Docket Number:

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SUPREME COURT OF GEORGIA

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DAVID P. WELDEN Petitioner v. BARACK OBAMA Respondent

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APPLICATION FOR REVIEW From the Superior Court of Georgia for the County of Fulton, Docket number 2012CV211537, Reviewing the decision of the Georgia Office of State Administrative Hearings Docket number 1215137-60
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Van R. Irion TN Bar No. 024519 Liberty Legal Foundation 9040 Executive Park Dr., Ste. 200 Knoxville, TN 37923 (423) 208-9953 van@libertylegalfoundation.org Attorney for Petitioner 1

TABLE OF CONTENTS Page Table of Contents Table of Authorities Enumeration of Errors Statement of Jurisdiction Judgment Being Appealed Background Memorandum of Law I. II. III. IV. Establishment of Precedent is Desirable Reversible Error Exists Superior Court Erred in Finding that 21-2-5 Doesnt Apply to Presidential Primaries Superior Court Erred in Finding Georgia Election Code Violates U.S. Constitution Superior Court Erred in Finding Service Not Perfected Secretary of State Erred in Finding Natural Born Citizen Under Article II of the U.S. Constitution Includes All Persons Born on U.S. Soil Without Regard to the Citizenship of Their Parents 2 3-4 5 6 6 6 8 8 8 8 11

V. VI.

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Conclusion Certificate of Service

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TABLE OF AUTHORITIES Cases Arkeny v. Governor, 916 N.E.2d 678 (Ind.Ct.App. 2009) Asphalt Co. v. Georgia Public Service Commission, 263 Ga.App. 711 (2003) Belluso v. Poythress, 485 F.Supp. 904 (N.D.Ga. 1980) Democratic Party of U.S. v. Wisconsin, 450 U.S. 107 (1981) Duke v. Cleland, 954 F.2d 1526 (11th Cir. 1992) General Motors Acceptance Corp. v. United States, 286 U.S. 49 (1932) Hendersons Tobacco, 78 U.S. 652 (1870) Marbury v. Madison, 5 U.S. 137 (1805) Minor v. Happersett, 88 U.S. 162 (1874) Morton v. Mancari, 417 U.S. 535 (1974) United States v. Borden Co., 308 U.S. 188 (1939) United States v. Tynen, 78 U.S. 88 (1870) Page 18

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11, 12

11, 12

11, 12 18 17 17 18, 19 17 17

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TABLE OF AUTHORITIES Cases Wong Kim Ark, 169 U.S. 649 (1898). Wood v. United States, 41 U.S. 342 (1842) Statutes OCGA 5-3-21 OCGA 5-6-32 OCGA 5-6-35 OCGA 21-2-5 OCGA 21-2-15 OCGA 21-2-193 Constitutions Georgia Constitution, Art. VI, VI, 1 U.S. Constitution, Art. II U.S. Constitution, 14th Amd. U.S. Constitution, 22nd Amd. (Cont.) Page 19

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15, 16 16 5-7 Passim 9 10

5 5-6, 17-19 17-19 13

ENUMERATION OF ERRORS Pursuant to OCGA 5-6-35 the Petitioner respectfully asserts that the following reversible errors are established by the record in the instant case: 1) The Superior Court Erred in finding that OCGA 21-2-5 is not

applicable to Georgia Presidential primaries. 2) The Superior Court erred in finding that Georgia Election Code

violates the Democratic Partys right to freely associate, as protected by the First Amendment to the U.S. Constitution. 3) The Superior Court Erred in finding that service was not perfected in

the instant case. Alternatively, that the Superior Court erred in preemptively dismissing the instant case based upon failure of Petitioners first attempt at service of process. 4) The Secretary of State erred in finding that the term natural born

citizen, as used in Article II of the U.S. Constitution, includes all persons born on U.S. soil without regard to the citizenship of the parents of the person born on U.S. soil.

STATEMENT OF JURISDICTION Article VI, VI, II of the Georgia Constitution states: The Supreme Court shall be a court of review and shall exercise exclusive appellate jurisdiction in the following cases:...(2) All cases of election contest. The instant case is an election contest arising from OSGA 21-2-5. Therefore this Court has exclusive jurisdiction upon review of the Superior Courts final judgment.

JUDGMENT BEING APPEALED

Pursuant to OCGA 5-6-35 copies of the judgment being appealed and copies of Respondents motion to dismiss and Petitioners opposition to said motion are attached as exhibits to this petition.

BACKGROUND Petitioners challenge has consistently alleged only one uncontested fact and one legal assertion: that the Respondents father was not a U.S. citizen and that pursuant to U.S. Supreme Court precedent a person must have two U.S. citizen parents to be a natural born citizen under Article II of the U.S. Constitution. On November 1, 2011, the Democratic Party of Georgia notified the Georgia Secretary of State that the only candidate that should appear on the Democratic 6

Presidential primary ballot would be Barack Obama. Pursuant to O.C.G.A. 21-2-5 the Petitioner filed a timely challenge with the Secretary of State. The challenge was referred by the Secretary of State to the Office of State Administrative Hearings (hereinafter OSAH). An evidentiary hearing was held on January 26, 2012. On February 3 the OSAH entered a preliminary judgment holding that any person born on U.S. soil is a natural born citizen as that term is use in Article II of the U.S. Constitution, regardless of the citizenship of the persons parents. See Ex. D at 10. On February 7 the Georgia Secretary of State adopted the ruling of the OSAH. See Ex. E. The Petitioner filed a timely appeal with the Superior Court pursuant to OCGA 21-2-5 on February 10. On February 27 the Respondent filed a motion to dismiss. See Ex. B. On March 1 the Superior Court notified the Petitioner that the Court was shortening the time to respond, giving the Petitioner less than 24 hours to file an opposition. On March 2 the Superior Court granted the Respondents motion to dismiss. See Ex. A. However, the Superior Courts grounds for dismissal were different from those found by the Secretary. Compare Ex. A with Ex. D & E. The Superior Court held that the Secretary of States application of Georgia Election Code 21-2-5 to the Presidential Primary was an error of law, and that said application violates the Democratic Partys Constitutional right to associate. See Ex. A. 7

MEMORANDUM OF LAW I. Establishment of Precedent is Desirable

Pursuant to OCGA 5-6-35 an application for leave to appeal a final judgment shall be granted when the establishment of a precedent is desirable. In the instant case the Superior Court disagreed with the OSAH and the Secretary of State regarding the applicability of OCGA 21-2-5 to Georgia Presidential primaries. This disagreement between OSAH, the Secretary of State, and the Superior Court regarding applicability and interpretation of Georgia election code warrants review by this Court. II. Reversible Error Exists

OCGA 5-6-35 also establishes that leave to appeal shall be granted when reversible error appears to exist. For the reasons set forth below, reversible error is apparent in the instant case. III. Superior Court Erred in Finding that 21-2-5 Doesnt Apply to Presidential Primaries

OCGA 21-2-5(a) states: Every candidate for federal and state officeshall meet the constitutional and statutory qualifications for holding the office being sought. The same chapter states 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 candidates for any such office, and to any federal, state, county, or municipal election or primary for any other purpose whatsoever, unless otherwise provided. O.C.G.A. 21-2-15 (emphasis added). The Superior Courts holding that this Code doesnt apply to the Presidential primary runs contrary to the plain language of the code. The Superior Courts holding requires an interpretation of law that leaves Title 21 internally conflicting. The Superior Court reads 21-2-5(a) to mean Every candidate for federal and state office shall meet the constitutional and statutory qualifications for holding the office being sought, except candidates for President. The code doesnt make an exception for Presidential candidates. The Georgia legislature certainly could have included such an exception if they had intended such an exception. They didnt include such an exception because they didnt intend one. The Superior Courts argument also rests upon an assumption that 21-25(a) addresses elections and not candidates. However, 21-2-5(a) doesnt contain the word election. It does contain the word candidate. More specifically, it applies to Every candidate 21-2-5(a)(emphasis added). Since the explicit prevails over the implicit, the Every candidate language in 21-2-

5(a) negates the Superior Courts assumption that that section implicitly exempts a special category of candidates. For the Superior Courts holding to make sense the Presidential primary would need to be administered without candidates. However, Georgia Election code specifically requires the political parties to submit to the Secretary of State a list of the names of the candidates of such party to appear on the presidential preference primary ballot. 21-2-193(emphasis added). The list of names

submitted by the parties to the Secretary of State are candidates, in the Presidential primary. Id. 21-2-5(a) applies to Every candidate for federal office, and requires them to be constitutionally qualified to hold such office. Id. Therefore, 21-2-5(a) applies to the list of candidates submitted by political parties under 21-2-193. Petitioners clear-meaning reading of Georgia Election code leaves the code in harmony, whereas the Superior Courts holding leaves the word candidate meaning one thing in one section and meaning something different in another section. According to the Superior Court in one section the Respondent is a candidate and in the other section he is not a candidate. Finally, the Superior Courts holding is grounded upon a conclusion of law that was fully briefed and rejected by the OSAH. Therefore, this issue requires review by this Court. 10

The Superior Courts holding that 21-2-5 does not apply to Presidential primaries represents reversible error. Therefore this Court should grant the instant petition.

IV.

Superior Court Erred in Finding Georgia Election Code Violates U.S. Constitution

The Superior Courts holding that application of 21-2-5 to Presidential primaries would violate the political parties right to freely associate is not supported by any precedent and is an error of law. The right to associate has been interpreted to allow private groups to determine who will and will not be members of the group. Democratic Party of U.S. v. Wisconsin, 450 U.S. 107 (1981); Duke v. Cleland, 954 F.2d 1526 (11th Cir. 1992); Belluso v. Poythress, 485 F.Supp. 904 (N.D.Ga. 1980). However, no court has extended this right beyond the confines of the private organization. A party can determine who it will include as members. That party can also determine which of those members will be its candidates. However, nothing in the Constitution or precedent forces a State to accept a partys selection of candidates for appearance on a ballot.1

While right-to-associate precedent has negated some states restrictive laws for recognizing political parties, these precedent have not forced states to accept all candidates for appearance on ballots without any screening of such candidates.
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Several right-to-associate cases did involve candidates exclusion from ballots. See Democratic Party of U.S. v. Wisconsin, 450 U.S. 107 (1981); Duke v. Cleland, 954 F.2d 1526 (11th Cir. 1992); Belluso v. Poythress, 485 F.Supp. 904 (N.D.Ga. 1980). However, all of these cases are exactly opposite to the present situation. All involved political parties excluding a candidate because the party didnt want to be associated with the candidate. In every case cited the candidate sued the party and/or state for inclusion on the ballot after being excluded. There are no cases where a political partys decision to support a candidate created a Constitutional right to force a State to accept that decision. Such precedent would place the political partys authority above that of the state. This is why no such precedent exists. It is true that some states lack election codes authorizing any state officials to screen candidate selections from political parties. In these states political parties have essentially unfettered authority to determine which candidates appear on ballots. However, these instances represent decisions of the states to not screen candidates. It is the states right to decide how to administer its elections. The fact that some states have decided to not protect their citizens from unqualified candidates does not mean that other states dont have the right to screen candidates. It simply means that some states have left the screening to the political parties. 12

Georgia has determined that it is in the best interest of its citizens to screen candidates prior to placement on the ballot. See 21-2-5. Right-to-associate precedent does not prevent Georgia from protecting its citizens in this manner. The Democratic Party of Georgias Constitutional right to determine its membership coexists with Georgias right to govern Georgia. Georgia code does not interfere with the autonomy of the political partys internal decision making because it does nothing to prohibit the parties from submitting any name to the Secretary of State for inclusion in the Presidential primary. The political parties are free to submit Saddam Hussein or Mickey Mouse as their next Presidential candidate. However, Georgia is not required to accept such submissions and waste taxpayer money on ballots for such candidates. After the Superior Courts holding, the political parties could choose to list former Presidents George Bush and Bill Clinton as candidates for the Presidential primary, despite the fact that both President Bush and President Clinton are disqualified to run for that office again by the 22 nd Amendment to the U.S. Constitution. Upon such listing the State of Georgia would have no choice but to place these candidates names on its ballots. This result demonstrates the error of the Superior Courts holding. Contrary to the Superior Courts holding, the political parties simply do not have unfettered dictatorial authority over the state of Georgia. 13

Georgia code does not prevent the political parties from submitting any name. Instead the code simply determines what the State does with a partys list of candidates after the party has forwarded its list to the State. See O.C.G.A. 21-2 et seq. This code does nothing to prevent any political party from excluding, or including, any person they choose to exclude or include. Nor does it prevent a party from choosing candidates to submit, in its sole discretion. Georgias code simply exercises the States right to administer elections in a manner that best serves the citizens of the State. In the instant case Georgias Election code does nothing to infringe on the Democratic Party of Georgias right of association because the Party can and did include the Respondent in its organization. The Party can and did include the Respondent in the Partys list of candidates. The Partys rights, however, end there. Its rights cannot force the State to place the Respondents name on a ballot after the State determines that the Respondent is obviously not qualified to hold the office sought. 21-2-5. The rights of the Party and of the State simply do not conflict. The Superior Courts holding logically requires a conclusion that no state can preclude any candidate from any primary ballot for any reason without violating a political partys right to freely associate. Since many candidates have

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been disqualified from primary ballots for lack of qualification to hold the office sought, we can safely conclude that the Superior Courts holding is an error of law.

V.

Superior Court Erred in Finding Service Not Perfected

As alternative grounds for dismissal the Superior Court found that Petitioners have failed entirely to perfect personal service upon the Respondent(s) as required by O.C.G.A. 21-2-5(e) and O.C.G.A. 9-11-4. This Ruling runs contrary to clear binding precedent. In 2003 the Georgia Court of Appeals established that when petitioning a Superior Court for review of a Georgia state administrative decision, service by mail of the petition, without a case number or summons, upon the parties below and the administrative agency is sufficient to establish jurisdiction. Douglas Asphalt Co. v. Georgia Public Service Commission, 263 Ga.App. 711 (2003). In Douglas the petition for review, alone, was served upon the parties and agency contemporaneously with the filing of said petition. Id. at 711-12. Therefore, the petition did not yet have a case number assigned by the clerk or a summons issued. Yet the Appellate Court established that jurisdiction was established and service was proper. Id. The Douglas Court also noted that appeals from an agency decision are governed by OCGA 5-3-21, which provides in pertinent part that [a] copy of the

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notice of appeal shall be served on all parties in the same manner prescribed by Code Section 5-6-32. OCGA 5-6-32(a), states in relevant part: Whenever under this article service or 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 hereundermay be made by the attorney or party filing the notice or paper, in person or by mail, and proof thereof shown by acknowledgement of the attorney or party served, or by certificate of the attorney, party, or other person perfecting service. In the instant case both the Respondents attorney and the Secretary of State were served by mail with copies of the Petition filed in the Superior Court. Therefore, the Superior Courts alternate grounds for dismissal constitutes reversible error of law. In addition, even if service were considered improper for any reason, OCGA 5-3-21(b) states in relevant part that: [f]ailure to perfect service on any party shall not work dismissal, but the superior court shall grant continuances and enter such other orders as may be necessary to permit a just and expeditions determination of the appeal. Again, the Superior Courts alternate grounds for dismissal constitutes reversible error of law.

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VI.

Secretary of State Erred in Finding Natural Born Citizen Under Article II of the U.S. Constitution Includes All Persons Born on U.S. Soil Without Regard to the Citizenship of Their Parents 2

The Secretary of States decision concludes that any person born within the United States, regardless of the citizenship or legal status of their parents, is a natural born citizen under Article II of the United States Constitution. This conclusion runs contrary to common sense, violates venerable rules of Constitutional Construction followed by the U.S. Supreme Court since its inception, and violates the explicit holding of the Supreme Court case relied upon by the Secretary. The early Supreme Court established the relevant rule of Constitutional construction in Marbury v. Madison: It cannot be presumed that any clause in the Constitution is intended to be without effect; and therefore such a construction is inadmissible. 5 U.S. 137, 174 (1805). This rule is still in effect and a similar rule is used for statutory construction: When there are two acts upon the same subject, the rule is to give effect to both if possibleThe intention of the legislature to repeal must be clear and manifest. United States v. Borden Co., 308 U.S. 188, 198 (1939). See also, Morton v. Mancari, 417 U.S. 535, 551 (1974); United States v. Tynen, 78 U.S. 88 (1870); Hendersons Tobacco, 78 U.S. 652 657 (1870); General

This issue will be more fully briefed by the Petitioner upon this Courts grant of the instant petition. 17

Motors Acceptance Corp. v. United States, 286 U.S. 49, 61 (1932); Wood v. United States, 41 U.S. 342, 362-63 (1842). Had the drafters of the Constitution intended all people born in the U.S. to be considered natural born citizens, the 14th Amendment would not have been necessary. Had the drafters of the 14th Amendment intended that Amendment to alter the Article II definition of natural born citizen, they would have clearly stated so. Yet the term natural born citizen is not found anywhere within the 14 th Amendment. The Amendment also makes no reference to Article II. Yet the Secretary of States ruling in the instant case leaves Article IIs natural born citizen clause with no independent meaning separate from the meaning of citizen under the 14th Amendment. Citizen simply does not have the same legal meaning as the term natural born citizen. Article II uses the term natural born citizen in order to distinguish this type of citizen from other citizens. Yet the Secretarys holding completely negates this distinction. Therefore, the Secretarys holding violates venerable rules of Constitutional construction. Marbury, 5 U.S. at 174. The Secretarys conclusion compounds this error by ignoring a precedential holding from the U.S. Supreme Court in favor of dicta from a later Supreme Court case. The United States Supreme Court defined the term natural born citizen in Minor v. Happersett. 88 U.S. 162, 167 (1874). The Courts definition of natural 18

born citizen in Minor was necessary for that Court to reach its holding, and is therefore binding precedent. In order to reach its holding, the Minor Court first had to determine whether Mrs. Minor was a citizen. It explicitly stated as much and then made the determination by showing that she was a natural born citizen: For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. Id. at 167. Because both of Mrs. Minors parents were U.S. citizens at the time she was born, and she was born in the U.S., she was a natural born citizen. Id. Because all natural born citizens are also within the broader category citizen, Mrs. Minor was a citizen. This binding precedent definition of natural born citizen was dismissed by the Secretary in favor of dicta in a later Supreme Court case. This is an error of law. The Secretary also reads the words natural born into the very explicit holding of the Supreme Courts Wong Kim Ark decision. 169 U.S. 649 (1898). Yet neither the 14th Amendment nor the holding of Wong Kim Ark include the term natural born. The Wong Kim Ark court was determining the meaning of the broader term citizen under the 14th Amendment. Id. at 705. Its holding was explicitly identified as its holding. Id. Its holding was fact-specific. Id. Its holding neither mentioned Article II nor the term natural born. Id.

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This issue was presented at length to the OSAH at oral arguments and in written submissions, yet the Secretary of State chose to completely ignore this issue in its decision. Instead the Secretary of States decision relies upon a non-binding opinion from an Indiana State Appellate Court to support its conclusion. See Arkeny v. Governor, 916 N.E.2d 678 (Ind. Ct. App. 2009). The Indiana opinion relied upon was litigated by pro-se citizens of Indiana against the Governor of that state. Id. The Indiana court reached its holding via an issue that didnt require interpretation of the U.S. Constitution, yet that court then proceeded to construe the U.S. Constitution as an independent means of reaching its holding. Id. at 684-85. The Indiana courts decision to construe the U.S. Constitution without need to do so also represents yet another violation of venerable rules of construction and judicial restraint doctrine. The Secretarys reliance upon the Indiana courts opinion, rather than follow a precedential holding of the U.S. Supreme Court, demonstrates the Secretarys error of law on this issue.

CONCLUSION For the reasons set forth herein, the Petitioner respectfully requests that this Court grant this Petition for Review.

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Respectfully submitted this 7th day of March, 2012.

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Van R. Irion TN Bar No. 024519 Liberty Legal Foundation 9040 Executive Park Dr., Ste. 200 Knoxville, TN 37923 (423) 208-9953 van@libertylegalfoundation.org Attorney for Petitioner CERTIFICATE OF SERVICE Pursuant to this Courts Rule 14 I certify that I have served the opposing parties attorney and the Georgia Secretary of State in this matter with a copy of Petitioners Petition for Review by sending a copy via first class U.S. mail to attorney Michael Jablonski at 260 Brighton Rd. NE, Atlanta, GA 30309; and by sending a copy via first class U.S. mail to attorney Vincent Russo, Jr., at 214 State Capitol Atlanta, GA. Copies were also sent via e-mail addressed to: Michael Jablonski Michael.jablonski@comcast.net; and Vincent Russo vrusso@sos.ga.gov. This the 7th day of March, 2012.

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Van R. Irion TN Bar No. 024519 Liberty Legal Foundation 9040 Executive Park Dr., Ste. 200 Knoxville, TN 37923 (423) 208-9953 van@libertylegalfoundation.org Attorney for Petitioner 21