AZ - LLF - 2012-05-23 LLF Opposition to Motion for Sanctions.pdf - Adob

7/31/2019 AZ - LLF - 2012-05-23 LLF Opposition to Motion for Sanctions.pdf - Adob

1/21

1 of 21

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF ARIZONA

LIBERTY LEGAL FOUNDATION;

JOHN DUMMETT;

LEONARD VOLODARSKY;

CREG MARONEY,

Plaintiffs

CASE NO: 2:11-cv-02089-SRB

Judge: Bolton

NATIONAL DEMOCRATIC PARTY

of the USA, Inc.;

DEMOCRATIC NATIONAL COMMITTEE;

DEBBIE WASSERMAN SCHULTZ,

Defendants

OPPOSITION TO DEFENDANTS MOTION FOR SANCTIONS

Pursuant to this Courts Rules, Van Irion submits this Opposition and

Memorandum in Opposition to Defendants Motion for Sanctions.

MEMORANDUM OF POINTS AND AUTHORITIES

I. IntroductionDefendants motion for sanctions accuses an attorney with a pristine ethical record

of attempting to perpetrate a fraud on this court. Yet the facts at hand leave no possibility

that Defendants accusations are true.

Case 2:11-cv-02089-SRB Document 31 Filed 05/23/12 Page 1 of 21


2/21

2 of 21

Defendants motion also asserts that attorney Irions legal theory cannot possibly

prevail. Yet the legal theory asserted is based upon precedent from a legal holding of the

United States Supreme Court. All contrary authority relies upon dicta. It is well-

established that dicta cannot abrogate binding precedent, regardless of how often it is

repeated. Neither repetition of dicta nor emotionally-charged disagreement with

precedent grants authority to abrogate precedent.

Defendants assertion that attorney Irion misrepresented as a holding a question

that the Supreme Court expressly left open and ignored subsequent Supreme Court

precedent on point, is refuted by a simple reading of the cases at issue. Defendants

assertions are a gross misrepresentation to this Court.

II. Demonstrably False Allegation of Fraud on the CourtDefendants theory is that attorney Irion somehow knew that the National

Democratic Party of the USA, Incorporated (NDPUSA) is a sham organization, and that

attorney Irion decided to take advantage of this information by naming NDPUSA in order

to get a default judgment against NDPUSA. Doc. 28 at 8-9. Alternatively, Defendants

claim that attorney Irion failed to perform a reasonable pre-litigation inquiry and that

such an inquiry would have revealed that the National Democratic Party of the USA,

Inc. is not affiliated with the DNC or the Democratic Party in any way.Id. at 8.

These allegations are provably false.



3/21

3 of 21

A.Reasonable Inquiryi. Communications with Secretary of States Office

Prior to filing the instant litigation attorney Irion spoke with a staffer at the

Tennessee Secretary of States office regarding standard operating procedures for

Presidential elections. Decl. Van Irion 2. That staffer informed attorney Irion that the

National Democratic Party always sends a notice to all Secretaries of State certifying the

name of the Partys candidate. Id. That staffer also informed attorney Irion that without

such certification from the national party organization, the Secretary of State would not

place the Partys candidates name on the Tennessee ballot.Id.

ii. Search for Democratic EntitiesAttorney Irion then searched the Tennessee Secretary of States records for

information on any entity operating with the terms Democratic Party or National

Democratic Party.Id.at3. Since all entities doing business within or with the state of

Tennessee are required to register with the state attorney Irion assumed that the National

Democratic Party organization would be registered. The NDPUSA was the only entity

that appeared to be a national Democratic Party organization.Id.

A copy of a recent search is attached showing that the NDPUSA is the only

organization that comes up in a search for National Democratic Party. Ex.1. A copy of

another recent search is attached showing that Democratic Coalition Inc. and

Democratic Party of Tennessee Inc. come up when searching for Democratic. Ex.2

Democratic Coalition Inc. and Democratic Party of Tennessee Inc. both have the



4/21

4 of 21

same control number as the NDPUSA. Id. Apparently they are all the same entity

working under five different alternative assumed names. Ex.3. Other entities also come

up in this broader search, but all are clearly local entities.

B.Connection with ArizonaDefendants motion states that attorney Irions explanation fails to explain how a

sham Tennessee organization has any connection whatsoever to the maintenance of the

present case in Arizona.1

Doc. 28 at 9 (emphasis in original).

As Defendants understand, corporations routinely incorporate under the laws of

one state yet do business in multiple states or all states. Such corporations routinely

register with the Secretary of State for each state in which they do business. Most, if not

all, states have laws requiring such registration. This being Mr. Irions first case against a

political organization, Mr. Irion assumed that a political party would be organized in a

similar fashion as a business entity and would register with the states it is operating

within. Mr. Irion was aware that the national level of the Democratic Party organization

routinely sends notices to all 50 Secretaries of state. Id. at 5. Therefore Mr. Irion

attempted to target the national level of the Democratic Partys organization. Id. When he

found the National Democratic Party of the USA, Inc. registered with the Tennessee

Secretary of State, he assumed that this was the national level of the Democratic Partys

organization, and that it would have offices in every state.Id.

1To the degree this accusation raises issues of venue and jurisdiction, attorney Irion has

already addressed those issues in Plaintiffs response in opposition to Defendants motion

to dismiss. See Doc. 26. Attorney Irion incorporates that document by reference here.



5/21

5 of 21

Based on this research, attorney Irion attempted service upon NDPUSA at its

offices in Memphis, Tennessee.Id. Corporations with offices in multiple jurisdictions can

be served at any corporate office. The Tennessee Secretary of States registry reflects an

office and agent for service of process for the NDPUSA located in Memphis, TN. Ex.1.

C.NDPUSAs Assumed NamesDefendants point out that the Tennessee Secretary of States registration reflects

that the NDPUSA has an assumed name of Shelby County Republican Party Inc.

Defendants go on to assert that upon seeing this attorney Irion should have known that

NDPUSA was a sham organization which is not affiliated with the DNC or the

Democratic Party in any way. Doc.28 at 8 (emphasis in original).

What Defendants dont reveal to this Court is that NDPUSA has five different

names registered with the Tennessee Secretary of State: this one entity is known as

Democratic Party of Tennessee Inc., Democratic Coalition Inc., Shelby County

Republican Party Inc., Non-Partisan Coalition for Better Government, and the

National Democratic Party of the USA Inc. Ex.3.

Attorney Irion has no idea why this organization has five names. Id. at 4

Apparently the Defendants have no idea either. Their own motion to dismiss refers to this

entity as apparently a sham organization that may be affiliated with the Shelby County

(Tennessee) Republican Party. Doc.24 at 2, FN1, (emphasis added).

The Defendants apparently still dont know who or what the NDPUSA is, or why

it was formed, or what it does. Id. Attorney Irion doesnt know either and certainly

cannot be expected to have answered this question definitively before filing the instant



6/21

6 of 21

lawsuit.2

Even now it is unclear who formed the NDPUSA or why it was formed or what

other entities it may be associated with. Attorney Irions assumption that NDPUSA is

affiliated with the national level of the Democratic Party is far more reasonable than the

Defendants assumption that the same entity may be affiliated with the Republicans.

Contrary to Defendants assertion, there still is no evidence that would lead a

reasonable attorney to the certain conclusion that the National Democratic Party of the

USA, Inc. is not affiliated with the DNC or the Democratic Party in any way. Doc.28 at

8. The Defendants still have produced no such evidence. The only information revealed

seven months after the filing of this lawsuit is that the NDPUSA has five names and that

one of these names does not seem to fit with the others. This proves nothing other than

the fact that the Defendants are willing to deceive this Court by implying that the

NDPUSA has only two names. It certainly does not conclusively prove that the NDPUSA

is not affiliated with the DNC or Democratic Party in any way.

Based on the information available about the NDPUSA it would be just as

reasonable to assume that the Defendants set up the NDPUSA as a trap for unwary

attorneys attempting to sue the national level of the Democratic Party. The accusations

against attorney Irion are as unreasonable and unsupported as an accusation that the

2Attorney Irion attempted to obtain a default judgment against NDPUSA for the sole

purpose of eliminating the possibility that the NDPUSA is associated with the DNC or is

an agent of the DNC. Decl. Irion at 6. If there is no such association between these

organizations, a default judgment would have done nothing to curtail the activities of the

DNC. If there is an association between these organizations, the DNC would have been

forced to defend the NDPUSA. The motion for default was intended to be a quick and

simple method to set aside this issue.Id.



7/21


8/21


9/21

9 of 21

and second complaints, to the DNC at its Washington DC office.4

Decl. Irion at 9. Those

documents were received by the DNC before December 22, 2011. Id.; See also Ex.4 If

Defendants accusations were true, that attorney Irion wanted to keep the instant lawsuit a

secret from the DNC, attorney Irion would not have sent a copy of the summons and

complaintto the DNCmore than a month before he filed a motion for default judgment.

Also, when Attorney Irion filed a motion for default judgment against NDPUSA

he mailed a copy of that motion and all three complaints to the current chairman of the

DNC, Defendant Schultz, at her Congressional office in Washington DC. Decl. Irion at

10. Those documents were received by Defendant Schultz on January 30. Id.;Ex.5.

Again, If the Defendants accusations were true attorney Irion would not have sent

a copy of the motion for default judgment to the current chairman of the DNC, Defendant

Schultz, immediatly after that motion was filed.

E.Press Release and Media Coverage Negate Defendants AllegationIn October, immediately after filing the first complaint, attorney Irion sent a press

release to all of his media contacts, including several staffers at Fox News and a staff

writer for World Net Daily (WND). Decl. Irion at 11; Ex.6-7. Mr. Irion has appeared on

Fox News Greta Van Sustren Show and Freedom Watch with Andrew Napolitano. Decl

Irion at 11; see also http://libertylegalfoundation.org/.

4The fact that attorney Irion sent copies of the Complaints and summons to the DNCs

Washington DC offices also proves that attorney Irion believed at that time that the

NDPUSA was the entity that coordinates the Democratic Partys national organization.

http://libertylegalfoundation.org/http://libertylegalfoundation.org/


10/21

10 of 21

The World Net Daily writer, Bob Unruh, regularly writes about Liberty Legal

Foundations (LLF) efforts and has written several times about LLFs eligibility lawsuits

Decl. Irion at 12. WND is read by millions of Americans. Note that the e-mail sent to

Mr. Unruh by attorney Irion had a copy of the complaint naming NDPUSA as the first

named defendant attached to it. Ex.6. Mr. Unruh habitually includes copies of such

documents as part of his articles for WND. Decl. Irion at 12. Attorney Irion included the

document because he was aware of Mr. Unruhs practice. Id. The subsequent article was

published online on November 8, 2011 at http://www.wnd.com/2011/11/360813/. Ex. 8

Had attorney Irion been attempting to keep the instant lawsuit a secret from the

DNC, as the Defendants assert, he would not have sent out press releases to national

media outlets that have regularly covered his activities in the past.

The evening before attorney Irion personally served the complaint at the Arizona

Democratic Partys office in Phoenix he appeared at a Tea Party meeting with Sheriff Joe

Arpaio to discuss the lawsuit. Decl. Irion at 8; Decl. Dummett at 3. Details were

discussed with members of the media at the meeting. Decl. Irion at 8. Coverage of this

event can be found at http://www.examiner.com/article/liberty-legal-foundation-serves-

dnc-with-obama-eligibility-complaint.See Ex. 9. This article also confirms that attorney

Irion believed at that time that the NDPUSA was the national organizing entity for the

Democratic Party and that it had offices in every state: Van Irion and Dummett served

the DNC at its office in Phoenix on Tuesday.Id. (describing attorney Irions statements

to the Tea Party group).

http://www.examiner.com/article/liberty-legal-foundation-serves-dnc-with-obama-eligibility-complainthttp://www.examiner.com/article/liberty-legal-foundation-serves-dnc-with-obama-eligibility-complainthttp://www.examiner.com/article/liberty-legal-foundation-serves-dnc-with-obama-eligibility-complainthttp://www.examiner.com/article/liberty-legal-foundation-serves-dnc-with-obama-eligibility-complaint


11/21

11 of 21

Had attorney Irion been attempting to keep the instant lawsuit a secret from the

DNC, as the Defendants assert, he wouldnt have announced the lawsuit to the media and

dozens of members of the public in early December.

Immediately upon filing the first complaint Liberty Legal Foundation posted the

complaint on its web site and sent an e-mail message to its over 30,000 members with a

link to the complaint. Decl. Irion at 13; see also http://libertylegalfoundation.org/wp

content/uploads/2011/10/CCA-AZ-1st-Amd.-Compl.-filed.pdf. Attorney Irion is aware

of the fact that at least one current White House staffer has signed up on Liberty Legal

Foundations e-mail mailing list in order to monitor LLFs activities. Decl. Irion at 14.

Again, if attorney Irion had been attempting to keep the instant lawsuit a secret

from the DNC, as the Defendants assert, he would not have posted his activities on LLFs

web site and sent out regular e-mails to over 30,000 Americans, including at least one

White House staffers.

The Defendants assertion that attorney Irion attempted to keep the instant lawsuit

secret from the DNC is absurd.

F. Attorney Irions Multiple Attempts to Serve NDPUSA All Failed,Proving That He Has No Inside Information About or Affiliation

with NDPUSA

Defendants theory, that attorney Irion knew NDPUSA was a sham organization,

requires an assumption that attorney Irion had some contact with or knowledge of the

organizers of NDPUSA. However, anyone with such knowledge would also know how to

http://libertylegalfoundation.org/wp-content/uploads/2011/10/CCA-AZ-1st-Amd.-Compl.-filed.pdfhttp://libertylegalfoundation.org/wp-content/uploads/2011/10/CCA-AZ-1st-Amd.-Compl.-filed.pdfhttp://libertylegalfoundation.org/wp-content/uploads/2011/10/CCA-AZ-1st-Amd.-Compl.-filed.pdfhttp://libertylegalfoundation.org/wp-content/uploads/2011/10/CCA-AZ-1st-Amd.-Compl.-filed.pdf


12/21

12 of 21

successfully serve the organization. Yet attorney Irions attempts to serve NDPUSA at its

Tennessee office were all returned as undeliverable.5

Decl. Irion at 15; Ex.10-13.

If attorney Irion had been in collusion with the NDPUSA, or any of its organizers,

or if attorney Irion had any inside knowledge regarding the NDPUSA, then he would

have known how to serve the summons and complaint on the alleged sham organization.

The fact that attorney Irion was unable to successfully serve the NDPUSA, despite

multiple attempts, conclusively proves that he never attempted a fraud on this Court.

G.Defendants Motion Misrepresents the RecordDefendants motion states that attorney Irion served only the National

Democratic Party of the USA, Inc. until the Court intervened. Doc.28 at 9 (emphasis in

original). Defendants statement could, itself, be characterized as a fraud on the Court.

This Courts order requiring Plaintiffs to show cause regarding service upon

Defendants Schultz and DNC was not issued until March 22. Doc. 16. Plaintiffs served

Defendant Schultz via certified mail at her Congressional office in Washington DC on

January 26. Decl. Irion at 10; Ex.5. This Court determined that this service was

insufficient to support a default judgment against Defendant Schultz because the return

receipt for that delivery was never returned to the Plaintiffs. That ruling is not being

questioned here. However, actual delivery was confirmed by the U.S. Post Office. Ex.5

The fact that Plaintiffs never received the return receipt does not change the fact that

5In December attorney Irion sent copies of the summons and complaint against

NDPUSA to the office of the DNC in Washington DC. That delivery was successful, but

service was not successful because, unknown to attorney Irion at the time, NDPUSA and

the DNC were apparently not the same entity.



13/21

13 of 21

attorney Irion attempted service upon Defendant Schultz two months before this Court

intervened.It also does not change the fact that Defendant Schultz, the Chairman of the

DNC, actually received a copy of the summons, all three complaints, and the motion for

default judgment against NDPUSA, on January 30, 2012.6

This timeline of events is clear in the record and defense counsel is well aware of

these facts, yet he insisted upon making the statement that attorney Irion served only the

National Democratic Party of the USA, Inc. until the Court intervened, in his

disingenuous attempt to prove that attorney Irion knowingly perpetrated a fraud on this

Court. Doc.28 at 9 (emphasis in original).

Defendants are also well aware of the fact that attorney Irion successfully

delivered, via certified mail, a copy of the first and second complaints to the Washington

DC offices of the DNC before December 22. Decl. Irion at 9; See also Ex.4 While

attorney Irion may have misidentified the proper party in those initial documents, this is

far from knowingly naming a sham organization and then only serving that

organization until the Court intervened. This attempt at service, delivered to the DNC

four months before this Court intervened, shows that attorney Irion was attempting to

6It is very interesting that Defendant Schultz chose to not respond to the summons

delivered to her on January 30. Service upon Defendant Schultz would have beensufficient for a default judgment against her had the return receipt been returned to the

Plaintiffs and filed. Yet Defendant Schultz failed to respond to that summons and

complaint. It would be easy to assume that Defendant Schultz somehow knew that the

return receipt would never be filed. Given the history of Congressional abuse of the Post

Office, an accusation that Defendant Schultz tampered with the U.S. mail is much less

absurd than the accusations against attorney Irion. However, again, attorney Irion will not

make such a serious accusation without direct evidence.



14/21

14 of 21

serve the proper party long before he filed for a default against NDPUSA. More

importantly, this attempted service shows that the DNC and its attorneys had knowledge

of the instant lawsuit long before attorney Irion filed for a default against NDPUSA.

Most importantly, this attempted service, like the service upon DNC Chairman Schultz,

proves that defense counsels statement that attorney Irion served only the National

Democratic Party of the USA, Inc. until the Court intervened, is deceptive.

The evidence leaves no possibility that Defendants allegations of fraud on the

court are true. Their motion for sanctions on these grounds must be DENIED.

III. Non-Frivolous ClaimDefendants accuse attorney Irion of misrepresenting as a holding a question that

the Supreme Court expressly left open and that he ignored subsequent Supreme Court

precedent on point. Doc.28 at 5. This accusation is, itself, a gross misrepresentation of

law.

Attorney Irion has readMinor v. Happersettand Wong Kim Ark(WKA) carefully

and many times. He has also read law review articles, other articles written by legal

scholars, historical accounts, and subsequent precedent related to Article II eligibility. As

a reasonable and experienced constitutional attorney, admitted to practice before the U.S

Supreme Court, attorney Irion states without reservation that theMinorCourts definition

of natural-born citizen is binding precedent and has not been abrogated by the dicta

from WKA or any other subsequent Supreme Court precedent. Language to the contrary

from subsequent Supreme Court opinions is also pure dicta. Any rulings from other



15/21

15 of 21

courts are simply incorrect and non-binding. Unless and until the U.S. Supreme Court

revisits this issue, theMinorCourts definition is binding.

A.The Minor Court Left Open the Scope of the Broad CategoryCitizen, Not Its Definition of NBC

A simple reading ofMinor v. Happersettmakes it is clear that the Court defined

natural born citizen, as it appears in article II of the Constitution, as part of its holding

88 U.S. 162, 167-8 (1875). The statement referred to by the Defendants, where theMinor

Courts definition of natural born citizen is immediately followed by a statement that

there have been doubts, is referring to the broader class of people identified as

citizens.Id. at 167. The Courts statement regarding doubts is immediately followed by

the clarification that there have never been doubts as to the narrower class of natural

born citizens.Id.

This understanding of the Minor Courts statement is also supported by its

extensive discussion of the broader term citizen at the beginning of the Courts opinion

Id. at 166. The Court concludes its discussion of the term citizenby stating, When

used in this sense it is understood as conveying the idea of membership of a nation, and

nothing more.Id. The Court, therefore, clearly established that the term citizen in its

opinion was to be understood to be very broad. With this in mind, the Minor Courts

statement is unambiguous: it established two distinct classes of people, citizens and

natural born citizens; citizen is a broad term that is inclusive of all citizens, including

natural born citizens; as to the outer limits of the broader term citizen there are



16/21

16 of 21

doubts; and as to the definition of natural born citizenthere have never been doubts.

Id. at 167-8.

Here is the paragraph at issue:

[I]t was never doubted that all children born in a country of parents

who were its citizens became themselves, upon their birth, citizens also.

These were natives, or natural-born citizens, as distinguished from aliens or

foreigners. Some authorities go further and include as citizens children born

within the jurisdiction without reference to the citizenship of their parents.

As to this class there have been doubts, but never as to the first. For

purposes of this case it is not necessary to solve these doubts. It is sufficient

for everything we have now to consider that all children born of citizen

parents within the jurisdiction are themselves citizens. 88 U.S. at 167-168.

The second sentence establishes that the first sentence defined natural-born

citizens and established that natural-born citizens are a subcategory of citizen. The

third sentence establishes that there is some doubt regarding the scope of the broader term

citizen. Then the forth sentence immediately reiterates that the doubt referred to in the

third sentence is doubt regarding the scope of the term citizen, and then goes on to state

that as to the definition of natural-born citizens there have never been doubts.

B.The Minor Courts Definition of NBC was Part of its Holding andis, Therefore, Binding Precedent

In order to reach its holding, theMinorCourt first had to establish that Mrs. Minor

was a citizen. It explicitly did so by determining that she was a natural born citizen: For

the purposes of this case it is not necessary to solve these doubts. It is sufficient for

everything we have now to consider that all children born of citizen parents within the

jurisdiction are themselves citizens.Id. at 167. The definition the Court is using here is

the Courts own definition of natural-born citizen from earlier in the same paragraph.



17/21

17 of 21

Because both of Mrs. Minors parents were U.S. citizens at the time she was born, and

she was born in the U.S., she was a natural born citizen. Because all natural born citizens

are also within the broader category citizen, Mrs. Minor was a citizen. This is why the

Court did not need to resolve doubts about the outer limits of the term citizen. Mrs. Minor

was a citizen because she was clearly within the narrower category of natural-born

citizen.

TheMinorCourts decision to establish that Mrs. Minor was a citizen because she

was a natural born citizen followed the well-established doctrine of judicial restraint

Judicial restraint required theMinorCourt to avoid interpreting the citizenship clause of

the 14th

Amendment if the circumstances presented in the case at hand did not require the

Court to construe the 14th

amendments citizenship clause in order to reach its holding.

The facts presented did not require such an interpretation, so the Court did not reach the

14th

amendments citizenship clause. But this restraint did require the Court to conclude

that Mrs. Minor was a citizen via its definition of natural-born citizen and its conclusion

that all natural-born citizens are within the broader category of citizens. This is why it

made the statement For the purposes of this case it is not necessary to solve these

doubts. It is sufficient for everything we have now to consider that all children born of

citizen parents within the jurisdiction are themselves citizens. Id. at 168. In other

words, the Minor Courts definition of natural born citizen was pivotal to

reaching its holding.

The Court then discussed several other types of citizenship as general examples of

its conclusion that women could be citizens. However, it then returned to the specific



18/21

18 of 21

case of Mrs. Minor, concluding: The fourteenth amendment did not affect the

citizenship of women any more than it did of men. In this particular, therefore, the rights

of Mrs. Minor do not depend upon the amendment. She has always been a citizen from

her birth, and entitled to all the privileges and immunities of citizenship.Id. at 170.

Because the Minor Courts definition of natural born citizen was pivotal to

reaching its holding, the Courts definition is part of its holding and is, therefore, also

precedent. SeeBlacks Law Dictionary 737 (Bryan A. Garner ed., 7th

ed., West 1999)

(holding, n. 1. A courts determination of a matter pivotal to its decision); (see alsoId

at 1195 defining precedent and quoting James Parker Hall, American Law and

Procedure xlviii (1952); see alsoBlacks Law Dictionaryat 465, distinguishing dictum

gratis: A courts discussion of points or questions not raised by the record or its

suggestion of rules not applicable in the case at bar.).

C.Dicta from Wong Kim Ark Cannot Alter Precedent fromMinorContrary to the Defendants assertion, the Minor Court did not leave open the

question of the definition of natural-born citizen as that term is used in Article II. It did,

however, leave open the scope of the term citizen as that term is used in the 14th

Amendment. This is the question that the WKA Court addressed. United States v. Wong

Kim Ark, 169 U.S. 649, 653 & 705 (1898). The WKA Courts holding is clearly

identified by that Court as its holding. Its holding is very fact specific and limited to

determining the scope of the term citizen under the 14th

Amendment. WKA involved a

person born in the U.S. to parents that were both non-citizens. The facts of WKA simply

did not provide that Court an opportunity or reason to re-visit Article IIs natural-born



19/21

19 of 21

citizen. Dicta cannot abrogate precedent. See Blacks Law Dictionary 465 (Bryan A

Garner e., 7th

ed., West 1999)(defining Dictum Gratis). Therefore, WKA cannot abrogate

the definition of Article II natural-born citizen fromMinor.

Defendants reading ofMinorand WKA also violates doctrines of constitutional

construction established inMarbury v. Madison and judicial restraint, as well as language

from the Minor Court establishing that the 14th

Amendment did not create any new

privileges and immunities. See 5 U.S. 137, 174 (1805); Minor, 88 U.S. at 171

Interpreting the 14th

Amendment in a way that allows a person with two foreign parents

to qualify for the office of President would clearly have created a new privilege. The

Minor Court explicitly stated that the 14th

Amendment created no new constitutional

privileges.Minor,88 U.S. at 171. TheMinorCourt had to reach this issue because it was

determining Mrs. Minors privileges under the 14th

Amendment. However, Mr. Ark was

not attempting to run for President, so any statement from the WKA Court that could

possibly be interpreted to alter Article II, is purest dicta.

In vast contrast to Defendants assertion, Plaintiffs reading ofMinorand WKA

respect the foundational principals of constitutional construction and legal interpretation

This is evidenced by the fact that Plaintiffs reading ofMinorand WKA leave these two

Supreme Court opinions in harmony because these cases were answering different

questions regarding different aspects of the Constitution.

D.The Instant Case is Distinguishable on the Standing Issue AloneDefendants assertion that attorney Irion ignored the wholesale rejection of

eligibility cases is an attempt to gloss over several significant differences between the



20/21

20 of 21

instant case and almost all other eligibility cases to date. Most importantly, almost every

eligibility challenge that has been dismissed has been dismissed for lack of standing. Yet

the instant case involves a Plaintiff that is a candidate against Mr. Obama in the

upcoming general Presidential election. Despite Defendants deceptive statements in a

recent filing, candidate-standing is well established. This notion of competitive

standing has been recognized by several circuits.Drake v. Obama, 664 F.3d 774, 782-3

(9th

Cir. 2011); citing Hollander v. McCain, 566 F.Supp.2d 63, 68 (D.N.H. 2008); Tex

Democratic Party v. Benkiser, 459 F.3d 582, 586-87 & n.4 (5th

Cir.2006); and Schulz v

Williams, 44 F.3d 48, 53 (2nd

Cir. 1994).

IV. ConclusionFar from being frivolous, the Plaintiffs claims should prevail. The instant case

brings a legitimate question of law with plaintiffs that have standing on a significant

Constitutional issue. It is therefore not a frivolous claim. Defendants motion for

sanctions must be DENIED.

Further, Pursuant to Federal Rule of Civil Procedure 11(c)(2) Plaintiffs request

that this Court order the Defendants pay Plaintiffs reasonable attorneys fees and costs

incurred in responding to Defendants wholly unfounded motion.

Respectfully submitted on the 3rd

Day of Sivan, in the year of our Lord 2012

(a.k.a. May 23, 2012).

_s/Van R. Irion_________________

Van R. Irion

Liberty Legal Foundation,

9040 Executive Park Drive, Ste. 200

(423) 208-9953



21/21

21 of 21

CERTIFICATE OF SERVICE

It is hereby certified that on 3rd

Day of Sivan, Year of our Lord 2012 (a.k.a. May

23, 2012), a copy of Opposition to Defendants Motion for Sanctions was filed

electronically. Parties may access this filing through the Courts electronic filing system

A copy of this motion will also be served upon the Defendants via mail.

_s/Van R. Irion_________________

Van R. Irion

Liberty Legal Foundation

9040 Executive Park Drive, Ste. 200

Attorney for Plaintiffs

(423) 208-9953


AZ - LLF - 2012-05-23 LLF Opposition to Motion for Sanctions.pdf - Adob

Documents

Transcript of AZ - LLF - 2012-05-23 LLF Opposition to Motion for Sanctions.pdf - Adob