Analysis of the Arnebeck order.

[Truman01]

***Note, Someone just pointed out that this order is not on the Presidential suit but the Chief Justice Suit. I don't know if that is correct or not but the same arguments would still apply.***

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 thresh hold 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.

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.

[Doctor O]

1. Thanks TC. Makes you wonder what Arnebeck's goals are....n/t

[Freddie Stubbs]

23. Keep in mind he is a former Republican congressional candidate

[Straight Shooter]

58. There you go again.

Every chance you get, you deprecate Mr. Arnebeck.

[Carolab]

2. I have not read the filings but

does this mean that no "particularities" were identified?

[Truman01]

4. that is what I read it to say.

[read the law first]

3. Good analysis. It caused me to remember that Moyer's original order

Your post caused me to remember that Moyer's original order had something in it that said in essence "And I'm reminding everybody that future suits better comply with Rule 9" or something like that.

So, Moyer dropped a ticking legal timebomb in his order that just became apparent to me in reading O'Connor's order in the other case and your post.

Interesting.

[Clark2008]

5. So, in non-legalese

Rule 9 is saying that the suit must contain specific instances of the fraud allegeded, but they don't have to include specifics about whether the fraud was intentional or why anyone would commit it.

Just clairfying..

[Doctor O]

6. So it leads me to wonder what Arnebeck's motives were if

he specifically told him to reference rule 9 in his filings. Has Arnebeck given any accountability for the funds he has collected from those of us who have contributed.

[Name removed]

8. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Truman01]

15. I don't think this was a mistake

It was too basic to be a mistake. Arnebeck's paralegal would have checked the Civil Procedures before filing and caught rule 9 so I don't want anyone thinking I think he is a bad lawyer.

I am saying this wasn't a mistake (I don't think) but I don't know why it was done.

TC

[read the law first]

10. close. A rough translation is.....

The allegation as to fraud has to contain the who, what, when, where and how of the fraud but you can just say "with malice" or "with knowledge" or "they knew or should have known" but the fraud has to be spelled out with the who what when where and how.

Again, a rough translation from legalese. Not exactly, but it's closer than "do you like the poodle that I'm wearing on my head?"

[Terre]

29. I hate to keep referring to georgia10

but I find myself switching back and forth, between her opinion (and others on that diary) and here - besides, she's a great read.
http://www.dailykos.com/story/2004/12/28/17218/394

Here's a portion from her diary regarding her opinion on the 5 W's:

Like I said, reading over the Moss v. Moyer complaint, there is more than enough information there to survive dismissal. Arnebeck specifically alleges:

WHO: Bush, Cheney, and Rove
WHAT: gained "access to voting and tabulating equipment"
WHERE: did not need physical access. They could access them "from anywhere in the world under the right circumstances."
WHEN: Illegal software on the machines operated on November 2, 2004.
HOW: the Defendants gained illegal access to the machines and/or put software on the machines.

Not only that, but Arnebeck's complaint also includes a case of prima facie fraud. How can she dismiss a claim for fraud when the statute clearly says what constitutes fraud, and Arnebeck goes on to explain, in detail, how the statute was violated?

Sounds good enough to me. So, why hasn't this information been taken into account, or has it and it's just not sufficient?

[read the law first]

33. You tell me. Specifically how did Chimp access the illegal software.

where was he when he did it? how did he do it? when did he do it? what did he use to do it? what day did he do it on? was he by himself or with others? how do you know that the Chimp did it? were you there? was any other eyewitness there?

I know the law is tough to follow and it doesn't always make sense to laypeople, but fraud is a tough row to hoe.

Maybe we'll get there. I hope so, but fraud is a tough count.

[mordarlar]

43. Especially when piss off the judges by naming one of them in the suits.

[Clark2008]

50. I did wonder about that, myself, although I thought

Georgia's posting was excellent.

Personally, I don't think * touched it - I don't think he would know how to do something like that.

Now, did he have knowledge? I'm betting he did.

Did Arnebeck see it? Uhh.. no.

However, isn't the Ukranian defense a good arguement - or maybe just blind the court with the statistics - here's the "red" curve, and so forth.

Sometimes, in the real world of court, the onslaught of paperwork and detailed analysis, is enough to turn a judge's head.

[Truman01]

36. Ok, here we go,

WHO: Bush, Cheney, and Rove
WHAT: gained "access to voting and tabulating equipment"
WHERE: did not need physical access. They could access them "from anywhere in the world under the right circumstances."
WHEN: Illegal software on the machines operated on November 2, 2004.
HOW: the Defendants gained illegal access to the machines and/or put software on the machines.
>>>>>>>>>>>>.


One, there is no allegation that Bush, Cheney and Rove did anything. The allegation would be against members of a county BOE and/or Blackwell.

Two: "gained" access. Why is this bad? What did they do? Why does this constitute fraud? What did they do specifically when they "gained access?"

Three: Where did they access it from? Most BOE's don't have the tabulation equipment on LAN and if they do and we believe it was remotely accessed we need that allegation.

Four: When is selfevident

Five: How? You keep saying illegal software, what makes it illegal, what did it allegedly do? etc

See the point?

TC

[georgia10]

45. My list of "who, what, where, and when"

Was a skeleton summary.

I encourage anyone wanting to discuss the complain to read it.

On p. 22, the lawsuit specifically alleges that Bush, Cheney and Rove perpetrated the fraud.

The rest of the "who, what, where and when" is discussed throughout the complaint in far more particular terms than my terse list which was meant for illustrative purposes only.

[read the law first]

49. By way of illustration only and not by way of limitation

one of my favorite phrases:toast:

[IndyOp]

47. There is more in the case that I typed in my post below and, nonetheless,

I do get your point that they need much more particular particularities. But (in their defense) how the heck do you get more if 'the law' won't help you investigate?

Did they file as a long-shot to try to get to do some discovery? They did get to issue some subpeonas - did they depose anyone? They did get Blackwell to ask for the protective order so he would not have to respond to the subpeona -- that is at least a little positive.

Did they file before they were ready? I have been communicating with hedda_foil who can communicate with Arnebeck and team - so I know they have much more information now than they did then. I was kind of hoping that even if the initial suit was weakish they could wow 'em when they finally got into the courtroom.

I'm not a lawyer. I don't even play one on TV.

:shrug:

[Truman01]

14. Sort of....

Fraud is always intentional. There is a concept of constructive fraud but that isn't what we are talking about. I would think the why would have to be that they were stealing the election to qualify as being "significant" for legal purposes.

He just doesn't need to have any proof now. He needs to allege actual particulars. (So and so or even John Doe played with the machine counters to affect the outcome of the election.)

TC

[mordarlar]

41. considering the vulnerability...

of the evidence, could keeping it out of the filing, until it is ordered, lessen the time available to anyone who might try to harm the data? If i sound very unintelligent i apologize.:crazy: It really is a lot to take in.

[bush_is_wacko]

7. What would be the purpose of Arnbeck

ignoring rule 9? Is it just that he doesn't want to give them any indication of what they have or know? Arnbeck is supposed to be an excellent attorney right?

[Truman01]

12. I don't know him....

but he has no choice but to give particulars. If not he doesn't have a suit. Suits aren't surprise attacks, NOW is the time to bring anything out if he has it. At least the particulars of what he plans to prove.

TC

[NVMojo]

9. sure, he's got national attention and all he is doing is filing things

with obscure goals that mean nothing cuz he is an idiot ...NOT!!!

[Doctor O]

13. If the case goes nowhere because he does not have facts and

present facts to support his case, its gonna make things worse for all of us, including Conyers, Jackson and others who have promoted a lot of what Arnebeck is saying.

It makes the public opinion see credibility gaps and assign "Tin Foil Hats", nutcases, and malcontent labels to us and to the people fidgeting for the cause.

Lets face it there has been a lot of charlatans around.

[Truman01]

17. I agree with you, can you explain what he is doing???? nt

[The Judged]

74. He is preserving his right to litigate & waiting for further evidence ..

to include in this action: evidence that wasn't available at the original time of filing, but that is starting to burst from the seams as deadlines, wrongly perceived as relevant by the fraudsters, pass.

Also, Arnebeck is putting the Ohio Supreme Court into the most difficult of positions, because he has challenged the validity of the election of the "transparent" majority rule of Republican justices on this bench, via Moyers election to Chief Justice, and this "transparent" majority is being asked to decide cases that cannot help but to call into question their own ability to impartially decide on these cases.

He is a genius!

Is he twisting the Ohio Supreme Court into pretzel shaped dough, before delivering them to the federal oven to be cooked?

Why does Ohio now make me think of another state where the Republicans took over the judiciary via Ro<p>e and his dirty tricks?

Do we underestimate the significance of this Ohio Supreme Court case?

Is it actually the dot in the sand upon which the entire public myth of Majority Re-uglican Rule rests?

If so, will Ohio be the undoing of the Re-uglican Revolution?

Am I in need of a tin foil hat, due to my pondering of these questions?

In a different matter:

How does the executive branch of our government have access to and specific knowledge of our election exit polls AND Ukrainian election exit polls?

How does the executive branch of our government reach the conclusion that in the United States the exit polling was not weighted correctly, but in the Ukraine the exit polling was weighted correctly?

How did the executive branch of our government come to make two public statements of fact on exit polling that are completely at odds in reaching two contradictory and dueling positions that both suit their needs in order to retain control of the federal government in the United States and to obtain control over the government of the Ukraine?


<please forgive me if I make no sense>

[rox63]

11. Would this be why Kerry didn't sign on to this case? n/t

[georgia10]

16. Arnebeck is not a shitty lawyer

I've been reading the posts here about how he could have "missed" such an obvious requirement.

He got his degree from Harvard Law. His Martindale rating is a BV, which means he has "an exemplary reputation and well-established practice... with a significant client base and high professional standing."

I've read and re-read Moss v. Moyer. If you want to read it, it's here: http://freepress.org/images/departments/Election_Contest_3_(Moyer).pdf.

As I explained over at dKos, I don't think her argument that he hasn't sufficiently pleaded the fraud or mistake is a sound one.

[Truman01]

19. I don't mean to laugh at you but it isn't an argument when

a Supreme Court Justice, which you are in front of, tells you that your case doesn't comply with Rule 9. It's a fact at that point. NO ONE, least of all me, said that Arnebeck was a shitty lawyer. You can obviously read, read the post and answer the questions I asked.

Namely, what could he have been up to since it couldn't have been a mistake to not abide by rule 9.

TC

[merh]

31. I am not familiar with Ohio law, does he get to file a petition asking

the entire Supreme Court to give his motion consideration? Was this before the entire panel?

[Truman01]

34. This is just an admin order notifying him that his

complaint is insufficient. He just needs to refile. A hearing would be disasterous.

TC

[georgia10]

40. I didn't say you said he was a shitty lawyer

I actually enjoy reading your posts, and learn a lot from them. I was commenting on the posts I've read (not just in this thread, but in the other ones about this ruling) wondering how he could forget such a simple thing, "did he even read the law" and those types of comments.

As for the Justice's opinion being "fact"...not necessarily. If it were a "fact" it could not be appealable. As while extremely rare, appeals of procedural decisions can be appealed, and the reviewing court will look at the record and at the argument or rationale of the judge to determine whether (like in this case) dismissal was warranted.

[Truman01]

42. I missunderstood your intent. Thanks for the post..

This is the Supreme Court though so there isn't much room for appeal. This could be appealed en banc but what is the point? He can amend the suit simply and have it up to snuff. I just wonder what was the point of the suit being that way in the frist place.

TC

[read the law first]

44. I didn't say he didn't read the law either.

I posted two possible scenarios that make perfect sense as to why it could have been done the way it was done.

[crispini]

20. ok, thanks. sounds like good cred to me! n/t

[Truman01]

21. By the way,

while Arnebeck is not one of them, I know attorneys from Harvard law that can't tie their own shoes. Don't be so impressed with any particular school or rating. They aint what they are cracked up to be.

TC

[georgia10]

48. Bush graduated from Yale!!!!

hehe

Yes, school affiliation has little to do with attorney competence. But having read up on Arnebeck a bit, I think he would make his alma mater proud.

[read the law first]

52. Never did like Yalies. n/t

[Pirate Smile]

68. Hmm. Where did Kerry graduate from?

[read the law first]

70. ooooppps. Never did like puke Yalies.

[pick_a_dilly]

25. if the fix is in . . .

and it is partisan politics trumping all . . .

Arnebecks BV rating and his Harvard degree are worth less than * 's promises . . .

if the OSC is just gonna stall and call moot we are screwed????

[Truman01]

27. If the "fix" was it, they would just dismiss and not let him refile. nt

[Freddie Stubbs]

75. So, if he is such a sharp attorney, is he purposely screwing up?

:shrug:

[crispini]

18. This is weird.

Arnebeck's always had good cred with us here -- what's the source of that cred? Does it bear out?

[theboss]

56. Arnebeck's cred was a result of saying what a lot of people want to hear

I've yet to see anything that impressed me.

[georgia10]

22. Just a logical question

Why do most people assume Arnebeck botched the complaint and not that the judge is purposefully delaying?

[Doctor O]

24. It is a small thing like following the laws, Arnebeck was told by

Moyer what to expect and he disregarded it. That goes to motive and credibility.

[Truman01]

26. Because it doesn't make any sense for the Judge to do so...

The Justice didn't have to "delay." The Judge could have, and normally would have, just thrown it out all together. I'm saying that something is strange here. There are NO specific allegations of fraud in the complaint. You read it. Do you think that any of the allegations of the complaint conform to CR 9? I posted rule 9 for your to read.

No one has used the word botched. In fact, I went way around it saying that I can't imagine that he did this out of ignorance. That isn't even possible. My question then is why?

And please, SC Justices don't need to play with you to win. If they didn't like the case they would throw it out and tell you to go elsewhere.

TC

[El Vengedor]

53. How will this likely affect January 6?

Truman,
This is my first post, but I've been following these threads for several weeks now. I want to complement you on your posts - they are well thought out and incisive.

As I understand it, the Ohio matter is not (yet) a federal issue, so an objection in Congress to the Ohio slate on Jan. 6 would have to be on the basis that it was not selected in accordance with Ohio law. If this ruling represents the last word from the OSC on Jan. 6, it's hard to see how such an objection can be made, let alone justified. Unless something changes, a congressman or senator who objects would, in effect, be challenging the OSC on a matter of Ohio law. I believe the senator or congressman in question would look foolish in that situation, so as things currently stand, a challenge is unlikely.

If Arneback's purpose has been to attempt to affect the Jan 6 acceptance of the Electoral College vote, the ruling has to be a huge setback. He now has only six days left to file a case that satisfies Rule 9 and get a ruling that fraud was committed. Failing that, the only way to remove Bush would be to prove he was involved in a fraud and impeach him.

Your thoughts?

Regards

V

[righteous1]

55. True, but don't you think that the Ohio SC is being extra careful

to exhibit deference for Arnebeck etc. do to the large (national) audience that is presently watching the proceedings. Personally I believe that they will bend over backwards to give the impression that that are being totally fair and giving the plaintiff every opportunity at getting a fair shot at this thing

[intheflow]

28. A voice of reason in the wilderness.

Seems like a lot of DUers turn on their heroes quickly. I hate these feeding frenzies when people don't measure up to the pedestal we placed them on.

Anyway, it's all conjecture on our part unless we're working directly with Arnebeck's team. And as far as I can tell, no one here is.

Peace.

[Straight Shooter]

60. Some people never placed Arnebeck on a pedestal

Some people had the hanging noose ready and waiting. Some people on DU have no interest in seeing Arnebeck succeed. Planting seeds of doubt is their specialty.

We have been forewarned of moles. I'm just sayin'

[IndyOp]

30. Regarding the Presidential suit (& the Chief Justice Suit) --

Edit: Content - I did not note that the original post was about the Chief Justice Suit!

Regarding the Cheif Justice Suit -- if it is the same in substance as it was in the original suit that combined the President & Cheif Justice Suits - then no, they don't specify the fraud with particularity. I've stared at the vote counts for the counties in which they claim votes were moved from Connally to Moyer and I cannot figure out how they got the numbers they got.

Regarding the Presidential suit:

I thought they did an acceptable job of specifying 'the fraud with particularity'. They did allege the circumstances and actions of the fraud itself. Did they do this to an extent that shows that the result of the election should be overthrown - no - because they did not explain how they came up with the estimate of the 130,656 votes they allege were moved from Kerry to Bush.

Here are some highlights (I did not include some of what I thought were their weaker points):

(1) The discrepancy between exit polls and tabulated vote is highly improbable.

(2) Discrimination against voters was used as a smokescreen to distract attention from vote fraud needed to control the election.

(3) Unlawful ballots were added to those cast by lawful voters - more absentee votes cast than notations in pollbooks in Trumbull County (the only one they could inspect).

(4) Lawfully cast votes were either destroyed or altered.

(5) Blackwell used power to prevent public inspection of poll books until after certification - including Green County - in violation of Ohio law.

(6) Vote totals on computers were changed using modem or wireless access port.

(7) Fraud was accomplished by inserting unauthorized and so far undetected operating instructions into the software used to operate either vote tabulating machines or voting machines.

(8) At least 130,656 votes actually cast for Kerry-Edwards were deducted from their total and added to Bush/Cheney - when this is corrected K-E win Ohio by at least 142,537 votes.

(9) Joe McGinnis had access to and used main computer in Auglaize prior to election even though this is a violation of county election protocol. Ken Nuss, former deputy director resigned after being suspended for calling this to the board's attention.

(10) In Cuyahoga County the board botched 10,000 registrations.

(11) In Cuyahoga about 1/3 of provisionals were rejected during this election when in 2000 only about 17% were ruled invalid.

(12) In Cuyahoga and Franklin counties there were voting machine errors with respect to absentee ballots (due to poor design).

(13) There was discriminatory assignment of voting machines in Franklin, Knox, & Hamilton Counties.

(14) In Cuyahoga and Franklin counties voters were misinformed about their polling place via phone calls, letters on official-looking letterhead, and door-hangers. In Lake County letters on bogus Board of Elections letterhead informed voters that had registered through Democratic and NAACP drives that they could not vote.

(15) Mahoning county -- 20-30 machines had to be recalibrated during election day -- many instances of vote hopping from Bush to Kerry were observed.

(16) In Mercer - one voting machine showed that 289 people cast ballots, but only 51 votes were recorded for president. County wide result missing some 4,000 votes (7%).

(17) In Miami County - one precinct had 98.55% turnout, another 94.27%. After 100% of precincts in Miami County had reported, another 18,615 votes came in -- John Kerry's percentage of votes before & after remained identical to the 3rd decimal place (statistically improbable).

(18) In Montgomery County two precincts had 25% undervotes -- that is 16,000 people who purportedly decided not to vote for president. The overall undervote rate for the county was 2%.

[intheflow]

32. IndyOp, do you have a link

to point #8? I remember reading about it before, but can't find the post now.

Thanks.

[IndyOp]

35. I got the 130,656 from the original suit --

you can get pdf files of the suits at <http://www.caseohio.org/lawsuits.htm>.

My understanding of where they *might* be getting their estimate of votes switched from Kerry to Bush comes from the Free Press article (link just below). The counties named in the article and the suit are the same (just about), but the number of votes they are estimating changes from the article to the suit... :eyes:

This is from the bottom of the Free Press article:

If the selection criterion is a Connally margin 5,000 better than Kerry's, there are 15 such counties where, collectively, Connally's margin exceeded Kerry's by 190,437 votes.

If the selection criterion is a Connally margin 10,000 better than Kerry's, there are 5 such counties where, collectively, Connally's margin exceeded Kerry's by 119,960.

<http://www.freepress.org/departments/display/19/2004/944>

:shrug:

[intheflow]

39. Gracias.

You're a good soul, IndyOp.

[Truman01]

37. See post 36

[IndyOp]

38. Legal Eagle Heaven -- Check out the Moritz OSU website:

<http://moritzlaw.osu.edu/electionlaw/key-recounts.html#moss>

:kick:

[idealista]

46. is the law keeping up with the universe of cyber-crime?

Forgive me if I'm being ignorant here, but ...it sounds like when the suit was separated into 2 suits, now it is the suit against CJ Moyer that is being claimed lacks particularity as to fraud? Did I get that right?

Could it be that they are less ready/prepared to be specific in that suit because 1) they have been working with limitted time and resources, and primarily trying to analyse this from the standpoint of Bush/Cheney, 2) maybe the statistical analyses etc. have not been done to a fare-the-well in regard to the CJ election? 3) Maybe its harder to make a case because the election fraud actually was perpetrated to benefit Bush/Cheney, not so much Moyers?

I also wonder of it is just not a terribly difficult situation, in that the law is probably written on the assumption that it will be easy to know exactly what accusation you are trying to make. But with the non-tangible realities of the cyber world, it may be that you can see statistically that the election result screams "FRAUD!", but without further "discovery" it is very hard to know enough about how it was done, by whom, etc. to satisfy the filing requirement. In other words, the laws are outmoded, the situation is unfair, and the Republican justices will try to take full advantage of that.

[read the law first]

51. You are correct. n/t

[saracat]

67. I thought the CJMoyer suit was just an instrument to get Moyer off the

Presidential case citing conflict of interest. It is my understanding that filing the ceases jointly was just a manuever to dump Moyer. That would explain why Arnebeck didn't give a rats ass about title (. He isn't going to pursue this case as it has already served its purpose as they have gotten rid of Moyer re: the presedential suit. JMHO.

[Chimpanzee]

54. I just got her - could someone explain what we are all fretting about???

[read the law first]

57. Basically, the Judge in the Moyer OSC challenge has threatened to

dismiss that suit because the fraud count was not plead with particularity.

The worry is that Moyer will seize upon this rationale (since that case is about his election) and use it to dismiss the Presidential case in the OSC as well so that both OSC cases will be dismissed before any discovery is taken.

The mainstream of the thread wonders whether there is some sort of strategy to prompt this threat from the judge on purpose and if so, what could that strategy be?

IMHO, it's like a chess game and the other side has said "check. your move." and we either move a pawn over to block or otherwise counter.

[lonestarnot]

61. Can't believe a change of Judge for cause has not been filed

where Moyer is sitting on case involving himself. Haven't been following this case closely enough, maybe that has already been done?

[read the law first]

63. That's why they split it into two cases.

Moyer is presiding on the presidential case and O'Connor is presiding on the case challenging Moyer.

[lonestarnot]

64. Either way Moyer involved with both isn't he?

[read the law first]

65. Correct. One as a judge and the other as a contestee. n/t

[lonestarnot]

66. Then he should recuse or be challenged

[LiberalHeart]

69. Another hypothetical for you....

...and, yes, I understand your disclaimers:

If it were now your turn in this chess game, what would *you* do?

[read the law first]

71. It's hard to know because I don't know what the proof is.

Disclaimers in place and incorporated by reference herein as if fully set forth verbatim.


If there is something more than what I've seen posted and what's in the exhibits to the hypothetical complaint, then I'd amend the complaint and include it. And I'd leave out any references like (paraphrasing here) "would led one to conclude" and "if trends hold" or any of that stuff.

[LiberalHeart]

73. What if there is nothing else?

How would you change what exists?

Or would you look at the suit and think, hmm, maybe there's no beef here and it's time to concentrate entirely on the other lawsuit?

I'm thinking it might have been better to get freedom of information docs and do an audit before claiming there's fraud. Probably an impossible task, though, given the amount of time we have. But perhaps that approach will still work, although not in a courtroom setting. There's more than one kind of justice.

You mentioned in another post that it's important to ask a lawyer if s/he practices election law and, if so, how much work has s/he done in that area. Consider yourself asked, please.

[Truman01]

72. Who did you get?

and what did you do with her when you got her?

TC

[theboss]

59. As another lawyer who is late to this party...

I haven't buried myself in this case, but I think the "failure to state a claim" is predicated on the fact that Arnebeck stated that Kerry would win by whatever huge number he pulled out of his ass without giving any sort of specific accounting as to where those votes came from. He's asking a judge to give Kerry over 100,000 votes without specifically stating how each vote was altered or stolen.

To me, the case is analogous to me filing suit against Chevy Chase Bank stating that they stole $60,000 from me without specifically explaining how it happened.

[liam97]

62. The suit is discussed at the freepress site

http://freepress.org/departments/display/19/2004/1028
At the end it says

The attorneys are basing their arguments on Ohio’s Revised Code 3515.16, entitled “Testimony in Supreme Court.” All testimony will be given in the form of depositions.

The contestors may have 20 days to take and file testimony and the contestees 20 more days, but “the court may render such judgments and make such orders as the law and facts warrant

ATTORNEYS filing the suits are Clifford O. Arnebeck Jr. (Chairman, “Ohio Honest Election Campaign” of The Alliance for Democracy, and Chair of Legal Affairs Committee for Common Cause-Ohio); Robert Fitrakis, PhD (Director/Editor, Columbus Free Press, and Professor of Political Science at Columbus State Community College); Susan Truitt (Co-founder of Citizen’s Alliance for Secure Elections-Ohio); Peter Peckarsky, Technology Lawyer, based in Washington, D. C.; and such other attorneys retained by them for the litigation.

[MandateThis]

76. Arnebeck & Kerry have a strategy

They know what they are doing even if I do not. Check out http://www.breakfornews.com/articles/TeflonKerry.htm and read all the way down. I knew Kerry had a plan the day after he conceded, because I remembered that he fought hand to hand combat and was a prosecutor. He's a shrewd man. I also knew that concession speeches are not legally binding. Remember, nuance can be a beautiful thing against a brain that only sees black or white :) We need to keep the heat on and keep protesting. Many senators and reps will contest the election on January 6, don't forget about that. Even some Repugs will cuz they are sick of the dangerous actions of bu$h and his cronies.