STATE OF WASHINGTON KING COUNTY SUPERIOR COURT

STEVEN R MARQUIS Plaintiff

vs.

SAMUEL SUMNER REED, ACTING IN THE OFFICE OF WASHINGTON STATE, SECRETARY OF STATE Defendant

CIVIL ACTION NO_08-2-34955-1 SEA__________

Plaintiff’s Response to Counsel’s argument to dismiss

Comments in read are my (Steve Marquis’s) Post Mortem after the trial

Plaintiff’s Response to Counsel’s argument to dismiss

1 Introduction

1.1 Defense arguments misconstrue both my basic motion and Plaintiff’s use of what defense called ‘rumors ‘as exhibits. These were included only to demonstrate the point that the process of depending solely on litigation after the fact has not lent itself to establishing and maintaining an election system that the people can trust and depend upon to be above reproach and free from error.

I did not address this orally but did require the petitions that some citizen supports brought be entered as part of the record.

1.2 These questions would not arise and fester as they have if the process made for transparency of salient facts about the candidates – The current process does not meet the minimum demanded by the constitution.

1.3 Further, Plaintive argues that the public’s right to know is more important than the trivial burden (if one can call it that) that the requested performance would impose. I will expand on exactly what that performance would entail.

We discussed this somewhat in the context of the indispensible party

1.4 Plaintiff’s request of Defendant, Secretary of State, was broader than articulated by council for the defense and was not entirely nor specifically directed at acquiring Mr. Obama’s birth records. There have and could be similar requests for any candidate’s basic credentials such as other candidates have offered voluntarily. I did set in this record my specific request as a citizen for the Secretary of State to acquire such documentation as would reasonably answer that qualification question even mid stream in this election process and Plaintiff further argues for a reasonable augmentation to the general application process as would be applied to any/all candidates.

Not discussed

1.5 Mr. Obama’s situation is included as a specific evidence of the broken system. I did not name Mr. Obama as a defendant as I have not accused him of any crime nor fraud nor demanded any significant performance or harm. My suit is directed at the process itself and I have accused Defendant Mr. Reed of failing in his duty to provide a system of elections wherein the people have faith that the basic tenants of the constitution are upheld.

We discussed this in intro and again in the context of the indispensible party

1.6 Avoiding the merits of my arguments from the constitution, counsel for the defense argues four technical reasons as to why this case should be dismissed. I List my detailed response to each item in turn:

1.7 Counsel wants to characterize my plea as someone trying to negligently or ignorantly game the system and that this case should be forthwith dismissed – with prejudice. Thereby avoiding the real constitutional challenge I present that clearly has the interest of the people. Berg’s site has for example has received 60 million inquiries in the last few weeks. The People have a right to know and are obviously desperate for open fair elections.

1.8 I tried to read this but it was impossible – you really just need a few note cards and speak from the heart I did manage to utter the following while seated “Counsel wants to characterize my plea as someone trying to negligently or ignorantly game the system and that this case should be forthwith dismissed – with prejudice.” But then an annoyed judge barked that I should approach the bench and not talk to defense counsel. I apologized, informing the judge that this was the first time ever in a court of law and appreciated his direction as to protocol – he was mollified and once I approached his bench and began my presentation he seemed pleased that I had arguments from the law and counter arguments as to the defenses’ use of THE LAW i.e. past court cases – seems to me these judges go more by the case law than the constitution, more concrete for them so the key is to meld those two together in any argument.

2 Defendant claims regarding Statute of Limitation: “This case is barred by the statute of limitations set forth in RCW 29A.68.011;

3 Plaintiff responds regarding Statute of Limitation:

3.1 The timing of this complaint was determined entirely by the unprecedented lack of transparency and stalling tactics that at this point yielded no answers to the American public in the federal trials. Plaintiff responded not with procrastination but with diligence, filing his complaint soon after Mr. Obama refused to release the same requested information in District Court. Only then did it become clear that litigation would not answer the compelling questions and I needed to find some avenue open to the citizens to rectify this significant flaw in the process overseen by the defendant.

3.2 In response to Defendants argument that the election process as such has already begun Plaintiff offers to clarify that the language by striking the wording in his pleading Ref 7.3 “prior to the election” interpreted by defense as ‘before votes are cast’ to the explicit wording “prior to the conclusion of the election certification”

3.3 Plaintive notes that RCW 29A.68.011 is Titled Prevention and correction of election frauds and errors.

3.4 This section requiring the Superior Court Judge to act and rule when presented with a charge of error, wrongful act. Not necessarily proof. It refers to granting relief over omissions and duty not performed. Specifically Items:

3.5 (5) Any neglect of duty on the part of an election officer other than as provided for in subsections (1) and (3) of this section has occurred or is about to occur; or
(6) An error or omission has occurred or is about to occur in the official certification of the election.

“An affidavit of an elector under subsection (6) of this section shall be filed with the appropriate court no later than ten days following the official certification of the election”

3.6 THERFORE, Plaintiff has until 10 days after official certification to file complaint regarding certification. This is within the Statute of limitations for his complaint.

This argument was accepted much to the chagrin of the defense attorney – Defense made some small snipe about my evolving argument and language (insightfully true) but in the end I was glad that the Judge tossed this dry bone to the Plaintiff – Ha That was key as loosing this one would have made this case a slam dunk for the defense or “ripe for dismissal” as defense opined in his written arguments.

4 Defendant claims “This Action Is Barred By Laches”

4.1 This is basically the concern that a political opponent might at the last moment try to “Game the system” as The WA Director of election explains in Exhibit B The Courts are very skeptical of any last-minute elections lawsuit filed in the closing weeks of any election because Judges do not like litigants "gaming" the electoral process to win advantages for their candidate or ballot proposition.

5 Plaintiff Responds Regarding Doctrine of Laches:

5.1 This is indeed a valid concern for this court and in fine comes down to the question, “Why did you not raise this issue earlier?” Would a court action now negatively affect one or more candidates?

This we discussed as to the timeline and how no challenge can be made before the primary and that leaves a narrow window after; How Obama used up all the time dragging in federal court which I watched. I recounted the move to dismissal by Obama and then my efforts to contact the SOS and the FEC. Only then filing lawsuit when it was clear the SOC didn’t even know how or who would do this vetting

5.2 Counsel for the Defense errs asserting that I had demanded a stop or interruption to the election when in fact I made no such demand for relief, addressing certification of candidates only which can take place after the election avoiding the ‘Laches’ argument entirely.

I think the judge accepted this argument however without discussion back in the end he came to his own opinion that somehow if he ruled that it would affect the election – I suppose I could have retooled that by noting the ongoing election as mostly mail-ins so a ruling postponed til after the Nov 4 would avoid any possible application of Latches

5.3 As for the intentional timing aspect of the ’Latches’ argument, Plaintiff was only alerted along with millions of other Americans on September 24 that there was a real problem when Mr. Obama refused to divulge Birth Certificates and other requested documents in District court. That was perplexing to many average citizens such as myself. That action, that venue that defense expects us the people to depend on left all question unresolved with no documentation disclosed.

Stated in several parts of the arguments

5.4 I direct you exhibit N to show that reasonable and average citizens – even those directly involved speaking for the Secretary assumed that this was being reviewed or certified by someone. From the Secretaries own office I received these missives:

5.4.1 “Presidential candidacy qualifications are reviewed by the Federal Election Commission.”

5.4.2 And then “the federal government will be checking his background to ensure that he is eligible to run for president”

5.4.3 Finally “I will recommend to our Elections Division that the candidates' eligibility for office be placed on our website”

This was only alluded to in oral – as I recounted the ignorant council given by SOC staff.

5.5 These responses on behalf of the Secretary of State demonstrate that the WA State Secretary of States office thought that somebody, just like Plaintiff and most Americans that someone, in this case the FEC was taking care of checking the qualifications and that such could and should by rights be posted on the Official Web site. I ask for nothing more; not a test of the proffered documents, just the public disclosure of the same. This would not possibly damage or even inconvenience any valid candidate nor cause any significant performance demand on the Office of Secretary of State.

I’m not sure the judge bought my understanding of Harm and significant performance as the requisite for an indispensible party. If I had some case law to back that up – maybe I could have carried that argument. That seems to be the nature of the game. Whenever I spoke to case law the judge seemed pleased. Anyway, this act of possible harm could and should be elaborated on. I think this is a winning argument. State it outright that ‘if the candidate is on the up and up – there can be no damage, but if he is in fact ineligible should the court shield harm to the defendant to the detriment of the process and the good of the people?’

In any case regarding indispensible party, I think we can yet remain in superior court with Obama/Pelosi as secondary defendants. I did not make this argument and I’m thinking we should for the publicity alone include Obama and Pelosi in the future. We need to be careful though as somehow CT trial got kicked up to the CT supreme court and I think he has these extra characters listed in his. I'm not sure what the trigger is and it would be great to have counsel weigh in in these points ( any others also!)

5.6 In very fact, Plaintiff’s petition can be met without in any way interfering with the process underway. No votes will be hindered as I do not ask for any processes under way to be proscribed or touched in any way - hence for both reasons, the doctrine of latches does not apply.

5.7 Furthermore, this case has very little main stream publicity and what main stream publicity it does has not promoted my arguments. If the secretary of State were to in fact ask for the minimal documentation that would satisfy the requirements as detailed in the US and WA constitution and the applicable federal statutes, any or all candidates could easily comply with no more effort than a simple letter to their respective document archives to release a certified copy. There is no harm received by any valid candidate.

Stated

5.8 Plaintiff would be satisfied as well as millions of Americans who want to know that when the Secretary of WA State certifies the winning candidate that a valid candidate has been certified.

Stated

6 Defense argues Action Should Be Dismissed For Failure To Join An Indispensible Party

A candidate running for elected office exercises a constitutional right. Dumas v. Gagner,

137 Wn.2d 268, 285, 971 P.2d 17 (1999) (“Since the right to participate in the government is the common right of all, it is the unqualified right of any eligible person within the state to aspire to any of these offices, and equally the unqualified right of the people of the state to choose from among those aspiring the persons who shall hold such offices.”). At the heart of Mr. Marquis’ claim lies the right of Senator Obama to appear on the ballot, but Mr. Marquis has not joined the Senator. Since Senator Obama’s interests are clearly at issue in this case, the burden clearly falls upon Mr. Marquis, and upon no one else, to join him in this matter. CR 19. His failure to do so constitutes inexcusable neglect.

7 Plaintiff Argues No Harm was intended nor expected to any candidate including Mr. Obama.

7.1 Plaintiff has no issue with Mr. Obama being on the ballot and since no harm nor significant performance can be construed to accrue to a candidate by requesting minimal documentation as part of certification, Plaintive did not join any of the candidates. If counsel can put forth any reasonable argument as to how it would be possible for a candidate to be harmed or even inconvenienced by requesting a self disclosure, Plaintive would agree to move for leave to join any or all candidates. I think the defense cannot show any such harm and again asserts that Plaintive would be perfectly satisfied with any qualified candidate appearing on the ballot including Mr. Obama.

This move to “leave to join” whet right past the judge and I should have figured out how to get back to this as well as how to suggest the delay in the ruling to avoid the latches, but procedurally I really did not have a clue as to when I could speak up about that nor was I convinced that the judge would have appreciated me getting in their faces. If this had been submitted earlier I writing …. Not sure how that plays out. (Where is a lawyer when you need one? (in as few words as possible please!)

7.2 When the supreme court ordered school busing it did not include thousands of school superintendents that were going to have deal with the cost of implementing it, because their performances were not deemed too significant a hardship - how much less than the trivial performance of a candidate should the secretary request a copy of his birth certificate or alternate declaration.

Somehow this did not stick or I glossed too lightly over this argument too

8 Defense Argues: The Secretary Of State Has No Authority To Require Proof Of Senator Obama’s Citizenship

Washington law is well established that elections officials lack the authority to inquire

into the qualifications of candidates for office. “[I]t is clear that an officer with whom an

aspiring candidate must file may not reject a declaration of candidacy on the grounds that the candidate is ineligible if that rejection is based on extrinsic factual knowledge or involves the interpretation of statutory or constitutional provisions.” Fischnaller v. Thurston Cy., Also McAulay, 196 Wash. at 3

9 Plaintiff Responds: We Are Not Demanding a Test

9.1 Defense argues well and at length against a straw man I might title ‘judgments as basis for rejection.’ Yet Plaintiff made no such demands for judgment regarding the content of proffered documentation; since no rejection based on evaluation or test has been demanded, the test suggested in Fischnaller v. Thurston simply does not apply. In no case am I demanding nor suggesting that rejection be based on judgment as to the quality, quantity or validity or any other aspect of the candidates response, but only that a response to the request is received. In fact a candidates response could simply be “no response.”

This argument turned the heads a bit and I think the Judge and defense both had to confer a bit coming up with some other opinion that embolden the position that even without a test or evaluation that they still could not require additional info – really fantastically - beyond the applicants name. It was really a preposterous position to take, case law or no, but I had no argument in case law to rebut. Only later did it suddenly occur to argue that we ask financial info (an some of that IS evaluated – though nit by the registrar to be fair. That would have been my trump that certainly we do ask some extrinsic evidence and some pretty invasive evidence at that!

9.2 Again, no evaluation is demanded whatsoever. It is either received or not received. This is less demanding by far than attesting that you are a citizen of a given county when voting and places zero burden on any candidate, but completely solves a gaping wound in the public’s confidence in the system. That additional minuscule performance requested of the candidates by the Office of Secretary of State would provide the openness and transparency that is argued by Plaintiff as constitutionally required but not currently achieved.

I did point out that we ask for performance and att4estation of the “dog catcher” than president which was patently illogical

9.3 Note that any judgment regarding the proffered documents would rest with the voters, not the Secretary or some application office. The Secretary, however, would have accomplished the people’s goal outlined in the WA constitution, US Supreme court opinion and in statutes – that of achieving confidence in the system, transparency and fairness with no burden nor harm to anyone.

I'm not sure I had the time or opportunity to drive that point home

9.4 See Exhibit Q shows one such approach that allows for flexibility in the declaration including , “decline to say”

This worked well in context with the extrinsic evidence part. It would maybe have swayed the judge on this point had I had an example of a campaign finance form! Talk about evidence demanded! While perhaps one could argue that is not part of the application process, I could just as well argue that the proffering of citizenship docs are also not part – they are just ancillary documents used to verify compliance with state law. The secretary of state or other agency like the FEC monitors this and keep the public apprized. I see no reason why the law as outlined in the Constitution could not be similarly verified by the secretary of that – In essence they have already been authorized by law(supreme law) and they need no more. I think we can win on this approach. Coupled with elaboration on the finance situation I think this line of argument can be the silver bullet. I seems too reasonable to have to detail your bank account but not your birth place.

10 Defense argues there is no Statutory Authority

11 Plaintiff Argues that Statutes and Constitution Guidelines Enable Flexibility Rather than Mandated Inaction

11.1 I fully acknowledge counsel for the Defense’ point that there is no explicit statute demanding such augmentation of the application process. Plaintiff argues, nevertheless, that absence of statutory guideline does not imply mandated inaction unless specifically precluded by statutes. Not sure how well I argued this- have to review the tape.

11.2 Unless specifically prohibited by statutes, acting as an independent branch of government, the executive branch may create such rules or procedures, forms or applications that achieve the intent of the constitution and avoid potential for fraud as this statute generally directs: (See 29A.04.205 “to protect the integrity of the electoral process by providing equal access to the process while guarding against discrimination and fraud.”

No time – should have had more but loosing ground on the indispensible party, I think Judge had his mind made up about the outcome, if you don’t win the technical – no way is he going to go out upon a limb on these constitutional arguments.

11.3 The secretary of state has demonstrably failed in this broad goal yet has a remedy at hand to resolve the concern of real or perceived fraud before the court. The questions of cover-up and obfuscation that dogged the yet unanswered litigation approach in the current Berg federal case simply disappear in the transparency of such an application process as the candidates will be inherently motivated to be forthcoming. Problem solved, no harm done to any candidate, full transparency.

11.4 Can the Court ask this of the Executive Branch?

11.5 Certainly, the courts are prudently wary of mandating a specific remedies derived from the general constitutional language and provisions and rightly so, but on a few occasions when the legislative or executives branches were deemed in egregious fault in meeting the duties expressed in the constitution, or more frequently when the executive branch was deemed to not be in compliance with the will of the people as expressed in legislation, the courts have acted and in some cases with specific remedy such as ordering desegregation and the attendant school bussing that resulted.

This judge made a terse statement that I was mistaken that he had the authority to order the SOS. That is a question for lawyers to validate. Did he Could he or did it need to go to another court. If he found for us, but determined we needed to go up a level – what then how does that play out? I thought the judge would not take the case unless he could grant the plaintiffs demands should he prevail. We should figure this out

11.6 What Plaintiff is asking for a broken, patently opaque, election system is much like the court imposed edict to integrate schools via school bussing was to resolve inequity.

I used this argument without rebuttle

11.7 It should be noted that there is some precedent for asking some declaration from a candidate such as found in the current candidate declaration form for lower offices (See Exhibit M) where the line “I am legally qualified to assume office if elected.” is found.

Only made week reference to this (”dog Catcher”

12 Is there any other remedy? No

12.1 The root of the problem is that directly challenging the citizenship of a candidate at the federal level is unavailable to the general citizen. We are treated by the federal court are non- parties to the action which leave us with no relief for a significant harm of the potential to be led by a president with possible divided loyalties even though proscribed by the constitution.

12.2 Clearly when months of lawsuits end up without the legitimate questions of the public being answered demonstrates that the process of reactive challenges to candidates has failed.

12.3 It is precisely that the law has not satisfied the demands of the constitution to have a open transparent election system that lends to a peaceful transition of power that this case is brought before this honorable court - that he might consider the merits of directing the Secretary of State to proactively receive the minimal documentation. In this wise the candidates will be motivated to openly disclose with alacrity.

13 Plaintiff’s Conclusion

Id have to say that getting zero practice time (negative sleep prepping and restoring computers and then getting a measly ½ hour to make this huge case Aggghhhh I think I got precious little wrap up speech – Oh did I mention that the judge seemed to want to take ½ my time to lecture me- really sometimes asking but very longwinded questions – that was frustrating – watching my clock tick down as the judge tried to make defenses case for him on my watch.

13.1 Election to office is not a right where burden of proof is on a challenger but a privilege where some of the burden to provide information shifts to the applicant such as obtaining a passport or acquiring a drivers. The FEC for example demands al kinds of financial information up front – is it really asking that much to request a copy of a birth certificate?

13.2 I argue that simply accepting a signature is a lower standard than almost any other process of government affecting a privilege.

13.3 I make the claim that the Constitution of WA verified by Supreme Court opinions place a burden on the Secretary of State to provide a process that is above reproach and instills confidence in the people in the veracity of the election process so as to achieve a peaceful transition of power and that that overarching goal has demonstrably not been met by this retroactive after the fact litigation approach.

13.4 I offer suggested implementations that do no harm to any candidate and require only the smallest of performance from those individuals that through this process are asking the peoples trust and support. This modicum of openness achieves that goal and is within the reach of this court to grant.