Outcome of Today's Volusia County Hearing

[AimeeMM]

The attys the Canvassing Board & Ann McFall (SOE-elect) filed 3 motions, but only argued one - lack of jurisdiction - based on the lawsuit being filed on the 11th day. They said they would wait to argue the other 2 (failure to include indespensible parties & the other I missed) on another date, pending the outcome of the first.

Their main arugement centered around Greenwood vs City of Delray Beach, from 1989. Plaintiff's side aruged that that decision was based on an old statute which has since been updated so the precedent doesn't exist.

The other main arguement from the Plaintiff's side is that while certification took place on 11/12, it took place AFTER BUSINESS HOURS. So, you go down to the courthouse after business hours to file something. What happens? You have to come back the NEXT business day.

We were in the courtroom for around an hour. There were around 30 people in the audience, including 3 reporters (Daytona Bch News-Journal & DeLand Beacon), and 2 that I confirmed were for the other side. So, we had around 25 people in support of our lawsuit.

Afterwards we sat around listening to everyone talk. The judge on the canvassing board was being interviewed by the News-Journal so we listened in on his opinion. Then a woman named Susan Dupree went up to the judge. She has nothing to do with the lawsuit, but was a paid poll worker (ie, employee of Deanie Lowe, SOE) and said she saw first hand how people could double vote and wondered how we could have a certified election when there are 12 people currently being investigated for double voting. If they voted twice, how is the election fair? And how many others did the same.

But back to our case. Susan Pynchon, and several other members of the Florida Fair Elections Coalition sat on the front steps of the courthouse waiting for the verdict. Our atty, Dan Vaughen, finally came out with the ruling - DISMISSED WITH 10 DAYS TO AMEND COMPLAINT. I didn't personally read it, yet, however, I was told it contained language pointing out that we need to show proof the election was certified AFTER business hours in order to proceed.

So, we have a long fight ahead of us. Our website is not pretty, but has info on it about the lawsuit. I will be updating it this weekend with more info about what happened today. I am also going to include any evidence that I am told I can post.

www.floridafairelections.org

[Jack_Dawson]

1. What does Bev Harris look like?

I've never seen her. :shrug:

[Name removed]

2. Deleted message

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

[claudiajean]

13. I'm sorry, but that is just rude.

There is no need to start picking on someone's personal appearance, regardless of any issues you may have with someone otherwise.

And the post is inaccurate: Bev Harris most assuredly does not look like Rosanne Barr in her "heavier" days.

Bev looks like a 5'3" tall 52-year old suburban grandmother with brown hair and blond highlights, who dresses professionally and smiles a lot.

[IAMREALITY]

15. Ehhh

Sorry, but that was the closest I could come up with at the time.

Roseanne, you have my apologies. (hehe)

:)

[symbolman]

14. Here is the pic after she as tombstoned.

A visual metaphor of "The Scarlet Letter" - being a Public Person (I am one too) has it's cons...

[KatieB]

3. Keep up the good work

[Jersey Devil]

4. Court's decision sounds bass ackwards

If the Complaint was dismissed without prejudice, allowing a refiling within 10 days accompanied by proof the certification was done after business hours sounds like a partial victory. However, with no Complaint pending before the court there is no legal means to demand discovery of documents to prove what time the certification took place or any legal authority to conduct depositions of employees to establish those facts (other than a FOIA which certainly would be stalled).

On the other hand, if the court had withheld judgment for 10 days while allowing depositions and discovery during that period you could probably get to the bottom of it.

So my take is we lost.

A larger question - Why was the Complaint filed late in the first place? Statute of Limitation questions are almost always strictly construed in favor of limiting the right to sue if the SL expires.

[GettysbergII]

5. Thqnks, Aimee!! (nm)

[texpatriot2004]

6. My take is that it's not a loss. It's not a win. It's to be continued.

Isn't it true that the time frame restrictions can be handled through litigation?

[trayfoot]

9. If I am reading right........

it would appear that the judge simply said that the plaintiff has to prove that this happened AFTER business hours. Why would that be so hard to prove??????

[Jersey Devil]

10. With the complaint dismissed there is no right for discovery

You can't take depositions or demand documents without an underlying complaint nor can you subpoena witnesses. So unless there is a public record or some easy way to prove the time it occurred you are out of luck.

[AimeeMM]

19. You can still demand public records.

Which is what the SOE will not cough up.

[Jersey Devil]

37. Yes, they will turn over the records - in 11 days

Let's hope that isn't the scenario.

[AimeeMM]

18. That's how we understand it.

It wouldn't be hard to prove if the SOE would just show the certification. All they needed to do to disprove the after-hours bit today was to show the certification. Of course, they didn't do that.

[jamboi]

7. Keep it up!! n/t

[Maddy McCall]

8. Kick!

Good luck in your efforts on all of our behalf! :toast:

[truehawk]

11. Thanks for the Update

[KoKo]

12. Thanks much for this post! As one whose sat through these County/State/

District Hearings...I understand how slow it goes...and how as an "activist" it's easy to feel left out. (Sort of like you arrived at a big party duded up and ready to go...but finding out that it might not be the function you "Thought" you were attending and that the "Real" party took place in a "back room" long before you got there for the time your "invitation" stated.

I may be wrong in saying this about Florida...but it's been my experience with North Carolina Party Governance.....:shrug:

[claudiajean]

16. Thank you for the update, Aimee. This is a win, no doubt.

I spent time with Dan Vaughn and Susan Pynchon on the phone this morning, and we were afraid of a complete and final dismissal, as, on the face of it, the case was filed late under Florida law.

But the reason it was filed late was that the County was conducting official business after hours on a Friday, thus making the date of the action constructively the next business day, or the following Monday. The first that the public could obtain information about the certification of the election was the following Monday, the same day the lawsuit would have have to have been filed.

Had Volusia County actually conducted their business during business hours on certification Friday, and made that information available to the public on that Friday, then Monday would have been a reasonable deadline for filing suit.

The fact that Dan Vaughn was able to effectively make the argument that it is bad public policy to accept that a governmental agency can conduct business in the middle of the night, and thus constructively bar members of the public from taking action against such actions in a timely manner has actually made the case continue to be viable. The fact that the judge left the refiling option open is a big, big procedural WIN!

This is only a dismissal if you folks down there cannot come up with evidence to show that the certification was finalized after hours. You have 10 days and I am 100% confident you all can put it together.

Big congratulations to everyone!

:bounce:

[delphine]

17. They don't have to show proof the certification was after hours -

They just phrase it like this:

Based on information and belief, Plaintiffs allege that the elections commission certified the vote after hours . . . etc.

They make the allegation in the complaint. All complaints are "on information and belief" because you are not required to prove your case in the complaint, you only have to state a cause of action - i.e., we think the law was broken etc.

The judge is giving the plaintiffs (our side) time to amend the complaint to allege they could not have filed any earlier.

[claudiajean]

20. Were you there? At the hearing? If so,...

..what can you tell me about how the hearing went?

[CyberChas]

21. Spin and counter spin -- they are the enemy

The judge is clearly not a friend of the Anti Vote Fraud contingent.

The idea here was to make it look like a "loss" from a lay persons perspective which can be spun throughout the weekend media cycles.

Every single media cycle that we are on the defensive works to their basic game plan of marginalizing the movement for a fair vote count.

It's an ugly game.

Charlie Levenson
Portland, ORegon
[e-mail]
(phone # on request)
----
As Susan in Denver (pookysuz) says: Stay Calm, Committed, Cognitive, and Coherent!
----
If we allow this election to stand without a fight, and the media convinces the masses that it was "fair and trouble-free" then we will never have another honest election in our lifetimes in this country.

[Lil]

22. "(pookysuz) says: Stay Calm, Committed, Cognitive, and Coherent!"

Deserves a subject line. Thanks.

[claudiajean]

23. Although I agree with your overall point, (spin is the enemy)...

...I actually think the judge is one of the good guys.

He has a good reputation, and our folks in Volusia were very happy this morning that they had drawn him, and not the other possibility for a hearing this morning.

(I'm stuck thousands of miles away, and have been hoping to reach someone who was at the hearing - I thought the poster above might be a possibility...sigh.)

There was the very real possibility that an "anti vote fraud" judge could have thrown the case out with prejudice because, on the face of it, the case was filed late under the statute.

However, the late filing was actually because Volusia County Elections was conducting business after hours in their hidey-hole without public access or information. So, the argument is that constructively the filing was not late, as the information was available a business day late from the County, and the lawsuit was filed as quickly as possible upon public notification.

This was actually one of the best possible rulings under the circumstances.

[AimeeMM]

24. I was there, what do you want to know?

[claudiajean]

26. Yay! Everything - how it went, how the judge seemed to react...

...which arguments Dan used, if Susan got her declaration finished, ho, everything!!!! :)

(you can PM me if you want...)

[AimeeMM]

27. On my way out, but here are my notes from court...

The judge (C McFerrin Smith III, who I have other personal experience with), sat and listened to the defense attys. With Dan, he actually had questions and statements. I spoke to several people afterwards and we all had the feeling that he would rule against us due to his body language in court. The fact that we can amend w/in 10 days is fantastic.

Notes I took in court, sorry for the choppiness, no time right now:

Theo Dorin (atty for Ann McFall):
- sited Greenwood vs City of Delray Bch (1989) - took 19 months for lawsuit, was then dismissed.
- Kinsel (or McKinsel or Kinsey...something like that!) vs City of Miami where initial suit was filed timely, then dismissed w/o prej. on technicality, later refiled and dismissed for lack of jurisdiction (timeliness).

Eckert (Volusia County atty):
- McPherson vs Flynn & Bailey vs Davis sited, jurisdiction issues
- sited Miami in 1997 where there was proven fraud but because remedy was new election and that was not possible (I'm unsure why, not familiar with this case) so dismissed

Dan Vaughen (atty for Susany Pynchon):
- county's motions not received until 2pm on 12/02 (repeated pattern)
- plaintiffs still will not factually show when the election was certified
- certification took place after business hours as reported by local media and election workers, no paper trail to prove this, yet
- Greenwood is based on old statutes that have since been amended
- this case is regarding a core right of democracy so we cannot resort to letting a technicality which is a minor part of a statute determine the case
- Greenwood was 19 months late with no allegations of fraud, this is 1 day late with allegations of fraud
- remedy discussions (see Eckert) are premature

Dorin response:
- claimed Vaughen used emotional pleadings and that voters now need "certainty and closure" (no shit, sherlock!!!)
- claimed the only person unsure is Susan Pynchon
- said the lawsuit did not state facts, but was a series of questions
- said a person cannot file because they are not convinced

Vaughen response:
- Greenwood is old statutes
- Greenwood was not around when electronic voting was an issue
- SOE has shown a consistent pattern of delays
- evidence shows the certified numbers cannot be accurate

Dorin response:
- statutes may have changed (re Greenwood) but 10 day limit did not
- not having the info does not mean you can't file a lawsuit (re 1 day late)

[claudiajean]

28. Thanks! n/t

[demobabe]

29. Yes, the fact the judge is giving you a second chance is great

My guess is that the whole suit was going to be thrown out, period.

But from the sounds of it, this judge is actually trying to help and basically gave instructions as to what it is he will accept so the complaint fits within the law. See, if he admits the case now, it's possible and likely that if you were to win, that the other side would appeal the case, and if it's overturned on the appeal, that's a black mark on this judge's record. He doesn't want that. But he's being nice in telling you how to fix your complaint so that particular argument will be iron-clad if it goes up the ladder (thereby not affecting his record).

Courts are a strange political game. But listen to this judge and follow what he's telling you and refile. You guys have a shot.

[AimeeMM]

34. I was a juror for this judge in 1997...

The arresting officer testified that the defendant asked for his atty thus causing a mistrial. Apparently the jury assumes guilt when they hear the def. wanted legal counsel. The judge and prosecutor spoke to the jury afterwards to inform us and ask what we thought of the case thus far. Later the def pleaded out and months later his atty was convicted of laundering money for clients and served time in Federal prison.

Anyway, the def. - already a convicted child molester on trial for the same - wrote a letter to me and mailed it to my home. As a 21 year old girl, I was terrified. He got my address from the court b/c Volusia County used to hand out all the info on potential jurors to both sides during jury selection. I copied the letter, sent it to Smith, received a letter promising to find a solution, then on 4/28 received another letter from Judge Smith stating that they would no longer give out this info to each side. Of course, a determined person could find a juror's home address, but its no longer handed to them.

Anyway, I was very happy with Judge Smith then and hope that he upholds my expectations of him. Anyone doubters out there who want to see the letters, let me know and I'll scan them in.

[Jersey Devil]

30. Ordinarily, I would agree, but

we have not seen the wording of the order. Do you know if anyone has seen it or if it has even been signed yet? Judges who issue orders from the bench usually follow them up with written orders that either they themselves draw up or the lawyers draw up and submit to the judge for approval.

[AimeeMM]

33. Vaughen has the written order...

Smith did not rule from the bench, he issued a written order sometime between 3:30-4:15pm. Dan Vaughen gave it to us to read, I let Susan & other lawyers look because Dan was delivering the written order to Eckert (county atty).

I will try to get a copy of the written order posted to our website this weekend. I'll post here once I have it online.

www.floridafairelections.org

[Jersey Devil]

36. Thanks Aimee, it makes all the difference

If they can file a new complaint that simply alleges after hours certification and allows discovery (depositions, production of documents, etc., all sanctioned by the court and subject to court ordered enforcement) that makes all the difference. But if they are required to have proof of after hours certification BEFORE filing the amended complaint then I think the case is lost.

[keepthemhonest]

25. thanks for the update aimee

it it so good that people like yourself are going to these things, you know that alot of us would like to be at all of these events that keep transpiring, but since we can not, we appreciate your dedication.

[Straight Shooter]

31. Thank you, Aimee.

Was a court reporter present at this hearing? Will there be a transcript? If not, was the proceeding recorded and can someone obtain the tape(s) for the purpose of creating a transcript?

Thanks again.

:thumbsup:

[symbolman]

32. Court transcripts can cost you a buck a page

and they are double spaced with a limited amount of lines..

court is seriously expensive any way you look at it..

not providing the general public with transcripts at those prices is very reasonable to me..

not like Xeroxing proof of fraud..

wonder if the Smoking gun might have some good stuff, they get GREAT court papers..

[AimeeMM]

35. Court Reporter, Yes. Other Recorings, No - video and audio halted by

Volusia Co. Sherrif.