Court to deny the “Emergency 60B Motion” as moot because the act that plaintiffs seek to enjoin - the taking of the oath of office - has already occurred. In addition, plaintiffs’ allegation that a fraud has been committed against the Court within the meaning of Fed. R. Civ. P. 60(b) is baseless. // // The undersigned represents the United States, Congress, and the federal employees and officials1 named in their official capacity. In addition, the undersigned appears here to “attend to the interests of the United States.” 28 U.S.C. §§ 517, 547. Plaintiffs do not appear to have properly served President Obama in any capacity under Fed. R. Civ. P. 4(i). According to Plaintiffs’ “Notice of Default . . . Request for an Expedited Default Judgment and a Proposed Default Judgment,” the President was served on January 4, 2013. Docket No. 64. However, plaintiffs’ proofs of service indicate that plaintiffs served only the Department of Justice at 950 Pennsylvania Avenue, N.W., Washington, D.C., and the United States Attorney’s Office in Sacramento. Docket Nos. 49, 50. DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ EMERGENCY 60B MOTION 1 Case 2:12-cv-02997-MCE-DAD Document 67 Filed 02/07/13 Page 2 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. DISCUSSION A. Plaintiffs’ Request For Relief Is Moot The “exercise of judicial power under [Article] III of the Constitution depends on the existence of a case or controversy.” Preiser v. Newkirk, 422 U.S. 395, 401 (1975). “[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Steffel v. Thompson, 415 U.S. 452, 459 n.10 (1974). A “live” controversy exists “[a]s long as effective relief may still be available to counteract the effects of the violation.” Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1245 (9 Cir. 1988). A case is moot when “the issues presented are no longer ‘live’ or theth parties lack a legally cognizable interest in the outcome.” Id. at 1244 (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam)). Federal courts lack jurisdiction “to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.” Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). “Where the activities sought to be enjoined have already occurred, and . . . courts cannot undo what has already been done, the action is moot.” Friends of the Earth, Inc. v. Bergland, 576 F.2d 1377, 1379 (9 Cir. 1978). When a case becomesth moot, federal courts cease to have jurisdiction over it. See Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477-78 (1990). Here, the only relief sought in plaintiffs’ Emergency 60B Motion is “to enjoin Defendant Barack Obama from taking the oath of office as a U.S. President on the inauguration day due to his lack of legitimacy for office and fraud committed by him, as the citizen of Indonesia Barack Hussein Obama, aka Barack (Barry) Soetero, aka Barack (Barry) Obama Soebarkah, due to his run for the U.S. Presidency and position of the Commander in-Chief, while using a forged short form birth certificate, forged long form birth certificate forged selective Service certificate and a stolen Connecticut Social Security number xxx-xx-4425 as a proof of his legitimacy and fitness for office.” Plaintiffs’ Emergency 60B Motion at 2. However, the President took the oath of office and began his second term as President of the United States on January 20, 2013. See U.S. Const. Amend. XX, § 1. Accordingly, plaintiffs’ request for relief is moot and the Emergency 60B Motion should therefore be denied. DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ EMERGENCY 60B MOTION 2 Case 2:12-cv-02997-MCE-DAD Document 67 Filed 02/07/13 Page 3 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Fed. R. Civ. P. 60(b) In addition to the fact that plaintiffs’ request for relief is moot, plaintiffs have not established any basis for disturbing the Court’s Order denying plaintiffs’ motion for a temporary restraining order. Fed. R. Civ. P. 60(b) “provides for reconsideration only upon a showing of (1) mistake, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a void judgment; (5) a satisfied or discharged judgment; or (6) ‘extraordinary circumstances’ which would justify relief.” School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9 Cir. 1993). In this case, it appears thatth plaintiffs are asking the Court to reconsider its Order denying their motion for a temporary restraining order on the basis of fraud. A court may vacate an order based on fraud on the court only when the fraud is established by clear and convincing evidence. See United States v. Estate of Stonehill, 660 F.3d 415, 443-44 (9 Cir. 2011). “Most fraud on the court cases involve a scheme by one party to hideth a key fact from the court and the opposing party.” Id. at 444. Plaintiffs have made no showing, much less a showing by clear and convincing evidence, that a fraud has been committed on the court within the meaning of Fed. R. Civ. P. 60(b). It appears that plaintiffs are suggesting that because an elector from the State of Arizona by the name of Don Ascoli never authorized the United States Attorney’s Office to oppose plaintiffs’ motion for a temporary restraining order, a fraud was committed against the court. Plaintiffs’ Emergency 60B Motion at 4. Mr. Ascoli, however, is not a named defendant in this action. Moreover, although plaintiffs named the “Electoral College” as a defendant in this action, defendants pointed out in their opposition to the motion for a temporary restraining order that the Electoral College is actually comprised of individual electors chosen by each state and the District of Columbia who vote in their home states, not in a common assembly. See Art. II, § 1, cl. 2; U.S. Const. Amend. XII. “The Electoral College itself is not an agency or person subject to suit.” See Hollman v. United States Electoral College, 2009 WL 1114146, at *1 (W.D. Ark. Apr. 24, 2009). Similarly, it appears that plaintiffs are suggesting that because Mike Rogers, a Representative from the state of Michigan, “did not know anything about the opposition to TRO filed on behalf of congressman Rogers,” and Senator John McCain “was completely clueless about the fact that he was DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ EMERGENCY 60B MOTION 3 Case 2:12-cv-02997-MCE-DAD Document 67 Filed 02/07/13 Page 4 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 even a defendant in this case,” a fraud was committed against the court. Plaintiffs’ Emergency 60B Motion at 5. Representative Rogers and Senator McCain, however, are not named defendants in this action. Plaintiffs named only “Congress” as a defendant in their action. Finally, plaintiffs’s request that this Court appoint a special prosecutor to investigate “Obamaforgerygate” and fraud/obstruction of justice, and their assertion that this Court and the defendants may be prosecuted under RICO if they “certify Obama as a legitimate president,” are patently frivolous. See Plaintiffs’ Emergency 60B Motion at 5, 14. III. CONCLUSION For the foregoing reasons, plaintiffs’ Emergency 60B Motion should be denied. Respectfully submitted, BENJAMIN B. WAGNER United States Attorney Date: February 7, 2013 /s/ Edward A. Olsen By EDWARD A. OLSEN Assistant United States Attorney DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ EMERGENCY 60B MOTION 4 Case 2:12-cv-02997-MCE-DAD Document 67 Filed 02/07/13 Page 5 of 5