QUOTE
Ohio Chief Justice "Trips Up" Arnebeck lawsuit
by georgia10
http://www.dailykos.com/story/2004/12/16/171343/04
Thu Dec 16th, 2004 at 17:13:43 CDT
Link to the Ohio Supreme Court decision
RawStory Link
NY Times (AP) Link
As Chief Justice, I have statutory authority to determine only the
challenge filed by the contestors to the election of President and Vice-President.
No statute or case law authorizes the filing of multiple election contests in a single
case. The complaint is fatally defective. I therefore order that the contest of the
presidential election held on November 2, 2004, be dismissed without prejudice.
So ordered.
What does this mean? More, below.
"Dismissed without prejudice" is not fatal to the case...far from it. It's a procedural slap on the wrist.
Here are some questions answered:
1) Did they decide anything about the claims?
No. It means that the complaint itself was somehow improper in form. This decision is NOT based on the merits of the case or the substance of the claims.
2) Can they appeal this decision?
Probably not. Generally, you can only appeal a "final judgement;" and dismissal without prejudice isn't generally construed as a "final judgement" because the claim isn't resolved or dead. It can easily be adjudicated anew with the filing of a new complaint.
However, it is possible that this can be appealed if it precludes Arnebeck from bringing the same case forward. This might be a possible argument, if there was little or no time to re-file,.
3) Who decided this?
The Chief Justice. And the Chief Justice only. The Chief Justice has sole discretion in pre-trial motions. Read more concering the amibuity in Ohio law about who gets to decide what in the recount process here.
4) What did he decide?
Basically, the decision states that Ohio law, viewed in light of the intent of the legislature, does not allow two different elections to be contested together. Here, it is the presidential election and the Supreme Court election which were objected to.
Chief Justice Moyers took a strict constructionist approach to reading Ohio law ( Preznit Bush would've been proud!). He said that since the law states "an" election appeal shall be filed with the Supreme Court, the law "clearly" allows for only case to be filed per complaint.
Here is the pertinent part of the decision:
Nothing in the pertinent election-contest statutes or case law
construing R.C. 3515.08 permits contesting more than one election in one case.
In fact, the statutes contemplate that an election-contest case will challenge only
one election. For instance, R.C. 3515.09 provides that "[a] contest of election
shall be commenced by the filing of a petition with the clerk of the appropriate
court signed by at least twenty-five voters who voted at the last election for or
against a candidate for the office or for or against the issue being contested")
(emphasis added), and R.C. 3515.14 provides that the court shall dispose of an
election contest by pronouncing judgment as to "which candidate" (not
candidates) was elected.
{¶ 6} In adopting R.C. 3515.08 the General Assembly recognized that
election contests by their nature are not well suited to consolidation.
Consolidation of two election contests--one challenging the results of the
presidential election and one challenging the election of the Chief Justice--
unnecessarily complicates the two contests procedurally. R.C. 3515.08 vests responsibility for deciding the election contest concerning the presidential
election with the Chief Justice of the Supreme Court of Ohio. However, under the
statute, the Governor selects another justice to hear a contest of an election to the
office of Chief Justice of this court. Therefore, if this combined election-contest
case were to proceed as filed, two separate justices would be responsible for
presiding over two separate contests in one case. No words in the statute nor any
decision of a court of which I am aware supports a conclusion that the General
Assembly produced that result. Moreover, were this court to sanction
consolidation here it would establish a precedent whereby twenty-five voters
could challenge, in a single case, the election results of every statewide race and
issue on the ballot in any given election.
Arnebeck likely filed both suits together thinking that the Chief Justice would have to recuse himself from the case because he was a candidate for the Supreme Court election. But like any man in a position of absolute power, the Chief Justice here says no. He still wants to preside over the Bush/Kerry part of the suit, so he dismissed the case to get his way.
I think the most disturbing part is the last part, where he doesn't want to "set precedent" of 25 voters challenging the election results of every race and issue. This would seem like a valid point; however, where votes for all those races/isses were cast on the same machines which are, in effect, the essence of the dispute, I think it would be logical to keep them together.
5) What can be done? Arnebeck can refile this with a simple "cut n' paste" , cutting out the Connelly stuff and putting it in a separate document and filing it that way.
Under Ohio law:
"The petition must be filed within 15 days after the results of the election have been “ascertained and announced by the proper authority” or if there is a recount within 10 days after the results have been ascertained and announced. R.C. 3515.09. On October 5, 2004, the Ohio Supreme Court held in Maschari that “ascertained and announced” in this statute refers to certification of election results under R.C. 3513.22.
The Election results were certified on December 6th. If my math is correct, that would give them until December 21st to refile. More than enough time, of course. Just to make sure, it is the objection to the election results that was dismissed, NOT the legal filings in relation to the recount injuction. In any event, this is just a brief explanation from my (not professionally legal!) point of view. Post your questions/comments and we'll see what else we can hash out about this.
by georgia10
http://www.dailykos.com/story/2004/12/16/171343/04
Thu Dec 16th, 2004 at 17:13:43 CDT
Link to the Ohio Supreme Court decision
RawStory Link
NY Times (AP) Link
As Chief Justice, I have statutory authority to determine only the
challenge filed by the contestors to the election of President and Vice-President.
No statute or case law authorizes the filing of multiple election contests in a single
case. The complaint is fatally defective. I therefore order that the contest of the
presidential election held on November 2, 2004, be dismissed without prejudice.
So ordered.
What does this mean? More, below.
"Dismissed without prejudice" is not fatal to the case...far from it. It's a procedural slap on the wrist.
Here are some questions answered:
1) Did they decide anything about the claims?
No. It means that the complaint itself was somehow improper in form. This decision is NOT based on the merits of the case or the substance of the claims.
2) Can they appeal this decision?
Probably not. Generally, you can only appeal a "final judgement;" and dismissal without prejudice isn't generally construed as a "final judgement" because the claim isn't resolved or dead. It can easily be adjudicated anew with the filing of a new complaint.
However, it is possible that this can be appealed if it precludes Arnebeck from bringing the same case forward. This might be a possible argument, if there was little or no time to re-file,.
3) Who decided this?
The Chief Justice. And the Chief Justice only. The Chief Justice has sole discretion in pre-trial motions. Read more concering the amibuity in Ohio law about who gets to decide what in the recount process here.
4) What did he decide?
Basically, the decision states that Ohio law, viewed in light of the intent of the legislature, does not allow two different elections to be contested together. Here, it is the presidential election and the Supreme Court election which were objected to.
Chief Justice Moyers took a strict constructionist approach to reading Ohio law ( Preznit Bush would've been proud!). He said that since the law states "an" election appeal shall be filed with the Supreme Court, the law "clearly" allows for only case to be filed per complaint.
Here is the pertinent part of the decision:
Nothing in the pertinent election-contest statutes or case law
construing R.C. 3515.08 permits contesting more than one election in one case.
In fact, the statutes contemplate that an election-contest case will challenge only
one election. For instance, R.C. 3515.09 provides that "[a] contest of election
shall be commenced by the filing of a petition with the clerk of the appropriate
court signed by at least twenty-five voters who voted at the last election for or
against a candidate for the office or for or against the issue being contested")
(emphasis added), and R.C. 3515.14 provides that the court shall dispose of an
election contest by pronouncing judgment as to "which candidate" (not
candidates) was elected.
{¶ 6} In adopting R.C. 3515.08 the General Assembly recognized that
election contests by their nature are not well suited to consolidation.
Consolidation of two election contests--one challenging the results of the
presidential election and one challenging the election of the Chief Justice--
unnecessarily complicates the two contests procedurally. R.C. 3515.08 vests responsibility for deciding the election contest concerning the presidential
election with the Chief Justice of the Supreme Court of Ohio. However, under the
statute, the Governor selects another justice to hear a contest of an election to the
office of Chief Justice of this court. Therefore, if this combined election-contest
case were to proceed as filed, two separate justices would be responsible for
presiding over two separate contests in one case. No words in the statute nor any
decision of a court of which I am aware supports a conclusion that the General
Assembly produced that result. Moreover, were this court to sanction
consolidation here it would establish a precedent whereby twenty-five voters
could challenge, in a single case, the election results of every statewide race and
issue on the ballot in any given election.
Arnebeck likely filed both suits together thinking that the Chief Justice would have to recuse himself from the case because he was a candidate for the Supreme Court election. But like any man in a position of absolute power, the Chief Justice here says no. He still wants to preside over the Bush/Kerry part of the suit, so he dismissed the case to get his way.
I think the most disturbing part is the last part, where he doesn't want to "set precedent" of 25 voters challenging the election results of every race and issue. This would seem like a valid point; however, where votes for all those races/isses were cast on the same machines which are, in effect, the essence of the dispute, I think it would be logical to keep them together.
5) What can be done? Arnebeck can refile this with a simple "cut n' paste" , cutting out the Connelly stuff and putting it in a separate document and filing it that way.
Under Ohio law:
"The petition must be filed within 15 days after the results of the election have been “ascertained and announced by the proper authority” or if there is a recount within 10 days after the results have been ascertained and announced. R.C. 3515.09. On October 5, 2004, the Ohio Supreme Court held in Maschari that “ascertained and announced” in this statute refers to certification of election results under R.C. 3513.22.
The Election results were certified on December 6th. If my math is correct, that would give them until December 21st to refile. More than enough time, of course. Just to make sure, it is the objection to the election results that was dismissed, NOT the legal filings in relation to the recount injuction. In any event, this is just a brief explanation from my (not professionally legal!) point of view. Post your questions/comments and we'll see what else we can hash out about this.
QUOTE
Ohio Chief Justice "Trips Up" Arnebeck lawsuit | 45 comments
two ways i look at this. O nthe one hand, the CJ is of course right and it is an easy decision. the legislature and the statutes clearly seem to be saying that you cannot contest two "elections" at the same time. Fine.
On the other hand, this is total bull "expletive deleted". The entire trend of the civil procedure in this country seems to be towrds allowing the consolidation of like claims in order to reduced administration costs and the lieklihood of disparate judgments on like issues creating injustice. Further, the semantic split of "election" to me seems disingenuous and calculated to throw up the exact roadblocks the cntestors now face. Since all "elections" were practiaclly the SAME election, if you prove fraud in one "election" you have pretty much thrwn all of the others into question. Total BS.
by Euphronius
--------------------
makes sense, really
my reading of the decision is that his reasoning was not that you could not contest more than one election at one time....its just that you could not contest an election involving the Chief Justice AND another election in which the Chief Justice must make certain decisions at the same time.
Which in a lot of ways makes perfect sense to me. If the law empowers the Chief Justice to preside over Presidential election contests, it is clear that he should do so----but combining that contest with a contest concerning his own race would force his recusal REGARDLESS of the merits of the case against the Chief Justice.
Arneback should refile, and if the evidence shows that the same fraud schemes benefitted both Bush and the Chief Justice, he should file a motion for recusal by the Chief Justice.
two ways i look at this. O nthe one hand, the CJ is of course right and it is an easy decision. the legislature and the statutes clearly seem to be saying that you cannot contest two "elections" at the same time. Fine.
On the other hand, this is total bull "expletive deleted". The entire trend of the civil procedure in this country seems to be towrds allowing the consolidation of like claims in order to reduced administration costs and the lieklihood of disparate judgments on like issues creating injustice. Further, the semantic split of "election" to me seems disingenuous and calculated to throw up the exact roadblocks the cntestors now face. Since all "elections" were practiaclly the SAME election, if you prove fraud in one "election" you have pretty much thrwn all of the others into question. Total BS.
by Euphronius
--------------------
makes sense, really
my reading of the decision is that his reasoning was not that you could not contest more than one election at one time....its just that you could not contest an election involving the Chief Justice AND another election in which the Chief Justice must make certain decisions at the same time.
Which in a lot of ways makes perfect sense to me. If the law empowers the Chief Justice to preside over Presidential election contests, it is clear that he should do so----but combining that contest with a contest concerning his own race would force his recusal REGARDLESS of the merits of the case against the Chief Justice.
Arneback should refile, and if the evidence shows that the same fraud schemes benefitted both Bush and the Chief Justice, he should file a motion for recusal by the Chief Justice.