The Florida Democratic Party has filed a Motion to Dismiss the case of Collette v. Obama. This lawsuit is the first exercise of Collette’s “Do it Yourself Ballot Challenge Kit.”
I discussed this case in my two articles:
Jerry Collette was kind enough to send a link to a copy of the Motion to Dismiss, embedded below. He, not being an attorney, seems to have some basic problems getting started with the suit, issues with service and venue.
Collette has a Draft Amended Complaint on the web, but it doesn’t appear to answer the technical issues raised in the Motion to Dismiss. I think this case will be over very quickly.
I sent Jerry this critique of the Draft Amended Complaint:
You say (4) "Plaintiff does not know the true names and capacities of the defendants sued as DOES 1 through 1000, inclusive, and will amend this complaint to allege their true names and capacities when ascertained." This is your amended complaint. You don’t get another shot. Unless you name some names, and serve those people, your case will be dismissed for lack of service.
You say (7) "Plaintiff has standing under Fla. Const. art. I, § 21 (2011)." However, based on the Florida cases I’ve read, you are exactly the kind of person who does not have standing. Your alleged harm (to the extent that you even allege harm) is generalized and not particular.
You say (8) "Causes of action alleged in this complaint accrued in, among other places, Pasco County. Accordingly, under Fla. Stat. § 47.011 (2011), Pasco County is a proper venue for this case." The new section of law that you cite still requires a defendant or a cause of action in Pasco County and I don’t see this in the complaint.
You say (10) "As set forth below, an actual, present, and justiciable controversy exists between the parties in that…" However, what you describe following is not an actual controversy, but a difference of opinion. An actual controversy is not a disagreement, but something in which one party is damaged by another. The statement of the controversy is exactly the kind of disagreement that is not justiciable. The way this paragraph is written, you are essentially admitting that your complaint is not justiciable.
Have you served Barack Obama? If not, the case will be dismissed as regards to him. (Colette informs me that he served Ashley Walker, FL Director of Obama for America.)
You say (18) "Neither the U.S. Constitution, nor any federal statute enacted thereunder, provide for a procedure to assure that Presidents of the United States and candidates for said office meet the Eligibility Requirements." See my article: How we insure our Presidents are eligible.
You say (19) "Therefore, according to the Tenth Amendment of the U.S. Constitution, the states and the people retain the right to make such assurances." However, the Constitution gives the Congress the duty to deal with a President-elect who does not qualify. Therefore, the people do not retain this right except as to their choice in voting.
You say (21) "Nonetheless, nothing prevents this court from adjudicating the issues presented and granting the relief requested in this case." This is a conclusion of law, and an unsupported one. It will be ignored when considering the MTD.
You say (37) "Plaintiff asserts that, even if defendant Obama is a native born citizen, he does not meet the Eligibility Requirement of a natural born citizen due to his being born of foreign paternity." This is a question of law, and so far 5 courts considering Obama challenges have rejected this assertion.
Points 38-58 are irrelevant to the case and do not belong in it.
You say (54) "This is an action for declaratory judgment, injunctive relief, and money damages." How can you claim money damages if you don’t allege particular and individual damage? This goes to the lack of standing because your alleged injury is diffuse.
You say (55) "The Eligibility Requirements, by implication, give plaintiff a constitutional right to not be governed by officials who fail to meet them." However, you are not alleging that the plaintiffs are barring you from having an eligible President. You are alleging that the plaintiffs are allowing an ineligible candidate to appear on the ballot. The Constitution (Amendment XX) clearly assumes that the voters can vote for an unqualified candidate. The Constitution itself makes it clear that you have no right to be protected from an ineligible candidate on the ballot since an unqualified candidate can be elected. If you believe that an ineligible candidate has been elected, then the proper venue for your complaint would be with Congress.
You say (64) "Defendants owed a duty to plaintiff to ascertain that defendant Obama meets the Eligibility Requirements." However, you cite no statute that places an obligation on any defendant you name to ascertain eligibility. Insofar as you rely solely on the Constitution, that argument fails because the Constitution does not require candidates for President to be eligible, and in fact it foresees the case when one is not eligible. Where there is no duty, there is no negligence.
It appears in general that your lawsuit is an attempt to win an argument about whether Obama is eligible or not through a fabricated controversy, non-existent duties, and generalized, non-specific damages. It will never fly.