IN THE DISTRICT COURT OF APPEAL OF FLORIDA, FIRST DISTRICT MICHAEL C.

VOELTZ,

vs. BARACK HUSSEIN OBAMA, KEN DETZNER, Secretary of State of Florida, and FLORIDA ELECTIONS CANVASSING COMMISSION, Appellees.

Case No.: 1D12-3489 L.T. No.: 2012-CA-00467

APPELLEE PRESIDENT BARACK OBAMAS RESPONSE IN OPPOSITION TO APPELLANTS MOTION FOR WRITTEN OPINION

Appellee BARACK OBAMA (President Obama), pursuant to Rule 9.300(a), Fla. R. App. P., files this response in opposition to Appellants Motion

For the reasons set forth herein, the motion should be denied.

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for Written Opinion Pursuant to Florida Rule of Appellate Procedure 9.330(a).

that the motion be filed within 15days of any order or within such other time set by the court. This Court rendered its decision on February 8, 2013. The

Appellant, having 15days within which to file a motion pursuant to Rule 9.330(a),

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The motion was not timely filed. Rule 9.330(a), Fla. R. App. P., requires

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Motion Not Timely Filed

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Appellant,

Fla. R. App. P., should have filed the motion on or before February 25, 2013. It was filed February 28, 2013.1 Appellant asserts that the motion is timely filed pursuant to Florida Rules of Appellate Procedure 9.330(a) which allows for 15 days to file this motion and Rule 2.514 of the Rules of Judicial Administration which allows for 5 additional days after service by mail. It is not.

governed by Florida Rule of Judicial Administration 2.514. Rule 2.514(b), Fla.

(b) Additional Time after Service by Mail or E-mail. When a party may or must act within a specified time after service and service is made by mail or e-mail, 5 days are added after the period that would otherwise expire under subdivision (a). The specified time within which a party must file a motion under Rule 9.330(a),

written opinion be filed within that time period. Appellant has failed to timely submit this motion pursuant Rule 9.330(a), Fla. R. App. P.

The last day of the 15 day period fell on a Saturday, February 23, 2013, and, in accord with Rule 2.514(a)(1)(C) , Fla. R. Jud. Admin., the period is extended until Monday, February 25, 2013.
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15-day requirement that a motion for rehearing, clarification, certification or

Fla. R. App. P., is not triggered after service made by mail or email. It is a hard

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R. Jud. Admin., provides as follows:

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Rule 9.420(e), Fla. R. App. P., provides that [c]omputation of time shall be

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Motion Fails to Provide Legitimate Basis for Florida Supreme Court Review The motion asserts that a written opinion is requested because this Courts

and a question of first impression involving the U.S. Constitution that should be reviewed by the Florida and United States Supreme Courts. Motion at p. 1. That a case presents a question of first impression involving the U.S. Constitution that should be reviewed by the Florida and United States Supreme Courts does not provide a basis for review by the Florida Supreme Court under Article V, Section 3(b), Florida Constitution, or Rule 9.030(a), Fla. R. App. P. While Article V, Section 3(b)(4), Florida Constitution, and Rule 9.030(a)(2)(A)(v), Fla. R. App. P., authorizes the Florida Supreme Court, in its discretion, to review a decision of this Court which passes on a question that is

Courts certification that the question presented is of great public importance. Appellant continues to pepper this Court with motions and requests that this case presents a question of great public importance. In each instance, this Court has denied his request. Appellant previously asked this court to certify this appeal to the Florida Supreme Court, pursuant to Article V, Section 3(b)(5) of the Florida Constitution and Rule 9.125, Fla. R. App. P. This Court denied that motion.
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appeal is moot will not result in review by the Florida Supreme Court, without this

certified to be a great public importance, the issuance of an opinion as to why this

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dismissal of the instant appeal represents a question of great public importance,

In Appellants Emergency Motion to Expedite Decision Concerning Appeal, Appellant asked this Court to issue a well reasoned written decision at this time, without further delay in order that the rights of the parties can be preserved and timely addressed by the Florida Supreme Court should they so choose and/or if necessary. This Court that motion as well.

Having previously considered and denied Appellants requests and motions

as his request for a written opinion, it is apparent that this Court has not overlooked

Motion Presents Issues Not Previously Raised Appellant seeks to interject issues, listed as Questions to be ascertained by the Florida and U.S. Supreme Court, which were not raised in the trial court or presented in the briefs of the parties.2 While referenced in motions and other

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2. Did the state of Florida violate 3 U.S.C. 5 by not adjudicating with finality Appellants (sic) legally filed election contest by the safe harbor date of December 11, 2012, and did the governor by his ascertainment of electors, illegally claim section 2 status of the Elector Count Act of 1887 (now US Code 3)? 3. Has the Secretary of State of Florida, Ken Detzner violated Fl. ss.97.012, and unequally applied Floridas election laws in violation of Appellants due process and equal protection rights and in violation of his oath of office?
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Among the questions which Appellant asserts need to be ascertained which have not been previously raised are the following:

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or misapprehended the Appellants assertions in its decision of February 8, 2013.

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which assert that this matter presents question of great public importance, as well

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papers filed with this Court, these new issues appear to reflect his displeasure with this Courts consideration of his case.3 As noted by the Fifth District, the privilege of filing a motion pursuant to rule 9.330, Florida Rules of Appellate Procedure, [is not] an open invitation for an unhappy litigant or attorney to reargue the same points previously presented, or to discuss the bottomless depth of the displeasure that one might feel toward this judicial body as a result of having unsuccessfully

2003)(citing Amador v. Walker, 862 So. 2d 729 (Fla. 5th DCA 2002.)

The motion fails to comply with the requirements of Rule 9.330(a), Fla. R. App. P., for a request that the Court issue written opinion. Specifically, Rule Motion at (unnumbered) p. 2.
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the chief elections officer in the state of Florida, Ken Detzner, and the Florida First District Court of Appeals, have violated Federal law by not adjudicating a final determination of any controversy or contest concerning the appointment of all or any of the electors of such State. (3 U.S.C. 5 - Determination of Controversy as to Appointment of Electors) The First District Court of Appeals of Florida waited until two months after the December 11, 2012 deadline imposed by 3 U.S.C. 5 to dismiss Appellants complaint as moot, even though the appeal of 2012CA00467 was filed in July, 2012, and has not yet ruled on 2012CA03857.

Motion at (unnumbered) p. 6.
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Appellants motion asserts:

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Motion Fails to Comply With Rule 9.330(a)

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sought appellate relief. Ayala v. Gonzalez, 984 So. 2d 523, 526 (Fla. 5th DCA

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9.330(a), Fla. R. App. P., requires that the following certification be included in any request for a written opinion made by an attorney: I express a belief, based upon a reasoned and studied professional judgment, that a written opinion will provide a legitimate basis for supreme court review because (state with specificity the reasons why the supreme court would be likely to grant review if an opinion were written). Appellants counsel fails to comply with this requirement. 4

Respectfully submitted on this 11th day of March, 2013, by: /s/Mark Herron Mark Herron mherron@lawfla.com Florida Bar No. 199737 Joseph Brennan Donnelly bdonnelly@lawfla.com Florida Bar. No. 268895 Robert J. Telfer III rtelfer@lawfla.com Florida Bar. No. 128694 Messer, Caparello & Self, P.A. Post Office Box 15579 Tallahassee, FL 32317

Counsel respectfully asserts that based upon a reasoned and studied professional judgment that a written opinion will provide a scholarly complete and legitimate basis for both the Florida Supreme Courts review because the ruling invalidates a state statute, the Florida Constitution, and involves eligibility requirements of the U.S. Constitution.

Motion at p.1.
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The motion contains the following statement:

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Telephone (850) 222-0720 Facsimile: (850) 558-0659 Stephen F. Rosenthal SROSENTHAL@podhurst.com Florida Bar No. 131458 Podhurst Orseck, P.A. 25 West Flagler Street, Suite 800 Miami, FL 33130-1720 Telephone (305) 358-2500 Facsimile: (305) 358-2382

Attorneys for Appellee President Obama CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been

Daniel Nordby, General Counsel Ashley E. Davis Department of State R.A. Gray Building 500 South Bronough Street Tallahassee, FL 32399
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Larry Klayman, Esquire Klayman Law Firm 2010 Pennsylvania Avenue, N.W., Suite 800 Washington, D.C. 20006

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furnished by email transmission on this 11th day of March, 2013, to:

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Richard B. Rosenthal rbr@rosenthalappeals.com Florida Bar No. 184853 The Law Offices of Richard B. Rosenthal, P.A. 169 East Flagler Street, Suite 1422 Miami, FL 33131 Telephone (305) 779-6097 Facsimile: (305) 779-6095

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James A. Peters Office of the Attorney General PL 01, The Capitol Tallahassee, FL 32399-1050

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/s/Mark Herron MARK HERRON