1 STEPTOE & JOHNSON LLP

Collier Center
2 201 East Washington Street
Suite 1600
3 Phoenix, Arizona 85004-2382
Telephone: (602) 257-5200
4 Facsimile: (602) 257-5299
5 David J. Bodney (006065)
Aaron J. Lockwood (025599)
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Attorneys for defendant John S. McCain
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8 UNITED STATES DISTRICT COURT
9 DISTRICT OF ARIZONA
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)
11 Clark Hamblin, ) No. CV 09-00410-PHX-ROS
)
12 Plaintiff, ) REPLY IN SUPPORT OF JOHN
) S. McCAIN’S MOTION TO
13 vs. ) DISMISS PLAINTIFF’S
) AMENDED COMPLAINT
14 Barack Obama and John S. McCain, )
) (Assigned to the Honorable
15 Defendants. ) Roslyn O. Silver)
)
16 )
17 Preliminary Statement
18 s Responsive Memorandum (the “
While plaintiff’ Response”
) may amplify
19 his theory of the case, it does not squarely join issue with any of the defenses that form
20 the basis of defendant’
s Motion to Dismiss: namely, that (1) plaintiff Clark Hamblin
21 lacks standing to challenge the eligibility of Sen. John S. McCain for the presidency; (2)
22 Sen. McCain’
s eligibility is a political question, not subject to judicial review; and (3)
23 Hamblin cannot satisfy the elements of 42 U.S.C. §§ 1983 or 1985, or of intentional
24 infliction of emotional distress as a matter of Arizona law. Because Hamblin cannot
25 overcome these defects –by amendment, or by issuing a “
Decree”to give 80% of his
26 requested damages award to “
others”[Resp., Ex. S] –the Court should dismiss the
27 Amended Complaint with prejudice.
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1 Argument
2 I. HAMBLIN LACKS STANDING TO INVOKE THE COURT’
S
JURISDICTION.
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First and foremost, plaintiff cannot satisfy the constitutional standing
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requirements of an injury in fact. [Mot. at 4-5] Recasting his allegations, Hamblin now
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argues that he “
could in fact cast NO ballot in Arizona in 2008”as a result of McCain’
s
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allegedly “
illegal appearance”in the election. [Resp. at 4] Plaintiff fails to explain,
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however, how McCain’
s presence on the ballot prevented him from voting for any of the
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other candidates whom Hamblin believed to be eligible. Nor does plaintiff offer any
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legal support for his argument. Cf. Hollander v. McCain, 566 F. Supp. 2d 63, 69
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(D.N.H. 2008) (holding that the inclusion of an ineligible candidate on the ballot inflicts
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no injury because voters can vote for someone else). In brief, plaintiff has failed to
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allege any injury sufficient to confer standing.
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Even if plaintiff could somehow assert a cognizable injury, it would
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nevertheless amount to no more than a generalized grievance. [Mot. at 5-6] Hamblin
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does not –and cannot –argue that his alleged injury is unique from any ostensibly
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suffered by all other voters. To the contrary, Hamblin expressly concedes that his
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allegations raise “
a situation imposed on many.”[Resp. at 9] Because plaintiff has not
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been affected in “
a personal and individual way,”he does not have standing to sue.
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Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992).
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Moreover, the Court cannot redress plaintiff’
s alleged injury as required
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for him to have standing. First, the Court cannot impose damages on McCain for
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exercising his First Amendment right to run for elected office. [Mot. at 6-8] Second,
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even if the Court somehow found McCain to be ineligible for the presidency, McCain’
s
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campaign concluded more than seven months ago, and the Court has no authority to
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“
negat[e] the 2008 election” and provide Hamblin “
the possibility of electing a
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legitimate President.”[Resp. at 7-8] Such claims for prospective equitable relief –which
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are not prayed for in the Amended Complaint –are entirely moot. See Lujan, 504 U.S. at
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1 564 (“
Past exposure to illegal conduct does not in itself show a present case or
2 controversy regarding injunctive relief . . . if unaccompanied by any continuing, present
3 adverse effects.”
) (citation omitted). As such, Hamblin’
s alleged injury is not judicially
4 redressable, which is a basic element of standing. Id. at 561.
5 In short, plaintiff cannot satisfy the constitutional requirements necessary
6 to invoke the Court’
s subject-matter jurisdiction. See, e.g., Renne v. Geary, 501 U.S.
7 312, 316 (1991) (justiciability is a jurisdictional matter). For this reason alone, the
8 Complaint must be dismissed.
9 II. FUNDAMENTALLY, HAMBLIN’ S LAWSUIT PRESENTS A POLITICAL
QUESTION INAPPROPRIATE FOR JUDICIAL REVIEW.
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As explained in the Motion, the U.S. Constitution empowers the voters
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and political branches of government to determine the eligibility of presidential
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candidates. [Mot. at 8-10] This Court cannot decide Sen. McCain’
s eligibility without
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superseding their judgment, and in turn violating the political question doctrine.
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Hamblin’
s Response fails to recognize that this determination of eligibility is a
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prerequisite to all of his claims. [Cf. Resp. at 8] Indeed, McCain could not possibly
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make a “
sworn false statement of material fact”on an election document [ibid], or
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otherwise interfere with Hamblin’
s right to vote, if McCain is in fact eligible for the
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presidency, which, as the Motion explains, he is. [Mot. at 12-14] Accordingly, the
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political question doctrine provides a second, independent basis for the Complaint’
s
20
dismissal.
21
III. HAMBLIN’S AMENDED COMPLAINT FAILS TO STATE A CLAIM UPON
22 WHICH RELIEF CAN BE GRANTED.
23 The Motion to Dismiss provides several reasons why the Amended
24 Complaint fails to state a viable claim for relief under either federal or state law. [Mot.
25 at 11-17] Plaintiff ignores many of these reasons in his Response, focusing instead on
26 s status as a “
McCain’ natural born Citizen.”The Court need not decide Sen. McCain’
s
27 citizenship status, however, because McCain’
s presidential campaign did not constitute
28 state action, and because the Natural Born Citizen Clause does not confer any rights on

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1 individual voters. [Mot. at 11-12] Without the infringement of an individual right by a
2 state actor, plaintiff’
s § 1983 claim fails as a matter of law. [Id.] Moreover, Hamblin’
s
3 § 1985 claim depends on a viable § 1983 claim. [Mot. at 14] By ignoring these basic
4 legal rules, the Response essentially concedes them.
5 Finally, plaintiff’
s claim for intentional infliction fails because McCain’
s
6 presidential campaign could not possibly constitute the sort of extreme and outrageous
7 conduct that Arizona law requires to state a claim. [Mot. at 15-16] The Response asserts
8 that “
McCain’
s failure to act on Plaintiffs behalf and challenge Barack Obama’
s
9 eligibility on the senate floor . . . caused the assent of an illegitimate President and
10 subjected Plaintiff to the basis of his emotional distress, slavery.”[Resp. at 7] This
11 incredible assertion is logically untethered to any of plaintiff’
s claims that supposedly
12 arise from McCain’
s alleged ineligibility for the presidency. To be sure, defendant’
s
13 s citizenship status “
failure to challenge then-candidate Obama’ on the senate floor”
14 cannot constitute intentional infliction of emotional distress as a matter of law. [Cf. Mot.
15 at 16 (“
The conduct at issue must be beyond all realms of human decency, atrocious,
16 utterly intolerable or ‘ ”
at the very extreme edge of the spectrum of possible conduct.’)]
17 s allegations – even as explained in his Response – fall
Accordingly, Hamblin’
18 measurably short of stating a viable intentional infliction claim.
19 Because plaintiff’
s three causes of action lack support in fact and law, the
20 Amended Complaint fails to a state a claim upon which relief may be granted, and this
21 lawsuit should be dismissed on this third, independent basis.
22 Conclusion
23 For the foregoing reasons, plaintiff Clark Hamblin’
s Amended Complaint
24 should be dismissed with prejudice.
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1 DATED this 19th day of June, 2009.
2 STEPTOE & JOHNSON LLP
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4 By /s/ David J. Bodney
David J. Bodney
5 Aaron J. Lockwood
Collier Center
6 201 East Washington Street
Suite 1600
7 Phoenix, Arizona 85004-2382
8 Attorneys for Defendant John S.
McCain
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1 CERTIFICATE OF SERVICE
2 I hereby certify that on the 19th day of June, 2009 I caused the attached
3 document to be electronically transmitted to the Clerk’
s Office using the CM/ECF
4 System for filing. I further certify that I caused a copy of the attached document to be
5 mailed on the 19th day of June, 2009 to:
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Hon. Roslyn O. Silver
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United States District Court
8 Sandra Day O’ Connor U.S. Courthouse
Suite 624
9 401 West Washington Street, SPC59
10 Phoenix, Arizona 85003-2158

11 Clark Hamblin
12406 N. 130th Lane
12 El Mirage, Arizona 85335
13 Plaintiff

14
15 /s/ Dorothy A. Weaver
Legal Secretary
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