Professional Documents
Culture Documents
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CASE NO.
v.
BARACK OBAMA, 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 CARL SWENSSON, Applicant V. BARACK OBAMA, Respondent APPLICATION Now comes AppL_cant undersigned pursuant counsel"
* * * *
FOR DISCRETIONARY Carl Swensson, APPEAL CASE NO.
and respectfully
applies
to O.C.G.A,
Court of Fulton to
Applicant's Decision
of Georgia
Applicant's Obama,
of Respondent
as a candidate
election.
hereto:
"Order
Respondent
BarackObama's
as Exhibit
For Judicial
Applicant
in the Superior
15,
2012; as Exhibit
"c"
a copy of Applicant's
For Expedited of
of Secretary
Preference
Primary
"0" a copy of
Support thereof
to Respondent's
to Dismiss"
to and accepted
by the Superior
as per the Court's llermission and instructions, 2, 2012 and thereafter Exhibit
Respondent's
PART ONE
Discretionary 2-5(e)
pursuant
to the qualifications
a presidential
candidate,
of the United
States,
2.
SUPREME
COURT JURISDICTION.
jurisdiction
to entertain
this Application
Constitution Paragraph
constitutionality Preference
21-2-5 as applied
the construction
I, Clause
Respondent
OF FACTS.
On or before October
31, 2011,
Party of Georgia
Preference
Democratic
to O.C.G.A. Secretary
21-2-193,
of State's
Democratic
Presidential
Preference
Page -3-
Thereafter, Swensson,
pu::suant to O.C.G.A.
2l-2-5(b), Georgia
Applicant
a resident: of Clayton
County,
eligible States,
challenge
of RE~spondent to seek and hold the Office of the States. Applicant contended that
of the United
does not meet the "natural born Citizen" of Arti(:le II, Section I, Clause
eligibility
5 of the United
21-2-5(b),
Applicant's
challenge
administrative
(hereinafter
(hereinafter
was present
cou:lsel, evidence
pertaining
documents
Respondent Likewise,
26, 2012.
attorney
Page -4-
No evidence
or test:Lmony whatsoever
into the
The failure of
as demonstrated attorney
Applicant's
father, Barack HussE!in Obama, was born in Kenya and was a subject of Great Britain. Respondent's citizen Additionally, Applicant established that
of the United
Respondent
in 1961 or at any other time whatsoever. on February 3, 2012, the ALJ issued an initial as a candidate to O.C.G.A. for the
Nevertheless, Decision
Pursuant
21-2-5(b),
Decision
~las reported
to the Secretary
of State.
to O.C.G.A.
21-2-
adopting
the initial
Applicant's
challenqe.
151
2012, pursuant
to O.C.G.A.
21-2-5(e),
appealing
Final Decision
Page -5-
hearing
alld review of the case due to the fact that the Primary Election was scheduled 6, 2012. to In of
Presidentia:_ Preference
22, 2012, a
For Expedi t(;d Review or, Al ternati vely, For Stay of of Secretary of State and For Postponement Primary Election" of
Presidential
Preference
On February
for Respondent
subject matter;
that: there was a failure of service of process; failed to state a claim upon which
to respond
to Respondent's
March 2, 2()12 at 9:30 a.m., to do so (Exhibit "E," pp. Counsel fOJ~ Applicant thereafter submitted to the Court,
"Response
to Respondent's
to Dismiss"
acknowledged morning
receip1: of same in an email sent at 8:30 a.m. on the (Exhibit "E," p. 15). Just over two and
of March 2, 2012
Page -6-
one-half
"Order Granting
(Exhibit "A," pp. 1-2). PART TWO ENUMERATION OF ERRORS 1. The Super_or Court erred in holding that O.C.G.A. to the Preference
21-
2-5 does not apply ~_n the context of a challenge qualifications Primary. 2. The Superior Court erred in holding to a challenge of a candidate in the Presidential
O.C.G.A.
21-2-5
unconstitutional of a candidate 3.
as applied
in the Presidential
Preference
The Superior
failed to perfect
Applicant's service.
The Super~or
Final Decision
of the Secretary
ALJ's and the Secret.ary of State's errors in failing to determine the proper placement of the burden of proof and in failing to challenge.
Final Decision
of t:he Secretary
ALJ's and the Secret.ary of State's errors in finding as "fact" that Respondent was born in the United States and that
Page -7-
Respondent's
mother
was a citizen
time of Respondent':3 birth. 6. The Super __ r Court erred in failing to reverse the o of tlle Secretary of State on the basis of the
Final Decision
ALJ's and the Secre1:ary of State's error in finding that Respondent Article qualifie~3 as a "natural born Citizen" pursuant to
despite
that Respondent's
States citizen
would note at the outset that this Court's Rule the :3tandard for granting discretionary appeals,
in pertinent
appeal a final judgrlent [pursuant to] O.C.G.A. granted," among othE!r instances,
:t]he establishment
of a precedent
the Superior
Court, as well as tlle ALJ and the Secretary number of reversiblE! errors. significant Additionally,
contenders,
Page -8-
candidacies,
the establishment
of a precedent
and desirable.
1.
The Super::Lor Court erred in holding that o. C.G.A. 21to the Preference
2-5 does not apply :in the context of a challenge qualifications Primary.
The Superior qualifications Presidential Cc)urt held that O.C.G.A. statute, Primary,
chal.enge Preference
delegates,
but does not result in the candidate. The Court for the
or elect::.onof a presidential
contended
before
of "election"
found in but
21-2-2(5)
or spE!cial primary
is used "clearly
requires"
of a primary
or special primary. The Superior provisions Court and Respondent overlooked, as however, the
of O.C.G.A.
21-2-15
inasmuch
This ch~pt:er shall apply to any general or special eJ.ection in this state to fill any federal, ~;tate, county, or municipal office,
Page -9-
to any general or special primary to nominate candidate:3 for any such office, and to any federal, :3ta te, county, or municipal election or primary for any other purpose whatsoever, unless otherwise provided. Also, the qual~_fications challenge statute, O.C.G.A. of "any Despite 1n a by
21-2-
the qualifications
designated
alsc) argued
or must submit "a notice of candidacy," and that neither O.C.G.A. of such conditions
2l-2-5(a:,
may be made "at any time prior to the election candidate," and ReSI)ondent's political
and
terms in the
Code, and one could argue that the list of submitted by 21-2-193
to O.C.G.A.
Page -10-
i1: is apparent
qualifications
statute does, in fact, apply to the Presidential Primary; that the Superior Court did properly Petition; have
subject-matter Superior 2.
jurifldiction of Applicant's
error in holding
O.C.G.A.
21-2-5
unconstitutional of a candidate
as applied
in the Presidential
Preference
(and Fourteenth)
political
whom to include
Preference
in which
(citing Democratic
Wisconsin,
107, 101 S. Ct. 101U, 67 L. Ed. 2d 82 (1981); Duke v. 954 F. reverse 2d 15:26 (11th Cir. 1992)), he also claimed
is also trUE!" in that the party has the unchecked certain names on its primary ballot.
to require however,
Respondent,
cited no allthority for the latter proposition. CClurt essentially adopted Respondent's of State may not
Page -11-
interfere
determination
of its
candidates, presidential
authority
is limited to examining
cited by the Superic)r Court or by Respondent the conclusion associational require that a political right~; deprive party's
a state government
or statutory
eligibility
21-2-5(b)
and
Georgia
O.C.G.A.
a candidate's of State's
by filing ~lpetition
Court of Fulton
Given the ~;tate' right to run its own elections, s to the associational rights of the the Superior Court of
over Applicant's
otherwise.
Page -12-
3.
The Superior
failed to perfect
sll~rvice and
Applicant's service.
21-2-5,
to perfect
Respondent(s) 9-11-4.
as recIuired by O.C.G.A.
21-2-5(e)
believed
Applicant's
case
Co. v. GeorGia
(2003) is
In DouGlas Asphalt,
the Court held that in an of a state agency or other for judicial review
decision
of the petition
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
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 mad(~ 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 sim:_Iar motions, orders, and proceedinqs may be made by the attorney or party fiL_ng the notice or paper, in person or by mai:_, and proof thereof shown by acknowledcJment of the attorney or party served, 0::: by certificate of the attorney, party, or other person perfecting service.
in 1:he instant
upon
Applicant
5-3service
21(b) states in pert:inent part that "[f]ailure on any party shall flot work dismissal,
court
shall grant continu2lnces and enter such other orders as may be necessary appeal." to permit Dismissal a just and expeditious determination of the
based upon the issue of service was therefore Court erred to the extent that service.
Page -14-
4.
The Superior
to reverse
the
Final Decision
of the Secretary
ALJ's and the Secre'i:aryof State's errors the proper placemen'l:of the burden
apply such determina.tion in ruling upon Applicant's In dismissing Superior ]~pplicant's Petition For Judicial
failure to of
make a determinatiolr 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
OSAH Rule 616-:.-2-.07 (1) provides exceptions burden not appl~_cable herein,
"[t]he agency shall bear the Further, OSAH Rule 616-1-2of the hearing,
to the commencement
a different: placement
of the burden
1:0 Respondent's
qualifications
was commenced
to O.C.G.A,
2l-2-5(b),
the Secr(~tary of State was required also pUr!lUant to O.C.G.A. to the OSAH for a hearing.
21-2-5(b),
to refer the
Prior to the t]~ial before the ALJ, the "agency," Office of the Secret:ary of State, made no determination candidate qualificat:ions; issued no decision; arid it would have therefore
i.e. the of
to the challenge,
for the agency to bear the burden by OSAH Rule 616-1-;:-.07(1). have been placed ineligible) However, required, regarding
rd.
of proof as initially
The burden
of proof therefore
or with Respondent
under Havnes,
was not
anything
eligibility
failure to rule on the burden Respondent and his lawyer and such
failed to attend tr~_al and failed to offer any evidence, failures were intent:ional, as shown by Respondent's
counsel's
Page -16-
2~j, 2012
(Exhibit "F").
If Respondent
did, as
contends,
the basis of their j~ailure to address the burden reversible 5. error. The Super:i.orCourt erred in failing of the Secretary
to reverse
the
and the Secrei!:aryof State's errors was born in the United was a citizen birth.
mother
of the United
the Secretary
of State's
ruling, on Applicant:'s challenge relied upon certain "considered." Respondent Respondent alleged
to Respondent's
qualifications
the time of RespondE!nt's birth. However, burden as set: forth hereinabove, h:_s eligibility Respondent carried the as
of proving
for office.
Inasmuch
Respondent
for trial and did not as the "natural born Page -17-
Citizen"
eligibility
mandates
an of
examination
he::einbelow), Respondent
found by the ALJ wel:e legally unsupported. failure to reverse t:he Secretary
of "fact" is reversible
6.
to reverse the
Final Decision of the Secretary of State on the basis of the ALJ's and the Secre1:;aryof State's error in finding that Respondent qualifief:: 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'f:1 birth.
The ALJ's was grounded (and subsequently the Secretary
of State's)
ruling
of the non-binding
v. Governor
reasonlng of Indiana,
in Ankenv
2d 678 (20(19), with regard to the ALJ's as a natural born citizen he became a United
finding that a
qualifies
States citizen at birth. there was absolutely at trial to carry place of birth,
Page -18-
by Respondent Respondent's
States
confe::s the status of "natural born Citizen" II of the United States Constitution of the applicable is
to Article
unfounded; is contrary
is an inc:orrect statement
law; and
is bindirlg authority
that the
II phrase
in the United
State~: to two
United
evidence
demonstrated, citizen
reasons, Applicant
respectfully For
IThis issue will be more fully briefed by Applicant upon the granting of this Application For Discretionary Appeal. Page -19-
Discretionary Superior
Appeal
the decision
of the
Court in t:lis case. submitted, this 12th day of March, HATFIELD & HATFIELD, 2012.
Respectfully
P.C.
At~rney Hatfic\fd \ ark for Ap~cant Georgia Bar No. 337509 201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820
3J502
Page -20-
CERTIFICATE
I,
certify that I have this day served the foregoing Discretionary Appea:_ 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 o~: same in the United envelope ~lith sufficient 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
3J.502
Mark Hatfield
From: Sent: To: White, Con nie [Connie.White@fultoncountyga.gov] Friday, Mar~h 02, 201211:04 AM david. is.farrar@gmail.com; codyj udy@hotmail.com; mhatfield@wayxcable.com; van@/ibertylegalfoundation.org; m ichael.jablonski@comcast.com; cale@sos.ga.gov; vrusso@sos.ga.gov; dpwelden@gmail.com Order Gran-:ing Respondent Barack Obama's Motion(s) to Dismiss-2012cv211398, 2012cv211b27, 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
,UI ,)
7\
A
*
* *
@~\1\ r
rED INOFFICi \~ MAR 2.1011 . ~
DEPUTY CLERK SUPERIOR N COUNTY.
COURT
GA ~
,",--'
* *
v.
* CARL SWENSSON
* *
*
v.
* *
Farrar, et al. v. Ohama, et al: Civil Action No. 2012CV211398 Swensson v. Obama: 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 1
** * DAVIDP. WELDEN
CNILACTION FILE NO. 2012CV211537
* *
TO DISMISS
of Petitioners David Farrar, et al., Carl Swensson, Kevin Richard Powell, and David P. Welden, which were filed in this Court on February Although initially 13, 2012 and February Superior 15, 2012, respectively. the matters were
Court Judges,
Chief Judge Cynthia D. Wright, to whom the fust-filed case was because each is
assigned (Farrar, et al. v. Obama, et aI., Civil Action File No. 2012CV211398), an appeal of the same decil:ion issued on February 3,2012 by Administrative
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-referl~nced 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 to
consolidated
the Motion(s)
Dismiss, the other pleading:;; of record, and applicable Georgia law, the Court fmds as follows: Petitioners filed thdr Appeal/Petition for Judicial Review of the Secretary of State's
ORDERGRANTINGMOTION(S) TO DISMISS
Page 2
The elector filing the challenge or the candidate challenged shall have the rlght 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 servi,: e 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. Petitioners allege that Respondent thus, is not qualified for candidacy Barack Obama is not a "natural born citizen"! and, 2012 Presidential Primary. Despite its
in Georgia's
application in the court be low, this Court does not believe that a.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.A. 21-2-191. The Presidential Preference Primary apportions
delegates, but neither elects nor nominates candidates for the Presidency. Respondent Barack abama is not yet a "candidate" for the Presidential because the Presidential Prderence
Therefore, because
Primary is not an "election" within the meaning of O.C.G.A. 21-2-2(5) and 21-2-5.
Moreover, it is well 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 21-2-191 to
for President are determined by convention of the political party. See a.c.G.A.
1 Petitioners claim is based, in pa:lt, on a contention that at the time of his birth, Respondent's father was not a citizen of the United States.
Farrar, et al. v. ahama, et a/: Civil Action No. 2012CV211398 Swensson v. Obama: Civil Action No. 2012CV211527 Powell v. ahama: Civil Action No. 2012CV211528 Welden v. ahama: Civil Action No. 2012CV211537
ORDER GRANTING MOTION(S) TO DISMISS
Page 3
21-2-200.
In the case of a democratic candidate for President, the Democratic Party of Georgia
has the sole discretion to determine 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 (l1th 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 of the United States Constitution and Georgia statutory law from infringing on the associational rights of the Democratic Party of Georgia and is limited in its authority to examining presidential electors. O.c.G.A. 21-2-172 to 21-2-200; Duke v. Cleland, 884 F. Supp. at 515-16 (N.D. Ga. 1995). Even if the Secretary of State believes that a challenger's claims are valid, the Secretary of State may not interfere with a political party's internal decision-making. rd. Based upon Georgia law and governing precedent, the Court finds it has no authority to exercise jurisdiction over the Democratic Party of Georgia's selection of the names(s) to be included in the Presidential Preference Primary or to examine the qualifications of those individuals. Therefore, the"e actions should be DISMISSED in accordance with a.C.G.A. 911-12(b). Additionally, evenlf 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 a.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 EEREBY ORDERED AND ADJUDGED that Respondent Barack Obama's Motion(s) to Disniss in the above matters are GRANTED, and the above actions are hereby DISMISSED.
Farrar, et al. v. Obama, et a/: Civil Action No. 2012CV211398 Swensson v. Obama: Civil Action No. 2012CV211527 Powell v. Ohama: Civil Action No. 2012CV211528 Welden v. Ohama: Civil Action No. 2012CV211537 ORDER GRANTING MOTION(S) TO DISMISS
Page 4
2nd
c:----~\-fV'\~,,~
Fulton County Superior Court Atlanta Judicial Circuit
fJudge
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(cV,hotmail.com J. Mark Hatfield, Esq. Hatfield & Hatfield, P.c. 201 Albany Avenue P.O. Box 1361 Waycross, Georgia 31502 mhatfield@wayxcable.com Van R. Irion, Esq. Liberty Legal Foundation 9040 Executive Park Drive, Suite 200 Knoxville, TN 37923 van(cV,libertvl galfoundatiorl. org e Michael K. Jablonski, Esq. 2221-D Peachtree Road, NE Atlanta, Georgia 30309 michael. ablonski@comcast.net
Farrar, eta!. v. Ohama, eta!: Civil Action No. 2012CV211398 Swensson v. Obama: Civil Action No. 2012CV211S27 Powell v. Ohama: Civil Action No. 2012CV211528 Welden v. abama: Civil Action No. 2012CV211537
ORDER GRANTING MOTION(S) TO DISMISS Page 5
Carn-Anh Le, Esq. Vincent Robert Russo, Jr., Esq. Office of the Georgia Secretary of State Executive Office 214 State Capitol Atlanta, Georgia 30334 cale@sos.ga.gov vrusso(cV,sos.ga.gov
David P. Welden, Pro Se 5530 Wright Road Powder Springs, Georgia ]0127 dpweIden@gmail.com
Farrar, et al. v. ahama, et al: Civil Action No. 2012CV211398 Swensson v. ahama: Civil Acti:m No. 2012CV211527 Powell v. ahama: Civil Action No. 2012CV211528 Welden v. ahama: Civil Action No. 2012CV211537 ORDER GRANTING MOTION(:;) TO DISMISS
Page 6
FILED IN
MM-DD-YY
o State
Superior
Plaintiff(s)
SWENSSON, CARL
Last First Middle L Suffix Prefix Maiden
Defendant(s)
OBAMA, BARACK
Last First
[FEB:~~12
FU~,Gf, Maiden
Last
First
Maiden
Last
First
Maiden
Last
First
Maiden
Last
First
Maiden
Last
First
Maiden
Last
First
Maiden
No. of Plaintiffs
_1
PIaintiff/Petitioner's
HATFIELD, J. MARK
Last First
Attorney
Middle L
Bar # 337509 Check Primary Type (Check only ONE) If Tort is Case Type: (Check no more than TWO)
D Auto Accident
Wills/Estate Real Property Dispossessory/Distress Personal Property Equity Habeas Corpus Appeals, Reviews Post Judgment Garnishment, Attachment, or Other Relief Non-Domestic Contempt Tort (If tort, fill in right column) Other General Civil SpecifY_
o o
o
Contract/Account
o o o
o
~
0 No
o
o
PLAINTIFF'S ~ EXIjIBIT
.tJ
i ~
,1( ~
2..012 C V
2/1..52?
Plaintiff,
vs.
BARACK OBAMA
Defendant
Your are hereby summoned and required to file with the Clerk of said Court and serve upon plaintiff's attorney, whose name and address is: J. MARK HATFIELD
HATFIELD & HATFIELD, P.C. 201 ALBANY AVENUE P.O. BOX 1361 WAYCROSS, GEORGIA 31502 (912) 283-3820
An answer to the complaint which is herewith served upon you, within 30 days after service of this summons upon you, exclusivl~ of the day of service. IF YOU FAIL TO DO SO, JUDGMENT BY DEFAULT WILL BE TAII(EN AGAINST YOU FOR THE RELIEF DEMANDED IN THE
This COMPLAI~~
._dayof
To defendant upon whom this petition is served: This copy of complaint and summom: was served upon you , 20 _
Deputy Sherriff
Instructions:
Attach addendum
sheet for addi tional parties if needed, make notation on this sheet if addendum
is used
IN THE: SUPERIOR
], 5 2012
STATE OF GEORGIA
DEPUTY CLERK SUPERIOR COURT
FUL];l~~~
* *
V.
BARACK OBAMA,
* *
~ie:TITION FOR JUDICIAL REVIEW Carl Swensson, by and through For Judicial Review
Respondent
Respondent
1.
This action is an appeal of a Final Decision Secretary Swensson's of State E1rian P. Kemp denying challenge to the qualifications candidate, of Georgia Carl Barack Petitioner
of Respondent
of the United
as a candidate
primary
election.
to
21-2-5(e).
3.
Petitioner Clayton County, Carl Swensson Georgia. is a natural person residing in
He is a registered
of Georgia,
Barack Obama,
herein.
Obama,
to the ExecuLive
of the Democratic
Democratic on
Presidential November
Consequently,
Party Chairman
Mike Berlon
to O.C.G.A.
21-2-193,
the name of as a
to the Georgia
Secretary
Presidential
Pursuant
to O.C:.G.A.
21-2-5(b),
Petitioner
challenge
of Respondent
to seek and hold the Office of the Petitioner's challenge born I, Clause
States.
eligibilit}' requirement
II, Section
5 of the United
Stat.es Constitution.
6.
Also pursuant secretary to O.C.G.A.
21-2-5(b),
the Office
of the for
Petitioner's
challenge
Page -2-
a hearing
before
an administrative Hearings.
State Administrative
7.
Pursuant conducted Michael to proper notice to the parties, a hearing was Law Judge
on January
M. Malihi.
through
counsel,
any evidence
or testimony
whatsoever. 8.
as a candidate Pursuant
21-2-5(b),
Jaw 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
challenge.
Page -3-
21-2-5(e),
Petitioner
now appeals
and
in this case, and f~rther Decision, Petitioner conclusions, (a) state; (b) of State; (c) (d) (e)
seeks a reversal
for the reason that substantial have been prejudiced and decisions because
the findings,
of the Secretary
In violation
of the Constitution
authority
of the Secretary
procedures;
by other errors of law; erroneous in view of the reliable, and by an abuse probative,
Arbitrary
of discretion
of discretion.
Petitioner
would enumerate
of State's
in this ca:::e: The administrative law judge, and consequently Decision the
of said judge,
to the cases of
Page -4-
Petitioner counsel)
(represented by separate
who independently
qualifications,
that offered by such other individuals; (b) Secretary The administrative of State adopting law judge, and consequently the initial Decision the
of said judge,
the United
(c)
Secretary
as evidence
(2) electronic
purport,:=d"long form" and "short form" birth which were attached to a letter sent, prior to of State, despite or admitted the fact that
trial, by email to the Secretary such images were never tendered accordance Petitioner
evidence
to the superior
The admini~::trative law judge, and consequently of State adopting the initial Decision
of said judge,
Page -5-
erred
as to the proper
placement burden
of proof in reaching
Petitioner's
specifically of
of Placement
the
deliberate
to Respondent's
the
of said judge,
the reasoning
automatically Article
II of the United
States Constitution,
by merely
~:tates, without
the
of said judge,
Page -6-
(h) Secretary
The admin::.strative law judge, and consequently of State 2ldopting the initial Decision qualifies
the
of said judge,
as a "natural born
Constitution, United
despite
States citizen
(i) Secretary
request to certify
of appropriate
Respondent
(and Respondent's
intentionally, Petitioner's
Petitioner expedited
respectfully
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-
election
a final judgment
reviewing
This Petition
is timely
Pursuant
to O.C.G.A.
21-2-5(e),
the Secretary
of State, 'as
or a certified
Carl Swensson
Conduct
a hearing
an expedited (2) Secretary the ballot election (3) Secretary Article removing Georgia,
to be included
as a candidate
primary
pending
a final judgment
II
requirement
Respondent's
Page -8-
deliberate
Notice
to Produce
in theadministrath'e (4)
deem just and proper. This 15th day c:f February, 2012.
HATFIELD
& HATFIELD,
P.C.
201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820
31502
Page -9-
HEARINGS
Docket Number: OSAH-SECST ATE-CE12151 36-60-MALIHI Counsel for Plaintiffs: Orly Taitz Michael Jablonski
v.
BARACK OBAMA.
Defendant.
Docket Number: OSAH-SECST ATE-CE12151 37-60-MALIHI Counsel for Plaintiff: Van R. Irion Michael Jablonski
BARACK
Defendant.
J. Mark Hatfield
Michael Jablonski
Docket Number: OSAH-SECST ATE-CE1216823-60-MALIHI Counsel for Plaintiff: J. Mark Hatfield Michael Jablonski
DECISION
Plaintiffs allege that Defendant President Barack Obama does not meet Georgia's eligibility requirements fot candidacy in Georgia's 2012 presidential primary election. Georgia law mandates that candidates meet constitutional and statutory requirements for t,he 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. !d. The United States Constitution require!;that a President be a "natural born [c]itizen." U.S. Const. art. II, 1, d. 5. 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 entcr a default order against a party that fails to participate in any stage of a proceeding. Ga. Compo H. & Regs. 616-1-2-.30(1) and (5). Nonetheless, despite the
I 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 Me. Welden, Mr. Swensson, and Mr.Powell. Section II applies to all Plaintiffs.
Defendant's failure to appl~ar,Plaintiffs asked this Court to decide the case on the merits of their aTf,ruments nd evidence. The Court granted Plaintiffs' request. a By deciding this matter on the merits, the Court in no way condones the conduct or legal scholarship of Dl::fendant's attorney, Mr. Jablonski. This Decision is entirely based on the law, as well as the evidencl~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 fraucLulently obtained social security number, a Hawaiian birth
certificate that is a compu ler-generated forgery, and that he does not otherwise possess 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. (PI.s' Am. Compi. 3.)
At the hearing, PI~lintiffs presented the testimony of eight witnesses2 and seven exhibits in support of their position. (Exs. P-I through P-7.) When considering the
testimony and exhibits, th:is Court applies the same rules of evidence that apply to civil nonjury cases in superior court. Ga. Compo R.
to be given to any evidenl;e shall be determined by the Court based upon its reliability and probative value. Ga. Camp. R.
& Regs.
616-1-2-.18(10).
The Court finds th(: testimony of the witnesses, as weil as the exhibits tendered, to be of little, if any, proba:live value, and thus wholly insufficient to support Plaintiffs' allegations.3 Ms. 1'aitz attempted to solicit expert testimony from several of the
witnesses without qualifying 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 indicaled to the Court that she would offer the testimony of seven witnesses. However, during her closing ar:~ument, Ms. Taitz requested to testify. Ms. Taitz was sworn and began her testimony, but shortly thereaftl:r, the Court requested that Ms. Tatiz step-down and submit any further testimony in writing.
3 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 Tran:,p .. fnc. v. W.W. Lowe & Sons. fnc., 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 nevl~rqualified or tendered as an expert in social security fraud, or fraud investigations in g<::neral. Accordingly, the Court cannot make an objective threshold determination of these witnesses' testimony without adequate knowledge of their qualifications. See Knudsen v. Duffee-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 testif}'lingwitnesses provided persuasive testimony. Moreover, the Court finds that none of the written submissions tendered by Plaintiffs have probative value. Given the unsatisfadory evidence presented by the Plaintiffs, the Court concludes that Plaintiffs' claims are not persuasive.
n.
Application of the '''Natural Born Citizen" Requirement 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
',4
except a natural born Citizen ... shall be eligible for the Office of the President .... U.S. Const. art. II, 1, cl. 5.
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 States citizen. Plaintiffs contend that, because his father was not a U.S. citizen at the time of his birth, Mr. Obama is li;onstitutionallyineligible for the Office of the President of the United States. The Court does not agree. In 2009, the Indialla Court of Appeals ("Indiana Court") addressed facts and issues similar to those befilre this Court. Arkeny v. Governor, 916 N.E.2d 678 (Ind. Ct. App. 2009). In Arkcny, the 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 ditlerence involves having [two] parents of U.S. citizenship, owing no foreign
allegiance," Id. at 685. The Indiana Court rejected the argument that Mr. Obama was
4 The definition of this clause has been the source of much debate. See, e.g., Gordon, Who Can Be President oftlte United States: the Ufl/'(>.mlved nigma, 28 Md. L. Rev. 1 (J 968); Jill A. Pryor, Note, The E Natural-Born Citizen ClaLls(~ Presidential Eligibility: An Approach for Resoh'ing Two Hundred Years and (!rUncertainty, 97 Yale L.J. 88'1 (1988); Christina S. Lohman, Presidential Eligibility: The Meaning orthe Natural-Born Citizen Clause. 36 Gonz. L. Rev. 349 (2000); William T. Han, Beyond Presidential Eligibility: The Natural Born Citizen Clause as a Source o/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. Id. at 688. This Court finds the decision and analysis of Arkeny penmasive. 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 "natura1 born citizen" in the Constitution is in Article II, and the term is not defined in the Constitution). The Indiana Court first explained that the U.S. Supreme Court has read the Fourteenth Amendment and Article that "new citizens may
hi;:
(citing Minor, 88 U.S. at ].67); See U.S. Const. amend. XIV, 1. CAll persons born or naturalized in the United ~;,tatesand subject to the jurisdiction thereof, are citizens of the United States .... "). In lvlinor, the Court observed that: At common-law, with the nomenclature of which the framers of the Constitution were J!amiIiar,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 children 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.
ld. at 167-68. Plaintiffs a::;kthis Court to read the Supreme Court's decision in Minor as
defining natural born citiz'~nsas 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 citizen. In deciding whether a woman was eligible to vote, the
Minor Court merely conclllded 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 t1l1e eaning of the words "citizen of the United States" in the m 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 subjecti 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." /d. (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::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 exte:nsively examined the common law of England in its decision
and concluded that Wong Kim Ark, who was born in the United States to alien parents,
became a citizen ofthe United States at the time of his birth.5 Wong Kim Ark, 169 U.S. at 705.
The Wong Kim Ark Court expillined: 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 pers('us born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual ... and were not restricted to natural-born subjecl<; 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 ambmsadors, or the children of aiien cnemies, 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 jurisdict ion of the King.
169 U.S. at 655. It thus clearly appears that l:y the law of England for the last three centuries, beginning before the settlement of this countlY, 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 protec tion, the power, the jurisdiction, of the English Sovereign; and therefore every child born lin 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 phLce where the child was born.
Jd. 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. Jd. at 660 (quoting Inglis v. T/"l.lsleeS of Sailors . Snug Harbor, 28 U.S. (3 Pet.) 99, 164 (1830) (Story, J., concurring. And: The first section of the citizen.' It thus assumes of the constitution was this country at the time place of birth. se<:ond article of the constitution uses the language, 'a natural-born thai citizenship 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
Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 576 (1856) (Curtis, J., dissenting.
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 con:.mon law, and it is the common law of this country, as well as of
England.
Jd. at 662-63 (quoting United Si'Cltes I'. Rhodes, (1866) (Mr. Justice Swayne).
.................
-.--.----- ---------------------------------'------------------
Relying on the language of the Constitution and the historical reviews and analyses of Minor and
W01:lg
persons born within the borders of the United States are "natural born citizens" for Artick II, Section I 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 of the United States [] natural-born citizl~ns." 916 N.E.2dat 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.1i
For the purposes cf this analysis, this Court considered that President Barack Obama was born in the United States. Therefore, as discussed in Arkeny, he became a citizen at birth and is a natural born citizen. Accordingly,
CONCLUSION
President Barack Obama is eligible as a candidate for the presidential primary election under a.c.G.A. 21-2-5(b).
SO ORDERED, February
3rd,
2012.
'\Jk' t~~ c
~,UvJ~
&
This Court recognizes that the lYOllg Kim Ark case was not deciding the meaning of "'natural born citizen" for the purposes of detennininn presidential qualifications; however, this Court finds the Indiana Court's analysis and reliance on these cases to be persuasive. 10
Docket Number: OSAH-SECSTATECE-121S137-60- MALIHI Counsel for Petitioners: Counsel for Respondent: Van R. Irion Michael Jablonski
Docket Number: OSAH-SECST ATECE-1216218-60- MALIDI Counsel for Petitioners: Counsel for Respondent:
J. Mark
Hatfield
Michael Jablonski
Docket Number: OSAH-SECSTA TECE-1216823-60- MAUHI Counsel for Petitioners: Counsel for Respondent:
J. Mark
Hatfield
Michael Jablonski
FINAL DECISION!
Petitioners filed cancLidatechallenges pursuant to a.c.G.A. 21-2-5(b) contending that Respondent docs not meet the State of Georgia's eligibility requirements for his name to be listed on the 2012 Presidential Preference Primary ballot. Judge Michael Malihi, Administrative Law Judge ("ALJ") for the Offict~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. The Secretary of State formally adopts the initial decision of the ALl into this final decision. Therefore, IT IS HEREBY DECIDED THAT the above-captioned challenges are DENIED. SO DECIDED this ~:~ day of Febmary, 2012.
lflfv-
I Judge Michael Malihi previously consolidated the above-captioned candidate challenges for the pnrpose of issuing his initial decision. Those candid<ltechallenges remain consolidated tor the purpose of issuing this Final Decision.
CERTIFICATE
I, J.
certify Petition
Mark Hatfield,
Attorney
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
Hear.ings
a copy of same in the United States Mail in a properly envelope with sufficient delivery, postage affixed thereto in
and by emailing
by emailing
and by emailing
same to
Judge Malihi
201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820
31502
IN THE' SUPERIOR
FILED IN OfFICE
*
* *
CIVIL ACTION FILE NO. 2012CV211527
lf~~a
-~
V.
BARACK OBAMA,
*
*
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, Carl Swensson, by and through review
and moves the Court for an expedited appellate proceeding or, in the
Presidential Motion,
Petitioner
1.
This action is an appeal of a Final Decision of Georgia Secretary Swensson's Obama, of State Brian P. challenge Kemp denying Petitioner Carl Barack
to the qualifications
of Respondent
as a candidate
election.
F:ILAINTIFF'S EXHIBIT
Page -1-
u c..\\
2.
Pre~sidential Preference
Primary Election
is
3.
O.C.G.A.
21-~:-5(e) guarantees
Petitioner
the right to of
appellate
decision
of the Secretary
State in this matter. 4. Petitioner's significant Respondent, United afpeal involves, among other issues, a law, i.e. whether or not
issue of constitutional
and never a
eligibility United
II,
Section
I, Clause 5 of the
States Constitution.
5.
Unless this COL.rt grants expedited review, or unless of the Secretary this of
Court orders a stay of the Final Decision State and a postponement Primary Election of the Georgia
Presidential
Preference
Respondent
Although
Page -2-
anticipates
that Respondent
would probably
6.
With regard to Petitioner'.s request of this appeal, 6.7 Petitioner for an expedited Superior review
Court Rule
("Motions in emergencies.U)
Upon written notice 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 procedure. The motion shall set forth in detail the necessity for such expedited procedure. 7. In connection with Petitioner's alternative request for a
of the Georgia
Secretary
of State
Presidential to
Preference a.C.G.A.
shall ...the
not itself stay the decision reviewing cause court may Jrder Furth2r,
shown."
a.C.G.A.
5-3-28(b),
applicable
appeals may
to superior
8ourt, provides
in aid of its
jurisdiction
8.
Petitioner submits that, in order that Petitioner of State's Final Decision may secure to which Page -3-
law, and in order that the interpretation and decisively raised by adjudicated, appeal
or, in the al ternat:.ve, the Court should grant a stay of the Final Decision postponement Election of the Georgia Secretary of State herein Preference and a
of the Georgia
Presidential
Primary
currently
WHEREFORE,
that this Court grarlt the relief requested by Petitioner This 21st day of February, 2012. & HATFIELD, P.C.
HATFIELD
201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820
31502
Page -4-
CERTIFICATE
OF SERVICE
I, J.
certify
Mark Hatfield,
Attorney
for Petitioner,
that I have this day served the foregoing Review or, Alternatively,
Michael K. Jablonski Attorney at Law 260 Brighton Road NE Atlanta, Georgia 30309-1523
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 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
CARL SWENSSON, Petitioner, vs. BARACKOBAMA Respondent MOTION Ta DISMISS Respondent moves this Court for an order dismissing the petition as follows: 1. This Court lacks jurisdiction over the subject matter. a.c.G.A. 9-1112(b)(1). 2. Failure of service of process. a.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 submitt,ed, This 27th day of February, 2012. Civil Action File Number 2012 CV 211527
MICHAEL JABLONSKI Georgia State Bar Number 385850 2221-D Peachtree Road NE Atlanta, Georgia 30309 404 -290-2977 michael.jablonski@comcast.net
PLAINTIFF'S EXHIBIT
1/
'0'"
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 mhatfieldcmvvavxcable.com.
:;!
012.
MICHAEL JABLONSKI Georgia State Bar Number 3;85850 2221- D Peachtree Road NE Atlanta, Georgia 30309 404-290-2977 michael.jablonski (a:l comcast: net
CARL SWENSSON, Petitioner, vs. BARACKOBAMA Respondent Civil Action File Number 2012 CV 211527
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.1
Georgia cases: Rhode~; v. MacDonald, 670 F. Supp.2d 1363 (M.D. Ga. 2009), aff'd, 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, 4:2009cv00082, 2009 WL 2163535 (M.D.Ga. July 16, 2008). Federal cases: Allen v. Soetoro, 4:09-cv-00373, 2011 WL 2130589, (D. Ariz. May, 2010); In re: American Grand Jury, 3:09mco0215(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 al, 574 F.Supp.2d 509 (E.D.Pa. 2008), aff'd, 586 F.3rd 234 (3rd Cir. 2009), Cert. denied, 129 S. Ct. 1030 (2009); Berg v. Obama, 656 F. Supp.2d. 10'7(D.D.C. Cir. 2009); Beverly v. Federal Elections Commission, 09-15562 (E.D. Cal., 2008), aff'd 09-15562 (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, 6:08cW)3405, 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 al, 4:2009cv00082, 2009 WL 2163535, (M.D. Ga. July 16,2008); Cook v. Simtech" 8:2009cV01382 (M.D. Fla., 2009); Craig v.
1 See,
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. abama, 2:08cv02754, 2009 WL 532617 (KD. Cal. March 2:12009); Ealey v. Sarah abama, 4:08-mc-00504 (S.D.Tex., 2008); Essek v. abama, oB-379-GFVf (E.D. Ky., 2008); Hamblin v. abama, 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. abama, 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. abama, 2:10-CV-OI075 (C.D. Cal., 2010); Judy v. McCain, 2:08cv01162 (USDC Nev., 2008); Kerchner v. abama, 612 F.3d 204 (D.N.J. 2010), cert. denied, 131 S. Ct. 663 (2010); Liberty Legal Foundation v. DNC, CH-11-1757 (D Ariz., 2011); Mackay v. abama, 2:11-CV-'05458-JP (KD. Pa., 2011), voluntarily dismissed, No. 113862 (USDC Pa., 2011); McLanahan v. abama, 2:11-cv-00374-EFS (D.Was., 2011); Morrow v. Barak Humane abama, 1:08-cV-22345 (S.D. Fla., 2008); Neely v. abama, 2:08-cV-15243 (E.D.MI., 20'08); Patriot's Heart Network v. Soetoro, 1:09-mc-00442RCL (D.D.C., 2009); In Re Paul Andrew Mitchell, 2:08-cv-04083 (E.D. PA, 2008),affd 304 Fed. Appx 113, 2008 WL 5381436 (3rd Cir., 2008), mandamus denied, No. 084443 (3d Cir., 2008); Purpura v. Sebelius, 3:10-CV-04814, 2011 WL 1547768, (D.N.J. Apr. 21,2011); Rhodes v. Gotes, 5:09-cv-00703-XR (W.D.Tex., 2009); Rhodes v. MacDonald, 670 F. SUpp.26. 1363 (M.D. Ga. 2009), offd, 2010 WL 892848 ( 11th Cir. March 15, 2010) cert. denied, 129 S. Ct. 2830 (2009); Robinson v. Bowen, 567 F.SUpp.2d 1144 (N.D.Cal. 2(08); Roy v. Fed. Election, 2:08cvOI519, 2008 WL 4921263, (W.D. Wa. Nov. 14,2008); Stamper v. US, 1:08 CV 2593,2008 WL 4838073 (N.D.OH. 2008); Strunk v. Patterson, 1:08cv04289 (E.D.N.Y., 2008), appeal dismissed No. 085422 (2d Cir. Nov. 14,2008:); Strunk v. U.S. Dept. of State, 693 F.SUpp.2d 112 (D.D.C. Cir. 2010), mandamus denied, 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. abama, 707' 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 3805741, (D.D.C. Aug. 30, 2011); Taitz v. Astrue, 1:11-mC-00158 (D.Haw., 2011); Taitz v. Ruemmier, 1:11CV-01421(D.D.C., 2011); Thomas v. Hosemann, 1:08mco0280 (D. Haw., 2008); Thomas v. Hosemann, 2:08,,,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, 82473-8 (Was. State Supreme Court); Connerat v. Browning, 999 So. 2d 644 (Fla. Dist. Ct. App. 2008); Connerat v. abama, No. 09003103SC (Fla. State Comt); Connerat v. abama, No. 09005522SC (Fla. State Court); Constitution Party v" Lingle, No. 29743, 2008 WL 5125984 (Haw. Dec. 5, 2008); Corbett v. Bowen, No. 30-2008-00114112-CU-FR_CJC, (Cal. Superior Court, 2008); Craig v. Oklahoma, ]\iA-I09808 (Okla. Supreme Court); Donofrio v. Wells, No. AN-I053-08T2 (NJ. Nov. 03, 2008), Cert. denied, 129 S. Ct. 752 (2008); Fitzpatrick v.
An effort to harass the President continues with qualification challenges filed across the country and in Georgia. Challengers ignore procedural and evidentiary requirements because their 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 (20 09) ("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.") Obama, no docket number I:NCState Court); Greenberg v. Brunner, No. 2008cV1024 (Ohio State Court, 2008); III re John McCain's Ineligibility to be on Presidential Primary Ballot in Pa, 944 }1.. 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. St~::teCourt); 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); ]l/rartin 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, 2009 WL 2372096 (Haw. Aug. 3, 2009); Martin v. Bennett, No. 1CC10-1-000969 (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. 10Hoo0605 (Ill. State Court); Schneller v. Cortes, 199 MM 2008 (Pa. Supreme Court, 2009), cert. denied, 129 S. Ct. 2830 (2009); Sorsensen v. Riley, cv-2008-1906 (Ala. State Court, 2008); Spuck v. Sec. of State, 2008 CVl116(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); SuUivan v. Sec. of State, 08CV1076(N.C. State Court, 2008); Sullivan v. Marshall, 08CVS-021393 (N.C. State Court, 2008); Taitz v. Fuddy, 1CCll-1001731 (Haw. State Court); ']'erry v. Handel, 08CV158774S(Superior Court Fulton County, 2008), appeal dismi'ssed, No. S09Do284 (Ga. Supreme Court), reconsideration denied, No. S09A1373; Wrotnowski v. Bysiewicz, SC 18264 (Conn. Supreme Court, 2008).
President Obama was a United States citizen from the moment of his birth in Hawaii. Since he held citizenship from birth, all Constitutional qualifications have been met. Ankeny v. Governor of State of Indiana, 916 N.E.2d 678 (Ind. App., 2009); see,
(9th
basis to question the Presid.ent'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). I. LACK OF SUBJECT MATTER JURISDICTION A. THE STATE OF GEORGIA MAY NOT EXERCISE JURISDICTION OVER A POLITICAL PARTY'S CHOICE OF NAMES TO INCLUDE IN THE PRESIDENTIAL PREFERENCE PRIMARY. The Democratic Party 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 ofthe United States." O.C.G.A. 21-2-191. No one is elected to any office, nor is anyone nominated to run for any office, as a result of the Presidential Preference Primary. Nomimltion 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, 15:30-1(11th 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 primary 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::;primary ballot. The right to associate not only contemplates the ability to exclude but, necessarily, who to include. Apportionment of delegates as a result of preference primary results constitutes an internal party matter. The State of Georgia may not interfere with "the traditionally recognized autonomy ofthe 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 (11th Cir., 1992).
B. THE QUALIFICATIONS CHALLENGE STATUTE DOES NOT APPLY TO THE PRESIDENTIAL PREFERENCE PRIMARY.
a.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." a.c.G.A. 21-2-191. The election code defines "election" as "any general or 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(5).Neither the preference statute nor the definition reference the Presidential Preference Primary. Nothing in the context of a.c.G.A. 212-5 "clearly requires" applicability to the preference primary."
O.C.G.A. 21-2-S applies when a candidate is "certified by the state executive committee of a political paJlty or ... files a notice of candidacy." O.C.G.A. 21-2-s(a). Neither occurred here. (CeJltification of candidates by a party executive committee refers to the qualification procedure in O.c.G.A. 21-2-1S4(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 SUIHMONS 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 a~;: uthorized by O.C.G.A. 9-11-4(d) nor did it attempt a personal service using the methods specified by a.c.G.A. 9-11-4(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 F'OR REVIEW DOES NOT STATE CLAIMS AGAINST THE PRESIDENT The proper party resp ondent when challenging a qualification decision made by the Secretary of State is the ~;I,ecretary State. In order to grant the relief sought by the of petitioner the Secretary of State needs to be before the court. He is not. See, for example, Handel v. Powell, 284 Ga.
SbO
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. [n 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, 546 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.2d 72 (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 Secretary of State must be established before the court can enter any ruling binding a party slllchas the Secretary of State or the ruling is declared null and void. See Estate ofMar,./orie 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 with service of process statute. Williamson v. Basenback, 298 Ga.App. 567, 680 S.E.2d
577 (2009).
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. jabl onski@comcas:.net
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 servi.ce pursuant to O.C.G.A. 9-11-5(e) using the email address mhatfield@J\vayxcable.com. This 27th day of February, 2012.
MICHAEL JABLONSKI Georgia State Bar Number ~;:85850 2221- D Peachtree Road NE Atlanta, Georgia 30309 404-290-2977 michael.ja blonski(cDcomcast.net
IN THE SUPERIOR
* * *
CIVIL ACTION
v.
BARACK OBAMA,
I
'
II MAR 05;-J
. " ..
! FILEtDN
OFFICE
ft!S
.,
* *
PETITIONER'S RESPONSE TO RE:SPONDENT'S MOTION TO DISMISS
Respondent
Now comes Petit.ioner Carl Swensson, undersigned Motion counsel, and responds
to Respondent
Obarna's Motion
to Dismiss
case is one in a series of cases filed across the Respondent. presumably to Respondent's
Respondent including
and evidentiary
beCaUSE! their claims are without merit, based on of a political agenda." Finally, from the
Respondent moment
claims ttlat he "was a United States citizen and that therefore, have been met." "all
Constitutional
(sic; qualifications
A review of
PLAINlhFF'S
EXHI1BIT
J./ .-
Page -1-
I:::.
''1\
reveals
that Respondent's
Obama, has a vested right to be the President An individual seeking to hold the Office
States.
Presidency
is expect:ed and required to comply with the provisions including the eligibility requirements for
in mind, Petitioner
Likewise,
law, Petitioner
raised an administrative
qualifications
Respondent Petitioner's
served with a Notice to Produce, and to bring certain documents The Respondent did not object.
When the time for trial was imminent, lawyer wrote a letter 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 public schedule,
to
had no events
the Respondent
for court and failed to comply with The Respondent thus not for
to Produce.
of evidence
to which Petitioner
misconduct
and considering
Respondent's
total it
thereof,
procedural political
and whose
factual assertions
- which he fails
under Georgia
law in order
to properly whether
Respondent,
citizen,
eligible of the
II of:he
In tJlat regard,
Petitioner
that the
Page -3-
of Article
to
anyone born with dual national allegiance:3 from holding of this nation's military of national
citizenship
It is thus nothing
of the "natural
SUBJECT-M1!~TTER JURISDICTION
Seeking dismisE:al on the basis of a lack of subject-matter jurisdiction Amendment party in thiE: Court, Respondent first argues that First party give the on its
associational
rights of a political
the exclusive
whom to include
Presidential contends
Preference
associational
a name on a primary
(citing Democratic
U.S. v. Wisconsin,
50 U.S. 107, 101 S. Ct. 1010, 67 L. Ed. 2d 82 954 F. 2d 1526 (11th Cir. 1992)), he
also claims that "the reverse the unchecked ballot. right to require however,
is also true" in that the party has certain names on its primary cites no authority for the latter are
Respondent,
proposition.
Moreover,
Page -4-
authority
party's of
a state government or
meet constitutional
eligibilit:y requirements
O.C.G.A. Secretary
21-2-5(b) and
elector,
of State is is gives an
the candidate
O.C.G.A.
21-2-5(e)
unsuccessfully
a candidate's
qualifications by filing a
of State's decision
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 ~n but
21-2-2(5)
not a primary
or special primary
Page -5-
"election"
is used "clearly
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 election in this state to fill any federal, state, county, or municipal office, to any general or special primary to nominate candidate;3 for any such office, and to any federal, state, county, or municipal election or primary for any other purpose whatsoever, unless otherwise provided. Respondent challenge further fails to realize that the qualifications
statute,
().C.G.A.
are designated
of a political
of candidacy,"
see O.C.G.A.
21-2-5(a),
of such conditions
O.C.G.l~.
21-2-5(b)
provides,
any time prior to the election Respondent's certification Petitioner candidacy" political
of such candidate,"
be filing a election.
of hi~; nomination
and "notice of
Page -6-
Election
Code, and one could argue that the list of Presidential Primary :andidates submitted by Respondent's 21-2-193 constituted a political
Preference
to O.C.G.A.
statute dc)es, in fact, apply to the Presidential Primary ,md that this Court does have subj ect-matter herein,
OlIr
SERVICE
SUMMONS
Respondent
Respondent
or a waiver
Co. v. Georqia
Public Service
(2003) is
the Court held that in an of a state agency or other for judicial review
tribunal,
upon the agency was not required, to preserve specifically decision pertinent
is governed
part that "[a] copy of the notice of appeal shall be in the same manner prescribed 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 s'imilar motions, orders, and proceedinqs may be made by the attorney or party filing the notice or paper, in person or by mail, and proof thereof shown by acknowledsrment of the attorney or party served, or by certificate of the attorney, party, or other person perfecting service.
in t:he instant case, service of the Petition upon same to his attorney Petitioner was in
notes in passing,
that even j_f the service by mail were for any reason not proper, C).C.G.A.
considered
5-3-21(b)
states in pertinent
part
a just and
expeditious III.
STATEMENT OF CLAIM AGAINST RESPOND1!:NT fin2llly requests dismissal because "[t]he proper of State
Respondent
of State."
Page -8-
of authority
whatsoever.
Respondent
further contends
lack of personal
jurisdiction
"[n]o summons commands this matter." Beginning legal analysis Petitioner's decision action. O.C.G.A. service with,the
appearance
by the Secretary
Respondent's
is flawed.
21-2-5(e)
Petition
of the Sec,:~etaryof State; it is not an original The only n:!ference to service of the Petition in
21-2-5(ei
after
copy of the entire record ...to the in this statute is "summons" required
court."
5-3-21(b) provides
in pertinent
part
that "[a] copy of the notice of appeal shall be served on all parties ...." Again" nowhere in the statute is "summons" required
or even mentioned. Furthermore, in Doualas As?halt, 263 Ga. App. at 711-712, by mail, with no of the superior
the state agency was served with the petition summons at all. The Court affirmed
the judgment
Page -9-
to dismiss.
The motion
to
of failure to perfect
of State is not a of
in a quasi-judicial
qualifications
Petitioner (at of
and Respondent
in any manner.
was Respondent,
the Secretary
The challenge
Petitioner
by the Secretary
The instant
does therefore
Respondent. The items of relief sought by Petitioner action State, are a reversal of the Final Decision in the instant of
of the Secretary II
"natural
requirement
a removal
of Respondent's
an order adjudging
Page -10-
Respondent comply
in contempt
failure to
with Petitioler's
proceedings; Presidential
Primary Election.
relief be granted b:{ this Court, such would be primarily in the form of an order reversing Secretary of State \~ith direction the Final Decision to the Secretary
of the
of State as to
the appropriate
remedy to be crafted,
that the Court of A})peals or Supreme Court would reverse a superior simply Court's court jud~rrent with direction. The Secretary of State this
does not need to be a party in order to accomplish granting of the requested relief, and none of the
applicable considered
statutes a party.
of State to be named or
Petitioner Handel
citation as the
to
the challenge
to a
filed by an
as in Petitioner's
for judicial
of State ~rerethe
only two
challenge
Petitioner Secretary
however,
Page -11-
party
CONCLUSION For the above and foregoing requests that Respondent's reasons, Petitioner respectfully
Motion to Dismiss be denied. this 2nd day of March, HATFIELD & HATFIELD, 2012. P.C.
Respectfully
submitted,
201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820
3~.502
Page -12-
CERTIFICATE
OF SERVICE
Petitioner's
Honorable Brian P. Kemp Secretary of State State of Georgia 214 State Capitol Atlanta, Georgia 30334 by placing addressed a copy oj~ same in the United States Mail in a properly envelope ~lith sufficient postage affixed thereto in
and by emailing
and by emailing
to Secretary
& HATFIELD,
P.C.
"\
J~Mark Hatfie Attlorney for P~t Georgia Bar No. 201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820
31502
Mark Hatfield
From: Sent: To: Cc: Subject: Mark Hatfield Umarkhatfield@yahoo.com] Friday, March 02, 20126:37 AM elizabeth.baum@fultoncountyga.gov michael.jablonski@c:omcast.net;vrusso@sos.ga.gov
** Court Filing ** Sw:msson v. Obama I Fulton Superior CAFN: 2012CV211527
Attachments: swenssonc1res.pdf
Please see attached Petitioner's Response to 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.
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: Thil:i e-mail transmission and the attachments accompanying it contain information from the law I)ffice of Hatfield & Hatfield, P.C. which is protected by the attorney-client communication pr ivilege or the work product privilege. The information is intended only for the use of the irlltended recipient. If you are not the intended recipient, be aware that any disclosure, copying, dist ribution, 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 copies of the transmission.
J. Mark
3/2/2012
Mark Hatfield
From~
Sent: To:
Baum, Elizabeth [Elizabeth.Baum@fultoncountyga.gov] Friday, March 02, 20~128:30 AM mhatfield@wayxcable.com; codyjudy@hotmail.com; michael.jablonski@comcast.net; Vincent; David Farrar; van@libertylegalfoundation.org; cale@sos.ga.gov White, Connie RE: Farrar, et al. v. Obama, et a!.: 2012CV211398; Welden v. Obama: 2012CV211537, v. Obama: 2012CV211527, Powell v. Obama: 2012CV211528 Swensson Russo,
Cc:
Subject:
Importance: High
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 \-villbe 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
From: Baum, Elizabeth Sent: Thursday, March 01, 2012 10:32 AM To: 'mhatfield@wayxcable.com'; codyjudy@hotmail.com; michael.jablonski@comcast.net; Russo, Vincent; David Farrar; van@libertyle:galfoundation.org; cale@sos.ga.gov Subject: RE: Farrar, et al. v. Obama, et al.: 2012CV211398; Welden v. Obama: 2012CV211537, Swensson v. Obama: 2012CV21152/, Powell v. Obama: 2012CV211528
Importance: High In light of these circumstances, the Court will consider a copy of your response submitted by email or fax. Please submit it 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
Thank you,
Elizabeth Baum
Staff Attorney to the Honorable Cynthia D. Wright Chief Judge, Superior Court of Fulton County 1:36 Pryor Street, SW, Suite C9~i!7 Atlanta, GA 30303 Phone: (404) 613-4<187 Fax: (404) 893-6610 el zabeth. ba um(a!flll tonco IIn ty ga. g'o\'
J. Mark Hatfield [mailto:mha!tfield@wavxcable.com] Thursday, March 01, 2012 10:25 AM To: Baum, Elizabeth; codviudy@ho'imail.com; michael.iablonski@comcast.net; Russo, Vincent; David Farrar; van@libertvleqalfoundation.org; cal'I~@sos.ga .qOV Subject: Re: Farrar, et al. v. Obama, et al.: 2012CV211398; Welden v. Obama: 2012CV211537, Swensson v. Obama: 2012CV211527, Powell v. Obama: 2012CV211528
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 Atlanta 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 responses to UPS in time for overnight delivery. Thus, I would respectfully reque~;:tthat 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 consideration of this request. J. Mark Hatfield "Sent from my Verizon \Vireless BlackBerry" From: "Baum, Elizabeth" <Elizabeth.Baum@fultoncountyga.gov> Date: Thu, 1 Mar 201209:31 :37 -0500 To: codvi udv@,hotmail.com<codlyiudy(iV,hotmail.com>; michael. iab lonski(mcomcast.net<Jnichael. iablonski(cikomcast.net>; Russo, Vincent<vrussormsos.ga. gOY>;David Farrar<david.is.farrar(a;gmail.com>; m hatfi e ld(a)wayxcab Ie.com <mhal:tleld(Zv,wayxcab Ie.com>; van@libefty legalloundation.org< van(cl)libertvlegalfo undation.org>; cale(c~sos.ga. gov<cale(a;sos. ga. go v> Subject: Farrar, et al. v. Obama, I~tal.: 2012CV211398; Welden v. Obama: 2012CV211537, Swensson v. Obama: 20l2CV2l1527, Powe:l1v. 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, Fridav, 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 1036 Pryor Street, SW, Suite C9~n Atlanta, GA 03003003 Phone: (404) 6103-4187 Fax: (404) 8903-6610 elizabeth. ba um(atfultoneo un tyga. gov
3/2/2012
Michael Jablonski
Attorney-at-law
260 Brighton Road, NE Atlanta, Georgia 30309 404.290.2977 815.846.0719 (fax) michael.jabl onski@comcast.net
Hon. Brian P. Kemp Georgia Secretary of Statl:~ 214 State Capitol Atlanta, Georgia 30334 via email to Vincent R. Russo Ir .. Esq.
(vrusso@sos.gag0\1
Re: Dear Secretary Kemp: This is to advise you 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 proc(~edings around the country, all of which have concluded that they were baseless and, in some instances - including in the State of Georgia - that those bringing the challenges ha'le engaged in sanctionable abuse of our legal process. Nonetheless, the Administrative Law Judge has exercised no control whatsoever over this proceeding, and i'l threatens to degenerate into a pure forum for political posturing to the detriment of the reputation of the State and your Office. Rather than bring this matter to a rapid conclusion, the ALJ has insisted on agreeing to a day of hearings, and on the full p~lrticipation 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, 3tld 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
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It is well established that there is no legitimate issue here--a conclusion validated time and again by courts around the country. The State of Hawaii produced official records documenting birth there; the President made documents available to the general public by placing them on liliswebsite. "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 we:re to 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 anotller 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 United 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 the 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 #10641 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 confidenti~ll records on November 9, 2011. Taitz v. Fuddy, CA No. 11-11731-08 RAN. In Rhodes v. McDonald, 670 F. Supp. 2d 1363, 1365 (US DC MD GA, 2009), Judge Clay Land wrote thh: of plaintiff's attorney:
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When a lawyerfiles 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 herprivilege 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 ag,mda. She seeks to use the Court's power to compel discovery in her efforts force the President to produce a 'birth
670 F.
All issues were presented to your hearing officer-the clear-cut decision to be on the merits, and the flagrantly unethical and unprofessional conduct of counsel-and he has allowed the plaintiffs' counsel to run amok. He has not even addressed these issues--choosing to ignore them. Perhaps he is aware that there is no credible response; perhaps he appreciates that the very demand made ofms office-that it address constitutional issues-is by law not within its authority. See, for example, Flint River Mills v. Henry, 234 Ga. 38S, 216 S.E.2d 895 (1975); Ga. Compo R. & Regs. r. 616-1-2.22(3). The Secretary of State should withdraw the hearing request as being improvidently issued. A re ferring agency may withdraw the request at any time. Ga. Compo R. & Regs. r. 616-1 .. -.17(1). Indeed, regardless of the collapse of proceedings 2 before the ALl, the original hearing request was defective as a matter oflaw. Terry v. Handel, 08cv158774S (Superior Court Fulton County, 2008), appeal dismissed, No. S09D0284 (Ga. Supreme Court), reconsideration denied, No. S09A1373. ("The Secretary of State of Georg ia is not given any authority that is discretionary nor any that is mandatory to refuse to allow someone to be listed as a candidate for President by a political party because she believes that the candidate might not be qualified.") Similarly, no law gives the Secretary of State authority to determine the qualifications of someone named by a political party to be on the Presidential Preference Primary ballot. Your duty is determined by the statutory requirement that the Executive Committee of a political party name presidential preference primary candidates. a.C.G.A. 21-2-193. Consequently, the attempt to hold hearings on qualifications which you may not enforce is ultra vires. We await your takillg the requested action, and as we do so, we will, of course, suspend further participatio n in these proceedings, including the hearing scheduled for January 26.
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MICHAEL JABLONSKI
cc:
Orly Taitz, Esq., (orly.taitz@gmail.com) Mark Hatfield, Esq. (mhatfield@wayxcable.com) Vincent R. Rus:!;o Jr., Esq. (vrusso@sos.ga.gov) Stefan Ritter, Esq. (sritter@law.ga.gov) Ann Brumbaugh, Esq. (abmmbaugh@law.ga.gov) Darcy Coty, Es(ll. (darcy.coty@usdoj.gov) Andrew B. Flakl~,Esq. (andrew.flake@agg.com)
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