Miller v. Lieutenant Governor Craig Campbell et al

Filing 80

MOTION to Amend/Correct Complaint by Joe Miller. (Attachments: # 1 Proposed Amended Complaint, # 2 Proposed Order)(Van Flein, Thomas)

Miller v. Lieutenant Governor Craig Campbell et al

Doc. 80

2
3 4 5 6 7 8 9
10 11 12

Thomas V. Van Flein John Tiemessen Clapp, Peterson, Van Flein, Tiemessen & Thorsness LLC 711 H S1., Suite 620 Anchorage, Alaska 99501-3454 Phone: [phone] Facsimile: [phone] Michael T. Morley 616 E S1. N.W #254 Washington, D. C. 20004 Phone: [phone] Facsimile: [phone] E-mail: [e-mail] Not admitted in the U.S. District Court for the District of Alaska

Attorneys for Plaintiff Joe Miller UNITED STATES DISTRICT COURT DISTRICT OF ALASKA
) ) ) ) ) ) ) ) ) ) ) ) )

13 14 15

JOE MILLER,

Civil Action No: 3: 10-cv-252 (RRB)

Plaintiff,
16 17 18 19 20
21

v.

LIEUTENANT TREADWELL, and the STATE DIVISION OF

GOVERNOR MEAD in his official capacity; OF ALASKA, ELECTIONS,

Defendants.
-------------)

22
23 24 25

AMENDED MOTION TO FILE AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
Amended Motion to File Amended Complaint for Injunctive and Declaratory Relief Miller v. Treadwell, Case NO.3: IO-CV-252 (RRB) Page lof6

26

Dockets.Justia.com

Plaintiff Joe Miller respectfully
2
3 4

amends his pending motion for an Order allowing

him to amend his Complaint in this case. Plaintiff Miller is entitled to amend his Complaint "as a matter of course," Fed. R. Civ. P. 15(a)(I)(B), because Defendants are required to file

a responsive pleading to it, see id. R. 12(a)(1 )(A)(i), and they served a motion under Fed. R.
5 6 7 8 9
10 11

Civ. P. 12(b) within 21 days of Plaintiff Miller's original Complaint being filed. Pursuant to Ak. L.R. 15.1(1), Plaintiff has attached a revised copy of his proposed amended pleading to this Motion. Plaintiff Miller respectfully asks that this Court accept

the attached Substitute Amended Complaint in lieu of the original Amended Complaint for three reasons: (i) some of the allegations regarding Plaintiff Miller's new Equal Protection claim (Count III) have been corrected based on subsequent revelation by Defendants; (ii)

12

13 14 15 16 17 18 19

Plaintiff Miller has omitted his state-law claims (Counts IV and V), in light of the Alaska Supreme Court's ruling regarding them; and (iii) Plaintiff Miller has updated the style of the case to represent the substitution of the new Lieutenant Governor as a named defendant. Even if this Court concludes that Plaintiff Miller is not entitled to file this Substitute Amended Complaint as of right, it nevertheless discretion. should allow this amendment as a matter of

Fed. R. Civ. P. 15(a)(2) provides that, when a party is not entitled to amend its leave," and "[t]he court 15' s "policy of favoring

pleading as a matter of course, it may do so with "the court's
20
21

should freely give leave when justice

so requires."

Rule

22
23 24 25

amendments to pleadings should be applied with extreme liberality."

Amended Motion to File Amended Complaint for Injunctive and Declaratory Relief
Miller v. Treadwell, Case NO.3: IO-CV-252 (RRB) Page 2 of6

26

DCD Progs., Ltd v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (quotation marks omitted).
2
3 4 5 6 7

"Ordinarily,

leave should be granted unless the amendment follows undue delay, seeks to the opposing party, or threatens to unduly

inject an improper claim, unfairly prejudices increase discovery or delay trial."

Wayson v. Schneider, No F-03-CV-35 (JWS), 2005 WL

1079317, at *4 (D. Ak. May 5, 2005). In this case, particularly preliminary injunction barring in light of this Court's the Defendants from imminent the dissolution election of the results,

certifying

8 9
10 11 12

Defendants would not be prejudiced by allowing this amendment.

Because this case has

been stayed for over a month, Plaintiff Miller did not unduly delay in filing the proposed amendment. The only real issue is whether the amendment would be futile.

In its recent ruling in Miller v. Treadwell, the Alaska Supreme Court attempted to preclude this Court's consideration of Appellant Miller's new Equal Protection claim

13 14 15

(based on the Defendants'

disparate treatment of different classes of ballots) by concluding Votes Complied With Alaska Law and Did Not

that "The Manual Count of Write-in
16 17 18 19 20
21

Violate Miller's Right to Equal Protection."

Ex. 1 to SJ Memo, at 8. That Equal Protection

issue was not properly before the Alaska Supreme Court, however, and its decision to sua

sponte address it does not preclude Plaintiff Miller's claim here.
In his state-court complaint, Plaintiff Miller made an express "England reservation" of his federal claims, including his Equal Protection claims: Pursuant to the U.S. District Court's Order, Plaintiff Miller has filed the instant lawsuit so that this Court can have an opportunity to address
Amended Motion to File Amended Complaint for Injunctive and Declaratory Relief Miller v. Treadwell, Case NO.3: IO-CV-252 (RRB) Page 3 of6

22
23 24 25

26

2
3 4 5 6 7 8 9
10 11

Defendants' various violations of state law, as well as the state-law issues implicit in his federal constitutional claims. Pursuant to England v. State Board of Medical Examiners, 375 U.S 411 (1964), and United Parcel Service v. California Public Utilities Comm 'n, 77 F.3d 1178 (9th Cir. 1996), Plaintiff Miller respectfully reserves his right to have the U.S. District Court address the federal claims related to this lawsuit, including but not limited to Plaintiff Miller's claims under the Elections Clause, U.S. Const., art. I, § 4, cl. 1., and the Equal Protection Clause, id. amend XlV.

Miller v. Treadwell, No. 1JU-10-1007 CI, Complaint at,-r 4 (filed Nov. 22, 2010) (copy on
file with this Court). Plaintiff Miller alerted the Alaska Supreme Court to the federal Equal Protection issue at issue in Count III of his Amended Complaint, so it could construe 6 Alaska Admin. Code ,-r25.085 in light of that claim, as U.S. Supreme Court precedent required him to do.

See England, 375 U.S. at 420 (holding that a litigant must "inform [the state] courts what
12

13 14 15 16 17 18 19

his federal claims are, so that the state statute may be construed 'in light of' those claims");

United Parcel Serv., Inc. v. Cal. Pub. Utils. Comm 'n, 77 F.3d 1178, 1186 (9th Cir. 1996)
("[Plaintiff's] flagging of the federal claim in the headings was not an attempt to 'argue' the

claim, but to apprise the state court of the existence of the claim so that the state court might rule 'in light of' the federal claim. "'). Plaintiff Miller's brief to the Alaska Supreme Court expressly reiterated that he "has reserved for federal court his federal Equal

Protection claim regarding the disparate standards [the State] employed for determining the
20
21

validity of write-in votes and votes for [preprinted] litigate it here."

candidates,

and does not intend to 14, 2010), available at

22
23 24 25

See Corrected

Appellant's

Brief 32 (Dec.

http://www.courts.alaska.gov/media/s-14112-d.pdf.

Thus, the fact that the state Supreme

Amended Motion to File Amended Complaint for Injunctive and Declaratory Relief Miller v. Treadwell, Case No.3: IO-CV-252 (RRB) Page 4 of6

26

Court reached out and, of its own accord, purported to adjudicate that claim, and make
2
3 4 5 6 7

factual findings regarding

it, does not bar Plaintiff Miller from pursuing

it here.

See

England, 375 U.S. at 421 n.21; UPS, 77 F.3d at 1186.
The parties dispute whether, different procedures candidates. as a matter of fact, Defendants actually did apply

and standards for reviewing write-in votes and votes for pre-printed conceded that Division of Elections personnel physically

It is universally

touched and looked at every vote cast in the election, for the purpose of separating them
8 9
10 11 12

into five piles, segregating the write-in votes from the votes for preprinted candidates. Director has stated that she personally regardless of whether it involved

The

reviewed every potential overvote and undervote, vote, to determine whether it should be

a write-in

accepted as valid and counted.

See Ex. 2 to SJ Memo, at 6. The data suggests otherwise-

13 14 15

it defies credulity to contend that the manual review identified 1,553 more potentially valid write-in votes than the automated tally machines had recognized, id. at 7, yet a maximum of only 20 additional votes for Joe Miller, id.-a figure that is composed primarily of votes because the voter had both filled in the The so nor

16 17 18 19 20
21

that had been rejected bubble next to Miller's

by automated tally machines

name and written his name in the write-in area, id. at 8.

extremely expedited state court proceedings did not allow for any discovery whatsoever, Plaintiff Miller was unable to either depose Ms. Fenumiai regarding her affidavits,

propound written discovery requests on this issue. Permitting Plaintiff Miller to amend his

22
23 24 25

Amended Motion to File Amended Complaint for Injunctive and Declaratory Relief Miller v. Treadwell, Case NO.3: IO-CV-252 (RRB) Page 5 of6

26

complaint to pursue this claim will allow him to take limited, but reasonable, discovery, and
2
3 4 5 6 7 8 9
10 11 12

ensure that this claim is fully and fairly adjudicated on its merits. For these reasons, Plaintiff Miller respectfully requests that this Court accept the

Substitute Amended Complaint and allow discovery to proceed on Count III. DATED at Anchorage, Alaska, this 27th day of December 2010. Respectfully submitted, CLAPP, PETERSON, VAN FLEIN, TIEMESSEN & THORSNESS, LLC Attorneys for Plaintiff Joe Miller

13 14

By lsi Thomas V. Van Flein Thomas V. Van Flein, #9011119 John Tiemessen Michael T. Morley (not admitted in the U. S. District Court for the District of Alaska) Attorneys for Plaintiff
Certificate of Service:

15 16 17 18 19

The undersigned hereby certifies that a true and exact copy of the foregoing was served this 27th day of December 2010 via: ( ) Facsimile ( ) E-Mail (X) ECF to the following listed individual(s): Michael Barnhill Sarah Felix Margaret Paton-Walsh Timothy McKeever Scott Kendall By: /s/ Thomas V. Van Flein

20
21

22
23 24 25

Amended Page 6 of6

Motion to File Amended

Complaint

Miller v. Treadwell, Case NO.3: lO-CV-252

for Injunctive (RRB)

and Declaratory

Relief

26