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QUESTIONS PRESENTED FOR REVIEW Question #1: Does the right to associate force states to accept any candidate from political parties for presentation on state primary ballots when such a candidate does not meet the minimum legal qualifications for the office sought, thereby negating state election laws and state control of elections?
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Question #2: Are all individuals born on U.S. soil Article II natural born citizens, regardless of the citizenship of their parents?
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Hereinafter this Petition will refer to the respondent, President Obama, also known as Barack Hussein Obama Jr., Barack Obama II, and Barry Soetoro, as candidate Obama. This reference is not intended to be disrespectful to the office of the President or to the individual Barack Obama. It is used only to identify the individual, separate from the office, to note that candidate Obama has not yet been elected to the term of office at issue in the instant litigation, and to simplify communication for purposes of this Petition.
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The respondent here, and appellee below for all cases, is Barack Obama. Mr. Obama was and is named in his private capacity as a candidate for the Office of President of the United States of America.1
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The petitioners here and appellants below are David Welden, Carl Swensson, and Kevin Richard Powell, all three of whom are individuals residing in Georgia. The other appellants below, David Farrar, Leah Lax, Cody Judy, Thomas Malaren, and Laurie Roth are not parties to the instant petition.
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TABLE OF CONTENTS Questions Presented Parties to the Proceedings Table of Contents Table of Authorities Opinions Below Jurisdiction Page i ii
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I. Question I: Does the Right to Associate Force States to Accept Any Candidate from Political Parties for Presentation on State Primary Ballots When Such a Candidate Does Not Meet Minimum Legal Qualifications for the Office Sought, Thereby Negating State Election Laws and State Control of Elections?
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2 2 2 4 6
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iii vii 1
TABLE OF CONTENTS (cont.) II. Question II: Are All Individuals Born on U.S. Soil Article II-Natural Born Citizens, Regardless of the Citizenship of Their Parents? A. The Minor Court Defined Natural Born Citizen in Order to Reach its Holding Page 11
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D. Georgias Ruling Violates the Minor Courts Holding that the 14th Amendment Did Not Add to the Privileges and Immunities of a Citizen E. This Courts Wong Kim Ark Holding Does not Conflict with Minor and Does Not Support the Georgia Ruling
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C. The Minor Courts Discussion of Other Categories of Citizen Confirms that The Courts Definition of Natural Born Citizen is Part of its Holding
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14 16 17 18
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Part C Georgia Secretary of State, Final Decision Adopting the Decision of the Georgia Office of State Administrative Hearings, February 7, 2012
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Part B Superior Court of Fulton County, State of Georgia, Order Granting Defendant Obamas Motion to Dismiss Appeal, March 2, 2012
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1a 1a 4a 10a
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21 25
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25a 26a
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Morton v. Mancari, 417 U.S. 535 (1974) Minor v. Happersett, 88 U.S. 162 (1875) United States v. Borden Co., 308 U.S. 188 (1939)
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21 23 20, 22 21 11-16 21
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7, 8 7, 8
TABLE OF AUTHORITIES (cont.) Cases Page United States v. Tynen, 21 78 U.S. 88 (1870)
Wood v. United States, 41 U.S. 342 (1842) Constitution Article II 1 Amendment I Amendment XIV Statutes 28 U.S.C. 1257
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O.C.G.A. 21-2-5
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O.C.G.A. 21-2-15
Dictionary Blacks Law Dictionary, Bryan A Garner ed., 7th Ed., West 1999
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Passim 10 17, 20-22 2 2, 6, 9, 10 2, 6, 9 16, 19
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12, 17-22
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The Order of the Secretary of State, dated February 7, 2012, adopting the Decision of the Georgia Office of State Administrative Hearings, dated February 3, 2012, granting defendantrespondents motion for summary judgment, is reproduced at App. 8a-10a. The Decision of the Georgia Office of State Administrative Hearings, dated February 3, 2012, granting defendant-respondents motion for summary judgment, is reproduced at App. 11a-22a.
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The order of the Superior Court for the State of Georgia in the County of Fulton, dated March 2, 2012, dismissing petitioners appeal from the judgment of the Georgia Secretary of State, is reproduced at App. 2a-7a.
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The orders of the Supreme Court for the State of Georgia, dated April 4, 2012, affirming the opinion of the Georgia Superior Court for the State of Georgia in the County of Fulton are reproduced at App. 1a.
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OPINIONS BELOW
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This is the first case to reach this Court that substantively addresses the definition of natural born citizen as that term is used in Article II of the U.S. Constitution. The Georgia Administrative Court
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The Georgia Superior Court dismissed an appeal by erroneously deciding that the Georgia statute under which the petitioners challenged candidate Obamas eligibility, violated the Democratic Partys right to freedom of association. The Superior Court ruled that the Georgia statute was, therefore, inapplicable to Presidential primary elections. This argument had been raised and rejected by the Georgia Office of Administrative Hearings and the Georgia Secretary of State. The Georgia statute at issue explicitly states that it is applicable to any general or special primary to nominate candidates for state, local, and federal office. This is why the Georgia Administrative Court and Secretary of State applied the statute to the states Presidential primary
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Since 2007 hundreds of lawsuits have been litigated challenging candidate Obamas constitutional eligibility to hold office. As of the filing of this petition current Presidential candidate Mitt Romney may name Marco Rubio as a Vice Presidential running mate. Like candidate Obama, at least one of Mr. Rubios parents was not a U.S. citizen when Mr. Rubio was born. Regardless of whether Mr. Rubio turns out to be the next VP candidate, this issue is practically certain to arise again. When it does it will certainly result in hundreds more lawsuits, filed in courts across the country. Regardless of which end of the political spectrum the next candidate with a non-U.S. citizen parents may be on, his or her political opponents are virtually certain to raise this issue again.
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This Courts ruling in the instant case could decisively confirm the definition of natural born
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The Georgia rulings challenged here dangerously expand power for political parties, deny constitutional state authority over elections, misapply this Courts freedom to associate precedent, ignore this Courts precedent in favor of dicta, ignore venerable rules of constitutional construction, ignore any difference between the legally distinguishable terms citizen and natural born citizen, and erroneously established that all persons born on U.S. soil are natural born citizens without regard to the citizenship of their parents. Each one of these errors will be compounded by courts across the country if they are not corrected by this Court.
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The fact that the Georgia Legislature intended this section to apply to Presidential Primaries is made explicit by O.C.G.A. 21-2-15: This chapter shall apply to any general or special election in this state to fill any federal, state, county, or municipal office, to any general or
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Every candidate for federal and state officeshall meet the constitutional and statutory qualifications for holding the office being sought. O.C.G.A. 21-2-5.
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Georgias legislature has determined that it is in the best interest of the citizens of Georgia to screen candidates for minimum legal qualifications prior to placement on its primary ballots:
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Article II, section 1 of the United States Constitution states: Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors to the electoral college for election of the President of the United States. U.S. Const. Art. II 1.
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The Georgia Courts ruling is also unnecessary because Article II and the First Amendment are in harmony. State control over the election processes simply does not violate the right of political parties to determine who will and will not be accepted as members of those organizations. As a result, no precedent interpreting the right to associate supports the Georgia Courts ruling.
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The Georgia Supreme Courts conclusion is not supported by any precedent, invalidates Georgia election code, and would imply that election codes from several other states are similarly unconstitutional. Leaving the Georgia Courts ruling in place would threaten to negate all states control over Presidential primary elections, leaving political parties with absolute power over state Presidential primary elections. Such a result runs contrary to Article II, section 1. See U.S. Const. Art. II 1 (Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors)(emphasis added).
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In the instant case the Georgia Superior and Supreme Courts disagreed with the Georgia Administrative Court and Secretary of State, the States high Court holding that application of 21-2-5 to Presidential primaries would violate a political parties right to freely associate.
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Several right-to-associate cases did involve candidates exclusion from ballots. See Democratic Party of U.S. v. Wisconsin, 450 U.S. 107 (1981); Duke v. Cleland, 954 F.2d 1526 (11th Cir. 1992); Belluso v. Poythress, 485 F.Supp. 904 (N.D.Ga. 1980). However, all of these cases are exactly opposite to the situation presented in the Georgia litigation. All of the above precedent involved political parties excluding a candidate because the party did not want to be associated with the candidate. In every case cited, the candidate sued the party or state for inclusion on the ballot after being excluded. The courts upheld the parties right to exclude individuals from membership in their parties. This does not, however, create a right for the party to dictate to states.
While right-to-associate precedent has negated some states restrictive laws for recognizing political parties, none of these precedent have forced states to accept all candidates for appearance on ballots without any screening of such candidates.
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The right to associate has been interpreted to allow private groups to determine who will and will not be members of the group. Democratic Party of U.S. v. Wisconsin, 450 U.S. 107 (1981); Duke v. Cleland, 954 F.2d 1526 (11th Cir. 1992); Belluso v. Poythress, 485 F.Supp. 904 (N.D.Ga. 1980). However, no court has extended this right beyond the confines of the private organization. A party can determine who it will include as members. That party can also determine which of those members will be its candidates. However, nothing in the Constitution or precedent forces a State to accept a partys selection of candidates for appearance on a ballot.2
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Right-to-associate precedent simply does not prevent Georgias Legislature from protecting its citizens in this manner because the right to associate easily coexists with the States right to determine the manner of choosing its Presidential electors. Georgia code does not interfere with the autonomy of any political partys internal decision making because it does not prohibit the parties from submitting any name to the Georgia Secretary of State for inclusion in the Presidential primary. The political parties are free to submit Saddam Hussein or Mickey Mouse as their next Presidential candidate. However, Georgia
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The instant litigation challenged candidate Obamas Constitutional eligibility to hold the office of President upon grounds that his father was not a U.S. citizen at the time candidate Obama was born. App.16a-17a. Petitioners cited this Courts definition of natural born citizen, as that term is used in
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The Minor Courts definition of natural-born citizen is binding precedent because the Courts definition was necessary to reach its holding. 88 U.S. 162. The Minor Courts definition of natural-born citizen, therefore, has not been abrogated by the dicta from Wong Kim Ark (WKA) or any other subsequent Supreme Court precedent. See 169 U.S. 649 (1898). Any rulings from other courts are simply incorrect. Unless and until this Court revisits this issue, the Minor Courts definition is binding.
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The Georgia Secretary of States legal conclusion runs contrary to venerable rules of Constitutional construction. It relies heavily upon an Indiana State court that had already admitted it lacked jurisdiction to reach the Article II issue. Most importantly, it rests upon dicta that would negate this Courts holding from Minor v. Happersett.
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It is clear that the Minor Court was referring to the term natural born citizen, as it appears in Article II of the Constitution because, in the paragraph preceding the definition quoted here, that Court quoted the Article II requirement that the President must be a natural born citizen. The Minor Courts definition of natural born citizen is immediately followed by a statement that
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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. Id.
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To reach its holding the Minor Court defined the term natural born citizen. 88 U.S. at 167. It established that,
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In order to reach its holding, the Minor Court first had to establish that Mrs. Minor was a citizen. It explicitly did so by determining that she was a natural born citizen: For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the
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The Minor Courts decision to establish that Mrs. Minor was a citizen because she was a natural born citizen followed the well-established doctrine of judicial restraint. Judicial restraint required the Minor Court to avoid interpreting the citizenship clause of the 14th Amendment if the circumstances presented in the case at hand did not require the Court to construe the 14th amendments citizenship clause in order to reach its holding. The facts presented did not require such an interpretation because the definition of natural born citizen was well-established and Mrs. Minor was a natural born citizen. So, the Court did not reach the 14th amendments citizenship clause. But this restraint did require the Court to conclude that Mrs. Minor was a citizen via its definition of natural-born citizen and its conclusion that all natural-born citizens are within the broader category of citizens. This is why it made the statement For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider
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Courts using judicial restraint are deciding to rely upon well-established law rather than delve into new and more debatable areas of law. The fact that the Minor Court deferred to the previously well-established definition of natural born citizen proves that this term was beyond debate at the time of the Minor Courts opinion. That is why the Court states that there have never been doubts as to the definition of Article II natural born citizen.
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[T]he single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parents of Chinese descent, who at the time of his birth are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the
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The Supreme Courts holding in Wong Kim Ark (WKA) did not alter or negate the definition of natural born citizen as established by the Minor Court. Compare United States v. Wong Kim Ark, 169 U.S. 649 (1898) with Minor, 88 U.S. 162. The holding of WKA answered the narrow question that was avoided by the Minor Court: namely construction of the citizenship clause of the 14th Amendment.
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This makes sense because the WKA Court did not need to define the term natural born citizen in order to reach its holding. Had Mr. Ark been a natural born citizen as defined by the Minor Court, then the WKA case would never have been filed because Mr. Arks status as a citizen would never have been in question. Had Mr. Ark been a natural born citizen the WKA Court would not have had to resort to the 14th Amendment in order to find that he was a citizen. Because Mr. Ark was not a natural born citizen, the WKA court had no reason to construe the term natural born citizen in order to answer the question: Was Mr. Ark a citizen under the 14th Amendment? Therefore, any discussion within the WKA opinion that could possibly be construed to alter the Article II term natural born citizen, was unnecessary to reach the WKA holding and was, by definition, dicta. See Blacks Law Dictionary 465 (Bryan A. Garner e., 7th ed., West 1999)(defining Dictum Gratis).
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The WKA holding does not contain the term natural born nor does it mention Article II.
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Also, to conclude that the WKA Court altered the definition of natural born citizen under Article II would also require a conclusion that the WKA court intended to overturn the Minor holding that the 14th amendment did not create any new privileges or immunities. Yet the WKA Court never made any such assertion, nor has any decision of this Court since WKA.
Nothing in the holding of Wong Kim Ark contradicts anything in Minor v. Happersett. Reading these two opinions with the distinction between citizen and natural born citizen in mind, and with the definitions of holding, precedent, and dicta
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To conclude that the WKA court altered the definition of natural born citizen under Article II would require a conclusion that dicta alters established precedent. This is simply not the rule. Dicta can be persuasive. Where the reasoning in dicta is logical and well supported, and where it does not conflict with precedent, it can be followed at the discretion of other courts. However, where dicta directly conflicts with precedent it cannot be followed by lower courts.
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Rather than construing the definition of the term natural born citizen under Article II, the WKA Court was construing the term citizen under the 14th Amendment. Regardless of the answer to the question answered by the WKA Court, it does nothing to change the requirements for the office of President.
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The Georgia Secretary of States decision concludes that any person born within the United States, regardless of the citizenship or legal status of their parents, is a natural born citizen under Article II of the United States Constitution. This conclusion violates venerable rules of Constitutional Construction established by this Court. In Marbury v. Madison this Court explained, It cannot be presumed that any clause in the Constitution is intended to be without effect; and therefore such a construction is inadmissible. 5 U.S. 137, 174 (1805).
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F. Marbury v. Madisons Rule of Constitutional Construction Supports Petitioners Harmonized Readings of Minor and Won Kim Ark
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This reading of Minor and WKA respects the foundational principals of constitutional construction and legal interpretation because these cases were answering different questions regarding different aspects of the Constitution. This reading of Minor and WKA leave these two opinions in harmony.
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Yet the Georgia Secretary of States ruling in the instant case, and reading of the WKA opinion, leaves Article IIs natural born citizen clause with no independent meaning separate from the meaning of citizen under the 14th Amendment. Citizen simply does not have the same legal meaning as the term natural born citizen. Article II uses the term natural born citizen in order to distinguish this type of citizen from other citizens. Yet the Secretarys holding completely negates this distinction. Therefore, the Secretarys holding violates venerable
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These rules of construction were wellestablished and well-known at the time the 14th Amendment was drafted. Had the drafters of the 14th Amendment intended that Amendment to alter the Article II definition of natural born citizen, they would have clearly stated so. Yet the term natural born citizen is not found anywhere within the 14 th Amendment. The Amendment also makes no reference to Article II.
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The Georgia Secretary of States decision relies heavily upon an Indiana State Appellate Court opinion. See App.17a-22a. citing Ankeny v. Governor, 916 N.E.2d 678 (Ind. Ct. App. 2009). However, a cursory reading of the Ankeny opinion should lead any court to immediately recognize the limited value of that opinion.
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Ankeny was a challenge brought by pro-se litigants in Indiana against that states Governor. Id. at 679. While litigation by pro-se parties certainly
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Much more striking, however, is the fact that the Ankeny Court admitted that the plaintiff lacked standing. Id. at 684. Since the plaintiff lacked standing, the Ankeny Court lacked jurisdiction to reach any substantive issue presented. Yet after reaching this conclusive finding, the Ankeny court took it upon itself to construe Article II of the U.S. Constitution. While a court may use alternative means to reach a holding, it should not construe the U.S. Constitution to do so. Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439, 445-46 (1988) (A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.). Judicial restraint requires all courts to avoid construing any clause of the Constitution if avoiding such construction is at all possible. Id. By pushing forward to give its opinion on the meaning of Article II, after ruling that it lacked jurisdiction in the case, the Ankeny Court ignored judicial restraint, ignored rules of constitutional construction, ignored direct precedent from this Court, and ignored the Article III constitutional limits on its own authority.
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Respectfully submitted, Van R. Irion Liberty Legal Foundation 9040 Executive Park Drive, Ste.200 Knoxville, TN 37923 (423) 208-9953
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J. Mark Hatfield, Esq. Hatfield & Hatfield, P.C. 201 Albany Avenue P.O. Box 1361 Waycross, Georgia 31502 (912) 283-3820
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For the reasons discussed above the petitioners respectfully request a writ of certiorari be granted.
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The Honorable Supreme Court met pursuant to adjournment. The following order was passed.
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I certify that the above is a true extract from minutes of the Supreme Court of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. Lia C. Fulton, Chief Deputy Clerk
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Upon consideration of the Application for Discretionary Appeal, it is ordered that it be hereby denied. All the Justices concur.
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KEVIN RICHARD POWELL v. BARACK OBAMA From the Superior Court of Fulton County.
Upon consideration of the Application for Discretionary Appeal, it is ordered that it be hereby denied. All the Justices concur. Trial Court Case No. 2012CV211528
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Witness my signature and the seal of said court hereto affixed the day and year last above written. Lia C. Fulton, Chief Deputy Clerk
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I certify that the above is a true extract from minutes of the Supreme Court of Georgia.
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CARL SWENSSON v. BARACK OBAMA From the Superior Court of Fulton County.
Upon consideration of the Application for Discretionary Appeal, it is ordered that it be hereby denied. All the Justices concur. Trial Court Case No. 2012CV211527
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Witness my signature and the seal of said court hereto affixed the day and year last above written. Lia C. Fulton, Chief Deputy Clerk
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I certify that the above is a true extract from minutes of the Supreme Court of Georgia.
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CARL SWENSSON, Petitioner, v. CIVIL ACTION FILE NO.2012CV211527 BARACK OBAMA, Respondent.
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DAVID FARRAR, LEAH LAX, CODY ROBERT JUDY, LAURIE ROTH, Petitioners, v. CIVIL ACTION FILE NO.2012CV211398
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The above-captioned actions are before the Court on the Petitioner(s) for Judicial Review of Petitioners David Farrar, et al., 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 assigned to four (4) different Superior Court Judges, the matters were transferred to the Honorable Chief Judge Cynthia D. Wright, to whom the first-filed case was assigned (Farrar, et al. v. Obama, et al., Civil Action File No. 2012CV11398), because each is an appeal of the same decision issued 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.
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The elector filing the challenge or the candidate challenged shall have the right 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 of 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 review to the reviewing court. The review shall be conducted by the court without a jury and shall be confined to the record.
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Petitioners filed their Appeal/Petition for Judicial Review of the Secretary of States decision in this Court pursuant to O.C.G.A. 21-2-5(e), which provides as follows:
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Petitioners claim is based, in part, on a contention that at the time of his birth, Respondents father was not a citizen of the United States.
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Additionally, even if the Court had determined that O.C.G.A. 21-2-5 applied to these matters and provided the Court with appellate jurisdiction over same, the Court finds that Petitioners have failed entirely to perfect personal service upon Respondent(s) 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 ADJUGED that Respondent Barack Obamas
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Docket Number: OSAHSECSTATE-CE-121513760-MALIHI
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FINAL DECISION5
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Petitioners filed candidate challenges pursuant to O.C.G.A. 21-2-5(b) contending that Respondent does not meet the State of Georgias eligibility requirements for his name to be listed on the 2012 Presidential Preference Primary ballot. Judge Michael Malihi, Administrative Law Judge (ALJ) for the Office of State Administrative Hearings, held a hearing on each candidate challenge on January 26, 2012 and entered an initial decision for the above-captioned cases on February 3, 2012.
Judge Michael Malihi previously consolidated the above-captioned candidate challenges for the purpose of issuing his initial decision. Those candidate challenges remain consolidated for the purpose of issuing this Final Decision.
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KEVIN RICHARD POWELL, Petitioner, v. Docket Number: OSAHSECSTATE-CE-121682360-MALIHI BARACK OBAMA, Respondent.
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DAVID FARRAR, LEAH LAX, CODY ROBERT JUDY, LAURIE ROTH, Petitioners, v. Docket Number: OSAHSECSTATE-CE-121513660-MALIHI BARACK OBAMA Respondent.
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DECISION6
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This Decision has been consolidated to include the four challenges to President Obama's candidacy filed by Plaintiffs David Farrar, et al., David P. Welden, Carl Swensson, and Kevin Richard Powell. Section I of this Decision applies only to the case presented by Ms. Taitz on behalf of Mr. 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.
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Plaintiffs allege that Defendant President Barack Obama does not meet Georgia's eligibility requirements for candidacy in Georgia's 2012 presidential primary election. Georgia law mandates that candidates meet constitutional and statutory requirements for the office that they seek. O.C.G.A.
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KEVIN RICHARD POWELL, Petitioner, v. Docket Number: OSAHSECSTATE-CE-121682360-MALIHI BARACK OBAMA, Respondent.
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As required by Georgia Law, Secretary of State Brian Kemp referred Plaintiffs' challenges to this Court for a hearing. O.C.G.A. 21-2-5(b). A hearing was held on January 26, 2012. The record closed on February 1, 2012. Plaintiffs Farrar, Lax, Judy, Malaren, 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 default order against a party that fails to participate in any stage of a proceeding. Ga. Comp. R. & Regs. 616-1-2-.30(1) and (5). Nonetheless, despite the Defendant's failure to appear, Plaintiffs asked this Court to decide the case on the merits of their arguments and evidence. 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
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At the hearing, Plaintiffs presented the testimony of eight witnesses7 and seven exhibits in support of their position. (Exs. P-1 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. Comp. R. & Regs. 616-1-2-.18(1)(9). The weight to be given to any evidence shall be determined by the Court based
Originally, Ms. Taitz indicated to the Court that she would offer the testimony of seven witnesses. However, during her closing argument, Ms. Taitz requested to testify. Ms. Taitz was sworn and began her testimony, but shortly thereafter, the Court requested that Ms. Taitz step-down and submit any further testimony in writing.
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The credibility of witnesses is within the sole discretion of the trier of fact. In non-jury cases that discretion lies with the judge. See Mustang Transp., Inc. v. W. W. Lowe & Sons, Inc., 123 Ga. App. 350, 352 (1971).
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The definition of this clause has been the source of much debate. See, e.g., Gordon, Who Can Be President of the United States: The Unresolved Enigma, 28 Md. L. Rev. 1 (1968); Jill A. Pryor, Note, The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty, 97 Yale L.J. 881 (1988); Christina S. Lohman, Presidential Eligibility: The Meaning of the Natural-Born Citizen Clause, 36 Gonz. L. Rev. 349 (2000); William T. Han, Beyond Presidential Eligibility: The Natural Born Citizen Clause as a Source of Birthright Citizenship, 58 Drake L. Rev. 457 (2010).
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For the purpose of this section's analysis, the following facts are considered: 1) 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
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Plaintiffs allege that President Barack Obama is not a natural born citizen of the United States and, therefore, 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 . . .9 U.S. Const. art. I, 1, cl. 5.
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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
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Next, the Indiana Court looked to United States v. Wong Kim Ark, in which the Supreme Court analyzed the 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 child born in the United States to parents who, at the time of the child's birth, were subjects 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 . . ." Id. at 686 (citing Wong Kim Ark, 169 U.S. at 653). The Indiana Court determined that the two provisions "must be interpreted in the light of the 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). The Indiana Court agreed that "[t]he interpretation of the constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history." Id. (citing Wong Kim Ark, 169 U.S. at 655) (internal citation omitted). The Wong Kim Ark Court extensively examined the common law of England in its decision and concluded that Wong Kim Ark, who was born in the United States to
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It thus clearly appears that by the law of England for the last three centuries, beginning before 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 place where the child was born. Id. at 658. Further: Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth. Id. at 660 (quoting Inglis v. Trustees of
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The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "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 naturalborn subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, 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 ambassadors, 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 the 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.
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Relying on the language of the Constitution and the historical reviews and analyses of Minor and Wong Kim Ark, the Indiana Court concluded that: persons born within the borders of the United States are "natural born citizens" for Article II, Section 1 purposes, regardless of the citizenship of their parents. Just as a person born within the British dominions [was] a natural-born British subject at the time of the framing of the U.S. Constitution, so too were those "born in the allegiance
Sailors' Snug Harbor, 28 U.S. (3 Pet.) 99, 164 (1830) (Story, J., concurring)). And: The first section of the second article of the constitution uses the language, 'a natural-born citizen.' It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the constitution, which referred citizenship to the place of birth. Id. at 662 (quoting Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 576 (1856) (Curtis, J., dissenting)). Finally:
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All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States 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. Id. at 662-63 (quoting United States v. Rhodes, (1866) (Mr. Justice Swayne)).
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This Court recognizes that the Wong Kim Ark case was not deciding the meaning of "natural born citizen" for the purposes of determining presidential qualifications; however, this Court finds the Indiana Court's analysis and reliance on these cases to be persuasive.
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President Barack Obama is eligible as a candidate for the presidential primary election under O.C.G.A. 21-2-5(b).
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CONCLUSION
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Part E Constitutional Provisions Involved Article II 1 Clause 5; Amendment I; Amendment XIV Article II 1 Clause 5: No person except a natural born citizen, or a citizen at the time of the adoption of this Constitution, shall be eligible to the Office of President.
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Amendment XIV 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
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Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble; and to petition the government for a redress of grievances.
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(b) The Secretary of State upon his or her own motion may challenge the qualifications of any candidate at any time prior to the election of such candidate. Within two weeks after the deadline for qualifying, any elector who is eligible to vote for a candidate may challenge the qualifications of the candidate by filing a written complaint with the Secretary of State giving the reasons why the elector believes the candidate is not qualified to seek and hold the public office for which he or she is offering. Upon his or her own motion or upon a challenge
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(a) Every candidate for federal and state office who is certified by the state executive committee of a political party or who files a notice of candidacy shall meet the constitutional and statutory qualifications for holding the office being sought.
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(1) In violation of the Constitution or laws of this state; (2) In excess of the statutory authority of the Secretary of State; (3) Made upon unlawful procedures;
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(4) Affected by other error of law; (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion. An aggrieved party may obtain a review of any final judgment of the superior court by the Court of Appeals or the Supreme Court, as provided by law.
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