Hon. Rick Perry v Judd, et al. (ED VA)

realist · **Joined:** Fri Jan 23, 2009 1:33 pm **Posts:** 23597

I decided to give this one it's own thread, even though the case will be short-lived, one way or the other.

Docket is as follows:

Quote:

U.S. District Court
Eastern District of Virginia - (Richmond)
CIVIL DOCKET FOR CASE #: 3:11-cv-00856-JAG

Perry v. Judd et al
Assigned to: District Judge John A. Gibney, Jr
Cause: 28:1331 Fed. Question: Declaratory Judgment
Date Filed: 12/27/2011
Jury Demand: None
Nature of Suit: 440 Civil Rights: Other
Jurisdiction: Federal Question

Plaintiff

The Honorable Rick Perry
represented by
Hugh McCoy Fain , III
Spotts Fain PC
411 E Franklin St
PO Box 1555
Richmond, VA 23218-1555
(804) 788-1190
Email: hfain@spottsfain.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Edward Everett Bagnell , Jr
Spotts Fain PC
411 E Franklin St
Suite 600
Richmond, VA 23219
(804) 697-2000
Fax: (804) 697-2177
Email: ebagnell@spottsfain.com
ATTORNEY TO BE NOTICED

James Edwin Trainor , III
Beirne Maynard & Parsons LLP
1300 Post Oak Blvd
25th Fl
Houston, TX 77056
**NA**
(512) 623-6700
Fax: (713) 960-1527
Email: ttrainor@bmpllp.com
PRO HAC VICE
ATTORNEY TO BE NOTICED

Joseph Michael Nixon
Beirne Maynard & Parsons LLP
1300 Post Oak Blvd
25th Fl
Houston, TX 77056
**NA**
(713) 871-8609
Fax: (713) 960-1527
Email: jnixon@bmpllp.com
PRO HAC VICE
ATTORNEY TO BE NOTICED

Martin Douglas Beirne
Beirne Maynard & Parsons LLP
1300 Post Oak Blvd
25th Fl
Houston, TX 77056
**NA**
(713) 960-7301
Fax: (713) 963-5686
Email: mbeirne@bmpllp.com
PRO HAC VICE
ATTORNEY TO BE NOTICED

Maurice Francis Mullins
Spotts Fain PC
411 E Franklin St
Suite 600
PO Box 1555
Richmond, VA 23218-1555
(804) 697-2069
Fax: (804) 697-2169
Email: cmullins@spottsfain.com
ATTORNEY TO BE NOTICED

Defendant

Charles Judd
member of the Virginia State Board of Elections, in his official capacity
represented by
Earle Duncan Getchell , Jr.
Office of the Attorney General (Richmond)
900 E Main St
Richmond, VA 23219
(804) 786-2436
Fax: (804) 371-0200
Email: dgetchell@oag.state.va.us
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Joshua Noah Lief
Virginia International Raceway
1245 Pinetree Rd
Alton, VA 24520
434-822-7700
Fax: 434-822-8033
ATTORNEY TO BE NOTICED

Wesley Glenn Russell , Jr.
Office of the Attorney General (Richmond)
900 E Main St
Richmond, VA 23219
(804) 786-2071
Fax: (804) 786-1991
Email: wrussell@oag.state.va.us
ATTORNEY TO BE NOTICED

Defendant

Kimberly Bowers
member of the Virginia State Board of Elections, in her official capacity
represented by
Earle Duncan Getchell , Jr.
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Joshua Noah Lief
(See above for address)
ATTORNEY TO BE NOTICED

Wesley Glenn Russell , Jr.
(See above for address)
ATTORNEY TO BE NOTICED

Defendant

Don Palmer
member of the Virginia State Board of Elections, in his official capacity
represented by
Earle Duncan Getchell , Jr.
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Joshua Noah Lief
(See above for address)
ATTORNEY TO BE NOTICED

Wesley Glenn Russell , Jr.
(See above for address)
ATTORNEY TO BE NOTICED

Defendant

Pat Mullins
in his official capacity as Chairman of the Republican Party of Virginia
represented by
Lee Elton Goodman
LeClair Ryan PC (DC)
1701 Pennsylvania Ave NW
Suite 1045
Washington, DC 20006
(202) 659-4140
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Date Filed # Docket Text
12/27/2011 1[RECAP] COMPLAINT against Kimberly Bowers, Charles Judd, Pat Mullins, Don Palmer (Filing fee $350.00 receipt number 34683015426) filed by The Honorable Rick Perry (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Civil Cover Sheet, # 8 Receipt)(lsal) (Entered: 12/28/2011)

12/28/2011 2 Summons Issued as to Kimberly Bowers, Charles Judd, Pat Mullins, Don Palmer; Attorney Fain telephoned by Clerk's Office to pick up summons for service; (lsal) (Entered: 12/28/2011)

12/28/2011 3 NOTICE of Appearance by Edward Everett Bagnell, Jr on behalf of Rick Perry (Bagnell, Edward) (Entered: 12/28/2011)

12/28/2011 4 Motion to appear Pro Hac Vice by Joseph Michael Nixon and Certification of Local Counsel Edward E. Bagnell, Jr. Filing fee $ 75, receipt number 0422-2842841. by Rick Perry. (Bagnell, Edward) (Entered: 12/28/2011)

12/28/2011 5 Motion to appear Pro Hac Vice by Martin Douglas Beirne and Certification of Local Counsel Edward E. Bagnell, Jr. Filing fee $ 75, receipt number 0422-2842852. by Rick Perry. (Bagnell, Edward) (Entered: 12/28/2011)

12/28/2011 6 NOTICE of Appearance by Maurice Francis Mullins on behalf of Rick Perry (Mullins, Maurice) (Entered: 12/28/2011)

12/28/2011 7 Emergency MOTION for Temporary Restraining Order and Preliminary Injunction by Rick Perry. (Mullins, Maurice) (Entered: 12/28/2011)

12/28/2011 8[RECAP] Memorandum in Support re 7 Emergency MOTION for Temporary Restraining Order and Preliminary Injunction filed by Rick Perry. (Mullins, Maurice) (Entered: 12/28/2011)

12/28/2011 Set Hearing: Hearing set for 12/29/2011 at 10:00 AM in Richmond Courtroom 6000 before District Judge John A. Gibney Jr. (wtuc) (Entered: 12/28/2011)

12/29/2011 9 Motion to appear Pro Hac Vice by James Edwin Trainor III and Certification of Local Counsel Maurice Mullins Filing fee $ 75, receipt number 0422-2843735. by Rick Perry. (Mullins, Maurice) (Entered: 12/29/2011)

12/29/2011 10 ORDER granting 4 Motion for Pro hac vice Appointed Joseph Michael Nixon for Rick Perry. Signed by District Judge John A. Gibney, Jr. on 12/29/11. (wtuc) (Entered: 12/29/2011)

12/29/2011 11 ORDER granting 5 Motion for Pro hac vice Appointed Martin Douglas Beirne for Rick Perry. Signed by District Judge John A. Gibney, Jr on 12/29/11. (wtuc) (Entered: 12/29/2011)

12/29/2011 12 ORDER granting 9 Motion for Pro hac vice Appointed James Edwin Trainor, III for Rick Perry. Signed by District Judge John A. Gibney, Jr. on 12/29/11. (wtuc) (Entered: 12/29/2011)

12/29/2011 13[RECAP] ORDER that status and scheduling conference held on December 29, 2011 sets the schedule in this case (See Order for details and dates); Intervenors shall be governed by the same briefing schedule as parties in this case, except that they shall file answers and witness lists by January 6, 2012; Signed by District Judge John A. Gibney, Jr on 12/29/11 (lsal) (Entered: 12/29/2011)

Opening Briefs due January 6, 2012.
Responsive Briefs due January 11, 2012.
Hearing on Motion for Preliminary Injunction January 13, 2012.

A Legal Lohengrin · **Joined:** Tue Oct 26, 2010 9:56 pm **Posts:** 9410

realist wrote:

I decided to give this one it's own thread, even though the case will be short-lived, one way or the other.

Docket is as follows:

Quote:

12/28/2011 8[RECAP] Memorandum in Support re 7 Emergency MOTION for Temporary Restraining Order and Preliminary Injunction filed by Rick Perry. (Mullins, Maurice) (Entered: 12/28/2011)

This memo could be better. There's a string cite at the beginning of page 6 that starts with a citation to an "S. Ct." case from 2008 (that I discussed somewhere else recently), although it now has a "U.S." citation. The other cases in the string cite (including Burdick v. Takushi that I discussed earlier in the thread) all have "U.S." citations. This means whoever did this brief just cut and pasted the string cite and then didn't bother checking to see whether a three year old case might have a "U.S." citation now. While a minor error, it's annoying and sloppy.

In a more substantively questionable move, the case cites the Buckley v. ACLF case discussed earlier in this thread for the proposition that "petition" circulators cannot be required to be residents of the state in which they are circulating a petition. The memorandum, however, does not mention that the petition circulators at question in the ACLF case were circulating a petition for a state voter initiative, not a "petition" for inclusion on a primary ballot. While the state interests in regulating both may be similar, I don't see that they are necessarily analytically identical. I think that the first impression of anyone reading this memorandum, gathering the core case citations and reading them would be that counsel was bordering on being disingenuous with this description of the case.

The difference between collecting signatures for a primary ballot and for collecting signatures for a voter initiative petition are numerous. The District Court's reasoning in the Colorado case was largely premised on the notion that limiting the number of eligible petition circulators unnecessarily limited the size of the audience to which the proponents could speak. However, a primary petition is, by its very definition, self-limited to potential voters in that primary. Virginia does have an open primary, but not the non-partisan blanket primary of some other states such as California or Alaska. Therefore, at least to some extent, the target audience is any potential voter, but there is no way this is analytically identical.

It also merely conclusorily alleges that the burdens imposed by this statute are "severe," the necessity for imposing a heightened standard of review, without really making a very good argument as to why it is "severe." Considering the case wins or loses based on the issue of what constitutes a "severe" burden, since the statute survives anything but a heightened standard of review. The memo also simply assumes that the proper level of scrutiny is strict scrutiny. While the case law often uses language that tracks that of other strict scrutiny cases, in my opinion, the Anderson v. Celebrezze standard is more functionally akin to a balancing test of sorts. That technical issue aside, though, I don't think this memo does a great job establishing the proper standard of review.

For that matter, further, the memo doesn't even mention Celebrezze. Considering that Celebrezze explicitly describes a balancing test, this is an omission.

Quote:

Constitutional challenges to specific provisions of a State's election laws therefore cannot be resolved by any "litmuspaper test" that will separate valid from invalid restrictions. Instead, a court must resolve such a challenge by an analytical process that parallels its work in ordinary litigation. It must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.

Anderson v. Celebrezze, 460 U.S. 780, 789 (1983).

Finally, in a couple places, the memo just makes dumb mistakes. It calls the "ACLF" case "ACFL" at one point, and in another, complains of the "shear number" (please) of signatures necessary.

It also does not answer the most obvious objection to Perry's suit, that being "If this statute is so onerous, why have no other candidates in Perry's situation been unable to comply with it?" There is also a question, given the late date at which both Perry and Gingrich started collecting signatures, of whether they are even entitled to equitable relief or have waived it through laches. If this task were so impossible, so insurmountable, didn't they have some obligation to figure this out sooner than now?

The New York case analyzed by the memo is a good case, but the memo again does not adequately analyze it and compare New York's system to Virginia, so as to establish that the numbers of signatures required by the Virginia statute create the same severe burden in Virginia as the New York statute inflicted on New York voters. I'm also not, after reading the shaky assertions made in other parts of the memo, willing to accept on faith anything this memo says. We're left to look up the size of Virginia Congressional districts and how many people are in them to figure out what percentage of eligible signers are required to get 400 signatures in each district. Why? That's supposed to be counsel's job.

The memo also fails critically in another respect. It fails to make any adequate argument in favor of the rights of third parties such as voters and the party itself in asserting their own associational rights. Considering the weakness of the arguments in favor of Perry's entitlement to equitable relief on his own behalf, since his problem is largely of his own making, showing injustice to the voters of Virginia is really necessary to shore up the argument.

However, after the first five or six pages of this, if I had a stack of papers including everyone's briefs, I would go over to the Commonwealth's brief and read it first in the hopes it would be more helpful. Whoever wrote this pretty much phoned it in.

realist · **Joined:** Fri Jan 23, 2009 1:33 pm **Posts:** 23597

Thanks, Loh. That's very helpful.

:-bd

June bug · **Posted:** Thu Dec 29, 2011 5:31 pm

realist wrote:

Thanks, Loh. That's very helpful.

:-bd

What realist said. ;;)

A Legal Lohengrin · **Joined:** Tue Oct 26, 2010 9:56 pm **Posts:** 9410

Rick Perry: "Save me, evil activist liberal judges!"

Quote:

Rick Perry appears to be riding into the sunset, but he is not leaving the stage without exercising a true politician's prerogative of cheerfully sacrificing any principle, no matter how strongly stated, when it becomes inconvenient.

If there's one thing we know about Perry -- one dry-gulch bedrock to his cowboy constitutional philosophy -- it's that he just hates them activist judges and all the perverted things they have done to the Fourteenth Amendment. "[T]he Fourteenth Amendment is abused by the Court to carry out whatever policy choices it wants to make in the form of judicial activism," he lamented in his book, Fed Up! Our Fight to Save America from Washington. In particular, courts "should be particularly protective of our founding structure -- a unique structure of dual sovereigns that placed power as close to the people as was practical so that the people could govern themselves."

Surely that would mean that the people of Virginia should have a right to determine what level of support a candidate needs to be a serious presidential candidate, deserving of a place on its primary ballot? Or should that decision be made by "unelected judges"?

Well, actually, unelected judges are suddenly looking right good to Gov. Perry.

neonzx · **Joined:** Tue Mar 10, 2009 9:27 am **Posts:** 4216

Just in:

Gingrich is joining the lawsuit. So it's now Perry, Huntsman, Bachmann, Santorum, and Gingrich as plaintiffs.

-xx

Sterngard Friegen · **Posted:** Sat Dec 31, 2011 5:07 pm

From the last document filed on PACER (I have it if anyone wants it), Perry's lawyers have advised all the other candidates' legal representatives of the pendency of the action and of deadlines to intervene. But no intervention complaints/motions have yet been filed.

A Legal Lohengrin · **Joined:** Tue Oct 26, 2010 9:56 pm **Posts:** 9410

Sterngard Friegen wrote:

From the last document filed on PACER (I have it if anyone wants it), Perry's lawyers have advised all the other candidates' legal representatives of the pendency of the action and of deadlines to intervene. But no intervention complaints/motions have yet been filed.

The case summary also still lists only Rick Perry as a plaintiff. The other candidates, at least some of whom apparently never even bothered to try to get on the Virginia primary ballot, may not even have standing. Not having even attempted to get on the ballot, they obviously can't be put on the ballot now. The time to challenge the task as so daunting as to present a constitutional issue was before the deadline.

Perry and Gingrich at least have the issue that they were arguably surprised by being excluded from the ballot.

neonzx · **Joined:** Tue Mar 10, 2009 9:27 am **Posts:** 4216

Sterngard Friegen wrote:

From the last document filed on PACER (I have it if anyone wants it), Perry's lawyers have advised all the other candidates' legal representatives of the pendency of the action and of deadlines to intervene. But no intervention complaints/motions have yet been filed.

I thought maybe I had misheard on MSNBC, but nope:

http://www.washingtonpost.com/blogs/virginia-politics/post/perry-challenge-to-virginia-primary-ballot-rules-joined-by-four-more-candidates/2011/12/31/gIQAC0brSP_blog.html

Quote:

Lawyers for Bachmann (R-Minn.), Huntsman, Gingrich and Santorum sent a letter to the Virginia State Board of Elections Saturday informing the board that they will be filing a joint motion too. The campaigns asked the state board either to go ahead and add them to the state ballot or to take no action until a judge has had a chance to consider the case on Jan. 13.

Wow, that's some arrogance there, especially for the candidates that didn't even try to meet the burden.

MaineSkeptic · **Joined:** Thu Mar 19, 2009 2:48 pm **Posts:** 5295

CNN: Candidates join Perry's Virginia lawsuit

Quote:

Four candidates left off the Virginia Republican primary ballot joined Rick Perry Saturday in suing the state's board of elections over laws they say are "unconstitutional."

Minnesota Rep. Michele Bachmann, former House Speaker Newt Gingrich, former Utah Gov. Jon Huntsman and former Pennsylvania Sen. Rick Santorum joined the lawsuit, originally filed Tuesday, challenging provisions that determine who can appear on the primary ballot.

More at .... http://politicalticker.blogs.cnn.com/20 ... a-lawsuit/

Joseph Robidoux III · **Posted:** Sat Dec 31, 2011 8:56 pm

Does anyone here wish to offer their guess what the candidates' supporters' excuse will be if/when this lawsuit is lost?

Sequoia32 · **Posted:** Sat Dec 31, 2011 9:06 pm

neonzx wrote:

I thought maybe I had misheard on MSNBC, but nope:

http://www.washingtonpost.com/blogs/virginia-politics/post/perry-challenge-to-virginia-primary-ballot-rules-joined-by-four-more-candidates/2011/12/31/gIQAC0brSP_blog.html

The one comment there says it all.

Quote:

thebobbob wrote:

First qualification for being the President of The United States. Fill out the application for thr primary in the states need to run in. How many companies would hire a job candidate who can't follow instructions and send in an application properly??

They're kidding, right? What an incompetent bunch. The last time Republicans ran the place they started two wars and destroyed the economy. Since they've taken back the House, all they've done is .... nothing.

Fear, Hatred, Distortion, Distraction and Division is all Republicans have to offer America.

A Legal Lohengrin · **Joined:** Tue Oct 26, 2010 9:56 pm **Posts:** 9410

Joseph Robidoux III wrote:

Does anyone here wish to offer their guess what the candidates' supporters' excuse will be if/when this lawsuit is lost?

I'd definitely go for "if" rather than "when." I find Virginia's laws highly questionable. As a matter of public policy, I'd never personally endorse laws like those of Virginia. However, SCOTUS has upheld very restrictive ballot access laws in the past. Somehow, when Republicans are involved, however, the courts in Republican states have suddenly discovered the spirit of judicial activism, as Perry is requesting.

Joseph Robidoux III · **Posted:** Sat Dec 31, 2011 11:40 pm

A Legal Lohengrin wrote:

I'd definitely go for "if" rather than "when." I find Virginia's laws highly questionable. As a matter of public policy, I'd never personally endorse laws like those of Virginia. However, SCOTUS has upheld very restrictive ballot access laws in the past. Somehow, when Republicans are involved, however, the courts in Republican states have suddenly discovered the spirit of judicial activism, as Perry is requesting.

Loh, I respect your opinion why the court should rule in favor of the plaintiffs. You made a very good argument here as well as in the "Rick Perry 20:12" thread.

My layman's opinion remains that I don't see a problem which requires a court to remedy. Multiple candidates were on the 2008 Virginia Republican primary ballot. Hell, even Alan Keyes and Dennis Kucinich have been on Virginia presidential preference ballots in prior years. If those clowns can fulfill the state requirements for ballot access, I have no sympathy for the current version.

Additionally, if Virginia Republicans believed there was a problem which the Virginia legislature refused to consider or act upon (see Missouri 2012 GOP presidential preference election), the Virginia GOP could have decided on their own to institute a caucus system. The state legislature and governor would have been powerless to interfere.

I believe the Virginia state GOP party could have also decided to have a presidential preference election that they pay for, then written all the rules as they wish (an option the Missouri Republican Party had available to them). The Missouri Republican Party retains the right to determine which method will determine the party's delegates to the national convention (Missouri will have a presidential preference election in February and a caucus system beginning in March).

TollandRCR · **Posted:** Sun Jan 01, 2012 12:42 am

By the time the Virginia primary rolls around, some of these "candidates" will have thrown in the towel. Iowa alone could expel Bachman from the contest if she remains in the low single digits. The Des Moines Register Iowa Poll has a record of accuracy, including its final poll's report of a startling push for Obama among new caucus participants. However, the poll's report of a surge for Santorum in the last two days, yielding the possibility of a second-place finish, may fail as Iowa caucus goers look more closely at that candidate. Gingrich and Perry could be out by the time of the Virginia primary if they do badly in South Carolina. A Romney-Paul contest might be the result even if a court permits losers who did not even seek to get on the ballot to skip over that rule.

Romney leads Paul in Des Moines Register Iowa Poll; Santorum surges

Adrianinflorida · **Posted:** Sun Jan 01, 2012 6:09 am

I saw a snippet last night that Consigliere Cuccinelli of VA was going to do what he needed to 'solve this problem'. As an aside, I think its wonderfully ironic how the freeptards are blaming this on Democrat dirty tricks, when it's their party leadership that enacted the stricter rules. This has nothing to do with Dem candidates or Dem sponsored laws. Heheheh

A Legal Lohengrin · **Joined:** Tue Oct 26, 2010 9:56 pm **Posts:** 9410

Joseph Robidoux III wrote:

A Legal Lohengrin wrote:

I'd definitely go for "if" rather than "when." I find Virginia's laws highly questionable. As a matter of public policy, I'd never personally endorse laws like those of Virginia. However, SCOTUS has upheld very restrictive ballot access laws in the past. Somehow, when Republicans are involved, however, the courts in Republican states have suddenly discovered the spirit of judicial activism, as Perry is requesting.

Loh, I respect your opinion why the court should rule in favor of the plaintiffs. You made a very good argument here as well as in the "Rick Perry 20:12" thread.

Heh. I just want to clarify that I was just discussing why I thought a court might rule in favor of the plaintiffs. If I've expressed an opinion that a court should rule in favor of the plaintiffs (and I say "plaintiffs" assuming Gingreich has actually joined the case), I might have been overstating my case. I personally don't like Virginia's overly restrictive ballot access laws for Presidential primaries. I'm not, however, convinced that they're actually unconstitutional.

Falsehoods unchallenged only fester and grow.

Hon. Rick Perry v Judd, et al. (ED VA)

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