AZ - LLF Appeal 9th Cir - 2012-08-24 - DNC Opposition to Motion for Injunction

7/31/2019 AZ - LLF Appeal 9th Cir - 2012-08-24 - DNC Opposition to Motion for Injunction

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Case No. 12-16729

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LIBERTY LEGAL FOUNDATION; JOHN DUMMETT;

LEONARD VOLODARSKY; CREG MARONEY,

Appellants,

v.

DEMOCRATIC NATIONAL COMMITTEE; AND

DEBBIE WASSERMAN-SCHULTZ,

Appellees.

Appeal from the United States District Court, District of Arizona

District Court No. 2:11-cv-02089

RESPONSE IN OPPOSITION TO APPELLANTS MOTION FOR

INJUNCTION PENDING APPEAL

Paul F. Eckstein

D. Andrew Gaona

PERKINS COIE LLP

2901 North Central Avenue, Suite 2000

Phoenix, Arizona 85012-2788

Telephone: 602.351.8000

Facsimile: 602.648.7000

[email protected]

[email protected]

At torneys for Appellees

Democratic National Commit tee and

Debbie Wasserman-Schultz

Case: 12-16729 08/24/2012 ID: 8298852 DktEntry: 6 Page: 1 of 21


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Corporate Disclosure Statement

Pursuant to Fed. R. App. P. 26.1, Appellee Democratic National Committee

states that it is not aware of the existence of any parent corporation or any publicly

traded corporation that owns more than 10% of its stock.



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Introduction

Appellants Motion for Preliminary Injunction in this Court is yet another

step in a coordinated and politically-driven campaign to deprive the American

people of their right to vote for their candidate of choice in the 2012 presidential

election. The sweeping relief sought by Appellants which in effect would

preclude any state from including President Barack Obamas name on the ballot in

November is predicated entirelyon the frivolous notion that President Obama is

not a natural-born citizen of the United States, a legal theory that has been

rejected by each and every court and administrative agency to consider it. The

district court, however, found it unnecessary to reach this spurious contention, and

instead properly dismissed Appellants Second Amended Complaint because of its

failure to establish the courts personal jurisdiction over Appellees.

Appellants Motion should be denied because: (1) they are certain to fail on

the merits, (2) they will not sustain irreparable harm, (3) the balance of equities

weighs decidedly against them, and (4) the public interest most certainly does not

favor granting temporary equitable relief that will harm both President Obama and

the tens of millions of Americans who wish to cast a vote in his favor on

November 6, 2012. This Court should not entertain Appellants attempt to abuse

the judicial process in furtherance of their misguided political agenda.



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Background

On January 23, 2012, Appellants filed their Second Amended Complaint

(the SAC) against Appellees. [R. 10.] The gravamen of the SAC is that

President Obama is not a natural born citizen of the United States, and that he is

therefore not qualified to be placed on any ballot for the office of President in the

2012 general election. [Id. 13.] According to Appellants, this result is

mandated by Minor v. Happersett, 88 U.S. 162, 167 (1874), in which Appellants

allege that the United States Supreme Court defined natural-born citizens as all

children born in a country of parents who were its citizens. [Id. 12.] The SAC

alleged purported causes of action for negligent misrepresentation,

fraud/intentional misrepresentation, and declaratory relief, and asked that the

district court enjoin the Democratic Party from making any representation by [sic]

to any State official asserting, implying, or assuming that Mr. Obama is qualified

to hold the office of President. [Id. 5.]

Appellees filed a motion to dismiss pursuant to Rule 12(b)(1), (b)(2), and

(b)(6) of the Federal Rules of Civil Procedure. [R. 24.] That motion argued that:

(1) the district court lacked subject matter jurisdiction because the Appellants did

not have standing, (2) the district court lacked personal jurisdiction over Appellees

because of Appellants deficient pleading, and (3) the SAC failed to state a claim

upon which relief could be granted because the district court could not interfere



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with the Democratic Partys choice of presidential candidate, and more

importantly, because President Obama is unquestionably a natural-born citizen of

the United States and is eligible to stand for re-election. [Id.] On July 11, 2012,

the district court entered an order dismissing the SAC with prejudice. [R. 41.] It

concluded that Appellants failed to meet their burden of establishing [that the

court] has personal jurisdiction over [Appellees], and thus did not reach the other

grounds for dismissal raised. [Id. at 15.]

On August 6, 2012, Appellants filed a timely notice of appeal from the

district courts order of dismissal. [R. 43.] Nine days later, they filed a Motion

for Preliminary Injunction pending the disposition of their appeal (the Motion)

pursuant to Rule 8 of the Federal Rules of Appellate Procedure. [Doc. No. 4-1.]

The Motion asks this Court to enter an order

prohibiting the Defendant/Appellees from issuing any

letters, certificates, or other document to any Secretary of

State of any state, any agent thereof, or any other official

of any state, indicating that [President] Obama is

qualified to hold the office of President or that the

Democratic Party has selected [President] Obama as its

Presidential candidate, or requesting that any state place

the name of Mr. Obama on any ballot for the office of

President of the United States for the 2012 general

election.

[Id. at 20.]



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Argument

The entry of the broad and sweeping injunction requested by Appellants

would have no basis in fact or law, and the Court simply should not indulge

Appellants arguments to the contrary. Not only did the district court properly

dismiss the SAC because of Appellants failure to establish the courts personal

jurisdiction over Appellees, but also it could have properly dismissed the case for

any number of other fundamental deficiencies, most prominently the absurdity of

the legal theory on which the entire SAC rests. The Motion should be denied.

I. APPELLANTS ARE NOT ENTITLED TO AN INJUNCTIONPENDING APPEAL.

The standard for an injunction pending appeal is the same as that used by a

district court to determine whether to grant a preliminary injunction. See Natural

Res. Def. Council, Inc. v. Winter, 502 F.3d 859 (9th Cir. 2007) (applying this

standard to a stay application under FRAP 8). Appellants thus have the burden of

establishing: (1) a likelihood of success on the merits; (2) that irreparable harm is

likely to be suffered in the absence of preliminary relief; (3) that the balance of

equities tips in their favor; and (4) that an injunction is in the public interest.

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). In the instant

case, Appellants cannot meet their burden to establish any of these four factors.



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A. Appellants Are Not Likely to Succeed on the Merits.Although Appellants focus a great deal on their incorrect claim that the

judgment of the district court was clear error, that inquiry is one that this Court

will consider at a later time. The relevant question now before the Court is not

whether Appellants are likely to prevail on their appeal [Doc. 4-1 at 9], but rather

whether they are likely to succeed on the merits of their case in its entirety.

Viewed through this lens, Appellants Motion should be denied because Appellants

are not only unlikely to succeed on the merits of their claims, but are sure to fail.

1. The district court properly concluded that it lackedjurisdiction over Appellees.

Despite Appellants protestations to the contrary, the district court did not

err in concluding that Appellants failed to carry their burden to establish that the

court had personal jurisdiction over Appellees. The only disputed conclusion from

the order below is that the district court lacked specific personal jurisdiction.

Appellants do not contest the district courts holding that [n]othing in the record

supports a finding ofgeneraljurisdiction. [R. 41 at 5 (emphasis added).]

Where a defendant moves to dismiss a complaint for lack of personal

jurisdiction, the plaintiff bears the burden of demonstrating that jurisdiction is

appropriate. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th

Cir. 2004). Thus, Appellants carried the burden of demonstrating to the district



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court that the exercise of specific personal jurisdiction was proper by satisfying a

three-prong test:

(1) The non-resident defendant must purposefully direct

his activities or consummate some transaction with the

forum or resident thereof; or perform some act by which

he purposefully avails himself of the privilege of

conducting activities in the forum, thereby invoking the

benefits and protection of its laws;

(2) the claim must be one which arises out of or relates to

the defendants forum-related activities; and

(3) the exercise of jurisdiction must comport with fairplay and substantial justice, i.e. it must be reasonable.

Id. at 802 (quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987)). This test

involves two related but separate inquiries; purposeful availment and purposeful

direction. Id. at 802-03.

After examining the allegations made in the SAC, the district court first

concluded that Appellants did not allege that [Appellees] have acted in any way to

purposefully avail themselves of the protections and privileges of Arizona.

Nowhere in the SAC do [Appellants] allege that [Appellees] made a contract,

engaged in business in Arizona, or established ongoing contacts in Arizona.

[R. 41 at 8.] Although Appellants claim that there was purposeful availment in a

heading [Doc. 4-1 at 6], they do not substantively address or attempt to refute this

conclusion of the district court.



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Appellants do, however, dispute the district courts holding that they failed

to allege activities directed at the State of Arizona. [Id. at 6-9.] The district court

concluded that Appellants: (1) did not allege that Appellees have completed any

act in connection with alleged misrepresentations about the 2010 presidential

election, (2) failed to establish that Appellees expressly aimed acts at Arizona in

any way as required byBancroft & Masters, Inc. v. Augusta Natl, Inc., 223 F.3d

1082, 1087 (9th Cir 2000), and (3) failed to establish anything more than an act

that is national in scope that does not target any particular person or place, which

cannot establish personal jurisdiction. [R. 41 at 9.]

Far from the clear error alleged by Appellants, the district court correctly

read the allegations in the SAC to refer to a general course of conduct that

Appellees will allegedly undertake that is aimed at all fifty states, and not at

Arizona (or any resident thereof) in particular. Appellants argument that the

Arizona Secretary of State is a specific person [Doc. 4-1 at 7] thus quite misses

the point, as the relief sought by the SAC is not specific to Arizona (or the Arizona

Secretary of State), but instead would apply as equally to Arizona as it would to

Illinois, Virginia, or any other state. [R. 41 at 9 ([Appellants] allege that

[Appellees] will make a representation to all fifty Secretaries of State . . . .).]

Based on these general allegations, Appellants did not establish that

Appellees expressly aimed any conduct toward the forum state, and the district



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court properly relied on case law holding that acts national in scope are

insufficient to support a finding of purposeful direction. See, e.g., Kransco Mfg.,

Inc. v. Markwitz, 656 F.2d 1376, 1379-80 (9th Cir. 1981).

2. Appellants are certain to fail on the merits because the legaltheory that colors the SAC has been met with wholesale

rejection.

At its heart, the Motion must be denied because there is no question as to

President Obamas status as a natural-born citizen of the United States, and thus

there is no legal basis on which Appellants could prevail on their claims for relief.

Despite Appellants arguments and those of each and every birther that

has preceded them in state and federal courts throughout the country President

Obama is a natural-born citizen by virtue of his birth in the United States. See

United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898) (holding that a person

born to non-citizens from China was a citizen of the United States because [e]very

person born in the United States, and subject to the jurisdiction thereof, becomesat

once a citizen of the United States) (emphasis added); see also Hollander v.

McCain, 566 F. Supp. 2d 63, 66 (D.N.H. 2008) (Those born in the United States,

and subject to the jurisdiction thereof have been considered American citizens

under American law in effect since the time of the founding and thus eligible for

the presidency.) (citations omitted);Ankeny v. Governor of Ind., 916 N.E.2d 678,

688 (Ind. Ct. App. 2009) (citing Wong Kim Ark, and holding that both President



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Obama and Senator John McCain were natural born citizen[s] because persons

born within the borders of the United States are natural born [c]itizens for Article

II, Section 1 purposes, regardless of the citizenship of their parents).1

Both the SAC and the Motion rely entirely on Minor v. Happersett. [R. 10

2; Doc. 4-1 at 10-14.] Notwithstanding Appellants erroneous characterizations,

Minordid not exclusively define natural-born citizens as all children born in a

country of parents who were its citizens. [R. 10 2; Doc. 4-1 at 10.] Indeed, the

Court expressly left open the question of whether a child born to alien parents is a

natural born citizen because it was not necessary to the disposition of the case.

See Minor, 88 U.S. at 167-68 (noting that it was not necessary to resolve existing

doubts as to whether a child born in the United States, without reference to the

citizenship of their parents, is a natural-born citizen[]).

That question was in effect resolved in Wong Kim Ark, which held that

[e]very person born in the United States, and subject to the jurisdiction thereof,

becomes at once a citizen of the United States, and not at a later time by

naturalization or some other means. 169 U.S. at 702 (emphasis added). The very

and not at some later time. Indeed, in discussing the English common law at the

1Appellees cited below a host of unreported federal, state, and administrative

decisions that reach the same result. [See R. 24 at 12 n.8 & Exs. A-C; R. 27 at

Exh. D; R. 37.]



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time of the adoption of the United States Constitution which was the law in force

in the English colonies and in the United States afterwards the Supreme Court

observed that every child born in England of alien parents was a natural-born

subject, unless the child of an ambassador or other diplomatic agent of a foreign

state, or of an alien enemy in hostile occupation of the place where the child was

born. Wong Kim Ark, 169 U.S. at 658 (emphasis added).

Because the legal theory on which both the SAC and the Motion are

predicated has been resoundingly rejected by each and every court and

administrative body to consider it, Appellants are not likely to succeed on the

merits.2

To the contrary, Appellants are sure to fail.

3. The Court lacks subject matter jurisdiction over this case.Even if this Court concludes that Appellants have made some showing that

would not require denial of the Motion because of a lack of either personal

jurisdiction or legal merit, Appellants are not likely to succeed on the merits

because the Court lacks subject matter jurisdiction over this case. Specifically: (1)

Appellants do not have standing to maintain this action, an issue already decided

adversely to these Appellants in a parallel proceeding in Tennessee, and (2)

2The district court recognized as much when, in its discussion of Appellees

motion for sanctions, warned Appellants counsel that knowingly continuing to

bring claims that have previously been dismissed may warrant sanctions in the

future. [R. 41 at 13.]



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because of the unique nature of presidential elections, any dispute over President

Obamas qualifications is not yet ripe.

a. Appellants do not have standing to maintain thisaction.

First, Appellants cannot succeed on the merits because they do not have

standing to pursue this case. As set forth in Appellees Motion to Dismiss [R. 24

at 5-7]:

Appellant Maroney alleges only that he is a United States Citizen. [R. 10 33] As a result, his alleged injury-in-fact derives solely from his status as

a citizen and as a voter. This alleged harm is neither concrete nor

particularized, and is thus insufficient to establish standing under Article III.

See Berg v. Obama, 586 F.3d 234, 240 (3d Cir. 2009) (Even if we assume

that the placement of an ineligible candidate on the presidential ballot

harmed Berg, that injury, including any frustration Berg felt because others

refused to act on his view of the law, was too general for the purposes of

Article III: Berg shared both his interest in proper application of the

Constitution and laws, . . .pari passu with all voters . . . .)

Appellants Dummett and Volodarsky, though allegedly candidates for theoffice of President of the United States [R. 10 21, 28], fail to allege an

injury-in-fact because they do not allege that any appellee has engaged in a

practice that would provide President Obama with an unfair advantage in



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the election process. Owen v. Mulligan, 640 F.2d 1130, 1133 (9th Cir.

1981) (concluding that a candidate had standing to challenge the Postal

Services preferential mailing rate afforded his opponent because such

abuses of mail preferences . . . arguably promote[d] . . . electoral

prospects) (internal quotation marks omitted). Above all, their presidential

prospects are theoretical at best, and any harm they may sustain in the

future is entirely speculative. Cf. Robinson v. Bowen, 567 F. Supp. 2d 1144,

1146 (N.D. Cal. 2008) (holding that the plaintiff, a mere candidate hoping

to become a California elector pledged to an obscure third-party candidate

whose presidential prospects are theoretical at best, lacked standing to

challenge Senator John McCains qualifications because he had no greater

stake in the matter than a taxpayer or voter).

Appellant Liberty Legal Foundation lacks standing because, inter alia, itfailed to show that one of its members would have standing to sue in his

own right. See Fleck & Assocs., Inc. v. City of Phoenix, 471 F.3d 1100,

1105-06 (9th Cir. 2006) (setting forth the test for associational standing).

Though all of these arguments remain true today, the Court need not make

any determination as to Appellants likelihood of success on them because that

decision has already been made by a court of competent jurisdiction. On June 21,

2012, Judge S. Thomas Anderson of the United States District Court for the



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Western District of Tennessee entered an order dismissing identical claims

brought by Appellants against Appellees because Appellants failed to allege[]

specific facts to demonstrate their standing. Liberty Legal Found. v. Natl

Democratic Party of the USA, Inc., No. 2:12-cv-02143-STA-cgc, slip op. at 19-20

(W.D. Tenn. June 21, 2012) [R. 40, Ex. A.] Because of the existence of a final

judgment concluding that Appellants lack standing to bring the precise claims

advanced in the SAC, they are collaterally estopped from relitigating that question

here. See Offshore Sportswear, Inc. v. Vuarnet Intl, B.V., 114 F.3d 848, 850 (9th

Cir. 1997) (setting forth the conditions for the application of the doctrine of

collateral estoppel). It is therefore impossible for Appellants to succeed on the

merits.3

The Motion should be denied on these grounds alone.

b. This dispute is not yet ripe.Beyond Appellants lack of standing, no court has subject matter jurisdiction

over this matter because the dispute is not ripe for judicial review. See Principal

Life Ins. Co. v. Robinson, 394 F.3d 665, 669 (9th Cir. 2005) (If a case is not ripe

for review, then there is no case or controversy, and the court lacks subject-matter

jurisdiction.). Specifically, judicial review in this matter is not appropriate if at

3The fact that Appellants cannot relitigate their lack of standing to pursue

these claims is a ground on which this Court can and should dismiss this appeal.



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all until after the 2012 general election and the counting of electoral votes by

Congress.

As Judge William Alsup of the Northern District of California explained in

Robinson v. Bowen, a case in which the plaintiff sought to preclude Senator John

McCain from the 2008 ballot in California:

It is clear that mechanisms exist under the Twelfth

Amendment and 3 U.S.C. 15 for any challenge to any

[presidential] candidate to be ventilated when electoral

votes are counted, and that the Twentieth Amendment

provides guidance regarding how to proceed if apresident elect shall have failed to qualify. Issues

regarding qualifications for president are

quintessentially suited to the foregoing process.

Arguments concerning qualifications or lack thereof can

be laid before the voting public before the election and,

once the election is over, can be raised as objections as

the electoral votes are counted in Congress. The

members of the Senate and the House of Representatives

are well qualified to adjudicate any objections to ballots

for allegedly unqualified candidates.

567 F. Supp. 2d at 1147 (emphasis added). Because of these procedures already

set forth in federal law, the court held that [j]udicial review if any should

occur only afterthe electoral and Congressional processes have run their course.

Id. (emphasis added). What was true then is true now, and accordingly, Appellants



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are unlikely to succeed on the merits because the heart of their case is not ripe for

review.4

B. Appellants Will Not Sustain Irreparable Harm WithoutPreliminary Relief.

Appellants sole claim of irreparable harm absent the entry of an injunction

pending appeal is that Appellant Dummett is a candidate for the office of

President, and that the appearance of President Obamas name on ballots would

reduce the number of votes obtained by candidate Dummett for the same office,

and would call into question the validity of such an election. [Doc. 4-1 at 18.]

As a preliminary matter, the SAC is devoid of any allegations that Appellant

Dummetts name will appear on any state ballot alongside President Obamas.

Although the Ninth Circuit has acknowledged the existence of competitive

standing, see Drake v. Obama, 664 F.3d 774, 782-83 (9th Cir. 2011), cert. denied

sub nom. Keyes v. Obama, 132 S. Ct. 2748 (2012), that standing doctrine

presupposes actual and viable competition. It cannot be that any self-declared

presidential candidate has competitive standing to challenge President Obamas

qualifications (and, as requested here, obtain injunctive relief that would preclude a

4That this dispute is not currently ripe is further highlighted by the fact that

Appellants brought causes of action for negligent misrepresentation and

fraud/intentional misrepresentation for conduct that has yet to occur.



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sitting Presidents name from appearing on the ballot) despite the practical and

legal impossibility of that persons election to office.

Second, and beyond Appellant Dummetts lack of viability as a presidential

candidate, Appellants will not suffer irreparable harm without an injunction

pending appeal because although the election grows ever-closer Appellants will

not be without recourse to challenge President Obamas qualifications. As set

forth above, they would be free to bring an action if he is re-elected, and after the

votes of the Electoral College have been cast and counted by Congress. See

Robinson, 567 F. Supp. 2d at 1147 (holding that [j]udicial review if any

should occur only after the electoral and Congressional processes have run their

course) (emphasis added).

Finally, theonly true irreparable harm that would occur if the Court were

to grant an injunction pending appeal would be that sustained by President Obama,

the millions of members of Americans who wish to cast a vote in November giving

him another term in office, and public trust in our system of democracy. The

Motion completely disregards the interests of these individuals and that system,

and should thus be given no credence.

C. The Balance of Equities Does Not Favor Appellants.The relief sought by Appellants would prevent Appellees from making

representations about President Obamas nomination as the Democratic Partys



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candidate for President of the United States that are objectively (and legally) true.

See Section I.B, supra. It would hardly be equitable to enjoin Appellees in such a

way. The balance of equities in favor of Appellees requires the denial of the

Motion.

D. An Injunction Pending Appeal Is Not in the Public Interest.The public interest supports free democratic choice, and not an injunction

that would (1) keep President Obama off ballots throughout the country, and (2)

prevent millions of Americans from casting a ballot in favor of a candidate they

support. Appellants arguments to the contrary [Doc. 4-1 at 19-20] are quite

unavailing because, like the rest of the Motion, they are premised entirely on the

notion that at some indeterminate point in the future, Appellees will make

misrepresentations about President Obamas eligibility to serve as President of

the United States and stand for re-election. Because no such misrepresentation

can or will be made, see Section I.B, supra, the public interest strongly disfavors

the extraordinary and unprecedented relief sought in the Motion.

Conclusion

Because Appellants will not succeed on the merits, will not sustain

irreparable harm absent the entry of an injunction, the balance of equities weighs

strongly against precluding the name of the sitting President from the ballot, and

the public interest favors free democratic choice, the Motion should be denied.



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Dated: August 24, 2012. Respectfully submitted,

s/ D. Andrew Gaona

Paul F. Eckstein

D. Andrew Gaona

PERKINS COIE LLP

2901 North Central Avenue, Suite 2000

Phoenix, Arizona 85012-2788

Attorneys for Appellees

Democratic National Committee; and

Debbie Wasserman-Schultz



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Certificate of Service

I hereby certify that I electronically filed the foregoing with the Clerk of the

Court for the United States Court of Appeals for the Ninth Circuit by using the

appellate CM/ECF system on August 24, 2012.

Participants in the case who are registered CM/ECF users will be served by

the appellate CM/ECF system.

Dated: August 24, 2012. s/ D. Andrew GaonaD. Andrew Gaona

63920-0001.0010/LEGAL24465657.1


AZ - LLF Appeal 9th Cir - 2012-08-24 - DNC Opposition to Motion for Injunction

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Transcript of AZ - LLF Appeal 9th Cir - 2012-08-24 - DNC Opposition to Motion for Injunction