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I woke up late, as I had forgotten to set my alarm, and then proceeded to dawdle around reading PMs on The Fogbow until I was even later, so I didn't arrive in town until 12:15, about 15 minutes after I had planned on arriving. Then I somehow managed to get lost on a walk from the parking garage to the City-County building, which happens to be a straight line on the same street. I met GreatGrey at the Subway catty-corner from the City-County Building on 200 E. Washington St., where we had a quick sandwich. Thanks for buying me a sandwich, GG. I cleverly left my iPhone in the restroom of the Subway, so after clearing security, had to go back and retrieve it.
I am glad that Sugar Magnolia was not there to do a fashion report, because my hair looks like it was cut with a buzz saw and I had terrible eyebrow dandruff.
I wore a black Brooks Brothers suit with a dark tie with small pink dots on it, a blue and white striped shirt with French cuffs, a "scales of Justice" tie clip, and unfashionable wire-frame glasses, which are all I have since I sat on my Ermenegildo Zegna black framed glasses.
I incorporate by reference Sugar Magnolia's fashion report on Orly. She wore the same "black lawyer suit" she usually wears, and while her hair did not quite look as if styled by an egg beater this time, it somehow became more disheveled during the hearing, and was kind of a rat's nest by the end of the hearing. Since there was no heavy wind in the courtroom, I assume that somehow, the crazy leaks out and disorders her hair.
At the defense table, from left to right as viewed from behind, were Senior Deputy Attorney General Kenneth L. Joel, and Deputy Attorneys General Kate Shelby and Jefferson Garn. Mr. Joel made no arguments during the hearing, but was representing DAGs Shelby and Garn. I believe his presence was partly for moral support, and partly to emphasize to Judge Reid how many man-hours and taxpayer dollars this frivolous lawsuit is wasting.
As a preliminary matter, I commend the manner in which DAGs Shelby and Garn conducted themselves at the hearing. They displayed professionalism and competence, and unlike many co-counsel, worked together very well and smoothly handed off argument to each other when one was more well-versed than another with a particular aspect of the case.
At the plaintiffs' counsel table, again from left to right, were Orly and Black. Black seemed familiar with both Judge Reid and defense counsel, and they exchanged a few words in a seemingly cordial and collegial manner. There does not seem to be any animosity between Black and defense counsel. It seems to me that Black regularly practices before the Superior Court. Orly adding them as defendants for nothing more than doing their job is the pathetic and despicable act of a vexatious litigant.
Behind counsel table were the plaintiffs. From left to right, there was Kesler, then an individual I did not recognize, who did not identify himself, wearing a green shirt, Weyl, Swihart and Ripley, who I believe is a new plaintiff, in what appeared to be a wheelchair. I may be incorrect about that, and the person in a wheelchair may not have identified herself.
An idiot, who I assume was a birther, was taking photographs with a cell phone camera with some kind of enhanced camera accessory, and otherwise aiming the cell phone camera around. I could see the bailiff looking balefully at him, and when I caught his eye briefly, looked over at the birther and raised a single eyebrow. Shortly afterward, the bailiff went out the back door into Judge Reid's office.
At around 1:30, give or take a minute, the "all rise" announcement let us know Judge Reid was entering the courtroom. She strode to the bench, and after a brief pause, said "Please be seated."
She then began the hearing with a few preliminary matters, including discussing which motions were on the table. They were Orly's "emergency" motion for a preliminary injunction, and the State defendants' motion to reconsider granting Orly's pro hac vice admission. The argument on the papers was fairly simple, that being that the State defendants were never served with these documents as the rules require, and that the initial denial of her status was due to rules violations. Having continued to violate the rules, she should not have been rewarded for this misconduct by admission.
Judge Reid states that the hearing is scheduled for only one hour, because nobody filed a motion asking for more time, as the local rules allow. Considering this, she states she will enforce the one hour limit strictly. At around 1:40, Judge Reid announces that the hearing has now begun. Surprisingly, she expresses no preference about whether the motion for reconsideration of PHV or the injunction is to be heard first, although it seemed fairly obvious to me that the PHV motion should have been heard first.
Orly begins arguing her preliminary injunction, well, actually, starts launching into her usual screech about Connecticut Social Security numbers, identity theft, and so on. She complains that she has had to fly around the country spending her own money (as if presumably she should be allowed to spend other people's money instead). Orly does not get far into her thickly-accented screech before Ms. Shelby objects. Her argument is that since the PHV motion concerns whether Orly is even allowed to participate in the hearing at all in a representational capacity, that motion should be decided first.
Thinking about this, Judge Reid decides that this makes sense, and moves to hear the pro hac vice matter first. Ms. Shelby makes a number of arguments, largely from the State's motion, also noting that while Orly's motion was allegedly filed August 28, the AG's office did not receive the motion, and only became aware of it when it received the court's order granting PHV status. The AG cited Rule 5(B) and Rule 5(C), governing the necessity of service and requirement of a certificate of service. While Orly included a certificate of service, it was not cosigned by Black, local counsel, who was required to do so by the PHV rules.
Then, Ms. Shelby continued with another argument against the Orly's PHV admission, that is, that she violated the professional rules. She contacted two members of the Election Commission, who she knew were represented by counsel, in violation of the ethical rules, including threats of further litigation. The two members were J. Bradley King, a Republican member, and Trent Deckard, a Democratic member.
Essentially, the argument goes, Orly continues breaking the rules and the court should reconsider granting PHV.
At about 1:50, the State concludes its argument, and Orly begins screeching.
Right out of the gate, Orly accuses Ms. Shelby of "complete dishonesty." Judge Reid immediately interrupts her and delivers a series of stinging rebukes, stating that if Orly wants to accuse opposing counsel of dishonesty, she had best have some actual evidence and not a naked accusation. She states the court will not tolerate this kind of conduct, and cites Orly's Rule 11 obligation not to advance such baseless attacks against opposing counsel. Judge asks Orly if she understands what she just said, and Orly meekly says yes.
Orly then launches into another blunder, stating that she never got the opposition to her pro hac vice motion, and that she had 21 days to respond, and again, Judge Reid interrupts her in the middle of the sentence. Judge Reid informs her that she has just completely misstated the law, and that the period would be 15 days. She then states that Orly is clearly not "well-versed" in the Local Rules. She states that this appears to be a big problem with Orly.
Orly's also argues that PHV admission is a purely administrative matter and does not require notice to the other side. Further, there was no misconduct in contacting the defendants, because it was concerning another election matter, the general election, and not this case, which is about the primary ballot.
Orly again complains she never received the opposition, that it was only sent on Monday, when she was in Mississippi, and continues whining on at some length. Judge Reid asks Black if he received a copy of the opposition. Black says yes, he did. Judge Reid explains that this is the point of having local counsel. Orly complains some more, and Judge Reid cuts her off, and informs her that if local counsel had the paper, she did. Period.
After a bit more screeching, Judge Reid cuts her off in the middle of a sentence, saying that she has to move the hearing along, that she asked for a concise argument and didn't get it. She then rules from the bench and denies the motion to reconsider. Provided, however, she continues, that from now on, there will be absolute compliance with Indiana trial rules, the Local Rules and Indiana law.
She states that it is quite evident that Orly is not familiar with the laws, rules and procedures of Indiana, and that she has "grave concerns" about her competence to follow these rules. She then moves onto Black, upbraiding him for failing to cosign papers, and informing him that he has obligations to follow the rules as well, and has not lived up to them. She states both to Orly and Black that this is your warning, and underlines that the time and date are 2:00, September 26.
She then states that in the event of any further rules violations, she will entertain a motion to dismiss, apparently as a sanction. She states that the rules violations to date have been blatant. She states that she insists the defendants comply with the rule, and that she will also insist the plaintiffs do so.
Judge Reid specifically complains of the practice of plaintiffs filing papers without a distribution list or certificates of service, and that in the future, every such document will be rejected. She notes that this is the second warning she has issued on this issue, and will be the last.
At about 2:05, Orly begins her argument for a preliminary injunction. Well, that's what she was supposed to do instead. She never really did. Instead, she basically ranted about her case in chief. On the first occasion she attempted to discuss it, she misstated it. She stated the standard was "hardship," prompting an immediate interruption from Judge Reid, who informed her that she was clearly unfamiliar with the law.
For a change, she cites a few cases, none of which had to do with the standard for preliminary injunctive relief, one involving Judge Susan Wright, who is I believe a judge in Georgia, not Judge Susan Webber Wright of the federal bench. The proposition is that a challenge is not ripe until nomination. She also cites a Judge Lewis in Florida, I believe for the same proposition.
Therefore, there is a very short time window in which a challenge against a candidate is possible.
Orly then argues that state courts do have jurisdiction to strike an ineligible candidate from the ballot, citing the California Supreme Court case Cleaver v. Jordan, in which Eldridge Cleaver, only 34 years old, was clearly ineligible under Article II.
She also states that she should not have to exhaust administratively, and that in the case of Evan Bayh, Bayh skipped the administrative step completely and obtained relief from a court. She cites a number of laws, surprisingly, including Ind. Code § 3-13-2-1, Ind. Code § 3-13-2-9, Ind. Code § 3-13-2-11, and another which is illegible from my notes, reading a section into the record.
I wrote in my notes at this point that Orly has not said a word remotely relevant to the standard for granting a preliminary injunction.
At about 2:14, Orly then begins going off on a tangent about completely irrelevant statutes like the Help America Vote Act ("HAVA") (which creates no private cause of action in any event) and the National Voter Rights Act ("NVRA").
Ms. Shelby objects to arguments about federal laws that have no relevance whatsoever to the case, are not cited in the complaint, and have nothing to do with Indiana ballots. After about two minutes of argument on this subject, Judge Reid overrules the objection. Black asks for more time because Ms. Shelby's "soliloquy" has consumed about two minutes.
Judge Reid notes that there are only about four minutes left, and that Orly has not yet made any argument about the standard for preliminary injunction. Orly finally makes a half-hearted stab at actually discussing the standard for preliminary injunction. She states that there are four factors, the first of which is the likelihood of success. She makes the mind-bogglingly idiotic statement that the chance of success is 100 percent, because obviously Obama is a usurpering usurperator and she's therefore guaranteed to win. His name is "Soebarkah" for crying out loud, based on a bunch of stuff that has never been admitted as evidence.
She then states that she has a witness with her, who turns out to be the notorious Christopher-Earl: Strunk in esse! She complains that he has had to fly out to Indiana twice in this matter and has not been allowed to testify. She has Strunk stand up to identify himself, though he doesn't say anything. He is a disheveled looking fellow with short-cropped salt and pepper hair, wearing a suit a shade or two less blue than navy blue, which has apparently not encountered a dry cleaner since the first Clinton Administration. He wears a blue tie with a pattern of purple rectangles on it, similarly wrinkled as if it has been at the bottom of a laundry hamper for a year.
Now, at 2:20, the ball is in the defendants' court. Mr. Garn argues that the evidence cited by Orly should be stricken, because it is not properly in the record. Judge Reid states that, in fact, no evidence at all has been presented, so there is nothing to strike. Mr. Garn also notes for the record that while he and Ms. Shelby are present as counsel, they have also been frivolously named as defendants by Orly. He states that this is unacceptable conduct that is "beyond the pale."
Judge Reid asks if the amended complaint has any separate complaints and allegations against Mr. Garn and Ms. Shelby. To the extent it does, these matters should be addressed at another hearing. This hearing is almost out of time.
The State continues arguing, with Ms. Shelby and Mr. Garn alternating. I would estimate that Ms. Shelby probably did around 60% or so of the arguing, and may have been acting as first chair, but they were so smooth at swapping off argument that I can't really be sure. The argument is essentially, that the plaintiffs utterly failed to meet their burden of production. Alternate grounds for dismissal, though, are that this is basically exactly the same case as the previous dismissed case, and that Orly is basically just dressing up the dead horse as another case.
During this part of the defendants' argument, Orly is sitting with a hand on her cheek, alternately glaring at whoever is arguing at the time, while occasionally making childish faces or staring, mouth agape, as if trying to catch flies.
I will also note that at numerous times during argument, Orly would try to interrupt, and Judge Reid would shut her down with a curt hand gesture that looked like an angry nun slapping a child's hand. She did not successfully interrupt at any time, but I have not noted the numerous times she did it, since I didn't note exactly when they happened.
At around 2:25, Judge Reid interrupts the State's argument, and basically formulates the State's argument as that Orly is just attempting to do an end-run around the administrative requirements and that this is basically res judicata, although she does not use that phrase directly. Absolutely, agrees Mr. Garn (I believe).
Mr. Garn further argues that there is simply no evidence of record. While Orly randomly attaches all kinds of stuff to motions she files, she has never formally moved to admit them, and simply attaching documents does not effect admission into evidence. Therefore, there being no evidence of record to support the motion, it should be denied.
Further, it's nonjusticiable under 12(b)(1). Indiana voters do not vote for the President directly, but for electors. The eligibility of a sitting President is only subject to decision by Congress, through impeachment or refusing to certify electoral votes. The state only has jurisdiction over state ballot access issues, such as whether the candidate has properly submitted paperwork, has the proper number of petition signatures, and similar things.
At 2:29, the State argues, effectively, that the issue is moot. The Election Commission cannot grant the relief sought. The ballots have already gone out. The Election Commission already made its decision and the dismissal of the previous suit ratified that decision. Effectively, it's a res judicata argument. If not res judicata, collateral estoppel, because the prior dismissed suit decided exactly the same factual issues between the same parties as the current suit. Therefore, the plaintiffs are barred from relitigating these issues. Finally, Orly has no standing. She is a resident of California.
The balance of harms clearly favors the defendants. NVRA and HAVA are completely irrelevant, and Orly either fails to grasp or misstates these laws in any event.
At 2:32, Judge Reid interrupts to ask what remedy a voter has if there is an ineligible Presidential candidate. Mr. Garn states that the remedy is federal.
At this point, there is a hubbub of disgruntled birfers disrupting the proceeding. This does not prompt the court to demand order, but this dies down very quickly.
Mr. Garn continues to argue that any jurisdiction over a Presidential candidate is a federal matter, either through impeachment or otherwise. This is a matter for the electors of the Electoral College or Congress. Kern is angrily shaking his head throughout this.
Orly raises her hand and, again, Judge Reid makes the smackdown gesture at her.
Mr. Garn then concludes, basically reiterating that the State's main argument is that the plaintiffs have utterly failed to meet the burden of proof, and in fact, have produced no evidence whatsoever. If not, though, there are a number of other reasons to deny the motion.
Ms. Shelby then seeks to admit the Election Commission's certification (attached to one of the documents) as an exhibit, marking it as Exhibit A. There is brief confusion as to whether they have enough copies to provide them to opposing counsel, and at first, they believe they do not, and withdraw the request. Having found they did, in fact, have copies, they then renew the attempt to admit the evidence as a business record.
Judge Reid asks if there are any objections, and Orly objects. Judge Reid asks Orly for her argument, based on the rules of evidence, that the document should be be admitted. Orly, for a change making an actual evidentiary objection, argues the document is not certified. Further, the document was obtained by fraud and forgery, and screech.
Judge Reid interrupts, stating that she only wants an evidentiary basis for excluding the document.
The State rebuts briefly, again citing the business record exception.
The State, at some point during this, offers to present a witness to testify as to the certification.
Judge Reid sustains the objection, on the grounds that the document is not certified, there is no affidavit from a relevant person, and therefore, it is not admitted. She states that the current hearing is governed by trial rules, and that even though it is not yet a full trial, it is still an evidentiary hearing.
At 2:40, Judge Reid gives Orly four minutes.
Orly again accuses Ms. Shelby of misstating the law. She cites a case, Fulani v. Hogsett, amazingly, correctly citing it as 917 F.2d 1028 (7th Cir. 1990). She also cites the Strunk affidavit, which I have not seen. She complains that Strunk has had to fly out to Indiana twice and has not been permitted to testify.
Black then makes the rather extraordinary argument that the court should take judicial notice of the Second Amended Complaint and the material attached to it. He cited Rule 201, relating to judicial notice. I honestly could not make head or tail of this argument.
Judge Reid then closes the evidentiary part of the hearing and moves on to a ruling, noting that there is zero evidence of record, and that all Orly has presented is arguments. She notes that the arguments were "valid," which I find somewhat perturbing.
Orly stands up again and begins to launch into something, but Judge Reid says "Too late, Ms. Taitz." Then, as if speaking to a bad dog, "SIT!"
Judge Reid continues that it is very clear that the plaintiffs have totally failed to meet their burden, and makes a variety of other arguments. GG believed during this part of the hearing that it seemed as if she actually wanted to grant the motion. Again, at another point, Orly stood up and was told "Please be seated."
Judge Reid again commented that the plaintiffs had utterly, totally failed to meet their burden, failing to present any evidence at all. It is clear, Judge Reid continued, that Orly is completely unfamiliar with any of the rules, procedures, or laws of Indiana, and that if she were well-versed in these, she would have done a better job representing the plaintiffs. She notes that plaintiffs' counsel will have the obligation to write the order, so they had "better take good notes." I note that neither Orly nor Black appeared to be taking any notes at all. I suppose I might have missed it, paying more attention to Judge Reid.
Judge Reid continued, stating that the court's hands were totally tied, as there was no evidence whatsoever.
The ruling continued in this vein for some time, largely reiterating these points and castigating Orly's failure to present any evidence or otherwise comply with the rules.
She then stated the standard for granting a preliminary injunction was based on likelihood of success on the merits as well as irreparable harm to the moving party. While Orly may have presented "valid arguments," she presented no evidence.
She then reiterated the reasoning for dismissing the previous case, which is that plaintiffs utterly failed to follow the rules, such as by failing to file the administrative record.
The court must apply the law. Judge Reid took an oath to uphold the law.
Now the case has come "full circle," and is essentially the same as the last case in any event.
Orly, specifically, probably does not have standing, since she is not an Indiana voter and suffers no harm from who is on an Indiana ballot, but since there are other plaintiffs who do have standing, she won't issue a "definitive ruling" on that subject yet.
She then orders Orly and Black to write the order denying the injunction within 10 days.
She again warns that there must in the future be absolute compliance with all rules, or she will entertain a motion to dismiss.
Mr. Garn concludes briefly with a summation, during which he states that the evidence was not persuasive. Judge Reid interrupts to point out that, in fact, there was no evidence.
Orly then states she has a few "short motions." She demands an expedited trial date, and states that she has a new claim relating to the general election, as the Election Commission has denied the plaintiffs' challenge to the general election.
Judge Reid abruptly interrupts her and curtly informs her that every single thing she has just said and question she has asked is covered by a rule, and that she should consult the rules. If she doesn't know them, she can confer with Black, who is local counsel and who has practiced before the court for a long time and knows the rules. She basically states that Orly is wasting the time of the court with matters that she should already know how to handle.
She points out that she doesn't just pull a trial date out of a hat, but that this occurs only after a case management order and the conclusion of discovery, and upon agreement by the parties.
"So sorry to tell you," Reid continues, but basically, Orly doesn't know the rules and is asking for the impossible.
Further, Orly is not to contact anyone on the other side who has counsel in this case, but is to go only through counsel. Judge Reid asks Orly "Do you understand?" Orly meekly says she does. Judge Reid says this misconduct is "serious stuff" and could subject her to disciplinary action. She informs Orly that the Supreme Court of Indiana, because of her admission pro hac vice, now has jurisdiction over her and can discipline her. Judge Reid says "I'm sure I sound harsh, but" basically, this is for Orly's own good.
Judge Reid excuses Mr. Black, who has to be at another hearing.
Almost immediately thereafter, Judge Reid closes the hearing. GG and I do not stick around to eavesdrop on Orly.
I head back to the parking garage, where I once again manage to get lost and find myself 20 minutes later back at the City-County Building. On a do-over, I finally walk by the right parking garage, and realize that the route was actually a straight line all along. So I managed to get lost twice walking in a straight line all on the same street.
Then I drove home and wrote this report.
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L—d! said my mother, what is all this story about? — A Cock and a Bull, said Yorick — And one of the best of its kind I ever heard. -- Sterne
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