___________________________________

1 STEPTOE & JOHNSON LLP

Collier Center
2 201 East Washington Street
Suite 1600
3 Phoenix, Arizona 85004-23 82
Telephone: 602 257-5200
4 Facsimile: 602 257-5299
5 David J. Bodney 006065
Aaron J. Lockwood 025599
6
Attorneys for defendant John S. McCain
7

8 UNITED STATES DISTRICT COURT

9 DISTRICT OF ARIZONA
10
11 Clark Hamblin, No. CV 09-00410-PHX-ROS
12 Plaintiff, JOHN S. McCAIN’S MOTION
TO DISMISS PLAINTIFF’S
13 vs. AMENDED COMPLAINT
14 Barack Obama and John S. McCain, Assigned to the Honorable
Roslyn 0. Silver
15 Defendants.
16
17
18 Pursuant to Fed. R. Civ. P. 12b1 and 12b6, defendant John S.
19 McCain "McCain" moves to dismiss Plaintiff’s Amended Complaint. Even taking all
20 of its factual allegations as true, as the court must in considering this Motion, the
21 Complaint suffers from at least three fatal defects. First, it fails to allege facts sufficient
22 to confer standing on plaintiff Clark Hamblin "Hamblin" that would entitle him to
23 invoke the Court’s jurisdiction. Second, the Complaint presents a political question
24 inappropriate for judicial review. Third, the Complaint fails to state a claim under 42
25 U.S.C. § 1983 or 1985, or under Arizona law for intentional infliction of emotional
26 distress. As this memorandum will show, Hamblin can allege no set of facts that would
27 entitle him to relief, and the Amended Complaint therefore should be dismissed as a
28 matter of law.
 ________________________

1 MEMORANDUM OF POINTS AND AUTHORITIES

2 Preliminary Statement
3 In a misguided attempt to wring over $3.5 million from a prominent public
4 official, Hamblin claims that McCain ran for President knowing he was ineligible for the
5 Office, and that McCain therefore deprived Hamblin of his right to cast a "legal vote."
6 [Am. Compl. ¶ 74] Hamblin’s allegations, however, are both unoriginal and entirely
7 meritless. This case is one in a series of lawsuits that have challenged McCain’s
8 eligibility for the presidency by attacking his status as a "natural born Citizen." U.S.
9 C0NsT. art. II, § 1, cl. 5. Yet the courts in all of these prior cases have dismissed the
10 claims. E.g., Ho/lander v. McCain, 566 F. Supp. 2d 63 D.N.H. 2008.’ Nevertheless,
11 Hamblin asserts this flawed argument yet again, seeking an exorbitant sum for a non-
12 existent injury in the process.
13 Plaintiff’s lawsuit is subject to dismissal for several fundamental reasons.
14 First, Hamblin lacks standing to sue in federal court. Because Hamblin could have cast a
15 "legal vote" for any number of other candidates running for President, he suffered no
16 injury whatsoever. Even if the presence of an allegedly ineligible candidate on the ballot
17 somehow qualifies as an injury, it is a generalized grievance that the Supreme Court has
18 long rejected as insufficient to confer standing. E.g., Lujan Defenders of Wildlife, 504

19 U.S. 555, 573-74 1992. Moreover, Hamblin’s alleged injury is not redressable by the
20 Court because Hamblin’s proposed remedy - money damages - is barred by McCain’s
21 First Amendment right to run for office, regardless of his alleged ineligibility to hold
22 that office.
23 Second, this case involves a political question, the resolution of which is
24 better left to the voters and the coordinate political branches of government. If the
25
26 ‘ See, e.g., Robinson v. Bowen, 567 F. Supp. 2d 1144 2008; Elliott v. McCain,
No. 08-0520 W.D.Pa., dismissed Aug. 5, 2008. Likewise, defendant Barack Obama
27 has faced a number of lawsuits regarding his eligibility for President because of his
citizenship status. These cases have been dismissed as a matter of law as well. E.g., Berg
28 Obama, 574 F. Supp. 2d 509 E.D.Pa. 2008.

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 1 general population were to elect an ineligible candidate, the Electoral College can reject
2 that candidate as part ofits decision-making process. If those electors select an ineligible
3 candidate, the Twentieth Amendment grants Congress the authority to select a qualified
4 candidate. The courts should not supersede the judgment of those political bodies,
5 particularly where, as here, such a series of events never occurred.
6 Third, Hamblin has failed to state valid causes of action under 42 U.S.C.
7 § 1983 or 1985, or for intentional infliction of emotional distress under state law.
8 Sections 1983 and 1985 both protect rights secured by federal law, yet Hamblin has not
9 alleged the deprivation of any such right. Indeed, no court has interpreted the Natural
10 Born Citizen Clause - the linchpin of Hamblin’s claims - to confer any individual
11 rights, and his § 1983 and 1985 claims must fail. Similarly, a cause of action for
12 intentional infliction of emotional distress under Arizona law sets an extremely high bar
13 for recovery, and Hamblin’s allegations fail to establish even a single element of the
14 claim.
15 In short, Hamblin’s Complaint lacks merit, and it should be dismissed
16 with prejudice for any ofthe reasons explained below.
17 Argument
18 I. The Court Should Dismiss the Complaint Pursuant to Rule 12b1 Because
It Lacks Subject Matter Jurisdiction.
19
As a matter of constitutional law, Hamblin has failed to file a case or
20
controversy, a prerequisite to all federal court actions. U.S. C0NsT. art. III, § 2;
21
Presbyteiy of New Jersey of Orthodox Presbyterian Church v. Florio, 40 F.3d 1454,
22
1462 3d Cir. 1994. To qualify as a case or controversy, the Complaint must satisfy the
23
constitutional doctrines of standing, mootness, ripeness and political question. In short,
24
there must be a cognizable dispute, capable of resolution with a concrete impact on the
25
parties. Church of Scientology v. United States, 506 U.S. 9, 121 1992. Absent such
26
core constitutional elements, as here, the Court lacks subject matter jurisdiction and
27
Hamblin’s action must be dismissed. Renne v. Geaiy, 501 U.S. 312 1991.
28

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 A. Hamblin Lacks Article III Standing Because the Complaint Fails to Allege
1 a Concrete, Particularized and Judicially-Redressable Injury.
2 As the party trying to invoke federal-court jurisdiction, Hamblin must
3 "allege facts in his Amended Complaint that, if proven, would confer standing upon
4 him." Sacks v. Office of Foreign Assets Control, 466 F.3d 764, 771 9th Cir. 2006. To
5 establish standing, Hamblin must show that: 1 he has suffered a concrete and
6 particularized injury to a legally protected interest; 2 there is a causal connection
7 between the injury and the challenged conduct; and 3 the injury may be redressed by a
8 favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-6 1 1992. As a
9 matter of law, Hamblin cannot satisfy either the injuiy-in-fact or the redressability
10 requirements.
11 Hamblin cannot establish the requisite injury because McCain’s alleged
12 ineligibility to run for President did not violate any of Hamblin’s legally protected
13 interests. At most, Hamblin alleges that McCain’s appearance on Arizona’s ballot
14 deprived him "of his Constitutional right to cast a legal vote within the State of Arizona
15 in 2008" and "cause[d] illegal votes to be cast and counted." [E.g, Am. Compl. ¶J 74,
16 76, 80] The plaintiff in Ho/lander advanced a similar theory, which also "rest[ed] on
17 the premise that McCain’s mere status as a presidential candidate or party nominee
18 somehow interfere[d] with the electoral franchise of voters like [plaintiff] . . .

19 Ho/lander v. McCain, 566 F. Supp. 2d 63, 68 D.N.H. 2008. The court in Ho/lander

20 rightly found, however, that "the presence of some allegedly ineligible candidate on the
21 ballot would not seem to impair [voting] right[s] in the least, no matter how that
22 candidate performs in the election." Id. The court therefore held the plaintiff lacked
23 standing, reasoning: "McCain’s candidacy for the presidency, whatever his eligibility, is
24 ‘hardly a restriction on voters rights’ because it in no way prevents them from voting for
25 someone else." Id. at 69 quoting Becker v. Fed. Elec. Comm ‘n, 23 F.3d 381, 390 1st
26 Cir. 2000. See a/so Robinson v. Bowen, 567 F. Supp. 2d at 1146 finding that plaintiff
27 lacked standing in part because "[n]either plaintiff nor general election voters favoring
28

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 1 the same candidate as plaintiff have in any way been prevented from supporting their
2 preferred candidate".
3 As such, Hamblin’s accusation that McCain deprived him of his right to
4 vote is baseless. If Hamblin believed McCain to be ineligible, he was free to vote for
5 any number of other candidates who appeared on the 2008 primary- and general-election
6 ballots in Arizona. Even if Hamblin stayed home on Election Day because of his
7 opinion of McCain’s eligibility, Hamblin chose that course, and the voluntary forfeiture
8 of a right is not a harm that confers standing. See, e.g., Bear Lodge Multiple Uce Ass ‘n
9 Babbitt, 175 F.3d 814, 815-16 10th Cir. 1999 plaintiffs lacked standing because

10 National Park Service’s request that they voluntarily refrain from climbing Devils
11 Towers in June inflicted no injury.
12 Hamblin’s allegations of injury amount to a generalized grievance that,
13 when distilled to its "irreducible constitutional minimum," is not an injury that is in any
14 way "particularized." Lujan, 504 U.S. at 561. Indeed, it is well established that "a
15 generally available grievance about government. . . seeking relief that no more directly
16 and tangibly benefits [the plaintiff] than it does the public at large. . . does not state an
17 Article III case or controversy." Id. at 5 73-74. See also Arizonans for Official English v.
18 Arizona, 520 U.S. 43, 64 1997 "An interest shared generally with the public at large

19 in the proper application of the Constitution and laws will not do.". Accordingly,
20 federal courts have consistently held that voters do not have standing to challenge the
21 qualifications of candidates for elected federal office. For example, in Schlesinger v.
22 Reservists Committee to Stop the War, 418 U.S. 208 1974, the Court held that

23 plaintiffs lacked standing to pursue a claim alleging that certain members of Congress
24 were ineligible for office under the Constitution’s Incompatibility Clause. Id. at 220.
25 The Court explained that "standing to sue may not be predicated upon an interest. .

26 which is held in common by all members of the public," ibid, and that the standing
27 requirement carries "particular[ ]" weight in cases "seek[ing] an interpretation of a
28 constitutional provision which has never before been construed by the federal courts."

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 1 Id. at 221. See also Ex Parte Levitt, 302 U.S. 633, 634 1937 per curiam holding that

2 plaintiff lacked standing to challenge the eligibility of Hugo Black to serve on the U.S.
3 Supreme Court because "it is not sufficient that [plaintiff] has merely a general interest
4 common to all members of the public".
5 Similarly, in Jones v. Bush, 122 F. Supp. 2d 713 N.D. Tex. 2000, aff’d
6 without opinion, 244 F.3d 134 5th Cir. 2000, the court held that three Texas voters

7 lacked standing to bring suit alleging that George W. Bush and Richard B. Cheney were
8 ineligible to receive Texas’s electoral votes under the Twelfth Amendment. Id. at 715.
9 The court explained that the alleged "violation of [plaintiffs’] right to cast a ‘meaningful
10 vote," ibid at 716, was insufficient to confer standing because their alleged injury was
11 "undifferentiated and general," and "plaintiffs [had] conspicuously fail[ed] to
12 demonstrate how they, as opposed to the general voting population, will feel its effects."
13 Id. at 717. See also Froelich v. FEC, 855 F. Supp. 868, 870 E.D. Va. 1994 holding

14 that plaintiffs lacked standing to sue over being "denied a meaningful vote" by U.S.
15 Senate candidates’ acceptance of out-of-state campaign contributions, because
16 plaintiffs’ alleged injury was "hypothetical," "abstract," and "common to all Virginia
17 voters", aff’d without opinion, 57 F.3d 1066 4th Cir. 1995. Hamblin’s challenge to

18 McCain’s status as a "natural born Citizen" - and thus McCain’s eligibility for office -

19 is precisely the type of "generally available grievance" that is foreclosed by the

20 Constitution’s particularized injury requirement. Lujan, 504 U.S. at 573.
21 Even if Hamblin could allege an injury-in-fact, he still lacks standing
22 because the Court could not redress his alleged injury with a favorable ruling.
23 Specifically, Hamblin’s request for relief - over $3.5 million in damages - is barred by

24 the First Amendment. Political candidates, like McCain, have "a constitutional right to
25 run for office," and the imposition of damages would effectively punish McCain for

26 exercising that right. F/inn v. Gordon, 775 F.2d 1551, 1554 11th Cir. 1985. Indeed, the
27 "right to run for public office touches on two fundamental freedoms: freedom of

28 individual expression and freedom of association." Cox v. Louisiana, 379 U.S. 536, 554-

-6-
 1 55 1965. As to the former, "the individual’s expressive activity has two dimensions:

2 besides urging that his views be the views of the elected public official, he is also
3 attempting to become a spokesman for a political party whose substantive program
4 extends beyond the particular office in question." Mancuso Ta?, 476 F.2d 187, 195-

5 96 1st Cir. 1973. As to the latter, a candidate’s right to run for office implicates
6 expressive association because "at some juncture his supporters and fellow party
7 members may decide that he is the ideal person to cany the group’s standard into the
8 electoral fray." Id. at 196.
9 Assuming only for sake of argument that McCain would not have been
10 eligible to be President, the First Amendment still guarantees a political party and its
11 members their choice of a nominee, and Hamblin cannot impose damages on McCain
12 for his nomination to the Republican ticket. See Timmons Twin Cities Area New

13 Parly, 520 U.S. 351, 359 1997 "that [defendant party] has a right to select its own

14 candidate is uncontroversial". This is not to say, however, that merely because a

15 political party has a First Amendment right to select its nominee, the nominee has an
16 unqualified right to hold office. Histoiy nonetheless provides several examples of
17 political parties that have advanced their political agendas by nominating candidates
18 known to be ineligible at the time. In 1872, for example, the Equal Rights Party
19 nominated Victoria Woodhull, considered by many to be the first woman to run for
20 president, even though she was not yet 35-years old and, as a woman, was then unable
21 to vote. See KATE HAVELN, VICTORIA WOODHULL: FEARLESS FEMNIST 37 2006.
22 Similarly, in 2004, the American Socialist Workers Party nominated a presidential
23 candidate who was a Nicaraguan immigrant. See "Third-Party Presidential Candidates,"
24 USA Today, Oct. 23, 2004, available at http://www.usatoday.comlnews/
25 politicselections/nationlpresident/2004-10-2 1-independentx.htm. As the First
26 Amendment prevents courts from disregarding and undermining a political party’s
27 decision to nominate such a candidate, the Court cannot impose damages on McCain for

28 the exercise of these First Amendment rights here. Consequently, the Court cannot

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 1 redress Hamblin’s alleged injury with a favorable ruling, and his claims must be
2 dismissed.
3 B. Hamblin’s Complaint Requires the Resolution of a Non-Justiciable
Political Question.
4
Notwithstanding Hamblin’s lack of standing, his challenge to McCain’s
5
eligibility for the Office of President raises issues that constitute a non-justiciable
6
political question, and require the Complaint’s dismissal. The political question doctrine
7
is "essentially a function of the separation of powers." Baker v. Carr, 369 U.S. 186, 217
8
1962. It serves to "restrain the Judiciaiy from inappropriate interference in the
9
business of the other branches of Government" by prohibiting the courts from deciding
10
issues that properly rest within the province of the political branches. United States v.
11
Munoz-Flores, 495 U.S. 385, 394 1990. See also Marbuiy v. Madison, 5 U.S. 1
12
Cranch 137, 170 1803 "The province ofthe court is, solely, to decide on the rights of
13
individuals, not to enquire how the executive, or executive officers, perform duties in
14
which they have a discretion. Questions, in their nature political, or which are, by the
15
constitution and laws, submitted to the executive, can never be made in this court.".
16
The Constitution indicates that issues relating to a candidate’s eligibility
17
for the Office of President rest, in the first instance, with the voters and then with the
18
Electoral College, the constitutionally created body responsible for selecting the
19
President of the United States. See U.S. CONST. art. II, § 1, cl. 2 "Each State shall
20
appoint, in such Manner as the Legislature thereof may direct," electors for the President
21
and Vice President; id. amend. XXIII, § 1. The Constitution’s commitment to the
22
Electoral College of the responsibility to select the President subsumes the authority to
23
decide whether a presidential candidate is qualified for office because the examination
24
of a candidate’s qualifications is an integral component of the electors’ decision-making
25
process. If a court were to sit in judgment of a candidate’s qualifications, its judgment
26
could "inappropriately interfer[e]" with the Electoral College’s constitutional authority
27

28

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 1 to elect the President and to evaluate the qualifications of the candidates seeking that
2 office. Munoz-F/ores, 495 U.S. at 394.
3 The Constitution also provides that, after the Electoral College has voted,
4 further review of a presidential candidate’s eligibility for office, to the extent such
5 review is required, rests with Congress. Where no candidate receives a majority of the
6 electoral votes, the Constitution commits to the House of Representatives the authority
7 to select the President and, in so doing, to evaluate the candidates’ qualifications. See
8 U.S. CONST. amend. XII. Similarly, the Twentieth Amendment explicitly grants
9 Congress the responsibility for selecting a President when a candidate elected by the
10 Electoral College does not satisfy the Constitution’s eligibility requirements. See id.
11 amend. XX, §3 "the Congress may by law provide for the case wherein neither a
12 President elect nor a Vice President elect shall have qualified, declaring who shall then
13 act as President, or the manner in which one who is to act shall be selected, and such
14 person shall act accordingly until a President or Vice President shall have qualified".
15 Both the House and Senate have standing committees with jurisdiction to decide
16 questions relating to presidential elections. See S. R. 25. 1.n15 the Senate Committee
17 on Rules and Administration has jurisdiction over "proposed legislation, messages,
18 petitions, memorials, and other matters relating to . . . Federal elections generally,
19 including the election of the President, Vice President, and Members of the Congress,"
20 as well as "Presidential succession". See also H. R. 10j12.
21 The Constitution therefore provides that, in the first instance, the selection
22 of the President - and the evaluation of a candidate’s qualifications - should be made by
23 the voters and politically accountable bodies without judicial participation. Voters and
24 electors can choose not to vote for a candidate they believe to be ineligible, and
25 members of Congress can object to electoral votes as they are counted. 3 U.S.C. § 15. If

26 a court were to pass upon the eligibility of a candidate to hold the Office of President - a
27 determination reserved for the Electoral College and Congress - it may involve itself in
28 political matters for which it is institutionally ill-suited, and interfere with the

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 1 constitutional authority of the Electoral College and Congress to evaluate the
2 qualifications of presidential candidates.
3 Accordingly, the political question doctrine instructs this Court to refrain
4 from superseding the judgments of voters and those governmental bodies the
5 Constitution designates as the proper forums for determining McCain’s eligibility to
6 hold office. If the Court were to make this determination - as it must to resolve
7 Hamblin’ s claims - it risks disrupting the Constitution’s carefully calibrated separation
8 of powers - "the absolutely central guarantee of ajust Government." Munoz-Flores, 495
9 U.S. at 394 quoting Morrison v. Olson, 487 U.S. 654, 697 1988 Scalia, J.,
10 dissenting. See also Youngstown Sheet & Tube Co. v. Saiiyer, 343 U.S. 579, 635
11 1952 Jackson, J., concurring "the Constitution diffuses power the better to secure
12 liberty".

13 II. The Court Should Dismiss the Complaint Pursuant to Rule 12b6 Because
Hamblin Has Failed to State a Claim Upon Which Relief Can Be Granted.
14
Assuming Hamblin has standing and his claims are justiciable, which they
15
are not, the Court should nevertheless dismiss his Complaint for failure to state a viable
16
claim. The purpose of a Motion to Dismiss under Rule 12b6 is to test the legal
17
sufficiency of a complaint. Sturm v. Clark, 835 F.2d 1009, 1011 3d Cir. 1987. "[A]
18
court will grant a motion to dismiss when, even taking all pleaded facts as true, the party
19
against whom the motion is filed cannot prove a set of facts which supports its claim."
20
Neitzke v. Williams, 490 U.S. 319, 326-27 1989. A court is not required, however, to
21
presume the truthfulness of bald assertions, conclusory allegations or legal conclusions
22
couched as facts. See Papasan v. A/lain, 478 U.S. 265, 286 1986. Under this standard,
23
Hamblin’s Complaint must be dismissed for the following reasons: 1 Hamblin was not
24
deprived of any right under color of law that is protected by 42 U.S.C. § 1983; 2
25
without a valid § 1983 claim, his § 1985 claim fails as a matter of law; and 3 Hamblin
26
has not alleged any of the elements necessaiy for a claim of intentional infliction of
27
emotional distress under Arizona law.
28

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 A. Hamblin Has Not Alleged Any State Action That Violated a Right
1 Protectedby 1983.
2 Hamblin’s first claim for relief invokes 42 U.S.C. § 1983 based on
3 allegations that McCain deprived him of civil and constitutional rights. As a preliminary
4 matter, Hamblin has failed to allege any facts that could attribute McCain’s conduct to
5 the State as required to plead a viable § 1983 claim. See Rendell-Baker v. Kohn, 457
6 U.S. 830, 838 1982 noting that the Supreme Court has consistently required state
7 action under § 1983 because of its "under color of law" language. Courts have
8 recognized that an individual who acts in his capacity as a candidate for political office,
9 as McCain did during the 2008 election, is not a state actor. In Federer v. Gephardt, 363
10 F.3d 754 8th Cir. 2004, for example, the court dismissed a civil conspiracy suit against
11 Representative Richard A. Gephardt arising out of his congressional reelection
12 campaign in 2000. Id. at 758. The plaintiff in Federer had not alleged that Gephardt
13 acted on behalf the House of Representatives, the United States or the State of Missouri
14 in his reelection bid, nor did the court find that Gephardt’s conduct was otherwise
15 chargeable to the State. Id. at 759. The court therefore concluded that Gephardt was
16 solely a "political candidate and private person" - even though he was then employed as
17 a U.S. Congressman and that plaintiff had failed to allege state action. Id. For the same
-

18 reasons, McCain was acting solely as a political candidate and private person in his
19 2008 presidential campaign, and Hamblin’s § 1983 claim is fatally defective.
20 More fundamentally, Hamblin has not alleged a violation of any right
21 protected by § 1983. Because § 1983 does not create any substantive rights, Hamblin
22 must point to a right independently secured elsewhere. Gonzaga Universily v. Doe, 536
23 U.S. 273, 285 2002 "One cannot go into court and claim a violation of § 1983 - for
24 § 1983 by itself does not protect anyone against anything." citation omitted.
25 Moreover, § 1983 protects only federal rights - those created by the Constitution or
26 laws "of the United States." Id. at 283. Therefore, to state a viable § 1983 claim,
27 Hamblin must identify "an unambiguously conferred right" secured by the U.S.
28 Constitution or federal statute. Id. This he cannot do.

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 1 All of Hamblin’s allegations hinge on the contention that McCain is not a
2 "natural born Citizen" as required by the Constitution to hold the Office of the
3 President. U.S. CONST. art. II, § 1, cl. 5. [Am. Comp. ¶J 18-19, 26] From this premise,
4 Hamblin alleges that McCain knew he was ineligible but attested otherwise in election
5 documents [Id. ¶J 24-25, 32], and that this somehow caused Hamblin to cast an "illegal

6 vote." [Id. ¶J 74, 76, 80] The Natural Born Citizen Clause, however, does not confer any
7 rights on citizens or voters that could be asserted in a § 1983 action. See Berg v. Obama,
8 574 F. Supp. 2d 509, 522-23 E.D.Pa. 2008 reasoning that the Natural Born Citizen
9 Clause is analogous to the Supremacy Clause and the foreign affairs powers, which do
10 not confer individual rights or give rise to cognizable § 1983 claims. Because Hamblin
11 has no enforceable right under the Natural Born Citizen Clause, and because a violation
12 of that Clause underscores all of his allegations, his § 1983 claim fails as a matter of
13 law. See id. at 522 finding the Natural Born Citizen Clause to be the "irreducible basis"
14 of the plaintiff’s alleged violations, including violations of the Due Process Clause and
15 Fourteenth Amendment, and dismissing the § 1983 claim in its entirety.
16 Although these defects necessarily foreclose any possibility of reaching
17 the merits of Hamblin’s core allegations, they are baseless in any event because McCain
18 is a "natural born Citizen" eligible to serve as President. It is generally accepted that the
19 Framers ofthe Constitution included the Natural Born Citizen Clause in the Constitution
20 in response to a 1787 letter from John Jay then serving as the Continental Congress’s
21 Minister of Foreign Affairs to George Washington then presiding over the
22 Constitutional Convention at Philadelphia that suggested that the new Constitution
23 prohibit "Foreigners" from attaining the position of Commander in Chief See Charles
24 Gordon, Who Can Be President qf the United States: The Unresolved Enigma, 28 MD.
25 L. REV. 1, 5 1968. Although McCain was born in the Panama Canal Zone, as Hamblin
26 alleges, McCain is hardly a "Foreigner[ ]." [Am. Compl. ¶ 18]
27 McCain was born to two U.S. citizens [Id. ¶ 72], and Congress has

28 recognized in successive federal statutes since the Nation’s founding that children born

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 1 abroad to U.S. citizens are themselves U.S. citizens at birth. 8 U.S.C. § 1401c. See also
2 Pub. L. No. 73-250, § 1, 48 Stat. 797, 797 1934. In fact, the statute that the First

3 Congress enacted on this subject in 1790 not only established that such children are U.S.
4 citizens, but also expressly referred to them as "natural born citizens." 1 Stat. 103, 104
5 1790 emphasis added. See also Bowsher v. Synar, 478 U.S. 714, 723 1986 the
6 views of the First Congress provide "contemporaneous and weighty evidence of the
7 Constitution’s meaning" internal quotations omitted. Moreover, the First Congress’s
8 statutory recognition that persons born abroad to U.S. citizens were "natural born
9 Citizens" itself was in accord with the British tradition that necessarily informed the
10 Framers’ understanding of the Natural Born Citizen Clause. See, e.g., British Nationality
11 Act, 1730, 4 Geo. 2, c. 21 children born abroad to parents who were "natural-born
12 Subjects" were also "natural-born Subjects . . . to all Intents, Constructions, and
13 Purposes whatsoever".

14 The fact that McCain was born in 1936 rather than 1790 only strengthens
15 his status as a "natural born Citizen" because both the U.S. Supreme Court and the other
16 branches of the federal government have recognized that the Panama Canal Zone was
17 sovereign U.S. territory when McCain was born there. [Am. Compl. ¶ 18] See, e.g,

18 0 ‘Connor v. United States, 479 U.S. 27, 28 1986 "[fjrom 1904 to 1979, the United

19 States exercised sovereignty over the Panama Canal and the surrounding 10-mile-wide

20 Panama Canal Zone"; The President - Government of the Canal Zone, 26 Op. Att’y

21 Gen. 113, 116 1907 recognizing that the 1904 treaty between the United States and

22 Panama "imposed upon the United States the obligations as well as the powers of a

23 sovereign within the [Canal Zone]". Although Senator McCain was not born within a

24 State, he was born within the sovereign territory of the United States, which provides a

25 separate basis for his status as a "natural born Citizen" in addition to his birth to U.S.

26 citizen parents. See, e.g., United States v. Wong Kim Ark, 169 U.S. 649, 655-56 1898.

27 See a/so U.S. CONST. amend. XIV, § 1.

28

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 1 Accordingly, Hamblin’s claim that he was deprived of any right
2 whatsoever as a result of McCain’s 2008 presidential campaign is utterly devoid of
3 merit, and must be dismissed.
4 B. Hamblin’s 1985 Claim Cannot Proceed Without a Valid 1983 Claim.
S Hamblin’s second claim for relief pursuant to 42 U.S.C. § 19853 is
6 similarly meritless. To state a viable § 1985 claim, Hamblin must allege: 1 a
7 conspiracy; 2 for the purpose of depriving, either directly or indirectly, any person or
8 class of persons of the equal protection of the laws, or of equal privileges and

9 immunities under the laws; 3 an act in furtherance of the conspiracy; and 4 either an

10 injury to his person or property, or a deprivation of any right or privilege of a citizen of

11 the United States. E.g., Kessler v. Monsour, 865 F. Supp. 234, 238 M.D.Pa. 1994

12 citing United Brotherhood of Carpenters & Joiners of Am. v. Scott, 463 U.S. 825, 829-

13 30 1983. Hamblin has not pled facts sufficient to satisfy these elements.

14 Hamblin has not alleged an injury or deprivation of a right protected by

15 the statute. Like § 1983, § 1985 does not create substantive rights; "it merely provides a

16 remedy for violation of the rights it designates." Great Am. Fed. Sav & Loan Ass ‘n v.

17 Novotny, 442 U.S. 366, 372 1979. Courts have therefore held that "where there is no

18 federal right that creates a basis for a § 1983 claim there is similarly no basis for a

19 § 1985 claim." Berg, 574 F. Supp. 2d at 523. See a/so Escami/la v. City of Santa Ana,

20 606 F. Supp. 928, 934 C.D. Cal. 1985 granting defendants’ motion for summaiy

21 judgment on § 1983, 1985 and 1986 claims: "[S]ince no basis exists for the § 1983
22 claims, there is no basis for these [other] claims.". As such, Hamblin’s § 1985 claim is

23 legally deficient for the same reasons as his § 1983 claim.

24 Additionally, Hamblin’s reliance on subsection 3 of § 1985 - the only
25 subsection remotely relevant2 - imposes the additional requirement that "some racial, or
26 2
Subsection 1 addresses the prevention of a U.S. officer from performing his
official duties. 42 U.S.C. § 19851. Hamblin has not alleged that he is an officer of the
27 United States. Subsection 2 creates a claim for conspiracy to intimidate witnesses, jurors
or parties in a federal case. Id. § 19852. Again, Hamblin has made no allegations that
28 would support such a claim.

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 1 perhaps otherwise class-based, invidiously discriminatoiy animus [lay] behind the
2 conspirators’ action." Bray v. Alexandria Women ‘s Health Clinic, 506 U.S. 263, 267-68
3 1993. Nowhere in his Complaint does Hamblin allege that McCain’s purported
4 conspiracy was motivated by a discriminatoiy intent - racial or otherwise. Rather,
5 Hamblin alleges that McCain fraudulently stated his eligibility for the presidency to

6 obtain access to the primary- and general-election ballots. [E.g., Am. Compl. ¶J 18-19,

7 26, 29, 32, 71] See a/so Berg, 574 F. Supp. 2d at 524 dismissing § 19853 claim
8 because the plaintiff had made no allegations that the conspiracy was motivated by
9 racial animus. Consequently, even assuming Hamblin suffered an injury or deprivation
10 of a protected right, the Complaint falls short of stating a cognizable cause of action
11 under 19853.

12 C. Hamblin Cannot Meet the Heavy Burden of Stating a Claim for

Intentional Infliction of Emotional Distress.
13
Hamblin’s allegations fail to satisfy any of the elements necessaiy to state
14
a claim for intentional infliction of emotional distress under Arizona law. To proceed,
15
Hamblin must allege that: 1 McCain engaged in extreme and outrageous conduct;
16
2 McCain intended to cause emotional distress or recklessly disregarded the near
17
certainty that such distress would result; and 3 severe emotional distress occurred as a
18
result. Ford v. Rev/on, 153 Ariz. 38, 734 P.2d 580 1987 adopting the Restatement’s
19
formulation ofthe tort. See a/so Restatements Second Torts § 46 1977.
20
First, McCain’s campaign for the presidency does not constitute extreme
21
and outrageous conduct as a matter of law. The "extreme and outrageous" standard
22
imposes an exceptionally high bar to recovery. Tortious, criminal or even malicious
23
actions alone are often inadequate. The conduct at issue must be beyond all realms of
24
human decency, atrocious, utterly intolerable or "at the veiy extreme edge of the
25
spectrum of possible conduct." Watts v. Go/den Age Nursing, 127 Ariz. 255, 258, 619
26
P.2d 1032, 1035 1980 delay in reporting terminal illness held insufficient to recover.
27
See a/so Ne/son v. Phoenix Resort Corp., 181 Ariz. 188, 888 P.2d 1375 Ct. App. 1994
28

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 1 humiliating termination of employment photographed by media held insufficient. As a
2 matter of law, the Court must determine initially whether McCain’s conduct was so
3 extreme and outrageous as to permit recovery. Restatement § 46, cmt. h. No reasonable
4 person, however, could find that McCain’s presence on the Arizona ballot surpassed "all
5 possible bounds of decency. . . in a civilized community." Watts, 127 Ariz. at 258, 619
6 P.2dat 1035.
7 Second, Hamblin’s allegations are deficient in showing that McCain
8 intended to cause, or acted recklessly in causing, Hamblin’s emotional distress, if any.
9 Intent is established where "the actor desires to inflict severe emotional distress, and
10 also where he knows that such distress is certain. . . to result from his conduct."
11 Restatement § 46, cmt. i emphasis added. Hamblin’s Complaint is devoid of any
12 evidence that McCain desired to cause anyone emotional distress, that McCain knew
13 such distress would be certain as a result of his running for President, or that McCain
14 has ever even heard of Hamblin.
15 Third, Hamblin has failed to allege that he has suffered the severity of
16 emotional distress necessaiy to support his intentional infliction claim. Indeed, Arizona
17 law draws a significant distinction between mere emotional distress and severe
18 emotional distress. See Midas Muffler Shop v. E//ison, 133 Ariz. 194, 199, 650 P.2d 496,
19 501 Ct. App. 1982 difficulty sleeping insufficient to establish severe harm; Spratt
20 Northern Auto. Corp., 958 F. Supp. 456, 461 D. Ariz. 1996 crying, being stressed and

21 upset, and having headaches are not enough; Bodett Coxcom, 366 F.3d 736, 747 9th

22 Cir. 2004 shock, moodiness, and estrangement from friends and coworkers are
23 likewise insufficient under Arizona law. The Complaint only alleges that McCain’ s
24 actions inflicted "severe emotional damage upon Plaintiff, to the point of filing this
25 complaint to seek justice as a Pro Se litigant." [Am. Comp. ¶ 84] The fact that Hamblin
26 felt compelled to file this lawsuit seeking over $3.5 million in damages does not
27 establish the type of emotional injury required by Arizona law.
28

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 1 Having failed to satisfy any of the elements of a claim for intentional
2 infliction of emotional distress, Hamblin’s allegations are insufficient as a matter of law
3 and must be dismissed.
4 Conclusion
5 For the foregoing reasons, the Court should dismiss Hamblin’s Amended
6 Complaint with prejudice.
7 DATED this 29th day of May, 2009.
8 STEPTOE & JOHNSON LLP

9
By /s/ David J. Bodney
10 DavidJ.Bodney -

Aaron J. Lockwood
11 Collier Center
201 East Washington Street
12 Suite 1600
Phoenix, Arizona 85004-23 82
13
Attorneys for Defendant John S.
14 McCain
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 1 CERTIFICATE OF SERVICE
2 I hereby certify that on the 29th day of May, 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 29th day of May, 2009 to:
6
Hon. Roslyn 0. Silver
7
United States District Court
8 Sandra Day O’Connor U.S. Courthouse
Suite 624
9 401 West Washington Street, 5PC59
10 Phoenix, Arizona 85003-2 158

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

14
15 /s/ Angela Wilmot
Legal Secretary
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