Case 3:12-cv-00280-HTW-LRA Document 30

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION DR. ORLY TAITZ, ESQ., BRIAN FEDORKA, LAURIE ROTH, LEAH LAX, and TOM MacLERAN VS. DEMOCRAT PARTY OF MISSISSIPPI, SECRETARY OF STATE MISSISSIPPI, BARAK HUSSEIN OBAMA, OBAMA FOR AMERICA, NANCI PELOSI, DR. ALVIN ONAKA, LORETTA FUDDY, MICHAEL ASTRUE, JOHN DOES, JOHN DOES 1-100

The undersigned counsel for the Mississippi Democratic Party, through its governing entity, the Mississippi Democratic Party Executive Committee (MDEC), files this Response in Opposition to Plaintiff Orly Taitzs (Taitz) Motion for Sanctions [Docket No. 25] and states: 1. In her latest motion (which the Court has ordered be sealed due to her violation of Fed. R. Civ. Proc. 5.2), Taitz seeks sanctions against MDEC Counsel based on her claim that counsel asked the Court to take judicial notice of President Obamas Long Form Birth Certificate (LFBC), which was included as an exhibit to the MDECs Motion for Judgment on the Pleadings (MDEC Motion) [Docket No. 15] See Motion for Sanctions at 3.1 Taitz asserts this is sanctionable based on her notion that the LFBC is a

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forgery.

Taitz had already included a copy of the LFBC albeit one that was difficult to read - as an exhibit to an exhibit to her First Amended Complaint. See, e.g., Docket No. 1-1 at 69. To the extent Taitz is somehow claiming that she can attach the LFBC as exhibits to her pleadings but other parties are precluded from doing so, her argument is beyond specious and should be soundly rejected.

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COUNSEL FOR MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEES RESPONSE IN OPPOSITION TO PLAINTIFF TAITZS MOTION FOR SANCTIONS

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PLAINTIFFS

CIVIL ACTION NO. 3:12-cv-280 HTW-LRA DEFENDANTS

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2. As even a cursory reading of MDEC Motion and First Amended Memorandum in Support of Motion for Judgment on the Pleadings (MDEC Memo) [Docket No. 18] clearly demonstrates, Taitzs Motion is factually and legally frivolous and wholly without merit. In order to impose sanctions, there must be some sanctionable conduct. See, e.g., Roadway Express, Inc. v. Piper, 447 U.S. 752, 765-767 (1980) (bad faith conduct by counsel is required before sanctions may be imposed). No such conduct exists here.

The MDEC did not ask the Court to take judicial notice of President Obamas Long Form Birth Certificate.

3. The fallacy of Taitzs claim that MDEC Counsel asked the court to take judicial notice is clear

can see, MDEC Counsel did not ask the Court to take judicial notice of President Obamas Long Form Birth Certificate (LFBC) in the MDEC Motion for Judgment on the Pleadings. See MDEC Motion at 11. Nor did MDEC Counsel make any such request in the MDECs memorandum filed in support of the motion. See MDEC Memo at 18-20.2

4. In fact, in the course of setting forth why the First Amended Complaint (FAC) [Docket No. 1-1] must be dismissed, MDEC Counsel cited to applicable authority (MDEC Memo at 18) which Taitzs Motion for Sanctions has utterly failed to even address, much less distinguish demonstrating that irrespective of the contents of President Obamas publicly released birth records, the Court may take judicial notice of several statements made by the Hawaii Department of Health verifying that Obama

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was born in Hawaii, regardless of the existence or contents of the LFBC. See MDEC Memo at 18. In

other words, not only did MDEC Counsel not ask the Court to take judicial notice of President Obamas LFBCbut MDEC Counsel expressly stated that the LFBC itself was irrelevant to the Courts

The MDEC also made no such request in the original memorandum filed in support of its motion [Docket No. 16].

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from a basic review of the pleadings at issue. Simply put, and as anyone who took care to read the motion

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consideration of its motion. And even if the LFBC would be relevant (which, as MDEC Counsel had just been explained, it is not), the Court could take judicial notice of other statements made by the Hawaii Department of Health regarding the document. See id. at 19-20. In short, Taitzs claim that MDEC Counsel asked this Court to take judicial notice of the LFBC is simply wrong and, as such, her Motion for Sanctions should be DENIED.

The MDEC had no obligation to accept the incompetent, incorrect, and already discredited information that Taitz provided to it.

5. Taitz claims that the alleged request for judicial notice of the LFBC which MDEC Counsel did not, in fact, make were knowing and malicious because, at the time they attached a copy of the

forgeries. See Motion for Sanctions at 3. Specifically, Taitz claims that counsel had the following testimony in their possession:

2. Transcript of the Public announcement and press conference by Sheriff Joe Arpaio of Maricopa County, Arizona and investigator Zullo, advising the public that the long form birth certificate in question is a forgery (Exhibit 3 First Amended Complaint, Transcript of Sheriff Joe Arpaio). [Arpaio Press Conference Materials.]

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Taitz Motion at 3-4.3

While not referenced in her Motion for Sanctions, Taitz filed with her motion an Orly Taitz for U.S. Senate presents DVD, seeking donations to her current political campaign for the U.S. Senate in the State of California. See Docket No. 26. Given that (a) the transcript of the hearing reflected in the DVD is already included in the record (see Docket No. 1-1 at 112-157), and

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3. Sworn testimony by a senior deportation officer John Sampson, attesting to the fact that the document in question is a forgery (Exhibit 4 (First Amended Complaint, affidavit of senior Deportation officer john Sampson). [Sampson Affidavit.] 4. Sworn testimony by a scanning and copying machines expert Douglas Vogt, attesting to the fact that the document in question is a forgery. (Exhibit 5) (First Amended Complaint Affidavit of Scanning and Copying machines expert Douglas Vogt). [Vogt Affidavit.]

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1. Sworn testimony for [sic] a computer expert Felicito Papa, attesting that a document in question, an alleged copy of a long form birth certificate is a computer generated forgery (Exhibit 2, Affidavit of Felicito Papa first Amended Complaint). [Papa Affidavit.]

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LFBC to the MDEC Motion, they were in possession of testimony showing such documents to be

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6. First, Taitz improperly mischaracterizes the Arpaio Press Conference Materials as testimony. Statements allegedly made by an out-of-state county sheriff, his volunteer posse, and/or the prominent birther advocate who actively participated the press conference do not constitute testimony, even if the press conference has been transcribed by someone (as here, by someone of unidentified qualifications). Nor do such statements have any discernible relevance to the issues presented in this case given that the bulk them consisted of rehashing months old and thoroughly debunked claims made by self-avowed birther advocates. Further, given that the sheriffs failure to file any charges or otherwise initiate any sort of actual legal proceedings whatsoever calls into serious question the veracity of the claims he allowed to be publicized from his podium. Therefore, Taitzs apparent belief that MDEC Counsel were required to

failed to cite a single case or other legal authority to support her apparent contention otherwise. 7. Second, the Sampson Affidavit does not even mention President Obamas birth certificate much less state that it is a forgery. See Docket 1-1 at 17-18 4 and 77-80.4 Therefore, Taitzs claim that MDEC Counsel were required to accept such information as in any way relevant to President Obamas birth certificate is baffling.

8. Third, Taitzs claim that MDEC Counsel were required to accept the validity of claims made in the affidavits of her purported experts in birth records, forged documents and/or document manipulation is absurd. Mr. Papas self-avowed expertise is based on his experience as a web developer who has often used software such as Adobe Photoshop and Adobe Illustrator. See Papa Affidavit 1-2 [Docket No.

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1-1 at 68]. Mr. Vogts self-professed expertise is based on his prior ownership of a typesetting company
(b) the DVD was privately produced rather than any official recording of the proceedings, it is reasonable to conclude that Taitz filed the DVD like the Motion for Sanctions for the improper purpose of fundraising and/or increasing publicity for her political campaign. The falsity of Taitzs claim that Mr. Sampson is a senior deportation officer is clear from the face of the affidavit itself. According to Mr. Sampson, he retired from the United States Department of Homeland Security, Immigration and Customs Enforcement four years ago. See Sampson Affidavit at 11.

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accept such information as accurate or as binding upon them in any way is preposterous. Notably, Taitz

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and current ownership of company that sells document scanning equipment and software. See Vogt Affidavit at 1 [Docket No. 1-1 at 71]. More significantly, Taitzs lack of candor with the Court is appalling. Taitz recently presented these exact affidavits in another one of her legal actions and

following a hearing on the merits in which Taitz presented the affidavits without opposition and elicited direct testimony from Messrs Papa and Vogt regarding their findings with neither objections nor

cross-examination the administrative law court (appropriately) found their testimony to be worthless to Taitzs claims:

Farrar v. Obama, No. OSAH-SECSTATE-CE-1215136-60-MALlHI, (Ga. Office of St. Admin. Hrg. Feb. 3, 2012) [Docket No. 16-2 at page 4-5] (emphasis added), decision adopted by Ga. Secy of State (Feb. 7, 2012), appeal dismissed, No. 2012CV211398 (Ga. Fulton County Super. Ct. Mar. 2, 2012), recons. denied (Mar. 14, 2012), appeal denied, No. S12D1180 (Ga. Apr. 11, 2012). 9. Given that the information even potentially relevant to the LFBC upon which Taitzs Motion for

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Sanctions relies has already been presented and flatly rejected as worthless in a virtually identical legal

proceeding a material fact that Taitz most assuredly knew as she was both counsel and purported witness
See Farrar v. Obama Transcript of Proceedings referenced in the FAC and included as an unnumbered FAC Exhibit [Docket No. 1-1] at pp. 15-19 [Docket No. 1-1 at 126-30] (testimony of Felicito Papa); id. at 19 [Docket No. 1-1 at 130] (Papa Affidavit marked for identification as Exhibit 3); id. at 21-29 [Docket No. 1-1 at 132-40] (testimony of Douglas Vogt); id. at 29 [Docket No. 1-1 at 140] (Vogt Affidavit marked for identification as Exhibit 5).

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None of the testifying witnesses provided persuasive testimony. Moreover, the Court finds that none of the written submissions tendered by Plaintiffs have probative value. Given the unsatisfactory evidence presented by the Plaintiffs, the Court concludes that Plaintiffs' claims are not persuasive.

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The Court finds the testimony of the witnesses, as well as the exhibits tendered, to be of little, if any, probative value, and thus wholly insufficient to support Plaintiffs' allegations. Ms. Taitz attempted to solicit expert testimony from several of the witnesses without qualifying or tendering the witnesses as experts. See Stephens v. State, 219 Ga. App. 881 (1996) (the unqualified testimony of the witness was not competent evidence). For example, two of Plaintiffs' witnesses [i.e., Messrs Vogt and Papa5] testified that Mr. Obama's birth certificate was forged, but neither witness was properly qualified or tendered as an expert in birth records, forged documents or document manipulation. . . .

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in that proceeding yet withheld that fact from this Court Taitzs claim that MDEC Counsel were required to accept such information as true, or were in any way bound to act on such information is ludicrous. Again, Taitz has not cited any legal authority to support her charges of any improper actions allegedly undertaken by MDEC counsel; her sole basis for seeking motions is her assertion that evidence she submitted elsewhere proved anything other than the frivolity of her birther claims. As such, Taitzs Motion for Sanctions based upon such wholly unsupported argument should be DENIED. Taitzs repeated failures to have courts compel the Hawaii Department of Health do not support her Motion for Sanctions.

10. Taitz also claims that the alleged request for judicial notice of the LFBC which MDEC Counsel

travels to Hawaii seeking, unsuccessfully, to force Hawaii Department of Health officials to produce the original LFBC and related records. See Motion for Sanctions at 4. 11. MDEC Counsel is indeed well aware of Taitzs litigious history. However, counsel is at a loss as to how, exactly, knowledge of such history is relevant to her Motion for Sanctions. If anything, such knowledge demonstrates the utter frivolity of her claims, her increasingly vexatious litigation practice, and her persistent pattern of seeking to mislead the courts before whom she appears, either as counsel, litigant, or both, sometimes with clients and sometimes with co-plaintiffs. 12. While Taitz frames her complaint in terms of the Hawaii Department of Healths refusal to concede to her demands (Motion for Sanctions at 4), the fact is that multiple courts have rejected Taitzs

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claim that she has any right whatsoever to the demands she has made to Hawaii officials because she has presented nothing which supports any of her claims against them. Taitz v. Fuddy, No. 1CC11-1- 001731

(Haw. 1st Cir. Ct. Feb. 7, 2012) (Exhibit 5) (order denying motion for reconsideration at 4). To the best

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did not, in fact, make was improper because, MDEC counsel were well aware of Taitzs repeated

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of MDEC Counsels knowledge, Taitzs demands for access to Hawaii Department of Health records have been filed in and uniformly rejected by, at a minimum, the following courts:

The District of Columbia Federal District Court. See Taitz v. Astrue, No. 1:11-cv-00402-RCL (D.D.C. Aug. 30, 2011) (Exhibit 1) (order denying Taitz motion to compel compliance with purported subpoenas allegedly issued to the Hawaii Department of Health). The Hawaii Federal District Court. See Taitz v. Astrue, No. 1:11-cv-00519-SOM -RLP (D. Haw. Oct. 26, 2011) (Exhibit 2) (order denying Emergency Ex Parte Motion for Emergency Order To Show Cause and to Compel Attendance for Production of Documents and for Attorneys Fees and Costs). The Ninth Circuit Court of Appeals. See Drake v. Obama, 664 F.3d 774, 786 (9th Cir. 2011) (denying Emergency Motion for Writ of Mandamus seeking to compel Hawaii officials to permit Taitz to inspect the LFBC and to compel Hawaii Federal District Judge Puglisi to reopen the hearing on the Motion to Compel inspection of the [LFBC]). The Hawaii Circuit Court. See Taitz v. Fuddy, No. 1CC11-1-001731, slip. op. at 3 (Haw. 1st Cir. Ct. Nov. 10, 2011) (Exhibit 3) (order dismissing Petition for a Writ of Mandamus Request for Inspection of Records under United (sic) Information Practices Act Statute 92F), recons. denied (Jan. 17, 2012) (Exhibit 4) (order denying "Ex Parte Amended Motion for Reconsideration under 60B"), recons. denied (Feb. 7, 2012) (Exhibit 5) (order denying Taitz's "Amended Emergency Motion for Rehearing Motion to Stay Final Order Pending Rehearing"); subsequent order (Feb. 7, 2012) (Exhibit 6) (order denying Taitz's Motion Reciprocal Subpoena Enforcement [sic] and stating that nothing in the Hawaii Rules of Civil Procedure or any other authority referenced by Plaintiff affords Plaintiff the relief she seeks). The Hawaii Supreme Court. See Taitz v. Nishimura, No. SPCW-12-000014, 2012 WL 120367 (Haw. Jan. 12, 2012) (Exhibit 7) (denying petition for writ of mandamus to direct circuit court judge to issue order forcing Dept. of Health to grant access to documents allegedly related to Obamas eligibility).6

failures in other venues should somehow prevent them from taking certain positions in this case, reality

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compels the opposite conclusion. The reasonableness of MDEC Counsels position becomes manifest

Taitz also filed an Emergency Petition for Writ of Mandamus in the District of Columbia Court of Appeals, seeking an order directing the Federal District Judge Royce Lamberth to order inspection of the original LFBC, but later abandoned that filing. See In re Orly Taitz, No. 11-5329 (D.C. Cir. Jan. 23, 2012) (Exhibit 8) (order dismissing emergency petition for lack of prosecution pursuant D.C. Cir. Rule 38).

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13. Therefore, while Taitz is apparently of the view that MDEC Counsels awareness of her repeated

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upon review of the wholesale, consistent rejection of her claims in other courts around the country. As such, Taitzs Motion for Sanctions based upon such a frivolous argument should be DENIED.

~~~ 14. MDEC Counsel requests that the Court dispense with the requirement of filing a separate

Memorandum of Authorities under the Local Rules in support of this opposition as the reasons and authorities supporting its opposition are fully set forth above.

FOR THESE REASONS, the undersigned counsel for the Mississippi Democratic Party Executive Committee respectfully requests that the Court enter an order denying plaintiffs Motion for Sanctions [Docket No. 25].

THIS the 21st day of May, 2012.

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OF COUNSEL: BEGLEY LAW FIRM, PLLC P. O. Box 287 Jackson, MS 39205 (601)969-5545 (Telephone) (601)969-5547 (Facsimile) Email: sbegley1@bellsouth.net SCOTT J. TEPPER GARFIELD & TEPPER 1801 Century Park East, Suite 2400 Los Angeles, CA 90067-2326 (310) 277-1981

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Respectfully submitted, THE MISSISSIPPI DEMOCRATIC PARTY EXECUTIVE COMMITTEE By: /s/ Samuel L. Begley Samuel L. Begley (MSB No. 2315) By: /s/ Scott J. Tepper Scott J. Tepper (Admitted pro hac vice)

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(310) 277-1980 Email: scottjtepper@msn.com

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that on the date set forth hereinafter, a true and correct copy of the above and foregoing document was electronically filed with the Clerk of the Court using the ECF system which sent notification of such filing to the following: Harold E. Pizzetta, Esq. Justin L. Matheny, Esq. Office of the Attorney General 550 High Street, Suite 1200 P.O. Box 220 Jackson, MS 39205

Orly Taitz, Esq. 29839 Santa Margarita Parkway, Suite 100 Rancho Santa Margarita, CA 92688 And to the following persons by email: Brian Fedorka Bfedorka82@gmail.com Laurie Roth drljroth@aol.com

Tom MacLeran tom@macleran.com

THIS the 21st day of May, 2012.

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/s/ Samuel L. Begley_________ SAMUEL L. BEGLEY

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Leah Lax Leahlax1234@aol.com

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