AZ - 2012-04-30 - LLF Opposition to Motion to Dismiss

8/2/2019 AZ - 2012-04-30 - LLF Opposition to Motion to Dismiss

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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF ARIZONA

LIBERTY LEGAL FOUNDATION;

JOHN DUMMETT;

LEONARD VOLODARSKY;

CREG MARONEY,

Plaintiffs

CASE NO: 2:11-cv-02089-SRB

v.Judge: Bolton

NATIONAL DEMOCRATIC PARTY

of the USA, Inc.;

DEMOCRATIC NATIONAL COMMITTEE;

DEBBIE WASSERMAN SCHULTZ,

Defendants

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DISMISS

Pursuant to this Courts Rules, Plaintiffs submit this Opposition and Memorandum

in Opposition to Defendant Democratic National Committee (DNC) and Defendant

Schultzs motion to dismiss.

MEMORANDUM OF POINTS AND AUTHORITIES

I. Contrary to the Defendants Assertion, No Federal Court has Ruled on theQuestion Presented Since 1874

The Defendants assert that the issue raised by the Plaintiffs has been rejected by

every federal and state court to consider the issue. See Def.s Mtn. at 4. However, the

Case 2:11-cv-02089-SRB Document 26 Filed 04/30/12 Page 1 of 18


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first five paragraphs of Plaintiffs complaint distinguish the Plaintiffs lawsuit from any

other cases to which the Defendants may be referring.

The instant case asserts negligence and fraud against non-governmental

defendants. See Plfs. 2nd

Amd. Compl. 3. Plaintiffs are unaware of any case that has

made such claims, or named non-governmental defendants in relation to their handling of

the Article II question presented.

Also contrary to Defendants assertion, the Plaintiffs make no claims questioning

the birthplace of Presidential candidate Obama or the citizenship status of his mother

The Plaintiffs complaint does not assert that Mr. Obama is not a citizen of the United

States. The Plaintiffs make no assertion regarding candidate Obamas passports, or social

security number, or any other fact related to candidate Obama, other than the one fact that

his father was not a U.S. citizen. This one fact has been repeatedly admitted by Mr.

Obama and by various government agents.

Contrary to the Defendants assertions, the issue presented by the Plaintiffs has not

been substantively ruled upon by any Federal Court since 1874. SeeMinor v. Happersett

88 U.S. 162, 167 (1874).

Earlier this month the Federal District Court for the Western District of Tennessee

found that the question presented, the meaning of the phrase natural born citizen as a

qualification for the Presidency set out in Article II of the Constitution, is important and

not trivial. See Ex. 1 at 8-9 (attached).



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II. Defendants Legal Conclusion Regarding the Definition of Natural BornCitizen is Incorrect

Defendants motion asserts that there is no question as to President Obamas

status as a natural-born citizenconcluding President Obama is a natural born citizen

by virtue of his birth in the United States. Defs. Mot. At 12. The Defendants cite United

States v. Wong Kim Arkin support of their conclusion.Id. citing 169 U.S. 649, 702

(1898). However, the holding ofWong Kim Ark(WKA) did not address the definition

of the term natural born citizen nor did it address Article II qualifications to serve as

President.Id. at 705.

The WKA holding did not define the term natural born citizen because the

WKA facts did not present a question that required interpretation of Article II.Id. at 653

WKA explicitly addressed the scope of 14th

Amendment citizenship.Id. at 705. However

citizenship under the 14th

Amendment is legally distinct from natural born citizen as

required under Article II for eligibility to serve as President.

Just twenty-four years prior to WKA the Supreme Court did define natural born

citizen as that term is used in Article II. Minor v. Happersett, 88 U.S. 162, 167 (1874)

Unlike WKA, the MinorCourt expressly used its definition of natural born citizen to

reach its holding.Id.

Because the WKA Court did not need to define Article II natural born citizen to

reach its holding, any inferences drawn from WKA about the term natural born citizen

are simply dicta.Blacks Law Dictionary 465 (Bryan A. Garner ed., 7th

ed., West 1999)



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(Defining Dictum Gratis as, A courts discussion of points or questions not raised by the

record or its suggestion of rules not applicable in the case at bar.)

In contrast, theMinorCourts explicit definition of natural born citizen was part

of its holding because that Court explained that defining this term was required in order

to reach its conclusion on the matter presented to the Court. 88 U.S. at 167; See also

Blacks Law Dictionary 737 (Bryan A. Garner ed., 7th

ed., West 1999) (Defining Holding

as, A courts determination of a matter of law pivotal to its decision; a principle drawn

from such a decision.).

Therefore, the Minor Courts definition of natural born citizen is binding

precedent.Blacks Law Dictionary 1195 (Bryan A. Garner ed., 7th

ed., West 1999) ([A]

case becomes a precedent only for such a general rule as is necessary to the actual

decision reached, when shorn of unessential circumstances.) (quoting 1 James Parker

Hall, Introduction,American Law and Procedurexlviii (1952)).

Since dicta cannot change binding precedent, the term natural born citizen under

Article II is defined by the Supreme Courts decision in Minor. The Defendants citation

to WKA does nothing to support their assertion that candidate Obama is a natural born

citizen. Simply being born in the United States does not necessarily make one a natura

born citizen. Having a mother that is a citizen of the United States does not necessarily

make one a natural born citizen. According to binding precedent from the U.S

Supreme Court, to be a natural born citizen a person must be born in the United States



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of two parents that are U.S. citizens at the time the natural born citizen is born. Minor

88 U.S. at 167.1

The Defendants assert that the MinorCourt left open the question of whether a

child born to alien parents is a natural born citizen, and state that it was not necessary

for the Minor Court to resolve doubts on this point. See Defs. Mot. At 13. This is a

misrepresentation. While the MinorCourt followed its definition of natural born citizen

with a statement that there have been doubts about the broader class of people

identified as citizen, a plain-language reading of the Courts sentence leaves no doubt

that the Court was not implying doubt regarding its definition of natural born citizen. 88

U.S. at 167. Any doubt on this point is negated by simply reading the next sentence of the

opinion clarifying that there have never been doubts as to the narrower class of natural

born citizens.Id.

This understanding of the MinorCourts statement is supported by its extensive

discussion of the broader term citizen at the beginning of the Courts opinion. Id. at

166. The Court concludes its discussion of the term citizen by stating, When used in this

sense it is understood as conveying the idea of membership of a nation, and nothing

more. Id. The Court, therefore, clearly established that the term citizen in its opinion

was to be understood to be very broad. With this in mind, the MinorCourts statement is

unambiguous: it established two distinct classes of people, citizens and natural born

1The WKA Court recognized that the facts presented in that case didnt give that Court

an opportunity to change the definition of Article II natural born citizen. This is whythe WKA Court expressly identified its holding as its holding. 169 U.S. at 705. The

WKA holding is very narrowly tailored to the facts addressed in the WKA case, and

never mentions the term natural born citizen.Id.



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citizens; citizen is a broad term that is inclusive of all natural born citizens; as to the

outer limits of the term citizen there are doubts; and as to the definition of natural born

citizen there have never been doubts.Id.

Venerable rules of construction also prevent use of any dicta from the WKA Court

to overrule the MinorCourts precedential definition of natural born citizen. As Chief

Justice Marshall explained in Marbury v. Madison, It cannot be presumed that any

clause in the constitution is intended to be without effect; and therefore such a

construction is inadmissible, unless the words require it. 5 U.S. 137, 174 (1805). This

principal is also applied to statutory construction: When there are two acts upon the

same subject, the rule is to give effect to both if possibleThe intention of the legislature

to repeal must be clear and manifest. United States v. Borden Co., 308 U.S. 188, 198

(1939). This venerable principal is still in use: The Courts are not at liberty to pick and

choose among congressional enactments, and when two statutes are capable of co-

existence, it is the duty of the courts, absent a clearly expressed congressional intention to

the contrary, to regard each as effective.Morton v. Mancari, 417 U.S. 535, 551 (1974)

See alsoUnited States v. Tynen, 78 U.S. 88 (1870);Hendersons Tobacco, 78 U.S. 652

657 (1870); General Motors Acceptance Corp. v. United States, 286 U.S. 49, 61 (1932);

Wood v. United States, 41 U.S. 342, 362-363 (1842).

TheMinorCourts definition of Article II natural born citizen co-exists with the

WKA Courts determination of the scope of 14th

Amendment citizenship. By contrast, the

Defendants insistence that WKA overturns Minorwould leave Article II natural born

citizen with no independent meaning from the 14th

Amendments citizen.



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This conclusion is not changed by the fact that naturalized citizens can be

distinguished from 14th

Amendment citizens. Each legal term, naturalized citizen, 14th

Amendment citizen, and Article II natural-born-citizen, must be given independent

meaning if such independent meaning can be given. Marbury, 5 U.S. at 174;Borden Co.

308 U.S. at 198.

Again, the WKA dicta cannot grant Article II natural born citizen status to

candidate Obama.2The Defendants motion to dismiss for failure to state a claim upon

which relief can be granted, must be DENIED.

III. Defendants 12(b)(6) Argument FailsAll of Plaintiffs factual allegations contained within their complaint must be

taken as true for purposes of Defendants motion to dismiss. Bell Atlantic Corp. v

Twombly, 550 U.S. 544, 555 (2007); Fitzgerald v. Barnstable School Committee, 555

U.S. 246, 249 (2009).

Plaintiffs Complaint alleges that Mr. Obamas father was not an American

citizen at the time of Mr. Obamas birth. Mr. Obama has admitted this fact. 2nd

Amd

Compl. 10. The Constitution of the United States mandates No person except a natural

born citizen, or a citizen of the United States at the time of the adoption of this

Constitution, shall be eligible to the office of President; and the United Sta tes Supreme

Court has defined Article II natural born citizens as all children born in a country of

parents who were its citizens. Art. II sec. 1; Minor v. Happersett, 88 U.S. 162, 167

(1875). Taking as true the fact that candidate Obamas father was not a U.S. citizen at the

2See Proposed Or., Welden v. Obama, GA OSAH Case #1215137-60, attached as Ex. 2.



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time of candidate Obamas birth, candidate Obama can never be a natural born citizen

as required by Article II, and therefore is not constitutionally qualified to serve as

President.Id.

The Defendants own citations support the conclusion that WKA does not define

the Article II term natural born citizen. SeeDefs. Mot. at 12-13 (Describing WKA as

holding that a person born to non-citizens from China was a citizen of the United

States,)(emphasis added) (and twice quoting WKA: [e]very person born in the United

States, and subject to the jurisdiction thereof, becomes at once a citizen,) (emphasis

added). The WKA Court knew the difference between the terms citizen and the legally

distinguishable term natural born citizen,yet it chose to use only the term citizen in

its holding. Had it meant to alter the Article II term it would not have limited its holding

to the term citizen.

The Defendants motion to dismiss for failure to state a claim upon which relief

can be granted, must be DENIED.

IV. Plaintiffs Have Standing to Bring SuitLast December the 9

thCircuit ruled that political candidates for office have

standing to challenge the eligibility of rival candidates for the same office. Drake v

Obama, 664 F.3d 774, 782-783 (9th

Cir. 2011) (citingOwen v. Mulligan, 640 F.2d 1130

1132-33 (9th Cir. 1981). Specifically, the Drake Court ruled that an independent candidate

for President of the United States has standing to challenge the constitutional

qualifications of candidate Obama.Id. citing Fulani v. Hogsett, 917 F.2d 1028, 1030 (7th

Cir. 1990).



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Defendants acknowledge that Plaintiff Dummett has alleged that he is an

independent candidate for the office of U.S. President, and that he is registered with the

Federal Election Commission as such. Defs. Mot. At 6. Taking these allegations as true,

Plaintiff Dummett clearly has standing to challenge candidate Obamas constitutional

eligibility to hold the office of President.

After acknowledging Plaintiff Dummetts allegations and the on-point binding

precedent, Defendants incorrectly assert that Plaintiffs do not allege that any defendant

has engaged in a practice that would provide President Obama with an unfair advantage

in the election process.Id.

Plaintiffs complaint alleges that The Democratic Party will send documents to

the Secretaries of State for all 50 states announcing that Mr. Obama is its Presidential

nominee for the 2012 general election and falsely representing that he is qualified to hold

the office of President. 2nd

Amd. Compl. 52. The Democratic National Committee

(DNC) is a subdivision of the Democratic Party responsible for organizing the national

convention, certifying candidates, and other executive and administrative organizations

of the Democratic Party. Id. at 37. Said documents will be signed by Defendant

Schultz. Id. at 53. Upon receipt of said document, and in reliance upon the false

representations made by the Democratic Party and its agents in said document, the

Secretaries of State for the 50 states will be required to have Mr. Obamas name placed

on ballots in all counties for the office of President of the United States. Id. at 55. And

that Absent the requested relief, Plaintiffs Dummett and Volodarsky will be irreparably

harmed because the appearance [of] Mr. Obamas name on Ballots for the 2012 general



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election would result in votes for Mr. Obama that would otherwise be cast for Mr.

Dummett or Mr. Volodarsky. Id. at 57. These are exactly the types of allegations

supporting standing that the 9th

Circuit referred to in Drake v. Obama and Owen v

Mulligan. 664 F.3d at783; 640 F.2d at 1132-33.

While it is far from clear, the Defendants motion must be taken to assert that the

Plaintiffs allegations fail because they are not directed at candidate Obama, but are

instead directed toward the Democratic Party and its agents and subdivisions. However,

as established by the facts alleged, the actions of the named Defendants, as asserted and

taken to be true, will clearly and directly result in specific harm to Plaintiff Dummett, just

as in Drake and Owen. The named Defendants will send documents to the 50 states

certifying that candidate Obama is constitutionally qualified to hold the office of

President. 2nd

Amd. Compl. 52. The Secretaries of State for the 50 States will rely upon

the false statements of the named Defendants and will be required to place candidate

Obamas name on the ballot. Id. at 55 & 10-13. The Defendants actions will cause the

same harm to Plaintiff Dummett as that which created standing for the Plaintiffs inDrake

and Owen. Id. at 57.

Defendants unclear assertion could also be read to rely upon the fact that

Plaintiffs complaint includes allegations of facts that have not yet occurred. However

this distinction also fails to destroy standing.

Standing depends upon the probability of harm, not its temporal proximity. See

520 S.Mich. Ave. Assocs. V. Devine, 433 F.3d 961, 962 (7th

Cir. 2006). Immediacy

requires only that the anticipated injury occur within some fixed period of time in the



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future, not that it happen in the colloquial sense of soon or precisely within a certain

number of days, weeks, or months. Fla. State Conf. of the NAACP v. Browning, 522

F.3d 1153, 1161 (11th

Cir. 2008).

For the purposes of this motion all of Plaintiffs factual allegations contained

within their complaint must be taken as true. Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555 (2007); Fitzgerald v. Barnstable School Committee, 555 U.S. 246, 249 (2009)

For the purposes of the instant motion it must be taken as true that the Defendants will

send documents to the 50 states certifying that candidate Obama is constitutionally

qualified to hold the office of President. 2nd

Amd. Compl. 52. The Secretaries of State

for the 50 States will rely upon the false statements of the named Defendants and will be

required to place candidate Obamas name on the ballot. Id. at 55 & 10-13. The

temporal issues vaguely referred to in Defendants motion do nothing to defeat standing

because the alleged facts are certain to occur. If the allegations are not true, and the

Defendants do not plan to send the alleged certifications to the 50 States, then the

Defendants should have no objections to this Court ordering an agreed judgment

prohibiting the Defendants from sending such certifications.

Regarding Liberty Legal Foundations (LLF) standing, an association has standing

to bring suit on behalf of its members when: a) its members would otherwise have

standing to sue in their own right; b) the interests it seeks to protect are germane to its

organizations purpose; and c) neither the claim asserted nor the relief requested requires

the participation of individual members in the lawsuit. Hunt v. Washington State Apple

Advertising Cmmn, 432 U.S. 333, 342 (1977). This lawsuit is germane to LLFs purpose



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because protection of individual rights and state sovereignty as established in the

Constitution is necessary for the protection of basic human rights. Participation of all

LLF members is not required because LLF represents its members common interests in

opposing violations of federal law and the U.S. Constitution. Most importantly, LLF has

members that would otherwise have standing to sue in their own right that will suffer

specific and concrete harm as a direct result of the Defendants actions. Specifically, Mr

Dummett and Mr. Volodarsky are members of LLF. Therefore, LLF has standing in the

instant case.

Finally, and most importantly, only one Plaintiff needs to have standing in order to

maintain a suit. Massachusetts v. EPA, 549 U.S. 497, 518 (2007). Because Plaintiff

Dummett has standing, all other Plaintiffs in the instant case, including Liberty Legal

Foundation, also have standing. The Defendants motion to dismiss for lack of standing

must be DENIED.

V. RipenessContrary to Defendants assertion, Robinson v. Bowen and 3 U.S.C. 15 are

inapplicable to the instant case. Defs. Mot. At 8; citing 567 F. Supp. 2d at 1147. First,

Robinson and 3 U.S.C. 15 address the rights and responsibilities of delegates to the

electoral college, not Presidential candidate plaintiffs. More importantly, ifRobinson had

been applicable to the facts at bar, it has been overturned by Drake v. Obama. 664 F.3d

774, 782-783 (9th

Cir. 2011).Robinsonheld that [j]udicial review - if anyshould occur

only after the electoral and Congressional processes have run their course. 567 F. Supp

2d at 1147. However, the Drake Court held that such claims would be justiciable before



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an election, but moot after the election had been held. 664 F.3d at 784. The 9th

Circuits

ruling that such challenges would be moot after the election precludes the District Courts

holding that such challenges are not ripe before the election.

To determine ripeness courts must consider whether there is a substantial

controversy, between parties having adverse legal interests, of sufficient immediacy and

reality to warrant the issuance of a declaratory judgment.Maryland Cas. Co. v. Pacific

Coal & Oil Co., 312 U.S. 270, 273 (1941).

Earlier this month the Western District of Tennessee held that the legal dispute

over the Constitutions definition of natural born citizen and the Supreme Courts

decision inMinoris substantial. Ex. 1 at 8.

In the instant case the acts alleged reflect the procedures taken by the named

Defendants in every Presidential election for decades. The acts alleged are identical to

acts taken by the named Defendants prior to the 2008 election of candidate Obama

Therefore, the acts alleged are immediate and real.

The fact that the Defendants have not yet performed the acts alleged does not deny

this Court jurisdiction. To argue otherwise would deny the well-established fact that

Courts regularly issue preemptory orders in order to prevent harm before it occurs.

The Defendants assertion that they cannot be prohibited from lying to State

officials simply because they havent yet lied to the State officials is analogous to telling

this Court that it doesnt have jurisdiction to issue an order prohibiting a party from

cutting down a tree because the tree has not yet been cut down. The instant case is ripe

because the Defendants are certain to act as alleged in the complaint, absent this Courts

http://web2.westlaw.com/find/default.wl?mt=122&db=708&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2005902760&serialnum=1941124592&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=018FC1B2&rs=WLW12.04http://web2.westlaw.com/find/default.wl?mt=122&db=708&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2005902760&serialnum=1941124592&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=018FC1B2&rs=WLW12.04http://web2.westlaw.com/find/default.wl?mt=122&db=708&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2005902760&serialnum=1941124592&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=018FC1B2&rs=WLW12.04http://web2.westlaw.com/find/default.wl?mt=122&db=708&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2005902760&serialnum=1941124592&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=018FC1B2&rs=WLW12.04http://web2.westlaw.com/find/default.wl?mt=122&db=708&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2005902760&serialnum=1941124592&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=018FC1B2&rs=WLW12.04http://web2.westlaw.com/find/default.wl?mt=122&db=708&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2005902760&serialnum=1941124592&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=018FC1B2&rs=WLW12.04


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order prohibiting the Defendants from acting. The Defendants motion to dismiss for lack

of ripeness must be DENIED.

VI. This Court Has Personal JurisdictionPlaintiffs complaint alleges that the Defendants will make false statements in

certifications to be sent to the Secretaries of State for all 50 States. 2nd

Amd. Compl. at

52-55. The Plaintiffs request that this Court take judicial notice that Arizona is one of

the 50 states.

The act of sending a certification to the Arizona Secretary of State, certifying that

candidate Obama is qualified to hold the office of President, knowing that such

certification is required to have the Arizona Secretary of State place candidate Obamas

name on Arizona ballots, obviously qualifies as purposefully directing activities to the

forum. It also undeniably qualifies as availing the Defendants of the privilege of

conducting activities in the forum.

The claims in the instant case arise directly out of the Defendants activities of

sending a certification to the Arizona Secretary of State.

At most the Defendants assertion of lack of personal jurisdiction amounts to an

assertion that a necessary party has not been joined. However, even if that were true, the

appropriate remedy would not be dismissal. The appropriate remedy would be to allow

joinder of the necessary party. See Fed. R. Civ. Pro. 19 & 20.

The Defendants motion to dismiss for lack of personal jurisdiction must be

DENIED.



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VII. Right-to-Associate Precedent Doesnt Support Defendants MotionThe Defendants are correct that The Democratic Party has a Constitutional Right

to Nominate Whomever it Chooses as its Candidate for President of the United States.

However, that right does not give the Defendants the additional right to certify to the 50

States that its candidate is constitutionally qualified to hold the office of President when

their candidate is actually notconstitutionally qualified to hold the office of President. In

other words, the Defendants constitutional right to freedom of association does not grant

them the additional right to lie to the 50 States.

Contrary to the Defendants assertion, the Plaintiffs are not challenging the

Democratic Partys right to select a standard bearer who best represents the partys

ideologies and preferences. Cal. Democratic Party v. Jones, 530 U.S. 567, 575 (2000)

Instead, the Plaintiffs are pointing out that the Defendants right to select a candidate

does not grant them an additional right to misrepresent their candidates qualifications to

officers of the 50 States.

The Defendants argument morphs right-to-associate precedent into a political

partys right to misrepresent facts with impunity.The Defendants argue that a political

partys right to determine who will be a member of the party somehow also grants the

party a Constitutional right to lie to the States. No precedent supports this argument.

The right to associate has been interpreted to allow private groups to determine

who will and will not be members of the group. Jones, 530 U.S. at 575; Democratic

Party of U.S. v. Wisconsin, 450 U.S. 107 (1981); Duke v. Cleland, 954 F.2d 1526 (11th

Cir. 1992);Belluso v. Poythress, 485 F.Supp. 904 (N.D.Ga. 1980). However, no court has



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extended this right beyond the confines of the private organization. A party can determine

who it will include as members. That party can also determine which of those members

will be its candidates. However, nothing in the Constitution or freedom-to-associate

precedent extends this right to support the Defendants assertion that they have a right to

lie to the States.

Several right-to-associate cases did involve candidates exclusion from ballots. See

Democratic Party of U.S. v. Wisconsin, 450 U.S. 107 (1981); Duke v. Cleland, 954 F.2d

1526 (11th

Cir. 1992);Belluso v. Poythress, 485 F.Supp. 904 (N.D.Ga. 1980). However

all of these cases are exactly opposite to the present situation. All involved political

parties excluding a candidate because the party didnt want to be associated with the

candidate. In every case cited the candidate sued the party and/or state for inclusion on

the ballot after being excluded.

There are no cases where a political partys decision to support a candidate created

a Constitutional right to certify false facts as true. Such precedent would place the

political partys right-to-lie above the rights of the States and the citizens to not be

defrauded. Such precedent would negate any obligation for the political parties to ensure

that certifications sent by them to State officers reflect true statements. Such precedent

would negate any purpose for the States to require such certifications.

The Plaintiffs requested relief does nothing to interfere with the rights of the

parties to select candidates. The Democratic Party is free to choose Saddam Hussein or

Mickey Mouse as their next Presidential candidate. However, they do not have a

constitutional right to submit fraudulent or grossly negligent certifications to state



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officials about their candidates. In the instant case the Plaintiffs requested relief does

nothing to infringe on the Democratic Partys right of association because the Party can

include candidate Obama, or any other individual, in its organization. The Party can

choose Mr. Obama, or any other person, to be its standard bearer. The Partys rights,

however, end there.

The parties Constitutional right to select candidates ends with theirright to select

candidates. It does not automatically create additional rights to knowingly lie to the

States.

Since many candidates have been excluded from ballots for lack of qualification to

hold the office sought, we can safely conclude that the Defendants argument fails. The

Defendants motion to dismiss for failure to state a claim upon which relief can be

granted, must be DENIED.

VIII. ConclusionFor the reasons set forth herein, the Defendants motion to dismiss must be

DENIED.

Respectfully submitted on the 9th

Day of Ziv, in the year of our Lord 2012 (a.k.a. April

30, 2012).

_s/Van R. Irion_________________

Van R. Irion

Liberty Legal Foundation

9040 Executive Park Drive, Ste. 200

Attorney for Plaintiffs

(423) 208-9953



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CERTIFICATE OF SERVICE

It is hereby certified that on 9th

Day of Ziv, Year of our Lord 2012 (a.k.a. April 30

2012), a copy of Plaintiffs Opposition to Defendants Motion to Dismiss was filedelectronically. Parties may access this filing through the Courts electronic filing system.

A copy of this motion will also be served upon the Defendants via mail.

_s/Van R. Irion_________________

Van R. Irion

Liberty Legal Foundation

9040 Executive Park Drive, Ste. 200

Attorney for Plaintiffs

(423) 208-9953



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1

OFFICE OF STATE ADMINISTRATIVE HEARINGSSTATE OF GEORGIA

DAVID P. WELDEN :

:

Plaintiff ::v. : Docket Number: OSAH-SECSTATE-CE-

: 1215137-60-MALIHIBARACK OBAMA :

:Defendant :

:

PLAINTIFF WELDENS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF

LAW

DECISION

Plaintiff David Welden challenges Defendant Barack Obamas qualifications to run for

the office of President of the United States. The Plaintiff presented evidence and argument on

January 26, 2012, and the record was closed on that day.

Introduction and Findings of Fact

The Defendants father was not a U.S. citizen at the time the Defendant was born.

Defendants father was a non-immigrant student at the time of the Defendants birth.Pursuant to

Article II of the United States Constitution, No person except a natural born citizenshall be

eligible to the office of President. U.S. Const. art. II, 1, 5. Plaintiff contends that the term

natural born citizen means born in the United States of parents that were themselves United

States Citizens. Defendant has presented no argument on the substance of the issue at hand.1

For the reasons stated below, the Court has determined that Defendant does not meet the

Constitutional requirements to run for the office of President of the United States.

1The Defendant and the Defendants attorney failed to attend the January 26 hearing despite having previously

appeared in this matter via the filing of several documents with this Court in this matter, and despite having received

ample notice of said hearing. The Defendants failure and his attorneys failure to appear is discussed further below.

Case 2:11-cv-02089-SRB Document 26-2 Filed 04/30/12 Page 1 of 22

[Exhibit 2]


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Conclusions of Law

The United States Constitution (Constitution) states that No person except a natural

born citizenshall be eligible to the office of President. U.S. Const. art. II, 1, 5. The United

States Supreme Court has interpreted the term natural born citizen to mean a person born in the

United States of parents that were themselves United States Citizens. Minor v. Happersett, 88

U.S. 162, 167 (1874). Construction by the United States Supreme Court of terms and clauses

within the United States Constitution are binding upon every court in this country. Marbury v.

Madison, 5 U.S. 137 (1805). The Minor Courts definition of the article II term natural born

citizen was pivotal to its decision, and is therefore part of the Minor Courts holding. See

Blacks Law Dictionary 737 (Bryan A. Garner ed., 7th

ed., West 1999) (see alsoId. at 1195

defining precedent and quoting James Parker Hall, American Law and Procedure xlviii

(1952); see alsoId. at 465, distinguishing dictum gratis). As such, theMinorCourts definition

of natural born citizen is precedent, binding upon all courts in this country. Marbury, 5 U.S. 137.

Further, Georgia Election Code states: Every candidate for federal and state

officeshall meet the constitutional and statutory qualifications for holding the office being

sought. O.C.G.A. 21-2-5(a). Chapter 2 of Title 21 also states: This chapter shall apply to any

general or special election in this state to fill any federal, state, county, or municipal office, to

any general or special primary to nominate candidates for any such office, and to any federal,

state, county, or municipal election or primary for any other purpose whatsoever, unless

otherwise provided.

Therefore, the Court concludes that because the Defendants father was not a United

States Citizen at the time the Defendant was born, the Defendant is not a natural born citizen

under article II of the Constitution. Because the defendant does not meet the Constitutional


[Exhibit 2]


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qualifications for holding the office being sought, the Defendant should not appear on any ballot

for any election within this State as a candidate for the office of President of the United States.

I.

Effect of Default: Findings on the Merits in the Absence of Defendant

This Court is required to determine the merits of the issues presented by the Plaintiff,

regardless of the absence of the Defendant and entry of a default judgment against the

Defendant.

Administrative Rule of Procedure 616-1-2-.30(1) states in relevant part: A default order

may be entered against a party that fails to participate in any stage of a proceeding, a party that

fails to file any required pleading, or a party that fails to comply with an order issued by the

Administrative Law Judge. The rule continues: After issuing a default order, the

Administrative Law Judge shall proceed as necessary to resolve the case without the

participation of the defaulting party, or with such limited participation as the Administrative Law

Judge deems appropriate, and shall determine all issues in the proceeding, including those

affecting the party in default. Id. at (2)(emphasis added).

Due to the Defendants and Defendants attorneys failure to appear this Court will enter

a default judgment against the Defendant in the instant matter. However, this Court is also

required to resolve the factual and legal issues presented and include such findings and

conclusions with its entry of default judgment. Accordingly, the Court concludes as follows.

II. Minor v. Happersett, 88 U.S. 162 (1874)InMinor v. Happersettthe United States Supreme Court was presented the question: does

the 14th

Amendment grant all citizens the right to vote? Minor, a woman living in Missouri,

challenged that states constitutional prohibition against women voting. The Court held that


[Exhibit 2]


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women could be citizens before ratification of the 14th

Amendment, but that the 14th

Amendment

created no new privileges or immunities.

1.Minor Courts Definition of Natural Born Citizen Under Article II

2

The United States Supreme Court defined the term natural born citizen in Minor v.

Happersett. 88 U.S. at 167. The Minor Court established that it was never doubted that all

children born in a country of parents who were its citizens became themselves, upon their birth,

citizens also. These were natives or natural-born citizens, as distinguished from aliens or

foreigners.Id.

It is clear that the Minor Court was referring to the term natural born citizen, as it

appears in article II of the Constitution because, in the paragraph preceding the definition quoted

here, that Court quoted the article II requirement that the P resident must be a natural born

citizen.

The Minor Courts definition of natural born citizen is immediately followed by a

statement that there have been doubts about the broader class of people identified as citizens.

Id. However, this statement is immediately followed by the clarification that there have never

been doubts as to the narrower class of natural born citizens. Id. This understanding of the

Minor Courts statement is supported by its extensive discussion of the broader term citizen at

the beginning of the Courts opinion. Id. at 166.The Court concludes its discussion of the term

citizen by stating, When used in this sense it is understood as conveying the idea of membership

of a nation, and nothing more. Id. The Court, therefore, clearly established that the term

citizen in its opinion was to be understood to be very broad. With this in mind, the Minor

2Nothing in this opinion should be read as an attempt to independently construe of the United States Constitution.

To the contrary, this section and the following section of this opinion are intended to show that this Court is simply

applying the construction established by United States Supreme Court precedent.


[Exhibit 2]


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5

Courts statement is unambiguous: it established two distinct classes of people, citizens and

natural born citizens; citizen is a broad term that is inclusive of all natural born citizens; as

to the outer limits of the term citizen there are doubts; and as to the definition of natural born

citizen there have never been doubts.Id.

The Minor Courts definition of the term natural born citizen uses the term parents.

This is the plural form of the term parent. Had the Court intended to indicate natural born

citizen status could be conferred upon an individual with one citizen parent, the Court could have

used the term parent instead of parents. The Court could also have identified a specific

parent using the terms father or mother. It did not use the terms mother, father, or

parent. Instead it chose to use the plural term parents. The plain language meaning of this

term indicates a requirement for both parents to be citizens.

2. Precedential Status of theMinorCourts Definition of natural born citizenIn order to reach its holding, the MinorCourt first had to determine whether Mrs. Minor

was a citizen. It explicitly did so by determining that she was a natural born citizen: For the

purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we

have now to consider that all children born of citizen parents within the jurisdiction are

themselves citizens.Id. at 167. Because both of Mrs. Minors parents were U.S. citizens at the

time she was born, and she was born in the U.S., she was a natural born citizen. Because all

natural born citizens are also within the broader category citizen, Mrs. Minor was a citizen.

TheMinorCourts decision to establish that Mrs. Minor was a citizen because she was a

natural born citizen followed the well-established doctrine of judicial restraint. Judicial restraint

required the MinorCourt to avoid interpreting the citizenship clause of the 14th

Amendment if


[Exhibit 2]


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6

the circumstances presented in the case at hand didnt require the Court to construe the 14th

amendments citizenship clause in orderto reach its holding. The facts presented didnt require

such an interpretation, so the Court didnt reach the 14th

amendments citizenship clause. But this

restraint did require the Court to conclude that Mrs. Minor was a citizen via its definition of

natural born citizen and its conclusion that all natural born citizens are within the broader

category of citizens. This is why it made the statement For the purposes of this case it is not

necessary to solve these doubts. It is sufficient for everything we have now to consider that all

children born of citizen parents within the jurisdiction are themselves citizens. Id. at 168. In

other words, the MinorCourts definition of natural born citizen was pivotal to reaching its

holding.

The Court then discussed several other types of citizenship as general examples of its

conclusion that women could be citizens. However, it then returned to the specific case of Mrs.

Minor, concluding: The fourteenth amendment did not affect the citizenship of women any

more than it did of men. In this particular, therefore, the rights of Mrs. Minor do not depend upon

the amendment. She has always been a citizen from her birth, and entitled to all the privileges

and immunities of citizenship.Id. at 170.

Because the Minor Courts definition of natural born citizen was pivotal to reaching its

holding, the Courts definition is part of its holding and is, therefore, also precedent. SeeBlacks

Law Dictionary 737 (Bryan A. Garner ed., 7th

ed., West 1999) (see alsoId. at 1195 defining

precedent and quoting James Parker Hall,American Law and Procedure xlviii (1952); see also

Blacks Law Dictionary at 465, distinguishing dictum gratis).


[Exhibit 2]


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III. Congressional Power to NaturalizeArticle I of the United States Constitution grants Congress power To establish uniform

rules of naturalization. However, this power does not alter or effect the article II requirement

that No person except a natural born citizenshall be eligible to the office of President. U.S.

Const. art. II, 1, 5. It is well established that Congressional authority does not include authority

to alter the Constitution unless it follows the steps required to amend the Constitution, as

established within article V. See Amd. X. Therefore, all acts of Congress made pursuant to its

article I authority to naturalize have no effect upon the Supreme Courts construction of article I

regardless of any attempt by Congress to establish a different definition of natural born citizen.

All federal code, regulations, resolutions, and other acts of Congress are simply irrelevant to the

analysis at hand because Congress has no authority to alter article II except through the

amendment process.

IV. Fourteenth AmendmentThe 14th amendment to the Constitution created a third independent path to citizenship.

However, the amendment did not alter or effect the article II requirement that No person except

a natural born citizenshall be eligible to the office of President. U.S. Const. art. II, 1, 5.

The Supreme Court established the relevant rule of Constitutional construction in

Marbury v. Madison: It cannot be presumed that any clause in the Constitution is intended to be

without effect; and therefore such a construction is inadmissible. 5 U.S. 137, 174 (1805). This

rule is still in effect and a similar rule is used for statutory construction: When there are two acts

upon the same subject, the rule is to give effect to both if possibleThe intention of the

legislature to repeal must be clear and manifest. United States v. Borden Co., 308 U.S. 188, 198


[Exhibit 2]


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8

(1939). See also,Morton v. Mancari, 417 U.S. 535, 551 (1974); United States v. Tynen, 78 U.S.

88 (1870);Hendersons Tobacco, 78 U.S. 652 657 (1870); General Motors Acceptance Corp. v.

United States, 286 U.S. 49, 61 (1932); Wood v. United States, 41 U.S. 342, 362-63 (1842).

Nothing in the language of the 14th

amendment expressly alters the language or

construction of the term natural born citizen. In fact, neither the term natural born citizen, nor the

requirements to serve as President are mentioned in the 14th

amendment.

Also, the 14th

amendment establishes a path to citizenship. If individuals that qualify as

citizens under the 14th

amendment are construed to qualify to run for President, then the term

natural born citizen establishing a distinct qualification for holding the office of President

under article II would lose its distinction from the term citizen as required to hold the offices

of Senator and Member of the House of Representatives under article I. This would leave the

distinction between the qualifications for President and members of Congress without effect.

Such a construction is inadmissible.Marbury, 5 U.S. at 174.

More importantly, the MinorCourt defined natural born citizen under article II as all

children born in a country of parents who were its citizens. The Minor Courts holding and

definition was established after the 14th

amendment had been ratified, proving that the

amendment didnt alter this definition. 88 U.S. at 167. This is further proved by the holding of

theMinorCourt that The amendment did not add to the privileges and immunities of a citizen.

Id. at 171. Therefore, if an individual was not qualified to hold the office of President under

article II before the amendment, then he or she was not qualified after the amendment. Id.

V. Wong Kim Ark, 169 U.S. 649 (1898).


[Exhibit 2]


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9

The Supreme Courts decision in Wong Kim Ark (WKA) did not alter or negate the

definition of natural born citizen as established by the MinorCourt. Compare United States v.

Wong Kim Ark, 169 U.S. 649 (1898) with Minor, 88 U.S. 162. The holding of WKA answered

the narrow question that was avoided by theMinorCourt: namely construction of the citizenship

clause of the 14th

amendment. A review of the holding from WKA confirms this conclusion: the

single question stated at the beginning of this opinion, namely, whether a child born in the

United States, of parents of Chinese descent, who at the time of his birth are subjects of the

emperor of China, but have a permanent domicile and residence in the United States, and are

there carrying on business, and are not employed in any diplomatic or official capacity under the

emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the

first clause of the fourteenth amendment of the Constitution: All persons born or naturalized in

the United States, and subject to the jurisdiction thereof, are citizens of the United States and of

the state wherein they reside. For the reasons above stated, this court is of the opin ion that the

question must be answered in the affirmative. 169 U.S. at 705 (emphasis added).

Rather than construing the definition of the term natural born citizen under article II,

the WKA Court was construing the term citizen under the 14th

Amendment. Regardless of the

answer to the question answered by the WKA Court, it does nothing to change the requirements

for the office of President.

To conclude that the WKA court altered the definition of natural born citizen under

article II would require a conclusion that dicta alters established precedent. This is simply not the

rule. Dicta is persuasive. Where the reasoning in dicta is logical and well supported, and where it

does not conflict with precedent, it can be followed at the discretion of other courts. However,

where dicta directly conflicts with precedent it cannot be followed by lower courts.


[Exhibit 2]


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10

Had Mr. Wong Kim Ark been a natural born citizen then he wouldnt have had to resort

to the 14thAmendment in order to be found a citizen. Because Mr. Ark was not a natural born

citizen, the WKA court had no reason to construe the term natural born citizen in order to answer

the question: Was Mr. Ark a citizen under the 14th

amendment? Therefore, any discussion within

the WKA opinion that could possibly be construed to alter the article II term natural born citizen,

was unnecessary to reach the WKA holding, and was dicta. See Blacks Law Dictionary 465

(Bryan A. Garner e., 7th

ed., West 1999)(defining Dictum Gratis).

To conclude that the WKA court altered the definition of natural born citizen under

article II would also require a conclusion that the WKA court intended to completely ignore the

rules of Constitutional construction established by the Marbury Court, as discussed above.

Nothing in WKA implies an intent to leave no distinction between the requirements to hold the

office of President and the requirements to hold the office of Senator. If WKA changed the

definition of natural born citizen established by the Minor Court, then the distinction between the

requirements to hold the office of President and the requirements to hold the office of Senator

would be eliminated. This would leave article II section 1 paragraph 5 without effect.

Finally, to conclude that the WKA court altered the definition of natural born citizen

under article II would also require a conclusion that the WKA court intended to overturn Minors

holding that the 14th

amendment didnt create any new privileges or immunities. Mr. Ark

certainly was not qualified to run for president before the 14th

amendment was ratified. So, to

conclude that he was a natural born citizen after the 14th

amendment not only runs contrary to the

holding of the WKA Court, it also requires Minor to be overturned. Such a conclusion is not

suggested by WKA, or any decision of the Supreme Court since WKA.


[Exhibit 2]


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11

The holdings from Minorand WKA simply do not conflict. Any other conclusion runs

contrary to every rule of construction and is not supported by any subsequent precedent from the

Supreme Court.

VI. Facts Established1. Defendants BurdenWhile the Defendant and his attorney violated an order of this Court to appear at the

January 26th

hearing, the Defendant did file documents raising an argument that the burden of

proof lies with the Plaintiff in this case. For the reasons discussed here, the Court concludes that

the Defendant has the entire burden to prove that he is qualified to hold the office for which he is

running.

The Supreme Court of Georgia has clearly established that it is the affirmative obligation

of a candidate to establish his qualifications for office, and that the burden is not upon the

challenger.Haynes v. Wells, 538 S.E.2d 430(2000). That holding was relied upon by this court to

remove Keith Gross from the Democratic primary ballot, concluding, The burden of proof is

entirely upon Respondent to establish affirmatively his eligibility for office. O'Brien v. Gross,

OSAH-SECSTATE-CE-0829726-60-MALIHI, at 12 (2008).

The Defendant in the instant case asserts thatHaynes is inapplicable because that holding

rested upon a statutory requirement that candidate Haynes hadnt met. The Haynes Court

concluded that the statute created an affirmative burden for Mr. Haynes. The Defendant also

cites Patten v. Miller, Westberry v. Saunders, and McLendon v. Everett in support of the

principal that the right to hold office is the general rule, ineligibility the exception. Def. BR. at


[Exhibit 2]


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12

1, citing 190 Ga 123, 139 (1940); 250 Ga. 240, 241 (1982); 205 Ga. 713, 713 (1949),

respectively.

As in Haynes, the instant challenge is founded upon statutory requirements that Every

candidate for federal and state officeshall meet the constitutional and statutory qualifications

for holding the office being sought. O.C.G.A. 21-2-5(a). Said statutory requirements create the

same affirmative burden to prove eligibility as the statute at issue in Haynes.

Also, the cases cited by the Defendant have been overruled by subsequent legislation, at

least as they apply to the instant challenge. (See 1998 Ga. Laws Act 697 (S.B.630)). The

legislature has authority to add requirements to run for office in this State. The requirements

established by 21-2-5 were established after the cases cited by the Defendant and the new

version of the statute was construed by the Georgia Supreme Court inHaynes. (See Id.; See also

538 S.E.2d 430(2000)).

Accordingly, the Court finds that he burden of proof is entirely upon Defendant to

establish affirmatively his eligibility for office.

2. Facts Established3Based on the record in this case the Court finds that the Plaintiff is an elector qualified to

vote for the Defendant in the Georgia state primary for the office of President of the United

States. The Court further finds that the Plaintiff filed a timely challenge pursuant to 21-2-5 to

the Defendants Constitutional qualifications to hold the office of President of the United States .

Further, based upon testimony of two witnesses and submission of three exhibits, the

Court concludes that the Defendants father was not a United States citizen at the time the

Defendant was born.

3Because the Defendant and his attorney failed to appear at the January 26 hearing, the evidence submitted by the

Plaintiff was entered unopposed.


[Exhibit 2]


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13

The Plaintiffs exhibits included copies of the Defendants birth certificate, statements

from a book written by the Defendant, and a U.S. Department of Justice immigration document

obtained through a Freedom of Information Act request. The Defendants birth certificate

indicates that the Defendants father was born in Kenya and that the Defendant was born in

1961. The Department of Justice document indicates that the Defendants father was an F -1

non-immigrant student visiting the United States as a non-citizen in 1962. The relevant

statements in the book authored by the Defendant indicate that the Defendants father had his

passport revoked by the government of Kenya in 1967 and as a result was unable to leave Kenya

in 1967. This evidence is sufficient to establish that the Defendants father was not a U.S. citizen

when the Defendant was born in 1961.

These conclusions are further supported in light of the Defendants refusal to c omply

with this Courts order to appear. The Defendants contumacious conduct denied the Plaintiff the

opportunity to obtain testimony from the Defendant further supporting the Plaintiffs factual

assertions. The Defendants failure to appear also resulted in the Defendant failing to offer any

opposition to the evidence presented.

VII. Constitutional Right To AssociateThe Defendant also filed a motion to dismiss arguing that 21-2-5 as applied to the

instant challenge interferes with the Georgia Democratic Partys right to associate as protected

by the United States Constitution. For the reasons set forth here, the Court concludes that the

Defendants argument fails.

The right to associate has been interpreted to allow private groups to determine who will

and will not be members of the group. Democratic Party of U.S. v. Wisconsin, 450 U.S. 107


[Exhibit 2]


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14

(1981); Duke v. Cleland, 954 F.2d 1526 (11th

Cir. 1992);Belluso v. Poythress, 485 F.Supp. 904

(N.D.Ga. 1980). However, no court has extended this right beyond the confines of the private

organization. A party can determine who it will include as members. That party can also

determine which of those members will be its candidates. However, nothing in the Constitution

or precedent forces a State to accept a partys selection of candidates for appearance on a ballot.4

Several right-to-associate cases did involve candidates exclusion from ballots. See

Democratic Party of U.S. v. Wisconsin, 450 U.S. 107 (1981); Duke v. Cleland, 954 F.2d 1526

(11th

Cir. 1992); Belluso v. Poythress, 485 F.Supp. 904 (N.D.Ga. 1980). However, all of these

cases are exactly opposite to the present situation. All referenced cases involved political parties

excluding a candidate because the party didnt want to be associated with the candidate. In every

case cited the candidate sued the party and/or state for inclusion on the ballot after being

excluded.

There are no cases where a political partys decision to support a candidate created a

Constitutional right to force a State to not only accept that decision but to also accept that

candidate and place the candidate on a ballot. Such precedent would place the political partys

authority above that of the state. This is why no such precedent exists.

It is true that some states lack election codes authorizing any state officials to screen

candidate selections from political parties. In these states political parties have essentially

unfettered authority to determine which candidates appear on ballots. However, these instances

represent decisions of the states to not screen candidates. It is the states right to decide how to

administer its elections. The fact that some states have decided to not protect their citizens from

4While right-to-associate precedent has negated some states restrictive laws for recognizing

political parties, these precedent have not forced states to accept all candidates for appearance on

ballots without any screening of such candidates.


[Exhibit 2]


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15

unqualified candidates does not mean that other states dont have the right to screen candidates.

It simply means that some states have left the screening to the political parties.

Georgia has determined that it is in the best interest of its citizens to screen candidates

prior to placement on the ballot. See 21-2-5. Right-to-associate precedent does not prevent

Georgia from protecting its citizens in this manner.

In the instant case the Democratic Party of Georgias Constitutional right to determine its

membership coexists with Georgias right to govern Georgia. Georgia code does not interfere

with the autonomy of the political partys internal decision making because it does nothing to

prohibit the parties from submitting any name to the Secretary of State for inclusion in the

Presidential primary. The Party is free to submit any name as their next Presidential candidate.

However, Georgia is not required to accept such submissions and waste taxpayer money on

ballots where such candidates are clearly not qualified to hold the office sought.

Georgia code does not prevent the political parties from submitting any name. Instead the

code simply determines what the State does with the Partys list of candidates after the Party has

forwarded its list to the State. See O.C.G.A. 21-2 et seq. This code does nothing to prevent any

political party from excluding, or including, any person they choose to exclude or include. Nor

does it prevent the Party from choosing candidates to submit, in its sole discretion. Georgias

code simply exercises the States right to administer elections in a manner that best serves the

citizens of the State.

In the instant case, Georgias Election code does nothing to infringe on the Democratic

Party of Georgias right of association because the Party can and did include the Defendant in its

organization. The Party can and did include the Defendant in the Partys list of candidates. The

Partys rights, however, end there. Its rights cannot force the State to place the Defendants name


[Exhibit 2]


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16

on a ballot after the State determines that the Defendant is not qualified to hold the office

sought. 21-2-5. The rights of the Party and of the State simply do not conflict.

VIII. Constitutional Qualifications are Unaffected by Popular VoteThe Defendants motion to dismiss also asserted that the issues raised by the Plaintiff

were soundly rejected by 69,456,897 Americans in the 2008 elections.See Def.s Mtn. at 5.

This statement reflects a lack of understanding regarding Constitutional protections.

Contrary to the Defendants assertion, voters are not the final arbiters of whether an

individual is qualified to hold office. In a Constitutional Republic the power of the majority is

limited and cannot infringe upon protected rights of a minority.

The Constitution is an anti-majoritarian document; meaning that it protects individuals

from invasions and usurpations by the majority. Constitutionally protected rights are held

inviolate regardless of the majoritys desire to violate them. Without such protections, any law

could be enacted simply because it becomes popular. This would be true even if such law denied

an individual their right to life, liberty, or property. Without the anti-majoritarian protection of

the Constitution, Congress could legalize the killing of all Jews, for example, as was done in

World War II Germany. Constitutional requirements are absolute, and must be followed

regardless of how popular or unpopular such requirements may be, because they are in place to

protect the minority.

The Defendants presumption that popular vote overrides the Constitution runs contrary

to the Constitution. Contrary to the Defendants statement, a minority of Americans ha ve an

absolute right to have Constitutional rights enforced, regardless of how popular or unpopular

those rights may currently be.


[Exhibit 2]


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17

IX. Statutory AuthorityThe Defendant also asserted that 21-2-5 doesnt apply to Presidential primary elections.

Statutory provisions must be read as they are written, and this Court finds that the cases

cited by the Defendant are not controlling. When the Court construes a constitutional or statutory

provision, the first stepis to examine the plain statutory language.Morrison v. Claborn, 294

Ga App. 508, 512 (2008). Where the language of a statute is plain and unambiguous, judicial

construction is not only unnecessary but forbidden. In the absence of words of limitation, words

in a statute should be given their ordinary and everyday meaning. Six Flags Over Ga. V. Kull,

276 Ga. 210, 211 (2003) (citations and quotation marks omitted). Because there is no other

natural and reasonable construction of the statutory language, this Court is not authorized

either to read into or to read out that which would add to or change its meaning. Blum v.

Schrader, 281 Ga. 238, 240 (2006).

Georgia Election Code 21-2-5(a) states: Every candidate for federal and state

officeshall meet the constitutional and statutory qualifications for holding the office being

sought. This Court has seen no case law limiting this provision, nor found any language that

contains an exception for the office of President or stating that the provision does not apply to

the Presidential preference primary.

Furthermore, as to the application of 21-2-5 to the Presidential primary provisions,

Chapter 2 of Title 21 also states: This chapter shall apply to any general or special election in

this state to fill any federal, state, county, or municipal office, to any general or special primary

to nominate candidates for any such office, and to any federal, state, county, or municipal

election or primary for any other purpose whatsoever, unless otherwise provided. O.C.G.A.

21-2-15. This statutory language is clear and inclusive.


[Exhibit 2]


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18

Accordingly, this Court finds that the Defendant is a candidate for federal office and

must, under Code Section 21-2-5, meet the constitutional and statutory qualifications for holding

the office being sought.

X. Authority of this Court Pursuant to the Full Faith and Credit Clause of theConstitution

The Defendant has also asserted that this Courts authority to subpoena documents and

order appearance of persons, ends at the borders of the state of Georgia. This is not correct.

Article IV of the United States Constitution states in relevant part: Full faith and credit

shall be given in each state to the public acts, records, and judicial proceedings of every other

state.

Accordingly, this Court has authority to order the attendance of persons and to subpoena

documents, wherever they may be found, whether within this state or beyond, to the extent

allowed by the laws of this state and subject to the limitations thereof as established in the

precedent of this states judicial branch and the judicial branch of the United States federal

government. U.S. Const. art. IV, 1, 1.

XI. Defendants Failure to Appear in Violation of this Courts Order This Court issued a subpoena ordering the Defendant to appear and testify at the January

26 hearing and produce certain documents. Defendant filed a motion to quash, which this Court

denied for reasons set forth in the Courts denial. On the eve of the hearing , Defendants attorney

sent a letter directly to the Secretary of State of Georgia, with copies sent to this Court and

attorneys for the Plaintiff. Defendants letter requested that the Secretary of State halt the

proceedings of this Court. The letter ended with a statement that the Defendant and his attorney


[Exhibit 2]


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19

would suspend all further participation in the proceedings of this Court pending a response from

the Secretary of State.

Later the same day, during the evening of January 25th, the Secretary of State responded

to the Defendant via a letter with copies to this Court and counsel for the Plaintiff. The Secretary

of States letter informed the Defendant that the Secretary of State lacked authority under

Georgia law to suspend this Courts proceedings. The letter concluded by warning the Defendant

that any failure to participate in further proceedings of this Court would be at the Defendants

peril.

Considering the office currently held by the Defendant, the Defendants request that the

Secretary of State halt the proceedings of this Court, coupled with the Defendants willful refusal

to comply with an order of this Court, represent a direct threat to the rule of law. The

Defendants actions represent a direct threat to the entire judicial branch and the separation of

powers between the branches of government.

The Defendants decision to completely ignore the authority of this Court is

unprecedented. While past Presidents have litigated against subpoenas, in every case those

Presidents acknowledged and respected the authority of the judicial branch. In every case those

Presidents instructed their attorneys to attend hearings. In every case those Presidents

acknowledged rulings with which they disagreed, and either complied with court orders or

followed applicable procedures to appeal to higher courts. In the instant case the Defendant did

not appeal to a higher Court, and instead instructed the Secretary of State that he would not

participate in further proceedings. When the Secretary of State refused to act in an unlawful

manner the Defendant ignored the Secretary of State, violated an order of this Court, and


[Exhibit 2]


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20

apparently instructed his attorney to act in a manner that violates the professional rules of

conduct of this State.

The Defendants action represents a public denial of the authority of this Court, the laws

of this State, and the judicial branch of government as a whole. Such open denial of a separate

branch of government by a sitting President amounts to no less than a declaration of total

dictatorial authority. Such declaration cannot go without response from this Court. Failure to

respond to the Defendants contumacious conduct would amount to an admission that this Court

and the judicial branch as a whole do not have the authority granted to them under articles III and

IV of the Constitution.

The Court finds that the Defendant had sufficient notice of the January 26 hearing, that

the Defendant was aware that this Court had ordered his appearance, that the Defendant was

aware that his motion to quash this Courts subpoena was denied, and that th e Defendant

thereafter willfully acted against the orders of this Court to appear.

Accordingly, this court finds the Defendant in willful contempt of Court. Pursuant to

Administrative Rules of Procedure the Court hereby refers this matter to the Superior Court of

Fulton County for confirmation that the Defendant violated Administrative Rules of Procedure

16-1-2-.22 (5) (a), (b), (c), and (f); and to determine appropriate sanctions, taking into

consideration the findings and conclusions herein.

Conclusion

Based upon the foregoing discussion and analysis, the Court finds that the term natural

born citizen as defined by the Supreme Court of the United States, is a person born in the

United States of parents that were themselves United States Citizens. The Court also finds that


[Exhibit 2]


39/40

21

the Defendants father was not a United States citizen at the time the Defendant was born . As a

result, because No person except a natural born citizenshall be eligible to the office of

President, the Defendant is not constitutionally qualified to hold the office of President of the

United States. U.S. Const. art. II, 1, 5. Because the Defendant is not constitutionally qualified,

he cannot be elected to the office of President regardless of how popular or unpopular he may be

with the voters. Therefore, the Defendant should not appear on the ballot for election to the

office of President in the primary or general elections in the state of Georgia.

Date:___________________

_____________________________

MICHAEL M. MALIHI, Judge


[Exhibit 2]


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CERTIFICATE OF SERVICE

Pursuant to the Order entered in this matter regarding electronic service, I certify that I

have served the opposing party in this matter with a copy of Plaintiff Weldens ProposedFindings of Fact and Conclusions of Law by sending a copy via e-mail addressed to: Michael

[email protected] This the 1st

day of February, 2012.

_________________________

Van R. IrionLiberty Legal Foundation

9040 Executive Park Dr., Ste. 200

Knoxville, TN 37923(423) [email protected]

Attorney for Plaintiff


[Exhibit 2]
mailto:[email protected]:[email protected]:[email protected]:[email protected]

Documents

AZ - 2012-04-30 - LLF Opposition to Motion to Dismiss