IN THE UNITED STATES OF APPEALS FOR THE SIXTH CIRCUIT

LIBERTY LEGAL FOUNDATION, JOHN DUMMETT, LEONARD VOLODARSKY, CREG MARONEY, Appellants-Appellants, vs. NATIONAL DEMOCRATIC PARTY OF THE USA, INC., DEMOCRATIC NATIONAL COMMITTEE, TENNESSEE DEMOCRATIC PARTY, DEBBIE WASSERMAN SCHULTZ, and CHIP FORRESTER, Defendants-Appellees.

DEFENDANTS APPELLEES OPPOSITION TO MOTION FOR STAY AND REQUEST FOR SANCTIONS Pursuant to Federal Rule of Appellate Procedure 27 and this Courts Rules, the Defendants-Appellees, the Tennessee Democratic Party (TNDP), and Chip

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Forrester (collectively the TNDP Defendants and together with the Democratic National Committee and Debbie Wasserman Schultz the Defendants or Appellees) file this Opposition to Plaintiffs-Appellants, Liberty Legal Foundation, John Dummett, Leonard Volardarsky, and Creg Maroney, (collectively the Appellants or Plaintiffs) Motion For Stay (the Motion) seeking a stay of the United States District Court for the Western District of
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Case No. 12-6082

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On Appeal From The United States District Court For The Western District Of Tennessee, Case No. 2:12-cv-02143-cgc

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Tennessees order imposing sanctions on Appellants counsel (RE No. 32, hereinafter the Sanctions Order). INTRODUCTION

Appellants Motion, like the original complaint in this case, has no basis in

proceedings.

The Courts well-reasoned and well-supported Sanctions Order

The Motion must be denied as untimely for failure to comply with Federal

a motion to stay with the United States District Court for the Western District of Tennessee (the District Court), which are still pending (RE Nos. 33 and 34), and Appellants have not demonstrated how awaiting that ruling would be impractical. Additionally, the parties are still briefing the issue as to the amount of the

Notwithstanding this procedural defect, the Motion is substantively flawed,

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and continues to vexatiously multiply the proceedings. For example, Section III.F of the Motion is based upon a provably false factual basis. Appellants argue the Sanctions Order violates Appellants counsels due process rights because Defendants motion for sanctions did not assert that Appellants lacked standing to bring their suit, as grounds for its sanctions motion and therefore Attorney Irion
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sanctions. Simply put, this matter is not ripe for appellate intervention.

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Rule of Appellate Procedure 8(a)(2). Appellants filed a motion to reconsider and

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should be upheld in its entirety, and Appellants Motion should be denied.

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law or fact and is a continued attempt to multiply and unnecessarily prolong these

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was not given any notice that he might be sanctioned for failing to establish standing. (Motion at 6.) In Defendants Motion for Sanctions, Plaintiffs lack of

Appellants and contains 3 pages of argument regarding standing. (RE No. 25 at 6-

and has required the further expenditure of attorney time in responding to this

In any event, the Motion fails to satisfy all factors governing the Courts

utter failure to show how they would be irreparably harmed as a result of the Sanctions Order being given immediate effect. Since the staying of a pending order is proper only by a showing of irreparable harm, Appellants have offered no declaration, affidavit, or other evidence showing how the payment of a sanction

Motion fails on this basis alone.

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Moreover, Appellants put forth no argument to suggest that the underlying

appeal has any merit, nor can Appellants show that a stay of the Sanctions Order would benefit the public interest. In short, Appellants do not carry their substantial burden showing a basis for

staying the District Courts Sanctions Order.

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award in this case would result in any harm, let alone irreparable harm. The

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evaluation of staying orders pending appeal, most notable of which is Appellants

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frivolous, provably false argument.

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8, hereinafter the Sanctions Motion.) This argument is factually without support

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standing is the very first argument raised in support of imposing sanctions on the

FACTUAL BACKGROUND Appellants initially filed this case in Shelby County Chancery Court and

operative complaint is a class action complaint1 seeking injunctive relief for the

for the November 2012 election on the basis that he did not satisfy Article IIs

States. (RE No., 1-2 at 24, 36-39.) This was not the first time parties have

federal and state court have alleged similar claims. (See Appendix (identifying the numerous birther cases that have been filed in federal and state forums).) The Defendants filed three Motions to Dismiss (RE Nos. 4 through 8) pursuant to Fed. R. Civ. P 12(b)(1) and (6), 12(b)(2) and 12(b)(3). Defendants

The class is defined in the complaint to include all citizens of the United States who are either registered with the Federal Election Commission to run for President of the United States or who object to having a candidate that is clearly no qualified to hold the office of President. Disturbingly, on his Liberty Legal Foundation website under the Asked & Answered portion, Liberty Legal advertises that any Any U.S. citizen can be a member of a Liberty Legal Foundation class action. We just need to verify your identity by running a small credit card transaction. This counts as a tax deductible donation to Liberty Legal Foundation and helps us cover the costs of the lawsuit. This is an additional major ethical issue because absent class members are being told that to remain a member of the defined class in the complaint, they have to make a donation to Liberty Legal Foundation (Appellants Class Counsels foundation) which violates the letter and the spirit of the law.
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attempted to delegitimize the President with these accusations as over 140 cases in

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Natural Born Citizen requirement to hold the office of President of the United

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extraordinary purpose of keeping President Barack Obama off the Tennessee ballot

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Defendants successfully removed the case to this Court. (RE No., 1 at 1.) The

additionally sent a Rule 11 letter requesting that the Plaintiff immediately dismiss the lawsuit (RE No. 26-1 at 4-8).

Defendants consolidated Rule 12(b)(1) and (6) Motion to Dismiss (RE Nos. 4-5)

lack of standing to pursue their claims. (RE No 31 at 10-18.) That Order is now

found that the TNDP Defendants counsel was entitled to the fees it incurred in

Order, RE No. 32 at 12-13.)

The Sanctions Order found that by filing the lawsuit the Appellants violated 28 U.S.C. 1927. (Sanctions Order, RE No. 32 at 7-12.) Specifically, the Court, relying on Sixth Circuit precedent interpreting 28 U.S.C. 1927, held that sanctions

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were warranted because:

The Court holds that Defendants have shown that counsel for Plaintiff knew or reasonably should have known that the claims in this case had no basis in law. Specifically, counsel for Appellants reasonably should have known that Appellants lacked standing to pursue their claims related to Defendants efforts to certify President Obama as the Democratic Partys nominee for the Tennessee general election.

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drafting the consolidated Rule 12(b)(1) and (6) Motion to Dismiss. (Sanctions

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final. Thereafter, the Court granted the TNDP Defendants Sanctions Motion and

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on the basis that the Court lacked subject matter jurisdiction due to the Appellants

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Shortly after the parties briefed the motions to dismiss, the Court granted the

(Id. at 8.) In response to the Sanctions Order and the Courts directive therein, the

seeking $22,800 in attorneys fees awarded by the Sanctions Order. (RE No. 37.)

of the sanction fee award is unknown. ARGUMENT

The issuance of a stay pending appeal is not a matter of right, but an

(2009). A stay of a pending interlocutory order is appropriate when the party appealing an order can demonstrate that the moving party is likely to prevail on the merits of the appeal; whether the moving party is likely to be irreparably harmed absent a stay; whether or not others will likely be harmed if the court grants the

Bredesen, 486 F.3d 896, 905 (6th Cir. 2007); Ne. Ohio Coal. for Homeless &

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Serv. Employees Int'l Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006). These factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together. Cooey v. Strickland, 589 F.3d 210,

218 (6th Cir. 2009). Appellants have not shown that these factors are present and given that none of these factors are satisfied, Appellants Motion must be denied.
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stay; and whether the public interest supports granting the stay. Workman v.

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exercise of judicial discretion. Nken v. Holder, 556 U.S. 418, 129 S. Ct. 1749

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This Petition remains pending at the District Court, and to date, the exact amount

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TNDP Defendants filed their Petition for Attorneys Fees on September 14, 2012

This, failure, however, is not the most pressing problem with Appellants Motion. Appellants have failed to satisfy Federal Rule of Appellate Procedure 8(a)

District Court and Appellants fail to demonstrate that moving first in the district

I.

The Motion Is Untimely Because Appellants Fail To Follow Federal Rule of Appellate Procedure 8(a) Federal Rule of Appellate Procedure 8(a)(2)(A) requires that [a motion to

stay] must: (i) show that moving first in the district court would be impracticable; or (ii) state that, a motion having been made, the district court denied the motion or

Bd., 310 F.3d 927, 930-31 (6th Cir. 2002). Appellants acknowledge that it filed a motion to stay and a motion to reconsider in the District Court, but Appellants also acknowledge that these motions are still pending. (Motion at 2.) Accordingly, the instant Motion is only proper if it shows that moving [for

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a stay] first in the district would be impracticable. Baker, 310 F.3d at 930-31. The Motion only contains a conclusory, unsupported, and confusing claim that awaiting a ruling on the motion to stay would be impracticable, due to the limited time to available [sic] to file a notice of appeal, as established by Federal Rule of

Appellate Procedure Rule 4.

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failed to afford the relief requested. Baker v. Adams County/Ohio Valley Sch.

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court would be impracticable.

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in that its motion to stay and a motion to reconsider remain pending before the

Although it is not entirely clear what this means, at a minimum it is a clear misreading of the Federal Rule of Appellate Procedure because under Rule 8(a) a

Miranne, 852 F.2d 805, 806 (5th Cir. 1988); Rakovich v. Wade, 834 F.2d 673, 674

Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir. 1984); Deering Milliken v. FTC,

Federal Practice 208.05.

on their motion to stay at the District Court is impracticable because, having filed their notice of appeal, Appellants stripped the district court of jurisdiction to rule on that motion. This is clearly not how Rule 8(a) works and the district court has jurisdiction to stay its own order pending appeal.

Baker, 310 F.3d at 930-31 (denying motion to stay for failure to comply with Fed.

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R. App. P. 8(a)). II.

Appellants Fail To Satisfy The Standard For Granting A Stay a. The Appeal Is Meritless

Appellants assert four grounds as bases for the appeals merit, none have any

basis in law or fact, and at least one contains a demonstrably false argument by the
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On this basis alone the Motion must be denied because it is untimely. See

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In other words, it appears Appellants Motion argues that awaiting a ruling

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647 F.2d 1124, 1128 (D.C. Cir. 1978); see also Fed. R. Civ. P. 62(d); 9 Moore's

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(7th Cir. 1987); Willie v. Continental Oil Co., 746 F.2d 1041, 1046 (5th Cir. 1984);

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district court retains jurisdiction to stay its own order pending appeal. See In re

Appellants. Given that the appeal challenges the imposition of sanctions pursuant to 28 U.S.C. 1927, and as with Rule 11 sanctions, [this Court] review[s] an

City of Springfield, 109 F3d 288, 298 (6th Cir. 1997). Appellants fail to show how

heightened standard of review. Accordingly, the Motion should be denied on the

1. As The District Court Noted, Plaintiffs Misstate The Law On Standing Appellants first argument is a red herring, and invites this Court to overturn

District Court correctly sanctioned Appellants because no reasonable attorney could have determined that any plaintiff had standing based on the facts contained in the complaint. (Sanctions Order at 9-12.) Contrary to Appellants claims, the District Court did not apply the wrong legal standard, but rather the District Court

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reached a conclusion with which the Appellants disagree, which, if it is error at all, is not the type of error justifying the reversal of the District Courts decision. At the District Court, Appellants abandoned any attempt to argue that any

other plaintiff, except for Plaintiff Dummett, had standing and accordingly, Appellants case rose or fell exclusively on whether Plaintiff Dummett had standing. (Sanctions Order at 9-12; cf. Motion at 4-5 (acknowledging that at least
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the Sanctions Order on a basis on which the Court did not award sanctions. The

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basis that Appellants cannot demonstrate that their appeal has any merit.

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the District Court committed any error, let alone an error that satisfies this

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order awarding attorney fees under 1927 for an abuse of discretion Ridder v.

one plaintiff needed standing to vest the court with jurisdiction of the case).) But, as the District Court correctly held, Plaintiff Dummetts status as an undeclared write-in candidate was wholly insufficient to vest him with standing. (RE No. 31 at 13-15; Sanctions Order at 9-10.)

erred in this central holding. Instead, Appellants claim that Plaintiff Dummetts

Plaintiff Dummett has standing, then all other plaintiffs would also have standing.

This argument is not consistent with the law on standing, but even if it were, it is utterly irrelevant. The District Court imposed sanctions because all plaintiffs lacked standing and no reasonable attorney would have believed any one of the plaintiffs had standing. (RE No. 31 at 13-15; Sanctions Order at 9-10.)

imputed standing argument is wrong because [o]ne Plaintiffs standingis not

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imputed to other named Plaintiffs who lack standing. (RE No. 31 at 12 (citing ACLU v. Natl Sec. Agency, 493 F.3d 644, 657 (6th Cir. 2007) ([T]he standing

inquiry requires careful judicial examination of a complaints allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.)
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In any event, as the District Court noted in its Dismissal Order, Plaintiffs

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(Motion at 4-5; RE No. 19 at 7-8.)

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alleged standing could be imputed to the remaining plaintiffs meaning that if

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In their Motion, Appellants provide no argument to show the District Court

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The law of standing requires that each individual plaintiff be able to demonstrate standing on their own merit, and, contrary to Appellants claims,

person with standing to also pursue those same claims. ACLU, 493 F.3d at 657-58;

only to redress or otherwise protect against injury to the complaining party . . . . A

has suffered some threatened or actual injury).

legal standard is not only inconsistent with the law, but irrelevant to the issue of whether sanctions were properly imposed.

2. This Is Not A Case Of First Impression And Even If It Were Sanctions Are Still Appropriate Appellants incorrectly and without support allege that sanctions under 28 U.S.C. 1927 cannot be found against an attorney relying upon legal arguments of

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first impression. (Motion at 6.) Not only is Appellants claim that cases of first impression enjoy absolute immunity from sanctions unsupported by the case law, but this case fails even this Appellant-created standard because the complaint does not raise issues of first impression. The Sixth Circuit case relied upon by Appellants declined to impose

sanctions because Appellants theory of liability was not so obviously precluded

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In summary, Appellants argument that the District Court applied a wrong

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federal court's jurisdiction therefore can be invoked only when the plaintiff himself

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see also Warth v. Seldin, 422 U.S. 490, 499 (The Art. III judicial power exists

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simply because one person has standing to pursue claims does not vest every other

by existing precedent that the attorney should have known that the claim was frivolous. Smith v. Detroit Federation of Teachers Local 231, et. al, 829 F.3d 1370, 1379 (1987). Implicit in this statement, and contrary to Appellants

contentions here, is that sanctions are appropriate - even in cases of first

existing precedent that the attorney should have known that the claim was

raising issues of first impression is wholly unsupported by the Sixth Circuit

F.2d 250, 253 (5th Cir. 1993) (Of course, a claim that is utterly insupportable may be sanctionable even if the circuit has not addressed the issue.). One district court in the Sixth Circuit has already pointed out the absurdity of Appellants position:

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It simply cannot be the case that a party who raises an issue of first impression in a jurisdiction is entitled to absolute immunity from sanctions in raising the issue. Such a rule would require that a patently frivolous, yet novel, legal argument would not be sanctionable.

John Richards Homes Bldg. Co., L.L.C. v. Adell Broadcasting Corp., Case No. 0613748, 2009 U.S. Dist. LEXIS 117968, * 8 (E.D. Mich. 2009) citing Ozee v. Amer. Council on Gift Annuities, Inc., 143 F.3d 937, 941 (5th Cir. 1998).

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precedent on which Appellants rely. Id.; see also United States v. Alexander, 981

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frivolous.

Id.

Therefore, Appellants claims of absolute immunity for cases

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impression when Appellants theory of liability was so obviously precluded by

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Based on this case law, it is clear that a party and its counsel can be sanctioned for pursuing a case of first impression when an attorney should reasonably know that its position is precluded by existing case law.

Appellants standing claim is entirely predicated upon this circuit: 1)

a candidate that does not appear on the ballot, and 3) applying this extension to a

candidate. Such an extraordinary application of the competitive standing doctrine

10.) Specifically, the Sanctions Order correctly held that [t]he allegation that an individual from California who is merely a declared write-in candidate in Tennessee is, without additional factual support, too speculative to show injury-infact. (Sanctions Order at 10.)2

to the facts of this case are neither supported by relevant case law or the facts and

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therefore, Appellants theory of liability was so obviously precluded by existing precedent that [Appellants counsel] should have known that the claim was frivolous. Smith, 829 F.3d at 1379.

Appellants claim that they could have corrected these pleading defects if the Court would have permitted them to amend their complaint, but Appellants did not request leave to specifically amend their complaint to correct these standing issues; Appellants only sought leave to amend their complaint to plead additional facts supporting their claim of negligence. (RE No. 19 at 7-8, 14.)
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In short, Appellants attempts to expand the bounds of competitive standing

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is utterly unsupported by existing precedent on standing. (Sanctions Order at 9-

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candidate that failed to alleged he had filed to run as an official write in

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adopting the competitive standing doctrine, 2) extending the doctrine to include

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In any event, this is not the first birther case to be filed. In fact, over 140 cases have alleged these same tired accusations. (See Appendix, attached). Many of these cases have been dismissed on the basis of lack of standing. See e.g., Drake v. Obama, 2011 U.S. App. LEXIS 25763 (9th Cir., Dec. 22, 2011);

(3d Cir. 2009); Taitz v. Obama, 707 F. Supp. 2d 1 (D.D.C. 2010); Wrotnowski v.

Accordingly, Appellants are simply wrong in claiming that this is a case of

issues herein, Appellants counsel, at a minimum, should have known that Appellants here did not have standing and that Appellants here could not allege the facts necessary to establish standing in these birther actions. Appellants failed to cure the previously identified defects with a plaintiff who is a California resident

state of Tennessee. (Sanctions Order at 9-10.)

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3. The Courts Order Does Not Misstate Allegations

In its Sanctions Order the Court correctly identified the inherent defects in

Plaintiff Dummetts standing status by noting that Plaintiff Dummett had: Failed to plead that he was a Tennessee political partys nominee for the office, that his name would appear on the ballot for Tennessees general election in November, that he was campaigning in the state of Tennessee, that any
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who had registered to run for President but had failed to qualify for the ballot in the

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first impression. Given the growing body of case law directly addressing the

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Bysiewicz, 289 Conn. 522 (Sup. Ct. Conn. 2008

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Kerchner v. Obama, 612 F.3d 204 (3d. 2010); Berg v. Obama, 586 F.3d 234, 239

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14).) Despite these identified pleading defects, the Appellants now argue the Court

be concretely and continuously harmed as a direct and proximate result of the

However, it is well settled that in ruling on a Rule 12(b) motion, the Court

cannot be inferred from averments in the pleadings, but rather must affirmatively appear in the record, nor will naked assertions devoid of further factual enhancement suffice. White v. United States, 601 F.3d 545, 552 (6th Cir. 2010) (upholding dismissal of claim because Appellants complaint failed to plead facts

Here, Appellants complaint only contains a naked assertion[] devoid of

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further factual enhancement that Plaintiff Dummet would suffer an injury in fact as a result of President Obama remaining on the Tennessee ballot. Plaintiff

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Dummets failure to plead he would actually appear on the ballot to compete with President Obama for votes in this state doomed his complaint, and Appellants counsel should have known this given the well-settled case law on standing and the
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with sufficient particularity supporting Appellants standing to bring suit).

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need not accept as true legal conclusions contained in a complaint, and standing

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defendants actions. (Motion at 10 citing Amended Compl. 33.)

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should have accepted as true its conclusory allegation that Plaintiff Dummett will

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(Sanctions Order at 9, citing Order Granting Defs. Mot. To Dismiss (Re. No. 31 at

registered voter in Tennessee intended to cast a vote for him, or that President Obamas presence on the ballot would in any way injure his campaign.

plethora of other cases raising similar allegations about President Obamas qualifications to hold the Office of President of the United States. (RE No 31, at 14; Sanctions Order at 9-10.)

In short, Appellants argument that the conclusory legal conclusions

the District Court correctly identified the pleading defects justifying dismissal of

4. The Courts Order Does Not Violate Attorney Irions Right To Due Process Appellants counsel saves his worst argument for last.3 Appellants make the

Appellants lacked standing to bring their suit and therefore, Appellants counsels due process rights were violated for lack of notice for grounds on which sanctions may be imposed. (Motion at 5-6.) Although Defendants would challenge the legal authority Appellants counsel cites in support of this argument, it is utterly

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unnecessary given the blatant absurdity of the factual assertion. The first, the very

first, argument in favor of imposing sanctions in the Defendants Sanctions Motion

Appellees recognize that Appellants moved to amend their Motion to withdraw this meritless claim on the last business day before Appellees response was due and one week after Appellees briefed the same issue in the District Court. Notwithstanding this subsequent motion, Appellees, out of an abundance of caution, will address the issue as there is no clear rule governing the amendment of a motion pending before the Court, and therefore the Appellees will respond to the original motion in its entirety, as filed and the subsequent motion to amend as scheduled per the Courts Rules of Procedure.
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astounding argument that [Appellants] motion for sanctions did not assert that

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this suit and the imposition of sanctions. White, 601 F.3d at 552.

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concerning Dummetts standing to pursue his claims is obviously misplaced, and

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reads: Appellants Should Have Learned After A Reasonable Search That They Lacked Standing To Challenge President Obamas Qualifications To

(emphasis added).

The Sanctions Motion goes on for three additional pages

sanctions were warranted given the existing case law. (Sanctions Motion at 6-8).

their face and a simple review of the record in this matter would have alerted

in his Motion putting forth an argument that he knew was false, shows the extent to which Appellants counsel is willing to continue his vexatious tactics in this litigation.

At a minimum, Appellants believe this argument, in and of itself, is grounds

for granting a stay of the Sanctions Order.

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b. Appellants Counsel Will Suffer No Irreparable Harm

Potential monetary damage does not constitute irreparable harm. Baker v.

Adams County/Ohio Valley Sch. Bd., 310 F.3d 927, 930 (6th Cir. 2002). Therefore, Appellants cannot argue that having to pay sanctions would constitute irreparable harm.
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for additional sanctions under 28 U.S.C. 1927, and obviously not a proper ground

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Appellants to this mistake. The very fact Appellants counsel spent two full pages

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In other words, Appellants factual statements are demonstrably false on

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discussing the legal and factual basis for the Appellants lack of standing and why

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Hold The Office Of President Of The United States. (Sanctions Motion at 6)

Rather, Appellants make the unsupported allegation that Appellants counsels professional reputation is at stake if the Sanctions Order is not stayed. (Motion at 8.) However, Appellants counsel provides no evidentiary support for

this allegation and does not provide any of the news articles he alleges are

conclude that no irreparable harm will accrue to Appellants counsel. Michigan

(6th Cir. 1991) (In order to substantiate a claim that irreparable injury is likely to

and is likely to occur again.); see also Fed. R. App. P. 8(a)(2)(B) (requiring that motions to stay include copies of affidavits or other sworn statements supporting facts subject to dispute). Furthermore, if the mere allegation that it might injure counsels professional reputation was sufficient to warrant a stay, then every order

the facts and circumstances of the case.

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Even assuming arguendo that Appellants counsels reputation is somehow

hindered by the Sanctions Order, staying that order will not alleviate this harm. The Sanctions Order remains valid until and unless this Court overturns it. Therefore, granting a stay will not cure or mitigate the alleged irreparable harm to Appellants counsels reputation.
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of sanctions would be subject to an appellate stay pending appeal regardless of

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occur, a movant must provide some evidence that the harm has occurred in the past

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Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153

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impinging his reputation.

This lack of support is sufficient for the Court to

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Accordingly, this factor weighs in favor of denying Appellants Motion. c. No Other Parties Will Be Injured If The Stay Is Not Issued

not issuing the stay, and therefore, this factor weighs in favor of denying the

d. The Public Interest Favors Imposing Sanctions

in ensuring that the legal system is used for proper, as opposed to, vexatious

aspect of the rule serves to vindicate public interests."); see also Trohimovich v. Comm'r, 776 F.2d 873, 876 (9th Cir. 1985) ("[Sanctions penalize] the needless expenditure of judicial time, and [effectuate] our intent to deter further frivolous appeals.") When an attorneys violate 28 U.S.C. 1927 the public interest then is

only delays righting this public wrong.

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Appellants incorrectly claim that a failure to impose a stay will result in

permanent chilling of attorney advocacy in defense of the Constitution, (Motion

at 14) but this is an unsupported allegation. In fact, to the extent that the Sanctions Order has a chilling effect, it would be to chill frivolous, unsupported, and vexatious litigation, which would obviously serve the public interest.
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by definition injured. Putting off the imposition of sanctions under this statute

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purposes. See Ruderer v. Fines, 614 F.2d 1128, 1132 (7th Cir.1980) ("The penalty

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Part of the purpose of 28 U.S.C. 1927 is to vindicate the public interest

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Motion.

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Appellants do not allege that any other party would be injured as a result of

Accordingly, this factor also weighs heavily in favor of denying the Motion. CONCLUSION

Further, to the extent necessary, given the frivolous arguments put forth in the

Court should impose additional sanctions under 28 U.S.C. 1927.

By:

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I hereby certify that the foregoing was served via the Courts CM/ECF

system, on October 1, 2012, upon: Van Irion Liberty Legal Foundation 9040 Executive Park Dr., Ste. 200 Knoxville, TN 37923 /s/ J. Gerard Stranch, IV J. Gerard Stranch, IV
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/s/ J. Gerard Stranch, IV J. Gerard Stranch, IV (BPR #023045) BRANSTETTER, STRANCH & JENNINGS, PLLC 227 Second Avenue North, 4th Floor Nashville, TN 37201-1631 Telephone: 615/254-8801 Facsimile: 615/250-3932 gerards@branstetterlaw.com beng@branstetterlaw.com Counsel for the Tennessee Democratic Party and Chip Forrester

CERTIFICATE OF SERVICE

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Submitted this 1st day of October, 2012.

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Motion and specifically, the factually false claims made by the Appellants, the

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In light of the foregoing, the Court should deny the Appellants Motion.