Documente Academic
Documente Profesional
Documente Cultură
* * *
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v.
BARACK OBAMA, Respondent
Th
APPLICATION
eF
FOR DISCRETIONARY APPEAL
ds
of
Fr
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.
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CASE NO.
IN THE SUPREME COURT STATE OF GEORGIA CARL SWENSSON, Applicant V. BARACK OBAMA,
* * * *
CASE NO.
Respondent
to O.C.G.A,
Th eF og Bo
APPLICATION FOR DISCRETIONARY Carl Swensson, and respectfully applies
Applicant's Decision
Applicant's Obama,
of
of Georgia
ds
as a candidate
ien
Applicant
attaching
hereto:
Granting
Respondent
BarackObama's
Fr
For Judicial
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APPEAL by and through to this Court for leave to Court of Fulton to Kemp denying Barack of Respondent election. "Order as Exhibit filed by Page -1-
Applicant
in the Superior
2012; as Exhibit
"c"
a copy of Applicant's
Support thereof
to Respondent's
to and accepted
by the Superior
og
PART ONE
Exhibit
eF
Respondent's
Th
STATEMENT
1.
Discretionary 2-5(e)
of
pursuant
Review"
ds
ien
Respondent
Obama,
a presidential
candidate,
of the United
Fr
primary
Bo w. co
of Secretary Preference and Brief in 27, 2012; as Exhibit Motion of State Brian P. Kemp.
"0" a copy of
to the qualifications
States,
m
of Primary "E" a
15,
For Expedited
to Dismiss"
2.
SUPREME
COURT JURISDICTION.
jurisdiction
to entertain
this Application
Constitution Paragraph
constitutionality Preference
21-2-5 as applied
og
pursuant
eF
Th
OF FACTS. on November
STATEMENT
On or before October
of
of the Democratic
Party of Georgia
ds
Democ:ratic Presidential
1, 2011, Georgia
ien
Chairman
Office
Fr
Presidential
Preference
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the eligibility I, Clause 5 of the United The Superior Barack Respondent and filed on March 2, a letter to the Executive Preference Democratic Party to O.C.G.A. Secretary
to Presidential
the construction
Democratic
m
to O.C.G.A. to the 1983 this Court's 31, 2011,
21-2-193,
of State's
Page -3-
Thereafter, Swensson,
pu::suant to O.C.G.A.
2l-2-5(b), Georgia
a resident: of Clayton
County,
w.
States, challenge contended challenge to an "OSAH"). counsel
of Th eF og Bo
of the United States. Applicant of Arti(:le II, Section I, Clause by O.C.G.A.
requirement
21-2-5(b),
Applicant's
administrative
(hereinafter
(hereinafter
on January
Applicant
was present
record, through
cou:lsel, evidence
ds
However,
ien
Respondent certain
to persollally appear
documents
Respondent
failed to appear
Fr
Likewise,
Responden:'s
attorney
co m
Applicant eligible to the eligibility 5 of the United into the pertaining 26, 2012.
timely filed
to the
Page -4-
No evidence
or test:Lmony whatsoever
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
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
of T
he F
election. ~las reported the initial 2012, pursuant Review"
of the United
primary
Decision
Subsequently
ds
adopting
Applicant's
challenqe.
151
ien
On February
Applicant
timely
Fr
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was introduced at trial. into the The failure of to appear for trial on January 26, by a January as demonstrated attorney to Georgia (Exhibit "F"). that Respondent's Obama, was not a Pursuant
21-2-5(b),
to the Secretary
of State.
to O.C.G.A.
21-2-
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
For Expedi t(;d Review or, Al ternati vely, For Stay of of Secretary of State and For Postponement Primary Election" of
Presidential
Preference
og
thereafter
On February
Respondent
eF
"Motion to Dismiss"
subject matter;
that: there was a failure of service of process; failed to state a claim upon which
Th
fOJ~ Applicant
of
ds
March 2, 2()12 at 9:30 a.m., to do so (Exhibit "E," pp. Counsel submitted to the Court,
ien
by the aforesaid
Motion
to Dismiss"
acknowledged
receip1: of same in an email sent at 8:30 a.m. on the (Exhibit "E," p. 15). Just over two and
Fr
morning
of March 2, 2012
Bo w. co
(Exhibit "C") served a in which for Respondent to respond to Respondent's "Response 14), and the Court
to Respondent's
m
22, 2012, a over the
Page -6-
one-half
"Order Granting
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to Dismiss" that O.C.G.A. to the Preference O.C.G.A.
2-5 does not apply ~_n the context of a challenge qualifications Primary. 2. The Superior of a candidate
gB
Preference
in the Presidential
unconstitutional of a candidate 3.
as applied
Fo
in the Presidential
The Superior
failed to perfect
he
Applicant's service.
4.
Final Decision
of T
The Super~or
of the Secretary
ien ds
of the burden
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
Fr
21-
21-2-5
Page -7-
Respondent's
mother
was a citizen
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"
that Respondent's
would note at the outset that this Court's Rule the :3tandard for granting discretionary appeals,
in pertinent
Th
eF
og
Additionally,
appeal a final judgrlent [pursuant to] O.C.G.A. granted," among othE!r instances,
desirable."
In the instant
of
to exist" or when"
:t]he establishment
Court, as well as tlle ALJ and the Secretary number of reversiblE! errors.
ds
ien
significant
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pursuant to despite States citizen
of a precedent
contenders,
Fr
m
the fact at the the Superior
Page -8-
candidacies,
the establishment
and desirable.
1.
2-5 does not apply :in the context of a challenge qualifications Primary.
The Superior qualifications Presidential
chal.enge Preference
statute, Primary,
gB
Respondent inasmuch as
as the Presidential
delegates,
Fo
general requires" 21-2-15
but does not result in the candidate. The Court for the
or elect::.onof a presidential
he
of T
Code.
In this connection,
21-2-2(5)
or spE!cial primary
ien ds
is used "clearly
or special primary. The Superior Court and Respondent overlooked, however, the
provisions
of O.C.G.A.
Fr
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,
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Preference
Preference contended of "election" or special elections, in which
m
found in but
of a precedent
of a primary
Page -9-
Also,
the qualifications
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O.C.G.A.
alsc) argued
Fo
2l-2-5(a:,
he
of T
may be made "at any time prior to the election candidate," and ReSI)ondent's political
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statute, O.C.G.A.
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.
of "any
type of election.
contestants
designated
of such conditions
ien ds
election. "notice
Addition2llly, Applicant
Georgia
Election
Code, and one could argue that the list of submitted by 21-2-193
Presidential
Respondent's constituted
to O.C.G.A.
Fr
i1: is apparent
statute does, in fact, apply to the Presidential Primary; that the Superior Court did properly Petition;
subject-matter Superior 2.
jurifldiction of Applicant's
unconstitutional of a candidate
as applied
in the Presidential
(and Fourteenth)
he F
Amendment
political
whom to include
of T
in which
(citing Democratic
ds
reverse
is also trUE!" in that the party has the unchecked certain names on its primary ballot.
ien
to require
however,
cited no allthority for the latter proposition. CClurt essentially adopted Respondent's of State may not
The Superior
Fr
argument,
og Bo w. co m
that the Georgia qualifications have error in holding otherwise. O.C.G.A.
21-2-5
Preference
for lack of
argument
that
associational
Preference
Wisconsin,
Respondent,
Page -11-
interfere
determination
candidates, presidential
authority
cited by the Superic)r Court or by Respondent the conclusion associational require that a political right~; deprive party's
eligibility
state ballot.
Fo
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21-2-5(b)
a state government
he
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of its constitutional or statutory and Georgia and the Secretary whether O.C.G.A.
is limited to examining
of its ability to
of T
21-2-5(e)
a candidate's of State's
by filing ~lpetition
Court of Fulton
ien ds
Given the ~;tate' right to run its own elections, s to the associational rights of the the Superior Court of
subject-matter Superior
over Applicant's
otherwise.
Fr
m
the candidate gives Page -12-
3.
The Superior
failed to perfect
sll~rvice and
Respondent(s) 9-11-4.
as recIuired by O.C.G.A.
he F
of T
In DouGlas Asphalt,
of the petition
ds
to preserve
the jurisdiction
specifically
ien
decision
is governec! by O.C.G.A.
pertinent
Fr
og Bo w. co m
that Applicant Applicant's action service.
21-2-5,
to perfect
service upon
21-2-5(e)
and O.C.G.A.
believed
Applicant's
case
to
Respondent
Co. v. GeorGia
(2003) is
the Court held that in an of a state agency or other for judicial review
decision
of the court.
shall be
by Code
Page -13-
Section
5-6-32."
O,C.G.A.
5-6-32(a),
in turn, provides
pertinent
part that
in 1:he instant
Fo
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.
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upon that even if the service valid, O.C.G.A. to perfect
Obama by mailing
Applicant
of T
he
21(b) states in pert:inent part that "[f]ailure on any party shall flot work dismissal,
ien ds
shall grant continu2lnces and enter such other orders as may be to permit Dismissal a just and expeditious determination of the
necessary appeal."
based upon the issue of service was therefore Court erred to the extent that service.
Fr
m
in
5-3service
court
Page -14-
4.
The Superior
to reverse
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
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For Judicial Review, 273 Ga. 106, 108-109, or resolved that, with certain of proof."
make a determinatiolr as to the proper placement proof as between apply the burden On January Determination the parties,
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Respondent Further, of the burden
of proof to his factual and legal conclusions. 19, 2012, Applicant filed a "Motion For
he
of Placement
Fo
in advance
(2()00), requiring
to affirmatively
of T
Not only did the ALJ not of trial, as was requested the
ien ds
exceptions
"[t]he agency shall bear the OSAH Rule 616-1-2of the hearing,
burden
to the commencement
Fr
a different: placement
m
the to determine to challenge. the failure to of
Page -15-
1:0 Respondent's
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.
to the challenge,
he F
candidate
for the agency to bear the burden by OSAH Rule 616-1-;:-.07(1). have been placed ineligible) However,
of T
or with Respondent
under Havnes,
required, regarding
rd.
ds
ien
of proof is immediately
failed to attend tr~_al and failed to offer any evidence, failures were intent:ional, as shown by Respondent's
Fr
og Bo w. co m
qualifications the Office of the Secretary by Applicant, was commenced "by filing a written Upon the filing of Applicant's as a matter of
complaint
21-2-5(b),
to refer the
i.e. the of
of proof as initially
The burden
of proof therefore
was not
anything
eligibility
failure to rule on the burden Respondent and his lawyer and such
counsel's
Page -16-
2~j, 2012
contends,
and the Secrei!:aryof State's errors was born in the United was a citizen birth.
he F
alleged h:_s eligibility
mother
of T
ds
ien
However,
burden
of proving
Respondent
Fr
og Bo w. co m
(Exhibit "F"). If Respondent his burden, of proof is to reverse the of State on the basis of the in finding as "fact" States and that States at the of the United the Secretary to Respondent's qualifications "facts" which the ALJ said he 1) that States; and 2) that of the United States at Respondent carried the as for office. Inasmuch did not appear as the "natural
did, as
of State's
Citizen"
eligibility
mandates
examination
Bo w. co
and the above "facts" The Superior error.
he::einbelow), Respondent
found by the ALJ wel:e legally unsupported. failure to reverse t:he Secretary
of "fact" is reversible
6.
og
in Ankenv a United
to reverse the
that Respondent's fc:Lther was not a United States citizen time of Respondent'f:1 birth.
Th
eF
was grounded
of
The ALJ's
(and subsequently
the Secretary
of State's)
of the non-binding
v. Governor
ds
2d 678 (20(19), with regard to the ALJ's as a natural born citizen he became
finding that a
qualifies
ien
States citizen at birth. there was absolutely at trial to carry place of birth,
Page -18-
no evidence
by Respondent Respondent's
Fr
his burden
m
an of Court's ruling reasonlng of Indiana,
confe::s the status of "natural born Citizen" II of the United States Constitution
to Article
unfounded; is contrary
is an inc:orrect statement
is bindirlg authority
II phrase
in the United
State~: to two
og
evidence birth, The Superior CONCLUSION
Because,
eF
themselves
demonstrated, citizen
Th
of
ds
ien
reasons, Applicant
requests
Fr
IThis issue will be more fully briefed by Applicant upon the granting of this Application For Discretionary Appeal. Page -19-
Bo w. co
is of the applicable that the who were then United States citizens. at trial of State committed Court thus likewise For
m
States law; and States does not for the respectfully
Discretionary Superior
Appeal
Respectfully
201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820
Fr
ien
ds
of Th eF og B
3J502
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the decision of the 2012.
P.C.
Page -20-
CERTIFICATE
I,
certify that I have this day served the foregoing Discretionary Appea:_ upon:
Mr.
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do hereby Application postage affixed thereto in same to Mr. and by emailing & HATFIELD, P.C.
Michael K. Jablonski Attorney at Law 2221-0 Peachtree Road NE Atlanta, Georgia 30309 Honorable Brian P. Kemp Secretary of State State of Georgia 214 State Capitol Atlanta, Georgia 30334 by placing addressed a copy o~: same in the United envelope ~lith sufficient
Th
eF
og
and by emailing
to Secretary
ien
201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820
ds
Fr
of
3J.502
m
For same
Mark Hatfield
From: Sent: To:
Subject:
Attachments:
DOC006.pdf
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
Fr
ien
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of
Th eF og Bo
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PLAINTIFF'S
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
-~--EXHIBIT
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DEPUTY
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CLERK SUPERIOR N COUNTY. GA
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COURT
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v.
* CARL SWENSSON
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v.
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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
MOTION(S) TO DISMISS
he
*
Fo
* *
ORDER GRANTING
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* *
Page 1
* DAVIDP. WELDEN
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13, 2012 and February Superior be addressed
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 15, 2012, respectively. the matters were
Fo
and will, therefore,
Chief Judge Cynthia D. Wright, to whom the fust-filed case was because each is
fT he
assigned (Farrar, et al. v. Obama, et aI., Civil Action File No. 2012CV211398),
M. Malihi in the Office of State Administrative Hearings and thereafter adopted by the Secretary of State.
identical
so
in each of the above-referl~nced actions on February 27, 2012. The Motion(s) to Dismiss are in form and substance by the Court in one to
consolidated
nd
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
Fr ie
Farrar, et al. v. Obama, 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
ORDERGRANTINGMOTION(S) TO DISMISS
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TO DISMISS for Judicial Review Court Judges, Law Judge Michael Barack Obama, filed the Motion(s) Page 2
**
* *
in Georgia's
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2012 Presidential Preference The Presidential Preference
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.
Barack Obama is not a "natural born citizen"! and, Primary. Despite its
Fo
application in the court be low, this Court does not believe that a.c.G.A.
terms, is an opportunity for electors "to express their preference for one person to be a candidate for nomination."
fT he
O.C.G.A. 21-2-191.
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
Primary is not an "election" within the meaning of O.C.G.A. 21-2-2(5) and 21-2-5.
vote on "presidential
nd
so
Moreover, it is well established in Georgia as elsewhere in the United States that voters 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.
Fr ie
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
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21-2-5 applies in this
Primary, which by its Primary apportions Therefore, because election in question and 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
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
Fr ien
ds
hereby DISMISSED.
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
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
of Th eF og B
Democratic Party of Georgia and is limited in its authority to examining presidential electors.
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Page 4
2nd
c:----~\-fV'\~,,~
Fulton County Superior Court Atlanta Judicial Circuit
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
Van R. Irion, Esq. Liberty Legal Foundation 9040 Executive Park Drive, Suite 200 Knoxville, TN 37923 van(cV,libertvl galfoundatiorl. org e
Fr
ien
ds
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
of T
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fJudge
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
Fr ien
ds
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
of Th eF og B
Page 6
David P. Welden, Pro Se 5530 Wright Road Powder Springs, Georgia ]0127 dpweIden@gmail.com
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FILED IN
FU~,Gf, Maiden Maiden Maiden Maiden
o State
Superior
Plaintiff(s)
SWENSSON, CARL
Last First Middle L Suffix Prefix Maiden
Defendant(s)
Last First
OBAMA, BARACK
Last
First
Maiden
Last
First
Last
First
Maiden
Last
First
Maiden
No. of Plaintiffs
_1
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Last First Last First
No. of DefelIldants _1
PIaintiff/Petitioner's
HATFIELD, J. MARK
Last First
Attorney
Middle L
D Pro Se
Sutlix
fT he
Bar # 337509
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o
o
~
Habeas Corpus
nd
Appeals, Reviews
so
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Dispossessory/Distress
Fo
If Tort is Case Type: (Check no more than TWO)
D Auto Accident D PremisesLiability Negligence SpecifY Medical Liability D Other Professional Product Malpractice
Post Judgment Garnishment, Attachment, or Other Relief Non-Domestic Contempt Tort (If tort, fill in right column) Other General Civil SpecifY_
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MM-DD-YY
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PLAINTIFF'S ~ EXIjIBIT
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i ~
,1( ~
vs.
BARACK OBAMA
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
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
ds
This COMPLAI~~
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To defendant upon whom this petition is served: This copy of complaint and summom: was served upon you , 20 _
Instructions:
Attach addendum
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Plaintiff, Defendant
2..012 C V
HATFIELD & HATFIELD, P.C. 201 ALBANY AVENUE P.O. BOX 1361 WAYCROSS, GEORGIA 31502 (912) 283-3820
._dayof
Deputy Sherriff
sheet for addi tional parties if needed, make notation on this sheet if addendum
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is used
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IN THE: SUPERIOR
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FUL];l~~~
], 5 2012
V.
BARACK OBAMA,
* * *
Respondent
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~ie:TITION FOR JUDICIAL REVIEW Carl Swensson, and files this Petition Earack Obama as follows:
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20/2 by and through For Judicial Petitioner Carl of Respondent primary
c.v 2..11.527
Review
Respondent
1.
This action is an appeal of a Final Decision Secretary of State E1rian P. Kemp denying challenge
of Georgia
Swensson's
Barack
of the United
as a candidate
election.
ds
to
ien
O.C.G.A.
21-2-5(e).
3.
Carl Swensson Georgia. is a natural person residing in
Petitioner County,
Fr
Clayton
He is a registered
of Georgia,
Barack Obama,
Obama,
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herein. Party of Democratic Consequently, on Party Chairman the name of as a Democratic Presidential Petitioner challenge challenge born II, Section the Office Petitioner's challenge
m
a Mike Berlon to the I, Clause of the for Page -2-
to the ExecuLive
of the Democratic
Presidential November
to O.C.G.A.
to the Georgia
of T
to O.C:.G.A. of the United that Respondent
he
States. to O.C.G.A.
Fo
Secretary 5. 21-2-5(b),
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21-2-193, Petitioner's of Article
of State's Office
Pursuant
timely filed
of Respondent
ds
eligibilit}' requirement
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secretary
5 of the United
Stat.es Constitution.
6.
Also pursuant
21-2-5(b),
Fr
a hearing
before
an administrative Hearings.
State Administrative
7.
Pursuant conducted Michael to proper notice to the parties,
on January
of Th eF og Bo
through counsel, to the issues raised by his challenge. however, did not appear or testimony whatsoever. 8. 3, 2012, the administrative a copy of which is attached as a candidate primary election. Pursuant Jaw judge's Decision of State.
M. Malihi.
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and testimony for the to O.C.G.A.
any evidence
On February initial
Decision,
was reported
9.
Georgia
ds
On February
7, 2012, pursuant
to O.C.G.A.
Secretary
of State Brian P. Kemp issued a Final Decision, hereto as Exhibit "B," adopting the
ien
of the administrative
Petitioner's
challenge.
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a hearing was Law Judge Respondent and
21-2-5(b),
to the
21-2-5(c),
Page -3-
21-2-5(e),
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Petitioner now appeals of that Final rights of the the findings, of State are: and laws of this authority and exercise the following of State's the Decision to the cases of
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
In violation
of the Constitution
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procedures; 11.
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would enumerate
of the Secretary
of the Secretary
he
erroneous
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Arbitrary
and characterized
of discretion
of discretion.
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In particular, grounds
Petitioner
specific Decision
(a)
Secretary
of said judge,
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and inferences, by an abuse Final Page -4-
Petitioner counsel)
(represented by separate
who independently
Respondent's
qualifications,
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Decision mother birth. Decision'of to compare as Decision
that offered by such other individuals; (b) Secretary The administrative of State adopting
1) that Respondent
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two or admitted
the initial
the United
(c)
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the initial the initial
Secretary
he
as evidence
(2) electronic
fT
accordance
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Petitioner
evidence
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to the superior
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Secretary
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testimony; differed from the of said judge, was born in the was a citizen of the said judge, images of of said judge,
Page -5-
erred
as to the proper
placement burden
of proof in reaching
Petitioner's
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to Respondent's
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the i0itial as a "natural the initial construe
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the reasoning
automatically Article
II of the United
States Constitution,
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~:tates, without
Secretary
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in of Placement of the Decision deliberate failure to qualifications the by merely the
of said judge,
of said judge,
of said judge,
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specifically Page -6-
(h) Secretary
The admin::.strative law judge, and consequently of State 2ldopting the initial Decision qualifies
Constitution, United
despite
States citizen
Secretary
of Th eF og B
of State adopting of appropriate (and Respondent's counsel) and deliberately to Produce Notice 12. respectfully requests hearing and review of this Petition Preference Presidential to take place on March 13. to O.C.G.A. requests
(i)
The administrative
request to certify
Respondent
intentionally, Petitioner's
Petitioner expedited
weeks hence.
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Pursuant
21-2-5(e),
respectfully Decision
that this Court order a stay of the Final of State finding Respondent eligible to
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of the Secretary
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the of said judge, as a "natural born birth; and the of said judge, to this a of action including behavior that this Court grant an due to the fact is (3) Primary Election Petitioner further
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election
reviewing
This Petition
is timely
Pursuant
to O.C.G.A.
21-2-5(e),
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under review. eligible requirement in contempt
Fo
Carl Swensson Respondent
or a certified
Conduct
of T
basis;
Grant Petitioner
he
a hearing
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a final judgment of State. the Secretary respectfully to be included for the presidential of the ballot in
as a candidate
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pending
a final judgment
(3)
Secretary
of State, "natural
Article
II
removing Georgia,
Respondent's
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for the of this of State, 'as requests of the on primary Page -8-
deliberate
Notice
(4)
2012.
HATFIELD
31502
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of
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201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820
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Page -9-
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& HATFIELD,
P.C.
in theadministrath'e
m
to Produce
HEARINGS
Docket Number: OSAH-SECST ATE-CE12151 36-60-MALIHI Counsel for Plaintiffs: Orly Taitz
v.
BARACK OBAMA.
Defendant.
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BARACK
OBAMA,
Defendant.
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KEVIN RICHARD POWELL, Plaintiff, Docket Number: OSAH-SECST ATE-CE1216823-60-MALIHI Counsel for Plaintiff: Counsel for Defendant: J. Mark Hatfield Michael Jablonski
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v.
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Michael Jablonski
J. Mark Hatfield
Michael Jablonski
DECISION
Plaintiffs allege that Defendant President Barack Obama does not meet Georgia's
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
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.
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
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Court would entcr a default order against a party that fails to participate in any stage of a Ga. Compo H. & Regs. 616-1-2-.30(1) and (5). Nonetheless, despite the
proceeding.
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.
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office who has been certified by the state executive committee of a political party, and
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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
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based on the law, as well as the evidencl~and legal arguments presented at the hearing.
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Plaintiffs Farrar, Lax, Judy, Malaren, and Roth contend that President Barack
Obama
maintains
a fraucLulently obtained
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.
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
ds
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
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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).
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616-1-2-.18(10).
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Obama is not a natural born citizen. To support this contention, Plaintiffs assert that Mr. birth
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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
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
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.
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the testimony of an expert witness to be received, his or her qualifications as such must
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that she has concluded that the social security number Mr. Obama uses is fraudulent;
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Plaintiffs allege that President Barack Obama is not a natural born citizen of the United States and, therefore, is not eligible to run in Georgia's presidential primary election.
As indicated supra, the United States Constitution states that "[n]o person
',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
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
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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).
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States citizen. Plaintiffs contend that, because his father was not a U.S. citizen at the time
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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
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
The Indiana Court first explained that the U.S. Supreme Court has read the Fourteenth Amendment and Article that "new citizens may
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(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.
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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
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mention of the term "natura1 born citizen" in the Constitution is in Article II, and the term
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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
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
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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,
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Fourteenth Amendment and "natural born citizen of the United States" in Article II to
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citizens." 88 U.S. at 167. However, the Indiana Court explains that Minor did not define
became a citizen ofthe United States at the time of his birth.5 Wong Kim Ark, 169 U.S. at 705.
Jd. at 658.
Further:
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
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All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the 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).
of
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.
Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 576 (1856) (Curtis, J., dissenting.
Th e
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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.
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The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "ligealty," "obedience," "faith" or "power," of the King. The principle embraced all 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.
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.................
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Relying on the language of the Constitution and the historical reviews and analyses of Minor and
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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
SO ORDERED, February
ds
of T
3rd,
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2012.
10
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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.
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'\Jk' t~~ c
;,WI MICHAEL M. MALIHI, Judge
~,UvJ~
DAVID FARRAR, LEAH LAX, CODY .JUDY, THOMAS MALAREN, I,AU RIE ROTH,
Petitioners,
v.
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Th
BARACK OBAMA,
of
Respondent.
ds
KEVIN RICHARD POWEI,L, Petitioner, Docket Number: OSAH-SECSTA TECE-1216823-60- MAUHI Counsel for Petitioners: Counsel for Respondent:
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Docket Number: OSAH-SECST ATECE-1215136-60- MAUHI Counsel for Petitioners: Orly Taitz Counsel for Respondent: Docket Number: OSAH-SECSTATECE-121S137-60- MALIHI Counsel for Petitioners: Counsel for Respondent: Van R. Irion Docket Number: OSAH-SECST ATECE-1216218-60- MALIDI Counsel for Petitioners: Counsel for Respondent:
Michael Jablonski
Michael Jablonski
J. Mark
Michael Jablonski
J. Mark
Michael Jablonski
m
Hatfield Hatfield
FINAL DECISION!
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
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 ~:~
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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.
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challenge on January 26, 2012 and entered an initial decision for the above-captioned cases on
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CERTIFICATE
OF SERVICE
I, J.
certify Petition
Mark Hatfield,
Attorney
for Petitioner,
that I have this day served the foregoing For Judicial Review and attachments
Mr. Michael K. Jablonski Attorney at Law 260 Brighton Road NE Atlanta, Georgia 30309-1523
of Th eF og B
Honorable Brian P. Kemp Secretary of State state of Georgia 214 State Capitol Atlanta, Georgia 30334 envelope with sufficient delivery, postage at michael.iablonski@comcast.net, Kemp at vr.usso@sos.oa.oov, at kbea,l@osah.ga.oov. 2012. 31502
Honorable Michael M. Malihi Administrative Law Judge Office of State Administrative 230 Peachtree Street NW Suite 850 Atlanta, Georgia 30303
by placing addressed
and by emailing
and by emailing
Judge Malihi
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201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820
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do hereby Summons and thereto upon: Hear.ings same to Mr. same to by emailing same to
IN THE' SUPERIOR
*
* *
CIVIL ACTION
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by and through or, in the Petitioner Carl of Respondent primary
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-review of the Georgia Barack election.
FILED IN OfFICE
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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,
Presidential Motion,
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Fo
Carl Swensson,
of
challenge
Petitioner
ds
Secretary
of State Brian P.
Kemp denying
Swensson's Obama,
to the qualifications
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as a candidate
Fr
F:ILAINTIFF'S EXHIBIT
Page -1-
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Pre~sidential Preference
O.C.G.A.
21-~:-5(e) guarantees
appellate
afpeal involves,
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5.
of the Georgia Petitioner
issue of constitutional
eligibility United
States Constitution.
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Primary
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of the Georgia
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Respondent
Although
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2.
Primary Election
is
3.
Petitioner
the right to of
decision
of the Secretary
4.
or not
and never a
II,
Section
I, Clause 5 of the
this of
Presidential
Preference
Page -2-
anticipates
that Respondent
would probably
6.
With regard to Petitioner'.s request of this appeal, 6.7 Petitioner
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
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with Petitioner's alternative of the Georgia of the Georgia Primary Election, 21-2-5(e), Petitioner
("Motions in emergencies.U)
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Superior that request Secretary Presidential of State[,] applicable
for an expedited
Preference a.C.G.A.
not itself stay the decision reviewing cause court may Jrder Furth2r,
shown."
a.C.G.A.
5-3-28(b),
appeals may
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to superior
8ourt, provides
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jurisdiction
8.
submits that, in order that Petitioner of State's Final Decision may secure to which Page -3-
Petitioner
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review Court Rule for a of State to shall ...the terms for good to court in aid of its
postponement Election
of the Georgia
Presidential
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2012. & HATFIELD,
Final Decision
of the Georgia
Secretary
currently
WHEREFORE,
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HATFIELD
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201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820
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adjudicated, and a Primary respectfully P.C.
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appeal requests herein. Page -4-
CERTIFICATE
OF SERVICE
I, J.
certify
Mark Hatfield,
Attorney
for Petitioner,
that I have this day served the foregoing Review or, Alternatively,
Secretary Preference
of Presidential
by placing addressed
eF
delivery,
Honorable Brian P. Kemp Secretary of State State of Georgia 214 State Capitol Atlanta, Georgia 30334
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envelope
with sufficient
og
postage 2012. HATFIELD
Michael K. Jablonski Attorney at Law 260 Brighton Road NE Atlanta, Georgia 30309-1523
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States Mail in a properly affixed thereto in same to Mr. same and by emailing & HATFIELD,
P.C.
and by emailing
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201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820
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of
to Secretary
31502
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do hereby Motion For of
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).
Argument in favor of the motion to dismiss is set forth in the accompanying brief. Respectfully submitt,ed,
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MOTION Ta DISMISS 11-12(b)(6).
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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. 9-
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PLAINTIFF'S EXHIBIT
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have this day served the foregoing pleading upon Mr, Mark Hatfield Attorney at Law 201 Albany Avenue P.O. Box 1361 Waycross, Georgia 31502
mhatfieldcmvvavxcable.com.
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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
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by statutory electronic service pursuant to O.C.G.A. 9-11-5(e) using the email address
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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
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.
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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).
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been upheld.1
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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.
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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).
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An effort to harass the President continues with qualification challenges filed across the country and in Georgia. Challengers ignore procedural and evidentiary
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.")
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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).
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requirements because their claims are without merit, based on fantasy, and offered in
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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,
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
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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
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(9th
President Obama was a United States citizen from the moment of his birth in
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.
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
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.
an internal party matter. The State of Georgia may not interfere with "the traditionally
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
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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."
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u.s. v.
Cleland, 954 F.2d 1526, 15:30-1(11th Cir. 1992). First amendment associational rights of
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Wisconsin
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).
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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,
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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
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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
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).
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should be dismissed.
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
of
and void. See Estate ofMar,./orie C. Thurman v. Dodaro, 169 Ga.App. 531, 532(1), 313
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MICHAEL JABLONSKI
Georgia State Bar Number 385850 2221- D Peachtree Road NE Atlanta, Georgia 30309 404 -290-2977 michael. jabl onski@comcas:.net
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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
MICHAEL JABLONSKI Georgia State Bar Number ~;:85850 2221- D Peachtree Road NE Atlanta, Georgia 30309 404-290-2977 michael.ja blonski(cDcomcast.net
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mhatfield@J\vayxcable.com.
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IN THE SUPERIOR
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COURT OF FULTON COUNTY
* *
v.
BARACK OBAMA,
CIVIL ACTION
I
'
II MAR 05;-J
. " ..
! FILEtDN
OFFICE
ft!S
.,
Respondent
PETITIONER'S RESPONSE TO RE:SPONDENT'S MOTION TO DISMISS Now comes Petit.ioner Carl Swensson, undersigned Motion counsel,
by and through
he F
and responds PRELIMINARY Page -1''1\
to Respondent
Barack Obama's
Obarna's Motion
to Dismiss
of T
case is one in a series of cases filed across the Respondent. presumably to Respondent's
Respondent including
qualifications requirements
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and evidentiary
beCaUSE! their claims are without merit, based on of a political agenda." Finally, from the
ien
Respondent moment
fantasy,
claims ttlat he "was a United States citizen and that therefore, have been met." "all
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Constitutional
(sic; qualifications
A review of
PLAINlhFF'S
EXHI1BIT
J./ .-
I:::.
reveals
that Respondent's
States.
Presidency
is expect:ed and required to comply with the provisions including the eligibility requirements for
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in mind, Petitioner Obama, Ballot. Likewise, law, Petitioner qualifications challen:Je dismissed. requiring did not object. and attacked Page -2-
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Respondent Secretary
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including the submission Democratic with his rights to have the Respondent's
under Georgia
raised an administrative
to Article
Petitioner's
so
Respondent
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The Respondent
he boldly
the administrative
m
of the of the challenge
and in which he stated that he and his client were refusing come to court. The day of trial, when Respondent public schedule,
the Respondent
for court and failed to comply with The Respondent thus not
to Produce.
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entitled. misconduct and considering requirements,H Constitution Petitioner Page -3-
to which Petitioner
Th
procedural political
and whose
factual assertions
of
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himself
of lawful procedures
to properly
whether
Respondent,
a United States
citizen,
II of:he
States.
In tJlat regard,
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to had no events and after the for of evidence and failings of total Respondent's thereof, who is "in pursuit - which he fails under Georgia law in order the issue of eligible of the for the Presidency contends that the
it
and never
of Article
anyone born with dual national allegiance:3 from holding of this nation's military of national
citizenship
Bo
of the "natural
born Citizen"
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confirmed While Respondent
It is thus nothing
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
the exclusive
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rights of a political
Presidential contends
Preference
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whom to include associational rights of a party are in which a party refuses Party of ballot (citing Democratic (11th Cir. 1992)), he is also true" in that the party has certain names on its primary cites no authority for the latter are Page -4-
U.S. v. Wisconsin,
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of
in the situation
a name on a primary
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also claims that "the reverse the unchecked right to require however,
ballot.
Respondent,
proposition.
Moreover,
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II was intended and dual to requirement, as
authority
eligibilit:y requirements
O.C.G.A. Secretary
21-2-5(b) and
empowerec: to determine
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jurisdiction however, jurisdiction. Page -5-
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unsuccessfully
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associational
of
also contends,
qualifications Preference
challenge
ds
the Presidential
Primary and that this Court therefore In this connection, of "election" found ~n but
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21-2-2(5)
not a primary
or special primary
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party's a state government or meet constitutional for office in order to be the Georgia elector, to challenge of State is is gives the candidate O.C.G.A.
of
21-2-5(e)
an
a candidate's
qualifications by filing a
of State's decision
party deprives
in this matter.
that O.C.G.A.
21-2-5,
statute,
"election"
is used "clearly
requires"
the inclusion
the provisions
Respondent challenge
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further statute, ().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.
are designated
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Preference O.C.G.A.
of a political
of candidacy,"
see O.C.G.A.
of such conditions
O.C.G.l~.
21-2-5(b)
provides,
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of such candidate,"
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political
of hi~; nomination
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candidacy"
Page -6-
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of a primary of O.C.G.A.
21-2-5(a),
be filing a election.
and "notice of
Election
Code, and one could argue that the list of Presidential Primary :andidates submitted by Respondent's 21-2-193 constituted a
Preference
to O.C.G.A.
Primary ,md that this Court does have subj ect-matter herein,
OlIr
SERVICE
SUMMONS
Respondent
[R]espondent's service
attoJ~ney."
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by O.C.G.A.
og
Respondent
or a waiver
Bo
Th
Co. v. Georqia
the Court held that in an of a state agency or other for judicial review
tribunal,
to preserve
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of
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specifically
decision
is governed
pertinent
part that "[a] copy of the notice of appeal shall be in the same manner prescribed by Code
Page -7-
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(2003) is
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Public Service
political
Section
5-6-32."
O.C.G.A.
5-6-32(a),
in turn, provides
pertinent
part that
he
Fo
law. Petitioner
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.
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5-3-21(b) dismissal
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that even j_f the service by mail were for any reason not proper, C).C.G.A.
considered
expeditious III.
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STATEMENT OF CLAIM AGAINST RESPOND1!:NT fin2llly requests because "[t]he proper of State
Respondent
Fr
of State."
Page -8-
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was in notes in passing, states in pertinent part a just and states such contention
m
in
of authority
whatsoever.
Respondent
further contends
lack of personal
jurisdiction
appearance
by the Secretary
of Th eF og B
is flawed. O.C.G.A.
Petition
21-2-5(ei
court."
in this statute
O.C.(;.A.
5-3-21(b) provides
parties ...."
ds
that "[a] copy of the notice of appeal shall be served on all 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
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the state agency was served with the petition summons at all. The Court affirmed
the judgment
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Nevertheless, action does not of State, as of State in Respondent's 21-2-5(e) makes plain that is an appeal from the civil after of State shall transmit in pertinent part
that there is a
to dismiss.
of failure to perfect
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challenge of State Petitioner
of State is not a
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The challen:je to Respondent's by the Secretary were the named parties below, the challenge; in any manner. at stake in this challenge of Std.te. Petitioner's between Petitioner and the Secretary The challenge was a dispute between adjudicated and sam';; was merely Petition The instant does therefore of the Final Decision born Citizen" requirement name from the ballot, Page -10-
in a quasi-judicial
qualifications
and Respondent
was Respondent,
the Secretary
Respondent, State.
by the Secretary
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action
of the Secretary II
State,
"natural
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of Respondent's
an order adjudging
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The motion (at of The entity not (i.e. the and of in the instant of
to
of
Petitioner
was not a
a removal
Respondent comply
in contempt
with Petitioler's
proceedings; Presidential
Primary Election.
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The Secretary citation the challenge court. however,
Secretary
Bo
to the Secretary brought (2) parties
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. of State this
granting
of the requested
applicable considered
statutes a party.
eF
only two
Page -11-
does not need to be a party in order to accomplish relief, and none of the
Petitioner Handel
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instant case.
of State to be named or
(2008) is misplaced,
Secretary
of
candidate's elector,
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as in Petitioner's
for judicial
of State ~rerethe
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challenge
Petitioner
Secretary
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failure to of the of State as to to as the to a filed by an that even if the
party
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reasons,
CONCLUSION
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
Fr
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Page -12-
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Petitioner
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served, O.C.G.A. to perfect but the superior respectfully
CERTIFICATE
OF SERVICE
by placing addressed
a copy oj~ same in the United States Mail in a properly envelope ~lith sufficient
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2012.
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postage HATFIELD
Honorable Brian P. Kemp Secretary of State State of Georgia 214 State Capitol Atlanta, Georgia 30334
and by emailing
to Secretary
Kemp at vrusso@sos.qa.qov.
Th
Jablonski
at michael.iablonski@comcast.net
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201 Albany Avenue P.O. Box 1361 Waycross, Georgia (912) 283-3820
31502
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Petitioner's affixed thereto in same to Mr. same and by emailing
& HATFIELD,
P.C.
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
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
Fr
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3/2/2012
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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.
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J. Mark
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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
Cc:
Subject:
RE: Farrar, et al. v. Obama, et a!.: 2012CV211398; Welden v. Obama: 2012CV211537, v. Obama: 2012CV211527, Powell v. Obama: 2012CV211528
w.
Importance: High
Counsel/Parties:
Chief Judge, Superior Court of Fulton County 136 Pryor Street, SW, Suite C927 Atlanta, GA 30303 Phone: (404) 613-4187 Fax: (404) 893-6610 elizabeth.balUn0~fultoncountyga go\"
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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. may proceed in this manner.
All parties/counsel
3/2/2012
ds
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
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Thank you for submitting these Responses to us within the timeframe articulated doing so by email as requested ..
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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. and for
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Russo, Swensson
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\'
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.
"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,
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3/2/2012
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J. Mark Hatfield
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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:
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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,
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3/2/2012
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Michael Jablonski
Attorney-at-law
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Hon. Brian P. Kemp Georgia Secretary of Statl:~ 214 State Capitol Atlanta, Georgia 30334
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.
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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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of
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260 Brighton Road, NE Atlanta, Georgia 30309 404.290.2977 815.846.0719 (fax) michael.jabl onski@comcast.net
(vrusso@sos.gag0\1
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EXI1~8IT
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In Rhodes v. McDonald, 670 F. Supp. 2d 1363, 1365 (US DC MD GA, 2009), Judge Clay Land wrote thh: of plaintiff's attorney:
Fr
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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
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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.
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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.
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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
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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).
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670 F.
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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)