Professional Documents
Culture Documents
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CASE NO.
Respondent
APPLICATION
FOR DISCRETIONARY
APPEAL
MARK HATFIELD HATFIELD & HATFIELD, P.C. Attorney for Applicant 201 Albany Avenue P.O. Box 1361 Waycross, Georgia 31502 (912) 283-3820 Georgia Bar No. 337509 mhatfield@wayxcable.com
J.
IN THE SUPREME COURT STATE OF GEORGIA KEVIN RICHARD Applicant V. BARACK OBAMA, POWELJi.,
* *
*
CASE NO.
Respondent APPLICATION
*
FOR DISCRETIONARY APPEAL
Now comes Appl:_cant Kevin Richard undersigned pursuant counsel., and respectfully
to O.C.G.A.
Court of Fulton to
Applicant's Decision
of Georgia
Applicant's Obama,
election.
hereto:
"Order
Respondent
as Exhibit
Applicant
in the Superior
"C'I
15,
2012; as Exhibit
a copy of Applicant's
For Expedited of
Review or, Alternat~_vely, For Stay of Decision State and For Postpc)nement of Presidential Election" Respondent Support
of Secretary
Preference
Primary
"0" a copy of
thereof
to Respondent's
to Dismiss"
2, 2012 and thereaf-~er stamped as filed on March Exhibit "F" a copy of a letter dated January attorn(~y to Secretary
Respondent's
PART ONE
Discretionary 2-5(e)
pursuant
to the qualifications
a presidential
candidate,
Respondent primary
2.
jurisdiction
this Application
constitutionality Preference
21-2-5 as applied
the construction
of Article
II, Section
I, Clause
Respondent
to Dismiss"
OF FACTS.
On or before
October
31, 2011,
Party of Georgia
Presidential
Preference
Democratic
Mike Berlon
submitted,
to O.C.G.A. Secretary
21-2-193,
of State's
Democratic
Presidential
Prefere~ce
Page -3-
Thereafter, Powell,
pursuant
to O.C.G.A. County,
21-2-5(b),
Applicant
a residentJf
Gwinnett
Georgia
and an elector
eligible
for the IJresidency of the United States, timely Sec:retary of State a written challenge
to the
of REspondent
of the U~ited
States.
does not meet the "natural born Citizen" of Article II, Section I, Clause
eligibility
5 of the United
21-2-5(b),
Applicant's
challenge
administrative
(hereinafter
Hearings notice
(hereinafter
Thereafter, a
to all parties,
was pr"esent at trial and submitted coun~el, evidence and testimony However,
pertaining
to personally
26, 2012.
attorney
Page -4-
No evidence
or testimony
whatsoever
into the
of Respondent to appear
The failure of
and intentional,
as demonstrated attorney
by Respondent's
Applicant's
at trial established
Obama, was born in Kenya and was a subject Applicant established that
Additionally,
aforesaid
of the United
Respondent
Nevertheless, Decision
election.
Pursuant
21-2-5(b),
Decision
was reported
to the Secretary
of State.
on FebrJary Secretary
7, 2012, pursuant
to O.C.G.A.
21-2-
of State Brian P. Kemp issued a Final Decision of the ALJ and denying
adopting
th,~ initial
21-2-5(e),
appealing
Final Decision
Page -5-
Petition
also requested
hearing
ani review of the case due to the fact that the Preference Primary Election was scheduled 6, 2012. to In of
Presidential
a further effort to Jbtain some action by the Court in advance the election "Motion Decision date, AJplicant then filed, on February
22, 2012, a
For Stay of of
Presidential
Prefere~ce
On February
for Respondent
subject matter;
that there was a failure of service of process; Petition failed to state a claim upon which
wished to respond
to Respondent's
March 2, 2012 at 9:30 a.m., to do so (Exhibit "E," pp. Counsel for Applicant thereafter submitted to the Court,
dea,iline, Applicant's
"Response
to Respondent's
to Dismiss"
(~xhibit "E," p. 14), and the Court of same in an email sent at 8:30 a.m. on the (Exhibit "E," p. 15). Just over two and
acknowledged morning
receipt
of March 2, 2012
Page -6-
one-half
pp. 1-2).
PART TWO ENUMERATION OF ERRORS
1.
The Superior
21-
of a challenge
of a candidate
in the Presidential
The Superior
O.C.G.A.
21-2-5
unconstitutional of a candidate
3.
as applied
in the Presidential
Preference
The Superior
failed to perfect
sErvice
Applicant's service.
of failure to perfect
The Superior
of the Secretary
of the burden
The Superior
Court erred in failing to reverse the of State on the basis of the in finding as "fact"
Final Decision
of tte Secretary
of State's errors
Page -7-
Respondent's
mother
States at the
time of Respondent's
6.
The Superior
Court erred in failing to reverse the of State on the basis of the error in finding that born Citizen" pursuant to
Final Decision
of tte Secretary
of State's
as a "natural
II of the United
States Constitution,
despite
the fact
that Respondent's
time of Respondent's
OF AUTHORITY
would note at the outset that this Court's the standard for granting discretionary
Rule
appeals,
in pertinent
of a precedent
the Superior
Court, as well as the ALJ and the Secretary number of reversible errors. Additionally,
significant
issues regarding
of presidential capable
contenders,
Page -8-
the establishment
of a precedent
The Superior
21-
2-5 does not apply in the context of a challenge qualifications Primary. The Superior qualifications Presidential Court held that a.C.G.A. of a candidate in the Presidential
or election
of a presidential
candidate.
also found that Res:pondent is not yet a "candidate" Presidential Primary Election Electic1n, and that the Presidential
contended
before
of "election"
found in but
21-2-2(5)
or special primary
is used ~clearly
requires"
of a primary
or special primary. The Superior provisions Court and Respondent overlooked, as however, the
of a.C.G.A.
21-2-15
inasmuch
This chapter shall apply to any general or special el.ection in this state to fill any federal, ~tate, county, or municipal office,
Page -9-
to any general or special primary to nominate candidate,) for any such office, and to any federal, state, county, or municipal election or primar; for any other purpose whatsoever, unless otherwise provided. Also, the qual:Lfications challenge 5, grants a right t() challenge candidate," the Superior Presidential statute, O.C.G.A. of "any Despite in a by
21-2-
the qualifications
designated
21-2-193.
alscl argued in the Court below that a "candidate" by the state executive committee of a see have
or must submit "a notice of candidacy," and that neither O.C.G.A. of such conditions
2l-2-5(a),
of the qualifications
may be made "at any time prior to the election candidate," and Resrondent's political
and
of candidacy" Election
terms in the
Code, and one could argue that the list of Primary candidates party pursuant submitted by 21-2-193
Preference political
to O.C.G.A.
a "certification"
or a "notice of candidacy."
Page -10-
it is apparent
qualifications
statute dces, in fact, apply to the Presidential Primary; that the Superior Court did properly Petition; have
subject-matter Superior 2.
error in holding
O.C.G.A.
21-2-5
unconstitutional of a candidate
as applied
in tbe Presidential
Preference
jurisdiction
(and Fourteenth)
Amendment
political
whom to include
Preference
(citing Democratic
Part V of u.S.
v. Wisconsin,
107, 101 S.
Ct. 101C, 67 L.
is also true" in that the party has the unchecked certain rames on its primary ballot.
to require however,
Respondent,
cited no a~thority
Court essentially
Page -11-
interfere
with a political
party's
determination
of its
candidates, presidential
authority
is limited to examining
cited by the Superic1r Court or by Respondent the conclusion associational require that a political right~ deprive party's
a state government
meet constitutional
or statutory on the
eligibility
21-2-5(b)
and
Georgia
a candidate's
empowered
O.C.G.A.
unsucces~fully
a candidate's of State's
by filing
petition
in the Superior
Court of Fulton
to the associational
the Superior
otherwise.
Page -12-
3. failed
Applicant's service.
Court also ruled that, even if the Court pursuant to O.C.G.A. personal
21-2-5,
to perfect by O.C.G.A.
Respondent(s) 9-11-4.
as required
21-2-5(e)
The Superior
Court apparently
believed
Applicant's
case
for the reason argued by Respondent was made by mailing that personal suit. Public to
claimed
Georqia
(2003) lS
In Douqlas Asphalt,
the Court held that in an of a state agency or other for judicial review
decision
upon the agency was not required, to preserve specifically decision pertinent the jurisdiction
of the court.
is governec. by O.C.G.A.
shall be
prescribed
by Code
Page -13-
Section
5-6-32."
O.C.G.A.
5-6-32(a),
in turn, provides
In
pertinent
part that Whenever under this article service or the giving of any notice is required or permitted to be made upon a party and the party is represented by an attorney, the service shall be made upon the attorney unless service upon the party himself is ordered by the court. Service of all notices and other papers hereunder and service of motions for new trial, motions in arrest, motions for judgment notwithstanding the verdict, and all other similar motions, orders, and proceedings may be made by the attorney or party filing the notice or paper, in person or by mail, and proof thereof shown by acknowledgment of the attorney or party served, or by certificate of the attorney, party, or other person perfecting service.
in the instant
upon
Applicant
by mail were for any reason not considered 2l(b) states in pertinent
5-3-
service
on any party shall rot work dismissal, shall grant continuances necessary appeal." to permit Dismissal
court
based upon the issue of service was therefore Court erred to the extent that service.
Page -14-
4.
to reverse the
Final Decision of the Secretary of State on the basis of the ALJ's and the Secret,ary of State's errors in failing to determine to
failure to of
make a determinatior, as to the proper placement proof as between apply the burden On January Determination the parties,
of proof to his factual and legal conclusions. 19, 2012, Applicant filed a "Motion For
of Placement
of Burden of Proof" in which he sought 273 Ga. 106, 108-109, to affirmatively 538
Respondent
Not only did the ALJ not of trial, as was requested or resolved the
in his final ruling. provides that, with certain shall bear the
of proof in
matters."
to the commencement
a different
of the burden
to Respondent's agency,
qualifications
the challenge
was commenced
to O.C.G.A.
21-2-5(b),
21-2-5(b),
to refer the
to the OSAH for a hearing. the ALJ, the "agency," i.e. the of
to the challenge,
for the agency to bear the burden by OSAH Rule 616-1-2-.07(1). have been placed ineligible) However, required, regarding
of proof as initially
The burden
of proof therefore
(i.e.,
or with Respondent
to prove himself
under HavnE~,
was not
anything
eligibility
rd.
The significance of the ALJ's apparent. failure to rule on the burden Respondent and his lawyer and such
of proof is immediately
failed to attend trj.al and failed to offer any evidence, failures were intent:ional, as shown by Respondent's
counsel's
Page -16-
25, 2012
(Exhibit ~F").
If Respondent
did, as
contends,
the basis of their failure to address the burden reversible 5. error. The Superior Court erred in failing
to reverse
the
of the Secretary
Secre1:~ary
of State's errors
mother
of the United
time of Respondent' ~:~irth. b The ALJ's rulirlg, and consequently challenge the Secretary of State's
to Respondent's
qualifications
alleged
the time of Respond':;nt' birth. s However, burden as se: forth hereinabove, his eligibility Respondent carried the as
of proving
for office.
Inasmuch
Respondent
whatsoever,
Page -17-
Citizen"
requirement
for presidential
eligibility
mandates
an of
examination
of Respondent's parents
place of birth and the citizenship at the time of Respondent's Respondent birth
hereinbelow),
found by the ALJ were legally unsupported. failure to reverse the Secretary
of ~fact" is reversible
6.
to reverse the
Final Decision of tb.e Secretary of State on the basis of the ALJ's and the Secret:.aryof State's error in finding that Respondent qualifies: as a "natural born Citizen" pursuant to Article II of the United States Constitution, despite the fact at the
that Respondent's fc:Lther was not a United States citizen time of Respondent'B birth.
The ALJ's was grounded (and subsequently the Secretary
of State's)
ruling
of the non-binding
reasonlng
in Ankenv
v. Governor of Indiana,
finding that a
2d 678 (20()9), with regard to the ALJ's as a natural born citizen a United
qualifies
States citizen
by Respondent Respondent's
the ALJ's
States
automatically pursuant
the status of "natural born Citizen" States Constitution of the applicable is law; and
to Article
unfounded; is contrary
is an incorrect
authority
that the
II phrase
in the United
State~: to two
United
undisputed Obama's
evidence
demonstrated, citizen
reversible
reasons, Applicant
respectfully For
lThis issue will be more fully briefed by Applicant upon the granting ofthis Application For Discretionary Appeal. Page -19-
Discretionary Superior
Appeal
of the
Court in this case. submitted, this 12th day of March, HATFIELD & HATFIELD, 2012.
Respectfully
P.C.
201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820
31502
Page -20-
CERTIFICATE
I,
J. Mark Hatfield,
Attorney
certify that I have this day served the foregoing Discretionary Appeal upon: Michael K. Jablonski Attorney at Law 2221-0 Peachtree Road NE Atlanta, Georgia 30309
Mr.
Honorable Brian P. Kemp Secretary of State State of Georgia 214 State Capitol Atlanta, Georgia 30334 by placing addressed a copy of same in the United envelope ~rith sufficient delivery, States Mail in a properly affixed thereto in
postage
and by emailing
and by emailing
to Secretary
& HATFIELD,
P.C.
201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820
31502
Mark Hatfield
From:
Sent: To: White, Connie [Connie.White@fultoncountyga.gov] Friday, March 02,2012 11:04 AM david. is.farrar@gmail.com; codyj udy@hotmail.com; mhatfield@wayxcable.com; van@liberty,egalfoundation.org; michael.jablonski@comcast.com; cale@sos.ga.gov; vrusso@smi.ga.gov; dpwelden@gmail.com Order Granting Respondent Barack Obama's Motion(s) to Dismiss-2012cv211398, 2012cv211~:27, 2012cv211528, 2012cv211537 DOC006.pdf
Subject:
Attachments:
~~.
;, ,~, ,~
DOC006.pdf KB)
(563
Hello, Please find attached Motion(s) to Dismiss Wright's office. Thank you, Connie White
a stamp filed copy of the Order Granting Respondent Barack Obama's 2012cv211398, 2012cv211527, 2012cv211528, 2012cv211537 from Judge
PLAINTIFF'S EXHIBIT
,/J
11
\l
A
*
IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA FILE NO. 2012 CIVIL ACTION
@~y(\
FILED IN OFFICE ~
MAR 2.1011
CLERK SUPERIOR GA N COUNTY.
Ie",
~ ~
DEPUTY
COURT
* *
FILE NO. 2012CV211527 CIVIL ACTION * CARL SWENSSON
* *
*
* *
Farrar; et aI. v. Obama, et al: Civil Action No. 2012CV211398 Civil Action No. 2012CV211527 Powell v. Obama: Civil Action No. 2012CV211528 Welden v. Obama: Civil Action No. 2012CV211537
Swensson v. Obama: ORDER GRANTING MOTION{S) TO DISMISS
Page 1
v.
* DAVID P. WELDEN
**
* *
TO DISM1SS
The above-captiolli:.ldactions are before the Court on the Petition(s) for Judicial Review of Petitioners David Farral', et aI., Carl Swensson, Kevin Richard Powell, and David P. Welden, which were filed in this Court on February 13, 2012 and February 15, 2012, respectively. Although initially a.ssigned to four (4) different Superior Court Judges, the matters were transferred to the Honorable Chief Judge Cynthia D. Wright, to whom the flIst-filed case was assigned (Farrar, et al. v, Obama, et al., Civil Action File No. 2012CV211398), because each is an appeal of the same deci1;ionissued on February 3,2012 by Administrative Law Judge Michael M. Malihi in the Office of State Administrative Hearings and thereafter adopted by the Secretary of State. Presently before the Court is the Motion to Dismiss of Respondent Barack Obama, filed in each of the above-refenmced actions on February 27, 2012. The Motion(s) to Dismiss are identical in form and substance and will, therefore, be addressed by the Court in one consolidated Order to be applied in each case. Now, having considered the Motion(s) to
Dismiss, the other pleading!; of record, and applicable Georgia law, the Court fmds as follows: Petitioners filed their AppeallPetition for Judicial Review of the Secretary of State's decision in this Court pursu.mt to O.C.G.A. 21-2-5(e), which provides as follows:
Farrar, et al. v. Ohama, et al: Civil Action No. 2012CV211398 Swensson V. Obama: Civil Actlon No. 2012CV211527 Powell v. Obama: Civil Action No. 2012CV211528 Welden v. Oboma: Civil Action No. 2012CV211537
ORDER GRANTING MOTION(S) TO DISMISS
Page 2
The elector filing the challenge or the candidate challenged shall have the ri ght to appeal the decision of the Secretary of State by filing a petition in the Superior Court of Fulton County within ten days after the entry of the final decision by the Secretary of State. The filing Df the petition shall not itself stay the decision of the Secretary of State; however, the reviewing court may order a stay upon appropriate terms for good cause shown. As soon as possible after service of the petition, the Secretary of State shall transmit the original or a certified copy of the entire record of the proceedings under revi,;w to the reviewing court. The review shall be conducted by the court without a jury and shall be confined to the record. Petitioners allege that Respondent thus, is not qualified for candidacy Barack Obama is not a "natural born citizen"l and, 2012 Presidential Primary. Despite its
in Georgia's
application in the court beilow, this Court does not believe that O.c.G.A. case because the challenge at issue involves the Presidential Preference
terms, is an opportunity for electors "to express their preference for one person to be a candidate for nomination."
O.C.G.l~. 21-2-191.
The Presidential
Preference
Primary
apportions
delegates, but neither elec ts nor nominates candidates for the Presidency. Respondent Barack Obama is not yet a "candidate" for the Presidential
Therefore, because
because the Presidential Preference Primary is not an "election" within the meaning of a.C.G.A. 21-2-1, et seq., O.C.G.A. 21-2-5 does not apply. See O.c.G.A. 21-2-2(5) and 21-2-5.
Moreover, it is weB established in Georgia as elsewhere in the United States that voters vote on "presidential electors," rather than voting directly for a candidate, when voting for the The political parties' candidates
for President are determined by convention of the political party. See O.C.G.A. 21-2-191 to
I Petitioners claim is based, in pa:i, on a contention that at the time of his birth, Respondent's father was not a citizen ofthe United States.
Farrar, et al. v. Ohama, et al: Civil Action No. 2012CV211398 Swensson v. Ohama: Civil Action No. 2012CV211527 Powell v. abama: Civil Action No. 2012CV211528 Welden v. Ohama: Civil Action No. 2012CV211537
ORDER GRANTING MOTIONI:S) TO DISMISS
Page 3
21-2-200.
In the case of a democratic candidate for President, the Democratic Party of Georgia
has the sale discretion to detennine the qualifications of potential candidates and the name( s) to be included on its Presidential Preference Primary ballot. O.C.G.A. 21-2-193; see Duke v.
Cleland, 954 F.2d 1523 (] lth Cir. 1992); Duke v. Cleland, 884 F. Supp. 511, 515-16 (N.D. Ga. 1995). The Secretary of State is prohibited by the Fourteenth Amendment Constitution and Georgi;;1 statutory law from infringing of the United States rights of the electors.
on the associationa1
Democratic Party of Georgia and is limited in its authority to examining presidential O.c.G.A.
21-2-172 to 21-2-200; Duke v. Cleland, 884 F. Supp. at 515-16 (N.D. Ga. 1995). claims are valid, the Secretary of State Id.
Based upon Georgi a law and governing precedent, the Court finds it has no authority to exercise jurisdiction over the Democratic Preference Party of Georgia's Primary selection of the names(s) to be the qualifications of those
or to examine
individuals. Therefore, thei::e actions should be DISMISSED 11-12(b). Additionally, matters and provided
in accordance
with O.C.G.A. 9-
even iif the Court had determined that O.C.G.A. 21-2-5 applied to these the Court with appellate jurisdiction over same, the Court finds that as required by
O.c.G.A. 21-2-5(e) and O.C.G.A 9-11-4. See Bible v. Bible, 259 Ga. 418, 418 (1989). Therefore, IT IS HEREBY ORDERED AND ADJUDGED that Respondent Barack
Obama's Motion(s) to Dismiss in the above matters are GRANTED, hereby DISMISSED. Farrar, et al. v. Ohama, et al: Civil Action No. 2012CV211398 Swensson v. Ohama: Civil Action No. 2012CV211527
Powell v. Obama: Civil Action No. 2012CV211528 Welden v. Obama: Civil Action No. 2012CV211537 ORDER GRANTING MOTION(S) TO DISMISS
Page 4
2nd
c--~~\~
Copies to: Via Email and U.S. Mail:: David Farrar, Pro Se 2059 Cavesprong Road Cedartown, Georgia 30125 david. is. farrar@gmail.com Cody Robert Judy, Pro Se 3031 Ogden Avenue, Suite #2 Ogden, Utah 84403 codviudv@hotmail.com J. Mark Hatfield, Esq. Hatfield & Hatfield, P.c. 201 Albany Avenue P.O. Box 1361 Waycross, Georgia 31502 mhatfield@wayxcable.coln Van R. Irion, Esq. Liberty Legal Foundation 9040 Executive Park Drive: Suite 200 Knoxville, TN 37923 van(@'libertvlegalfoundatioll.org Michael K. Jablonski, Esq. 2221-D Peachtree Road, NE Atlanta, Georgia 30309 michael. iablonski@comca~::t.net
CYNTHIA D. WRIGHT, ChIef Judg~ Fulton County Superior Court Atlanta Judicial Circuit
Farrar, et al. v. abama, et al: ':::ivilAction No. 2012CV211398 Swensson v. Ohama: Civil Action No. 2012CV211527 Powell v. ahama: Civil Action No. 2012CV211528 Welden v. ahoma: Civil Actio 11 No. 2012CV211537
ORDER GRANTING MOTION(S) TO DISMISS
Page 5
Cam-Anh Le, Esq. Vincent Robert Russo, Jr., Esq. Office ofthe Georgia Secretary of State Executive Office 214 State Capitol Atlanta, Georgia 30334 cale@sos.ga.gov vrusso(aJ,sos. ga. gov
David P. Welden, Pro Se 5530 Wright Road Powder Springs, Georgia 30127 dpwelden(W,grnail.com
Farrar, etal. v. Ohama, et al: Civil Action No. 2012CV211398 Swensson v. Ohama: Civil Action No. 2012CV211527 Powell v. Ohama: Civil Action No. 2012CV211528
Welden v. Ohama: Civil Action No. 2012CV211537 ORDER GRANTING MOTIONC::) TO DISMISS
Page 6
KEVIN RICHARD
First First I. Suffix1 Prefix First Prefix Last Maiden Maiden Middle Middle I. Suffix Prefix
Defendant(s)
OBAMA, BARACK
Last
First
Middle I.
Suffix
Bar #
337509
Contract! Account Wills/Estate Real Property Dispossessory/Distress Personal Property Equity Habeas Corpus Appeals, Reviews
o o o
o
D D
o o
~
D No
o o
Tort (If tort, fill in right column) Other General Civil Specif)' _, _
PLAINTIFF'S
EXHIBIT 1'15 \\
KEVIN
RICHARD
POWELL
SUMMONS ; C No"
I.
Plaintiff,
VS.
BARACK OBAMA
Defendant
alld required to file with the Clerk of said Court and serve upon plaintiffs
J.
MARK HATFIELD HATFIELD & HATFIELD, P.C. 201 ALBANY AVENUE P.O. BOX 1361 WAYCROSS, GEORGIA 31502 (912) 283-3820
served upon you, within 30 days after service of this BY
,,vhich is herewith
upon you, exclusivl: of the day of service. IF YOU FAIL TO DO SO, JUDGMENT WILL BE TAKEN AGAINST YOU FOR THE RELIEF DEMANDED
IN THE
COMPLAINTd This
--)_,=.2_----.--
To defendant upon whom this petition is served: This copy of complaint and summons was served upon you , 20 _
Deputy Sherriff
Instructions:
Attach addendum
is used
IN THE SUPERIOR
* * *
CIVIL No.2 ~ I.. FILE ACTIOr: )/2C/Y21
Petitioner
v.
BARACK OBAMA,
J ~ );32 '1)
* *
P]~TITION FOR .JUDICIAL REVIEW
Respondent
Kevin Richard
Respondent
1.
This action Secretary Powell's Obama, is an appeal of a Final Decision of Georgia Kevin Richard Barack
Kemp denying
Petitioner
of Respondent
a presidential
to seek and hold the Office of and finding ~espondent primary Obama
of the United
States,
as a candidate
election.
2.
This Court has jurisdiction O.C.G.A. of this appeal pursuant to
21-2-5(e).
3.
Petitioner in Gwinnett Kevin Richard Georgia. Powell is a natural He is a registered person residing
County,
and he is an elector
eligible
to vote for
to the Executive
of the Democratic
Democratic on
Presidential November
Consequently,
to O.C.G.A.
21-2-193,
to the GE:~orgiaSecretary
Pursuant
to O.C.G.A. Secretary
21-2-5(b),
Petitioner
timely
of State a written
challenge
of Respondent
States.
does not meet the "natural born of Article II, Section I, Clause
eligibility
requirement
5 of the United
States Constitution.
6.
to O.C.G.A.
21-2-5(b),
the Office
of the for
of State thereafter
referred
Petitioner's
challenge
Page -2-
a hearing
State Administrative
to proper
notice
to the parties,
a hearing
was
Law Judge
M. Malihi.
counsel,
any evidence
or testimony
whatsoever.
8.
On February initial Decision, 3, 2012, the administrative a copy of which is attached eligible law judge issued an hereto as Exhibit for the
as a candidate Pursuant
election.
21-2-5(b),
law judge's
Decision
to the
9.
On February Georgia Secretary 7, 2012, pursuant to O.C.G.A.
21-2-5(c),
of State Brian P. Kemp issued a Final Decision, hereto as Exhibit "B," adopting the
of the administrative
Petitioner's
challen'je.
Page -3-
21-2-5(e),
Petitioner of State's
in this case, and fllrther seeks a reversal Decision, Petitioner conclusions, (a) state; (b) of State; (c) (d) (e) Made upon unlawful Affected Clearly procedures; In excess of the statutory for the rE!aSOn that substantial have beerl prejudiced and decisions because
the findings,
of the Secretary
authority
of the Secretary
by other errors of law; erroneous in view of the reliable, and by an abuse probative,
evidence
Arbitrary
~nd capricious
of discretion
and a:learly
unwarranted
of discretion.
11.
In particular, specific Decision (a) Secretary grounds Petitioner would enumerate the following Final
for review
of the Secretary
of State's
in this case: The admini:5trative law judge, and consequently of State aciopting the initial a s::_ngle ruling Decision the
of said judge,
erred in issuing
applicable
to the cases of
Page -4-
Page -5-
erred
as to the proper
placement burden
of the bu~den of proof and in failing to apply the factual and legal conclusions the fact that Petitioner in
Petitioner's
specifically of
of Placement
The admin:_strative law judge, and consequently of State adopting the initial Decision
the
deliberate
the
of said jud~e,
in adopting
the reasoning
in Ankenv
v. Governor
automatically Article
qualii:ies as a "natural
II of the United
States Constitution,
by merely
States, without
the
of said judge,
Page -6-
the
of said judge,
qualifies
Citizen"
II of the United
Consti tution, despi':e the fact that Respondent's United States citizen at the time of Respondent's
The admin:,-strati e law judge, and consequently v of State ildopting the initial Decision at Petitioner's
in failing
request to certify
for a determination
of appropriate
Respondent
intentionally, Petitioner's
Petitioner expedited
resfectfully
requests
hearing
Primary Election
21-2-5(e)~
Petitioner
further
that this Court order a stay of the Final of State finding Respondent eligible to
of the Secretary
Page -7-
as a candidate
a final judgment
reviewing
is timely
filed within
ten
21-2-5(e),
the Secretary
of State, as to
is required
or a certified
copy of the
that this Court: Conduct a hearing and review the record in this case on
an expedited (2) Secretary the ballot election (3) Secretary Article removing Georgia,
to be included
as a candidate
primary
pending
a final judgment
that Respondent
II "natural
born Citizen"
requirement
Page -8-
deliberate
Notice to Produce
HATFIELD
& HATFIELD,
P.C.
201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820
3J.502
Page -9-
HEARINGS
Docket Number: OSAH-SECST ATE-CE1215136-60-MALIHI Counsel for Plaintiffs: Counsel for Defendant: Orly Taitz Michael Jablonski
v.
BARACK OBAMA, Defendant.
DAVID P. WELDEN, Plaintiff, Docket Number: OSAH-SECST ATE-CE121 5137-60-MALIHI Counsel for Plaintiff: BARACK OBAMA, Counsel for Defendant: Defendant. Michael Jablonski Van R. Irion
v.
Docket Number: OSAH-SECSTATE-CE1216218-60-MALIHI Counsel for Plaintiff: J. Mark Hatfield Michael Jablonski
KEVIN RICHARD POWELL, Plaintiff, Docket Number: OSAH-SECST ATE-CE1216823-60-MALIHI Counsel for Plaintiff: BARACK OBAMA, Counsel for Defendant: Defendant. Michael Jablonski
v. J. Mark Hatfield
'.,PLAINTIFF'S
DECISION
Plaintiffs allege that Defendant President Barack Obama does not meet Georgia's eligibility requirements Dr candidacy in Georgia's 2012 presidential primary election.
Georgia law mandates thd candidates meet constitutional and statutory requirements for the office that they seek. O.C.G.A. 21-2-5(a). Mr. Obama is a candidate for federal
office who has been certified by the state executive committee of a political party, and therefore must, under Georgia Code Section 21-2-5, meet the constitutional and statutory qualifications for holding the Office of the President of the United States. States Constitution requin;:s that a President be a "natural bom [c]itizen." II, 1, d. 5. As required by GeDrgia Law, Secretary of State Brian Kemp referred Plaintiffs' challenges to this Court fi)r a hearing. O.c.G.A. 21-2-5(b). A hearing was held on
ld.
The United
Ma1aren, and Roth and their counsel Orly Taitz, Plaintiffs Carl Swensson and Kevin Richard Powell and their counsel J. Mark Hatfield, and Plaintiff David P. Welden and his counsel Van R. Irion, all appeared and answered the call of the case. However, neither Defendant nor his counsel, Michael Jablonski, appeared or answered. Ordinarily, the
Court would enter a defaul t order against a party that fails to participate in any stage of a proceeding. Ga. Compo R.
I This Decision has been consolidated to include the four challenges to President Obama's candidacy filed by Plaintiffs David farrar, et at., David P. Welden, Carl Swensson, and Kevin Richard Powell. Section I of this Decision applies only to the case presented by Ms. Tailz on behalf ofMr. Farrar and his co-plaintiffs, Leah Lax., Cody Judy, Thomas Malaren, and Laurie Roth, and does not pertain, in any way, to the cases of Mr. Welden, Mr. Swensson, and Mr. PowelL Section II applies to all Plaintiffs.
Defendant's
failure to appear, Plaintiffs asked this Court to decide the case on the merits
of their arguments and evi dence. The Court granted Plaintiffs' request. By deciding this matter on the merits, the Court in no way condones the conduct or legal scholarship of Defendant's attorney, Mr. Jablonski. This Decision is entirely
based on the law, as well as the evidence and legal arguments presented at the hearing.
I.
Obama is not a natural born citizen. To support this contention, Plaintiffs assert that Mr. Obama maintains a fraudulently obtained social security number, a Hawaiian birth
valid U.S. identification papers. Further, Plaintiffs submit that Mr. Obama has previously held Indonesian citizenship, and he did not use his legal name on his notice of candidacy, which is either Barry Soetoro or Barack Obama Soebarkah. (Pl.s' Am. Compl. 3.)
At the hearing, Plaintiffs presented the testimony of eight witnesses2 and seven exhibits in support of the:ir position. (Exs. P-I through P-7.) When considering the
testimony and exhibits, this Court applies the same rules of evidence that apply to civil nonjury cases in superior court. Ga. Compo R. & Regs. 616-1-2-.18(1)-(9). The weight
to be given to any evidence shall be determined by the Court based upon its reliability and probative value. Ga. Compo R.
& Regs.
616-1-2-.18(10).
The Court finds the testimony of the witnesses, as well as the exhibits tendered, to be of little, if any, probative allegations.3 Ms. Taitz value, and thus wholly insufficient to solicit expert testimony to support Plaintiffs' from several of the
attempted
witnesses without qualifyirlg or tendering the witnesses as experts. See Stephens v. State, 219 Ga. App. 881 (1996) [the unqualified testimony of the witness was not competent evidence). For example, two of Plaintiffs' witnesses testified that Mr. Obama's birth
Originally, Ms. Taitz indicat~:d to the Court that she would offer the testimony of seven witnesses. However, during her closing argllment, Ms. Taitz requested to testify. Ms. Taitz was sworn and began her testimony, but shortly thereafte1'.,the Court requested that Ms. Tatiz step-down and submit any further testimony in writing.
2
) The credibility of witnesses i!; within the sole discretion of the trier of fact. In non-jury cases that discretion lies with the judge. See Mustang Tramp .. Inc. l'. fr. fV Lowe & Sons, Inc., 123 Ga. App. 350, 352 (1971).
certificate was forged, but neither witness was properly qualified or tendered as an expert in birth records, forged documents or document manipulation. Another witness testified that she has concluded that the social security number Mr. Obama uses is fraudulent; however, her investigatory methods and her sources of information were not properly presented, and she was never qualified or tendered as an expert in social security fraud, or fraud investigations in gl~neral. Accordingly, the Court cannot make an objective threshold determination oCthese witnesses' testimony without adequate knowledge of their qualifications. See Rnudsen l'. Dl~Uee-Freeman. Inc., 95 Ga. App. 872 (1957) (for the testimony of an expert witness to be received, his or her qualifications as such must be first proved). None of the testifying witnesses provided persuasive testimony. Moreover, the Court finds that none of tile written submissions tendered by Plaintiffs have probative value. Given the unsatisfaGtoryevidence presented by the Plaintiffs, the Court concludes that Plaintiffs' claims are not persuasive.
II,
Plaintiffs allege th,1tPresident Barack Obama is not a natural born citizen of the United States and, therefDre, is not eligible to run in Georgia's presidential primary election. As indicated supra, the United States Constitution states that ,,[n]o person except a natural born Citizen ... shall be eligible for the Office of the President ... U.S. Canst. art. II, I,
:4
d. 5.
For the purpose of this section's analysis, the following facts are considered: I) Mr. Obama was born in the United States; 2) Mr. Obama's mother was a citizen of the United States at the time of his birth; and 3) Mr. Obama's father was never a United States citizen. Plaintiffs c{mtendthat, because his father was not aU .S. citizen at the time of his birth, Mr. Obama is constitutionally ineligible for the Office of the President of the United States. The Court does not agree. In 2009, the Indiana Court of Appeals ("Indiana Court") addressed facts and issues similar to those befi)re this Court. Arkeny v. Governor, 916 N.E.2d 678 (Ind. Ct. App. 2009). In Arkeny, thl~plaintiffs sought to prevent certification of Mr. Obama as an eligible candidate for president because he is not a natural born citizen. fd. at 681. The plaintiffs argued, as the Plaintiffs argue before this Court, that "there's a very clear distinction between a 'citizen of the United States' and a 'natural born Citizen,' and the difference involves having [two] parents of U.S. citizenship, owing no foreign allegiance." ld. at 685. The Indiana Court rejected the arb'llment that Mr. Obama was
4 The definition of this clause Ilas been the source of much debate. See, e.g., Gordon, Who Can Be President of the United States: nIl' Unresolved Enigma, 28 Md. L. Rev. 1 (1968); Jill A. Pryor, Note, The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resoh-ing Two Hundred Years or Uncertainty, 97 Yale L.J. 881 (1988); Christina S. Lohman, Presidential Eligibility: The Meaning of the Natural-Born Citizen Clause. .16 GOIlL L. Rev. 349 (2000); William T. Han, Bl~yond Presidential Eligibility: The Natural Born Clrizen Clause as a Source (if Birthright Citizenship,58 Drake L. Rev. 457
(2010).
ineligible, stating that children born within the United States are natural born citizens, regardless of the citizenship of their parents. and analysis ofArkeny persuasive. The Indiana Court began its analysis by attempting to ascertain the definition of "natural born citizen" because the Constitution does not define the term. ld. at 685-86; See Minor v. Happersett, 88 U.S. 162, 167 (1875) ("The Constitution does not, in words, say who shall be natural born citizens. Resort must be had elsewhere to ascertain that:'); see also United States v. Wong Kim Ark, 169 U.S. 649 (1898) (noting that the only mention of the term "natural born citizen" in the Constitution is in Article is not defined in the Constitution). The Indiana Coulil first explained that the U.S. Supreme Court has read the Id. at 688. This Court finds the decision
Fourteenth Amendment and Article II (natural born citizen provision) in tandem and held that "new citizens may be born or they may be created by naturalization."
ld. at 685
(citing Minor, 88 U.S. at 167); See U.S. Const. amend. XIV, 1. ("All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States .... "). In Minor, the Court observed that: At common-law, with the nomenclature of which the framers of the Constitution were f::uniliar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens I~hildren born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. !d. at 167-68. Plaintiffs ask this Court to read the Supreme Court's decision in Minor as defining natural born citizens as only "children born in a country of parents who were its
citizens:' 88 U.S. at 167. However, the Indiana Court explains that Minor did not define the term natural born citiizen. In deciding whether a woman was eligible to vote, the
Minor Court merely conduded that children born in a country of parents who were its
citizens would qualifY as natural born, and this Court agrees. The Minor Court left open the issue of whether a child born within the United States of alien parent(s) is a natural born citizen. Next, the Indiana Court looked to United States v. Wong Kim Ark, in which the Supreme Court analyzed tile meaning of the words "citizen of the United States" in the Fourteenth Amendment and "natural born citizen of the United States" in Article II to determine whether a ehild born in the United States to parents who, at the time of the child's birth, were subject~;of China "becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the fourteenth amendment .... " !d. at 686 (citing rVong Kim Ark, 169 U.S. at 653). The Indiana Court determined that the two provisions "must be interprl~tedin the light ofthe common law, the principles and history of which were familiarly known to the framers of the constitution." Id. (citing Wong Kim
Ark, 169 U.S. at 654).
constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language
'Jf
its history." !d. (citing Wong Kim Ark, 169 U.S. at 655) (internal citation omitted). The
Wong Kim Ark Court exten sively examined the common law of England in its decision
and concluded that Wong J.;;jmArk, who was born in the United States to alien parents,
became a citizen of the United States at the time of his birth.5 Wong Kim Ark, 169 U.S. at 705.
The Wong Kim Ark Court explained: The fundamental principle of the common law with regard to English nationality was birth within the allegiance. also c:aUed "ligealty," "obedience," "faith" or "power," of the King. The principle embraced all persons born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual ... and were not restricted to natural-born subject') and naturalized sul:Uects, or to those who had taken an oath of allegiance; but were predicable of aliens in ami':y, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects. But the children, born within the realm, of foreign amba~;sadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects, because not born within thf~ allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction of the King.
169 U.S. at 655. It thus clearly appears that by the law of England it)r the last three centuries, beginning betl1re the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England. were within the allegiance, the obedience. the faith or loyalty, the protection, the power, the jurisdiction, of the English Sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign State. or of an alien enemy in hostile occupation of the plai:e where the child was born. [d. at 658. Further: Nothing is better settled at tLe common law than the doctrine that the children, even of aliens, born in a country, while the :Jarents are resident there under tlle protection of the government, and owing a temporary allegiance thereto, are subjects by birth. 11.at 660 (quoting Inglis v. Trwtees o./Sailors concurring. And: The first section of the citizen.' It thus assumes of the constitution was this country at the time place of birth. Snug Harbor, 28 U.S. (3 Pet.) 99,164 (1830) (Story, J .
seccnd article of the constitution uses the language, 'a natural-born that ,:itizenship may be acquired by birth. Undoubtedly, this language used in reference to that principle of public law. well understood in of the adoption of the constitution, which referred citizenship to the
All persons born in the allegimce of the king are natural-born subjects, and all persons born in tlle allegiance of the United~;tates are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England.
1'.
ft .__
___
of the Constitution
reviews
and
analyses of Minor and Wong Kim Ark, the indiana Court concluded that persons born with in the borders of the United States are "natural born citizens" for Artide II, Section 1 purposes, regardless of the citizenship of their parents. Just as a person "born within the British dominions [was) a natural-born Briti~:h subject" at the time of the framing of the U.S. Constitution, so too were those "born in the allegiance of the United States [] natural-born citizens." 916 N.E.2d at 688. The Indiana Court determined that a person qualifies as a natural born citizen if he was born in the United States because he became a United States citizen at birth.6 For the purposes (If this analysis, this Court considered that President Obama was born in the United States. Barack
citizen at birth and is a natural born citizen. Accordingly, CONCLUSION President Barack Obama is eligible as a candidate for the presidential election under a.C.G.A. primary
::.1-2-5(b).
SO ORDERED, February
::;rd,
2012.
;\
~J~J~.,V~
MICHAEL M. MALIHI, Judge
This Court recognizes that the U'ong Kim Ark case was not deciding the meaning or"natural born citizen" for the purposes of detennining rresidential qualifications; however, this Court finds the Indiana Court's analysis and reliance on these cas~:sto be persuasive.
6
10
Docket Number: OSAH-SECSTATECE-1215137-60- MAUHI Counsel for Petitioners: Van R. Irion Counsel for Respolldent: Michael Jablonski
Docket Number: OSAH-SECSTATECE-1216218-60- MAUHI Counsel for Petitioners: Counsel for Respondent: J. Mark Hatfield Michael Jablonski
Docket Number: OSAH-SECST ATECE-1216823-60- MAUHI Counsel for Petitioners: Counsel for Respondent: J. Mark Hatfield Mich~lel Jablonski
PLAINTIFF'S
11'8" ,,'
""', .EXHIBIT
FINAL DECISION1
Petitioners filed candidate challenges pursuant to O.C.G.A.
Respondent docs not meet be State of Georgiats eligibility requirements for his name to be listed on the 2012 Presidential Preference Primary ballot. Judge ("AU") for the Officl~ of State Administrative Judge Michael Malihi, Administrative Law
challenge on January 26, 2012 and entered an initial decision for the above-captioned February 3,2012. final decision. Thel'efore, DENIED. SO DECIDED this ~;~ day of Fcbmary, 2012. IT IS HEREBY DECIDED THAT the above-captioned
The Secretary of State formally adopts the initial decision of the ALJ into this
challenges
are
. ~ '-fP. KEMP
~ '~L.
I Judge Michae1Malihi previously C Dnsolidatcd the above-captioned candidate challenges for the purpose of issuing his initial decision. Those candidatl:' challenges remain consolidated for the purpose of issuing this Final Decision.
that I have this day served the foregoing For Judicial Review and attachments
thereto upon:
Mr. Michael K. Jablonski Attorney at Law 260 Brighton Road NE Atlanta, Georgia 30309-1523 Honorable Brian P. Kemp Secretary of State State of Georgia 214 State Capitol Atlanta, Georgia 30334 Honorable Michael M. Malihi Administrative Law Judge Office of State Administrative 230 Peachtree Street NW Suite 850 Atlanta, Georgia 30303 by placing addressed a copy of same in the United envelope with sufficient
Hearings
postage
and by emailing
by emailing
and by emailing
same to
Judge Malihi
201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820
31:102
IN THEi,: SUPERIOR
*
* *
CIVIL ACTION FILE NO. 2012CV211528
I L_
~~;;
DEPUTY CLERK SUPERIOR COURl Fl(LTON COUNTY, GA ~
* *
Respondent
MOTION FOR, EXPEDITED REVIEW OR, ALTERNATIVELY, FOR STAY OF :DECISION OF SECRETARY OF STATE AND FOR POSTPONEMENT OF, PRESIDENTIAL PREFERENCE PRIMARY ELECTION Now comes Petitioner undersigned counsel, Kevin Richard Powell, by and through review
and moves
appellate
Presidential Motion,
Primary
Petitioner
1.
This action Secretary Powell's Obama, is ~n appeal of a Final Decision of Georgia Kevin Richard Barack
Kemp denying
Petitioner
of Respondent
a presidential
to seek and hold the Office of and finding Respondent primary Obama
of the United
States,
as a candidate
election.
Page -1-
PLAINTIFF'S EXHIBIT
I/c.~
2.
Presidential
Preference
Primary Election
is
3.
O.C.G.A. appellate State
21-2-5(e)
guarantees
Petitioner
the right to of
decision
of the Secretary
in this matte:[. 4. Petitioner's aI~eal involves, among other issues, a law, i.e. whether or not
issue of constitutional
and never a
States citizen,
eligibility United
requirerr~nt of Article
II, Section
States Constitution.
5.
Unless this Court grants expedited Court State review, or unless this of the Secretary of
orders a stay of the Final Decision and a postponement Election pending of the Georgia
Presidential
Preference
Primary
a final judgment
Respondent
Although
Page -2-
anticipates
that Respondent
would probably
on the merits
6.
With regard to Petitioner's of this appeal, Petitioner 6.7 request for an expedited Superior review
Court Rule
Upon written nc)tice and good cause shown, the assigned judge may shorten or waive the time requirement applicable to emergency motions, except motions for summary judgment, or grant an immediate hearing on any matter requiring such expedited procE!dure. The motion shall set forth in detail the necessity i"or such expedited procedure. 7. In connection with Petitioner's alternative request for a
of the Georgia
Secretary
of State
Presidential to
Preference
O.C.G.A.
shall ...the
Furth<~r, O.C.G.A.
5-3-28(b),
applicable
to superior
I:ourt, provides
may issue such order:3 and writs as may be necessary jurisdiction on appea.l."
8 .
in aid of its
Petitioner
Petitioner significant
is entitled
by Georgia
issue of constitutional
Petitioner's
this Court should g.rant expedited or, in the alternative, Final Decision postponement Election
the Court should grant a stay of the Secretary of State herein and a Preference Primary
of the Georgia
of the Georgia
Presidential
currently
Petitioner
Kevin Richard
HATFIELD
rk Hatfierd Atbdrney Bar No. 3~7\09 for Pet1t\oner Georgia 201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820
31502
Page -4-
CERTIFICATE
OF SERVICE
Mr. Michael K. Jablonski Attorney at Law 260 Brighton Road NE Atlanta, Georgia 30309-1523
Honorable Brian P. Kemp Secretary of State State of Georgia 214 State Capitol Atlanta, Georgia 30334 by placing addressed a copy of same in the United envelope with sufficient delivery, States Mail in a properly affixed thereto in
postage
and by emailing
and by emailing
to Secretary
HATFIELD
& HATFIELD,
P.C.
201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820
31502
IN THE: SUPERIOR
KEVIN RICHARD POWELL, Petitioner, vs. BARACKOBAMA, Respondent MOTION TO DISMISS Respondent moves t his Court for an order dismissing the petition as follows: 1. This Court :I acks jurisdiction over the subject matter. O.C.G.A. 9-1112(b)(1). 2. Failure of service of process. O.C.G.A. 9-11-12(b)(5). 3. Failure to state a claim upon which relief can be granted. O.C.G.A. 911-12(b)(6). Argument in favor of the motion to dismiss is set forth in the accompanying brief. Respectfully submitted, This 27th day of February, 2012. Civil Action File Number 2012 CV 211528
404-290-2977
michael.jablonski@cClmcast.net
PLAINTIFF'S EXHIBIT 'I ,\ =--r2
CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing pleading upon Mr, Mark Hatfield Attorney at Law 201 Albany Avenue P.O. Box 1361 Waycross, Georgia 31502 by statutory electronic service pursuant to O.C.G.A. 9-11-5(e) using the email address mhatfleld@wayxcable.com, This 27th day of February,
::2.012.
MICHAEL JABLONSKI Georgia State Bar Number ~:\85850 2221-D Peachtree Road NE Atlanta, Georgia 30309 404 -290-2977 michael.jablo nskifcDco mcast.net
KEVIN RICHARD POWELL, Petitioner, vs. BARACK OBAMA Respondent Civil Action File Number 2012 CV 211528
The appeal from the Secretary of State's decision finding that President Obama is qualified to appear on the Presidential Preference Primary ballot is one in a long line of persistent challenges filed across the country since 2008. Not a single challenge has ever been upheld.!
See, Georgia cases: RhodeB v. MacDonald, 670 F. Supp.2d 1363 (M.D. Ga. 2009), affd, 2010 WL 892848 (11th Cir. March 15, 2010) cert. denied, 129 S. Ct. 2830 (2009); Terry v. Handel, 08CV158774S (Superior Court Fulton County, 2008), appeal dismissed, No. S09D0284 (Ga. Supreme Court), reconsideration denied, No. S09A1373; Cook v. Good et aI, 4:2009cvoo082, 2009 WL 2163535 (M.D. Ga. July 16, 2008).
1..
Federal cases: Allen v. Soetoro, 4:09-cv-00373, 2011 WL 2130589, (D. Ariz. May, 2010); In re: American Grand Jur!/, 3:09mc00215(USDC Tenn., 2009); Keyes v. Obama, 8:09-cv-00082, 2009 WL 3861788, (U.S.D.C.D. Cal. Oct. 29, 2009), appeal pending, No. 10-55084 (9th Cir., 2011); Berg v. Obama et aI, 574 F.Supp.2d 509 (E.D.Pa. 2008), affd, 586 F.3rd 234 (3rd Cir. 2009), Cert. denied, 129 S. Ct. 1030 (2009); Berg v. Obama, 656 F. Supp.2d. 10'7CD.D.C.Cir. 2009); Beverly v. Federal Elections Commission, 09-15562 (KD. Cal., 2008), affdo9-15562 (9th Cir., 2009), cert. denied, 130 S. Ct. 1732 (2010); Bowhall v. Obama, 2:10cvo0609, 2010 WL 4932747, (M.D. Ala. November 30,2010); The Church of Jesus Christ Christian/Aryan Nations of Missouri et al v. Obama et aI, 6:08cv03405, 2011 WL 4916569 (W.D. Mo. Oct. 17, 2011); Cohen v. Obama, 1:08cv02150, 2008 WL 5191864 (D.D.C., Dec. 11,2008), aff'd, 2009 WL
2870668 (D.C. Cir. 2008); Cook v. Good et aI, 4:2009cvoo082, 2009 WL 2163535, (M.D. Ga. July 16,2008); Cook v. Simtechn 8:2009cV01382 (M.D. Fla., 2009); Craig v. U.s., 5:09-cv-00343 (W.D. Okla., 2009), cert. denied, 130 S. Ct. 141 (2009); Craig v. U.S., 5:09-CV-01345-C (W.D. Okla., 2010); Dawson v. Obama, 2:08cv02754, 2009 WL 532617 (E.n. Cal. March 2,2009); Ealey v. Sarah Obama, 4:08-mc-00504 (S.D.Tex., 2008); Essek v. Obama, OS-379-GFVT (E.D. Ky., 2008); Hamblin v. Obama, 2:09cV00410, 2009 WL 2513986 (D. Ariz. Aug. 14,2009); Hamrick v. Fukino, 1:08-cv00544, 2009 WL 1404535 (Haw., May 20, 2009); Herbert v. Obama, 3:08-cv-01164HES- TEM (M.D. Fla., 2008), cert. denied, 130 S. Ct. 562 (2009); Herbert v. US, 3:08cv-00634-TJC-MCR (M.D,Fla., 2008); Herbert v. US, 3:08cv01201, 2009 WL 129585, (S.D.Cal., Jan. 15, 2009); Hollander v. McCain, 566 F. Supp.2d 63 (D.N.H. 2008); Hollister v. Soetoro, 601 F, Supp.2d 179 (D.D.C. Cir. 2009), cert. denied, 131 S. Ct. 1017 (2011); Hunter v. U.S. Supreme Court, 2:08cv00232, 2009 WL 111683, (N.D.Tex., Jan. 16,2009), appeal dismissed, No. 09-10246, No. 10-10009, No. 10-100064 (5th Cir., 2009); Jones v. Obama, 2:10-CV-01075 (C.D. Cal., 2010); Judy v. McCain, 2:08cV01162 (USDC Nev., 2008); Kerchner v. Obama, 612 F.3d 204 (D.N.J. 2010), cert. denied, 131 S. Ct. 663 (2010); Liberty I,egal Foundation v. DNC, CH-11-1757 (D Ariz., 2011); Mackay v. Obama, 2:11-CV"05458-JP (E.D. Pa., 2011), voluntarily dismissed, No. 113862 (USDC Pa., 2011); McLanahan v. Obama, 2:11-CV-00374-EFS (D.Was., 2011); Morrow v. Barak Humane Obama, 1:08-cv-22345 (S.D. Fla., 200B); Neely v. Obama, 2:oB-cV-15243 (E.D.MI., 200B); Patriot's Heart Network v. Soetoro, 1:09-mc-00442RCL (D.D.C., 2009); In Re Paul Andrew Mitchell, 2:oB-cv-04083 (E.D. PA, 200B),affd 304 Fed. Appx 113, 200B vVL53B1436 (3rd Cir., 200B), mandamus denied, No. oB4443 (3d Cir., 2008); Purpura v. Sebelius, 3:1O-CV-04B14,2011WL 154776B, (D.N.J. Apr. 21, 2011); Rhodes v. Gates, 5:09-,cv-00703-XR (W.D.Tex., 2009); Rhodes v. MacDonald, 670 F. Supp.2d 1363 (M.D. Ga. 2009), affd, 2010 WL 892848 ( 11th Cir. March 15, 2010) cert. denied, 129 S. Ct. 2B30 (2009); Robinson v. Bowen, 567 F.SUpp.2d 1144 (N.D.Cal. 2008); Roy v. Fed. Election, 2:08cvOI519, 2008 WL 4921263, (W.D. Wa. Nov. 14, 200B); Stamper v. US, l:oB CV 2593, 2008 WL 4838073 (N.D.OH. 2008); Strunk v. Patterson, 1:oBcv042B9 (E.D.N.Y., 200B), appeal dismissed No. oB5422 (2d Cir. Nov. 14, 2008); Strunk v. U.S. Dept. of State, 693 F.SUpp.2d 112 (D.D.C. Cir. 2010), mandamus den l'ed, No. 09-5322 (D.D.C., 2009), appeal dismissed, No. 105092, (DC Cir., 2010); Super American Grand Jury, 1:09-mc-00346-RCL (D.D.C., 2009) ; Taitz v. Obama, 70? F.SUpp.2d 1 (D.D.C. Cir. 2010), appeal pending, No. 115304 (DC Cir., Oct. 31,2011); Taitz v. Astrue, 1:11-CV-00402, 2011 WL 3B05741, (D.D.C. Aug. 30,2011); Taitz v. Astl'ue, 1:1l-mC-0015B (D.Haw., 2011); Taitz v. Ruemmier, 1:11CV-01421(D.D.C., 2011); Thomas v. Hosemann, 1:oBmco02Bo (D. Haw., 200B); Thomas v. Hosemann, 2:oB-cv-00241-KS-MTP (SD Miss., 2008). State cases: Ankeny v. Daniels, 916 N.E.2d 678 (Ind. Ct. App. 2009) Affd, No. 49A020904-CV-353 (Ind. App. Court); Brockhausen v. Andrade, No. 08-1001-C365 (Tex. State Court); Broe v. Reed, 82473-B (Was. State Supreme Court); Connerat v. Browning, 999 So. 2d 644 O~la.Dist. Ct. App. 2008); Connerat v. Obama, No. 09003103SC (Fla. State Court); Connerat v. Obama, No. 09005522SC (Fla. State Court); Constitution Party v. Lingle, No. 29743, 200B WL 51259B4 (Haw. Dec. 5, 200B); Corbett v. Bowen, No. 30-2008-00114112-CU-FR_CJC, (Cal. Superior Court,
An effort to harass the President continues with qualification challenges filed across the country and in (}eorgia. Challengers ignore procedural and evidentiary requirements because thei r claims are without merit, based on fantasy, and offered in pursuit of a political agenda. See, for example, Rhodes v. MacDonald, 670 F. Supp.2d 1363,1364 (M.D. Ga. 2009), affd, 2010 WL 892848 (11th Cir. March 15, 2010) cert. denied, 129 S. Ct. 2830 (2009)("When a lawyer uses the courts as a platform for
2008); Craig v. Oklahoma: MA-109808 (Okla. Supreme Court); Donofrio v. Wells, No.
AN-I053-08T2 (NJ. Nov. 03, 2008), Cert. denied, 129 S. Ct. 752 (2008); Fitzpatrick v. Obama, no docket number (NC State Court); Greenberg v. Brunner, No. 2008cVI024 (Ohio State Court, 2008); In re John McCain's Ineligibility to be on Presidential Primary Ballot in Pa, 944 .A..2d 75 (Pa. 2008); Justice v. Fuddy, 253 P.3d 665 (Haw. 2011); Keyes v. Bowen, 189 Cal. App. 4th 647 (Cal. Ct. App. 2010) Cert. denied, 132 S. Ct. 99 (2011); US v. LTC Terrence L. Lakin, MCAT-JA-SC; Liberty Legal Foundation v. DNC, CH-11-1757 (Tenn. State Court); Lightfoot v. Bowen, No. 168690 (Cal. Supreme Court, 2008), Cert. denied, 555 U.S. 1151(2009); Marquis v. Reed, No. 08-2-34955-1 (Was. State Court, 2008); lI,fartin v. Lingle, No. 29414, 2008 WL 4684786, (Haw. Oct. 22,2008); Martin v. LinglE!,No. ICC08-1-002147, 2009 WL 1669050, (Haw. Jun. 9, 2009), Appeal Dismissed, :;W09 WL 2372096 (Haw. Aug. 3, 2009); Martin v. Bennett, No. lCClO-l-000969 (Haw. State Court); Meroni et al v. McHenry County Grand Jury Foreman et al, No. 09mr399 (Ill. State Court, 2009); Neal v. Brunner, No. 2008cv72726 (Ohio State Court, 2008); Patriot's Heart Media Network v. Illinois Board of Elections, No. loHoo0605 (Ill. State Court); Schneller v. Cortes, 199 MM 2008 (Pa. Supreme Court, :;W09), cert. denied, 129 S. Ct. 2830 (2009); Sorsensen v. Riley, cv-2008-1906 (Ala. S:ate Court, 2008); Spuck v. Sec. of State, 2008 CVI116(Ohio State Court, 2008); Stumpo v. Granholm, No. 08-140-MM (Mich. Dist. Ct. (30th) Mar. 31,2009), appeal dismissed:, No. 291681, (Mich. App. Ct., Jun. 3, 2009); Stunk v. Patterson, 029641/2008 (N.Y. State Court, 2008); Strunk v. Patterson, 029642/2008 (N.Y. State Court, 2008); Sv1livan v. Sec. of State, 08CV1076(N.C. State Court, 2008); Sullivan v. Marshall, 08cvs, 021393 (N.C. State Court, 2008); Taitz v. Fuddy, lCCll-l001731 (Haw. State Court); 'Terry v. Handel, 08cv158774S (Superior Court Fulton County, 2008), appeal dismissed, No. S09D0284 (Ga. Supreme Court), reconsideration denied, No. S09A1373; Wroilnowski v. Bysiewicz, SC 18264 (Conn. Supreme Court, 2008).
political agenda disconnected from any legitimate legal cause of action, that lawyer abuses her privilege to pradice law.") President Obama was a United States citizen from the moment of his birth in Hawaii. Since he held citizli~nshipfrom birth, all Constitutional qualifications have been met. Ankeny v. Governor of State of Indiana, 916 N.E.2d 678 (Ind. App., 2009); see, United States v. Marguet-Pillado, 648 F.3d 1001, 1006 (9th Cir., 2011). There is no
basis to question the President's citizenship or qualifications to hold office. Specially appearing before this Court, respondent show that petitioner's actions should be dismissed as they have been in numerous cases for lack of jurisdiction over the subject matter, failure of service of process, and failure to state a claim upon which relief can be granted. O.C.G.A. 9-11-12(b)(1), (5), and (6).
1. LACKOF SUBJECT MATTER JURISDICTION
A. THE STATE OF GEORGIA MAY NOT EXERCISE JURISDICTION- OVER A POLITICAL PARTY'S CHOICE OF NAMES TO IN(;LUDE IN THE PRESIDENTIAL PREFERENCE PRIMARY. The Democratic Part,? of Georgia, a political party as defined by O.C.G.A. 21-22(25), participates in the Georgia Presidential Preference Primary "so that electors may express their preference for one person to be the candidate for nomination ... for the office of President of the United States." O.C.G.A. 21-2-191. No one is elected to any office, nor is anyone nomin:lted to run for any office, as a result of the Presidential Preference Primary. Nomination of a candidate for the office of President will occur at the national convention in Charlotte, NC during the week of September 3, 2012.
The Democratic Party of Georgia determines names to include on its Presidential Preference Primary ballot at its sole discretion. O.C.G.A. 21-2-193. A state political party "enjoys a constitutionally protected freedom which includes the right to identify the people who constitute this association that was formed for the purpose of advancing shared beliefs and to limit the association to those people only." See Democratic Party of
u.s. v.
Wisconsin, 50 U.S. 107, 101 S.Ct. 1010, 1019, 67 L.Ed.2d 82 (1981). Duke v.
Cleland, 954 F.2d 1526, 15~!,0-1 (nth Cir. 1992). First amendment associational rights of a political party are most often litigated in the context of a party refusing to allow a name to appear on a primmy ballot (such as in Democratic Party of
u.s. v.
Wisconsin
or Duke v. Cleland) but the reverse is also true: a political party enjoys the exclusive right to dictate names on it~;: rimary ballot. The right to associate not only contemplates p the ability to exclude but, necessarily, who to include. Apportionment of de legates as a result of preference primary results constitutes an internal party matter. The State of Georgia may not interfere with "the traditionally recognized autonomy of the political party's internal decision-making." Belluso v. Poythress, 485 F.Supp. 904, 912 (N.D. Ga., 1980); Duke v. Cleland, 954 F.2d 1526 (nth Cir., 1992). B. THE QUALIFICATIONS CHALLENGE STATUTE DOES NOT APPLY TO THE PRESIDENTIAL PREFERENCE PRIMARY. O.C.G.A. 21-2-5 does not apply to the Presidential Preference Primary. The preference primary is not an election: by its terms, the preference primary is simply an opportunity for electors "to express their preference for one person to be a candidate for nomination." O.C.G.A. 21-:;~-191. he election code defines "election" as "any general or T special election and shall not include a primary or special primary unless the context in
which the term is used clearly requires clearly requires that a primary or special primary is included. " O.C.G.A. 21-2-2(5). Neither the preference statute nor the definition reference the Presidential Preference Primary. Nothing in the context of O.C.G.A. 212-5 "clearly requires" applicability to the preference primary." O.C.G.A. 21-2-5 applies when a candidate is "certified by the state executive committee of a political pailty or ... files a notice of candidacy." O.C.G.A. 21-2-5(a). Neither occurred here. (CeJltification of candidates by a party executive committee refers to the qualification procedure in O.C.G.A. 21-2-154(a) and the payment of qualifying fees, neither of which apply to preference primaries.) No fees may be charged for listing a name on the preference ballot. O.C.G.A. 21-2-198. There is no qualifying nor does a political party file a certification of its qualified candidates, as it would in an election. See, O.C.G.A. 21-2-154. The state executive committee simply lists names that it wishes to have on the preference primary ballot. O.C.G.A. 21-2-193 II. SERVICE OF SUMMONS AND PETITION FOR REVIEW UPON AN ATTORNEY REPRESENTING A PARTY IS INSUFFICIENT The return of service filed with the Court shows that service of the summons and complaint was made by mailing to respondent's attorney. Petitioner did not seek a waiver of personal service as authorized by O.C.G.A. 9-1l-4(d) nor did it attempt personal service using the m.ethods specified by O.C.G.A. 9-1l-4(e) or 4(f). "Where there is no process and no waiver of process, no valid suit arises." State Hwy. Dept. v. Noble, 220 Ga. 410, 414,139 S.E.2d 318 (1964)
III. THE PETITION FOR REVIEW DOES NOT STATE CLAIMS AGAINST THE PRESIDENT The proper party re:;;pondent when challenging a qualification decision made by the Secretary of State is the Secretary of State. In order to grant the relief sought by the petitioner the Secretary of State needs to be before the court. He is not. See, for example, Handel v. Powell, 284 Ga. 550 (2008), in which the only parties in the appeal were the Secretary of State and the c:hallenger of the Secretary's decision. The relief sought by the petitioner is relief from a decision of the Secretary of State. In paragraphs 13 and 15 of the review petition petitioner seeks to stay the action of the Secretary of Stay. The petition does not seek any relief against the President, but only against the Secretary. In order to grant relief, the Civil Practice Act requires the issuance of a summons signed by the clerk of court in order for the court to exercise power granting relief. The issuance of process signed by the clerk is a necessary part of acquisition of jurisdiction. OCGA 9-11-8 (a) (2) (A); Schafer v. Wachovia Bank of Georgia, 248 Ga.App. 466, 646 S.E.2d 846 (2001). No summons commands appearance by the Secretary of State in this matter. The lack of personal jurisdiction over the Secretary of State deprives this Court of jurisdiction to grant relief. Bonner v. Bonner, 272 Ga.App. 545, 533 S.E.2cl72 (2000); Wilkinson v. Udinsky, 242 Ga.App. 464, 530 S.E.2d 215 (2000); Guerrero v. Tellez, 242 Ga.App. 354, 529 S.E.2d 639 (2000). Jurisdiction over the Secret~':ryof State must be established before the court can enter any ruling binding a party such as the Secretary of State or the ruling is declared null and void. See Estate of MarJorie C. Thurman v. Dodaro, 169 Ga.App. 531, 532(1), 313 S.E.2d 722 (1984). Knowledge that the suit exists does not substitute for compliance
The relief sought by the petition is directed against the Secretary of State, not the President. The complaint does not state a claim against the President. IV. CONCLUSION Respondent specially appears in this Court to show that the petition for review should be dismissed.
MICHAEL JABLONSKI Georgia State Bar Number 385850 2221- D Peachtree Road NE Atlanta, Georgia 30309 404-290-2977 michael.jab Ionski@)comcast.l1et
CERTIFICATE OF SERVICE
I hereby certify that I have this day served the foregoing pleading upon Mr. Mark Hatfield Attorney at Law 201 Albany Avenue P.O. Box 1361 Waycross, Georgia 31502 by statutory electronic service pursuant to O.C.G.A. 9-11-5(e) using the email address mhatfield@wavxcable.com.
MICHAEL JABLONSKI Georgia State Bar Number ~!,85850 2221- D Peachtree Road NE Atlanta, Georgia 30309 404-290-2977 micha el.jablonski (ji) comcast.net
IN THE: SUPERIOR
*
*
CIVIL ACTION
r FI~~[iN OFFICE
[~AR 05_
2~_l
fnS
* * *
Respondent
PETITIONER'S RESPONSE TO RE:SPONDENT'S MOTION TO DISMISS Now comes Petitioner undersigned Motion counsel, Kevin Richard Powell, by and through to Respondent Barack Obama's
and responds
to Dismiss herein
to Dismiss initially
case is one in a series of cases filed across the Respondent. presumably to Respondent's
Respondent including
"ignore procedural
and offered
agenda."
Respondent moment
claims that he "was a United States citizen and that therefore, have been met." "all
Constitutional
(sic) qualifications
A review of
PLAINTIIFF'S EXHIUlT
Page -1-
IJ/:=_
-,\
however, misguided.
reveals
that Respondent's
Obama, hcls a
vested right
to be the President
States.
An individual
Presidency
is expected
and required
including
the eligibility
in mind,
Petitioner
Likewise,
law, P2titioner
raised an administrative
qualifications
Respondent
Petitioner's
to Produce,
When the time for trial was imminent, lawyer wrote a lette!: to the Georgia he boldly criticized and attacked
Secretary
the administrative
Page -2-
and in which he stated that he and his client were refusing come to court. The day of trial, when Respondent schedule,
to
had no events
would be at his own peril, the Respondent nevertheless Petitioner's failed to appear valid Notice
for court and failed to comply with The Respondent thus not for
to Produce.
of evidence
to which Petitioner
Respondent's
that it
is Respondent,
who "ignore[s] of a
procedural political
requirements,"
- which he fails
to support with any evidence - are "based on fantasy." Petitioner, availing himself far from seeking to "harass" of lawful procedures anyone, is simply
under Georgia
law in order
the issue of
Respondent,
liVhose fa ther
was a foreign
na tiona]
and never
States
citizen,
is a "natural
born Citizen"
eligible of the
II
Petitioner
that the
Page -3-
born CitiZl'~n"requirement
of Article
to
anyone born with dual national allegiance~3 from holding of this nat:_on's military e)f national
citizenship
It is thus nothing
security
of the "natural
born Citizen"
SUBJECT-Mlli.TTER JURISDICTION on the basis of a lack of subject-matter first argues that First party give the
associational
rights of a political
Preference
associational
in the situation
(citing Democratic
U.S. v. Wisconsin,
(1981); Duke v. Clel~3.nd,954 F. 2d 1526 also claims that "thl~ reverse the unchecked ballot. right:o
require certain names on its primary however, cites no authority for the latter are
Respondent,
proposition.
Moreover,
Page -4-
authority
for the c~Jnclusion that a political asso(:iational rights deprive that candidates
party's of
a state government or
to require
meet constitutional
eligibilit:y requirements
for office
in order to be
O.C.G.A. Secretary
21--2-5(b) and
of State, or an eligible
elector,
of State is is gives an
empowered
the candidate
O.C.G.A.
21-2-5(e)
unsuccessfully
a candidate's
qualifications by filing a
the Secretary
of State's decision
in the Superior
associational
party deprives
jurisdiction however,
in this matter.
also contends,
that O.C.G.A.
21-2-5,
qualifications Preference
challenge
statute,
the Presidential
Primary and that this Court therefore jurisdiction. In this connection, of "election" found in but
21-2-2(5)
not a primary
or special primary
unless
Page -5-
"election"
is used
nclearly requires"
the inclusion
of a primary
or special primary. Respondent 21-2-15 inasmuch overlooks, as however, the provisions of O.C.G.A.
This chapter shall apply to any general or special eJection in this state to fill any federal, ::,tate, county, or municipal office, to any general or special primary to nominate candidates for any such office, and to any federal, ~;tate, county, or municipal election or primary for any other purpose whatsoever, unless otherwise provided. Respondent challenge further fails to realize that the qualifications
statute,
(I.C.G.A.
in a Presidential O.C.G.A.
are designated
as "candidates."
Respondent "certified
nevertheless
of a political
or must submit
see O.C.G.A.
21-2-5(a),
O.C.G.A.
21-2-5(b)
provides,
of the qualifications
of any candidate
any time prior to th,:; election Respondent's certification Petitioner candidacy" political
of such candidate,"
be filing a
of his nomination
Page -6-
Election
Code, and one could argue that the list of Presidential Primary candidates submitted 21-2-193 by Respondent's a political
Preference
to O.C.G.A. or
21
constituted
"notice
it: is apparent
statute deles, in fact, apply to the Presidential Primary 2lnd that this Court does have subject-matter
herein.
Oli' SUMMONS
SERVICE
Respondent
or a waiver
Co. v. Georgia
Public Service
(2003) is
the Court held that in an of a state agency or other for judicial review
decision
upon the agency was not required, to preserve specifically decision pertinent the jurisdiction
of the court.
is governed
part that "[a] copy of the notice of appeal in the same manner prescribed
shall be
by Code
Page -7-
Section
5-6-32."
O.C.G.A.
5-6-32(a),
in turn, provides
in
pertinent
part that Whenever under this article service or the giving of any notice is required or permitted to be made upon a party and the party is represented by an attorney, the service shall be made upon the attorney unless service upon the party himself is ordered by the court. Service of all notices and other papers hereunder and service of motions for new trial, motions in arrest, motions for judgment notwithstanding the verdict, and all other similar motions, orders, and proceedins:rsmay be made by the attorney or party fili.ng the notice or paper, in person or by mail., and proof thereof shown by acknowledgment of the attorney or party served, or by certificate of the attorney, party, or other person perfecting service.
in the instant
notes in passing,
that even if the service by mail were for any reason not proper, C.C.G.A.
considered
5-3-2l(b)
states in pertinent
part
to perfect
service on any party shall not work court shall grant continuances to permit and
enter such other orders as may be necessary expeditious determination of the appeal."
a just and
finally
dismissal
of state."
Respondent
Page -8-
of authority
whatsoever.
further
lack of personal
"[n]o summons commands this matter." Beginning legal analysis Petitioner's decision action. O.C.G.A. service
by the Secretary
Respondent's
21-2-5(e)
Petition
For Judicial
Review
of the Secretary
21-2-5(e)
after
copy of the entire record ...to the in this statute is "summons" required
court."
O.C.C;.A.
5-3-21(b)
provides
in pertinent
part
of appeal
Again,
nowhere
in the statute
or even mentioned. Furthermore, in DouQlas Asphalt, 263 Ga. App. at 711-712, by mail,
the state agency wa~: served with the petition summons at all. The Court affirmed
wi th no
the judgment
of the superior
Page -9-
to dismiss. of failure
In this appeal,
in a quasi-judicial
qualifications
by the SecrE~tary of State, but by Petitioner. were the named parties below,
and Respondent
the challenge;
State did not defen~. the challenge with an interest the Secretary
in any manner.
was Respondent,
The challenge
Petitioner
Respondent, State.
by the Secretary
The instant
does therefore
Respondent. The items of relief action are a reversal sought by Petitioner in the instant of
of the Secretary II
requirement
a removal
of Respondent's
an order adjudging
Page -10-
Respondent
in
conter~pt of
court
Notice
failure to
relief be granted
of the
of State as to
the appropriate
remedy to be crafted,
with direction.
simply does not neec. to be a party in order to accomplish Court's granting of the requested require relief, and none of the
applicable considered
statutes a party.
the Secretary
of State to be named or
Petitioner Handel
citation as the
to
v. Powell,
is misplaced, brought
Secretary
the challenge
to a
candidate's elector,
filed by an
as in Petitioner's
for judicial
challenge
Petitioner Secretary
however,
Page -11-
party
5-3-2l(b) service
CONCLUSION
reasons,
Petitioner
respectfully
Respectfully
201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820
31502
Page -12-
that I have this day served the foregoing to Respondent's Motion to Dismiss upon:
Mr. Michael K. Jablonski Attorney at Law 2221-D Peachtree Road NE Atlanta, Georgia 30309 Honorable Brian P. Kemp Secretary of State State of Georgia 214 State Capitol Atlanta, Georgia 30334 by placing addressed a copy of same in the United States Mail in a properly envelope "ith sufficient postage affixed thereto in
and by emailing
michae::~.'jablonski@comcast.net
Kemp at vrusso@sos.qa.qov. 2012. HATFIELD
and by emailing
& HATFIELD,
P.C.
201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820
3I502
r age; I VI I
Mark Hatfield
From: Sent: To: Cc: Subject: Mark Hatfield UmarkI1atfield@yahoo.com]
Friday, March 02, 2012 6:52 AM
elizabeth.baum@fultoncountyga.gov michael.jablonski@c:omcast.net;vrusso@sos.ga.gov
** Court Filing ** Powell v. Obama / Fulton Superior CAFN: 2012CV211528
Attachments: powellkr1res.pdf Please see attached Petitioner's Re:3ponseto Respondent's Motion to Dismiss. As per the Court's permission, please accept this Response as filed with the Court today. I am forwarding the original to the Clerk for filing by UPS overnight mail to arrive Monday.
J. Mark
Hatfield, Esq. Hatfield & Hatfield, P.C. 201 Albany Avenue P.O. Box 1361 Waycross, Georgia 31502 (912) 283-3820 (912) 283-3819 Fax mhatfield@wayxcable.com CONFIDENTIALITY NOTICE: This; e-mail transmission and the attachments accompanying it contain information from the lawl)ffice of Hatfield & Hatfield, P.C. which is protected by the attorney-client communication priivilege or the work product privilege. The information is intended only for the use of the irltended recipient. If you are not the intended recipient, be aware that any disclosure, copying, distlribution, or use of the contents of this transmission is prohibited. If you have received this transmission in error, please promptly notify the sender by reply e-mail and then destroy all (::opies of the transmission.
3/2/2012
1 Ul .)
Sent:
To;
Cc:
Subject:
Importance:
Swensson
Counsel/Parties: The Court is in receipt of the courtesy copies of your Responses to Respondent Barack Obama's Motion to Dismiss. The Court will consider same in ruling on Respondent's Motion to Dismiss. The Court intends to issue that ruling today. Again, please note that the Order will be entered before your responses are officially filed of record with the Clerk of Court. I assume all responses will be promptly mailed or delivered to the Clerk for filing purposes. Thank you for submitting these Responses to us within the timeframe articulated doing so by email as requested. and for
Baum, Elizabeth Thursday, March 01, 2012 10:32 AM To: 'mhatfield@wayxcable.com'; coc:yjudy@hotmail.com; michael.jablonski@comcast.net; Russo, Vincent; David Farrar; van@libertyleqalfoundation.org; cale@sos.ga.gov Subject: RE: Farrar, et al. v. Obama, et al.: 2012CV211398; Welden v. Obama: 2012CV211537, Swensson v. Obama: 2012CV21152'j', Powell v. Obama: 2012CV211528 Importance: High
From:
Sent:
In light of these circumstances, [he Court will consider a copy of your response submitted by email or fax. Please submit il:by email (even if you fax it, as well) as, occasionally, faxes do not go through, and I want to ensure we receive it. You may send your original response to the Clerk tomorrow with the understanding that the Court may issue its ruling on the Motion to Dismiss before your original response is actually filed with the Clerk. All parties/counsel may proceed in this manner.
3/2/2012
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Thank you,
J. Mark Hatfield [mailto:mha1;field@wayxcable.com] Thursday, March 01, 2012 1025 AM To: Saum, Elizabeth; codYiudy@hotmail.com; michael.iablonski@comcast.net; Russo, Vincent; David Farrar; van@libertvlegalfoundation.orC!; cale:@sos.qa.qov Subject: Re: Farrar, et al. v. Obama, et al.: 2012CV211398; Welden v. Obama: 2012CV211537, Swensson v. Obama: 2012CV211527, Powell v. Obama: 2012CV211S28
From:
Sent:
Ms. Baum, Would the Court please accept my responses (for Plaintiffs Swensson and Powell) as filed with the Court by tomorrow's deadline by email or fax, with a hard copy to be delivered to the Clerk thereafter? The reason for this request is that I am leaving Atlzmta this morning to drive home to Waycross, a four hour drive. It would not be possible for me to get back to my law office in Waycross, complete work on my responses, and get my resp0ll:';es to UPS in time for overnight delivery. Thus, I would respectfully request that the Court accept my responses for Plaintiffs Swensson and Powell as filed with the Court by email (or fax) with the hard copy being delivered to the Clerk after tomorrow's deadline. I appreciate the Court's consideraljon of this request.
J. Mark Hatfield
"Sent from my Verizon Wireless BlackBerry" From: "Baum, Elizabeth" <Elizabeth.Ballm0ifultoncollntvga.gov> Date: Thu, 1 Mar 201209:31 :37,0500 To: codyi lldv@,hotmail.com<codvjudy(([1,hotmail.com>; mi chad. iablonski(a),comcast.net<michael. iablonski@comcast.net>; Russo, V incent<vrusso(evsos. ga.gOY>;David Farrar<david. is.farrarra~gmail.com>; 111 hatf!e I d((i)wayxcabIe.com <mhatfield(lvwayxcab Ie .com>; van(QJ.li bertv Iegalfoundation.org<:vanrCi}libertvlegalfoundation. org>; cale{{V,sos. ga.gov<cale@sos.,Qa.gov> Subject: Farrar, et a1. v. Obama, et a1.: 2012CV211398; Welden v. Obama: 2012CV211537, Swensson v. Obama: 2012CV211527, Powell v. Obama: 2012CV211528 Respondent Barack Obama filed a Motion to Dismiss in each of the above matters on February
27.
3/2/2012
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2012. If you wish to file a response to the Motion to Dismiss, Counsel/Parties are hereby given
until tomorrow morning, Friday. March. 2. 2012 at 9:30 a.m. to do so. The Court is shortening the time period for response due to the time-sensitive nature of certain of your allegations. The Court will issue its ruling on the Motion to Dismiss as soon as possible. Thank you, Elizabeth Baum Staff Attorney to the Honorable Cynthia D. Wright
Chief Judge, Superior Court of Fulton County 136 Pryor Street, SW, Suite C9~~7 Atlanta, GA 30303 Phone: (404) 613-4187 Fax: (404) 893-6610 elizabeth. baum((7J,ful toneo un tvga. gO\"
3/2/2012
Michael Jablonski
Atto rney-at -law
260 Brighton Road, NE Atlanta, Georgia 30309 404.290.2977 815.846.0719 (fax)
m icha e I.ja b Ions ki@comcast.net
Hon. Brian P. Kemp Georgia Secretary of State: 214 State Capitol Atlanta, Georgia 30334 via email to Vincent R. Russo Jr .. Esq. (vrusso@sos.ga.gov)
This is to advise yo u of serious problems that have developed in the conduct of the hearings pending before the Office of State Administrative Hearings. At issue in these hearings are challenges that allege that President Obama is not eligible to hold or run for re-election to his office, on the now wholly discredited theory that he does not meet the citizenship requirements. As you know, such allegations have been the subject of numerous judicial proceli~dingsaround the country, all of which have concluded that they were baseless and, in wme instances - including in the State of Georgia - that those bringing the challenges have engaged in sanctionable abuse of our legal process. Nonetheless, the Administrative Law Judge has exercised no control whatsoever over this proceeding, and it threatens to degenerate into a pure forum for political posturing to the detriment (If the reputation of the State and your Office. Rather than bring this matter to a rapid ,wnclusion, the ALJ has insisted on agreeing to a day of hearings, and on the full pmticipation of the President in his capacity as a candidate. Only last week, he denied a Motion to Quash a subpoena he approved on the request of plaintiff s counsel for the personal appearance of the President at the hearing, now scheduled for January 26. For these reasons, and as discussed briefly below, you should bring an end to this baseless, costly and unproductive hearing by withdrawing the original hearing request as improvidently issued. PLAINTIFF'S EXHIBIT
"
It is well establishecl. that there is no legitimate issue here--a conclusion validated time and again by courts around the country. The State of Hawaii producedofficial records documenting birth there; the President made documents available to the general public by placing them on bis website. "Under the United States Constitution, a public record of a state is required to be given 'full faith and credit' by all other states in the country. Even if a state wel~eto require its election officials for the first time ever to receive a 'birth certificate' as a requirement for a federal candidate's ballot placement, a document certified by another state, such as a 'short form' birth certificate, or the certified long form, would be required to be accepted by all states under the 'full faith and credit' clause of the Urlited States Constitution." Maskell, "Qualifications for President and the "Natural Born" Citizenship Eligibility Requirement, " Congressional Research Service (November 14, 2011), pAl. Nonetheless, the ALJ has decided, for whatever reason, to lend assistance through his office--and by extension, yours-to the political and legally groundless tactics of the plaintiffs. One of the attomeys for the plaintiffs has downloaded form subpoenas which she tried to serve around thl~country. Plaintiff's attorney sent subpoenas seeking to force attendance by an office mal;:hine salesman in Seattle; seeking to force the United States Attorney to bring an unnamed "Custodian of Records Department of Homeland Security" to attend the hearing with immunization records; and asking the same U.S. Attorney to bring the same records allegedly possessed by "Custodian of Records of U.S. Citizenship and Immigration Services.''' She served subpoenas attempting to compel the production of documents and the attendance of Susan Daniels and John Daniels, both apparently out of state witnesses, regarding Social Security records. She is seeking to compel the Director of Health for the State of Hawaii to bring to Atlanta the "original typewritten 1961 birth certificate #106~lil for Barack Obama, II, issued 08.08.1961 by Dr. David Sinclair ...," even though Hawaii courts had dismissed with prejudice the last attempt to force release of confidential records on November 9, 2011. Taitz v. Fuddy, CA No. 11-11731-08 RAN. In Rhodes v. McDonald, 670 F. Supp. 2d 1363, 1365 (USDC MD GA, 2009), Judge Clay Land wrote this of plaintiff's attorney:
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When a lawyer files complaints and motions without a reasonable basis fOr believing that they are supported by existing law or a modification or extension of existing law, that lawyer abuses her privilege to practice law. When a lawyer uses the courts as a platform for political agenda disconnected from any legitimate legal cause of action, that lawyer abuses her privilege to practice law.... As a national leader in the so-called 'birther movement.' Plaintiff's counsel has attempted to use litigation to provide the 'legalfoundation' for her political agmda. She seeks to use the Court's power to compel discovery in her efforts force the President to produce a 'birth
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is ultra vires.
We await your taking the requested action, and as we do so, we will, of course, suspend further participation in these proceedings, including the hearing scheduled for January 26.
Georgia State Bar ]~umber 385850 Attorney for President Barack Obama
cc:
Hon. Michael Malihi (c/o Kim Beal (kbeal@osah.ga.gov)) Van Irion, Esq. (van@libertylegalfoundation.org) 3
Orly Taitz, Esq. (orly.taitz@gmail.com) Mark Hatfield, .Esq. (mhatfield@wayxcable.com) Vincent R. Russo Jr., Esq. (vrusso@sos.ga.gov) Stefan Ritter, EBq. (sritter@law.ga.gov) Ann Brumbaugh, Esq. (abrumbaugh@law.ga.gov) Darcy Coty, Esq, (darcy.coty@usdoj.gov) Andrew B. Flake, Esq. (andrew.flake@agg.com)
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