OFFICE OF STATE ADMINISTRATIVE HEARINGS STATE OF GEORGIA CARL SWENSSON, Plaintiff V.

BARACK OBAMA, Defendant

OFFICE OF STATE ADMINISTRATIVE HEARINGS STATE OF GEORGIA KEVIN RICHARD POWELL, Plaintiff V. BARACK OBAMA,

Defendant

MOTION FOR DETERMINATION OF PLACEMENT OF BURDEN OF PROOF

Now come Plaintiffs Carl Swensson and Kevin Richard Powell, by and through undersigned counsel, and respectfully move the

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Court, pursuant to OSAH Rule 616-1-2-.07, for a determination by the Court of the proper placement of the burden of proof in the above-styled cases, and Plaintiffs show to the Court the following:

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Kcvin Westray, Le

DOCKET NO.: OSAH-SECSTATE-CE1216218-60-MALIHI

DOCKET NO.: OSAH-SECSTATE-CE1216823-60-MALIHI

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The above-captioned cases are actions in which Plaintiffs

are challenging the qualifications of Defendant to appear on the

voting ballot in Georgia as a candidate for the Presidency of the United States.

OSAH Rule 616-1-2-.07(1) provides that, with certain

exceptions not applicable herein, "[t]he agency shall bear the burden of proof in all matters."

OSAH Rule 616-1-2-.07(2) states that, "[p]rior to the

commencement of the hearing, the Administrative Law Judge may determine that law or justice requires a different placement of the burden of proof."

The instant actions were not initiated by the applicable agency herein, the Office of the Secretary of State. Rather, these actions were commenced by Plaintiffs, pursuant to O.C.G.A. 21-2-5(b), "by filing a written complaint with the Secretary of

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State...."

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Upon the filing of Plaintiffs' challenges to Defendant's

qualifications, the Secretary of State was required as a matter

of procedure, also pursuant to O.C.G.A. 21-2-5(b), to refer the

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1. 2. 3.

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challenges to the Office of State Administrative Hearings for a hearing.

At present, the "agency," i.e. the Office of the Secretary

of State, has made no determination of candidate qualifications; has issued no decision; and is not a party to these actions, and it would therefore be inappropriate in these actions for the

agency to bear the burden of proof as initially suggested by OSAH Rule 616-1-2-.07(1). The burden of proof therefore must lie

either with the named Plaintiffs (i.e., to prove the Defendant

ineligible) or with the named Defendant (i.e., to prove himself eligible).

Article II, Section I, Clause 5 of the United States Constitution provides, in pertinent part, that "[n]o Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President...." 8.

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O.C.G.A. 21-2-5(a) requires that "[e]very candidate for

federal...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 (emphasis supplied)."

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The foregoing cited authorities place the entire burden of proof upon Defendant Obama "to affirmatively establish his

eligibility for office." See Haynes v. Wells, 273 Ga. 106, 108-

109, 538 S.E. 2d 430, 433 (2000). Plaintiffs Swensson and Powell are not required, and should not be required, "to disprove

anything regarding [Defendant Obama's] eligibility to run for office.... - Id.

The rules set forth in the preceding paragraph reflect the holding of the Georgia Supreme Court in the cited action.

However, Plaintiffs submit that these rules make sense in the context of the instant actions, where not one shred of evidence of Defendant Obama's eligibility, as a "natural born Citizen," to hold the Office of the President of the United States is before this Court or has been presented to the Georgia Secretary of State. Apparently, the sole document which initiated Defendant's attempt to be placed on the Georgia ballot is the November 1, 2011 letter from Georgia Democratic Party Chair Mike Berlon to

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Georgia Secretary of State Brian P. Kemp (a copy of which letter is attached hereto as Exhibit "A"). Oddly enough, however,

defense counsel seems, according to a statement he made in a

motion to quash in one of the parallel cases to the instant

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9. 10.

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cased , t o somehow be contending that the fact that Defendant Obama currently occupies the presidency is,

of Defendant Obama's constitutional eligibility to that office. On the contrary, "there is [no] presumption, at least not a

conclusive presumption, that a person named or appointed to an office...was eligible and qualified to hold the office. Such qualification or eligibility depends upon facts which, when

challenged and drawn in question in a proper judicial proceeding, is a judicial question to be determined by the courts." Malone v. Minchew, 170 Ga. 687, 690-691, 153 S.E. 773 (1930). 11.

Additionally, Plaintiffs submit that basic fairness dictates that the burden of proof should rest upon the individual seeking to qualify for the office being sought. Plaintiffs should not be placed in the position of trying to 'prove a negative.' All of the facts and evidence that one would naturally assume would be supportive of Defendant's eligibility for office are in the possession and control of the Defendant. Defendant should not be permitted to 'back his way into office' by withholding testimony

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and evidence which are necessary to a judicial determination of

whether he is actually eligible to serve. Placement of the

I "The election of President Obama by the presidential electors, confirmed by Congress, makes the documents and testimony sought by plaintiff irrelevant." (Defendant's "Motion to Quash Subpoenas," p. 2, Farrar v. Obama, Docket No. OSAHSECSTATE-CE-1215136-60-MALTHI).

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in itself, evidence

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burden of proof with Defendant will assure that Defendant will

necessarily put up his case for eligibility, or else be stricken from the Georgia ballot.

For purposes of judicial economy, this issue concerning

placement of the burden of proof should be decided in advance of trial.

WHEREFORE, Plaintiffs respectfully request that the Court

enter an Order, prior to trial, determining the placement of the burden of proof in these matters, and specifically requiring

Defendant Obama to affirmatively establish his eligibility for office.

Respectfully submitted, this 19th day of January, 2012. HATFIELD & HATFIELD, P.C.

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201 Albany Avenue P.O. Box 1361 Waycross, Georgia 31502 (912) 283-3820

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12.

V. rk Hatfi J. for Att. Georgia Bar No.

tiffs 37509

GEORGIA DEMOCRATS
WINNING THE FUTURE
c")

November 1, 2011

The Honorable Brian P. Kemp Secretary of State 214 State Capitol

Atlanta, GA 30334 Dear Secretary of State Kemp:
-

Pursuant to OCGA 21 1 193, the Executive Committee of the Democratic Party of Georgia authorized the
transmittal of this letter to your office by Page K. Gleason, the Executive Director of the Democratic Party of Georgia, at their meeting on October 20, 2011.

This letter is to inform you of the candidates whose names should appear on the March 6 Democratic fees from candidates seeking presidential nomination. Candidates seeking to be listed on the

Presidential Preference Primary Ballot. The Democratic Party does not require petitions, signatures, or Democratic Presidential Preference Primary Ballot should notify the Executive Committee in writing by October 31, 2011. One candidate has submitted such a letter, and his name will appear on the Democratic Presidential Primary Ballot: Barack Obama

If you have any questions, please contact Executive Director Page Gleason at 678-278-2012 ext. 302 or paeePeeoreiademocrat.org . Thank you,

Mike gerlon Chair

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Democratic Party of Georgia

on behalf of the Executive Committee of the Democratic party of Georgia

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PAID FOR BY THE DEMOCRATIC PARTY OF GEORGIA POST OFFICE BOX 20442 ATLANTA, GA 30325 MIKE BERLON, NIKEMA WILLIAMS, FIRST VICECHAIR RUSSELL EDWARDS, TREASURER: R.1 HADLEY, VICE CHAIR; MIGUEL CAMACHO, VICE CHAIR; REP. PEDRO -PETE" MARIN, VICE CHAIR LAVERNE GASKINS, SECRETARY NOT AUTHORIZED BY ANY CANDIDATE OR CANDIDATE'S COMMITTEE WWW.GEORGIADEMS.ORG 675-278-2012

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Ns)

OSAH FORM 1 Attachment No. 3

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CERTIFICATE OF SERVICE

I, J. Mark Hatfield, Attorney for Plaintiffs, do hereby certify that, pursuant to the Order entered in the above-

captioned matters regarding electronic service, I have this day served the foregoing Motion For Determination of Placement of Burden of Proof upon:

Michael Jablonski michael. -iabionski@comcast.net

by email addressed thereto in order to insure proper delivery. This 19th day of January, 2012.

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201 Albany Avenue P.O. Box 1361 Waycross, Georgia 31502 (912) 283-3820

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HATFIELD & HATFIELD, P.C. J.lkark Hatf eld Att.'ney for la' tiffs Georgia Bar No. 337509

TE OF HAWAII

CERTIFICATE OF LIVE BIRTH

lb. Middle Name

Child's First Name (Type or print)

BARACK
2. Sot 3. This Birth 4.

Male

Single t:4 Twin u Triplet:3 e of Birth, City, Town or Rural Location

If Twin or Triplet,I Ss. Was Child Born Birth let (;) 2ndE] SrdE) Dole

Honolulu
la. Ust ----; ati Real enee of Mother: City, Town or Rural ',peados*

T.v KaTt orliosphal or Institution (if not in Tuaspitii or institution, give street address) e.--- se

Kapiolani Maternity & Gynecological Hospital

7b. Island

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HUSSEIN

Honolulu

eet fa,ir: Address

6085
if. Mother's Mailing Address

Kalanianaole Highway

Full Name of Father

BARACK
10. Age of Father 11.

Birthplace fished, Soo et Fenian Cowan) 12a.

25
13.

:{enya, East Africa 1 ANN

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Full Maiden Name of Mother

STANLEY
IS.

Age of Mother' 16.

Birthplace shad, Soo or ferries Counr;5117*.

18

Wichita, aansas

tore Pare or Other Informant I ...rig, th at the above stated 18a. _..S 1; ...... information is true and correct pip L lo the best of my knowledge. ttendant 19a. Signature certify that this child I was born alive on the date and ,. boar stated above. ddi wf 20. Dom Accepted by Loud Reg 21. Signature of Local Registrar

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28.

'''''

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OP

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Evidence for Delayed Filing or Alteration

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DEPARTMENT OF HEALTH :gl m 151 u

61. 10641

le. Last Name

HUSSEIN

OBAMA, II
Year

Month

Day

i Sb.

Hour

August

4,

1961 __J 7t24 P.m, Oahu

6b.

Island

16d.

I'

Is Plate of Birth inside City or Town Cleans? give judicial district If Yes No 1 7e. County and State or Foreign Country

(71

Oahu
7,

Honolulu, Hawaii
It Residence Inside City or Town Limits? If n ve j.dithd district No 0 _ lif 7g. Is Residence on a Farm or Plantation? Yes Race of Fat her

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9. 12b.

OBAMA

African
Kind of Businem or Industry

Usual Occupation

Student
14.

University
Race of Mother

DUNHAM None

Caucasian
17b. Data Last Worked Date of Signature Pa ten , . (52.601.40,44:t .. oth .

Type of Oeeupation Outside Home During Pregnancy

2 18b.

s., 7 _4

die _4.4-44....._

196. Date of Signature Kit 0.0. i Midwife Other 122. flp,telkoteptedby Reg. GSUCSUI

r i 47
3 1961

kUt)

Exhibit P-5
Docket # 1215137

DAVID FARRAR, LEAH LAX, CODY JUDY, THOMAS MALAREN, LAURIE ROTH, Plaintiffs, v. BARACK OBAMA, Defendant.

DAVID P. WELDEN, Plaintiff, v. BARACK OBAMA, Defendant.

CARL SWENSSON, Plaintiff, v.

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BARACK OBAMA, Defendant.

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Plaintiff, Defendant.

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KEVIN RICHARD POWELL, : Docket Number: OSAH-SECSTATE-CE1216823-60-MALIHI :

Counsel for Plaintiff: J. Mark Hatfield Counsel for Defendant: Michael Jablonski

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v.

BARACK OBAMA,

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: Counsel for Plaintiffs: Orly Taitz Counsel for Defendant: Michael Jablonski Counsel for Plaintiff: Van R. Irion Counsel for Defendant: Michael Jablonski Counsel for Plaintiff: J. Mark Hatfield Counsel for Defendant: Michael Jablonski

OFFICE OF STATE ADMINISTRATIVE HEARINGS STATE OF GEORGIA

: Docket Number: (31AII-SECSTATE-CE., : 1215136-60-MALIHI

: Docket Number: OSAH-SECSTATE-CE: 1215137-60-MALIHI

: Docket Number: OSAH-SECSTATE-CE1216218-60-MALIHI :

Plaintiffs, Carl Swensson and Kevin Richard Powell, have filed a motion for determination of placement of burden of proof. Defendant is directed to file his response by 12 Noon, Monday, January 23, 2012. SO ORDERED, this the 19th day of January, 2012.

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ORDER

MICHAEL M. MALIHI, Judge

gdi it. 144bk: