Anyone want to interpret this OH SC ruling?

I think this means that we have to put up or shut up with evidence of
fraud by 1/7/05. But I'm no lawyer, so anyone else want to take a crack at it?

http://www.sconet.state.oh.us/rod/newpdf/0/2004/2004-ohio-7079.pdf

2004-2106. Moss v. Moyer.
On Petition to Contest Election. This cause originated in this court on the filing of a petition to contest an election under R.C. 3515.08 et seq. The court has previously acknowledged the applicability of a Civ.R. 12(B)(6) dismissal for failure to state a claim upon which relief can be granted in an election contest case. In re Election Contest of Democratic Primary Election Held May 4, 1999 for Nomination of Clerk, Youngstown Municipal Court (1999), 87 Ohio St.3d 118, 717 N.E.2d 701. Normally, minimal notice pleading is all that is required to withstand dismissal under Civ.R. 12(B)(6). Id. at 120, 717 N.E.2d 701. Here, however, the contestors' claims are based primarily on fraud and mistake. Therefore, the contestors must state the "circumstances constituting fraud or mistake * * * with
particularity." Civ.R. 9(B). Accordingly, upon review of contestors' petition,
IT IS ORDERED, pursuant to my authority under R.C. 3515.11 to control
and direct this election contest proceeding, that the contestors shall show cause by January 7, 2005 why their petition should not be dismissed for failure to state a claim upon which relief can be granted because it does not allege the circumstances constituting fraud or mistake with particularity. Contestees may file
a memorandum in response on or before January 14, 2005.
IT IS FURTHER ORDERED that the filing of an answer by the contestees
and any discovery, including depositions, subpoenas, and requests for production of documents, shall be, and hereby are, stayed pending resolution of this preliminary issue.
O'Connor, J., in Chambers.

It simply requires allegations of specific facts which, if proven at trial, would support a finding of fraud or mistake.

Therefore the plaintiffs have to draft a new complaint with specific facts. Presentation of evidence of the alleged specific facts (witnesses, documents) isn't required yet.

This is picking nits but it's no big deal to get a 12(b)(6) from the other party (in fact, it's unusual not to get one) but a 12(b)(6) from a judge is a difficult (but not overwhelmingly frightening) spot.

Kind of like the first "check" in a chess game kinda gives you a start.

Please Make them count our vote at least once next time. You can't even prove you counted them. We the people refuse to have Blind Faith. We know the truth, and so does the rest of the Planet.
How exactly do you recount a vapor vote?

http://www.democraticunderground.com/discuss/duboard.ph...

http://www.truthout.org/docs_04/121604Z.shtml

http://colorado.indymedia.org/feature/display/9777/inde...

would get flamed into oblivion.

"Gosh, I think this may be over" just isn't a popular opinion in this forum. And we are all suffering from more than just a little bit of groupthink in this part of DU.

I post something from the Federal Rules one day and get called a freeptard slimeball loser puke spy and even have people insulting my necktie.

I was like "Listen folks, all I'm doing is quoting the federal rules" is not like I wrote the dang things.


Cheers.:toast:

"2004 Election Results and Discussion/Groupthink Theories"

edit note :

on second thought, I probably used the wrong word.

the pejorative, "newbie".

GOD, I hate that. It's as though every intelligent progressive in the universe require -- require, mind you -- a certain number of posts in a particular portion of cyberspace before their opinions actually matter.

We could have said that on November 3rd, and allowed ourselves to be silenced, and we did not. We could have said it after every dirty move that Blackwell has made and we did not. And we are not going to roll over and die after each little apparent setback with the corrupt judicial system of Ohio.

Many, if not most of us on the 2004 Election Results board are here because regardless of whether or not Kerry ends up in the White House, we do not and WILL not consider this election "over" until January 20th, and if Bush is inaugurated, it still will not be over until the fraud is proven, and the criminals who perpetrated it are brought to justice.

I think it is alright to ask "Is this over?", because it forces us to analyze and take stock of our current situation, and to remember the reasons why we will not give up. But for those who want to give up, or move on, the discussion board regarding the 2006 and 2008 Elections might be more to their liking.

1. Show cause by January 7 = deliver hard evidence and meet the minimum standard threshold;

2. No discovery, depositions, subpoenas or document requests may be made by petitioner until #1 is fulfilled.

In other words, show the judge the case is worth pursuing by the 7th, but do so wothout the benefit of discovery, depositions, etc.

People were wondering why Kerry didn't sign onto this case. Now you know why. I had a feeling this was coming.

This is ridiculous. Local law enforcement are given the right to investigate before they go to trial, WTF can't we just be allowed to investigate? This is going no where unless the have a smoking gun and are willing to use it!

any faults in the election.

The litigation stuff I used to work on was constantly being amended to keep up with facts, add or drop defendants, and discovery (meaning depositions etc.) would just go forward.

It sounds to me like they are slamming the door in our face before we are given a fair chance to get at the proof.

...that people in power make the laws to perpetuate their own power, I can't see any reason for this. It doesn't make any sense to codify a Catch-22 into law like that.

Is there any legitamite reason for this ruling, or is it really just a leagal roadblock?

decision as soon as I look up the relevant civil procedure. This is a procedural fault of counsel. The judge isn't doing anything out of the way. Give me about an hour and I'll post something legal on this.

TC

There is no going back. Too many people are logging in as newbies. The work is spreading. People know in their gut something is wrong. It may take awhile, but I believe. As a matter of fact, I know, something will be brought to light that is irrefutable. And down comes Herr Bush.

Welcome to DU. :hi:

Wish you had a more hopeful post. But to paraphrase everyone's favorite high profile warmonger, "You post with the info you have, not the info you had wanted or wish to have at a later date." ;)

Its the Chief Justice election contest. Lets make sure we are all talking about the same case. The Chief justice election contest is Case 2106. The Presidential election contest is case 2088.

oops, i didn't realize it was the Moss v. Moyer suit.

DOH

is still on? Thanks!

but you need to know that Kerry's motion has nothing to do with the election contest at the state Supreme Court. that is a totally different issue at a totally different court.

There's five cases that are being talked about tonight.

Kerry's joining of the motion is in the federal court in the Southern district of Ohio.
There's another case like it in the federal court in the northern district of ohio.

There's two cases before the Ohio Supreme Court. One is the Presidential OSC case before Moyer and the other is the Supreme Court OSC case before O'Connor who issued the 12(b)(6) order.

Then there's the Arnebeck Chamber of Commerce suit that is tangentally involved in the Supreme Court OSC case.

Programs! Programs! Get your programs here! Can't tell the players without your programs.


:toast:

Stick to the basics. AND move forward with new news. Have patience. More people are getting interested...and there is alot to keep track of...repeats for you...news to someone else...

Won't see a deficiency such as the failure to state a claim in this one.

ruling on the Presidential election contest, correct? He is accused of being involved in the fraud BUT he still gets to rule on it? I don't see how this can be good. I'm not a lawyer though so I guess I can wait for an analysis from one.

Moyer has the OSC Presidential case and O'Connor is ruling on the Moyer case (let's call it the OSC Supreme Court case to avoid confusion). Moyer will no doubt use the same reasoning in the OSC Presidential case so at least we know where they're going to go with it.

Maybe THAT was Arnbecks purpose. He wanted this one to go first so he knew what to expect in the Presidental one. I bet he dots his I's and crosses his T's on that one. Would he use one case as the basis for filing his papers on the other? I think they are both important, but maybe he see's the other as THE MOTHER LODE? Something to ponder for the night.

You know that Moyer is going to come at him with the same thing in the Presidential OSC case.

Moyer asked for Rule 9 evidence.

At the time, I went to myself "I wonder where he's going with that reference." It seemed a little out of place. Now, it makes sense to me.

I'm back to the same question. Why would he deliberately disobey a direct order regarding the filing of a case? I'm not Matlock, this is really confusing. This does seem like something even an ordinary lawyer wouldn't screw up without a reason.

I've been lurking for quite a while, but only started posting recently.

georgia10 has updated her diary with her opinion on O'Connors ruling. Scroll to the very bottom of her diary, under the marquee. She makes some very good points, and in reading, I'm as pissed as she is:

http://www.dailykos.com/story/2004/12/28/17218/394

Again, I'm not an attorney in Ohio and I am simply giving this as a learned analysis for those who wish to read it.

This is a simple administrative order that declares the petition deficient on the face of it because it does not "state a claim upon which relief can be granted." Normally a Complaint or Notice Complaint is sufficient if it simply alleges torts or civil wrongs that are covered by the law or even common law. In special cases, which are outlined in the Ohio Civil Rules of procedure Rule 9, one must do more than generally allege a wrong.

In this case, Rule 9 (B) as quoted below requires that in "ALL" complaints of "fraud or mistake" one must state the fraud with particularity. This simply means that alleging "fraud" isn't enough, one must allege the circumstances and actions of the fraud itself in particular in order to have stated a prima facia case. They are not required to have proof or even evidence, but they must allege what actions took place that constitute fraud and what affect the fraud had on the litigants. This is a very low threshhold to hold the Arnebeck suit too. No discovery is required.

Further, the reason for withholding discovery is because there is no "case" yet that can be acted upon. Discovery without a case would be a "fishing expedition" which is simply not allowed.

My first reaction to this is one of shock. I don't want to bash Arnebeck of his team, but knowledge of the states rules of Civil Procedure is pretty basic if you are to file a suit. It is hard for me to believe that competent attorneys (which these are) intensionally overlooked or despised these rules, but to say they were simply ignorant of them can't be the case. If they did overlook or despise them, why?

This is a junior error or some sort of unknown strategy.

The other oddity to me is that this order came after the first order. One would think the Justices or their law clerks would have immediately kicked this case back for lack of prima facia status. I remember emailing the Arnebeck group and asking for a copy of the complaint before it went public and they answered me saying, "We want to see if the court 'accepts' the suit before we release it publicly." I found that odd. Why would the court not "accept" a timely, well filed complaint? Maybe this was some sort of strategy, but I'm at a loss.

So here are the pieces, I will not try to put them together, do with them as you will:

1. Arnebeck files a case that is improperly joined and has it rejected but there is no mention from the court of Rule 9 (b).

2. Arnebeck refiles the case.

3. The court issues an order directing the parties to state their position on two questions: a. the affect of the safe harbor provision of 3 USC 5, 7 and b. the affect of Jan 6th on the mootness of the claim going forward but again no mention of Civil Rule 9 (b)

4. The court issues an admin ruling (not a dismissal sui sponte) declaring that the complaint does not state a case upon which relief can be granted Rule 9(b) and directs the Plaintiffs to refile.

5. Discovery is rightly stopped until a valid complaint is filed.

Go figure. Ohio law quotes below. I will post this here and as its own thread. If you have questions or comments please find the other thread.

TC

Civil Rule 9 Pleading Special Matters

(B) Fraud, mistake, condition of the mind

In all averments of fraud or mistake, the circumstances
constituting fraud or mistake shall be stated with
particularity. Malice, intent, knowledge, and other
condition of mind of a person may be averred generally.


Civil Rule 12 (Emphasis Added for clarity)

(B) How presented

Every defense, in law or fact, to a claim for relief in
any pleading, whether a claim, counterclaim, cross-claim,
or third-party claim, shall be asserted in the
responsive pleading thereto if one is required, except
that the following defenses may at the option of the
pleader be made by motion: (1) lack of jurisdiction over
the subject matter, (2) lack of jurisdiction over the
person, (3) improper venue, (4) insufficiency of process,
(5) insufficiency of service of process, (6) failure
to state a claim upon which relief can be granted, (7)
failure to join a party under Rule 19 or Rule 19.1. A
motion making any of these defenses shall be made before
pleading if a further pleading is permitted. No defense
or objection is waived by being joined with one or more
other defenses or objections in a responsive pleading or
motion. If a pleading sets forth a claim for relief to
which the adverse party is not required to serve a
responsive pleading, he may assert at the trial any
defense in law or fact to that claim for relief. When a
motion to dismiss for failure to state a claim upon
which relief can be granted presents matters outside the
pleading and such matters are not excluded by the court,
the motion shall be treated as a motion for summary
judgment and disposed of as provided in Rule 56.
Provided however, that the court shall consider only
such matters outside the pleadings as are specifically
enumerated in Rule 56. All parties shall be given
reasonable opportunity to present all materials made
pertinent to such a motion by Rule 56.

that they were either submitting a deficient lawsuit deliberately or that they simply made a horrible error?

beginning with his late initial filing and ever since. He's either very smart or very incompetent

Good to see your post. The layperson's voice of reason and a breath of fresh air.

BTW, I've been on Moritz like a tick on a dog. Thanks for the tip. It's a great site.

me to make heads or tails out of these proceedings, and I'm still basically confused

an experienced attorney.

accounting of the expenditures of funds?

several times and he does state that fraud has occurred by a swtiching of votes from Connally to Moyers and asks that Moyers' election be decertified and Connally be declared CJ.

everyone to read the dilykos thread AND Arnebeck's suit - I believe it involves a claim of prima facie fraud

This is about shutting down the public inspection, right? That's the prima facie that you're referring to.

I still need somebody to clue me in on how a prima facie case of fraud AFTER the election impacted the election on election day. I haven't figured that out yet but I'm willing to listen.

I believe the point of the prima facie fraud claim is to bolster the election day fraud claim. I think Arnebeck is arguing that it was in furtherance of the conspiracy to cover the initial fraud up.

Also, by not having access to the poll books, Blackwell & Co. deprived Arnebeck of evidence which he could have used in setting our his case for fraud, I think.

Some people around here get mad just because people ask questions. I'm glad you're not that way.

Thank you.

The part I read (as I remember it) said something about that there was a suspicion of some sort of self deleting computer program but it didn't say who put it on the machines, when or how.


A fraud count is a tough row to hoe.

entail a high degree of specificity

And the judge could be wrong. Without the petition, its tough to tell if the plaintiff just blew a pleading rule or whether the judge did. Nobody wants to plead with more specificity than is necessary, so it is hardly surprising or unusual that a court sends it back. While striking it sua sponte is unusual, the court may simply be more aware of this case than the next, figures he knows particular facts when he sees them and is working to move the case--by narrowing the factual inquiry and by getting the pleadings in shape== without waiting for a motion.

thought, an I'm no lawyer. Arnebeck and company seem WAY to smart to do this without something in mind.

The original filing of Moss v. Bush was rejected
as fatally flawed by CJ Moyer because it contested
two elections. The presidential election contest was
refiled as Moss v. Bush, while the new case, Moss v. Moyer
contests the election of CJ Moyer, or so I had
thought.

So your pieces of the puzzle are actually now
pieces of two puzzles:

1. Arnebeck files a case that is improperly joined and has it rejected but there is no mention from the court of Rule 9 (b).

The case was Moss v. Bush.

2. Arnebeck refiles the case.

Arnebeck splits the case and refiles: Moss v. Bush,
and Moss v. Moyer.

3. The court issues an order directing the parties to state their position on two questions: a. the affect of the safe harbor provision of 3 USC 5, 7 and b. the affect of Jan 6th on the mootness of the claim going forward but again no mention of Civil Rule 9 (b)

In Moss v. Bush, where supposedly the contestors should
have provided answers by December 28 and contestees by
January 3.

4. The court issues an admin ruling (not a dismissal sui sponte) declaring that the complaint does not state a case upon which relief can be granted Rule 9(b) and directs the Plaintiffs to refile.

Yes, in Moss v. Moyer. But the allegations in Moss v. Moyer are
not exactly the same as in Moss v. Bush.

5. Discovery is rightly stopped until a valid complaint is filed.

In Moss v. Moyer. In Moss v. Bush, I presume we still
are waiting for answers to CJ Moyers sui sponte questions
to be filed by both sides.

Or not?

Thanks, anyway, for your analysis!

which where and when LOL

What an embarassing mistake!

1. This was originally nothing more than a minor piece of evidence among many to support throwing out Bush's election. In addition to bolstering the evidence for fraud in Bush's case the idea was to get moyers off the case by combining it with the Bush case. Potentially getting MOyer off the bench was nothing more than a bonus.

2. Moyers The judge in question made a very Borderline decision that could still possibly wind him up in trouble for ethics violations. In the initial case which resulted in the two seperate cases

3. Not refiling the Moyers contest as a seperate issue would have been a big mistake as it could have potentially undermined the bush case.

4. The Supreme court justices in ohio are mostly conservative justices. who are playing delaying games so not to have to rule on the merits of the cases if possible. God himself could present the perfect case and they would use every procedural delaying tactic they can to avoid acutally ruling on the merits. This is the big point most of you are missing. Arnebeck could file the perfect lawsuit and they would still fiddle faddle around.

5. Since what was a very minor piece of evidence being used more as a maneuvering tool in the original case is now a case on it is not very suprising that they did not have all the specifics spelled out to THE JUDGES SASTISFACTION.

6. Be prepared for lots and lots of more crap like this from the courts which may end up never even ruling on the merits of the case if they have their way.

I am suprised you guys didn't know this was going to happen to begin with.

before commenting further on how he messed up.



http://www.dailykos.com/story/2004/12/28/17218/394

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lawsuit that Arnebeck originally filed with the presidential lawsuit to try to recuse Judge Moyer. This second lawsuit is claiming Moyer's own Supreme Court Justice election was fraudulent. Judge Conner, who just made this ruling, is assigned to this case. She basically wants more proof from Arnebeck before proceeding on this particular lawsuit.

While this is not the presidential election lawsuit that Judge Moyers is assigned to, people on this board are saying this is a good idea of what may come next from Judge Moyers. He may follow Conner's lead and make the same ruling for the presidential case.

Obviously, I am a layperson but is this the gist of it?