STATE OF INDIANA ) IN THE MARION SUPERIOR COURT

) SS:
COUNTY OF MARION ) CAUSE NO. 49D14-1203-MI-012046

ORLY TAITZ, KARL SWIHART, )
EDWARD KESLER, BOB KERN, )
and FRANK WEYL )
)
Plaintiffs, )
)
v. )
)
INDIANA ELECTION COMMISSION, )
DEPUT Y ATTORNEY GENERAL )
JEFFERSON GARN, DEPUTY )
ATTORNEY GENERAL KATE )
SHELBY, 1310 RADIO/WTLC, )
AMOS BROWN, IN HIS OFFICIAL )
CAPACITY OF THE TALK SHOW )
HOST OF THE 1310 RADIO/WTLC )
INDIANA SECRETARY OF )
STATE, )
)
Defendants. )

ORDER ON DEFENDANTS MOTION TO VACATE TRIAL
Defendants, through their attorneys, moved this Court to Vacate the trial that was
scheduled for October 22, 2012. Argument was heard by this Court on October 22, 2012. The
Court -- having reviewed the filings submitted by both parties, having reviewed relevant
authority, and having heard argument from both parties -- now finds that Defendants Motion to
Vacate Trial is GRANTED. Additionally, since there was no good cause for the expedited trial
that Plaintiffs sought, all evidence introduced on October 22, 2012 is hereby STRICKEN.
Specifically, this Court makes the following findings and conclusions relative to Defendants
Motion to Vacate Trial.

2

1. Plaintiffs challenged the constitutional qualifications of President Barack Obama
before the Indiana Elections Commission and seek to have him removed from the Indiana
ballot.
1

2. The IEC unanimously denied Plaintiffs challenge on February 24, 2012.
3. The review of the decision of the IEC is governed by the Administrative Orders
and Procedures Act (AOPA). See I.C. 4-21.5, et seq. See also I.C. 4-21.5-5-1 (AOPA
establishes the exclusive means for judicial review of an agency action); Indiana State Board
of Health Facility Admnrs v. Werner, 841 N.E.2d 1196, 1205 (Ind. Ct. App. 2006) (strict
compliance with the mandates of AOPA is required); Burke v. Board of Directors of Monroe
County Public Library, 709 N.E.2d 1036, 1041 (Ind. Ct. App. 1999) (the failure to adhere to the
statutory prerequisites for judicial review of administrative action is fatal in that it deprives the
trial court of authority to entertain the petition).
4. Plaintiffs filed an action with this Court challenging the decision of the IEC. This
action was initiated on March 23, 2012.
2

5. Plaintiffs filed an amended pleading titled First Amended Complaint Injunctive
Relief, Petition for Emergency Stay Under AOPA, Petition for Declaratory Relief, Complaint for
Fraud Negligence Breach of Fiduciary Duty on May 7, 2012.

1
This Court notes that Plaintiff Taitz did not technically file a challenge before the IEC
challenging the qualifications; however, Plaintiff Taitz appeared before the IEC and provided
information and evidence to the IEC. Plaintiff Taitz is a party to this litigation and has
represented the other plaintiffs as their counsel. Accordingly, this Court finds that Plaintiffs
Taitz is in privity with the other plaintiffs who filed challenges (before the IEC) to the
constitutional qualifications of President Obama.
2
The Court recognizes that Plaintiffs initial filing was titled a Petition for Emergency
Injunctive Relief and Petition for Declaratory Relief. Nevertheless, this Court construed
Plaintiffs filing as a Verified Petition for Judicial Review as that was the only means by which
the decision of the IEC could be reviewed.

3

6. A hearing was held on State Defendants Motion to Dismiss and this Court issued
an Order on June 25, 2012. In this Order, this Court concluded that Plaintiffs failed to comply
with various provisions of AOPA and, as a result, this Court dismissed Plaintiffs claims with
prejudice.
7. Plaintiffs filed two Motions under Rule 60. As pertinent, Plaintiffs argued that
the claims of negligence, fraud and breach of fiduciary duty should not have been dismissed with
prejudice.
8. This Court, on August 17, 2012, issued an Order regarding Plaintiffs Rule 60
Motion. Specifically, this Court reaffirmed its June 25, 2012 Order that the challenges to
President Obamas qualifications were dismissed with prejudice and that the dismissal was on
the merits; however this Court allowed Plaintiffs to file an amended pleading setting forth three
state-law torts against the Indiana Election Commission and the Indiana Secretary of State:
negligence; breach of fiduciary duty; and fraud.
9. Plaintiffs filed no appeal of the dismissal of their challenges to the constitutional
qualifications of President Obama with the Court of Appeals. The time for any such appeal has
now passed. Therefore, the decision denying the challenge to the constitutional qualifications of
President Obama is final and Plaintiffs are barred from re-litigating those claims by the doctrines
of res judicata and collateral estoppel. See Adams v. Marion County Office of Family and
Children, 659 N.E.2d 202, 205 (Ind. Ct. App. 1995) (citing Sullivan v. American Casualty Co.,
605 N.E.2d 134, 137 (Ind. 1992)); S. Bend Fedn of Teachers and Natl Ed. Assn-S. Bend, 389
N.E.2d 23, 35 (1979) ([t]he principles of res judicata seek to guard parties against vexatious
and repetitious litigation of issues which have been determined in a judicial or quasi-judicial
proceeding).

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10. On September 4, 2012, Plaintiffs filed a Second Amended Complaint.
3
In direct
contravention of this Courts August 17, 2012 Order, Plaintiffs named additional defendants
(Garn and Shelby), included an additional plaintiff (Ripley), and asserted additional claims (for
example, constitutional claims). Plaintiffs also try to reassert their requests for declaratory relief
and injunctive relief to declare that President Obama is not constitutionally qualified and that the
State of Indiana should be compelled to remove President Obama from the Indiana ballot.
11. To be clear, this Court only permitted Plaintiffs to file a further amended
complaint asserting common-law tort claims against the Indiana Election Commission and the
Indiana Secretary of State for negligence, fraud, and breach of fiduciary duty. Thus, Plaintiffs
did not have permission and violated the Indiana Trial Rules and an Order of this Court when
they filed their Second Amended Complaint.
12. On October 1, 2012, Plaintiffs filed a Motion to Schedule Separate Trial of
Expedition on the Two Issues of Declaratory Relief & Permanent Injunction as to Secretary of
State & Elections Commission Alone. Specifically, Plaintiffs requested an expedited trial
against the Indiana Election Commission and the Indiana Secretary of State on two legal causes
of action: declaratory relief & permanent injunction.
13. This Court finds that an expedited trial on the causes of action for declaratory
judgment and injunction against the Indiana Election Commission and the Indiana Secretary of
State is not warranted for any of the following reasons.
4


3
This Court notes that summons have not been issued for Jefferson Garn or Kate Shelby;
however, Plaintiffs obtained new summons for the Indiana Election Commission and the Indiana
Secretary of State. The docket reflects that those summonses were issued on September 13,
2012.
4
State Defendants have filed a Motion to Dismiss and argument was presented on October
22, 2012. By separate Order, this Court has granted State Defendants Motion to Dismiss. This
Order deals only with those issues regarding Plaintiffs Motion to Schedule Separate Trial of

5

14. First, any request for declaratory or injunctive relief (stemming from the
challenge to the constitutional qualifications of President Obama) was dismissed with prejudice
and on the merits. Since Plaintiffs did not appeal that decision, they are barred by the doctrines
of res judicata and/or collateral estoppel from re-litigating them here. See Adams v. Marion
County Office of Family and Children, 659 N.E.2d 202, 205 (Ind. Ct. App. 1995) (citing Sullivan
v. American Casualty Co., 605 N.E.2d 134, 137 (Ind. 1992)); S. Bend Fedn of Teachers and
Natl Ed. Assn-S. Bend, 389 N.E.2d 23, 35 (1979) ([t]he principles of res judicata seek to
guard parties against vexatious and repetitious litigation of issues which have been determined in
a judicial or quasi-judicial proceeding).
15. Second, this Courts August 17, 2012 Order made clear that Plaintiffs were only
given permission to allege state law tort claims for negligence, fraud, or breach of fiduciary duty.
Plaintiffs have, once again, violated an Order of this Court and such conduct will not be
tolerated. Further, Plaintiffs filed their Second Amended Complaint in violation of Trial Rule
15. See Ind. T.R. 15.
16. Third, injunction is not a cause of action. See, e.g., Noah v. Enesco Corp., 911 F.
Supp. 305, 307 (N.D. Ill. 1995) ([b]y its very name, it is apparent that injunctive relief is a
remedy and [a]n injunction is a remedy, not a cause of action); Washel v. Bryant, 770 N.E.2d
902, 904 (Ind. Ct. App. 2002) ([a]n injunction is an extraordinary equitable remedy) (emphasis
added).
17. Fourth, Plaintiffs Second Amended Complaint does not cite to the Uniform
Declaratory Judgment Act or allege a viable claim for declaratory relief. And, even if Plaintiffs

Expedition on the Two Issues of Declaratory Relief & Permanent Injunction as to Secretary of
State & Elections Commission Alone and State Defendants Motion to Vacate the trial on
October 22, 2012.

6

Second Amended Complaint did articulate a cause of action for declaratory judgment, Indiana
law is clear that the State of Indiana (here, the Indiana Elections Commission and the Indiana
Secretary of State) cannot be the subject of a declaratory judgment claim. See I.C. 34-14-1-13
(State or its agencies not included within the definition of person for purposes of the UDJA);
State v. LaRue, Inc., 154 N.E.2d 708, 712 (Ind. 1958) (trial court does not have jurisdiction over
declaratory judgment action against the State because the State, in its sovereign capacity, is not
subject to suit under the UJDA).
18. Fifth, Plaintiffs did not seek an expedited trial on any of their common law tort
claims and, in any event, such claims do not give rise to claims for declaratory relief or
injunctive relief.
19. Sixth, Plaintiffs claim for injunctive relief has already been denied and, therefore,
the October 22, 2012 trial was not to be a forum to re-litigate that claim.
20. In sum, there is no need for any deviation from normal litigation practice and
there is no need for a Separate Trial of Expedition on the Two Issues of Declaratory Relief &
Permanent Injunction as to Secretary of State & Elections Commission Alone.
21. Further, this Court has granted State Defendants Motion to Dismiss.
Consequently, the Second Amended Complaint has been dismissed with prejudice. Since there
are no claims remaining against State Defendants, there is no need for a trial in this matter.
Since Plaintiffs likely will try and appeal this Courts decision, the Motion to Vacate is granted
and, as a result, all evidence introduced on October 22, 2012 is hereby stricken from the record.

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IT IS THEREFORE ORDERED that State Defendants Motion to Vacate is
GRANTED and all evidence introduced on October 22, 2012 is STRICKEN this ____ day of
__________, 2012.
____________________________________
Honorable S. K. Reid
Judge, MARION SUPERIOR COURT 14

Distribution:

Orly Taitz
29839 Santa Margarita Pkwy, Ste 100
Rancho Santa Margarita, CA 92688

Karl Swihart
460 Austin Drive
Avon, IN 46123

Edward Kesler
3070 S. Leisure Place
West Terre Haute, IN 47885

Frank Weyl
701 N. Brentwood Lane
Muncie, IN 47304

Bob Kern
12547 Crystal Point Drive
Indianapolis, IN 46236

Valeria I. Ripley
14334 Tonkel Road
Fort Wayne, IN 46845

Greg Black
P.O. Box 845
1647 East Main Street, Suite A
Plainfield, IN 46168

8

Jefferson Garn
Kate Shelby
Kenneth L. Joel
Office of the Attorney General
I.G.C.S 5
th
Floor
302 West Washington Street
Indianapolis, IN 46204