IN THE IOWA DISTRICT COURT FOR POLK COUNTY

GLORIA MAZZA and DEAN MONTGOMERY. Petitioners, v. MATT SCHUTLZ, DAVID VAUDT, WARREN JENKINS, AND THOMAS MILLER, in their official capacities as Secretary of State, Auditor of the Sate, Deputy Auditor of the State, and Attorney General, respectively. Respondents.

NO. __________________

EMERGENCY PETITION FOR JUDICIAL REVIEW OR, IN THE ALTERNATIVE, FOR WRIT OF CERTIORARI

Petitioners Gloria Mazza and Dean Montgomery (Petitioners) seek emergency judicial review of the decision of the Secretary of State, the Deputy Auditor of the State, and the Attorney General denying Petitioners objection to the legal sufficiency of the Libertarian Party of Iowas (the Party) certification of the nomination of Gary Johnson and James B. Gray for President and Vice President of the United States, respectively. In the alternative, Petitioners request that the Court issue a writ of certiorari and reverse the decision of the Secretary of State, the Deputy Auditor of the State, and the Attorney General and order them to sustain Petitioners objection. Because the State is required by federal law to mail absentee ballots to overseas military personnel by September 22, see 42 U.S.C. 1973ff-1(a)(8), and the State must print its ballots in advance of that date, Petitioners respectfully request that the Court expedite its consideration of this matter.

1.

On Friday, August 24, 2012, Petitioners filed an objection under Iowa Code

44.4(2)(a) to the legal sufficiency of the Libertarian Party of Iowas Certificate of Nomination of Gary Johnson and James B. Gray for President and Vice President of the United States (hereafter, Certificate). 2. That same evening, the Secretary of States office noticed a hearing for the

following business day, Monday August 27, at 3:00 p.m. 3. Petitioners argued, among other things, that the Certificate was legally insufficient

because the Party did not nominate Johnson and Gray at a convention or caucus, and the individuals whose names the Party submitted along with its Certificate were not delegates who were in attendance at any such alleged convention or caucus, as required by 44.1. 4. Pursuant to Iowa Code 44.6, Secretary of State Matt Schultz, Deputy Auditor

Warren Jenkins (in the place of Auditor of the State David Vaudt), and Attorney General Thomas Miller (the Panel) presided over the hearing and ruled on Petitioners objection. 5. The undisputed evidence at the hearing demonstrated that the Libertarian Party

did not hold a convention or caucus in which the individuals identified on the Certificate collectively participated. To the contrary, supporters of Gary Johnson simply approached

random adults attending the Iowa State Fair and asked them to put their names on a petition so that Johnson (or the Libertarian Party) could appear on the ballot for the presidential election. 6. Likewise, the individuals named in the Partys submissions were not delegates;

many of them submitted sworn declarations completely disavowing any knowledge or intent about either being delegates or having purportedly attended a Libertarian convention or caucus.

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Furthermore, the individuals and small groups of people who representatives of

the Libertarian Party approached to sign their filing certainly were not in attendance at any political meeting or collective activity, such as a convention or caucus. 8. The Libertarian Partys Certificate of Nomination of Gary Johnson and James

Gray for President and Vice President of the United States therefore does not satisfy Ohio Code 44.1s requirements. 9. During public deliberations yesterday, August 29, 2012, Attorney General Miller

and Deputy Auditor Warren Jenkins initially voiced their opinion that, under any reasonable interpretation, the Libertarian Party did not hold a caucus or convention, and that its certificate of nomination was therefore legally insufficient. 10. Secretary of State Matt Schultz, however, faulted the legislature for not defining

the words caucus or convention, and therefore was willing to certify the Libertarian Partys nominees for President and Vice President, even though it did not hold a caucus or convention under any reasonable interpretation of those words. 11. 12. Deputy Auditor Jenkins then switched his vote. In the interest of unanimity, and noting that the Attorney Generals office would

be representing the Panel in any further proceedings, Attorney General Miller also switched his vote. Thus, the Panel ultimately voted to deny Petitioners objection. 13. Petitioners now seek emergency judicial review under Iowa Code 17A.19 of

the Panels decision. 14. Although Iowa Code 44.6 states that the Panels decision is final, that provision

has been superseded by the judicial review provisions of the Iowa Administrative Procedures Act (IAPA). See Iowa Code 17A.19, 17A.23; see also Polk County v. Iowa State Appeal Bd.,

330 N.W.2d 267, 276 (Iowa 1983) (holding that a decision of the State Appeal Board is reviewable under the IAPA, notwithstanding a provision of the local budget stating that decisions of the Board are final). 15. The Panels decision is: (a) Based upon an erroneous interpretation of a provision of law whose interpretation has not clearly been vested by a provision of law in the discretion of the Panel; (b) unsupported by substantial evidence in the record made before the agency when that record is reviewed as a whole; (c) otherwise unreasonable, arbitrary and capricious. 16. In the alternative, if the Court concludes that the IAPA does not apply to the

Panels decision, Petitioners request that the Court review the Panels decision on writ of certiorari. See Berent v. City of Iowa City, 674 N.W.2d 683, 2003 WL 22805792 (Iowa Ct. App. 2003). 17. The Panel, by denying Petitioners objection despite the legal insufficiency of the

Libertarian Partys certificate of nomination, has acted illegally. WHEREFORE Petitioners request that the court reverse the Panels decision and sustain Petitioners objection

____________________________________ Mark A. Schultheis, AT0007133 Ryan G. Koopmans, AT0009366 NYEMASTER GOODE, P.C. 700 Walnut Street, Suite 1600 Des Moines, IA 50309-3899 Telephone: (515) 283-3100 Facsimile: (515) 283-8045 Email: mas@nyemaster.com Email: rkoopmans@nyemaster.com Attorneys for Petitioners

CERTIFICATE OF SERVICE The undersigned hereby certifies that a true copy of the foregoing instrument was served upon each party by mail and email on August 30, 2012.

Hon. Thomas Miller Attorney General Hoover Building, 2nd Floor 1305 East Walnut Des Moines, Iowa 50319 thomas.miller@iowa.gov jeffrey.thompson@iowa.gov